Miller v. Abramson

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

18-P-514 Appeals Court

GARY MILLER & another1 vs. CHRISTOFFER ABRAMSON & another.2

No. 18-P-514.

Middlesex. January 11, 2019. - August 29, 2019.

Present: Massing, Desmond, & McDonough, JJ.

Real Property, Adverse possession, Boundary.

Civil action commenced in the Superior Court Department on
June 15, 2016.

The case was heard by Thomas P. Billings, J.

Jeffrey P. Allen (Katharin M. Unke Smith also present) for
the defendants.
Leonard M. Davidson for the plaintiffs.

McDONOUGH, J. The defendants, Christoffer and Cheryl Marie

Abramson, appeal from a judgment declaring that the plaintiffs,

Arlene and Gary Miller, acquired by adverse possession a thin

slice of the Abramsons' land situated just across the parties'

1 Arlene Miller.

2 Cheryl Marie Abramson.
 2

shared lot line. The Abramsons argue that the Millers' only

open and adverse use of the disputed area occurring continuously

for the required time period amounts to nothing more than basic

suburban landscaping -- mowing, fertilizing, and occasional

trimming of trees and shrubs. The Abramsons claim that under

Massachusetts law, this sort of yard work is simply not enough

to satisfy the elements of adverse possession. We disagree and

affirm.

Background. The facts we recite are taken from the judge's

findings, made after a jury-waived trial, and are supplemented

by uncontroverted evidence in the record.3 The plaintiff Millers

live in a single-family home at 11 Fellsmere Road in Newton, on

a corner lot at the intersection with Ward Street. The

defendant Abramsons live at 211 Ward Street in Newton.

Fellsmere Road dead-ends onto Ward Street. As shown in the plan

of land we include as an appendix to this opinion, the back of

the Millers' property directly abuts one side line of the

Abramsons' lot. The parties' shared lot line is straight,

running from Ward Street to the back of the Abramsons' property.

The area disputed by the parties forms a thin triangle, about

492 square feet in size, the base of which is along the

3 None of the judge's findings is clearly erroneous. See
Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). Except as
discussed infra, the Abramsons do not claim otherwise.
 3

Abramsons' back lot line and one side of which is along the

parties' shared lot line.

The Millers' use and occupation of the disputed land was

interrupted for purposes of adverse possession by June 15, 2016,

when the Millers filed this action, in which the Abramsons

counterclaimed. See Pugatch v. Stoloff, 41 Mass. App. Ct. 536,

542 n.8 (1996) (complaint to establish title immediately

interrupts adverse possession). Accordingly, the Millers' goal

at the parties' jury-waived trial was to prove their continuous

use and occupation of the disputed area4 over a twenty-year

period prior to or ending in June 2016.5 See G. L. c. 260, § 21.

The Millers purchased their home in 1986 and moved in the

following year. At the time they moved in, there was a line of

shrubs and small trees along one edge of the disputed triangle,

shown as a dashed line in the appendix (i.e., along the side of

the triangle closest to the Abramsons' house; not along the

shared boundary). This line of vegetation extended along the

edge of the disputed area in a straight line from the Abramsons'

4 The Millers do not rely on and did not present evidence of
any predecessor's use of the disputed area. Accordingly, our
analysis must begin with the Millers' acquisition of the land.

5 The Abramsons argue that the Millers' alleged adverse
possession was interrupted seven months earlier, when the
Abramsons first complained to the Millers about the
encroachment. The Millers do not dispute this, but the seven-
month difference is immaterial in any event.
 4

back boundary to the apex of the triangle, where it jogged

slightly, then followed the parties' shared lot line the rest of

the way to Ward Street. The line of vegetation "formed a

natural boundary between one yard and the next." Until November

2015, when the Abramsons complained to the Millers that they

were encroaching on the Abramsons' land, the Millers assumed

this line of shrubbery represented the legal boundary between

the two lots.

At the time of trial in October 2017, the assortment of

vegetation found between the two homes showed signs of having

being pruned on the Millers' side. The shrubs and trees were

also substantially larger and denser than when the Millers moved

in. Between 1987 and the trial date, some of the plants had

died and some had been replaced, but most had grown to be taller

than an adult person -- with some trees or shrubs reaching as

high as the second story of the Millers' house, and one reaching

the peak of the building.6

In 1987, when they first moved in, the Millers retained

Santangelo Landscaping (Santangelo) to care for their lawn and

plantings and to remove leaves. Beginning in that year and in

each year thereafter, a three-person crew from Santangelo

6The foliage screens the view between the two homes in the
summer but not in the winter.
 5

performed yard work at the Millers' property every week from

April 1 through November 1 -- and in some years even later,

depending on when the leaves fell. From 1987 through the

present, a Santangelo crew mowed the lawn, following a spiral

course starting from the perimeters and working inward.7 The

mowed area included the disputed triangle, inside of the line of

vegetation. The landscaping crew also fertilized the lawn,

exterminated pests as necessary, and trimmed the shrubs and

trees forming the vegetative border.8

From when the Millers first moved in, neither the Abramsons

nor their predecessors ever used the disputed area.9 Moreover,

7 Although not mentioned in the judge's findings, Arlene
Miller testified without challenge that Santangelo's lawn mowers
were loud enough to wake napping children in the days when the
Millers' now-adult children were young.

8 In approximately 1997 or 1998, the Millers installed a
kidney-shaped patio, related lighting and plantings, and a new
sprinkler system, all of which occupies a significant portion of
the disputed area. The Abramsons agree that installation of the
permanent patio would meet the required elements of adverse
possession if maintained for twenty years or more. The Millers
do not claim that the patio had been in existence for the
required twenty years prior to June 2016. However, for adverse
possession purposes, the period of time after the patio was
installed is properly added to the period when the area under it
was maintained as a lawn. See LaChance v. First Nat'l Bank &
Trust Co. of Greenfield, 301 Mass. 488, 489-491 (1938) (adverse
possession claimant need not establish a single use for the
requisite time period; various uses may be "tacked together");
Lebel v. Nelson, 29 Mass. App. Ct. 300, 302 (1990).

9 The Abramsons purchased their home in November 2014.
 6

the Millers never asked or received permission to use the

disputed area.

Discussion. Although we accept the judge's factual

findings unless clearly erroneous, "we scrutinize without

deference the legal standard which the judge applied to the

facts." Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).

"Title by adverse possession can be acquired only by proof of

nonpermissive use which is actual, open, notorious, exclusive

and adverse for twenty years." Id. at 621-622, quoting Ryan v.

Stavros, 348 Mass. 251, 262 (1964). "Acts of possession which

are 'few, intermittent and equivocal' do not constitute adverse

possession." Kendall, supra at 624, quoting Parker v. Parker, 1

Allen 245, 247 (1861).

1. Finding as to the tree and shrub line. As a threshold

matter, the Abramsons argue that the judge made a clear error in

finding that, for more than twenty years, the line of vegetation

between the parties' houses "formed a natural boundary between

one yard and the next, signaling clearly to the adjoining

neighbors that the Millers claimed what is now the disputed

area, as their own." More specifically, the Abramsons claim

that because the parties do not know who first installed the

trees and shrubbery, it is impossible to know whether the

Abramsons' predecessors regarded it as identifying a boundary

between the two yards.
 7

As the Abramsons acknowledge, however, this finding is only

partially factual, and was included among the judge's legal

conclusions. We see no error (clear or otherwise) in the first

clause of the judge's statement (i.e., that the tree and shrub

line formed a "natural boundary"). This proposition is readily

supported by the testimony at trial. The next clause, about

what the vegetative barrier "signal[ed]," is not a factual

finding -- it is, instead, a legal conclusion about the

significance of a found fact.

The judge made no comment here about the actual state of

mind of the Abramsons or their predecessors (or even the

Millers) at any particular time, which is not a relevant inquiry

in any event. See Totman v. Malloy, 431 Mass. 143, 145 (2000)

("The guiding principle behind the elements of adverse

possession is not to ascertain the intent or state of mind of

the adverse claimant, but rather to provide notice to the true

owner, allowing for the legal vindication of property rights").

See also Kendall, 413 Mass. at 622-624. The point is simply

that the existence of the vegetative boundary allowed for easy

identification of what land was being openly used and possessed

by the Millers, where the Millers' landscaper maintained the

lawn and plantings only on one side of it. This bolsters the

judge's ultimate conclusion that the Millers' use of the land

was sufficiently open and notorious so as to put the Abramsons
 8

and their predecessors on notice as to the existence and extent

of the Millers' claim.10 See Lawrence v. Concord, 439 Mass. 416,

421 (2003) ("The purpose of the requirement of 'open and

notorious' use is to place the true owner 'on notice of the

hostile activity of the possession so that he, the owner, may

have an opportunity to take steps to vindicate his rights by

legal action'" [citation omitted]). We see no clear error in

the judge's factual finding, and no legal error in his

application of the law as to the effect of the continuously

existing boundary.

2. Sufficiency of yard maintenance. The bulk of the

Abramsons' argument is directed to their contention that

10That the line of vegetation formed a "natural boundary"
between the lawns also lends credence to the testimony
establishing the Millers' exclusive use. In MacDonald v.
McGillvary, 35 Mass. App. Ct. 902, 903 (1993), a wooden fence
existing between the parties' yards fell down and was absent for
a year or two, before being replaced with a chain-link fence.
The absence of a barrier for a period of time did not, however,
automatically interrupt the McGillvarys' period of adverse
possession of the land. It was only "one factor to be
considered in determining the degree of the McGillvarys' control
over the area." Id. at 904. Moreover, "the presence on the
ground of the remains of the wooden fence during the one or two-
year absence of a fence made it most unlikely that, during that
period, the McGillvarys ceased to take care of the entire
disputed area and that the MacDonalds' lawn care extended into
the disputed area." Id. Similarly, in this case, the fact that
a natural but penetrable barrier has existed between the
parties' lawns during the entire period of adverse possession is
a relevant fact tending to support the Millers' regular and
exclusive maintenance of the disputed area.
 9

"lawn/brush maintenance is wholly insufficient to establish

adverse possession under Massachusetts law." This proposition

is not correct. Our cases do not hold that lawn mowing and

other yard work is insufficient in all instances to establish

ownership. As the trial judge aptly put it, the proper inquiry

is "more nuanced than this."

"The nature and the extent of occupancy required to

establish a right by adverse possession vary with the character

of the land, the purposes for which it is adapted, and the uses

to which it has been put." LaChance v. First Nat'l Bank & Trust

Co. of Greenfield, 301 Mass. 488, 490 (1938). Moreover,

"[e]vidence insufficient to establish exclusive possession of a

tract of vacant land in the country might be adequate proof of

such possession of a lot in the center of a large city." Id.

In other words, the context supplied by the surrounding

landscape is significant in an adverse possession case -- a use

that is sufficient to establish ownership in a densely populated

neighborhood may be inadequate in an isolated, wooded setting.

Establishing title requires only that "the possessor must use

and enjoy the property continuously for the required period as

the average owner would use it, without the consent of the true

owner and therefore in actual hostility to [the true owner]

irrespective of the possessor's actual state of mind or intent."

Kendall, 413 Mass. at 624, quoting Ottavia v. Savarese, 338
 10

Mass. 330, 333 (1959). Accordingly, in MacDonald v. McGillvary,

35 Mass. App. Ct. 902, 904 (1993), adverse possession was found

where the claimant's use of the land "consisted of little more

than maintenance of a suburban lawn." See Shoer v. Daffe, 337

Mass. 420, 423 (1958) (where possessor "planted [land] to lawn"

and surrounded it with a hedge, possessor's "use was that

ordinarily made only by an owner").11

In this case, the findings plainly demonstrated not only

that the Millers engaged in the typical suburban lawn care found

to give rise to ownership in MacDonald, 35 Mass. App. Ct. at

904, but also that this activity occurred on a continuous basis

-- with a commercial landscaper conducting the activity in plain

sight once per week from April through November for more than

11The Abramsons rely on Peck v. Bigelow, 34 Mass. App. Ct.
551, 553, 556-557 (1993), where this court held various uses --
including mowing of a thirty-by-thirty foot area on which the
claimant kept furnishings such as a picnic table and lounge
chairs; clotheslines; a rope swing; a sandbox; a henhouse;
lumber and compost piles; and occasional tree cutting and
pruning along two street-adjacent sides of the lot -- did not
amount to "actual" possession over the lot. Peck, however, was
decided prior to MacDonald, 35 Mass. App. Ct. at 904, and
involved a claim of adverse possession over the entirety of "an
unimproved, largely overgrown" 6,720 square foot lot that was
described as "rugged" -- not, as in the instant case, a claim
over a portion an improved house lot with its own yard. Peck,
supra at 551, 557. Moreover, in Peck, although the evidence was
insufficient to support the element of actual use, it was also
insufficient to establish the exclusivity requirement of adverse
possession. Id. at 557. In contrast, here there was no showing
that anyone but the Millers ever used the disputed land during
the relevant time period.
 11

twenty years. The evidence also established that the Millers

treated the larger trees and shrubs along one side of the

disputed area as their own, with regular pruning. Moreover, as

discussed above, this line of trees and shrubs formed a natural

boundary demarcating the contours of the Millers' yard.12 As

this court has stated,

"The actual use and enjoyment of the property as the
average owner of similar property would use and enjoy it,
so that people residing in the neighborhood would be
justified in regarding the possessor as exercising the
exclusive dominion and control incident to ownership,
establishes adverse possession in the absence of evidence
that his possession is under a license or tenancy."

Shaw v. Solari, 8 Mass. App. Ct. 151, 156-157 (1979), quoting 3

Am. Law of Property § 15.3, at 765-766 (1974).

There is nothing about the way in which the Millers used

the disputed land that precludes a finding of adverse

possession. To the contrary, the evidence showed that the

Millers used the land precisely as the average owner of similar

property would use it in a suburban neighborhood populated with

single-family homes. The character of the land includes the

existence of the tree and shrub line, which, during the relevant

time, had the effect of enclosing the area the Millers

12This is not a case where lawn mowing was unaccompanied by
some sort of barrier or boundary indicating the shared perimeter
of two adjacent lawns; nor is it a case of one neighbor doing
the other an occasional favor by mowing the abutter's grass at
the same time as caring for one's own.
 12

consistently used as their yard. Accordingly, in the context

presented here, we see no error in the judge's conclusion that

the Millers' relatively passive use of the disputed land was

sufficient to satisfy the elements of adverse possession. See

LaChance, 301 Mass. at 491 (adverse possession established by

acts of control and dominion "similar to those which are usually

and ordinarily associated with ownership").

Judgment affirmed.