Opinion
16-P-851
07-24-2017
16 SHAWMUT STREET LLC v. PIEDMONT STREET LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff claims title by adverse possession to a narrow strip of land used for gardening within its walled-in patio area. After a bench trial, the Land Court judge held that the plaintiff prevailed on all elements of adverse possession except for exclusivity. Accordingly, the judge determined that the plaintiff holds an easement by prescription over the disputed land, but does not own the land. The plaintiff appeals. We vacate the judgment and remand for entry of a revised judgment in favor of the plaintiff on its adverse possession claim.
Background. The plaintiff, 16 Shawmut Street LLC, owns the building known by that same address in Boston's South End/Bay Village neighborhood. In the back of the plaintiff's building is a walled-in courtyard area used as an outdoor space for cook-outs and the like. A narrow strip at the southerly edge of that walled-in courtyard is what we will refer to as the "disputed area." The disputed area is roughly rectangular, measuring 15.91 feet on its south side, 15.94 feet on its north side, 2.28 feet on its west side, and 1.9 feet on its east side. Essentially, it is the rear two feet of the plaintiff's enclosed courtyard.
The walls are brick.
While much of the backyard area is covered with decorative pavers, the disputed area is mostly dirt and contains plantings, including two small trees. No evidence presented at trial suggests, however, that the pavers and flower bed existed before the plaintiff's purchase of 16 Shawmut Street in 2001. The trial judge found that "[s]o far as the evidence showed, 16 Shawmut was a rental property for at least sixteen years prior to the plaintiff's purchase in 2001, with the back yard area open and unimproved all during that time and used only as garden space."
The trial judge found that historically the south and east walls partially enclosing the disputed area had been portions of the outer walls of the Cocoanut Grove nightclub, which was destroyed by fire in 1942. At one time, a narrow passageway had existed between the nightclub and the abutting buildings fronting on Shawmut Street. The passageway adjacent to the nightclub was part of the nightclub lot and owned by the defendant's predecessors. In the 1960s, the Boston Redevelopment Authority acquired the nightclub site and then flattened and level-filled it. The outer walls of the former nightclub building adjacent to the disputed area were left intact with the windows and doors bricked up, and they were used as retaining walls for fill. The area was filled to the top of the retaining walls and a parking lot used by a nearby hotel was installed immediately to the south of the plaintiff's lot.
This was evident to the judge at the view.
The plaintiff's courtyard is next to what had been the parking lot. The courtyard (including the disputed area) is well below street level, with the south wall separating it from the defendant's lot above. The judge found that at some point before 1985, one of the defendant's predecessors installed a chain link fence on top of the south wall, along the disputed area. That chain link fence was removed by the plaintiff in 2001 and replaced with a decorative fence.
The defendant now owns the former nightclub site, which fronts on Piedmont Street. At the time of trial, the defendant was building an eight-unit condominium development on the site.
The west wall enclosing the disputed area on a third side (and extending across the passageway) appeared to the judge at the site view to be newer than the brick walls to the south and east. Testimony at trial established that the west wall was, however, in existence at the locus by 1985 at the latest, and the trial judge found based on trial exhibits that it was constructed at some point between 1969 and 1985. The judge also found that it was impossible to determine who installed the west wall.
We do not displace the judge's determination that the plaintiff made out no claim to the land on which the west wall stands (or, for that matter, the land on which either of the east or south walls stands).
Discussion. The trial judge found that the plaintiff and its predecessor used and occupied the disputed area for gardening purposes continuously, openly, and notoriously since 1985, entitling the plaintiff to a judgment stating that it holds a prescriptive easement. See Rotman v. White, 74 Mass. App. Ct. 586, 589 (2009). The judge found that the plaintiff did not establish title to the disputed area, however, because its use of the disputed area was not exclusive. See Ryan v. Stavros, 348 Mass. 251, 263 (1964) ; Labounty v. Vickers, 352 Mass. 337, 349 (1967).
The defendant has not appealed. Therefore, the issue before us is whether the judge erred in determining that the plaintiff's use was not exclusive. The plaintiff quarrels with two inferences, or series of inferences, made by the trial judge in support of his finding that the adverse use of the disputed area was not exclusive. The first is that the defendant's predecessor regularly maintained and inspected the retaining walls and chain link fence, and accessed the disputed area in order to do so. The second is that the defendant's predecessor accessed the disputed area to control vermin present in the area due to the proximity of the property to a nearby restaurant. The plaintiff argues that these inferences are not supported by the trial record, and thus, they are not reasonable and cannot support the judge's ultimate finding that the plaintiff failed to establish exclusivity.
We agree with the plaintiff that the judge's inferences were plainly erroneous. "To be reasonable, [an] inference ‘must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture.’ " Phelan v. May Dept. Stores, 443 Mass. 52, 55 (2004), quoting from McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704, 706-707 n.3 (1990). Here, there was no evidence before the judge that suggested that any predecessor of the defendant inspected, maintained, or repaired the retaining walls or the chain link fence at any point during the twenty years before this case was commenced. Moreover, the plaintiff's immediate predecessor, Benjamin Clark, provided contrary testimony. Clark, with his wife, bought 16 and 18 Shawmut Street in 1985. Thereafter, the couple lived at 18 Shawmut Street for half of each year (spending the other half of the year in Chilmark), and rented 16 Shawmut Street out, until they sold the properties in 2001. The trial judge found that Clark could see into the courtyard of 16 Shawmut from his home next door. Clark testified that no repairs were made to the south wall during his ownership of 16 Shawmut Street, which spanned from 1985 to 2001.
The filing of a complaint to establish title to land immediately interrupts adverse possession. See Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 542 n.8 (1996).
Additionally, the evidence showed that the east wall was repaired with funds escrowed at time of the closing when Clark sold 16 Shawmut Street to the plaintiff. This fact suggests that the east wall, at least, had not recently been maintained by the defendant's predecessors as of 2001.
To be sure, the trial judge noted that Clark and his wife were absent from the neighborhood and living in Chilmark for half the year while they owned the property, and that this time away "was almost certainly during the warmer months, when inspection, maintenance and repair of the wall and fence were most likely to occur." These facts do not, however, negate Clark's testimony entirely, particularly where Clark testified, "that wall had never been touched because we were there next door and would have noticed any work or issues going on with that wall."
In the face of Clark's testimony, without any specific rebuttal and with no evidence before the judge that tended to show the defendant's predecessor ever inspected, repaired, or maintained the east or south retaining walls or the chain link fence, we find the judge's inference that the defendant's predecessor entered the disputed area for this purpose to be unreasonable and, thus, impermissible. See Commonwealth v. Murphy, 86 Mass. App. Ct. 118, 127 (2014), quoting from Commonwealth v. Fitzpatrick, 463 Mass. 581, 590-591 (2012) ("To be permissible, an inference need only be ‘reasonable and possible,’ not ‘necessary or inescapable’ ").
Likewise, there was no evidence of any extermination efforts conducted in the disputed area by the defendant's predecessor or anyone else. Clark merely mentioned that he had spoken with the defendant's predecessor about vermin in the area. He did not testify whether any efforts to control the vermin followed those discussions, and did not provide any insight into whether any such efforts required accessing the disputed area. Moreover, the judge's observation of one or more restaurants in close proximity to the property does not, alone, support this inference. The judge noted that Clark was never asked whether he observed vermin control workers in the area. But, a lack of testimony on this topic does not support the judge's inference, especially where the defendant never claimed that their predecessors had entered the disputed area for vermin control purposes.
The judge described the defendant's position at trial as arguing: (i) that the plaintiff failed to establish the elements of adverse possession; (ii) that the plaintiff's use of the disputed area was permissive; (iii) that any adverse possession by the plaintiff was subject to the defendant's "passageway" rights; and (iv) that the parties had reached an enforceable contract to resolve this matter through the grant of an easement by the defendant to the plaintiff. Although the plaintiff, alone, bore the burden of proof on exclusivity of use, the defendant did not try the case on the theory that there had been extermination efforts occurring in the disputed area. Thus, there was no reason for the plaintiff's counsel to ask Clark about extermination efforts, and no adverse inference can be drawn from a lack of testimony on this topic.
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Here, the uncontested evidence showed that for more than twenty years the disputed area has been fully enclosed and not readily accessible (without use of a ladder) from the defendant's land. The mere fact of such enclosure is evidence of exclusive use. See Labounty, 352 Mass. at 349 ; Brandao v. DoCanto, 80 Mass. App. Ct. 151, 158 (2011).
Additionally, Clark's unrebutted testimony was that the south wall was never repaired or changed during his time of ownership and that he would have noticed any such work. Upon review, the plaintiff's record evidence was enough to establish that exclusive use of the disputed area by the plaintiff and its predecessor for a period of twenty years or more was more likely than not. See Inhabitants of Cohasset v. Moors, 204 Mass. 173, 177-178 (1910) (in adverse possession matter, plaintiff must prove his case by "fair preponderance of the evidence"). The plaintiff established its case for adverse possession of the disputed area.
One additional issue remains. The Land Court judge wrote that the defendant's argument that it retains "passageway" rights over the disputed area in the event that the plaintiff proves adverse possession was mooted by the court's determination that the plaintiff held only a prescriptive easement. Now that we have determined that the plaintiff has prevailed on its adverse possession claim, the issue of passageway rights is no longer moot. On remand the Land Court judge should revisit the issue of the defendant's passageway rights as he deems appropriate.
The judgment is vacated, a revised judgment shall enter for the plaintiff on its claim for adverse possession, and the matter is remanded to the Land Court for proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.