Opinion
20-P-1363
04-20-2022
Edward DRIGGERS & another v. Mouhab RIZKALLAH & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants, Dr. Mouhab and Laura Rizkallah, appeal from a judgment, entered after a Land Court trial, for the plaintiffs, Edward and Monica Driggers, on the defendants’ counterclaim for adverse possession or a prescriptive easement. Discerning no error in the judge's finding that the defendants failed to prove the elements of adverse possession or prescription, we affirm.
1. Standard of review. At trial, the defendants argued that they had acquired, by adverse possession or a prescriptive easement, title to a triangular piece of land (disputed area) on the abutting property of the plaintiffs. To establish adverse possession, the defendants, as the claimants, had the burden to prove nonpermissive use of the disputed area that was "actual, open, notorious, exclusive and adverse for twenty years." AM Props., LLC v. J&W Summit Ave, LLC., 91 Mass. App. Ct. 150, 154 (2017), quoting Ryan v. Stavros, 348 Mass. 251, 262 (1964). See Rotman v. White, 74 Mass. App. Ct. 586, 589 (2009). "Acquiring an easement by prescription requires ‘clear proof of’ " the same elements, minus exclusivity. Barnett v. Myerow, 95 Mass. App. Ct. 730, 738 & 739 n.11 (2019), quoting Smaland Beach Ass'n v. Genova, 94 Mass. App. Ct. 106, 114 (2018). "If any element remains unproven or left in doubt, the claimant cannot prevail." Rotman, supra.
Whether a party has shown the elements of adverse possession or prescription "is essentially a question of fact." Brandao v. Docanto, 80 Mass. App. Ct. 151, 156 (2011), quoting Kershaw v. Zecchini, 342 Mass. 318, 320 (1961). "[W]e accept the judge's findings of fact as true unless they are ‘clearly erroneous.’ " Brandao, supra at 154, quoting Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636-637 (2010). A finding is clearly erroneous when "there is no evidence to support it or ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Mancini v. Spagtacular, LLC, 95 Mass. App. Ct. 836, 839 (2019), quoting Brandao, supra. "So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it." Allen v. Allen, 86 Mass. App. Ct. 295, 298 (2014), quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).
2. Evidence of mowing. Of the many factual findings that the judge made about the disputed area, the defendants challenge as clearly erroneous only the judge's finding that the disputed area was not regularly mowed or maintained. In this regard, the judge stated, "There was no testimony as to any care or mowing of this grass in [the disputed area] on any regular basis.... [T]here was no evidence at trial of the condition of the grass or of any regular maintenance of the grass in this area during the period spanning 1994 to 2009."
In fact, the plaintiffs’ immediate predecessor, James Aiken, testified that he regularly saw landscapers maintaining the disputed area when the defendants’ property was owned by the defendants’ immediate predecessors. Although Aiken could not "see the ground from [his] vantage point," he saw the landscapers mowing "[w]hatever grass might have been there" and claimed that they mowed up to "the edge of ... the embankment." Given this testimony, it was an overstatement to say that there was no evidence of mowing or regular lawn maintenance.
Aiken referred to the disputed area, which he thought was part of the defendants’ backyard, as the "flat plateaued area" beside the embankment.
Of course, the trial judge was not obligated to credit Aiken's testimony. See Nannucci v. Hynds, 99 Mass. App. Ct. 901, 902 (2020) (judge entitled to credit testimony of some witnesses over others). Moreover, even if Aiken's testimony is treated as credible, it does not fix the defendants’ deficient showing of adverse use. Although lawn maintenance may be sufficient to support an adverse possession claim, see Mancini, 95 Mass. App. Ct. at 844, the defendants failed to introduce evidence "that this activity occurred on a continuous basis ... for ... twenty years." Miller v. Abramson, 95 Mass. App. Ct. 828, 833-834 (2019). At best, Aiken's observations date back to 2005, when he bought the property.
Despite the testimony of earlier mowing, as the judge noted, most evidence of earlier mowing was based not on personal observation, but on inferences that, given its appearance, the area must have been maintained. Although this evidence could have supported an inference of mowing, "[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Mancini, 95 Mass. App. Ct. at 839, quoting Brandao, 80 Mass. App. Ct. at 155. Accordingly, the judge's ultimate conclusion that the defendants failed to prove twenty years of continuous mowing is sound.
3. Application of the law. In reviewing the judgment against the defendants on their counterclaim for adverse possession or prescription, "we scrutinize without deference the legal standard which the judge applied to the facts." Brandao, 80 Mass. App. Ct. at 156, quoting Kendall v. Selvaggio, 413 Mass. 619, 621 (1992). Here, there was no error in the judge's application of the law of adverse possession and prescription.
a. Actual use. A claim of adverse possession or for a prescriptive easement requires "actual use and enjoyment of the property as the average owner of similar property would use and enjoy it." Mancini, 95 Mass. App. Ct. at 842, quoting Shaw v. Solari, 8 Mass. App. Ct. 151, 156-157 (1979). Acts that are few, intermittent, equivocal, or irregular are "insufficient to meet the [claimant's] burden." Barnett, 95 Mass. App. Ct. at 740. See Miller, 95 Mass. App. Ct. at 831, quoting Kendall, 413 Mass. at 624. "[T]he determination whether certain activities are sufficient to support an adverse possession claim remains ‘inherently fact-specific,’ " Mancini, supra at 845, quoting Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838, 848 (2004), and depends on "the character of the land." Barnett, supra at 738, quoting LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488, 490 (1938).
Here, the judge properly concluded that the evidence of use of the disputed area by the defendants before 2009 was not sufficient to support a finding that the use was adverse. The earliest evidence of use was in 1994, when the defendants’ predecessor installed three sprinkler heads and three landscaping "uplights" in the disputed area. From 1994 to 2002, the defendants’ predecessors paid Ronald Nevola to service the sprinklers and lights. In 2006, after four years away from the property, Nevola returned, servicing the sprinklers and lights until 2008.
In 2008, just after buying the property, the defendants hired a landscaper to mow their lawn and the disputed area. In 2009, they made changes to the disputed area, hiring workers to remove some of the sprinklers and lights, to clean the stones on the ground, to turn the stones into a walkway, to raze a railroad tie retaining wall, to build a stone retaining wall and a basketball court, to excavate the ground, and to make a mulched area. In 2010, the defendants put a play set in the mulched area. This caught the attention of a neighbor, who told Dr. Rizkallah that the play set was on what is now the plaintiffs’ property.
The judge found that the basketball court, located beside the stone wall, encroaches onto the plaintiffs’ property.
But despite evidence of open and notorious use of the disputed area starting in 2008, there was extensive evidence of long-term nonuse before the defendants entered the picture. As Dr. Rizkallah testified, in 2009, the stones were covered in moss and mildew. Before the defendants turned the stones into a walkway and started pressure washing them every year, the stones looked like they had been unattended "for years." A valve box located at the edge of the disputed area was dirty and "deteriorated," with the writing on it visible only after a worker cleaned it off. The retaining wall that the defendants removed was "completely in disrepair," "deteriorated," eroded, and covered in ivy. Further, most evidence that leaves had long been dumped onto the embankment was not based on personal observation, and it could not be established who dumped the leaves or when. Finally, although some of the sprinkler heads and landscaping lights stayed in the ground for twenty years, there was no evidence that they were used from 2002 to 2006. In fact, during this time, the pump for the sprinklers was broken.
b. Open and notorious use. "To be ‘open,’ a use must be ‘without attempted concealment.’ To be ‘notorious,’ a use ‘must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.’ " Mancini, 95 Mass. App. Ct. at 845, quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 44 (2007). "The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Boothroyd, supra, quoting Tinker v. Bessel, 213 Mass. 74, 76 (1912).
Here, the trial judge could properly conclude that the defendants’ sporadic use of the disputed area before 2009 was not sufficient to put a reasonable owner on notice of the adverse use. First, the stones, valve box, sprinkler heads, and lights were not highly visible but were flush with the ground, or close to it. Over time, dirt, moss, ivy, mold, mildew, leaves, and mulch began to cover some of these items, making them even less visible. Second, the disputed area and items in it are far from the plaintiffs’ house, past a wooded, undeveloped part of their property, under a "canopy of trees," near uplights on the abutting yard of the defendants. The trial judge was not required to credit Nevola's testimony that the lights were "very visible," especially given these facts. See Nannucci, 99 Mass. App. Ct. at 902.
The valve box, though "buried in the ground," was far larger -- and thus more noticeable -- than the sprinkler heads and lights. Two witnesses estimated that the valve box was eighteen by eighteen inches. In any event, its mere existence is not sufficient "use" of the area.
c. Continuous use for twenty years. Even putting the above deficiencies aside, the evidence simply does not "establish[ ] a regular and continuous use, without interruption, over a twenty-year period, as required under our law." Boothroyd, 68 Mass. App. Ct. at 45. On the contrary, the judge found that, for four years, the sprinkler system was broken, the landscaping lights were off, and no one was maintaining the disputed area. The only evidence that the lights were on is the testimony of Nevola that, despite not being paid to service the area from 2002 to 2006, he regularly drove by the property during that time and saw the lights from the road, a few hundred feet away, on the other side of the woods. The judge, however, was free to disbelieve him. In short, that the judge "credit[ed] the testimony of some witnesses over others ... does not make the resulting findings clearly erroneous." Nannucci, 99 Mass. App. Ct. at 902. Accordingly, we discern no error in the trial judge's finding that the defendants did not meet their burden of proving adverse possession or a prescriptive easement.
Judgment affirmed.