Opinion
No. 15–P–577.
05-27-2016
Philip A. MASON & another, trustees v. Daniel NAIMAN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves a claim by the plaintiffs, Philip A. Mason and Malcolm L.Rosenblatt, trustees of the First Psychiatric Trust, which is the owner of property leased to Bournewood Hospital, a private psychiatric hospital, against the defendants, Daniel and Lilya Naiman (together, the Naimans) for trespass on a disputed piece of land owned by the trust, and a counterclaim by the Naimans against the trust asserting that they acquired title in the disputed parcel of property by adverse possession.
Philip A. Mason was substituted as a plaintiff in this action on July 31, 2014, after one of the original plaintiffs, Nasir A. Khan, passed away, and Mason was appointed his successor as trustee. The lower court decision in this case was rendered before this substitution occurred, and so names Khan as one of the plaintiffs.
Strictly, the property is leased to First Psychiatric Planners, Inc., doing business as Bournewood Hospital.
The plaintiffs also asserted a claim for violation of G.L. c. 242, § 7, on which they were granted judgment and damages of $500. The defendants also asserted a counterclaim for unjust enrichment, which the judge below dismissed with prejudice. The defendants have not cross appealed from either of these judgments.
After a jury-waived trial, the trial judge denied the plaintiffs' claim and entered judgment in favor of the Naimans on their counterclaim and ordered the counterclaim defendants, Khan, Rosenblatt, and the trustees of the First Psychiatric Trust “to cooperate in executing any and all appropriate documents confirming the Naimans' ownership in the disputed strip of land.” The trustees appeal.
In his findings of fact, rulings of law, and memorandum of decision and order, the judge found that the Naimans satisfied their burden to prove by a preponderance of the evidence that they made use of the disputed strip of land without the permission of Khan and the trust, that their nonpermissive use was actual, open, notorious, exclusive, and adverse, and that it extended for a period of at least twenty years. See Totman v. Malloy, 431 Mass. 143, 145 (2000) (setting forth the requirements for proving adverse possession). “ ‘Whether, in a particular case, these elements are sufficiently shown is essentially a question of fact.’ Kershaw v. Zecchini, 342 Mass. 318, 320 (1961). We review a judge's findings only for clear error but ‘we scrutinize without deference the legal standard which the judge applied to the facts.’ Kendall v. Selvaggio, [413 Mass. 619, 621 (1992) ].” Brandao v. DoCanto, 80 Mass.App.Ct. 151, 156 (2011).
Although the trustees argue that the Naimans failed to prove open and notorious use of the disputed strip of land for twenty years, we disagree. The findings of fact made by the judge and supported by the evidence suffice to support his conclusion that there was open and notorious use for twenty years.
A somewhat more difficult question is posed by the trustees with respect to the judge's conclusion that the use of the disputed strip of land was exclusive. The difficulty arises because of some language in the judge's decision that could be read to suggest that the Naimans' use was not exclusive. In particular, there is a paragraph in the decision that reads, “Since 1984, [p]laintiffs and their representatives ... have used the disputed strip of land as a landing spot for snow removal, maintenance, as a means to access property owned by other Woodcliff Road neighbors. Either the [p]laintiffs or their agents have gone onto the disputed area to review and confirm boundaries, to conduct surveys, and to conduct hospital tours from time-to-time. During those uses, the [d]efendants have never excluded them from the disputed area of land .”
In assessing the question of exclusivity, as the trial judge recognized, the Naimans were required to “show that they excluded the owner and all other persons to the same extent that an owner would have excluded them.” See Brandao, 80 Mass.App.Ct. at 158 (“A claimant's use is ‘exclusive’ for purposes of establishing title by adverse possession if such use excludes not only the record owner but ‘all third persons to the extent that the owner would have excluded them.’ Peck v. Bigelow, 34 Mass.App.Ct. 551, 557 [1993] ”). This paragraph raises some obvious questions. From 1987–2005 there was a fence that would have interfered with snow being pushed down the hill onto the disputed area. Even after that, snow would have had to have gone a significant distance to land not only on the hill, but on the disputed strip below. There would also seem to be no reason to include the disputed strip on hospital tours given its location.
In any event, and most significantly, in the portion of the judge's decision captioned “Discussion and Rulings of Law” the judge addressed specifically the question of exclusive use. He wrote “if, indeed, the Bournewood employees ventured onto the strip of land as often as claimed, it would reasonably be expected that they would have communicated their knowledge, or what they saw happening on the strip, to Khan and the trust.”
Although the decision is not as clear as it could be, we read this as a statement that the judge did not credit the testimony with respect to the frequency with which Bournewood employees used the disputed strip. In light of this sentence, we read the paragraph describing the uses of the land since 1984 by the plaintiffs and their representatives to have been intended as a description of the alleged use by the trustees, rather than a finding of fact. This reading is bolstered by the fact that some of the other paragraphs in the same section, albeit captioned “Trial Findings,” describe testimony of one or another party, rather than containing only facts found by the judge. Likewise, there are other findings of fact contained in the “Discussion and Rulings of Law” section.
We think the judge's decision is best read to have found as a fact that the trustees had not entered the disputed area as much as they said they had. Such a finding is supported by the evidence, and, given that finding, the judge's conclusion that the Naimans' use was exclusive to the same extent as an ordinary owner of land's would have been is adequately supported.
The trustees' final argument is that the evidence at trial was insufficient to adequately identify the disputed strip of land. The trustees argue that the Naimans did not meet their burden of demonstrating in a sufficiently precise manner the area comprising the disputed strip of land. Cf. Stone v. Perkins, 59 Mass.App.Ct. 265, 268 (2003) (“When ... someone claims the right to burden real property [with a prescriptive easement] through conduct only, the absence of a definite location renders doubtful whether the adverse use was sufficiently notorious and continuous to place the potentially servient landowner on notice of the adverse right that is maturing”).
It does not appear to us that the trustees made this argument in the trial court and consequently it appears to be waived. In any event, the Naimans submitted a plot plan showing the location of the disputed strip of land. The trustees did not dispute its accuracy, and both parties refer repeatedly at trial to “the disputed strip of land.” This plot plan was sufficient to describe the disputed area, and, indeed, we read the judge's repeated references to “the disputed strip of land” to refer to the area identified on the plot plan. That the judge, who also took a viewing of the disputed strip of land, had a clear idea of its precise contours is also conveyed by his repeated references to its “perimeter.” We read the judge's order that the trustees “cooperate in executing any and all appropriate documents confirming the Naimans' ownership in the disputed strip of land” to refer to the strip identified in the Naimans' exhibit, which was admitted at trial as exhibit 13. The judgment, including that portion, is affirmed.
So ordered.