Opinion
18-P-1655
04-22-2020
James MCDONALD v. Karen F. ANDRADE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from a dispute about a shed owned by plaintiff James McDonald of 33 Clinton Road that encroaches on the property of his abutting neighbor, defendant Karen Andrade, of 35 Clinton Road. After a jury-waived trial, a judge of the Superior Court found for McDonald, awarding him the land under the shed by adverse possession, an easement three feet in width to permit him to access the sides and rear of the shed for maintenance around the sides and back of the shed to the extent they encroached on Andrade's land, and damages of $1,000 plus interest for damage to a well cap under the shed that McDonald alleged was caused when Andrade attempted to move the shed by removing two cinder blocks under the rear corners of the shed located on her side of the property line.
1. Andrade argues first that the judge erred in concluding that the evidence "demonstrates that [McDonald] built the shed in its present location in 1990 and used it continuously ... until Andrade complained about it in 2014." The judge concluded that this was demonstrated by "[McDonald's] uncontradicted testimony, supported by tax records." Andrade argues that the tax records lead to the "inescapable conclusion" that the shed at issue was built in 1996.
To begin with, the records of tax cards on file for 33 Clinton Road from the town of Sterling, put in evidence by McDonald, do not lead inescapably to that conclusion. Rather, they are open to interpretation. They indicate that McDonald paid taxes on a shed on his property at least as early as 1991. The tax cards for 1991, 1994, and 1995 arguably describe a different shed that previously existed, as those tax cards describe the shed as having been built in 1979, and there is a 1995 survey plan showing the footprint of a shed in a different location on McDonald's property prior to the construction of the shed at issue here. But there was evidence that no other shed was on the property at the time McDonald acquired it. The 1994 tax card was modified by hand, with the size, unit price, and other information altered and the building year 1979 crossed out and replaced with 1996. And, from 1996 onward the tax cards identify the shed as having been built in 1996.
Although the records could be read to support Andrade's contention that the shed was built only in 1996, they also could reasonably support a conclusion that the shed was present on the property since 1990 insofar as they, along with the other evidence, show that McDonald has paid taxes on a shed since 1991 on his property despite the fact that the prior shed was no longer extant. In light of this, we see no error in the judge's reading of the tax records to support McDonald's testimony that he indeed built the shed himself by 1990.
While the judge found that the shed was built in 1990, McDonald's testimony is inconsistent as to whether he built the shed in 1990 or 1989. He stated that he began building his shed when he built his house in 1989 but also stated that the shed was built the year that the deed to his property was transferred to him, in 1990.
As a result, we find no error in the judge's ultimate finding that McDonald satisfied his burden in proving adverse possession, as there was evidence that McDonald made actual, open, notorious, continuous, nonpermissive, and exclusive use of the property on which the shed sits for at least twenty years before 2014. See Ryan v. Stavros, 348 Mass. 251, 262 (1964). Consequently, the judgment of adverse possession with respect to the property on which the shed is built shall be affirmed.
2. The easement, however, stands on a somewhat different footing. McDonald requested the easement only after trial. Before entry of judgment but after trial, the judge issued a memorandum and decision in which he said that "McDonald has met his burden of proof of establishing adverse possession of the area containing the back portion of the shed" and that "the court awards adverse possession of the portion of Andrade's land upon which the shed encroaches." In the memorandum and decision, the judge requested that the parties "provide to the court a legal description of the boundaries of the property as modified to include that area of the shed which encroached on Andrade's property," which would be "incorporated into this judgement."
In response, McDonald submitted two proposed judgments and plans. As counsel explained in the cover letter to the court, the first proposed judgment "allows for a maintenance easement as the plaintiff should be allowed to access the side and rear of his shed for painting and maintenance. This issue was the subject of plaintiff's initial injunction, and access to this area was granted as long as the plaintiff has had use of this area for the same period of time as the shed's existence. While plaintiff may or may not have exercised exclusive use of this area the ability to access it is important and the plaintiff would otherwise have no remedy available to him for maintenance and repair other than to seek an additional action for easement rights or other voluntary agreement with the defendant, such agreement unlikely to be granted having been requested since the decision." This was the first request McDonald made for any such easement.
The letter says that "[t]his issue was the subject of plaintiff's initial injunction," but we have not been provided with a copy of that injunction, which the judge later described as a "Preliminary Restraining Order and Temporary Injunction to prevent Andrade from removing the shed." Although it was subsequently amended by agreement to create a "buffer zone" within twenty feet of the property line, there is no indication in the record that the idea of an easement around the shed was broached by McDonald until the letter described in the text.
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A hearing was held following the submission of these proposed judgments, although we have not been provided with a transcript from that hearing. Subsequently, the judgment entered. Without making any additional findings of fact or rulings of law, the judge stated that judgment was to enter for McDonald, giving him adverse possession over the land on which the shed sits "together with a (3) foot wide easement for shed access and maintenance purposes that lies between the outside face of the said shed and the exterior easement line," which his judgment described as an "access easement."
We may assume without deciding that the question of the easement was properly before the judge despite being raised for the first time in a posttrial submission that was supposed only to contain "a legal description of the boundaries of the property as modified to include that area of the shed which encroached on ... Andrade's property." The judgment contains no findings of fact or conclusions of law supporting the creation of this easement. In defense of the easement, McDonald says only that he has "reasonable necessity to maintain and access the rear of the shed," and that, independently, the evidence supports a grant of a prescriptive easement.
To the extent that McDonald's assertion of a "necessity" for the easement is intended to suggest the propriety of an easement by necessity, he has not made his case. Such an easement is a variety of implied easement, Kitras v. Aquinnah, 64 Mass. App. Ct. 285, 291 (2005), which is deemed to have been created when a parcel of property has been conveyed, Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100, 106 (1933), or created by its separation from another parcel, id. (citing, among others, cases in which leases and divisions of land in partition proceedings in probate court have created such easements). They are implied "from what we gather, from the circumstances, to be the parties' intent when common ownership is severed," based in some cases on prior use and in other cases on necessity to access a newly landlocked parcel. Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 78 (2004). McDonald has, however, cited no case in which something called an easement "by necessity" has been found appurtenant to land coming into the ownership of a party through adverse possession, as opposed to a prescriptive easement created by adverse use.
The elements of a prescriptive easement are uninterrupted, open, notorious, and adverse use of the property for twenty years. Ryan, 348 Mass. at 263. "Whether the elements of the claim have been satisfied is, in a given case, essentially a factual question for the trial court," which we review for clear error. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 41 n.3 (2007). While the judge found that McDonald adversely possessed the area containing the back portion of the shed, thus awarding him the land on which the shed encroaches, he did not make findings as to McDonald's continuous and uninterrupted use of the three feet of land surrounding the encroaching shed. Contrast Kershaw v. Zecchini, 342 Mass. 318, 320 (1961) ("On the basis of the material facts expressly found, the judge could properly have concluded that the defendant acquired title"). Nor is there sufficient evidence in this record of continuous use of any area behind the shed to support such a finding. Consequently, that aspect of the judgment creating the easement must be reversed. See, e.g., Boothroyd, supra at 41.
3. Andrade next argues that the evidence concerning the damage to the well cap was insufficient to support the judge's finding that it had been caused by Andrade. Andrade admitted to removing the cinder block supports from beneath the rear of McDonald's shed and never replacing them after realizing that the shed was immovable. She points to evidence that, she contends, is inconsistent with the damage having been caused when she removed the cinder blocks from under the rear of the shed. However, when reviewing a judgment, we view the evidence in the light most favorable to the prevailing party, here McDonald. Viewed in that light, the evidence could support a finding that Andrade's actions caused the damage.
4. Finally, as to the amount of damages, McDonald testified that "quite a few years ago," the cost of a replacement well cap was "in the thousand dollar range." Contrary to Andrade's contention before us, that was sufficient to support the judge's award of $1,000 in damage to the well cap.
So much of the judgment as grants an easement is reversed. In all other respects, the judgment is affirmed.
So ordered.