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Michalczyk v. Carey

Appeals Court of Massachusetts.
Jun 11, 2012
968 N.E.2d 941 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1759.

2012-06-11

Susan A. MICHALCZYK & another v. Anna CAREY & another.


By the Court (BERRY, MILKEY & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The parties own neighboring parcels of land in Wayland. The plaintiffs brought this action claiming that they had gained title by adverse possession to a portion of the defendants' parcel. After a jury-waived trial, a Superior Court judge concluded that the plaintiffs had failed to prove their claim, and he entered judgment in favor of the defendants. We affirm.

The plaintiffs were able to demonstrate that they made various uses of some of the defendants' land that—if done continuously for a period of twenty years—might well support a claim for adverse possession. However, as the judge found, their proof fell short of demonstrating that they undertook such uses for the requisite duration. The defendants moved into their property in 2005, and, armed with a survey, they promptly informed the plaintiffs of where the record boundary was. Then, on July 12, 2005, the defendants took an overt action—placing rocks along the boundary line—to reassert their dominion over the disputed area. There was no error in the judge's identifying July 12, 2005, as establishing “the end point for any possible adverse possession claim.” The question then is whether the plaintiffs were able to prove that by July 12, 1985, they had begun using the disputed area in a way that was “actual, open, notorious, exclusive and adverse.” Ryan v. Stavros, 348 Mass. 251, 262 (1964). This posed a particular evidentiary challenge for the plaintiffs, because they moved into their property just four months earlier (March 19, 1985). After sifting through the evidence presented, the judge found that the plaintiffs failed to prove that they had made any substantial use of the disputed area by July 12, 1985. The judge did find that the plaintiffs planted one new shrub in the disputed area during that period, but he concluded that this single act was not sufficiently “notorious” to start the adverse possession clock. Specifically, he found:

Of course, the plaintiffs would also have to show that such use was continuous for twenty years after it began. We need not address the adequacy of the plaintiffs' proof of this.

“The [shrub] was planted near the property line and given the density of the woods was not something that should have been or was noticed by the public or any prior owners of the property eventually deeded to the [defendants]. It was only much later, in the 2000's, that the intensity of use by the [plaintiffs] of property deeded to the [defendants] would permit a determination that the [plaintiffs] used as owners some measurable portion of the property deeded to the [defendants].”
The plaintiffs are unable to establish that the judge's findings are clearly erroneous. The judge's legal rulings based on those findings are sound.

In paragraph six of his findings, the judge at points referred to dates in “2005” when-as is obvious when the references are read in context-he meant “1985.” These are plainly typographical, not substantive, errors.

Judgment affirmed.


Summaries of

Michalczyk v. Carey

Appeals Court of Massachusetts.
Jun 11, 2012
968 N.E.2d 941 (Mass. App. Ct. 2012)
Case details for

Michalczyk v. Carey

Case Details

Full title:Susan A. MICHALCZYK & another v. Anna CAREY & another.

Court:Appeals Court of Massachusetts.

Date published: Jun 11, 2012

Citations

968 N.E.2d 941 (Mass. App. Ct. 2012)
81 Mass. App. Ct. 1141