Opinion
11-P-1341
04-13-2012
SHARON B. OLOUGHLIN v. MARTHA R. TIGHE & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arose out of a boundary dispute between two neighbors in West Springfield. The defendants, Martha R. and Jerry Tighe (the Tighes), who claim ownership to a strip of land by adverse possession, mainly take issue with the Land Court judge's credibility determinations regarding witness testimony. For substantially the same reasons stated by the judge, we affirm the judgment.
Background. We review the facts as the Land Court judge found them. The parties are abutting landowners. Prior to the controversy at issue, a fence installed by the parties' predecessors ran between the properties on what was assumed to be the boundary line. A fence also ran along the back of the Tighes' property. The Tighes replaced the fences in 2001 and assert that they and their predecessors maintained all of the property to the current location of the fences for well over twenty years.
Alas, a survey performed in 2007 revealed that the new fence between the yards encroached on the OLoughlin property ranging from 2.1 feet in the front corner to 1.2 feet in the rear. The judge similarly found that the fence encroached on OLoughlin's property and that the Tighes failed to prove they had acquired by adverse possession the portion of the OLoughlin property on which the fence was situated.
Discussion. The Tighes contend that the judge erred in his factual findings by crediting or discrediting certain witnesses. The Tighes urge us to agree with their assessment of the witnesses' credibility and reverse the judge's rulings that they encroached on OLoughlin's land and that title to the property was not acquired by adverse possession.
We accord deference to the findings of the trial judge because 'by virtue of his firsthand view of the presentation of evidence, [he] is in the best position to judge the weight and credibility of the evidence.' Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203-204 (1986), quoting from New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). We review the judge's factual findings at a bench trial under the clearly erroneous standard of review. Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). 'A finding is clearly erroneous when there is no evidence to support it, or when, ' although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct. 419, 421 n.1 (2008), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
It very well may have been the intention of the Tighes to install the property dividing fence in a straight line from the rear existing fence to the front boundary. However, the record before us indicates that the Tighes did not survey the property before installing their fence and casts no serious aspersions on the 2007 survey which shows the fence encroaching on the OLoughlin property. Consequently, we discern no error in the judge's conclusion that the fence encroaches on the OLoughlin property.
In order to prove that they have acquired the property by adverse possession, the Tighes bore the burden of proving 'nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.' Lawrence v. Concord, 439 Mass. 416, 421 (2003), quoting from Kendall v. Selvaggio, 413 Mass. 619, 621- 622 (1992). As the judge correctly noted, purported adverse possessors in privity of estate with the claimant may be tacked on to fulfill the statutory twenty-year period. See Lawrence v. Concord, supra at 426.
The judge was entitled to discredit testimony of the Tighes' predecessor's son and the predecessor's landscaper that they consistently mowed the area in which the fence is now located as both men testified only as to the approximate areas near the boundary that they maintained. The landscaper admitted he could be off by as much as two feet. The predecessor's son admitted that the boundary line was never a disputed issue when he and his father lived in the home, and conceded that the neighbors were friendly and their lawn maintenance made no effort to distinguish the exact boundary line. Also, faced with conflicting evidence, the judge did not err in concluding that the replacement split-rail fence was not installed on the same line as the original fence. Thus, maintenance of the grass on either side of the fence, installed in 2001, does not give rise to the twenty years of possession required for adverse possession. In the circumstances of this case, we see no reason to disturb the judge's finding that there was inadequate proof of actual, open, notorious, exclusive, and adverse possession for twenty years.
The Tighes also contend, without citation to pertinent authority, that they are entitled to attorney's fees for defending against OLoughlin's failed motion for a preliminary injunction to enjoin the Tighes from putting mulch on the OLoughlin side of the split-rail fence. To the extent the judge had discretion to award fees for a frivolous motion, we infer from the judge's findings that he concluded that both parties had engaged in 'petty' behavior. There was no error in his refusal to award attorney's fees to either party.
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We decline the plaintiff's request for costs and fees.
Judgment affirmed.
By the Court (Vuono, Grainger, & Carhart, JJ.),