Pugatch v. Stoloff
Pugatch v. Stoloff
Opinion of the Court
This is a boundary dispute between the owners of two lots in Newton which, although fronting on different streets, share a common rear lot line. A judge in the Superior Court dismissed Pugatch’s contract claim as well as the Stoloffs’ claim to have acquired a substantial part of Pu-gatch’s lot by adverse possession. We affirm in part and reverse in part.
The two lots were held in common ownership as a single lot by the plaintiff’s mother prior to June 27, 1969. The lot was rectangular, fronted on Sun Hill Lane, and had a house, which the Stoloffs now own, at the Sun Hill Lane end of the lot. At the rear of the tended yard, the lot became wooded and overgrown and sloped sharply down to Parker Street.
The plaintiffs mother decided to sell the house, reserving to herself enough of the wooded rear yard for future construction of a house by one of her children. To that end she caused a subdivision plan — more properly, a division plan, as it did not require planning board approval — to be filed, showing the lot bisected by a straight boundary line that ran parallel to both Sun Hill Lane and Parker Street. The two resulting lots, each roughly rectangular, contained 13,174 square feet (the Sun Hill Lane, or house lot) and 10,044 square feet (the Parker Street, wooded lot). She then conveyed the house lot to the Stoloffs by a deed that described the rear lot line by reference to the subdivision plan.
The subdivision plan was not available at the closing; the Stoloffs first obtained it several months later. They offered testimony that the plaintiffs mother took them, when they were viewing the house, to the furthest reach of the tended yard and described the rear boundary line, with reference to a certain tree, as running about fifteen feet behind the tended yard. As to this conversation, the judge found only that, “[wjhether Mrs. Pugatch intended or not to give a precise description of the location of the lot line, the Stoloffs understood it was beyond the landscaped area where a path ran along the top of the slope, beyond the privet hedge.”
In 1988 Pugatch, who had become owner of the Parker Street lot after his mother’s death, decided to build a deck house. In March, 1989, nineteen years and nine months after the Stoloffs had purchased the Sun Hill Lane lot, Pugatch engaged surveyors to determine the exact boundaries on the ground of his heavily wooded lot. The surveyors placed stakes
In February, 1990, Saul Stoloff, unaware of these developments, telephoned Pugatch with an estimate, $1,500, he had received for relocating the electric service line, and Pugatch sent Stoloff a check for that amount. In April, 1990, Stoloff
This Utigation followed. Pugatch jumped the gun, initiating the action with a claim for breach of contract for the Stoloffs’ failure to Uve up to their agreement to relocate the electric service line. The Stoloffs counterclaimed with counts for adverse possession and trespass. They attempted to obtain a preliminary injunction to stop the work; this was denied, but the judge, we are told by the Stoloffs, warned Pugatch that he proceeded with construction at his own risk. This he did, and the Pugatches now Uve there. The record indicates that the Stoloffs moved their electric service line in August, after they were denied preliminary injunctive reüef against construction of the house.
While the record before us does not contain the chalk that the parties used at trial to depict graphicaUy the areas in contention,
The judge found on the basis of testimony, without a view, that the two large areas were “wild and unattended with no evidence of clearing or grading” in May, 1989, within the prescriptive period, with “no visible or apparent distinction on the Pugatch side of the hedge between the disputed area and the rest of the lot [i.e., the Pugatch lot].” The judge found that the Stoloffs had at times done some pruning or clearing behind the hedge but had not continuously maintained or cultivated it. “Their use of it was more consistent with sporadic use of neighboring property than with an assertion of dominion or ownership.” Although conflicting, the testimony supported these findings, and the judge’s ruling must stand that the Stoloffs’ use of the two larger areas was not sufficiently pervasive to amount to adverse possession. Compare Dow v. Dow, 243 Mass. 587, 593 (1923); Cowden v. Cutting, 339 Mass. 164, 168 (1959); Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 993 (1984). “Acts of possession which are ‘few, intermittent and equivocal’ do not constitute adverse possession.” Kendall v. Selvaggio, 413 Mass. 619, 624 (1992), quoting from Parker v. Parker, 1 Allen 245, 247 (1861).
As to the smallest area claimed by the Stoloffs, the yard area, the judge’s decision adverse to them was reached on a different basis. Following the general run of authority, the judge recognized that the Stoloffs’ continuous maintenance of the lawn, the privet hedge, and railroad-tie retaining wall constituted possession sufficiently open,. notorious, exclusive, and adverse, as to vest ownership in them if not interrupted for the prescriptive period. Compare Lyon v. Parkinson, 330 Mass. 374, 380 (1953); Kershaw v. Zecchini, 342 Mass. 318, 320-321 (1961); Collins v. Cabral, 348 Mass. 797, 797-798 (1965); Shaw v. Solari, 8 Mass. App. Ct. 151, 157 (1979); Lebel v. Nelson, 29 Mass. App. Ct. 300, 301-302 (1990); MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 903-904 (1993). The judge ruled, however, that the Stoloffs’ exclusive possession was cut short just before the end of the prescriptive period. The judge predicated this conclusion on four factors. In
The judge’s conclusion, in our view, is at variance with authority and cannot be sustained. Two of the factors on which he relied cannot be given weight. The activity preparatory to constmction of which the judge speaks was, in the prescriptive period, confined to portions of the disputed area that were, by the judge’s findings, untended woodland beyond the privet hedge.
Pugatch’s actions in having a survey conducted and stakes placed at the comers of the Parker Street lot on the common boundary during the period of the Stoloffs’ adverse occupation in this context did nothing more than identify to those who knew of the stakes the location of that boundary. The comer stakes by themselves, set in the woods outside their yard, did nothing to alert the Stoloffs that the boundary line ran across their yard. Moreover, notice to an adverse possessor of the result of a survey, without more, is insufficient to establish such an exercise of dominion over the disputed area as to interrupt adverse possession. See Van Allen v. Sweet, 239 Mass. 571, 574 (1921). Compare Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 416, 418-419 (1808) (marking of land by surveyor does not constitute disseisin); Slater v. Rawson, 6 Met. 439, 447 (1843) (driving stakes around exterior of lot and erecting salt works on portion was not disseisin of true owner).
These holdings as to the limited effect of surveyors’ stakes and marks, although not recent, are in line with authorities in other jurisdictions. See New Orleans v. Peterson, 142 So. 2d 174, 178 (La. Ct. App. 1962); Mcllwain v. Manville Forest Prod. Corp., 499 So. 2d 1138, 1141-1142 (La. Ct. App. 1986); McDaniel v. Roy O. Martin Lumber Co., 560 So. 2d 676, 680 (La. Ct. App. 1990); Delgado v. Burns, 576 So. 2d 1075, 1078 (La. Ct. App. 1991); Rosencrantz v. Shields, Inc., 28 Md. App. 379, 387-394 (1975); Miceli v. Foley, 83 Md. App. 541, 557-558 (1990); Alukonis v. Kashulines, 97 N.H. 298, 300 (1952); LaFreniere v. Sprague, 108 R.I. 43, 52-54 (1970). Contrast Simmons v. Inhabitants of Nahant, 3 Allen 316, 317 (1862) (placing of stakes, cedar posts, and the near completion of fence after survey sufficient to gain possessory title as against strangers); Pierce v. Austin, 651 S.W.2d 161, 162-163 (Mo. App. 1983) (placing of stakes connected by string and
The Stoloffs’ lawn area, but for the addition of the railroad-tie retaining wall, existed as it was during Mrs. Pugatch’s occupancy from June 27, 1969, when the Stoloffs purchased their lot, until April, 1990, when the plaintiff’s contractor excavated the wall, the hedge, and the lawn back to the record boundary line. During that period, the plaintiff did not overtly interrupt the Stoloffs’ possession under a claim of right. Neither the placing of comer stakes outside the tended yard nor the conversation that warned of future interference sufficed to interrupt the Stoloffs’ exclusive possession of their yard. Not every assertion of ownership by the record owner suffices to stop the running of the statute. Bowen v. Guild, 130 Mass, at 123. “It is well recognized that the running of the statute is intermpted by the owner’s entry on the land, if, arid only if, this is made openly and under claim of right, with a clearly indicated purpose of taking possession.” 4 Tiffany, The Law of Real Property § 1161, at 853 (3d ed. 1975). See 3 American Law of Property § 15.9, at 809 (1974) (“The usual elements of possession must be established, as in
The judgment is to be amended in the trial court, after such further proceedings as may be necessary to specify terms, to declare, on count one of the counterclaim, that the Stoloffs are the owners, by adverse possession of so much of the disputed area as constituted part of their tended yard, including the area occupied by the privet hedge and the railroad-tie wall
So ordered.
The description of the sequence of conveyances is shortened to omit intra-familial transfers that are irrelevant to the issues on appeal.
In this appeal the Stoloffs make no claim of misrepresentation or mutual mistake of fact, so the ambiguity of the finding is not of concern here.
The judge found, specifically, that “[t]he [surveyors’] stakes installed in lot comers in March, 1989, were, as a matter of fact, sufficiently obvious to give abutting landowners notice of the Pugatch lot boundaries, including the rear boundary line. . . . [I]f the Stolofls exercised the use and control over the property that they claim, the stakes put in in March . . . would have been obvious. In fact, the stakes were obvious to other neighbors, the Levines, and to various workers and contractors. They were sufficiently obvious to be seen by anyone who went near the area of the boundary they marked.” These findings are consistent with the judge’s conclusion that the Stolofls did not in fact care for, as part of their yard, the wooded areas into which the rear boundary comer stakes had been driven.
The judge determined that Pugatch suffered no damage from the delay, and Pugatch’s contract claim was dismissed. Pugatch has not appealed, so the case is before us solely on the Stoloffs’ appeal from the judge’s decision in Pugatch’s favor on the counterclaims.
Crucial testimony and, indeed, parts of the judge’s findings use the points depicted on the chalk to describe boundary lines. Thus, the judge refers to the disputed area within the Stoloffs’ tended yard as the “area shown on the chalk marked B for identification from point G to H to G.”
The evidence at trial established that the plaintiffs agents walked only on the remainder of the Parker Street lot (i.e., beyond the hedge) during the prescriptive period which concluded on June 27, 1989. No trees were cleared from the Parker Street lot until November of that year at the earliest, and excavation and construction on the plaintiffs house did not begin until July, 1990. The activity preparatory to construction, including the plaintiffs application for and receipt of a building permit, did not impinge overtly on the Stoloffs’ lawn area, so as to give them notice of a reentry.
In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land. See McMullen v. Porch, 286 Mass. 383, 388 (1934), and cases cited; Sandwich v. Quirk, 409 Mass. 380, 383, cert, denied, 502 U.S. 814 (1991); Snow v. E.L. Dauphinais, Inc., 13 Mass. App. Ct. 330, 336 (1982). Compare G. L. c. 187, § 3, relative to notices to prevent easements.
In Van Allen, the owner of land had a survey performed during the prescriptive period and discovered that his neighbor’s retaining wall encroached on the land. Asserting that “[sjomething must be done,” the owner gave notice of the survey to the neighbor who responded, “I do not want anything not belonging to me.” Although the owner had an agreement, identifying the true boundary, prepared and sent to the neighbor, neither party signed it. On the judge’s subsidiary findings, the Supreme Judicial Court concluded that the defendant had established her title by prescription to the portion of the owner’s land on which the wall was situated, and that her statement of belief or understanding was irrelevant to her adverse possession claim. 239 Mass, at 574-575. See Ottavia v. Savarese, 338 Mass. 330, 334 (1959); Kendall v. Selvaggio, supra at 623-624; Peck v. Bigelow, 34 Mass. App. Ct. 551, 552 (1993). Here, as in Van Allen, the owner’s failure to assert his claim so as to interrupt the prescriptive period allowed the adverse possessors’ claim to mature.
The cases suggest that the Stoloffs’ adverse possession might have been interrupted by (a) driving a line of marked posts in the yard designating the boundary line, Simmons v. Inhabitants of Nahant, 3 Allen at 317; (b) connecting the comer stakes with a string, and posting a sign, Pierce v. Austin, 651 S.W.2d at 162-163; (c) obtaining the Stoloffs’ signature on á letter acknowledging the true boundary line and their permissive use of the portion of their yard on the Pugatch side of the line, Van Allen v. Sweet, 239 Mass, at 574; or (d) commencing a legal action to establish title, see note 8, supra. Of course, the acts of the Pugatches’ contractor in April, 1990, in digging out the Stoloffs’ wall, privet hedge, and part of their lawn, would have effectively interrupted the Stoloffs’ possession, if they had occurred within the prescriptive period.
This is the 238 square foot area referred to in the judge’s findings as the area shown on chalk B, marked by the line from G to H to G. See note 6, supra.
The judge determined the value of the plants removed to be $900.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.