Stevens v. Irving

Lorraine Stevens, Trustee Of The Lorraine Stevens Trust, Plaintiff, v. Michael J. Irving And Ann Irving, Defendants

No. MISC 18-000444

Commonwealth of Massachusetts, Trial Court Land Court Department, Essex

October 6, 2021

DECISION

SPEICHER, J.

Determining record title to property in the historic Old Town district of Marblehead can be difficult, and in the present case, neither party could overcome a title challenge to prove who owns the disputed land between their houses. In this unusual adverse possession case, neither party has asserted a claim for quiet title or similar claim to prove, nor have they proven, record title ownership of the disputed area between their two properties. As a result, upon the failure of the plaintiff to prove her case of adverse possession of the disputed area there is no way for the court to determine who owns the disputed area as a matter of record title. This is what has actually come to pass; while I have determined, after trial that the plaintiff has failed to prove her claim of adverse possession, the court cannot conclude that the defendants own the disputed area free and clear of claims of the plaintiff but only that the plaintiff has failed to prove that she owns the disputed area by adverse possession or acquisition of a prescriptive easement.

I conducted a view of the two subject properties on July 12, 2021, and the case was tried before me on July 13, 2021. Following the submission of post-trial briefs and requests for findings of fact and rulings of law, I took the case under advisement on September 27, 2021.

Based on the findings of fact and rulings of law below, I find and rule that the plaintiff Lorraine Stevens, Trustee of the Lorraine Stevens Trust, has failed to prove her claims of adverse possession or easement by prescription.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make the following factual findings:

1. The plaintiff and the defendants own adjacent properties in the densely developed Old Town section of Marblehead. Both properties are located on Washington Street across from Abbott Hall, the historic Marblehead town hall.

2. The plaintiff's property at 197 Washington Street has been in her family for many years. In 1951, Joel B. Stevens conveyed the property in an intra-family transfer to John G. Stevens. ^[1] After the death of John G. Stevens and intervening transfers involving his estate, the property was conveyed in 1990 by his son, John G. Stevens II, to John G. Stevens and Lorraine M. Stevens, husband and wife as tenants by the entirety. ^[2] On July 21, 2006, Lorraine Stevens, following the death of her husband in 2003, deeded the property to herself as trustee of the Lorraine Stevens Trust. ^[3]

3. All three of the above-referenced deeds contain identical metes and bounds descriptions of the property, including, "Southwesterly by Washington Street, 59 feet;... Northeasterly by land now or formerly of Chamberlain, 159 feet." ^[4] This latter description, "northeasterly by land now or formerly of Chamberlain", is the purported boundary with the defendants' property at 195 Washington Street.

4. The property at 195 Washington Street was owned by the Gilman family for decades until it was sold to defendants Michael J. Irving and Ann Irving (the "Irvings") in 2015. In 1991, Ruth Gilman conveyed the property into a trust. ^[5] On October 12, 2005, the trustee of the Gilman Trust deeded the property to Ruth Gilman's daughter, Meredith S. Clisby, for nominal consideration. ^[6]

5. Following an intervening conveyance by Meredith Clisby to herself and her husband, the Clisbys conveyed the property at 195 Washington Street to the Irvings on August 25, 2015. ^[7]

6. The deed into the Irvings, like the previous deed into the Gilman Trust, contained a metes and bounds description of the property that included bounds, but no "metes," or measure It described the property as being bounded "Southeasterly by Washington Street" with no measure of the number of feet by which it was so bounded. Similarly, for the boundary with the plaintiff's property, it described the property as being bounded, "Northeasterly by land formerly of Buchanan and now of Stevens." As with the other parts of the metes and bounds description, it included no "metes": the measure of the number of feet by which it bordered the Stevens land was not given. ^[8]

7. To compound the vagueness created by the lack of a description of the number of feet by which the Irving property is bounded by other properties, the described "northeasterly" bounding by the Stevens land is incorrect, as the Stevens land lies westerly and northwesterly of 195 Washington Street, and most certainly is NOT "[n]ortheasterly" of the Irving property.

8. As a result of the indeterminate property description in the record title for 195 Washington Street, in connection with the sale to the Irvings, Meredith Clisby paid for a survey to be completed and to be recorded with the deed to the Irvings. ^[9]

9. The resulting survey is entitled, "Plan of Land Michael Irving 195 Washington Street" prepared by Control Point Associates, Inc., dated August 16, 2015 (the "Control Point Plan"). The Control Point Plan described the westerly or northwesterly boundary of the Irving property at 195 Washington Street with the Stevens property by reference to an 1812 deed described as follows: "Bk. 197 Pg. 211 Deed line to Grant Access to Brick Layer." The boundary with the Stevens property is shown in three courses totaling 156.32 feet in length. ^[10]

10. The deed from Clisby to the Irvings, in addition to the metes and bounds description (which is devoid of any measure of the length of the bounding property lines), states that the land conveyed in the deed is "[a]lso shown as a lot of land on (the Control Point Plan), to be recorded in Essex South District Registry of Deeds." ^[11] The Control Point Plan was recorded nearly a year after the sale from Clisby to the Irvings. ^[12]

11. Prior to alteration by the Irvings sometime in or after 2015, the area immediately adjacent to the dwelling on the Irving property, on the side facing the Stevens property, was occupied by a brick walkway leading from the street to the rear of the property; at the front of the walkway were two granite steps leading down to the sidewalk. The walkway was bounded by a concrete curb. On top of the curb was a picket fence less than three feet in height. ^[13] The fence was placed in its location on top of the curb by the Gilmans prior to 1981. ^[14]

12. Adjacent to the two granite steps were two additional steps, one concrete and one granite, leading up to the driveway adjacent to the concrete curb and the picket fence. The area between the concrete curb with the picket fence along its top, and the Stevens dwelling, is entirely paved. The paving dates to the late 1970s and was installed by the current owner Lorraine Stevens' late husband. ^[15] The driveway was used by tenants of the Stevens who occupied the three apartments at 197 Washington Street. ^[16] Although paved, there was no specific testimony that the portion of paved area above, or northwesterly of the concrete and granite steps was used for parking; access to that part of the driveway would have required some maneuvering, as the curb cut for the driveway did not extend even as far as the steps. Thus, pulling onto the paved area to the right of the curb cut and above the steps is not a simple maneuver, and if there were already one or two cars in the driveway directly above the curb cut, access to the right side of the paved area would have been difficult and perhaps impossible. Tellingly, neither Ms. Stevens nor her son Mark Stevens testified as to any specific use of this disputed part of the paved driveway by their tenants; they only testified that their tenants parked on the driveway. Accordingly, I find that this disputed part of the paved area was used for parking by the Stevens or their tenants on no more than an intermittent basis at best.

13. The two steps on the right side, facing the two properties from the street, were used by the Gilmans and Clisbys to access their property. The two steps on the left side facing the two properties were used to access the Stevens property, ^[17] but there was no testimony that I credit with respect to how often or as to whether such access was on anything other than an intermittent basis.

14. After their purchase of the property at 195 Washington Street, the Irvings relocated the fence on top of the curb several feet to the northwest, or to the left when facing the two properties from the street. The distance between the curb and the relocated placement of the fence was slightly over four feet at the street line, and slightly over three feet at the rear of the building on 195 Washington Street. ^[18] This area between the curb and the location to which the fence was relocated comprises the disputed area over which the plaintiff claims adverse possession or a prescriptive easement.

15. Subsequent to the relocation of the fence by the Irvings, the granite and concrete steps to the street and the picket fence were all removed in conjunction with the installation of a gas line to the Irving property. ^[19]

DISCUSSION

"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious exclusive, and adverse for twenty years." Ryan v Stavros, 348 Mass. 251, 262 (1964). The "necessary elements of such possession [include] the obligation to show that it was actual, open, continuous, and...