Masa Builders, Inc. v. Hanson

• Citation: 30 Mass.App.Ct. 930,568 N.E.2d 636
• Decision Date: 27 March 1991
• Docket Number: No. 89-P-213,89-P-213
• Parties: MASA BUILDERS, INC. v. Ronald R. HANSON.
• Court: Appeals Court of Massachusetts

Page 636

568 N.E.2d 636

30 Mass.App.Ct. 930

MASA BUILDERS, INC. v. Ronald R. HANSON.

No. 89-P-213.

Appeals Court of Massachusetts,

Worcester.

Argued Dec. 14, 1989.

Decided March 27, 1991.

Frederick M. Misilo, Jr., Worcester, for plaintiff.

Peter F. Keenan, Jr., Millbury, for defendant.

Before WARNER, C.J. and ARMSTRONG and KAPLAN, JJ.

RESCRIPT.

In 1986 the plaintiff purchased an 11.5 acre parcel of backland in Millbury, then brought this trespass action to establish its ownership of a strip of land, variously described in the testimony as "a fifty foot strip" and "a thirty-five foot strip," connecting the backland to North Main Street (route 146) on the west. The plaintiff holds record title to the strip; the defendant, whose parcel fronts on North Main street and abuts the strip on the south, claims ownership of the strip by adverse possession. The judge sustained the defendant's claim. The plaintiff appeals, raising three contentions.

1. The plaintiff first challenges the judge's conclusion that the defendant, and his father before him, used the strip openly, adversely, uninterruptedly, and exclusively for the requisite twenty-year period. The plaintiff argues that the uses the Hansons made of the strip in most of the decade of the fifties--for a vegetable garden, to sell Christmas trees, to locate a foundationless children's playhouse--lack the requisite continuity or exclusivity, at least as applied to unimproved wood and scrub land, to put the owner on fair notice of "hostile activity ... [such] that ... the owner may have an opportunity to take steps to vindicate his rights by legal action." Boston Seaman's Friend Soc., Inc. v. Rifkin Mgmt., Inc., 19 Mass.App.Ct. 248, 251, 473 N.E.2d 702 (1985), quoting from Ottavia v. Savarese, 338 Mass. 330, 333, 155 N.E.2d 432 (1959). The judge, however, dated the period of adverse possession later, from 1959, when the defendant's father built a garage behind his residence to conduct an auto and truck repair business, using the strip, which he cleared of trees and scrub, graded, and filled, as an access driveway thereto and as a lot for vehicles brought in for repairs. Two substantial signs erected in the early sixties directed customers into the strip. The plaintiff relies on several photographs--particularly an aerial photograph taken in 1970--to dispute the defendant's claim that there were always cars in the lot awaiting repairs, and it contends that it was not until 1975, when the defendant took over the repair business from his father, that the business intensified and the strip took on the aspect of a substantial car park. There was, nevertheless, ample testimonial evidence supporting the judge's findings (without reference to the dumpster and the dry well that date from the seventies), and even the photographs from years prior to 1975 would suggest to an observer that the strip was a driveway and lot serving the Hanson's auto repair business and that the defendant's northern boundary line lay (as the Hansons, father and son, testified they actually believed) at the line of arborvitae trees marking the southern boundary line of Doucette, owner of the lot north of the strip. For cases somewhat comparable on the facts, see Flynn v. Korsack, 343 Mass. 15, 175 N.E.2d 397 (1961); Boutin v. Perreault, 343 Mass. 329, 332, 178 N.E.2d 482 (1961); Mastandrea v. Baressi, 2 Mass.App.Ct. 54, 57, 308 N.E.2d 573 (1974); Shaw v. Solari, 8 Mass.App.Ct. 151, 392 N.E.2d 853 (1979); Brown v. Sneider, 9 Mass.App.Ct. 329, 332-333, 400 N.E.2d 1322 (1980); Stagman v. Kyhos, 19 Mass.App.Ct. 590, 592-594, 476 N.E.2d 257 (1985).

2. In rejecting the plaintiff's contention that the twenty-year statute of limitations was tolled by the "insanity" of one of the three tenants in common (Algot Anderson) from whom the plaintiff purchased the property, see G.L. c. 260, § 7, as in effect prior to St.1987, c. 522, § 19, the judge was applying the broad definition of that term which had been formulated by Hornig v....