Nye v. Brousseau

• Decision Date: 29 April 2010
• Docket Number: No. 2009-20-Appeal.,2009-20-Appeal.
• Citation: 992 A.2d 1002
• Parties: William J. NYE v. Paul G. BROUSSEAU et al.
• Court: Rhode Island Supreme Court

992 A.2d 1002

William J. NYE v. Paul G. BROUSSEAU et al.

No. 2009-20-Appeal.

Supreme Court of Rhode Island.

April 29, 2010.

COPYRIGHT MATERIAL OMITTED

Charles D. Blackman, Esq., Providence, for Plaintiff.

Bruce E. Vealey, Esq., for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.

OPINION

Justice FLAHERTY, for the Court.

"Good fences make good neighbours."¹

William J. Nye appeals from a Superior Court judgment that fixed the boundary dividing his property from that of his neighbors, the defendants, Paul G. Brousseau and Susan J. Brousseau, enjoined Nye from trespassing on the Brousseaus' property, and awarded the Brousseaus damages on the basis of breach of contract. This case came before the Court for oral argument on April 8, 2010, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the parties' arguments and considering the memoranda they submitted, we are satisfied that cause has not been shown, and we proceed to decide this appeal without further briefing or argument. For the reasons set forth in this opinion, we affirm the Superior Court's judgment in part and vacate it in part.

I Facts and Travel

Nye's parents, now deceased, purchased the property at 251 Tiffany Avenue, Warwick, Rhode Island in 1964. Nye himself resided at that address during his childhood, until 1977. As an adult, he resumed living at 251 Tiffany Avenue in 1992, until the present. He purchased the property from his father's estate in March 2003.

Between 1964 and 1966, Nye's mother planted evergreen bushes, known as Japanese yews, in a row extending from the northern to the southern end of the property and on the western edge of 251 Tiffany Avenue, abutting the next-door property of 265 Tiffany Avenue. The bushes are located adjacent to the properties' respective driveways. Over the years, the yews grew to be quite tall, at times reaching in excess of fifteen feet.

In 1979, Paul and V. Tang Lintereur purchased the property at 265 Tiffany Avenue. According to an affidavit signed by the Lintereurs, the couple did not consider themselves to be the owners of these bushes when they lived at that address and "did not consider the boundary bushes to be part of their former property." Rather, they "always believed that the Nyes owned the boundary bushes." According to Nye, he, too, "always considered the land to the east of the evergreen * * * to be our land."

In 2003, the Lintereurs sold the property at 265 Tiffany Avenue to the Brousseaus. In September or October 2003, Mr. Brousseau asked Nye if he could trim and remove bushes to improve his visibility while he exited and entered his driveway. Nye said that he appreciated that Brousseau asked for his permission before trimming the bushes, and so he assented to Brousseau's pruning and removal of those bushes that obscured the view from the Brousseaus' driveway. Later, in the spring of 2004, Brousseau discussed trimming the bushes again to shorten them, and Nye again agreed. Soon after, the pair discussed removing debris from the corner of their respective properties, extracting stumps from between their garages, and replacing a couple of defoliated yews with arborvitae shrubbery.

According to Brousseau, Nye assumed that the boundary between their properties "was somewhere near the bushes in a north-south direction," but that Nye thought that a survey should be conducted. Brousseau testified that he expressed his concern about the expense of a survey, and so Nye agreed to contribute half of the cost of the survey.² According to Nye, he "was being generous" when he agreed to pay half the survey's cost.

In early September 2005, Nye and Brousseau again discussed the maintenance of the row of bushes. During this conversation, they agreed to remove the bushes at the properties' southern end and replace them with arborvitae. Brousseau cut and removed the bushes, leaving several stumps near the adjacent driveways. Nye assisted Brousseau in removing one of the stumps, but Brousseau decided to hire a professional to remove the remaining stumps.

Sometime later, Brousseau broached the topic of extending his retaining wall, which, according to Brousseau, prompted Nye to again suggest that a survey be conducted before any extension was initiated. Brousseau agreed to have a survey conducted, and he hired a surveyor who completed the survey in November 2005. The surveyor discovered a granite boundary marker in the southeastern corner of the Brousseaus' property and placed a metal stake in a portion of Nye's driveway. The surveyor concluded that a portion of Nye's driveway and a portion of the southernmost bushes were actually on the Brousseaus' property. Brousseau provided Nye with a copy of the survey, but Nye disputed its accuracy and declined to reimburse the Brousseaus for any portion of the survey's cost. Nye maintained that "it was the Brousseaus' project" and "it wasn't my survey." According to Nye, no agreement existed "as to payment."

Nye and Brousseau also disputed the placement of trash and recycling bins in the vicinity of what each perceived to be the boundary between their properties. Brousseau asked Nye to remove his trash cans, but, according to Brousseau, Nye refused. On one occasion, Brousseau moved Nye's trash cans to "the other side of the survey line," but Nye moved them back because they were damaging the grass. Nye also said that he showed Brousseau the affidavit from the Lintereurs memorializing their belief as to the location of the boundary, but Brousseau did not see any significance in that document. The men exchanged words, and Brousseau described himself as "emotional" at that time. According to Brousseau, Nye then informed him that he was going to have his own survey conducted.

Later, at the end of June 2006, Nye again contacted the Warwick police in connection with the dispute about the proper location of the trash and recycling containers. Brousseau showed the responding police officer a copy of the survey indicating that he owned the land in question, and the officer talked to Nye and departed. As a result, Nye moved his trash cans.

On August 14, 2006, Brousseau trimmed the remaining yews.³ According to Brousseau, he placed the branches that he cut on the side of his driveway. Nye took issue with this work because he said that he had refused Brousseau's request to cut those bushes. In response, Nye contacted the Warwick Police Department "to make a record of the event." An officer came and talked to both parties, and, according to Nye, "that was basically the end of it."

Nye filed a pro se complaint against the Brousseaus in Superior Court on August 9, 2006, in which he alleged that he had requested that the Brousseaus obtain a survey of their property and asserted that he "contested the location of the disputed boundary." He claimed that "the boundary * * * between the Nye real estate and the Brousseau real estate is a line, which follows a row of bushes." He alleged that before the survey was completed, the Brousseaus did not believe that the area included within their surveyed boundary was part of their property. Nye further alleged that the Brousseaus are "liable in trespass for traveling in, and beyond, the disputed area, and for moving his recycling bins." He claimed that the parties "and former owners and users of both properties have demonstrated mutual acquiescence regarding their respect of Nye's asserted boundary." He sought a temporary restraining order and permanent injunctive relief to prevent the Brousseaus "from trespass of the asserted boundary line," "an order declaring the true boundary line," and "any other such equitable relief as the Court may allow."

As part of their answer to Nye's complaint, the Brousseaus raised two counterclaims. First, they sought a declaratory judgment that the boundary line dividing the two properties was as determined in the survey conducted in November 2005. Second, they sought a temporary restraining order and injunction preventing Nye from entering their property, placing his personal property upon it, or parking motor vehicles on their property. For both counts of the counterclaim, the Brousseaus also requested that they "be granted such other and further relief as the Superior Court shall deem appropriate and the circumstances of the case may require."

A nonjury trial was held before a justice of the Superior Court on June 16, 17, 19, and 30, 2008, and July 7, 2008. Nye represented himself during these proceedings, while the Brousseaus were represented by counsel.⁴ Nye called several witnesses, including his brother, a landscape arborist who testified about the value of the shrubbery, the Brousseaus' surveyor, who was under subpoena, and himself. The trial justice allowed video recordings of the Lintereurs' depositions into evidence. At the close of plaintiff's case, the Brousseaus moved for judgment as a matter of law. In response to defendants' motion, Nye argued to the trial justice that the boundary should run along the edge of the bushes' trunks so that each trunk is entirely on his property, but he acknowledged that that was the "ideal location" and that a boundary running through the center of the trunks was "a possible solution." The trial justice denied the motion because he wished to hear testimony from the Brousseaus, as well.

The trial justice's decision was entered on September 23, 2008. He issued an injunction preventing the Brousseaus "from passing onto Mr. Nye's property." He also ruled that because Nye "demonstrated that at the time of the August 2006 trimming, he was in possession of one-half of the shrubs near the border," Brousseau converted Nye's portion of ownership in the shrubbery when he undertook "his significant trimming" on August 14, 2006. Taking into consideration the positive effects that Brousseau's trimming had on the shrubbery, the trial...