Ottavia v. Savarese
| Decision Date | 13 January 1959 |
| Citation | 155 N.E.2d 432,338 Mass. 330 |
| Parties | , 2 A.L.R.3d 997 Clementina OTTAVIA v. Marie SAVARESE, Trustee. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. E. Aloisi, Boston, for petitioner.
Frank P. Fralli, Boston, for defendant.
Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN, and WHITTEMORE, JJ.
This is a bill in equity for a mandatory injunction to require the defendant to remove certain supporting beams encroaching upon the plaintiff's property and for damages. From an interlocutory decree confirming the master's report and from a final decree awarding damages but denying the injunction, the plaintiff appeals. The evidence is not reported.
The material facts found by a master are as follows: The parties are the owners of adjacent premises. The plaintiff acquired title to her property in 1937; the defendant in 1939. On the land of the defendant is a brick building five stories in height which has been in existence since 1880, and on the plaintiff's land stands another brick building four stories high. It does not appear when the latter was built, though it has been in existence 'at least since 1927.' Between the buildings is a light shaft which is situated entirely on the defendant's land.
Sometime prior to 1927 the defendant's predecessors in title built a room in the light shaft by roofing over the first story between the buildings, and, in doing so, inserted four deams into the wall of what is now the plaintiff's building.
In the autumn of 1954 the defendant made certain temporary repairs on the roof of the room, and the following spring made repairs of a permanent character thereon. At that time, however, a second story was added atop the existing room. The master found that none of the repairs varied the arrangement which had existed with regard to the supports for the roof of the original room in the light shaft, but that with respect to the additional room four additional beams were built into the plaintiff's wall. The wall is three bricks in width, and two heights or 'courses' of the outer layer of bricks approximately three bricks in length were removed for the setting of each of the additional beams. In addition a three-quarter inch groove was cut from the wall so that a strip of copper flashing could be placed around the perimeter of the roof of the second room. These encroachments were without license or permission of the plaintiff. The parties did, however, discuss the matter two months after the completion of the second room, at which time the plaintiff referred the defendant to her (the plaintiff's) lawyer. The master ruled that the plaintiff had saved her rights with respect to the encroachments resulting from the new construction.
With respect to the original room in the light shaft, however, he found that it 'had been used by the defendant or her lessees or predecessors in title openly, exclusively, adversely and hostilely since 1927,' so that by 1954, when the repairs on it were begun, 'the defendant had acquired a prescriptive right to the wall of the plaintiff's building for a height of one story more or less, and to * * * [its] interior * * * where the four beams * * * were placed.' The plaintiff contends that this finding is inconsistent with the subsidiary findings in the master's report on recommittal, specifically his findings that 'the defendant did not know that the joists or beams were intruded into the plaintiff's wall,' and 'that she knew the plaintiff's wall belonged to the plaintiff but that she, the defendant, never claimed ownership over it, nor did she intend to deprive the plaintiff of any part of her wall at any time.' Since the evidence is not reported we are bound by the ultimate finding of the master unless, as the plaintiff contends, the subsidiary findings reported 'are sufficient in themselves to demonstrate that the ultimate findings could not be justified upon any evidence that the master might have received.' Dodge v. Anna Jaques Hospital, 301 Mass. 431, 435, 17 N.E.2d 308, 311; Kasper v. H. P. Hood & Sons, Inc., 291 Mass. 24, 25, 196 N.E. 149; Shoer v. Daffe, Mass., 149 N.E.2d 625.
The issue presented by the alleged inconsistency between the master's ultimate finding and his subsidiary findings is whether claim of right and an intent to oust are necessary elements in the acquisition of rights by prescription. It is well established in this Commonwealth that an adverse possessor, to gain title, must hold under a claim of right and with an intention to 'hold the same as owner, and to the exclusion, right or wrongfully, of every one else.' Bond v. O'Gara, 177 Mass. 139, 143-144, 58 N.E. 275, 276; Curtis v. Goodwin, 232 Mass. 538, 540, 122 N.E. 711; Town of Nantucket v. Mitchell, 271 Mass. 62, 68, 170 N.E. 807; Leavitt v. Elkin, 314 Mass. 396, 399, 49 N.E.2d 1020; Holmes v. Johnson, 324 Mass. 450, 453, 86 N.E.2d 924. This rule has been severely criticized. It has been said that apart from two situations, namely the situation where a disclaimer by the user to the true owner of any purpose to gain rights by adverse possession lulls the latter into inaction, and the situation involving a 'mere squatter' where the possession is doubtful and equivocal in fact, 'there seems to be no justification for requiring a claim of right or title as essential to an adverse possession.' Am.Law of Property, § 15.4, p. 776 et seq. 'The great majority of the cases establish convincingly that the alleged requirements of claim of title and of hostility of possession mean only that the possessor must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owner and therefore in actual hostility to him irrespective of the possessor's actual state of mind or intent.' Am.Law of Property, § 15.4, pp. 776-777. From the standpoint of the true owner, the purpose of the various requirements of adverse possession--that the nonpermissive use by another be actual, open, notorious, exclusive and adverse--is to put him on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action. Where a claim of right is made or where an intention to oust exists and is communicated or is open and notorious, the purpose of notice is satisfied, for it is likely that the encroachment and the fact of its hostility will come to the attention of the true owner. The nonexistence of a claim of right or intent to oust does not, however, necessarily preclude notice. Where the user has acted, without license or permission of the true owner, in a manner inconsistent with the true owner's rights, the acts alone (without any explicit claim of right or intent to dispossess) may be sufficient to put the true owner on notice of the nonpermissive use. See Am.Law of Property, § 15.4, pp. 771-785; Restatement: Property, § 458, comment a and comment d. Acts undeniably many evidence an intent to claim as of right, Shoer v. Daffe, Mass., 149 N.E.2d 625, and the physical facts of entry and continued possession may themselves evidence an intent to occupy and to hold as of right sufficient in law to support the acquisition of rights by prescription. Holmes v. Johnson, 324 Mass. 450, 454, 86 N.E.2d 924. That the uncommunicated mental attitude of the possessor is irrelevant where his acts import an adverse character to his holding is shown by cases involving disputed boundaries where the possessor intends to hold without intending to deprive any other of what is rightfully his. In Van Allen v. Sweet, 239 Mass. 571, 132 N.E. 348 349, a boundary case, the possessor was held to have acquired rights by prescription to a strip of land despite his statement to the plaintiff 'I do not want anything not belonging to me.' See also Ridgely v. Lewis, 204 Md. 563, 105 A.2d 212; Am.Law of Property, § 15.5, pp. 785-791.
In this case the defendant or her predecessors actually used a portion of the plaintiff's wall in derogation of her rights therein. There was no evidence that this use was permissive or by license of the plaintiff or her predecessors; on the contrary, the master found it was...
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