Peck v. Bigelow

• Decision Date: 26 July 1993
• Docket Number: No. 92-P-426,92-P-426
• Citation: 34 Mass.App.Ct. 551,613 N.E.2d 134
• Parties: Wilfred C. PECK & others 1 v. John BIGELOW.
• Court: Appeals Court of Massachusetts

Page 134

613 N.E.2d 134

34 Mass.App.Ct. 551

Wilfred C. PECK & others ¹ v. John BIGELOW.

No. 92-P-426.

Appeals Court of Massachusetts,

Suffolk.

Argued March 10, 1993.

Decided May 28, 1993.

Further Appellate Review Denied July 26, 1993.

Charles M. Sabatt, Hyannis, for defendant.

Edward O. Proctor, Wellesley, for Wilfred C. Peck.

Before KASS, KAPLAN and LAURENCE, JJ.

KAPLAN, Justice.

1. Summary. The locus of this action--claim and counterclaim--was an unimproved, largely overgrown lot located in the Monument Beach section of the town of Bourne, owned of record by the plaintiff Peck and taxed to him. The defendant Bigelow is the owner of an adjacent lot. When the defendant learned that Peck's lot had been put up for sale, he made several offers to buy it. Peck rejected those bids and instead entered into a purchase and sale agreement with the other plaintiffs, the Galvins. The defendant offered a premium to the Galvins to take over their contract, but this also failed. Then the defendant informed the plaintiffs that he had a claim to ownership of the property through adverse possession. This had the effect of chilling the bank financing that the Galvins required.

The plaintiffs commenced the present action against the defendant for tortious interference with the purchase agreement. In response, the defendant counterclaimed to establish his ownership by adverse possession.

The plaintiffs' motion for partial summary judgment to dismiss the counterclaim failed, but the judge said the defendant's position was "very weak." Upon bench trial, the judge concluded that the defendant had not established adverse possession. The judge supported this conclusion by findings that the defendant believed such use as he had made of the land was by permission of the owner, and that the defendant never thought he owned the land. These findings, destructive, as the judge thought, of the counterclaim, supported the plaintiffs' main claim that the defendant's obstruction of their agreement was tortious, i.e., not justified as having been done in good faith. Judgment entered for the plaintiffs upholding the tort claim ² and dismissing the counterclaim.

Before us are cross-appeals: the defendant contends that his counterclaim should have been sustained and the plaintiffs' tort claim denied; the plaintiffs, that larger damages should have been awarded for the tort.

We affirm the judgment appealed from. With respect to the adverse possession counterclaim, attention should be centered on the defendant's activities on the land, in distinction to his belief or state of mind about the matter. The Supreme Judicial Court made this particularly clear in a decision postdating the judge's decision herein. ³ So the judge's approach was misguided. Nevertheless, we agree that the defendant failed in proof of adverse possession: the record is clear that the defendant's acts on the land did not reach the level of "actual" or "exclusive" possession. ⁴ Remand is not needed for any further findings concerning adverse possession. The judge's findings about the defendant's state of mind remain material to the plaintiffs' interference claim and well support that claim.

2. The record. a. Activities on the land. Peck acquired title to the lot--6,720 square feet--in May, 1961, and paid taxes on it annually. He visited the place two or three times a year between 1970 and 1990; on each visit he "walked to a corner of the lot, observed, but did not enter because of the poison ivy and the briars and the bushes." The defendant owned and resided on adjacent property which has been in his family since 1929.

The defendant's account of his family's activities on Peck's lot ran as follows, with some of the conflicting evidence noted. From 1936 to 1960 they mowed and used a small area (about thirty by thirty feet). On this space they had a picnic table and lounge chairs from 1936 to 1978. In 1936 they also set up three clotheslines, used until 1970; a rope swing, removed in 1960; and a sandbox, also removed in 1960. The defendant and his father built a henhouse in 1942 and used it to keep chickens until 1970, but there was evidence that the homemade structure was actually located over on the defendant's land. The defendant's mother planted dogwood trees in 1950 and kept them going until 1960, when they died. As to the defendant's activities on the lot ongoing in 1990, he said he had a compost pile, first laid down in 1950, and a pair of lumber piles, started in the 1970's; kept bicycles, scooters, and mopeds from 1936, though contrary evidence indicated that this practice was quite limited; from time to time cut down and removed dead trees; and regularly pruned dead branches, raked leaves, and kept free of debris the sides of the lot along two streets; however, he let the brush on the lot grow up after 1980.

As to paths on the lot: the defendant asserted that he had used two paths, and that these remained clear, from 1936 to the time of trial; but there was conflicting testimony that until the summer of 1989 the lot had been so overgrown with bushes as to be virtually impassable, and any paths that once crossed it had not been visible or usable. Indeed, there was testimony from three witnesses that it was nearly impossible to travel across the lot until the defendant cut a new path through it--and cleared out old unused paths--in the summer of 1989, more than a year after he filed his counterclaim in the action. In addition, since at least 1935, the lot's paths had been used by others besides the defendant. The defendant claimed that these were "friends" who were "visiting" the family; children from the neighborhood, he said, rarely stepped onto the lot, and when they did, it was at his invitation. Several witnesses testified, to the contrary, that not only had they used the lot's paths and carved their initials in a large beech tree there, but "everyone" had done so, to the point where carving one's initials in that tree was virtually a rite of passage in Monument Beach.

b. Defendant's belief. Asked in cross-examination, "Did you feel that they [Peck as owner] had, more or less, permitted you to use this property without objecting to it?" the defendant answered "Yes." When opposing counsel recast the question, "You felt that they were permitting you to use the property?" he responded, "No, I can't answer that question. I'd have to say no." Then, after opposing counsel said, "So they are permitting you to use it in that manner ...," the reply was, "Yes, by--but not by any awareness, necessarily, of it." Question, "But you didn't think you were using it against their wishes, adversely to--"; answer (cutting counsel off), "No, I didn't." Asked by opposing counsel whether in March, 1988, he believed he owned the lot, the defendant said he felt he owned the lot "emotionally." He countered successive questions--"Then you didn't think you owned it" and "So you--in your head, intellectually, you knew you did not own the property?"--by saying, "I knew nothing of adverse possession."

c. Listing for sale and defendant's reactions. In February, 1988, Peck listed the lot for sale with a local real estate agency, asking price $57,500. Learning of this, the defendant became perturbed because he liked the space and also because--the judge could find, although the defendant denied it--he was worried about who might be the next owner. ⁵ The defendant offered Peck $48,000, then $53,000, and on March 13, 1988, $55,000. On that day, however, the Galvins offered the asking price, and Peck accepted. The defendant offered the same--too late. On March 25, buyer and seller executed the purchase agreement. The defendant on March 28 futilely offered the Galvins $1,000 to buy their rights.

Sometime between the end of March, 1988, and mid-May, 1988, the defendant casually met an attorney at a Burger King restaurant and spoke with him. The attorney suggested he might have a claim of adverse possession. The defendant promptly told the Galvins that he might own the lot. On May 18, the attorney wrote the defendant a letter in one sentence saying he had investigated the question of adverse possession and decided to file suit for the defendant in the Land Court. The defendant routed the letter to the Galvins, and as a result performance of the purchase agreement was aborted.

3. Adverse possession. As indicated, a person may secure title by adverse possession although for the full twenty years he had no inkling that he was using another's land. So, too, a person may believe he was using the land in opposition to the record owner, and yet fail in a suit for title. The point is nicely illustrated by some of the boundary cases. See the discussion in Kendall v. Selvaggio, 413 Mass. 619, 623-624, 602 N.E.2d 206 (1992).

Passing, then, to the acts of the present defendant on the land--the crux--we conclude that, taking even an indulgent view, he failed to carry his burden of proving his "actual" or "exclusive" use in the sense of the doctrine of adverse possession.

As to actual use, "[a] judge must examine the nature of the occupancy in relation to the character of the land." Kendall, 413 Mass. at 624, 602 N.E.2d 206, citing Ryan v. Stavros, 348 Mass. 251, 262, 203 N.E.2d 85 (1964). See also Kershaw v. Zecchini, 342 Mass. 318, 320, 173 N.E.2d 624 (1961). Did the actor make "changes upon the land" that constitute "such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership"? LaChance v. First Natl. Bank & Trust Co. of Greenfield, 301 Mass. 488, 491, 17 N.E.2d 685 (1938). See also Lyon v. Parkinson, 330 Mass. 374, 379-380, 113 N.E.2d 861 (1953); Kershaw, 342 Mass. at 319-321, 173 N.E.2d 624; Collins v. Cabral, 348 Mass. 797, 797-798, 206 N.E.2d 84 (1965); Shaw v. Solari, 8 Mass.App.Ct. 151, 157, 392 N.E.2d 853 (1979); Lebel v. Nelson, 29 Mass.App.Ct. 300, 301-302, 560 N.E.2d 135 (1990); Masa...