Pugatch v. Stoloff

• Decision Date: 31 October 1996
• Docket Number: No. 94-P-1044,94-P-1044
• Citation: 41 Mass.App.Ct. 536,671 N.E.2d 995
• Parties: Herbert D. PUGATCH v. Saul A. STOLOFF & another. 1
• Court: Appeals Court of Massachusetts

Page 995

671 N.E.2d 995

41 Mass.App.Ct. 536

Herbert D. PUGATCH v. Saul A. STOLOFF & another. ¹

No. 94-P-1044.

Appeals Court of Massachusetts,

Middlesex.

Argued Feb. 12, 1996.

Decided Oct. 31, 1996.

Richard D. Wayne, Boston, for defendants.

Janet B. Fierman, Boston, for plaintiff.

Before ARMSTRONG, KAPLAN and PERRETTA, JJ.

ARMSTRONG, Justice.

This is a boundary dispute between the owners of two lots in Newton which, although fronting on different streets, share a common rear lot line. A judge in the Superior Court dismissed Pugatch's contract claim as well as the Stoloffs' claim to have acquired a substantial part of Pugatch's lot by adverse possession. We affirm in part and reverse in part.

The two lots were held in common ownership as a single lot by the plaintiff's mother prior to June 27, 1969. The lot was rectangular, fronted on Sun Hill Lane, and had a house, which the Stoloffs now own, at the Sun Hill Lane end of the lot. At the rear of the tended yard, the lot became wooded and overgrown and sloped sharply down to Parker Street. The lot contained 23,218 square feet, more than double the minimum lot size, 10,000 square feet, for construction of a single-family dwelling.

The plaintiff's mother decided to sell the house, reserving to herself enough of the wooded rear yard for future construction of a house by one of her children. To that end she caused a subdivision plan--more properly, a division plan, as it did not require planning board approval--to be filed, showing the lot bisected by a straight boundary line that ran parallel to both Sun Hill Lane and Parker Street. The two resulting lots, each roughly rectangular, contained 13,174 square feet (the Sun Hill Lane, or house lot) and 10,044 square feet (the Parker Street, wooded lot). She then conveyed the house lot to the Stoloffs by a deed that described the rear lot line by reference to the subdivision plan. ²

The subdivision plan was not available at the closing; the Stoloffs first obtained it several months later. They offered testimony that the plaintiff's mother took them, when they were viewing the house, to the furthest reach of the tended yard and described the rear boundary line, with reference to a certain tree, as running about fifteen feet behind the tended yard. As to this conversation, the judge found only that, "[w]hether Mrs. Pugatch intended or not to give a precise description of the location of the lot line, the Stoloffs understood it was beyond the landscaped area where a path ran along the top of the slope, beyond the privet hedge." ³ When the Stoloffs, after the closing, received the subdivision plan referred to in the deed, they assumed it reflected the boundary line about as described (allegedly) by the plaintiff's mother. Had they measured, they would have discovered that the record boundary lay twenty-three feet nearer than described, lopping off a small, semicircular portion of their tended yard.

In 1988 Pugatch, who had become owner of the Parker Street lot after his mother's death, decided to build a deck house. In March, 1989, nineteen years and nine months after the Stoloffs had purchased the Sun Hill Lane lot, Pugatch engaged surveyors to determine the exact boundaries on the ground of his heavily wooded lot. The surveyors placed stakes at the four corners of the lot. In doing so they entered the disputed, twenty-three foot strip that the Stoloffs assumed belonged to them, but they did not enter the Stoloff yard, the rearmost curve of which projected into only a part of the strip. The judge seems to have credited the Stoloffs' testimony that they were unaware of these stakes until sometime early the following year. ⁴ In early May, 1989, Pugatch obtained a building permit for the deck house. His contractor, doing a "Dig Safe" check, learned that the Stoloffs' electric utility line ran across the Pugatch lot within the footprint of the proposed house. In late May or early June, Pugatch approached the Stoloffs about moving the electric service line, which the Stoloffs expressed a willingness to do. Pugatch and his wife testified that, in the same conversation, they informed the Stoloffs "that construction of his house would disrupt a portion of lawn and hedge [i.e., the semicircular projection] at the rear of the Stoloff property," and that the Stoloffs had indicated a willingness to cooperate in establishing a new "living screen" in the area. The Stoloffs denied that the subject of boundary line was raised in that conversation, but the judge credited the Pugatch version of the conversation. In the autumn of 1989 (note that we are now beyond the twenty-year prescription period measured from the onset of the Stoloff occupancy) Pugatch, apparently without consulting the Stoloffs, reached an agreement with the deck house contractor to relocate the house further back in his lot, in a manner that compromised the Stoloffs' privacy and view. The Pugatches obtained a new building permit.

In February, 1990, Saul Stoloff, unaware of these developments, telephoned Pugatch with an estimate, $1,500, he had received for relocating the electric service line, and Pugatch sent Stoloff a check for that amount. In April, 1990, Stoloff returned from a trip to find that Pugatch's contractor had spray painted an orange line across his rear yard marking the record boundary and had dug out the part of the Stoloffs' lawn, privet hedge, and railroad-tie retaining wall that projected over the line. Stoloff objected and engaged his own surveyor, who confirmed the location of the record line. Stoloff informed Pugatch that he was asserting a claim of ownership by adverse possession and was suspending the order he had placed to relocate his electric service line.

This litigation followed. Pugatch jumped the gun, initiating the action with a claim for breach of contract for the Stoloffs' failure to live up to their agreement to relocate the electric service line. The Stoloffs counterclaimed with counts for adverse possession and trespass. They attempted to obtain a preliminary injunction to stop the work; this was denied, but the judge, we are told by the Stoloffs, warned Pugatch that he proceeded with construction at his own risk. This he did, and the Pugatches now live there. The record indicates that the Stoloffs moved their electric service line in August, after they were denied preliminary injunctive relief against construction of the house. ⁵

While the record before us does not contain the chalk that the parties used at trial to depict graphically the areas in contention, ⁶ the judge's findings describe those areas in sufficient detail to enable us to understand the substance of his findings and rulings. The largest area in dispute was that between the Stoloffs' rear record boundary and the line, twenty-three feet further back, that the plaintiff's mother is said to have identified as the boundary line in 1969. This area is roughly 128 feet wide, the full extent of the yard, and contains 2,944 square feet. Within that is a smaller semicircular area, from the record rear boundary to the outer edge of the path that was at one time used to keep up fruit trees and ornamental trees and plantings that lay beyond the privet hedge that marked the end of the Stoloffs' lawn area. It contained 1,220 square feet. The smallest area claimed by the Stoloffs lay between the record boundary and the privet hedge, including a railroad-tie retaining wall that the Stoloffs installed to shore up the ground just behind the hedge. This last area--the yard area--contained 238 square feet.

The judge found on the basis of testimony, without a view, that the two large areas were "wild and unattended with no evidence of clearing or grading" in May, 1989, within the prescriptive period, with "no visible or apparent distinction on the Pugatch side of the hedge between the disputed area and the rest of the lot [i.e., the Pugatch lot]." The judge found that the Stoloffs had at times done some pruning or clearing behind the hedge but had not continuously maintained or cultivated it. "Their use of it was more consistent with sporadic use of neighboring property than with an assertion of dominion or ownership." Although conflicting, the testimony supported these findings, and the judge's ruling must stand that the Stoloffs' use of the two larger areas was not sufficiently pervasive to amount to adverse possession. Compare Dow v. Dow, 243 Mass. 587, 593, 137 N.E. 746 (1923); Cowden v. Cutting, 339 Mass. 164, 168, 158 N.E.2d 324 (1959); Senn v. Western Mass. Elec. Co., 18 Mass.App.Ct. 992, 993, 471 N.E.2d 131 (1984). "Acts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession." Kendall v. Selvaggio, 413 Mass. 619, 624, 602 N.E.2d 206 (1992), quoting from Parker v. Parker, 83 Mass. 245, 1 Allen 245, 247 (1861).

As to the smallest area claimed by the Stoloffs, the yard area, the judge's decision adverse to them was reached on a different basis. Following the general run of authority, the judge recognized that the Stoloffs' continuous maintenance of the lawn, the privet hedge, and railroad-tie retaining wall constituted possession sufficiently open, notorious, exclusive, and adverse, as to vest ownership in them if not interrupted for the prescriptive period. Compare Lyon v. Parkinson, 330 Mass. 374, 380, 113 N.E.2d 861 (1953); Kershaw v. Zecchini, 342 Mass. 318, 320-321, 173 N.E.2d 624 (1961); 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); MacDonald v. McGillvary, 35 Mass.App.Ct. 902, 903-904, 616 N.E.2d 138 (1993). The judge ruled, however, that the Stoloffs' exclusive possession was cut short just before the end of the prescriptive period. The judge predicated this conclusion on four factors. In his words, "The staking of the corners of the Pugatch lot in March, 1989,...