Rosa v. Oliveira

• Decision Date: 30 July 1975
• Docket Number: No. 74-100-A,74-100-A
• Citation: 115 R.I. 277,342 A.2d 601
• Parties: Jacento ROSA et ux. v. John OLIVEIRA. ppeal.
• Court: Rhode Island Supreme Court

Page 601

342 A.2d 601

115 R.I. 277

Jacento ROSA et ux. v. John OLIVEIRA.

No. 74-100-Appeal.

Supreme Court of Rhode Island.

July 30, 1975.

[115 R.I. 289] James D. Levitt, Providence, for plaintiffs.

John Oliveira, pro se, for defendant.

OPINION

KELLEHER, Justice.

This is a dispute between adjoining landowners about where their common boundary lies. The litigants live in Bristol on the east side of Wilson Street. The plaintiffs, Jacento and Maria Rosa, own a home located at 4 Wilson Street. The defendant John Oliveira and his wife Alice own and reside in a home bearing an address of 6 Wilson Street. The line in question runs easterly along the northern boundary of the Rosa property and along the Oliveiras' southern boundary. The Rosas sought injunctive relief in the Superior Court including a determination as to the location of the boundary line. Mr. Oliveria ¹ denied the allegations contained in the plaintiffs' complaint and filed a counterclaim in which he sought money damages for the loss of some lilac trees. A hearing was held by a Superior Court justice who found in the Rosas' favor. The defendant has appealed.

Before turning to the evidence as it relates to the boundary line, we would repeat the well-settled principle that acquiescence in a boundary line assumed or established for a period of time equal to that prescribed in the statute of limitations to bar a reentry is conclusive evidence of an agreement to establish such a line and the parties will be precluded from claiming that the line so acquiesced in is not the true boundary. Essex v. Lukas, 90 R.I. 457, 159 A.2d 612 (1960); Malone v. O'Connell, 86 R.I. 167, 133 A.2d 756 (1957); Ungaro v. Mete, 68 R.I. 419, 27 A.2d 826 (1942); Mari v. Lankowicz, 61 R.I. 296, 200 A. 953 (1938); Di Santo v. De Bellis, 55 R.I. 433, 182 A. 488 (1935); Di Maio v. Ranaldi,49 R.I. 204, 142 A. 145 (1928); Doyle v. Ralph, 49 R.I. 155, 141 A. 180 (1928); O'Donnell v. Penney, 17 R.I. 164, 20 A. 305 (1890). It is equally well settled that although the issue of what constitute the boundaries of a parcel of land is a question of law, the determination of where such boundaries are is a question of fact. Waldman v. Town of Barrington, 102 R.I. 14, 227 A.2d 592 (1967); Goloskie v. Recorvitz, 101 R.I. 4, 219 A.2d 759 (1966). On appeal the appellant bears the burden of persuading this court that the trial court in making its findings of fact overlooked or misconceived material evidence. Nugent ex rel. St. Dunstan's Day School v. St. Dunstan's College of Sacred Music, 113 R.I. 666, 324 A.2d 654 (1974).

The adjoining lots ² in this controversy each measure approximately 43 feet in width and extend from the inner edge of the sidewalk in an easterly direction for a distance of about 71 feet. The Rosas purchased their lot on October 2, 1970. Their grantor was the widow of a Manuel Mazza. Manuel's mother, Mary, had purchased the property shortly after the turn of the century and various members of the Mazza family had lived at 4 Wilson Street continuously up until the time of the 1970 sale. Anna Mazza Leandro appeared as a witness for the Rosas. She informed the trial justice that she remembered her mother's purchase of the property in 1904 or 1905 and the fence which ran between 4 and 6 Wilson Street. The fence, she said, was made up of 'wire and some boards.' The wire portion began at the inner edge of the Wilson Street sidewalk and proceeded directly to a point just beyond a rear door to the Mazza homestead. From there the fence was made up of wooden boards or pickets, a top and a bottom stringer, and a series of posts. The posts faced the Oliveiras, and the pickets faced the Rosas. The wooden portion of the fence ran from the rear door to a railroad tie which served as an anchor or support of the eastern end of the fence. Immediately adjacent to the railroad tie is a post which is part of another fence which runs along the east edge of the Oliveira property.

Anna reported that her family made full use of all the property up to the wire and board fence as if it were their own and that at no time was there any challenge to their use of the land which ran along the fence. This witness lived at 4 Wilson Street until 1930 and continued to make regular visits there up until the time the Rosas acquired the property. Some time in the midfifties, another of Anna's brothers, Seraphine, built a small addition onto the north side of the house. Mrs. Rosa said this addition was about a 'foot and a half' away from the fence.

The Oliveiras purchased their property from a Joseph L. Perry, Jr. on August 19, 1955. Mr. Perry had acquired the 6 Wilson Street property on April 22, 1933 by a deed of a Joseph Perry. It is conceded that in and about the wire fence there grows a line of lilac trees that were planted many many years ago. Some of the trees have grown to a height of 15 feet. Many of their branches or stalks measure anywhere between 2 1/2 and 5 inches in circumference. As will be seen, the lilac trees are at the root of the conflict in which the litigants are immersed.

Apparently, sometime in the fall of 1970 the Rosas asked for and received permission of the Oliveiras to cut the lilac branches which were resting on the roof of the addition built by Seraphine Mazza. On Armistice Day, November 11, 1970, Mrs. Rosa took a saw and cut down those parts of the tree that were on the roof. Mr. Oliveira returned home during the afternoon of the holiday. He was disturbed by what he saw. According to Mr. Oliveira, the lilacs 'had been cut had (sic) beyond the boundary line,' and when he asked Mr. Rosa about the pruning project, Rosa replied, 'Oh, that. It bothered us. * * * You don't know what you own.' While November 11, 1970 commemorated the cessation of World War I, it marked the beginning of hostilities which were to take place in the subsequent months on the 'no man's land' that ran between the Oliveiras' and Rosas' residences.

Some time after the lilac episode when Mr. Rosa told Mr. Oliveira of his desire to replace the old fence with a new one that would afford greater protection to children, Oliveira replied, 'You can't put the fence because this fence is mine and you can't touch it.' From that point on, everything, in a manner of speaking, went down, including the wooden part of the original fence. Mr. Oliveira replaced the wooden section with another wooden fence. It came down. In November 1971, the Rosas hired a fence builder who came out to the property, cut some lilacs, poured some cement and set up some steel poles. Mr. Olivira ripped out the poles. As fences and poles came down, tempers on both sides of the line went up. Nighborliness had deteriorated to a point where the entire original fence had been removed. The Bristol police made several visits to both properties. Each side hired surveyors to lay out and determine the location of the dividing line between the two parcels of real estate. Finally, in January 1972, the Rosas filed their complaint.

Some of the testimony the trial justice heard was uncontradicted, while other evidence presented to him was in conflict.

The extent of use to which the Mazza family put their property was uncontradicted. They considered all of the property running up to and alongside the wirewooden fence as theirs. It is also uncontradicted that up until Armistice Day, 1970, the Oliveiras never uttered a word of protest as to the Mazzas' or the Rosas' use of the property along the fence. In fact, in his reply brief Mr. Oliveira states that this case did not arise out of a dispute regarding the boundary but it 'started over the cutting of the lilacs.'

There were some conflicts in testimony. Mr. Oliveira insisted that no one could pass between the addition to the Rosas' home and the fence. Mrs. Rosa returned as a rebuttal witness and denied that this was so. She also denied Mr. Oliveira's charge that she had cut down the lilac bushes that grew on his side of the line.

Another conflict was found in the testimony of the three witnesses who could be classified as experts. Each expert had made a survey of the land a study of the necessary recorded documents, and gave his opinion as to where the boundary line should be set. Two of the experts were registered land surveyors. One was hired by the Rosas. The other was employed by Mr. Oliveira. The third expert was a civil engineer who testified in behalf of the Rosas.

The civil engineer testified that in July 1971, we went to the disputed area and made what he described as an occupational survey. At that time the wire-wooden fence was standing. He used the existing fence to measure the area then being used by the Rosas. He placed a pipe at its western beginning and another pipe at its eastern terminus. He had assumed that the adjoining landowners had agreed to the existing boundaries. When he notified the Rosas that they did not have the width called for in their deed, he learned of the dispute. He then examined the relevant recorded deeds and plats. He returned to the eastern end of the fence and took the pipe and moved it 1 1/2 feet to the south. A plan he prepared is an exhibit. ³ It shows a series of dotted lines which indicate the line upon which the fence stood for almost 70 years as well as a solid line which indicates the division or boundary line that resulted from his analysis of various recorded plats and deeds. The fence line and the division line run eastward together for a distance of 10 feet at which point the fence line veers off and runs in a somewhat northeasterly direction until it comes to the rear property line. The engineer's plan indicates that the distance between the eastern termini of the two lines is 1 1/2 feet.

The surveyor who testified for the Rosas declared that when he made his survey in June 1972, the fence was not standing. He had made no effort to lay out the fence line. In essence, this expert testified that to make the boundaries conform to the correct lot...