Russo v. Stearns Farms Realty, Inc.

• Decision Date: 07 January 1977
• Docket Number: No. 75-321-A,75-321-A
• Citation: 117 R.I. 387,367 A.2d 714
• Parties: Paul A. RUSSO et al. v. STEARNS FARMS REALTY, INC., et al. ppeal.
• Court: Rhode Island Supreme Court

Page 714

367 A.2d 714

117 R.I. 387

Paul A. RUSSO et al. v. STEARNS FARMS REALTY, INC., et al.

No. 75-321-Appeal.

Supreme Court of Rhode Island.

Jan. 7, 1977.

[117 R.I. 395] Corcoran, Peckham & Hayes, Kathleen Managhan, Joseph T. Houlihan, Newport, for plaintiffs.

Swan, Keeney, Jenckes & Asquith, Conrad M. Cutcliffe, Providence, for defendants.

OPINION

BEVILACQUA, Chief Justice.

This is a civil action which seeks to quiet title to certain real property located in the town of Jamestown by virtue of the adverse possession by the plaintiffs and their predecessors in title for the statutory period in accordance with G.L.1956 (1969 Reenactment) § 34-7-1. Trial was held before a justice of the Superior Court sitting without a jury. The trial justice awarded title to the plaintiffs and the defendants initiated this appeal from that judgment. We affirm.

The plaintiffs and their predecessors in title were under the impression that they owned certain land contiguous to the south and west of the land to which they hold record title and upon which their house is located. ¹ According to the recorded title, plaintiffs' southern boundary lies 3 inches from their house. The defendants hold record title to the disputed land both to the south and to the west.

The plaintiffs and their predecessors in title used the land immediately to the south of the house as a driveway, regularly parking their vehicles in this area. The remainder of the southern portion of the disputed property is cleared land surrounded by woods. This area has been cleared and used for recreation by plaintiffs and their predecessors in title for more than 10 years. When the Martins, plaintiffs' immediate predecessors in title, lived in the house, this southern portion was used by them as a play area for their grandchildren. In the southeast corner of the cleared land, the Martins had a swing set and a brick barbecue. In addition, there was a sandbox and picnic table on this portion of the disputed land. There was testimony by Mrs. Martin that they used this property to the south of the house frequently for cookouts and family outings. They also performed general maintenance work, cutting grass, raking acorns, and cleaning up branches.

The plaintiffs, like the Martins, used this area for recreation. They replaced the swing set left by the Martins with their own which they placed in the southwest corner of the property. In this corner, they also had a dog house. They installed two horseshoe pits near the southern edge of the clearing; they repaired the brick barbecue and set up a new picnic table. In addition, plaintiffs put up a split rail fence along East Shore Road on the southeastern side of this portion of the disputed land. They improved the driveway, putting in gravel; they cut down a birch tree, and planted ten to twelve evergreen trees to the south of the driveway in the cleared area. In addition to improving the area, plaintiffs performed normal maintenance, cutting the grass, raking acorns and clearing the driveway.

On the western portion of the disputed land was a garage with an attached shed. These buildings were in existence at the time the Martins purchased their house. The Martins used the shed for storage of garden tools and children's playthings. Behind these buildings and further to the west was an outhouse which was used by the occupants of the house from the late 1920's until sometime in 1963 or 1964 when the Martins installed indoor plumbing and tore the outhouse down. They filled in the remaining hole so that, according to testimony, their grandchildren could safely play in this area of the yard.

Soon after plaintiffs purchased the house, they tore down the garage, leaving the shed. The plaintiffs remodeled the shed and used it as a stall for their children's pony. The plaintiffs cleared some of the brush and built a corral fence around this portion of land to the west of the house. In addition, they planted grass to the west of the driveway.

The defendants contend that the trial justice erred in finding that plaintiffs had acquired title to the land by adverse possession thereof for several reasons: first, that plaintiffs failed to sustain the burden of establishing such adverse possession by strict proof; second, that plaintiffs failed to establish that the use of the western portion was continuous; third, that plaintiffs failed to establish that their use of the southern portion was exclusive and uninterrupted; and fourth, that there was insufficient evidence to support the finding that plaintiffs' adverse possession extended 70 feet south from their house. In addition, defendants argue that the trial justice assumed facts not in evidence in evaluating the testimony of Terrance F. McGauhan, one of the defendants, and that he improperly used the view he took of the property as evidence. We find none of these arguments sufficient to mandate reversal of the trial court decision.

I

To acquire title to land by adverse possession, a claimant must prove actual possession of the property claimed and acts of dominion over that property as required by law. Dodge v. Lavin, 34 R.I. 514, 84 A. 857 (1912). The generally accepted rule is that the possession required to acquire title pursuant to this statute must be actual, open, notorious, hostile, under claim of right, continuous and exclusive. Sherman v. Goloskie, 95 R.I. 457, 188 A.2d 79 (1963). As this court has frequently stated, claimants must establish each of these elements of possession by strict proof; that is, proof by a preponderance of the clear and positive evidence. Finocchiaro v. Francescone, 97 R.I. 371, 198 A.2d 37 (1964); Sherman v. Goloskie, supra; Day v. Proprietors of Swan Point Cemetery, 51 R.I. 213, 153 A. 312 (1931). The determination of whether claimants sustained their burden of proof involves an exercise by the trial justice of his factfinding power. It is well-settled that the trial justice's findings of fact will be upheld unless they are clearly wrong or unless he has misconceived or overlooked material evidence. 1 Kent, R.I.Civ.Prac. § 52.5 at 384 (1969). Here the trial justice found that the acts of dominion upon which plaintiffs relied to establish adverse possession were sufficient to manifest an intent to oust the true owner thereof and to put the true owner on notice of the claim of ownership. From a close examination of the record, we are unable to perceive that the trial justice either overlooked or misconceived any material evidence bearing on the issues or that the evidence adduced to support the claim of adverse possession is not clear and positive.

The defendants argue that because there was a gap in the use of the western portion of the disputed land, plaintiffs failed to establish the...