Ungaro v. Mete

• Decision Date: 06 August 1942
• Docket Number: No. 1605.,1605.
• Citation: 27 A.2d 826
• Parties: UNGARO et al. v. METE.
• Court: Rhode Island Supreme Court

27 A.2d 826

UNGARO et al.

v. METE.

No. 1605.

Supreme Court of Rhode Island.

Aug. 6, 1942.

CONDON, J., dissenting.

Appeal from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Bill in equity by Rocco Ungaro and others against Rosario Mete to enjoin respondent from alleged continuing trespasses upon complainants' land and from interfering with their quiet and peaceful enjoyment thereof. From a decree for complainants, respondent appeals.

Appeal dismissed, decree affirmed, and cause remanded.

Charles A. Kiernan, of Providence, for complainants.

Waldman & Waldman and Joseph Veneziale, all of Providence, for respondent.

FLYNN, Chief Justice.

This is a bill in equity to enjoin the respondent from alleged continuing trespasses upon complainants' land and from interfering with their quiet and peaceful enjoyment thereof. After a hearing in the superior court upon bill, answer and evidence, a final decree was entered, granting the injunctive and other relief prayed for; and the cause is here upon the respondent's appeal from that decree.

The controversy centers upon the occupation by respondent of a triangular strip of land which was admittedly a part of the lots conveyed to complainants according to the description in their deeds and to the lines on the recorded plat. The answer and defense of the respondent, whose real name is admittedly Rosina Mete, were based on her claim of ownership of the title to this strip by virtue of continuous adverse possession thereof by her "for a period of more than twelve (12) years" and, together with that of her predecessors in title, for a longer period.

The evidence for complainants shows the following facts: Complainants owned lots numbered 35 and 36 on "Sam'l Hedly's Plat of a portion of the Olney Bradley Veazie land and Wilber Lot at North Eagle Park & Wanskuck N. Prov. belonging to Samuel Hedly Platted from surveys and other Plats by C. E. Paine June 1869." Together these lots form one tract bounding easterly on Veazie street 40 feet and holding that width extends westerly 160 feet to Sunnyside street, which is now Sunbury street. The respondent also owns two lots, numbered 37 and 38 on that plat, and together they extend from Veazie street on the east to Sunbury street on the west, and adjoin complainants' land on the south. Each party took title by deed describing the lots, not by metes and bounds, but by reference to the lot numbers and the abovementioned plat, which was duly recorded.

When complainant Rocco Ungaro acquired lot 36 on October 5, 1920, it was undeveloped and wooded land frequently used as a "dump"; and Sunbury street was not an improved highway. At that time respondent's lots were owned by Domenico Rocchio, now deceased. There was no continuous fence between their lots but only "a little fence" and some stones. Neither he nor complainants then knew the precise location of the division line between their lots. There was no disputed line nor attempt then to establish the true one. In 1925 or 1926 they agreed that, to keep dogs and children away from the plants, they would build a fence "temporarily" and sometime, when Sunbury street and the lines were established, they would build a "permanent fence" upon the division line according to the survey. Complainants and Rocchio then built a "chicken wire" fence and occupied their respective lots in accordance with that agreement. The fence was "crooked", "not straight" and was described as "weaving" from one side to the other. Repairs thereto were frequently necessary because of its very light construction. It was partly down on many occasions and was completely knocked down by the hurricane in 1938.

Occupation under this agreement continued until Rocchio, by deed dated April 12, 1929, conveyed lots 37 and 38 to this respondent by reference to the plat and without any reference to this fence. She took possession and for several years occupied the land up to the fence without incident. When Sunbury street was established, curbed and sewered, the parties paid assessments therefor in accordance with the lot lines as shown in the deeds and on the recorded plat. Apparently in 1935 or 1936, complainants were informed definitely that the chicken wire fence was not located upon the true line. This information came from one Olivo who had owned the land on the other, that is, the south, side of the respondent's lot and who had obtained a survey of his land. Complainants and Olivo then notified respondent of this fact and she agreed with complainants to join in building a permanent fence on the true line.

The respondent did not then claim the title to this strip or the right to occupy it for any reason. Following some delay in carrying out the agreement, an engineer for complainants in June 1940 surveyed and staked out the true division line. The respondent was notified thereof and was asked to carry out her part of the previous agreement. She again promised to do this, but, after further delay on her part, the complainants had their attorney write her on June 19, 1940, calling attention to the correct location of the division line, as shown by the survey and stakes then on the land, and asking for her immediate cooperation in fixing the true line.

The respondent and her husband acknowledged that they received and understood the letter and, according to complainants' son, again agreed that the land belonged to the complainants and that they would share the expense of a fence to be built upon the true line. Respondent's daughter, at her father's instruction, also wrote to complainants' lawyer in answer to his letter and assured him they would cooperate "in erecting the fence where the stakes were placed according to the recent survey which took place". She signed her father's name thereto at his direction. Complainants' son later knocked down the remaining portion of the chicken wire fence, obtained estimates for building a permanent fence, and planned to erect one on the true division line in accordance with respondent's agreement and direction. The respondent, between the time when the fence was knocked down and the new one was to be started, changed her mind and sought to prevent the building of a permanent fence on the true line. The present proceedings were then commenced.

On the other hand, the evidence for the respondent admitted that her deed called for, and that she expected to obtain, a lot measuring only 40 feet on Sunbury street, whereas she now has more; that her grantor never represented that the fence was the true boundary line or that it had been so recognized and acquiesced in; that she had discussed with complainants over a considerable period of time the desirability of correcting the occupation line; and that she had agreed to share in the cost of erecting a permanent fence on the true division line. But she testified that this agreement was made subject to her receiving back from one Femino, her neighbor on the south, a small strip of her land upon which he evidently had been encroaching from 1935 or 1936. She admitted having received and understood the letter from complainants' lawyer and having talked thereafter with Femino to obtain a relinquishment by him of her land and that he had agreed to give her back that strip; but she denied that she had authorized or knew that her husband or daughter had written the letter to complainants' lawyer in which it was agreed that a new fence be built on the division line as staked out by complainants' engineer. She testified that she learned of it a few days after it had been mailed.

She testified, however, that she was then willing to give up her occupation of the strip in question provided Femino relinquished his occupation of her land and that she is still willing; but she did not testify, nor did her husband, that their daughter was ever directed to include such a condition in the letter actually sent to the complainants' lawyer. Respondent testified that Femino, after his agreement with her, had changed his mind and intended to claim a right to occupy the other strip; and she admitted that she had taken no proceedings to prevent his further occupation of her land.

She further testified that a chicken wire fence was there when she purchased her lot from Rocchio and, though repaired from time to time, it always was replaced substantially on the same line; that she had occupied and planted up to the fence on her side; and that she thought it was the line designated in her deed. She did not testify that Rocchio or these complainants had ever represented to her that the land conveyed to her went to the chicken wire fence, or that this fence had ever been agreed upon to settle a dispute or to mark the boundary line. She denied that she had been informed by complainants or the witness Olivo, about the time when he had his land surveyed in 1935 or 1936, that this fence was then known to be on the wrong line, and she denied that she had then agreed with complainants to straighten out the line or build a permanent fence, although she did not deny that discussions concerning that matter had been going on for several years.

The trial justice found, in substance, that the respondent's answer and defense were based upon her claim to the title of this strip by virtue of adverse possession under G.L.1938, chap. 438, § 2; that she therefore had the burden of satisfying all the statutory requirements thereof; and that she had failed to sustain that burden, particularly in relation to her claim that her occupation was adverse. He further found that Rocchio's occupation of the strip in question up to 1929 was not adverse; that, without tacking that period to respondent's occupation, she had not shown continuous adverse possession for more than the statutory period; and that upon the evidence as presented before him there was no recognition of and acquiescence in this chicken wire fence as a true boundary line for more than ten...