                                                   Supreme Court

                                                   No. 2011-384-Appeal.
                                                   (NC 08-236)


  Donna Banville                :

         v.                     :

Peter Brennan et al.            :




  NOTICE: This opinion is subject to formal revision before
  publication in the Rhode Island Reporter. Readers are requested to
  notify the Opinion Analyst, Supreme Court of Rhode Island,
  250 Benefit Street, Providence, Rhode Island 02903, at Telephone
  222-3258 of any typographical or other formal errors in order that
  corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2011-384-Appeal.
                                                                  (NC 08-236)


              Donna Banville                  :

                     v.                       :

            Peter Brennan et al.              :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Indeglia, for the Court. The defendants, Peter and Joyce Brennan, appeal from

a judgment entered by the Superior Court in favor of the plaintiff, Donna Banville, in this

boundary dispute between neighbors. On appeal, the Brennans argue that the trial justice erred

in finding that the doctrine of acquiescence applied to establish the dividing line between the two

lots. The Brennans also argue that the trial justice erred in awarding damages to Banville based

on the diminution in the fair market value of her real property as a result of the alleged

encroachment by the Brennans. After a thorough review of the record and consideration of the

parties’ written submissions and oral arguments, we affirm the judgment of the Superior Court.

                                                  I

                                        Facts and Travel

       The plaintiff, Donna Banville, owns real estate at 1692 Eagleville Road in Tiverton,

Rhode Island, which is designated as Block 108, Card 47C on the Tiverton Tax Assessor’s map.

Banville has resided on the property since 1984 when the lot was created by the subdivision of a




                                             -1-
larger lot. This larger lot was then owned by John and Monika Ferreira, who intended to divide

it into two lots of approximately equal size. 1

       The other lot created out of the subdivision of the larger one is designated as Block 108,

Card 47E on the Tiverton Tax Assessor’s map and has the address of 1710 Eagleville Road.

This lot currently belongs to the Brennans. In 1984, the owner of the so-called Brennan lot was

Peter Edes. Edes placed a trailer and constructed a shed on the lot, both of which appeared to

respect the town plat map boundaries as the boundary between the Banville lot and the Brennan

lot. In 2003, Edes transferred the lot to Kevin and Gail Goncalo. The Goncalos transferred the

lot to the Brennans on November 7, 2006.

       At trial, Banville testified that, from 1984 on, she observed the Town plat map

boundaries with respect to ownership and maintenance of her property, which was roughly

demarcated on the easterly side by a row of trees. Banville further testified that in 2005 she put

up an electric fence that largely ran along the line of trees in order to keep her horses contained.

       The instant dispute between the Brennans and Banville began on January 5, 2007, when

Peter Brennan introduced himself to Banville as the new owner of the neighboring property and

informed her that he was going to get his lot surveyed in order to construct a building on it. On

January 8, 2007, Mr. Brennan informed Banville that his surveyor had encountered some

problems because of the electric fence. Banville agreed to turn off the electricity while the

Brennans’ surveyor was working. The Brennans’ surveyor, Mr. Steven Murgo, proceeded to

conduct a survey of the two lots (the Murgo survey). On January 12, 2007, Banville returned

home to find survey markers running through her front yard, a portion of her trailer, her pool, her

backyard, and into her horse corral. There was also spray paint running along her trailer’s


1
 The record indicates that they believed that the larger lot contained approximately seven acres;
the lot, in fact, only contained around three and a half acres.


                                                  -2-
foundation, indicating that, according to the Murgo survey, part of her trailer and her horse corral

were on the Brennan lot.

       On January 14, 2007, Mr. Brennan, relying on the Murgo survey, informed Banville that

her trailer was partially encroaching on his property and preventing him from constructing his

building. Banville told Mr. Brennan that she disagreed with this survey and that she wanted to

hire her own surveyor in order to determine the boundaries.

       On January 16, 2007, Mr. Brennan applied for a building permit from the Tiverton

building inspector to construct a foundation on his lot.

       On January 18, 2007, Banville returned home to find that her electric fence had been

moved to be consistent with the Murgo survey stakes, thus trapping her horses into a small area.

Banville called the Tiverton Police Department, which came to the scene and submitted an

incident report. The police contacted Mr. Brennan and informed him that he could not move

Banville’s property without her express permission as to whether and where her property might

be moved. Mr. Brennan apologized to Banville, and Banville again informed Mr. Brennan that

she wanted to have her own survey conducted to determine the boundary line. 2

       Mr. Brennan and Banville had further conversations concerning the boundary line, with

Mr. Brennan telling Banville that he “wanted to be a good neighbor,” but that he needed to get

his building constructed. Sometime on or around January 26, 2007, Banville consented to move

her trailer and her dog kennel so that they were no longer over the Murgo survey line. At some

point thereafter, Mr. Brennan had a row of large boulders placed along the Murgo-surveyed

boundary between the two lots.




2
 At trial, Mr. Brennan averred that he did not recall being told at that time that Banville would
be having her own survey conducted.


                                              -3-
        Banville hired Donald J. Medeiros, a registered land surveyor, to survey the properties.

On January 31, 2007, Banville sent a certified letter to the Tiverton building inspector and to the

Brennans, informing them that she had hired Mr. Medeiros to survey the land. Mr. Brennan

testified, however, that he never received the letter. 3 On February 8, 2007, Mr. Medeiros first

visited the properties to conduct his survey (the Medeiros survey). At that time, he informed Mr.

Brennan that he had been hired by Banville to survey the two lots and determine the disputed

boundary line. The Medeiros survey ultimately concluded that the boundary line between the

two lots was located, in part, approximately in line with the row of trees which Banville had

previously observed as the boundary. Significantly, however, while the Brennans’ building does

not extend past the row of trees, it does extend beyond the boundary line established by the

Medeiros survey by an estimated thirteen feet at one corner.

        On March 9, 2007, Mr. Brennan applied for a building permit for a steel commercial

building to house his equipment for his excavating business. 4 The Tiverton building inspector

issued a certificate of use and occupancy for the building on the Brennan lot on November 14,

2007.

        Banville filed the instant suit on May 1, 2008, seeking declaratory and injunctive relief. 5

A nonjury trial was held in the Newport County Superior Court on April 25, 26, and 27, 2011.

        At trial, two of Banville’s longtime neighbors testified on her behalf. They corroborated

Banville’s testimony that she had treated the row of trees as the boundary line of her property.

They further testified that they both informed Mr. Brennan that his proposed construction was


3
  The letter was designated as “Not Deliverable As Addressed” and marked “Return to Sender”
by the post office.
4
  The property is zoned commercial. Banville’s home—her trailer—is a prior nonconforming
use.
5
  Banville thereafter amended her complaint to assert claims that she owned the land up to the
Medeiros survey line by means of adverse possession and the doctrine of acquiescence.


                                              -4-
encroaching on what they believed to be the Banville lot. They asserted that Mr. Brennan

informed them that he planned to proceed with construction anyway and that he believed the

Murgo survey was correct. Mr. Brennan disputed this testimony.

        Mr. Medeiros also testified at trial, explaining at some length the process by which he

had conducted his survey and arrived at his conclusion concerning the location of the boundary

line.   He testified that each of the two lots—the Banville lot and the Brennan lot—were

approximately one-and-one-half acres in area. Mr. Medeiros testified that he spoke to Monika

Ferreira, one of the original owners, who told him that the original surveyor had placed survey

stakes along the dividing line between the two lots at the time of the subdivision.

        Nathan Godfrey, a real-estate appraisal expert, testified as an expert witness for plaintiff

as to the fair market value of the Banville lot before the encroachment of the Brennan building

and the diminution in value to the lot as a result of the encroachment. He asserted that the

encroachment would result in an approximately 15 percent depreciation in value, resulting in a

loss of $30,000.

        Richard Lipsitz, a licensed surveyor, testified as an expert witness for defendants. He

agreed with the Medeiros survey as to the perimeter property lines of the entire parcel. He

disagreed, however, with the Medeiros survey as to the location of the boundary line between the

two lots. According to Mr. Lipsitz, the Medeiros survey failed to give the proper weight to the

existing “monuments” on the land in order to locate the boundary line and also did not follow the

original subdivision plan. Lipsitz asserted that he believed the correct boundary line should end

with Mr. Brennan’s building being entirely on the Brennan lot and the corner of Banville’s trailer

encroaching onto the Brennan lot.




                                              -5-
       The trial also included a viewing of the properties. The trial justice issued a bench

decision on September 22, 2011. The trial justice made extensive findings of fact, determining

that he found the testimony of Banville’s neighbors to be credible with regard to Banville’s

continued use of her property up to the row of trees, approximately where the Medeiros survey

placed the boundary. He concluded that Mr. Medeiros had conducted a thorough survey with

extensive research into the record titles of the properties before arriving at his conclusions.

Accordingly, the trial justice found that the Medeiros survey was correct in the placement of the

boundary line. He did not accept Mr. Lipsitz’s testimony as to the location of the boundary line,

noting that Mr. Lipsitz’s conclusions “conveniently result[ed] in a boundary line between the two

properties with Mr. Brennan’s building being located entirely on his property * * *.” The trial

justice also stated that the Murgo survey was incorrect as to the location of the boundary line,

commenting that it was “unfortunate[]” for the Brennans that they had relied on it, despite the

warnings from Banville and other longtime residents of the neighborhood. The trial justice

further found that Banville had testified credibly as to how the Brennans’ encroachment on her

property had adversely affected her use and enjoyment of her property. He concluded that “Ms.

Banville has proved by a preponderance of the credible evidence that the Medeiros survey is

accurate and that she has record title, clear title to her lot as established, and the boundaries of

that lot as established, by the Medeiros survey.”

       The trial justice went on to address Banville’s adverse possession and acquiescence

claims. The trial justice found that Banville had openly and notoriously occupied the disputed

area of land from 1984 to 2007, in excess of the statutory period required for adverse possession.

He also concluded that the boundary line between the two lots had been established by the

doctrine of acquiescence as a result of the row of trees having been respected as the boundary




                                             -6-
line between the two lots by plaintiff and by both predecessors in title to the Brennans.

Accordingly, the trial justice granted injunctive relief to plaintiff, permanently enjoining the

Brennans from trespassing on the Banville lot and ordering the removal of the boulders and the

portion of the Brennans’ building that encroached on the Banville lot. 6          He also awarded

damages to Banville in the amount of $30,000 as the amount of the diminution in the fair market

value of the Banville lot as a result of the encroachment.

       Judgment was entered for plaintiff on October 21, 2011. The defendants timely filed a

notice of appeal to this Court. The defendants filed a motion for a stay in the Superior Court,

which was denied, after a hearing, on December 1, 2011.

       Additional facts will be provided as necessary to discuss the issues raised on appeal.

                                                 II

                                       Standard of Review

       Our review of a trial justice’s decision following a nonjury trial is deferential. See

Cigarrilha v. City of Providence, 64 A.3d 1208, 1212 (R.I. 2013). Accordingly, we

       “give[] great weight to the factual findings of a trial justice sitting without a jury
       in a civil matter, and we will not disturb such findings unless they are clearly
       erroneous or unless the trial justice misconceived or overlooked material evidence
       or unless the decision fails to do substantial justice between the parties.”
       D’Ellena v. Town of East Greenwich, 21 A.3d 389, 391 (R.I. 2011) (quoting
       Costa v. Silva, 996 A.2d 607, 611 (R.I. 2010)).

Moreover, we

       “accord a substantial amount of deference to [the trial justice’s credibility]
       determinations, due to the fact that [he or she] has actually observed the human
       drama that is part and parcel of every trial and * * * has had an opportunity to


6
 During the pendency of this appeal, defendants removed the boulders from plaintiff’s property.
Accordingly, the building is the only alleged encroachment onto plaintiff’s land that remains for
this appeal. This Court granted defendants a stay of the injunction to remove the building from
plaintiff’s land while this appeal was pending, on the condition that defendants post a $50,000
bond.


                                              -7-
       appraise witness demeanor and to take into account other realities that cannot be
       grasped from a reading of a cold record.” Id. at 392 (quoting B.S. International
       Ltd. v. JMAM, LLC, 13 A.3d 1057, 1062 (R.I. 2011)).

This Court will also apply “a deferential standard of review to the trial justice’s ‘resolution of

mixed questions of law and fact, as well as the inferences and conclusions drawn from the

testimony and evidence * * *.’” Nye v. Brousseau, 992 A.2d 1002, 1008 (R.I. 2010) (quoting

Houde v. State, 973 A.2d 493, 498 (R.I. 2009)).

                                                III

                                            Discussion

                                                  A

          The Trial Justice’s Determination of the Location of the Boundary Line

       On appeal, defendants argue that the trial justice incorrectly applied the doctrine of

acquiescence to establish the boundary line according to the Medeiros survey. According to

defendants, the doctrine of acquiescence mandates that the tree line mark the boundary between

the properties and that the Brennans’ building is not encroaching on the Banville lot because it

does not extend beyond the tree line.

       We begin by noting that we are satisfied that the trial justice’s conclusions with regard to

the doctrine of acquiescence were essentially dicta and unnecessary to support judgment for

plaintiff in this matter. The trial justice had previously found that plaintiff had proved that the

Medeiros survey line constituted the actual boundary between the two lots; he addressed the

theories of adverse possession and acquiescence only as alternative grounds for his decision.

The trial justice was entitled to conclude from the evidence established at trial the location of the

boundary line.    On reviewing the record, we are convinced that the trial justice neither




                                              -8-
overlooked nor misconceived any material evidence in reaching his conclusion. Accordingly, we

cannot disturb his decision on appeal.

       To the extent that defendants argue that the “tree line” boundary established by the

doctrine of acquiescence trumps the Medeiros survey line which the trial justice found to be the

actual boundary, however, we will address defendants’ argument. The doctrine of acquiescence

permits a claimant to “gain title to a defendant’s property * * * despite the fact that [the]

defendant had record title.” DelSesto v. Lewis, 754 A.2d 91, 95 (R.I. 2000) (quoting Locke v.

O’Brien, 610 A.2d 552, 555 (R.I. 1992)). Under the doctrine of acquiescence, “adjoining

landowners are ‘precluded from denying a boundary line recognized by both owners for a length

of time equal to that prescribed by the statute of limitations barring a right of reentry.’”

Acampora v. Pearson, 899 A.2d 459, 464 (R.I. 2006) (quoting Locke, 610 A.2d at 556). “The

party claiming ownership by acquiescence must show ‘that a boundary marker existed and that

the parties recognized that boundary for a period * * * [of] ten years.’” DeCosta v. DeCosta, 819

A.2d 1261, 1264 (R.I. 2003) (quoting Pucino v. Uttley, 785 A.2d 183, 187 (R.I. 2001)). “[T]he

element of recognition may be inferred from the silence of one party (or that party’s predecessors

in title), * * * as well as by affirmative acts.” Pucino, 785 A.2d at 187. “Generally, ‘the

[boundary] line must be marked in a manner that customarily marks a division of ownership’ and

the marker must have been used for boundary purposes.” Acampora, 899 A.2d at 465.

       “A determination of acquiescence is a mixed question of law and fact.” Nye, 992 A.2d at

1009 (quoting Acampora, 899 A.2d at 462). “[T]he issue of what constitute[s] the boundaries of

a parcel of land is a question of law, [but] the determination of where such boundaries are is a

question of fact.”   Id. (quoting Norton v. Courtemanche, 798 A.2d 925, 932 (R.I. 2002)).




                                             -9-
Finally, “whether the boundary is sufficiently obvious to command notice is a question of fact.”

Acampora, 899 A.2d at 465.

       In his decision, the trial justice noted that this case does not present the typical case of

either adverse possession or acquiescence wherein a party is attempting to prove that a portion of

land on one side of a boundary line has been adversely possessed by a person who does not have

record title. The trial justice found that the evidence established that, from 1984 until 2007,

plaintiff and the previous owners of the Brennan lot observed the line of trees running roughly

along the Medeiros survey line as the dividing line between the two lots. The trial justice

concluded that the tree line was a sufficiently obvious demarcation of a boundary line and that

the Brennans’ predecessors in title were on notice that the tree line was the boundary line.

Accordingly, the trial justice found that the doctrine of acquiescence applied to establish the

boundary line between the lots at the tree line. The trial justice explicitly clarified in denying the

motion for a stay that his “use of the term ‘tree line’ in the [c]ourt’s decision was meant to

indicate the boundary line as established by the Medeiros survey.”

       While we have some reservations as to whether a naturally-occurring tree line may, under

other circumstances, constitute a sufficiently obvious boundary so as to fall within the reach of

the doctrine of acquiescence, 7 we cannot conclude that the trial justice erred in his findings.

Further, we agree with the trial justice’s conclusion that Banville proved that she had record title

to the land up to the Medeiros survey line. The evidence in the record amply supports the trial

justice’s findings about plaintiff’s continued use and maintenance of the property up until the


7
 This Court notes that the row of trees was not specifically planted by either party in order to
serve as a boundary marker nor is there any allegation that they consist of either arborvitae or a
hedgerow that may be commonly understood to denote a boundary. Cf. Acampora v. Pearson,
899 A.2d 459, 461, 463 (R.I. 2006) (holding that the doctrine of acquiescence had established a
boundary line between two adjoining lots where the plaintiff had “planted a row of thirteen or
fourteen arborvitae shrubs” along the line which she claimed as the boundary).


                                              - 10 -
tree line. Having had the benefit of hearing the testimony of the witnesses and viewing the

property, the trial justice’s conclusion as to the location of the boundary line is entitled to

deference.

       Because we conclude that the trial justice’s decision holding that the Medeiros survey

line constituted the boundary line between the two lots was neither clearly erroneous nor did it

fail to do substantial justice between the parties, we cannot, and will not, disturb the trial

justice’s decision on appeal.

                                                 B

                                The Trial Justice’s Award of Damages

       The defendants also argue that the trial justice erred in awarding damages to Banville

based on the diminution in value of her property. According to defendants, Banville should not

be entitled to damages because any award for diminution in value assumes that the encroachment

would be permanent. Once the encroachments are removed, defendants assert, Banville would

not suffer any diminution in value of her property.

       It is well settled that our review of a trial justice’s findings on damages is deferential.

Sophie F. Bronowiski Mulligan Irrevocable Trust v. Bridges, 44 A.3d 116, 120 (R.I. 2012). In

general, “the law is always concerned that an injured party shall be fully compensated for

whatever injury he [or she] may have sustained.” Hernandez v. JS Pallet Co., 41 A.3d 978, 984

(R.I. 2012) (quoting DeSpirito v. Bristol County Water Co., 102 R.I. 50, 53-54, 227 A.2d 782,

784 (1967)). While damages need not be proven “with mathematical exactitude,” they should be

“based on reasonable and probable estimates.” Morabit v. Hoag, 80 A.3d 1, 15 (R.I. 2013)

(quoting Butera v. Boucher, 798 A.2d 340, 350 (R.I. 2002)). This Court has previously stated

that, in computing damages to real property, the law will generally distinguish between




                                             - 11 -
permanent damage and temporary damage to it. See Tortolano v. DiFilippo, 115 R.I. 496, 502,

349 A.2d 48, 52 (1975). We have explained that,

       “[a]lthough there might be a case where factors such as the value of the property
       or the use to which it is put might render the cost of repair an unreasonably high
       measure of recovery, the general rule is that where the damage is temporary the
       cost of repair measure is proper and where the damage is permanent, the
       diminution in value measure is more appropriate.” Bridges, 44 A.3d at 121
       (quoting Tortolano, 115 R.I. at 502-503, 349 A.2d at 52).

       The trial justice found that Banville had testified credibly as to how the Brennans’

encroachment has adversely impacted her use and enjoyment of her property. The trial justice

cited plaintiff’s testimony that she has been required to move her pen for her animals, as well as

having had her view negatively affected. The trial justice further accepted the credible testimony

of Mr. Godfrey, plaintiff’s real-estate expert, as to the diminution of the fair market value of

Banville’s property as a result of the encroachment. The trial justice therefore awarded damages

to Banville in the amount of the diminution in the fair market value of her land.

       We are of the opinion that the evidence in the record was more than sufficient to support

the trial justice’s award of monetary damages to plaintiff in addition to injunctive relief. While

we acknowledge that the general rule is that diminution in value is an appropriate measure of

damages only when the damage to real property is permanent, we conclude that the

circumstances of this case justify an award for damages to plaintiff’s property based on that rule.

The cost of repair for temporary damage to his or her real property is generally awarded to the

plaintiff as the person who would otherwise be responsible for the cost of correcting the damage

caused by the defendant. That is not the situation here, as the plaintiff would not—indeed, could

not—be responsible for the cost of removing the encroachment of the Brennans’ building from

her lot. Consequently, we conclude that the cost of restoration as measured by the cost of

removing the encroachment is not an appropriate measure of damages in this case nor would it



                                             - 12 -
adequately compensate Banville for the injury she has suffered as a result of defendants’

behavior. See Restatement (Second) Torts § 929 (1979) (stating that compensatory damages for

harm to land as a result of a past invasion that does not amount to a total destruction of value

may include the difference in value of the land before and after the harm as well as damages for

the loss of use of the land).

          Indeed, we cannot concur with defendants’ argument that plaintiff’s property will be

entirely restored to its original condition once the encroaching building is removed.              The

encroachment of the building is not the only manner in which plaintiff has been harmed by

defendants’ behavior. We note that defendants also painted markers onto plaintiff’s home,

placed a stone wall on her property, and significantly disrupted plaintiff’s use and enjoyment of

her property over a period of at least five years. The parties also do not dispute that plaintiff has

been required to move her fence and her dog kennel to accommodate defendants’ encroachment.

In addition, plaintiff mentioned and defendants conceded at oral argument that at least a portion

of the tree line has been destroyed as a result of defendants’ encroachment. We are satisfied that

the nature and extent of the various and ongoing harms plaintiff suffered over such a substantial

period of time support an award of damages for diminution in value.

          We also note that the trial justice observed that the Brennans’ behavior over the course of

this dispute has been less than admirable. The Brennans persisted in their conduct even after

they had been informed by more than one of the longtime residents of the neighborhood that they

were placing unsightly encroachments on plaintiff’s property. 8

          We are satisfied that the trial justice was well within the bounds of his discretion in

awarding the plaintiff damages for the diminution in the fair market value of her land.



8
    The trial justice, after viewing the property, specifically described the boulders as an “eyesore.”


                                                - 13 -
Furthermore, we cannot say that measuring damages according to the diminution in value was

inconsistent with the loss of the plaintiff’s use and enjoyment of her property, which she has

suffered for a significant period of time.             Indeed, in view of the defendants’ willful

encroachment, in the face of ample notice that there was a significant problem with the Murgo

survey, and the real and lasting harm to the plaintiff’s property as a result of the defendants’

behavior, we agree with the trial justice that the award of $30,000 is not excessive nor does it

otherwise shock the conscience of this Court.

                                                 IV

                                             Conclusion

       For the foregoing reasons, the judgment of the Superior Court is affirmed. The record in

this case shall be remanded to that court.




                                              - 14 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Donna Banville v. Peter Brennan et al.

CASE NO:              No. 2011-384-Appeal.
                      (NC 08-236)

COURT:                Supreme Court

DATE OPINION FILED: February 7, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Stephen P. Nugent

ATTORNEYS ON APPEAL:

                      For Plaintiff: Jeremiah R. Leary, Esq.

                      For Defendants: Joseph R. Palumbo, Jr., Esq.
