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18-P-593                                              Appeals Court

           ANGELA CIAMARRA MANCINI1   vs.   SPAGTACULAR, LLC.


                            No. 18-P-593.

        Worcester.      January 11, 2019. - August 29, 2019.

            Present:   Massing, Desmond, & McDonough, JJ.


Real Property, Adverse possession, Boundary.      Practice, Civil,
     Findings by judge.



     Civil action commenced in the Superior Court Department on
June 5, 2014.

    The case was heard by Richard T. Tucker, J.


    Barry A. Bachrach for the defendant.
    Damien D. Berthiaume for the plaintiff.


    McDONOUGH, J.      After a jury-waived trial, a Superior Court

judge declared that the plaintiff has acquired by adverse

possession two separate areas of land contiguous to her property

in Shrewsbury.    The defendant, who holds record title to the

disputed land, argues clear error in the judge's factual


    1   Formerly known as Angela Ciamarra.
                                                                        2


findings and legal error in his application of adverse

possession doctrine.     We affirm.

     Background.     The plaintiff, Angela Ciamarra Mancini

(Mancini), first acquired the property known as 110 Oak Street

in Shrewsbury on June 1, 2000.2       Mancini's property is improved

with a single-family home.     To the east, her lot fronts on Oak

Street.     To the west and south, Mancini's land directly abuts

undeveloped, wooded land owned by the defendant, Spagtacular,

LLC (Spagtacular).     A survey plan of the properties, trial

exhibit 5, appears in adapted form in the appendix to this

opinion.3

     As shown in the appendix, two areas functionally

incorporated into Mancini's yard actually lie beyond her lot

lines and within the land held (as of record) by Spagtacular.

We refer to them as the disputed areas.       (The exhibit calls each

area a "Land of Potential Claim.")       The larger of the two

disputed areas is situated behind (i.e., to the west of)

Mancini's house, adjacent to her parcel's northwest corner.

This is a mowed, grassy area, with no permanent improvements;

like the judge we will call it the disputed back area.        The




     2 Mancini acquired title with her first husband; in 2003 the
couple conveyed the property to Mancini alone.

     3 This same exhibit was attached to the judge's memorandum
of decision.
                                                                   3


smaller disputed area is located just beyond one of Mancini's

side lot lines, to the south of her house.   This area is largely

covered by a paved basketball court, with one permanent post,

backboard, and hoop.4   As the judge did, we will refer to it as

the disputed basketball area.5

     Mancini filed this action on June 5, 2014.   Spagtacular

does not contest that Mancini has established the elements of

adverse possession as to both disputed areas for the entire time

she has owned the locus, up until commencement of this action,6 a

total of fourteen out of the required twenty years.   See G. L.

c. 260, § 21.   Accordingly, this appeal focuses on whether

Mancini has proved adverse possession of the disputed areas by

her immediate predecessor for the remaining six years, from June

1, 1994 to June 1, 2000.   See Luce v. Parsons, 192 Mass. 8, 12


     4 The paved basketball court straddles the lot line, but its
larger part extends onto Spagtacular's land. The paved court
does not cover the entirety of the disputed basketball area.
There is a perimeter of mowed grass around it.

     5 A leach field located primarily on Mancini's land extends
under the northwest corner of the paved basketball court, and a
small portion of that leach field is located across the lot line
on Spagtacular's land. The leach field is of little
significance, however, because it is entirely underground (and
thus not visible), and extends into only a small portion of the
disputed basketball area.

     6 Spagtacular agrees that Mancini's possession of the
disputed areas was interrupted for purposes of the adverse
possession statute, G. L. c. 260, § 21, on the date this case
was commenced, even though Spagtacular attempted to make entry
on the disputed back area with a bulldozer prior to that time.
                                                                    4


(1906) (claimant alleging adverse possession may include

evidence of predecessors' possession).    See also G. L. c. 260,

§ 22; LaChance v. First Nat'l Bank & Trust Co. of Greenfield,

301 Mass. 488, 489-491 (1938).

    Relevant to that inquiry, the judge found the following

facts after trial (including a view).    Prior to Mancini's

purchase of her property in 2000, it was owned by the Schwab

family.   Mancini's principal witness, Joseph Schwab (Schwab),

moved into the locus in 1983 with his mother and his two

brothers, at age sixteen.   From 1983 to 2000, "there always

existed a sharp and delineating tree line that rimmed the

westerly side and southern portion of" the locus.   That tree

line never changed during the Schwab family's occupation of the

property.

    The Schwab family treated as their own the entire area

within the tree line along both the property's southerly and

westerly lot lines.   From 1983 until the sale of the property to

Mancini in 2000, the Schwab family "maintained, utilized, and

considered their own the entire area on the western and southern

sides of their lot as extending to and bounded by the tree line.

These areas were maintained by, among other things, mowing,

fertilizing, and on the westerly side, the installation of a

[thirty-five foot by thirty-five foot] basketball court in 1984
                                                                      5


which extends beyond the actual lot line into the [d]isputed

[b]asketball [a]rea."

    Up until Schwab and his brother left home for college, they

mowed and maintained the lawn in the disputed basketball area

(around the perimeter of the paved court) and in the disputed

back area.    After the Schwab brothers left, their mother engaged

a lawn service company to perform these tasks.     During the

Schwabs' residence at the locus, they never sought nor received

permission to use the disputed areas.    Additionally, the judge

expressly found the tree line was in the same location at the

time of trial as it had been when the Schwabs lived at the

locus.

    Discussion.    1.   Factual findings.   Spagtacular argues that

the judge committed clear error in his fact findings.      See

Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).    In particular,

Spagtacular argues that the evidence at trial was insufficient

to allow the judge to conclude that the Schwabs' "use and

maintenance" of the disputed areas "occurred from 1983 through

the sale of this property to Mancini in 2000."     More

specifically, Spagtacular argues that this finding cannot be

properly supported by Schwab's testimony because Schwab was not

living at the property during the critical six years, from 1994

until 2000.   Additionally, Spagtacular argues, Schwab's
                                                                     6


testimony was not sufficiently detailed to support the judge's

finding.

    A finding is only clearly erroneous, however, when "there

is no evidence to support it or 'the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.'"     Brandao v. DoCanto, 80

Mass. App. Ct. 151, 154 (2011), quoting Kendall, 413 Mass. at

620-621.   "So long as the judge's account is plausible in light

of the entire record, an appellate court should decline to

reverse it."   Brandao, supra, quoting Commonwealth v. Carr, 458

Mass. 295, 303 (2010).   Stated another way, "[w]here there are

two permissible views of the evidence, the factfinder's choice

between them cannot be clearly erroneous."     Brandao, supra at

155, quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass.

501, 510 (1997).

    Here, we readily consider the judge's finding to be

plausible on the record presented.     Schwab testified that the

thirty-five foot by thirty-five foot paved basketball court was

installed in 1984.   Before he left for college, he, with an

uncle's help, fertilized and mowed the entire grassy area around

the perimeter of the basketball court, and mowed (with less

frequent application of fertilizer) the disputed back area.        The

mowing occurred weekly, or even more frequently, using a ride-on

mower.   Schwab specifically remembered mowing along the edges of
                                                                    7


the disputed back area with a hand mower, using the tree line as

a guide.

       By 1990, when Schwab graduated from college and briefly

moved back home, his mother had hired a man to mow, perform

other yard maintenance, and plow the driveway.    From when Schwab

again moved out of the family home in 1991 until his mother died

in August 1999, Schwab visited his mother regularly,

approximately twice per week.    Schwab testified that he knew

only the first name of the man maintaining the lawn (Paul), but

he did not know a last name or a company name.    When Schwab was

asked whether he knew what part of the locus the hired man

maintained, he replied, "Yes -- the lawn.    Otherwise it would

have become overgrown."    He later testified that at no point

between 1983 and 2000 did any part of the yard become overgrown

or neglected.    When asked specifically if it was his

recollection that the disputed back area was always mowed with

the rest of the lawn, he answered, "It would be my recollection

that that was the case.   It had to be, if we weren't cutting

it."

       Schwab also testified clearly that the tree line never

changed from the time he moved in until the property was sold to

Mancini in 2000.    Similarly, he said the basketball court was

never changed or moved.    Finally, Schwab testified that the
                                                                    8


basketball court was still usable when the house was sold,

although some of the painted markings had worn off.7

     A second witness, Brian Lake, corroborated Schwab's

testimony in various respects.   Lake testified that he either

lived at or frequently visited the home next door, at 108 Oak

Street, from 1971 (when he first moved in at six years old) to

the time of trial.   Lake expressed familiarity with 110 Oak

Street and stated that he had no recollection of the disputed

back area becoming overgrown at any time.   As to the tree line,

he said, "I recall it being the same today as it was when we

moved in."

     Spagtacular argues that Schwab's testimony should be

disregarded as speculative because Schwab said the lawn must

have been mowed by someone "if we weren't cutting it," because

it otherwise would have become overgrown.   This is not, however,

speculation.   It is, instead, a reasonable inference drawn from




     7 Between his mother's death and the sale of the property to
Mancini ten months later, Schwab testified, "we were up there
all the time, clearing the house, painting, cleaning, removing
property." "The lawn -- the property was still maintained. The
lawn was mowed, leaves were collected, the driveway was plowed."
This work, he said, was performed by the same company his mother
had been using, and extended to the disputed areas. During the
time between when his mother died and the sale, Schwab and his
brother "would sometimes go down there and shoot hoops. . . .
[L]ike I said, there might have been some chipped paint, and
maybe a crack or two in the surface, but it was certainly still
usable."
                                                                     9


known facts.   Schwab concluded that, because the disputed areas

never became overgrown, and because his mother had hired a man

to maintain them (an arrangement that continued after his

mother's death), the disputed areas must, in fact, have been

maintained.

     Even if Schwab's statements to this effect were

inadmissible as opinion (a questionable proposition),8 there was

no objection or motion to strike at the time of the testimony.

Moreover, the judge was free to independently draw the same

inference from the facts established by Schwab's testimony,

regardless of Schwab's own view that the lawn must have been

mowed.    We see no error in the judge's factual finding that the

Schwabs maintained the disputed areas from 1983 through June 1,

2000; nor do we see any error in his related findings that the

maintenance was "without interruption" and "continuous."

     2.   Application of law.   Next, we turn to the judge's

application of the law to the facts found, which we review

without deference.    See Kendall, 413 Mass. at 621 ("the 'clearly

erroneous' standard of appellate review does not protect

findings of fact or conclusions based on incorrect legal




     8 See Mass. G. Evid. § 701 (2019) (lay witness opinion
testimony admissible if "rationally based on the witness's
perception," helpful in determining a fact in issue, and not
based on scientific, technical, or other specialized knowledge).
                                                                     10


standards").   Title can be acquired by adverse possession only

upon proof of "nonpermissive use which is actual, open,

notorious, exclusive and adverse for twenty years."     Lawrence v.

Concord, 439 Mass. 416, 421 (2003), quoting Kendall, supra at

621-622.   Spagtacular makes three arguments as to why the judge

could not have properly concluded that the Schwabs actually used

the disputed areas in a way that was sufficiently open and

notorious.9

     a.    Maintenance as actual use.   First, Spagtacular asks us

to distinguish between maintenance of the disputed areas and

"use" of the disputed areas, on the theory that because no one

was actually playing on these patches of land during the six

years preceding June 1, 2000, adverse possession was not shown.

Spagtacular points out that Schwab's mother was the only person

living at the property during this time, and she was in poor

health.    As to the basketball court, Spagtacular suggests that

the presence of the paved court and single post with hoop was

not sufficient to amount to adverse possession unless someone

was actually shooting baskets there.     Similarly, Spagtacular

suggests that maintaining a lawn for purely aesthetic reasons




     9 To the extent Spagtacular claims Mancini failed to prove
lawn maintenance was performed regularly enough to satisfy the
elements of adverse possession, see Pugatch v. Stoloff, 41 Mass.
App. Ct. 536, 540 (1996), we disagree for the reasons already
discussed supra.
                                                                   11


(as opposed to more active recreation, such as volleyball or

badminton) is not an actual "use" for adverse possession

purposes.     We disagree.

    "The nature and the extent of occupancy required to

establish a right by adverse possession vary with the character

of the land, the purposes for which it is adapted, and the uses

to which it has been put."     LaChance, 301 Mass. at 490.   The

requirements of adverse possession are established where the

changes made on the land constitute "such a control and dominion

over the premises as to be readily considered acts similar to

those which are usually and ordinarily associated with

ownership."    Id. at 491.   In other words, the adverse possession

test is about the "degree of control exercised" by the

possessors.     See Shaw v. Solari, 8 Mass. App. Ct. 151, 156

(1979).   See also Sea Pines Condominium III Ass'n v. Steffens,

61 Mass. App. Ct. 838, 847 (2004) (Sea Pines III) ("The acts

constituting adverse possession must be inconsistent with the

owner's rights; otherwise, they would not place the owner on

notice of the competing claim of right").     Perhaps more

importantly, the intensity or nature of use required to

demonstrate the requisite level of control is context-driven:

    "The actual use and enjoyment of the property as the
    average owner of similar property would use and enjoy it,
    so that people residing in the neighborhood would be
    justified in regarding the possessor as exercising the
    exclusive dominion and control incident to ownership,
                                                                  12


    establishes adverse possession in the absence of evidence
    that his possession is under a license or tenancy."

Shaw, 8 Mass. App. Ct. at 156-157, quoting 3 Am. Law of Property

§ 15.3, at 765-766 (1974).

    In the normal course of family life, a residential back or

side yard may be used intensively in years when young, active

children live on the property, but much more passively when the

inhabitants are older, less mobile, or infirm.   Accordingly, the

relevant question in this context is not whether the use of land

is equally intense for the entire twenty-year period, but

whether the possessor has maintained dominion and control for

that same amount of time.

    Here, we cannot say the judge erred in finding that

permanent installation of a paved basketball court and hoop,

together with regular maintenance of the grass perimeter around

it, was a sufficient exercise of dominion and control to satisfy

the actual use requirement.   The same is true with respect to

the regular maintenance of the disputed back area as a lawn.

See Shaw, 8 Mass. App. Ct. at 157 (determination of adverse

possession upheld where portion of disputed strip used as

suburban lawn, possessors "used various portions of the strip

for various purposes, all as they chose," and "their possession

of the whole strip was exclusive and indicative of a claim by
                                                                 13


them of ownership of the entire locus").10   That Schwab's mother

did not use these areas by actually playing on them during the

relevant years does not invalidate the judge's conclusion.

     b.   Mowing as actual use.   Second, Spagtacular makes a

related argument pertaining only to the grassy parts of the




     10Apart from the question whether basketball was actually
played on the court from 1994 to 2000, Spagtacular argues that
the court had become so dilapidated by the date Mancini
purchased the property that its presence could not qualify as an
actual use of the land at that time. We need not, however,
consider the legal question of under what circumstances a
neglected basketball court would cease to qualify as an "actual
use" because the evidence simply does not support Spagtacular's
underlying premise that the court was in poor repair. Schwab
testified that he and his brother shot basketballs on the court
after his mother died, while they were preparing the house for
sale. At that time, he said, the court was functional. See
note 7, supra. Mancini recalled that the condition of the court
was "quite good" prior to seal coating that was performed in
2005. "There were no cracks that needed to be filled, the way
that the driveway had some cracks that needed to be filled."
Mancini also testified that when she moved into the property she
replaced the backboard because it was made of particle board and
disintegrating. There was no evidence, however, that the pole
holding the backboard was replaced at any time; nor was there
any evidence to contradict Schwab's testimony that the court was
usable (and, in fact, recently used) as of the date of the sale
to Mancini. Spagtacular asked the judge to infer that because
the listing sheet prepared to market the property did not
include the basketball court as among the property's positive
attributes, the court must have been in disrepair. The judge
declined to make any such finding. In so doing, he may have
found that the listing sheet was simply insufficient to support
a reasonable inference about the state of repair of the court.
See Commonwealth v. Netto, 438 Mass. 686, 703 (2003) (inferences
must be reasonable). Moreover, even if the suggested inference
was reasonable, the judge as factfinder was free to reject it
based on his own assessment of the evidence as a whole. See
Crown v. Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214,
225-226 (2014).
                                                                  14


disputed areas, asserting that mowing or lawn maintenance is

simply insufficient to establish adverse possession under

Massachusetts law and that some more permanent encroachment is

required.   Today, in Miller v. Abramson, 95 Mass. App. Ct. ___

(2019), we rejected this same argument.   Massachusetts

jurisprudence does not establish a per se rule that mowing and

yard maintenance can never be adequate to establish adverse

possession.   See Brandao, 80 Mass. App. Ct. at 157 (adverse

possession found where among primary activities were

cultivation, mowing, and weeding); MacDonald v. McGillvary, 35

Mass. App. Ct. 902, 904 (1993) (adverse possession found where

use of land "consisted of little more than maintenance of a

suburban lawn").   See also Shoer v. Daffe, 337 Mass. 420, 423

(1958) (where possessor "planted [land] to lawn" and surrounded

it with a hedge, possessor's "use was that ordinarily made only

by an owner"); LaChance, 301 Mass. at 491 (adverse possession

established by acts of control and dominion "similar to those

which are usually and ordinarily associated with ownership").11


     11Spagtacular relies on Peck v. Bigelow, 34 Mass. App. Ct.
551, 553-554, 556-557 (1993), where activities including mowing
of a thirty-by-thirty foot area on which the claimant kept
various furnishings was insufficient to establish "actual"
possession of the entire lot. Peck, however, does not stand for
the proposition that mowing and yard maintenance is, in all
circumstances, insufficient to support an adverse possession
claim. On the contrary, because the nature and extent of
occupancy required to establish adverse possession varies with
the character and adaptation of the land, see LaChance, 301
                                                                     15


     Moreover, here as in Miller, 95 Mass. App. Ct. at ___, the

relevant evidence was not limited to mowing of a lawn.    The

judge also correctly found that the mowing occurred inside a

well-defined vegetative boundary that did not move or change

during the entirety of the twenty-year period.    See id. at ___.

The existence of the tree line, in stark contrast to the lawn

areas, "allowed for easy identification of what land was being

openly used and possessed by the [Schwabs]."     Id. at ___.    In

this context, we see no error in the judge's conclusion that the

lawn maintenance performed from 1994 to 2000 was sufficient to

qualify as "actual" and "open" use of the disputed areas.

     c.   Wild and wooded lands.   Finally, Spagtacular argues

that the judge erred because he should have considered the

disputed areas to be wild or woodlands, taking them out of the

context of a suburban house lot.   We note at the start that the

locus is not remote, isolated, or rural in nature.12



Mass. at 490, "[w]hether, in a particular case, [the] elements
[of adverse possession] are sufficiently shown is essentially a
question of fact." Kershaw v. Zecchini, 342 Mass. 318, 320
(1961).

     12Spagtacular's land houses an old warehouse fronting on
Maple Avenue, also in Shrewsbury. Both Oak Street and Maple
Avenue intersect with Route 9, which is nearby. Schwab
testified that he walked to his high school, which was up the
street from the locus. The Lake family lived next door. Aerial
photographs show various buildings, including the Lakes' home,
in close proximity to Mancini's house. And, Spagtacular's own
property manager testified to taking photographs of an area
being cleared by Spagtacular (apparently to the south of the
                                                                      16


Spagtacular's property is, however, undeveloped and densely

wooded.

     "In cases involving a claim of adverse possession to wild
     or woodlands, the claimant generally must establish that
     the land has been enclosed or reduced to cultivation. . . .
     The strict rule applicable to wild or woodlands is,
     however, but an application of the general rule to the
     circumstances presented by wild or uncultivated lands.
     That is to say, the nature of the occupancy and use must be
     such as to place the lawful owner on notice that another
     person is in occupancy of the land, under an apparent claim
     of right; in the circumstances of wild and unimproved land,
     a more pronounced occupation is needed to achieve that
     purpose."

Sea Pines III, 61 Mass. App. Ct. at 848.

     Even in a case involving wild or wooded land, the

determination whether certain activities are sufficient to

support an adverse possession claim remains "inherently fact-

specific."    Id.   See LaChance, 301 Mass. at 490 ("Evidence

insufficient to establish exclusive possession of a tract of

vacant land in the country might be adequate proof of such

possession of a lot in the center of a large city").      Here, the

facts supported a finding of adverse possession.       The judge

appropriately found that Spagtacular and its predecessor13 were

on notice that the disputed areas had been incorporated into the

house lot owned by the Schwabs and then Mancini.       Although



locus) from the parking lot of a bowling alley situated on Oak
Street, diagonally across from Mancini's land.

     13   Spagtacular acquired its property in 2013.
                                                                   17


Spagtacular's land is wooded, the disputed areas are not within

that vegetation.    They are, instead, at the edges of the woods.14

This is not a situation where the use and occupation relied upon

by the adverse claimant occurred in the woods.    See, e.g.,

Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 44-45 (2007)

(prescriptive easement not established over trails traversing

woods); Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992,

993 (1984) (timber cutting insufficient for adverse possession).

Instead, the disputed areas were clearly delineated as outside

the wooded and allegedly wild area.    Moreover, they could be

easily seen from within the woods by anyone who chose to walk

the perimeter of Spagtacular's land.

    To be "open," a use must be "without attempted

concealment."   Boothroyd, 68 Mass. App. Ct. at 44.   To be

"notorious," a use "must be sufficiently pronounced so as to be

made known, directly or indirectly, to the landowner if he or

she maintained a reasonable degree of supervision over the

property."   Id.   On the facts presented here, the Schwabs' and

Mancini's use of the disputed areas was both open and notorious,

notwithstanding that Spagtacular's adjacent land is wooded and

undeveloped.    See id., quoting Foot v. Bauman, 333 Mass. 214,




    14 No evidence was presented whether the disputed areas were
ever part of the woods now owned by Spagtacular or, if so, when
those areas were first cleared and by whom.
                                                                 18


218 (1955) ("'It is not necessary that the use be actually known

to the owner for it to meet the test for being notorious.' . . .

It is enough that the use be of such a character that the

landowner is deemed to have been put on constructive notice of

the adverse use").

                                   Judgment affirmed.
