BORAWSKI v. GRALINSKI (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff brought this action in Land Court to quiet title to the parcel, and the defendants counterclaimed, arguing that they had acquired a part of it through adverse possession. After a trial, the judge found that the defendants had not shown sufficient continuous possession of the parcel.³ From the resulting declaration that the defendants had not acquired title through adverse possession, the defendants now appeal.⁴

Background. The parties agree that the defendants had cultivated and farmed the parcel between 1992 and 2007. For the period after 2007, however, the judge determined there was insufficient evidence of adverse use, and thus the defendants could not establish that they had used the parcel continuously for the requisite statutory period of twenty years. See G. L. c. 260, §§ 21, 22. On appeal, the defendants argue only that the judge failed to consider activity prior to 1992, which could have established their use of the parcel for the necessary time.

Discussion. We accept the judge's factual findings unless they are clearly erroneous. Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). Adverse possession requires “proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251, 262 (1964). The claimant must also prove that he possessed the land continuously, without interruption. Holmes v. Johnson, 324 Mass. 450, 453 (1949).

The defendants argue that the judge “completely ignored” evidence that they had cultivated the parcel since 1984. We first note that the defendants may have waived this argument. In the joint pretrial memorandum, although the defendants maintained that their or their predecessors in title's “[a]ctual cultivation predate[d] 1992,” they relied upon a February 1992 plan to establish the beginning of the twenty-year period. Nothing in the trial transcript indicates that they pursued any pre-1992-based theory at trial. Still, even if the claim is properly before us, it is without merit.

The defendants offered no evidence that their use of the parcel was continuous before 1992. Reports of acreage under cultivation for the years 1985 through 1988 indicate that the defendants had been growing various crops on the parcel during those years, but there are no such reports for the years 1989 through 1991. Without that or any other evidence regarding those years, the judge had no basis to find that the defendants continued to use the parcel during that time. To the extent the judge's finding that the defendants cultivated the land continuously from 1992 to 2007 implies a finding that they did not do so for the requisite number of years before 1992, that finding was not clearly erroneous.

Judgment affirmed.

FOOTNOTES

3.   Although, as the judge recognized, the defendants' claim could be read as limited to a portion of the parcel, the judge's decision referred to the claim more generally as applying to the entire parcel. For convenience, we follow that same approach here.

4.   For separate reasons, the judge also ruled against the plaintiff on his quiet title claim. The plaintiff did not appeal.