KRIEGER v. LANARK LJS LLC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

HJK Realty LLC (HJK), a professional property management company, and the trustees of the 8 Kinross Road Condominium Trust (Kinross Trust)⁴ (together, the plaintiffs) brought this action in the Land Court against Lanark LJS LLC (Lanark), the owner of the neighboring property and the defendant in this case. Following a trial, a Land Court judge issued a written decision, which concluded that (1) HJK had not established adverse possession over a portion of Lanark's property and therefore HJK was liable to Lanark for trespass; (2) Lanark did not need to remove an encroaching structure; and (3) Lanark owed damages to the Kinross Trust for the removal of a tree. On appeal, the plaintiffs contend that (1) HJK adversely possessed the parking space; (2) the encroachment is not de minimis and therefore must be removed; and (3) the judge erred in calculating damages for Lanark's tree removal. The plaintiffs further argue, in the alternative, that the judge erred in the damages calculation for HJK's trespass, and that the judge should have awarded damages for the encroachment. We remand on the issue of damages relating to the encroachment, but otherwise affirm.

Background. The following facts are taken from the judge's detailed findings, supplemented by uncontroverted evidence in the record. The issues at hand arise between neighboring property owners in the Brighton section of Boston. The two properties at issue, the Kinross Road Condominium development (Kinross property) and 127 Lanark Road (Lanark property) are adjacent to one another.

a. The parking space. The parking space at issue in HJK's claim of adverse possession is located between the two properties, with approximately half of its area located on the Lanark property.⁵ Prior to a portion of the parking space being paved in October of 2013, the parking space surface had been “either dirt or with just a scattering of gravel.”⁶ Although HJK presented evidence that prior tenants of the Kinross property had parked in the parking space during the twenty-year period at issue, the judge determined that the various users were not in privity and thus HJK could not tack the use of the previous users.

b. The stairway encroachment. The “back side” of the Kinross property and the back side of the Lanark property “are separated by an un-tended (sic) strip of land where debris ha[d] collected.” In July 2012, Lanark built an exterior porch and staircase from the second floor of its building to the ground (stairway).⁷ Lanark built the stairway based on an erroneous survey, and therefore, the stairway extends one foot over the actual boundary line, for the length of the stairway.⁸ The judge found that the encroachment was “not significant”; that the encroachment was “necessary to comply with the building code”; that the encroachment was situated in a “rarely, if ever, used” alleyway; and that Lanark's construction of the stairway was innocent and inadvertent. The judge concluded that the Kinross Trust was not entitled to injunctive relief and ordered them “to bring a new, independent action against Lanark” to recover damages.

c. The tree. A “large, double-trunk red oak tree” was located at the top of the parking space, with the majority of its trunk area situated on the Kinross property, close to the boundary line with the Lanark property.⁹ Relying on its survey's inaccurate depiction of the boundary line, Lanark “had [the tree] cut down” in August 2013. Because the tree straddled the boundary line, the judge determined that Lanark was liable to the Kinross Trust under G. L. c. 242, § 7. However, because Lanark “reasonably relied on” the survey, only single, and not treble, damages were appropriate. The Kinross Trust's certified arborist testified to “two alternative methods for appraising the tree,” and the judge determined that $ 1,800 was the appropriate measure of damages for the cost of purchasing and planting a replacement tree.¹⁰

d. Postjudgment motion. After the judge's decision issued and judgment entered, the plaintiffs moved to alter or amend the judgment pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974). The judge denied the motion. The plaintiffs filed their notice of appeal from the judgment and from the denial of the motion to alter or amend the judgment.

Discussion. 1. Adverse possession of the parking space. HJK argues that it satisfied the elements of adverse possession because it was entitled to “tack” the successive use of the parking space by its predecessors' tenants over the requisite twenty-year period. We disagree.

“Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” AM Props., LLC v. J & W Summit Ave, LLC, 91 Mass. App. Ct. 150, 154 (2017), quoting Ryan v. Stavros, 348 Mass. 251, 262 (1964). The claimant bears the burden of proof on each of the necessary elements of adverse possession. AM Props., LLC, 91 Mass. App. Ct. at 154. “To satisfy the twenty-year requirement, a claimant may ‘tack’ onto its own period of use a period during which a predecessor in privity asserted an adverse right to the property.” Id.

HJK initiated its claim for adverse possession of the parking space on October 16, 2013. However, HJK conceded that it last used the parking space on October 7, 2013, and thus HJK had the burden to show continuous use dating back to October 7, 1993, to meet the twenty-year statutory period. See Pugatch v. Stoloff, 41 Mass. App. Ct. 536, 542 n.8 (1996).

The earliest that HJK's owners, the Dorfman family, had a connection to the parking space was July 11, 1995. On July 11, 1995, a different entity controlled by the Dorfman family acquired Unit B, which was then occupied by Sharon and Humberto Reyes, who had occupied the unit since February 1993. Even assuming, arguendo, that Sharon and Humberto Reyes began parking in the parking space prior to October 1993 and that their use of the parking space was “sufficient to put a reasonable owner of the [Lanark] property on notice,” the tacking analysis does not end there, because privity is also required.¹¹ AM Props., LLC, 91 Mass. App. Ct. at 157.

“To produce the necessary privity [for tacking of successive periods of adverse use] there must be some relation between the successive users of such a nature that the use by the earlier user can fairly be said to be made for the later user, or there must be such a relation between them that the later user can be fairly regarded as the successor to the earlier one. Am. Law of Property, § 8.59.” AM Props., LLC, 91 Mass. App. Ct. at 157, quoting Ryan, 348 Mass. at 264.

Here, the judge found that “[t]he Reyes[es] were parking in the parking space in July 1995, but were parking there entirely as a result of their own actions, and entirely on their own behalf.” The space was not part of the Reyeses' lease, and they acted on their own initiative. When the Kinross Trust purchased the Kinross property, the deed made no mention of the parking space, and the Kinross Trust did not charge the Reyeses for use of the parking space, or assert a right to charge for the space. “The Reyes[es] simply kept using it as they had before.” In short, the judge found, as a matter of fact, that the Reyeses acted on their own and for their own benefit in using the parking space, which broke the necessary privity for tacking. On the record before us, we cannot say that this finding is clearly erroneous. Accordingly, the judge did not err in determining that HJK did not establish that there was “some relation between [HJK and the Reyeses] where the Reyes[es]' use “can fairly be said to be made for [HJK],” nor can HJK establish that there was “such a relation between [HJK and the Reyeses]” where HJK “can be fairly regarded as the successor to [the Reyeses].” AM Props., LLC, 91 Mass. App. Ct. at 157. Compare id. at 157-158 (various entities that had possessed disputed area for statutory period all formed by same person and all connected to property). Thus, the claim for adverse possession of the parking space fails. Id. at 159.

Having rejected HJK's adverse possession claim, the judge awarded Lanark roughly $ 3,400 in damages for trespass. We discern no error in this award. See Fenton v. Quaboag Country Club, Inc., 353 Mass. 534, 539 (1968) (in case of continuing trespass “the true measure of damages is the loss in rental value of the property while injury continues”).¹²

2. The stairway encroachment. The Kinross Trust argues that the stairway encroachment is not de minimis and must be removed. We disagree.

“In Massachusetts a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land, even though the encroachment was unintentional or negligent and the cost of removal is substantial in comparison to any injury suffered by the owner of the lot upon which the encroachment has taken place.” Capodilupo v. Vozzella, 46 Mass. App. Ct. 224, 226 (1999), quoting Peters v. Archambault, 361 Mass. 91, 92 (1972). “There exists, however, a category of ‘exceptional cases’ where an order of removal is not mandated,” such as “where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation, or where the substantial rights of the owner may be protected without recourse to an injunction, or where an injunction would be oppressive and inequitable” (quotations omitted). Capodilupo, 46 Mass. App. Ct. at 226. Encroachments that are “ ‘trivial,’ or de minimis, in nature” also fall within the category of “exceptional cases.” Id. The decision to grant an injunction is an equitable decision, which we review under an abuse of discretion standard. Cavadi v. DeYeso, 458 Mass. 615, 624 (2011).

The issue of whether to grant an injunction is fact intensive. See Peters, 361 Mass. at 93 (“What is just and equitable in cases of this sort depends very much upon the particular facts and circumstances disclosed”); Gray v. Howell, 292 Mass. 400, 403 (1935) (“Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue”). In the present case, the judge conducted an extensive examination of the relevant facts and found that the stairway encroachment was “not significant,” was “necessary to comply with the building code,” and encroached only over a “rarely, if ever, used” alleyway. The judge further concluded that the encroachment was innocent, and that injury to the plaintiffs if the exit stairway remained, “if any, would be slight.”¹³ See Capodilupo, 46 Mass. App. Ct. at 226-227. It was within the judge's discretion to “engage in a balancing of equities after due consideration of all pertinent facts” and determine that an injunction was not warranted under the particular facts of this case. Id. at 227.

The judge further determined that as “[n]either side offered evidence on the appropriate measure of damages,” the Kinross Trust could “bring a new, independent action against Lanark to recover such damages, in a court of appropriate jurisdiction, should it wish to pursue such a course.” While the judge's decision to require the Kinross Trust to bring another action was not error, we think that a remand to the judge on the issue of damages is appropriate here for several reasons. First, the judge's decision did not preclude the Kinross Trust from presenting evidence of damages. Second, as acknowledged by Lanark at oral argument, the Land Court has jurisdiction to award damages in the present case. Finally, “[w]here the parties have been brought before a court of competent jurisdiction, their controversy so far as practicable ought to be completely and finally disposed of” (quotation omitted). Ritter v. Bergmann, 72 Mass. App. Ct. 296, 302 (2008). Accordingly, the case shall be remanded for further proceedings to allow the parties to present evidence of the appropriate measure of damages for the stairway encroachment.

3. The tree removal. The Kinross Trust argues that the Land Court judge erred in calculating damages for Lanark's removal of the tree. We disagree.

General Laws c. 242, § 7,¹⁴ provides that one who cuts a tree located on another's land will be liable for the damages assessed. The statute further specifies that treble damages are warranted unless the defendant “had good reason to believe” that the tree was located on the defendant's land, in which case single damages are appropriate. G. L. c. 242, § 7. Damages for a violation of G. L. c. 242, § 7, can be measured by value of the timber, diminution in value of the property resulting from the wrongful cutting, cost of replacement, or cost of restoration. See Larabee v. Potvin Lumber Co., 390 Mass. 636, 643 (1983); Ritter, 72 Mass. App. Ct. at 306-307; Glavin v. Eckman, 71 Mass. App. Ct. 313, 317-318 (2008) (limiting measures of damages to just value of timber or diminution of value would encourage wrongdoing).

Quoting from Glavin, the Kinross Trust contends that it was entitled to choose the measure of damages to be awarded because “[a] plaintiff may opt for either the value of the timber cut or the diminution in value of his property as the measure of damages under the statute and when the latter measure does not fairly measure his damages, he may permissibly opt for restoration cost damages” (citation omitted). Glavin, 71 Mass. App. Ct. at 319. The claim is unavailing. The “opt” language in Glavin refers to the ability of the plaintiff to pursue different theories of damages, but does not divest a judge of his or her discretion to determine the appropriate measure of damages under the particular facts of a given case. See id. at 318-319 (judge has discretion to determine measure of damages and test of reasonableness imposed when applying restoration cost damages). As such, the judge did not err in determining that the plaintiffs showed “minimal harm as a result of the cutting,” and that it would be “unreasonable” to award the plaintiffs over $ 30,000 in restoration damages because that measure “would be greatly disproportionate to the harm actually suffered.” See id. Here, awarding damages based on the replacement cost of the tree and the cost of planting the tree was an appropriate measure under the facts of this case. See id. at 319.

So much of the judgment that ordered the plaintiffs to bring a separate action for damages for the value of the encroachment is vacated.

The matter is remanded for a determination of damages on the value of the encroachment.

The remainder of the judgment is affirmed.

The order denying motion to alter or amend the judgment is affirmed.

FOOTNOTES

4.   HJK brought the adverse possession claim, while the Kinross Trust brought the encroachment and tree removal claim.

5.   With respect to the parking space, the judge noted in his decision that “precisely where people parked,” varied over time. “Some parked closer to the [c]ondominium building (this seems to have been the case in the early years) and, as time went on and no one's car got towed, some began parking farther away from the building and more onto the now-Lanark land.”

6.   The plaintiffs filed their initial verified complaint on or about October 11, 2013. Thus, the parking space consisted of dirt or gravel throughout almost all of the twenty-year time period at issue in this case.

7.   The judge found that Lanark built the exit stairway to remedy its lack of required egress from an exterior door on the second floor to the ground level.

8.   The judge found that the encroachment totaled ten square feet because the stairway is ten feet long from front to back. However, the Kinross Trust contends that the judge's finding is clearly erroneous because, they claim, the stairway is actually twenty feet and thus the encroachment totals twenty square feet.

9.   At trial, the parties disputed whether the tree was located only on the Kinross property or whether it straddled the boundary line. The judge found that it was “more likely than not” that the tree was at least partially on the boundary between the properties.

10.   The arborist testified that “the value of each trunk of the removed tree is $ 15,500.00.” The judge found the arborist's testimony “credible,” but determined that “under the facts of this case, it would not be reasonable to award damages in the amount he advocates.”

11.   HJK argues that the judge applied the incorrect standard by citing to Holmes v. Johnson, 324 Mass. 450 (1949), and Holmes v. Turner's Falls Co., 150 Mass. 535 (1890), for the proposition that “a tenant's possession of property that the landlord does not possess or claim to own may not be tacked to that of the landlord.” In AM Props., LLC, issued after the judge's decision in the present case, we stated that “[t]he rule enunciated in [Johnson and Turner's Falls Co.] has been implicitly overruled.” AM Props., LLC, 91 Mass. App. Ct. at 154. This court articulated that “the focus is not on whether the landlord had possession of the [disputed area], claimed title to it, or included it in the lease to [the tenant]. Rather, the focus is properly on the nature and extent to which [the tenant] used the [disputed area] and whether that was sufficient to put a reasonable owner of the ․ property on notice.” Id. at 157. Even applying this standard to the present facts, HJK must still prove privity with the Reyeses. AM Props., LLC, 91 Mass. App. Ct. at 157 (court's analysis does not end with use sufficient to put reasonable owner on notice of hostile activity because privity also required). For the reasons discussed herein, HJK did not meet this burden.

12.   The judge calculated damages based on the $ 150 per month rent that HJK charged in renting the parking space. The judge determined that because the Lanark land “was an essential part (over half) of the parking space,” the appropriate measure of damages was the full amount of rent HJK received from November 17, 2011, when Lanark purchased its property, to October 7, 2013, when the parking lease was terminated. HJK's argument that the judge, in calculating damages, misidentified the date Lanark purchased the property is likewise unavailing. See Earle v. Fiske, 103 Mass. 491, 492 (1870) (“A deed duly signed, sealed and delivered is sufficient, as between the original parties to it, to transfer the whole title of the grantor to the grantee, though the instrument of conveyance may not have been acknowledged or recorded”).

13.   The Kinross Trust argues that the judge erred in calculating the total area of the encroachment as being ten square feet. The Kinross Trust asserts that the evidence shows that the stairway exit encroaches for more than twenty square feet. We discern no abuse of discretion in the judge's decision even if the judge made an incorrect calculation and therefore do not reach this issue.

14.   General Laws c. 242, § 7, provides in full: “A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.”