MAZEN v. JOSSELYN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Abdelmagid Mazen (Mazen), appeals from a judgment declaring that the Josselyn Nominee Family Trust (trust) owned a strip of land (disputed area) along the deeded boundary bordering the Mazen and Josselyn properties,⁴ and ordering that the trustees, Richard and Patricia Josselyn,⁵ are entitled to remove, or have removed, the portion of Mazen's driveway that encroached on the Josselyn property. Mazen claims that he acquired the disputed area by adverse possession. He challenges the judge's factual findings that his family's use of the disputed area was permissive and not exclusive. We affirm.

Background. We summarize the facts as found by the trial judge. Mazen and his then wife, Michelle Mazen,⁶ purchased a home next door to the Josselyns in 1988. For many years the parties were on good terms, and the precise location of the boundary between the properties was not a matter of concern. During this time, for example, the Josselyns erected a lattice fence that blocked their direct access to the disputed area, but the Josselyns were able to reach it by walking around the fence. Mr. Josselyn mowed the disputed area both before and after erecting the lattice fence, though infrequently, between 1989 and 1997. Ms. Mazen maintained the area as well, and planted small plants in her yard that extended into the disputed area. The Mazen children played in the disputed area. The Mazens did not ask permission for the gardening or use by their children.

In 1993 and 1994 the Massachusetts Highway Department (MassHighway) took a temporary easement on both properties to facilitate a bridge project. The taking included part of the disputed area outside of the Josselyns' lattice fence. After the project was completed in 1994, MassHighway repaved a portion of the Mazen driveway. It was at this point that the driveway encroached on the Josselyn property.

In 1997, when none of the parties knew the precise location of the boundary, the Mazens installed a fence around their property. At the time, the parties recognized the fence would encroach on the Josselyn property.⁷ The parties gave different versions of the events, but the judge found that the Mazens requested permission to build the fence and the Josselyns gave it. Mr. Josselyn also gave Ms. Mazen permission to plant ground cover. She went on to substantially landscape the disputed area.

Between 1997 and 2011, the Mazen fence blocked access to the disputed area completely except from the Mazen driveway. As a result, between 1997 and 2011, Mr. Josselyn only entered the disputed area to paint or maintain his fence, which was removed in the fall of 2011. The judge found and ruled that the Mazens' use of the disputed area was exclusive from 1997 to, at the latest, 2012.

The encroachment of the Mazen driveway on the Josselyn property was discovered in 2011, when the Josselyns took down their fence and had the land surveyed in anticipation of building a retaining wall. After learning that their property extended two feet into the Mazen driveway, Mr. Josselyn wrote a letter, dated March 28, 2012, giving the Mazens permission to use the area, but retaining ownership.

Discussion. “Title by adverse possession can be acquired only by 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 v. Selvaggio, 413 Mass. 619, 621-622 (1992), and citing G. L. c. 260, § 21. In establishing title through adverse possession, the claimant has the burden of proof for “all of the necessary elements of such possession.” AM Props., LLC v. J&W Summit Ave, LLC, 91 Mass. App. Ct. 150, 154 (2017), quoting Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838, 847 (2004). Furthermore, “[t]he 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.” Brandao v. DoCanto, 80 Mass. App. Ct. 151, 156 (2011), quoting Kershaw v. Zecchini, 342 Mass. 318, 320 (1961). The trial judge found that Mazen did not establish exclusive use of the area in question for the full twenty-year period; nor did he establish use of that area without the Josselyns' permission.

Mazen contends on appeal that the use of the property also was exclusive from 1989 to 1997, thus satisfying the twenty-year period, and that his use was nonpermissive for the entire time period from 1989 to 2011. He claims that Mr. Josselyn's testimony to the contrary was inconsistent and unreliable, and that the judge's factual findings were unsupported because Mr. Josselyn was not credible. Questions of credibility are for the trial judge. We will not disturb judicial findings of fact on appeal where they are supported by evidence as in this case. See Haufler v. Zotos, 446 Mass. 489, 498 n.23 (2006), quoting Berry v. Kyes, 304 Mass. 56, 57 (1939) (“A judge who has seen and heard the witnesses is in a better position to determine their credibility than is a court which is confined to the printed record”).

Mazen further maintains that even if the judge's credibility findings were accepted, Mr. Josselyn's occasional mowing of the disputed area or crossing that area to paint his fence was not enough to render the Mazens' use nonexclusive.⁸ The use of the land must be viewed in context, however. See LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 301 Mass. 488, 490 (1938). The fact that the fence was a lattice fence erected by the Josselyns that did not bar the Josselyns' access to and from the disputed property, coupled with the fact that the parties had a cordial relationship, and jointly maintained the property, were factors the judge was permitted to consider. Contrast, e.g., MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 903-904 (1993) (exclusive use found where there was no evidence that parties crossed fence line to maintain disputed area between two suburban residences). As the trial judge aptly pointed out, “the Josselyns' decision to erect a fence on their property -- a decision they made with no input from the Mazens whatsoever -- gave them no notice that the Mazens were taking over the disputed area.” It was for the trial judge to weigh the evidence. See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 161 (1977); Brandao, 80 Mass. App. Ct. at 155-156. Moreover, the judge's factual findings regarding the Josselyns' grant of permission to build the fence and plant the area were sufficient on their own to defeat any claim of adverse possession.

Mazen also contends that the judge erred in admitting Mr. Josselyn's testimony regarding Ms. Mazen's request for permission to plant ground cover. Mr. Josselyn's testimony that he gave her permission was not hearsay and was properly admitted. With respect to his testimony concerning her inquiry, we discern no error in the judge's ruling that the testimony was admitted as operative words. Out-of-court statements offered, not for their truth, but to prove that they were made and that they gave rise to legal rights or duties, are admissible. See Fahey v. Rockwell Graphic Sys., Inc., 20 Mass. App. Ct. 642, 653–654 (1985), abrogated on other grounds by Allen v. Chance Mfg. Co., 398 Mass. 32 (1986). Mazen's argument that the operative words exception is generally applicable only in contract actions is incorrect. See Commonwealth v. McLaughlin, 431 Mass. 241, 246 (2000); Fahey, supra.⁹

Judgment affirmed.

FOOTNOTES

4.   We refer to the trust property as the Josselyn property. Richard and Patricia Josselyn's home is located on the trust property.

5.   We refer to the couple either collectively as the Josselyns, or individually as Mr. Josselyn and Ms. Josselyn.

6.   We refer to Mazen and his former wife collectively as the Mazens. We refer to Michelle Mazen individually as Ms. Mazen.

7.   The Mazens had small children and wanted a fenced yard.

8.   As presented in the brief, this argument again devolves into a critique of the judge's factual findings.

9.   The Josselyns' request for fees and costs is denied.