BERXHIKU v. GONZALEZ (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff and defendant own adjoining lots. This case resulted from the plaintiff's claim, by adverse possession, to a portion of the defendant's lot that, by virtue of a fence, is separated from the defendant's lot and accessible from the plaintiff's lot. Because we conclude that the factual findings were not clearly erroneous, and the judge correctly applied the law, we affirm.

In 2018, the plaintiff bought a home at 9 Patricia Road, Billerica. His neighbor to the north, the defendant, bought the home at 7 Patricia Road in 2015. A fence predating either's ownership ran between the lots, enclosing on the plaintiff's side a portion of the defendant's land.

“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). “The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession.” Sea Pines Condominium III Ass'n. v. Steffens, 61 Mass. App. Ct. 838, 847 (2004) (Sea Pines), citing Holmes v. Johnson, 324 Mass. 450, 453 (1949). “If any of the elements remains unproven or left in doubt, the claimant cannot prevail.” Sea Pines, supra, citing Mendonca v. Cities Serv. Oil Co., 354 Mass. 323, 326 (1968).

“In reviewing this case, we accept the judge's findings of fact as true unless they are clearly erroneous.” Kendall, 413 Mass. at 620. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 620-621, quoting J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986). “[W]e scrutinize without deference the legal standard which the judge applied to the facts.” Kendall, supra at 621.

Evidence presented at trial permitted the judge to find the existence of a fence in substantially the same position from April 2004 to July 6, 2020, when the case was filed. The issue was whether the fence had been there before April 2004. Deciding in favor of the defendant, the trial judge concluded that the “only evidence” introduced by the plaintiff of his predecessors-in-interest's use of the disputed area was “found in aerial photographs,” including, as germane here, a Google Earth image from 1998. She ruled that this image, necessary to prove use before 2004, was “too poor,” and did “not rise to the level of ‘clear proof’ required for [the plaintiff] to carry his burden [of proof] on this essential point,” so the plaintiff did not establish twenty years of adverse use. Having reviewed the image, we cannot say that this conclusion was clearly erroneous.² Because the temporal element “remain[ed] unproven or left in doubt,” Sea Pines, 61 Mass. App. Ct. at 847, the plaintiff's claim must fail, and the trial judge appropriately so ruled.

Judgment affirmed.

FOOTNOTES

2.   The plaintiff's disagreement with the judge's exclusion of proffered testimony by an investigator of statements made by the plaintiff's predecessor-in-interest merits little discussion. The intended testimony was hearsay, not subject to any exception, and its exclusion was an appropriate exercise of the judge's gatekeeping function.