NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1110
JOHN LEWIECKI & another1
vs.
PEPPER GROVE, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Pepper Grove, LLC (Pepper Grove), appeals from a judgment
of the Land Court declaring that the plaintiffs, John Lewiecki
and Elizabeth Emerson, have established title by adverse
possession to a defined "disputed area" of Pepper Grove's
property and an easement by prescription over a trail (the
northerly trail) that leads to Accord Pond. Pepper Grove
contends that the judge erred in allowing the plaintiffs to
amend their complaint after trial to include a claim for a
prescriptive easement over the northerly trail, and that the
evidence, in any event, was insufficient to prove adverse
1 Elizabeth Emerson. possession of the disputed area or an easement by prescription
of the northerly trail. We affirm.
Background. The plaintiffs took title to 370 Gardner
Street in Hingham on December 1, 1997, and since that time have
resided there and raised their two sons, born in 1998 and 2001,
at the home. Some twenty-two years later, in December 2019,
Pepper Grove purchased 282 Gardner Street, a 2.25-acre wooded
lot, which abuts the plaintiffs' property to the west and Accord
Pond to the north. Almost immediately, conflict arose between
the parties regarding the plaintiffs' use of an approximately
9,000 square foot area shown on a survey plan created by Peter
G. Hoyt and attached to the first amended complaint (disputed
area). On December 31, 2019, the plaintiffs commenced this
action seeking title by adverse possession to this disputed
area.
The disputed area, as described by the judge, consisted of
three sections: one-third devoted to lawn, one-third devoted to
trails leading off-site and to structures, "most notably a
chicken coop and a wood pile," and one-third occupied by trees
of various sizes. Prior to trial, the plaintiffs were allowed
to amend their complaint to add an easement by prescription
claim over the disputed area. We discuss additional amendments
to the complaint and additional procedural history infra.
2 1. The plaintiffs' use of the disputed area. The judge
found that immediately after their purchase of 370 Gardner
Street in 1997, the plaintiffs installed a wire fence largely
coinciding with the boundaries of the disputed area in order to
contain their dog. Portions of the fence remained through 2008
or 2009.
In 1998, the plaintiffs installed a "water feature" in the
disputed area and it remained through 2017 when they removed it
but kept in place the stones that had surrounded it. The
plaintiffs planted and maintained a lawn over approximately one-
third of the disputed area for twenty-two years. As for the
portion of the disputed area containing trees, the plaintiffs
trimmed the trees and brush to allow better visualization of
their playing children; removed trees that were overhanging
their house; and created and stored wood piles. Emerson
described it as a "constant process to keep back the brush. . .
. [She] battled poison ivy the whole time."
The plaintiffs installed a fire pit in 2002 but removed it
later when it was no longer used. They held parties in their
yard, including the disputed area; created a cemetery for their
personal pets that they edged with stones; and planted a variety
of plants and ornamental trees in the disputed area. In 2013,
the plaintiffs built a chicken coop just south of the water
3 feature and raised chickens in the disputed area. It remained
there until 2020 when it was moved in connection with this
litigation.
There are three "trailheads" in the disputed area that lead
to connecting trails in "the woods";2 the most northerly trail
leads to Accord Pond. Emerson testified that she started
working on the trails in early 1998, purposefully cutting back
growth to make a trail to the pond. Since 1998, the plaintiffs
have frequently used the northerly trail for different purposes.
For instance, the plaintiffs walked their dogs over the
northerly trail most days since they moved in. Emerson
continued to improve and maintain the trail until 2019 when the
current dispute arose.
Since 1998, the plaintiffs have frequently used the
northerly trail to carry their canoe to Accord Pond during the
warmer months. They stored the canoe in the disputed area by
the entrance to the northerly trail. The plaintiffs' older son,
since the age of five, frequently used the northerly trail to
access Accord Pond to fish and canoe, as often as every other
2 The judge found that the plaintiffs failed to meet their burden of proof to establish a prescriptive easement of what the parties referred to as the "middle" trail and the "southern" trail. The plaintiffs have not cross-appealed and the issue, therefore, is not before us. See Athanasiou v. Selectmen of Westhampton, 92 Mass. App. Ct. 94, 94 n.3 (2017).
4 day in his high school years. For several years, he and a
friend also rode their dirt bikes over the trails a few times a
week when the weather permitted.
On these facts, the judge concluded that the plaintiffs met
their burden of proving they had acquired title by adverse
possession to a substantial portion of the disputed area,
reasoning that the plaintiffs had treated the disputed area as
their own for more than twenty years and that their use had been
open, notorious, and exclusive. She concluded that the disputed
area was clearly distinguishable from the adjacent woodlands.
The only exceptions, the judge opined, were an area north of the
pet cemetery and an area south of the log and brush piles that,
the judge concluded, were "not distinguishable from the
surrounding untended woodlands." She rejected the argument that
the plaintiffs had not met their burden because several of the
activities relied on had not continued for twenty years. The
judge reasoned that "[w]hile no one of those things may have
been in place for twenty years, the use of the [d]isputed [a]rea
for all of those things at one time or another extended beyond
twenty years. More proof was not required."
The judge also found that the plaintiffs had met their
burden of proving a prescriptive easement over the northerly
trail. The judge noted that the northerly trail was "plainly
5 visible" at the view; the plaintiffs had used it regularly since
1997 to access Accord Pond, to walk their dogs, and to transport
their canoe to Accord Pond, and a neighbor had observed the
plaintiffs and their older son using the trail "quite often."
The judge found that the plaintiffs' use had continued for
twenty-two years, and was open, notorious, and adverse to the
owner.
2. Posttrial proceedings. The judge scheduled a hearing
to discuss the preparation of a plan consistent with her
decision. In response to the plaintiffs' motion to approve an
amended Hoyt plan, Pepper Grove, for the first time, argued that
neither complaint contained a count asserting a prescriptive
easement over the northerly trail, the issue was not raised
until after the close of evidence, and, therefore, it
constituted an unfair surprise. Pepper Grove also argued that a
proper foundation had not been established for approval of the
plan. Following a hearing, the judge noted on the docket that
in response to Pepper Grove's unfair surprise argument, she had
reviewed "proceedings in this matter (the joint case management
conference, trial testimony, the view, and post-trial briefs)
where the prescriptive easement claim was briefed, testified to,
argued, and [was] a component of the view."
6 The judge directed the plaintiffs to file a motion to amend
the complaint to comport with the evidence and in response to
Pepper Grove's other arguments, indicated that the plaintiffs
should submit a new plan showing a four-foot wide easement to
Accord Pond, not the ten-foot wide easement shown on the
proposed plan, and also ordered other revisions to the proposed
plan. Ultimately, the judge allowed the motion to file a second
amended complaint to conform to the evidence and approved the
modified proposed plan after Pepper Grove declined to hire a
surveyor to contest its accuracy. The judge denied Pepper
Grove's motion to amend the judgment or, alternatively, for a
new trial.3
Discussion. 1. The motion to amend the complaint to
conform to the evidence. Pepper Grove's principal argument is
that the plaintiffs' complaints did not include a count for a
prescriptive easement over the northerly trail and the judge
erred in allowing the plaintiffs to add such a claim after
trial. Although we agree that the original pleadings did not
contain a claim for a prescriptive easement over the northerly
trail, we discern no abuse of discretion in the judge's decision
3 Although Pepper Grove's notice of appeal includes an appeal from the order denying its postjudgment motion, it makes no separate argument on appeal as to that order and we do not address it further.
7 to allow the motion to conform to the evidence. See St. Clair
v. Trustees of Boston Univ., 25 Mass. App. Ct. 662, 669 (1988)
(ruling on motion to amend complaint to conform to proof lies
within sound discretion of trial judge). "Even after trial, and
even in the face of opposition at trial, a judge has authority
to allow a motion to amend a complaint to conform to the proof,
and there is a bias in favor of . . . doing so in the absence of
a showing of serious prejudice to the opposing party." Id.
Here, at the pretrial view, the judge observed all of the
trails, including the northerly trail. Pepper Grove's opening
statement discussed the trails as one of three distinct areas
the plaintiffs claimed to have acquired, and suggested that the
trails are indistinct and, alternatively, that the paths were
existing when the plaintiffs moved in and "use of an existing
path [could not] satisfy adverse possession under these
conditions."4
Testimony regarding use of the northerly trail was elicited
from the plaintiffs and their older son, and Pepper Grove cross
examined them. Testimony from Emerson revealed that starting in
1998, she cleared the northerly trail, cut back vegetation, and
lined the edges of the path with rocks, creating clear passage
4 Pepper Grove does not pursue this argument on appeal in any meaningful way.
8 to Accord Pond. Indeed, Pepper Grove's brief states "there was
extensive testimony at the trial regarding 'trails' and
'trailheads.'" In addition, the plaintiffs' posttrial
submissions asserted that the plaintiffs had "at minimum
established a prescriptive easement over the [d]isputed [a]rea
including without limitation the network of trails and
trailheads to the pond" (emphasis added). They further asserted
that the plaintiffs had "created and maintained trails to Accord
Pond."
Most telling, perhaps, is that Pepper Grove's posttrial
brief's opening statement described the plaintiffs' claims as
adverse possession and prescriptive easement. The second
sentence reads: "The area claimed on 382 Gardner Street can be
broken down into three conditions; a small strip lawn, forest[,]
and three existing paths." Pepper Grove did not argue in its
posttrial brief that the plaintiffs had not included the paths
in their complaint or that the issue of a prescriptive right
over the paths had not been tried; rather, Pepper Grove made
substantive arguments directed at the elements of the claims.
Among other arguments, it urged that the evidence simply was
insufficient to distinguish a specific path from the rest of the
property and that the plaintiffs' conduct on the paths was
indistinct -- not open and notorious -- and that it did not
9 occur for twenty years and could not provide actual or
constructive notice to the true owner.
We have no difficulty concluding in these circumstances
that "[t]he case was fully and fairly tried upon the real issues
of fact," St. Clair, 25 Mass. App. Ct. at 670, and there was no
abuse of discretion or error in allowing the motion to amend.
Between the view, Pepper Grove's opening, the testimony, and the
posttrial briefing, Pepper Grove was on notice that an easement
by prescription over the trails, and specifically the northerly
trail, was a contested issue. Its posttrial submission
demonstrates that Pepper Grove understood that the plaintiffs
sought rights over the northerly trail -- even if earlier
submissions and testimony could be construed as equivocal on
that issue. Finally, we discern no error in the judge's
reliance, in conjunction with the plaintiffs' testimony, on what
she observed at the view.
2. Adverse possession. Turning to the merits, the judge
properly concluded that the plaintiffs met their burden of
proving adverse possession of the portion of the disputed area
that they had incorporated into their back yard. "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.
10 416, 421 (2003), quoting Kendall v. Selvaggio, 413 Mass. 619,
621–622 (1992). "[W]e accept the judge's findings of fact as
true unless they are clearly erroneous." Kendall, supra at 620.
Particularly relevant here, "[w]here there are two permissible
views of the evidence, the factfinder's choice between them
cannot be clearly erroneous" (citation omitted). Mancini v.
Spagtacular, LLC, 95 Mass. App. Ct. 836, 839 (2019).
As the judge noted, "the [adverse] possessor must use and
enjoy the property continuously for the required period as the
average owner would use it, without the consent of the true
owner" (citation omitted). Ottavia v. Savarese, 338 Mass. 330,
333 (1959). This is true even of land incorporated into a
suburban yard where typical use is often passive. See Miller v.
Abramson, 95 Mass. App. Ct. 828, 834 (2019) (where "the evidence
showed that the [plaintiffs] used the land precisely as the
average owner of similar property would use it in a suburban
neighborhood populated with single-family homes[,] . . . no
error in the judge's conclusion that [the plaintiffs']
relatively passive use of the disputed land was sufficient to
satisfy the elements of adverse possession").
11 Here, the plaintiffs enclosed the area for many years,5
planted and maintained a substantial lawn, trimmed and removed
trees, planted new trees and plants, installed a "water
feature," installed a chicken coop, created a pet cemetery,
created and stored stacked wood piles, and generally used the
property for parties, playing games, and other activities. The
judge was able to view the property and found that most of the
disputed area was "clearly distinguishable from the adjacent
woodlands." Indeed, the judge specifically rejected the adverse
possession claim with regard to two portions of the disputed
area that she concluded were not differentiated from
surrounding, untended woodlands. Her finding that the rest of
the disputed area was different from the surrounding woodlands
was not clearly erroneous. See Talmo v. Zoning Bd. of Appeals
of Framingham, 93 Mass. App. Ct. 626, 629 & n.5 (2018) (no error
where finding based on conflicting oral testimony, photographs
admitted in evidence, and judge's view of locus).
We have said that:
"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
5 While we recognize that the fence did not remain in place for twenty years, the judge found that uses of the areas within the fenced area did persist for twenty years, and we infer that the existence of the fence assisted in defining the area of use.
12 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."
Mancini, 95 Mass. App. Ct. at 842. The judge's finding that the
majority of the disputed area remained under the dominion and
control of the plaintiffs was not clearly erroneous. Talmo, 93
Mass. App. Ct. at 629 & n.5. Forays by a neighbor's dog to play
with the plaintiffs' dog do not negate the long history of the
plaintiffs' control of the area.
It is true that one section of the disputed area contained
"trees of various sizes." Pepper Grove contends that the judge
should have treated this portion as woodlands and, citing Senn
v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 993 (1984),
should have required that it be fenced or cultivated. In the
circumstances here, we agree that there was no error in
declining to consider this area woodlands. The judge
specifically found that the area was "clearly distinguishable"
from the nearby untended woodlands. Our review of the
photographs admitted at trial gives us no reason to question
this finding. Moreover, while we held in Senn, supra, that an
element of adverse possession of woodlands is that the woodland
(a 56.2-acre parcel) be enclosed or reduced to cultivation, we
have clarified that such a rule is
13 "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."
Seas Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct.
838, 848 (2004). We discern no error in the judge's implicit
conclusion that the plaintiffs' use was sufficiently pronounced.
3. Easement by prescription over northerly trail. We also
agree that the judge properly found that the plaintiffs met
their burden of proving they have obtained an easement by
prescription over the northerly trail. "As codified in G. L.
c. 187, § 2, a claimant may be entitled to a prescriptive
easement respecting the land of another if it is shown by clear
proof of a use of the land in a manner that has been (a) open,
(b) notorious, (c) adverse to the owner, and (d) continuous or
uninterrupted over a period of no less than twenty years."
Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43-44 (2007). The
difference from adverse possession is, of course, that there is
no exclusivity requirement for an easement by prescription. Id.
at 44 n.9. Here, the judge took a view and found that the
northerly trail was readily discernable even though it had not
been tended to for over a year due to this litigation. Contrast
id. at 45 (no prescriptive easement where use was not confined
14 to regular or specific path or route). The judge credited the
plaintiffs' testimony that they regularly used and maintained
the northerly trail -- a distinct path -- to walk their dog and
to access the pond for canoeing and fishing, and she credited
testimony that a neighbor observed their regular use. In these
circumstances, there was no error in concluding that the
plaintiffs' use was open, notorious, adverse, and continuous for
over twenty years.6
Judgment affirmed.
Order denying motion to amend judgment or, alternatively, for a new trial affirmed.
By the Court (Blake, C.J., Ditkoff & D'Angelo, JJ.7),
Clerk Entered: January 7, 2025.
6 We discern no due process violation in the posttrial submission of a plan conforming to the judge's decision. Pepper Grove was given the opportunity to have its own surveyor review the plaintiffs' plan and, if the surveyors disagreed as to the location of the easement, the judge indicated she would "consider reopening the evidence to address the issue." Pepper Grove later reported that it did not intend to hire a surveyor to contest the location of the prescriptive easement -- and it was only after receiving that notice that the judge granted the plaintiffs' motion to approve the amended plan and entered judgment.
7 The panelists are listed in order of seniority.