Supreme Court
No. 2022-309-Appeal. (WC 18-327)
Merlyn P. O’Keefe et al. :
v. :
: Myrth York et al.
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Myrth York et al. :
Present: Goldberg, Robinson, and Lynch Prata, JJ.
OPINION
Justice Lynch Prata, for the Court. This case came before the Supreme
Court pursuant to an order directing the parties to appear and show cause why the
issues raised in this appeal should not be summarily decided. The plaintiffs
challenge the denial of their request for injunctive relief and their claims for adverse
possession relating to a private road located in South Kingstown, Rhode Island.
After considering the parties’ written and oral submissions and reviewing the record,
we conclude that cause has not been shown and that this case may be decided without
further briefing or argument. For the reasons set forth herein, we affirm the
judgment of the Superior Court.
Facts and Travel
This is a dispute among neighbors about the use and ownership of Larkin Pond
Road (the private road), a private road located off Ministerial Road in South
-1- Kingstown, Rhode Island. The private road was platted in 1980 as part of a
residential compound, known as White Horn Acres. The parties each own an
undivided one-sixth interest in the private road and respectively own the six
residential lots in the residential compound.
The plaintiffs, Merlyn P. O’Keefe and Mary Ellen O’Keefe (collectively
plaintiffs or the O’Keefes), own the residential lot that is farthest from the main road.
The O’Keefes’ property fronts a cul-de-sac at the end of the private road, and they
have resided there since 2000. Their property is next to an undeveloped lot owned
by defendant Myrth York and down the street from a small farm (the James farm)
owned by defendants Robert C. James and Lois A. James. Robert and Lois James’s
son,1 defendant Joshua R. James, and his wife, Jennifer James, also own property on
the private road. They reside on their property (the James dwelling) up the street
from the O’Keefes, along with the remaining defendants—Donald G. Reardon and
Patricia W. Reardon (collectively the Reardons) and John P. Champney and Denise
E. Champney (collectively the Champneys)—who also own, and reside, on
properties up the street from the O’Keefes.
White Horn Acres was originally a single lot before it was subdivided into six
residential lots and one open-space lot in 1981. The residential lots were conveyed
1 The members of the James family will be referenced individually using their first and last names or collectively as “the Jameses” for the sake of clarity. No disrespect is intended.
-2- to the parties subject to certain easements and restrictions. In particular, each
residential lot owner held a one-sixth interest in the private road and held a mutual
perpetual easement in the private road “for all purposes for which streets, roads and
highways are customarily used * * *.” The subdivision plan depicted the “private
road with common ownership” as being thirty feet wide to provide ingress and egress
to each residential lot (the platted road).
The traveled portion of the private road was not, however, intended to span
the full thirty-foot width of the platted road. Instead, the plan depicted the private
road as being twenty feet wide with a five-foot buffer on each side. Accordingly,
the actual, gravel road (the traveled way) does not span the thirty-foot width of the
platted road, and the parties each hold a one-sixth interest not only in the traveled
way, but also in the narrow strips of land on either side of the traveled way. The
discrepancy between the platted road and the traveled way is at the center of this
dispute.
Over the past twenty years, the O’Keefes have observed multiple obstructions
in the platted road. Mr. O’Keefe testified that he observed the following
obstructions: landscaped bushes in front of the Reardons’ property; a white SUV in
front of the James dwelling; a ride-on lawnmower in front of the James dwelling; a
trailer in front of the James dwelling; fence posts to the side of the Champneys’
property; miscellaneous farm equipment—including a ride-on tractor, towing bars,
-3- a boat, and some bathtubs—located in front of the James farm; several cairns in front
of the James farm;2 a gate in front of the James farm; a chifforobe in the middle of
the traveled way;3 a fallen tree across the traveled way; and a bundle of branches
across the traveled way.
Mr. O’Keefe testified that these obstructions “come and go.” Most of the farm
equipment had been removed from the platted road during the course of the lawsuit.
Moreover, only the fallen tree, the branches, and the trailer impeded Mr. O’Keefe’s
ability to ingress and egress through the traveled way. The trailer, however, impeded
road access only if two cars were passing each other. Additionally, the tree fell down
after a severe storm and was cleared by Robert James and Mr. Reardon the same
day.
The O’Keefes have also erected and maintained obstructions in the cul-de-sac
portion of the platted road. Mr. O’Keefe testified that in 2000, when he and his wife
moved in, they did not know that the cul-de-sac portion of the platted road was
commonly owned. As such, the O’Keefes maintained the cul-de-sac’s pea-stone
covering, the shed that preexisted in the cul-de-sac area, and a basketball hoop in the
cul-de-sac between 2001 and 2007. They also installed an electric fence around the
2 A cairn is “a mound of stones erected as a memorial or marker.” Cairn, The American Heritage Dictionary of the English Language 261 (5th ed. 2011). 3 Mr. O’Keefe testified that the chifforobe was a piece of furniture that can be used as a closet.
-4- border of the cul-de-sac to contain their German shepherds. The O’Keefe children
parked their cars in the cul-de-sac between 2003 and 2007. Since at least 2002, the
O’Keefes have maintained the landscaping within the cul-de-sac by planting a star
magnolia, a pachysandra, and sod. Since 2010, they have paid a third party to mow
the grass between the rhododendrons in the cul-de-sac and their home. To prevent
defendants from using the cul-de-sac, Mr. O’Keefe testified that he and his wife kept
their German shepherds in the area, who would bite people and who were generally
“vicious to trespassers.” They also posted invisible-fence signs near the shed in 2002
and no-trespassing signs shortly after moving in.
Despite these efforts, several defendants testified to using the cul-de-sac in the
past ten years. Robert James testified that for the preceding twenty to twenty-five
years, he had gone night running through the cul-de-sac to get to the adjacent turf
field. He further testified that he had crossed through the cul-de-sac on his farm
tractors, in his pickup truck, and on his motorcycle. Joshua James testified that, from
2008, he traveled down to the cul-de-sac once or twice a week on his ATV, his
bicycle, his tractor, or in his or his wife’s vehicle. Jennifer James testified that she
sometimes ended her runs in the cul-de-sac. She did this on a semi-regular basis,
about once a month, since 2008. The Champneys testified that they occasionally ran
down to the cul-de-sac or drove down to the cul-de-sac since they moved in, in 2012.
-5- None of the defendants were ever told by the O’Keefes that they were not
allowed in the cul-de-sac. They were further undeterred by the German shepherds.
While Robert James was aware that the dogs would bite intruders, he and the other
defendants testified that they never had any issues with the dogs.
On October 16, 2018, plaintiffs filed an amended complaint against the
Reardons, the Jameses, Ms. York, and the Champneys (collectively defendants).
The plaintiffs proceeded on four counts: count one for a permanent injunction
barring the Jameses’ trespass and commanding their maintenance of the private road;
count two for a permanent injunction barring the Reardons’ trespass and
commanding their maintenance of the private road; count six for adverse possession
of the land within the cul-de-sac occupied by the structures and features constructed
by plaintiffs; and count seven for adverse possession of the entire cul-de-sac.4
Between April 12 and April 13, 2021, the action proceeded to a nonjury trial at which
the court heard testimony from Mr. O’Keefe, defendants, and Charee Jackson, an
engineer with surveying experience. Thereafter, the parties filed post-trial
memoranda and the trial justice issued a written decision.
4 The plaintiffs did not press their other claims at trial and unambiguously waived “[a]ll other claims set forth in the amended complaint” i.e., count three for a declaratory judgment; count four for reimbursement for maintenance of the private road; and count five for permanent injunctive relief commanding defendants to relocate all components of the private road.
-6- The trial justice made findings of fact and assessed the credibility of the
evidence. She articulated the standard for granting preliminary injunctive relief,
noting that the court was required to consider whether plaintiffs were reasonably
likely to succeed on the merits, would suffer irreparable harm, had to balance the
equities, and assess whether granting the injunction would preserve the status quo.
The trial justice found that plaintiffs had not shown a likelihood of success on the
merits because a cotenant may become a trespasser only by ousting their cotenants,
and they failed to demonstrate that defendants’ obstructions were so unreasonable
as to effectively oust plaintiffs from the platted road.
The trial justice found that plaintiffs had failed to establish that they would
suffer irreparable harm because most of the obstructions had been removed from the
platted road.5 She determined that the balance of the equities did not favor injunctive
relief because there was no evidence that plaintiffs would suffer hardship, but there
was evidence that defendants would suffer if forced to undertake additional road
maintenance. Further, she determined that injunctive relief would not preserve the
status quo because granting injunctive relief would disrupt the effective system that
defendants had already instituted for maintenance. Having evaluated the relevant
5 While plaintiffs initially sought both preliminary and permanent injunctive relief, at trial they only proceeded on their request for a permanent injunction and waived all other claims set forth in their amended complaint.
-7- factors, the trial justice denied plaintiffs’ request for issuance of a permanent
injunction under counts one and two of the amended complaint.
Thereafter, the court addressed plaintiffs’ adverse-possession claims. The
trial justice emphasized that there is a heightened burden for a plaintiff to acquire
property by adverse possession over a cotenant. Therefore, because plaintiffs had
failed to establish by strict proof that they effectively excluded defendants from
using and enjoying the private road as cotenants, the trial justice found that plaintiffs’
claims failed as a matter of law. Judgment subsequently entered in favor of
defendants on all of plaintiffs’ remaining claims.6 The plaintiffs filed the present
appeal.7
Standard of Review
“This Court accords ‘great deference to the findings of fact of a trial justice
sitting without a jury, and will disturb such findings only when the justice
misconceives or overlooks material evidence or otherwise is clearly wrong.’” Athena
Providence Place v. Pare, 262 A.3d 679, 681 (R.I. 2021) (quoting Whittemore v.
Thompson, 139 A.3d 530, 540 (R.I. 2016)). “A judgment in a nonjury case will be
6 The trial justice also addressed and denied Ms. York’s crossclaim and requests for relief, however, she did not appeal those decisions, and she has not participated in the present appeal. 7 Although plaintiffs filed their notice of appeal prior to entry of the final judgment, we treat a premature appeal as if it had been timely filed. See Murray v. Jones, 250 A.3d 562, 564 n.2 (R.I. 2021) (holding that premature notice of appeal valid where final order later entered).
-8- reversed on appeal when it can be shown that the trial justice misapplied the law.”
Id. (brackets omitted) (quoting E.W. Burman, Inc. v. Bradford Dyeing Association,
Inc., 220 A.3d 745, 753 (R.I. 2019)).
Likewise, “[w]hen reviewing the grant or denial of a permanent injunction,
[this Court] will reverse the lower court on appeal only when it can be shown that
the trial justice misapplied the law, misconceived or overlooked material evidence
or made factual findings that were clearly wrong.” Martin v. Wilson, 246 A.3d 916,
923 (R.I. 2021) (quoting JHRW, LLC v. Seaport Studios, Inc., 212 A.3d 168, 175
(R.I. 2019)). “The issuance and measure of injunctive relief rest in the sound
discretion of the trial justice.” Id. at 923-24 (quoting Cullen v. Tarini, 15 A.3d 968,
981 (R.I. 2011)). “On review, the decision of the trial court made in the exercise of
a discretionary power should not be disturbed unless it clearly appears that such
discretion has been improperly exercised or that there has been an abuse thereof.”
Id. at 924 (quoting Cullen, 15 A.3d at 981).
Discussion
On appeal, plaintiffs challenge the denial of their request for injunctive relief.
Specifically, they argue that the trial justice erred in her application of an injunctive
analysis to their trespass claims because they were effectively ousted by defendants’
obstructions. They maintain that the trial justice concluded in error that the
trespasses by the Reardons and the Jameses were abated. According to plaintiffs,
-9- Robert James removed the obstructions in the commonly held road only in response
to the filing of the lawsuit. The plaintiffs take issue with the lower court’s analysis
of the preservation of the status quo, because without an injunction, defendants are
“free to expand their obstructions * * *.” In response, defendants maintain that the
trial justice’s findings should not be disturbed because plaintiffs did not present
credible evidence of trespass or obstructions in the private road. We agree.
It is well settled that the “party seeking injunctive relief must demonstrate that
it stands to suffer some irreparable harm that is presently threatened or imminent and
for which no adequate legal remedy exists to restore that plaintiff to its rightful
position.” Hebert v. City of Woonsocket by and through Baldelli-Hunt, 213 A.3d
1065, 1077 (R.I. 2019) (quoting Nye v. Brousseau, 992 A.2d 1002, 1010 (R.I.
2010)). “One of the most common illustrations [of irreparable harm] is that of a
continuing trespass interfering with an interest in property.” R.I. Turnpike & Bridge
Authority v. Cohen, 433 A.2d 179, 182 (R.I. 1981). Therefore, “we have generally
held that the appropriate remedy for a continuing trespass is injunctive relief.” Rose
Nulman Park Foundation ex rel. Nulman v. Four Twenty Corp., 93 A.3d 25, 29 (R.I.
2014); see also City of Providence v. Doe, 21 A.3d 315, 319 (R.I. 2011) (noting the
different standard for granting injunctive relief in a continuing trespass case).
“[T]his general rule is not absolute and * * * in exceptional cases, a court may, in its
- 10 - discretion, decline to follow it where the injunctive relief would operate oppressively
and inequitably.” Rose Nulman Park Foundation, 93 A.3d at 29.
“[O]ne cotenant by an entry upon the common property does not ipso facto
become a trespasser.” Buchanan v. Jencks, 38 R.I. 443, 446, 96 A. 307, 309 (1916).
Cotenants may “make any reasonable use of the land held, so long as it does not
operate to exclude the other tenants from enjoying their equal privileges.”
Manchester v. Pereira, 926 A.2d 1005, 1013 (R.I. 2007) (quoting Silvia v. Helger,
75 R.I. 397, 399, 67 A.2d 27, 28 (1949)). Therefore, to be liable for trespass, the
cotenant must commit an ouster or destroy the commonly held property. See
Buchanan, 38 R.I. at 446, 96 A. at 309. When a cotenant’s trespass is continuing, it
“wrongfully interferes with the legal rights of the owner, and in the usual case those
rights cannot be adequately protected except by an injunction which will eliminate
the trespass.” See Santilli v. Morelli, 102 R.I. 333, 338, 230 A.2d 860, 863 (1967)
(quoting Ferrone v. Rossi, 42 N.E.2d 564, 566 (Mass. 1942)).
The trial justice found that there was no evidence presented that defendants
ousted plaintiffs from the private road. Rather, the record reflects that the parties
can make use of the private road and that defendants were willing to remove
obstructions that could interfere with their cotenants’ rights. The plaintiffs’
argument that the obstructions in the platted road were alone sufficient to show
continuing trespass ignores the fact that the platted road was held in common by
- 11 - plaintiffs and defendants. Accordingly, the trial justice did not misapply the law,
misconstrue the evidence, or clearly err in denying plaintiff’s request for injunctive
relief because there was no evidence that defendants’ obstructions excluded
plaintiffs from enjoying their equal privileges in the platted road. See Buchanan, 38
R.I. at 446, 96 A. at 309; Manchester, 926 A.2d at 1013.
The plaintiffs also take issue with the trial justice’s use of the preliminary
injunction factors when deciding whether to grant their request for a permanent
injunction. Although the trial justice articulated the standard for a preliminary
injunction as opposed to evaluating the propriety of injunctive relief in a continuing
trespass case, she ultimately found that there was no prima facie evidence of a
continuing trespass. See, e.g., Rose Nulman Park Foundation, 93 A.3d at 29-30
(articulating the general rule and the exceptions). The trial justice balanced the
equities and found that the alleged encroachments did not substantially interfere with
plaintiffs’ use of the platted road and that granting injunctive relief would cause
considerable hardship to defendants. Id.; see also Paolino v. Ferreira, 153 A.3d 505,
515-16 (R.I. 2017) (finding that the trial justice did not err in balancing the equities
in a continuing trespass case when there were exceptional circumstances that merited
the withholding of coercive relief). Therefore, we discern no error.
With respect to their claims of adverse possession, plaintiffs assert that they
proved the elements to support their claims related to the cul-de-sac and that the trial
- 12 - justice’s decision was in error. For their part, defendants contend that the findings
related to adverse possession were also well-supported, and they ask this Court to
affirm the denial of their claims.
We have held that “[a] party may acquire land pursuant to the doctrine of
adverse possession ‘when the elements identified in the General Assembly’s
codification of this method of acquisition are met.’” Union Cemetery Burial Society
of North Smithfield v. Foisy, 292 A.3d 1205, 1214 (R.I. 2023) (quoting Clark v.
Buttonwoods Beach Association, 226 A.3d 683, 690 (R.I. 2020)). “[A] claimant
must prove actual, open, notorious, hostile, continuous, and exclusive use of [the]
property under a claim of right for at least a period of ten years.”8 Id. (quoting Clark,
8 General Laws 1956 § 34-7-1 provides:
“Where any person or persons, or others from whom he, she, or they derive their title, either by themselves, tenants or lessees, shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during that time, claiming the same as his, her or their proper, sole and rightful estate in fee simple, the actual seisin and possession shall be allowed to give and make a good and rightful title to the person or persons, their heirs and assigns forever; and any plaintiff suing for the recovery of any such lands may rely upon the possession as conclusive title thereto, and this chapter being pleaded in bar to any action that shall be brought for the lands, tenements or hereditaments, and the actual seisin and possession being duly proved, shall be allowed to be good, valid and effectual in law for barring the action.”
- 13 - 226 A.3d at 690). “The party asserting title by adverse possession ‘must establish
the required elements by strict proof, that is, proof by clear and convincing
evidence.’” Id. (quoting Clark, 226 A.3d at 690-91).
Ordinarily, when considering the open and notorious elements, we “inquire[]
whether the party claiming ownership by adverse possession used the property in a
manner consistent with how owners of similar property would use such land and
whether these uses were inclined to attract attention sufficient to place the world on
constructive notice.” Union Cemetery Burial Society, 292 A.3d at 1215 (quoting
Clark, 226 A.3d at 691). However, stronger evidence of notice is required to prove
adverse possession against a cotenant. See Gammons v. Caswell, 447 A.2d 361, 367-
68 (R.I. 1982); Spangler v. Schaus, 106 R.I. 795, 805, 264 A.2d 161, 166 (1970).
“One who claims title by adverse possession as against a cotenant must demonstrate,
by clear and convincing evidence, acts of possession that are ‘not only inconsistent
with but in exclusion of the continuing rights of the other cotenants.’” M & B Realty,
Inc. v. Duval, 767 A.2d 60, 65 (R.I. 2001) (quoting Spangler, 106 R.I. at 805, 264
A.2d at 166).
In this case, plaintiffs did not provide notice to defendants of their claim
regarding the cul-de-sac. The defendants were never told by plaintiffs that they
could not use the cul-de-sac, nor did they have any issues when they did pass
through. In addition, plaintiffs’ dogs were rarely seen outside, and defendants did
- 14 - not experience any difficulty traveling through the area due to their presence. The
testimony and evidence on the record shows that defendants regularly used the cul-
de-sac and believed it was their right to do so. For example, Robert James testified
that he frequently ran through the area during his night runs, and also drove through
it with his pickup truck, farm equipment, and motorcycle. Moreover, he was not
deterred by the dogs and found it relatively easy to maneuver around the area.
Likewise, Jennifer James regularly walked, ran, or drove through the cul-de-sac.
The trial justice was unpersuaded that defendants were ousted from the area, and her
findings were amply supported by the record. We find no error in the trial justice’s
decision to deny plaintiffs’ claims for adverse possession related to the cul-de-sac.
Conclusion
For the reasons set forth in this opinion, the judgment of the Superior Court is
affirmed. The papers may be remanded to the Superior Court.
Chief Justice Suttell and Justice Long did not participate.
- 15 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Merlyn P. O'Keefe et al. v. Myrth York et al.
No. 2022-309-Appeal. Case Number (WC 18-327)
Date Opinion Filed February 22, 2024
Justices Goldberg, Robinson, and Lynch Prata, JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Washington County Superior Court
Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter
For Plaintiffs:
Merlyn P. O’Keefe, Esq. Attorney(s) on Appeal For Defendants:
William R. Landry, Esq.
SU-CMS-02A (revised November 2022)