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
24-P-479
ROBERT A. JOHNSON, THIRD
vs.
ARTHUR HOLBROOK & another;1 DIANE JOHNSON, defendant-in- counterclaim.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties own adjacent properties in Uxbridge. The
plaintiff, Robert A. Johnson, III, brought an action alleging
trespass by the defendants, Arthur and Lisa Holbrook, on a
portion of his land. The defendants counterclaimed against the
plaintiff and his wife, Diane Johnson, asserting title to that
area by adverse possession.2 After a bench trial in the Superior
Court, which included a view of the disputed land, a judge
1 Lisa Holbrook.
2Robert and Diane Johnson were named as defendants-in- counterclaim. awarded the defendants title by adverse possession.3 The
plaintiff and his wife appeal, maintaining the judge's findings
were clearly erroneous. We affirm.
Background. We recount the essential facts as found by the
judge. The disputed land includes (1) a section of the
plaintiff's property adjacent to the defendants' driveway, which
extends the driveway from the defendants' property onto the
plaintiff's land (turnaround); and (2) a grass strip of land
behind the turnaround up to the plaintiff's back property line.
Although the disputed land appeared to "the naked eye" to be on
the defendants' property, the parties knew and had discussed,
shortly after the defendants purchased their property in October
of 1994, that the now-disputed area was the plaintiff's
property.
Since the plaintiff bought his property in 1978, the
previous owners of the defendants' lot had used the turnaround
to facilitate turning around in their driveway by permission of
the plaintiff. This use continued, by mutual agreement, and
with full awareness that the plaintiff owned the turnaround
area, after the defendants bought their property in 1994. The
plaintiff testified that permission to use the turnaround was
3 We treat the judge's order for entry of final judgment as the final judgment in this matter.
2 limited to "parking and turning," and did not include permission
to use the area behind the turnaround.4
From the time they moved in, the defendants used the
disputed land -- both the turnaround area and the area behind
it, up to the back property line -- as if it were their
property. Among other uses, they placed a temporary basketball
hoop in the turnaround and their children played there. They
stored large items and repaired vehicles there.
The defendants also mowed and maintained the area behind
the turnaround; installed a small wooden fence; set up a
doghouse, then later a dog kennel; and buried their pets there.
The defendants made several other substantial changes to this
area.
The magnitude and consistency of the defendants' use was
such that the plaintiff would have been able to see it from his
property. The encroachments on the area behind the turnaround
were visible from the defendants' property, where the plaintiff
had been on several occasions.
In September 2017, the defendants repaved their driveway,
including repaving the turnaround on the plaintiff's property.
4 Although the judge did not find specifically that the plaintiff had given permission for parking, the plaintiff so testified, and the judge generally credited his testimony regarding the scope of the permission he gave.
3 The paving expanded the outline of the turnaround and
encompassed the area that the defendants had been using since
1995.
The plaintiff confronted the defendant about repaving
without his permission. The plaintiff then hired a surveyor,
establishing the boundary lines and confirming that the repaved
turnaround and the encroachments behind it were both located on
the plaintiff's property. This suit followed.
Discussion. 1. Standard of review. "[W]e accept the
judge's findings of fact as true unless they are clearly
erroneous." Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).
"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). "So
long as the judge's account is plausible in light of the entire
record, an appellate court should decline to reverse it"
(citation omitted). Brandao v. DoCanto, 80 Mass. App. Ct. 151,
154 (2011). "On the other hand, to ensure that the ultimate
findings and conclusions are consistent with the law, we
scrutinize without deference the legal standard which the judge
applied to the facts." Kendall, supra at 621.
4 2. Adverse possession. The plaintiff and his wife (i.e.,
the defendants-in-counterclaim) challenge (1) the judge's ruling
that the use of the turnaround area was adverse because it
exceeded the limited permission given by the plaintiff and
(2) the conclusion that the use of the area behind the
turnaround was open and notorious.
a. Adverse use of turnaround area. "Title can be acquired
by adverse possession only upon proof of 'nonpermissive use
which is actual, open, notorious, exclusive and adverse for
twenty years.'" Mancini v. Spagtacular, LLC, 95 Mass. App. Ct.
836, 841 (2019), quoting Lawrence v. Concord, 439 Mass. 416, 421
(2003). "The burden of proving adverse possession is on the
person claiming title thereby and extends to all of the
necessary elements of such possession" (quotation and citation
omitted). Lawrence, supra at 421. "Whether, in a particular
case, these elements are sufficiently shown is essentially a
question of fact." Kershaw v. Zecchini, 342 Mass. 318, 320
(1961).
"The essence of nonpermissive use is lack of consent from
the true owner." Totman v. Malloy, 431 Mass. 143, 145 (2000).
"Whether a use is nonpermissive depends on many circumstances,
including the character of the land, who benefited from the use
of the land, the way the land was held and maintained, and the
5 nature of the individual relationship between the parties
claiming ownership." Id. "The acts constituting adverse
possession must be inconsistent with the owner's rights;
otherwise, they would not place the owner on notice of the
competing claim of right." Sea Pines Condominium III Ass'n v.
Steffens, 61 Mass. App. Ct. 838, 847 (2004).
Here, the judge found that the plaintiff had given limited
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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
24-P-479
ROBERT A. JOHNSON, THIRD
vs.
ARTHUR HOLBROOK & another;1 DIANE JOHNSON, defendant-in- counterclaim.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties own adjacent properties in Uxbridge. The
plaintiff, Robert A. Johnson, III, brought an action alleging
trespass by the defendants, Arthur and Lisa Holbrook, on a
portion of his land. The defendants counterclaimed against the
plaintiff and his wife, Diane Johnson, asserting title to that
area by adverse possession.2 After a bench trial in the Superior
Court, which included a view of the disputed land, a judge
1 Lisa Holbrook.
2Robert and Diane Johnson were named as defendants-in- counterclaim. awarded the defendants title by adverse possession.3 The
plaintiff and his wife appeal, maintaining the judge's findings
were clearly erroneous. We affirm.
Background. We recount the essential facts as found by the
judge. The disputed land includes (1) a section of the
plaintiff's property adjacent to the defendants' driveway, which
extends the driveway from the defendants' property onto the
plaintiff's land (turnaround); and (2) a grass strip of land
behind the turnaround up to the plaintiff's back property line.
Although the disputed land appeared to "the naked eye" to be on
the defendants' property, the parties knew and had discussed,
shortly after the defendants purchased their property in October
of 1994, that the now-disputed area was the plaintiff's
property.
Since the plaintiff bought his property in 1978, the
previous owners of the defendants' lot had used the turnaround
to facilitate turning around in their driveway by permission of
the plaintiff. This use continued, by mutual agreement, and
with full awareness that the plaintiff owned the turnaround
area, after the defendants bought their property in 1994. The
plaintiff testified that permission to use the turnaround was
3 We treat the judge's order for entry of final judgment as the final judgment in this matter.
2 limited to "parking and turning," and did not include permission
to use the area behind the turnaround.4
From the time they moved in, the defendants used the
disputed land -- both the turnaround area and the area behind
it, up to the back property line -- as if it were their
property. Among other uses, they placed a temporary basketball
hoop in the turnaround and their children played there. They
stored large items and repaired vehicles there.
The defendants also mowed and maintained the area behind
the turnaround; installed a small wooden fence; set up a
doghouse, then later a dog kennel; and buried their pets there.
The defendants made several other substantial changes to this
area.
The magnitude and consistency of the defendants' use was
such that the plaintiff would have been able to see it from his
property. The encroachments on the area behind the turnaround
were visible from the defendants' property, where the plaintiff
had been on several occasions.
In September 2017, the defendants repaved their driveway,
including repaving the turnaround on the plaintiff's property.
4 Although the judge did not find specifically that the plaintiff had given permission for parking, the plaintiff so testified, and the judge generally credited his testimony regarding the scope of the permission he gave.
3 The paving expanded the outline of the turnaround and
encompassed the area that the defendants had been using since
1995.
The plaintiff confronted the defendant about repaving
without his permission. The plaintiff then hired a surveyor,
establishing the boundary lines and confirming that the repaved
turnaround and the encroachments behind it were both located on
the plaintiff's property. This suit followed.
Discussion. 1. Standard of review. "[W]e accept the
judge's findings of fact as true unless they are clearly
erroneous." Kendall v. Selvaggio, 413 Mass. 619, 620 (1992).
"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). "So
long as the judge's account is plausible in light of the entire
record, an appellate court should decline to reverse it"
(citation omitted). Brandao v. DoCanto, 80 Mass. App. Ct. 151,
154 (2011). "On the other hand, to ensure that the ultimate
findings and conclusions are consistent with the law, we
scrutinize without deference the legal standard which the judge
applied to the facts." Kendall, supra at 621.
4 2. Adverse possession. The plaintiff and his wife (i.e.,
the defendants-in-counterclaim) challenge (1) the judge's ruling
that the use of the turnaround area was adverse because it
exceeded the limited permission given by the plaintiff and
(2) the conclusion that the use of the area behind the
turnaround was open and notorious.
a. Adverse use of turnaround area. "Title can be acquired
by adverse possession only upon proof of 'nonpermissive use
which is actual, open, notorious, exclusive and adverse for
twenty years.'" Mancini v. Spagtacular, LLC, 95 Mass. App. Ct.
836, 841 (2019), quoting Lawrence v. Concord, 439 Mass. 416, 421
(2003). "The burden of proving adverse possession is on the
person claiming title thereby and extends to all of the
necessary elements of such possession" (quotation and citation
omitted). Lawrence, supra at 421. "Whether, in a particular
case, these elements are sufficiently shown is essentially a
question of fact." Kershaw v. Zecchini, 342 Mass. 318, 320
(1961).
"The essence of nonpermissive use is lack of consent from
the true owner." Totman v. Malloy, 431 Mass. 143, 145 (2000).
"Whether a use is nonpermissive depends on many circumstances,
including the character of the land, who benefited from the use
of the land, the way the land was held and maintained, and the
5 nature of the individual relationship between the parties
claiming ownership." Id. "The acts constituting adverse
possession must be inconsistent with the owner's rights;
otherwise, they would not place the owner on notice of the
competing claim of right." Sea Pines Condominium III Ass'n v.
Steffens, 61 Mass. App. Ct. 838, 847 (2004).
Here, the judge found that the plaintiff had given limited
permission to use the turnaround and ruled the defendants' use
was adverse because it exceeded the scope of that permission.
On this record, we cannot say that these findings are clearly
erroneous.
The plaintiff testified that (1) the original permission
with the defendants' predecessors in title was for "parking and
turning," to facilitate convenient access to the roadway; (2) he
consented to extend the agreement to the defendants "as long as
it [was] not abused"; and (3) he did not give the defendants
permission to set up a basketball hoop, nor to place horse
trailers or other "non-vehicular" objects on the turnaround.
When the plaintiff took issue with the defendants' repaving of
the turnaround, he objected to this excessive use, saying, "it's
not turning." This testimony supported the finding that the
plaintiff gave only limited permission to use the turnaround.
6 The judge credited the plaintiff's description of the
contours of his limited permission. In stark contrast to that
limited permission, and as recounted in more detail above, the
evidence supported the judge's finding that the defendants used
"the turnaround area as property that they owned in full,"
exceeding the scope of the plaintiff's limited permission. See
Mancini, 95 Mass. App. Ct. at 842 (installation of basketball
hoop and maintenance of surrounding area established adverse
possession); Brandao, 80 Mass. App. Ct. at 157 ("working on and
maneuvering cars, outdoor recreation, playing with children" are
land uses "customarily associated with an owner's ordinary use
of side and rear yards"); MacDonald v. McGillvary, 35 Mass. App.
Ct. 902, 904 (1993) (adverse possession where claimant's use
"consisted of little more than maintenance of a suburban lawn").
By acquiescing in the defendants' conduct, the plaintiff
did not permit them the broader use of the turnaround. See
Rotman v. White, 74 Mass. App. Ct. 586, 590 (2009)
("acquiescence, or tacit agreement, by an owner, to the adverse
use of his property is not the same as granting permission").
"There was no recognition by the [defendants] of authority in
the [plaintiff] to prevent or permit continuance of the use. It
is the nonrecognition of such authority at the time a use is
made which determines whether it is adverse; and permissive use
7 is inconsistent with adverse use" (citation omitted). Shaw v.
Solari, 8 Mass. App. Ct. 151, 156 (1979), quoting Ryan v.
Stavros, 348 Mass. 251, 263 (1964). We discern no error.
b. Open and notorious use. The plaintiff and his wife
also maintain that the judge erred in finding the defendants'
use of the area behind the turnaround to be open and notorious.
"To be 'open,' a use must be 'without attempted concealment.'"
Mancini, 95 Mass. App. Ct. at 845, quoting Boothroyd v. Bogartz,
68 Mass. App. Ct. 40, 44 (2007). "To be 'notorious,' a use must
be sufficiently pronounced so as to be made known, directly or
indirectly, to the landowner if he or she maintained a
reasonable degree of supervision over the property" (quotation
and citation omitted). Mancini, supra. "The purpose of the
requirement of 'open and notorious' use is to place the true
owner 'on notice of the hostile activity of the possession so
that he, the owner, may have an opportunity to take steps to
vindicate his rights by legal action.'" Lawrence, 439 Mass. at
421, quoting Ottavia v. Savarese, 338 Mass. 330, 333 (1959).
After viewing the property, the judge found that the
defendants' encroachments behind the turnaround were "open and
obvious to anyone observing the property." The photographs and
video recording in evidence support this conclusion. The
plaintiff's assertions that he did not see the encroachments
8 when he visited, or could not see them through the trees from
his side yard, do not render the judge's finding erroneous. See
Lawrence, 439 Mass. at 422 (open and notorious use places "the
true owner on constructive notice of such use, and it is
immaterial whether the true owner actually learns of that use or
not"). The judge could conclude that "a reasonable degree of
supervision," Mancini, 95 Mass. App. Ct. at 845, quoting
Boothroyd, 68 Mass. App. Ct. at 44, would have included the
plaintiff's walking between or around his trees to keep informed
of what was happening on that part of his property lying beyond
the trees. We discern no error in the judge's finding that the
use was open and notorious. See Mancini, supra (construction of
basketball court and maintenance of disputed area was open and
notorious). See also Foot v. Bauman, 333 Mass. 214, 216–217
(1955) (several visible manholes, plus regular entry onto land
for inspection and maintenance, rendered underground sewer line
sufficiently open and notorious); Poignard v. Smith, 6 Pick.
172, 178 (1828) ("building a fence around the land or erecting
9 buildings upon it" are acts of notoriety that give "notice to
all the world").
Judgment affirmed.
By the Court (Sacks, Hershfang & Tan, JJ.5),
Clerk
Entered: July 18, 2025.
5 The panelists are listed in order of seniority.