JOHN LEWIECKI & Another v. PEPPER GROVE, LLC.

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.

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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).

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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

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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."

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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.

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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.

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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

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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.

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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").

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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.

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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

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"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

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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.

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