ROBERT A. JOHNSON, THIRD v. ARTHUR HOLBROOK & Another; DIANE JOHNSON, Defendant-In- Counterclaim.

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.

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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.

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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

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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.

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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

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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

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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

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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.

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