Kafker
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After trial, which included a view, a judge of the Land Court found and ruled that the plaintiff had only a deeded easement over the locus, a narrow strip of land abutting and providing access to the plaintiff's property in Taunton. The land in question, the locus, is part of a larger parcel over which the plaintiff has a deeded easement. The plaintiff has maintained a driveway and a small landscaped area with flowers and architectural lighting on the locus. There is also a grouping of large stones in a line, more or less marking off the locus from the rest of the easement area. The judge found and ruled that none of the acts of the plaintiff with the stones and landscaping would have put the owner of the locus on notice that the plaintiff was asserting a claim of ownership of the fee interest in the locus. In addition, the plaintiff's use and occupancy was not shown to have been exclusive. Any adverse possession claim thus failed. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323, 326 (1968). Accordingly, in the judgment, issued on November 30, 2010, the court ordered that '[t]he plaintiff may continue his use and enjoyment of the Property in accordance with the broad terms of the easement but must do so in such a way as not to interfere with the rights of the owners of the fee in the property.'
On appeal, the plaintiff claims that he is entitled to maintain the line of stones in their present position. His prayer for relief in this appeal asks that a permanent injunction enter enjoining the defendants from interfering with the plaintiff's stones and landscaped area. On December 22, 2010, after failing to win the adverse possession claim, the plaintiff served on the defendants a motion styled as a motion to alter or amend the judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), requesting that the judgment include the injunctive relief originally requested in his complaint. In his motion, the plaintiff stated:
'5. If the judgment is let stand in its present form, it is forseeable and most likely that
'A. Plaintiff will claim that he is entitled to maintain the stone and the garden as his right to 'continue his use and enjoyment of the Property in accordance with the broad terms of the easement.'
'B. Defendant will claim that he is entitled to use self-help to remove the stones and the garden as they 'interfere with the rights of the owners of the fee in the property,' even though he did concede at trial that they do not block enough of the right of way to prevent access by his vehicles.
'6. It would be a proper and prudent exercise of the court's discretion to avoid the prospect of a future lawsuit between the parties -- not only as a service to the parties but also as an economical use of judicial resources.
'8 [sic]. Accordingly, plaintiff submits that the court ought to alter or amend the judgment so as to make explicitly clear whether the plaintiff is or is not entitled to continue to maintain the line of stones and the garden in their present locations, and whether the defendant is or is not entitled to use self-help to remove the same over plaintiff's objections.'
The judge denied that motion as untimely, as the motion was served on the defendants well past the ten-day limit provided for in rule 59(e). We discern no error in that denial. Nor did the judge err in determining that the plaintiff had not established ownership of the fee interest in the locus through adverse possession.
Finally, we note that in his order denying the plaintiff's motion to alter or amend judgment, the judge reiterated that 'the Plaintiff's rock line and garden are subject to whether their presence interferes with the Defendants' use of their property. . . . The parties are . . . discouraged from taking any measures, direct or indirect, to exercise self-help.' In short, if the plaintiff believes that, as circumstances unfold, his rights have been violated, he may return to the courts for adjudication.
Judgment affirmed.
Order denying motion to alter or amend judgment affirmed.
By the Court (Kafker, Cohen & Katzmann, JJ.),
Of the Land O'Cotley Trust.