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18-P-593 Appeals Court

ANGELA CIAMARRA MANCINI1 vs. SPAGTACULAR, LLC.

No. 18-P-593.

Worcester. January 11, 2019. - August 29, 2019.

Present: Massing, Desmond, & McDonough, JJ.

Real Property, Adverse possession, Boundary. Practice, Civil, 

Findings by judge.

Civil action commenced in the Superior Court Department on 

June 5, 2014. 

The case was heard by Richard T. Tucker, J. 

Barry A. Bachrach for the defendant.

Damien D. Berthiaume for the plaintiff.

McDONOUGH, J. After a jury-waived trial, a Superior Court 

judge declared that the plaintiff has acquired by adverse 

possession two separate areas of land contiguous to her property 

in Shrewsbury. The defendant, who holds record title to the 

disputed land, argues clear error in the judge's factual 

 

1 Formerly known as Angela Ciamarra.
2

findings and legal error in his application of adverse 

possession doctrine. We affirm.

Background. The plaintiff, Angela Ciamarra Mancini

(Mancini), first acquired the property known as 110 Oak Street 

in Shrewsbury on June 1, 2000.2 Mancini's property is improved 

with a single-family home. To the east, her lot fronts on Oak 

Street. To the west and south, Mancini's land directly abuts 

undeveloped, wooded land owned by the defendant, Spagtacular, 

LLC (Spagtacular). A survey plan of the properties, trial 

exhibit 5, appears in adapted form in the appendix to this 

opinion.3

As shown in the appendix, two areas functionally 

incorporated into Mancini's yard actually lie beyond her lot 

lines and within the land held (as of record) by Spagtacular. 

We refer to them as the disputed areas. (The exhibit calls each 

area a "Land of Potential Claim.") The larger of the two

disputed areas is situated behind (i.e., to the west of) 

Mancini's house, adjacent to her parcel's northwest corner. 

This is a mowed, grassy area, with no permanent improvements; 

like the judge we will call it the disputed back area. The 

 

2 Mancini acquired title with her first husband; in 2003 the 

couple conveyed the property to Mancini alone.

3 This same exhibit was attached to the judge's memorandum 

of decision.
3

smaller disputed area is located just beyond one of Mancini's 

side lot lines, to the south of her house. This area is largely 

covered by a paved basketball court, with one permanent post, 

backboard, and hoop.4 As the judge did, we will refer to it as

the disputed basketball area.5 

Mancini filed this action on June 5, 2014. Spagtacular 

does not contest that Mancini has established the elements of 

adverse possession as to both disputed areas for the entire time 

she has owned the locus, up until commencement of this action,6 a 

total of fourteen out of the required twenty years. See G. L. 

c. 260, § 21. Accordingly, this appeal focuses on whether 

Mancini has proved adverse possession of the disputed areas by 

her immediate predecessor for the remaining six years, from June

1, 1994 to June 1, 2000. See Luce v. Parsons, 192 Mass. 8, 12

 

4 The paved basketball court straddles the lot line, but its 

larger part extends onto Spagtacular's land. The paved court 

does not cover the entirety of the disputed basketball area. 

There is a perimeter of mowed grass around it.

5 A leach field located primarily on Mancini's land extends 

under the northwest corner of the paved basketball court, and a 

small portion of that leach field is located across the lot line 

on Spagtacular's land. The leach field is of little 

significance, however, because it is entirely underground (and 

thus not visible), and extends into only a small portion of the 

disputed basketball area.

6 Spagtacular agrees that Mancini's possession of the 

disputed areas was interrupted for purposes of the adverse 

possession statute, G. L. c. 260, § 21, on the date this case 

was commenced, even though Spagtacular attempted to make entry

on the disputed back area with a bulldozer prior to that time.
4

(1906) (claimant alleging adverse possession may include 

evidence of predecessors' possession). See also G. L. c. 260, 

§ 22; LaChance v. First Nat'l Bank & Trust Co. of Greenfield, 

301 Mass. 488, 489-491 (1938).

Relevant to that inquiry, the judge found the following 

facts after trial (including a view). Prior to Mancini's 

purchase of her property in 2000, it was owned by the Schwab 

family. Mancini's principal witness, Joseph Schwab (Schwab), 

moved into the locus in 1983 with his mother and his two 

brothers, at age sixteen. From 1983 to 2000, "there always 

existed a sharp and delineating tree line that rimmed the 

westerly side and southern portion of" the locus. That tree 

line never changed during the Schwab family's occupation of the 

property. 

The Schwab family treated as their own the entire area 

within the tree line along both the property's southerly and 

westerly lot lines. From 1983 until the sale of the property to 

Mancini in 2000, the Schwab family "maintained, utilized, and 

considered their own the entire area on the western and southern 

sides of their lot as extending to and bounded by the tree line. 

These areas were maintained by, among other things, mowing, 

fertilizing, and on the westerly side, the installation of a 

[thirty-five foot by thirty-five foot] basketball court in 1984 
5

which extends beyond the actual lot line into the [d]isputed 

[b]asketball [a]rea." 

Up until Schwab and his brother left home for college, they 

mowed and maintained the lawn in the disputed basketball area 

(around the perimeter of the paved court) and in the disputed 

back area. After the Schwab brothers left, their mother engaged 

a lawn service company to perform these tasks. During the 

Schwabs' residence at the locus, they never sought nor received 

permission to use the disputed areas. Additionally, the judge 

expressly found the tree line was in the same location at the 

time of trial as it had been when the Schwabs lived at the 

locus.

Discussion. 1. Factual findings. Spagtacular argues that 

the judge committed clear error in his fact findings. See 

Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). In particular,

Spagtacular argues that the evidence at trial was insufficient 

to allow the judge to conclude that the Schwabs' "use and 

maintenance" of the disputed areas "occurred from 1983 through 

the sale of this property to Mancini in 2000." More 

specifically, Spagtacular argues that this finding cannot be 

properly supported by Schwab's testimony because Schwab was not 

living at the property during the critical six years, from 1994

until 2000. Additionally, Spagtacular argues, Schwab's 
6

testimony was not sufficiently detailed to support the judge's

finding. 

A finding is only clearly erroneous, however, when "there 

is no evidence to support it or 'the reviewing court on the 

entire evidence is left with the definite and firm conviction 

that a mistake has been committed.'" Brandao v. DoCanto, 80 

Mass. App. Ct. 151, 154 (2011), quoting Kendall, 413 Mass. at 

620-621. "So long as the judge's account is plausible in light 

of the entire record, an appellate court should decline to 

reverse it." Brandao, supra, quoting Commonwealth v. Carr, 458 

Mass. 295, 303 (2010). Stated another way, "[w]here there are 

two permissible views of the evidence, the factfinder's choice 

between them cannot be clearly erroneous." Brandao, supra at 

155, quoting Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 

501, 510 (1997). 

Here, we readily consider the judge's finding to be 

plausible on the record presented. Schwab testified that the 

thirty-five foot by thirty-five foot paved basketball court was 

installed in 1984. Before he left for college, he, with an 

uncle's help, fertilized and mowed the entire grassy area around 

the perimeter of the basketball court, and mowed (with less 

frequent application of fertilizer) the disputed back area. The 

mowing occurred weekly, or even more frequently, using a ride-on 

mower. Schwab specifically remembered mowing along the edges of 
7

the disputed back area with a hand mower, using the tree line as 

a guide.

By 1990, when Schwab graduated from college and briefly 

moved back home, his mother had hired a man to mow, perform 

other yard maintenance, and plow the driveway. From when Schwab 

again moved out of the family home in 1991 until his mother died 

in August 1999, Schwab visited his mother regularly, 

approximately twice per week. Schwab testified that he knew 

only the first name of the man maintaining the lawn (Paul), but 

he did not know a last name or a company name. When Schwab was 

asked whether he knew what part of the locus the hired man 

maintained, he replied, "Yes -- the lawn. Otherwise it would 

have become overgrown." He later testified that at no point 

between 1983 and 2000 did any part of the yard become overgrown 

or neglected. When asked specifically if it was his 

recollection that the disputed back area was always mowed with 

the rest of the lawn, he answered, "It would be my recollection 

that that was the case. It had to be, if we weren't cutting 

it."

Schwab also testified clearly that the tree line never 

changed from the time he moved in until the property was sold to 

Mancini in 2000. Similarly, he said the basketball court was 

never changed or moved. Finally, Schwab testified that the 
8

basketball court was still usable when the house was sold,

although some of the painted markings had worn off.7

A second witness, Brian Lake, corroborated Schwab's 

testimony in various respects. Lake testified that he either 

lived at or frequently visited the home next door, at 108 Oak 

Street, from 1971 (when he first moved in at six years old) to

the time of trial. Lake expressed familiarity with 110 Oak 

Street and stated that he had no recollection of the disputed 

back area becoming overgrown at any time. As to the tree line,

he said, "I recall it being the same today as it was when we 

moved in."

Spagtacular argues that Schwab's testimony should be 

disregarded as speculative because Schwab said the lawn must 

have been mowed by someone "if we weren't cutting it," because

it otherwise would have become overgrown. This is not, however, 

speculation. It is, instead, a reasonable inference drawn from 

 

7 Between his mother's death and the sale of the property to 

Mancini ten months later, Schwab testified, "we were up there 

all the time, clearing the house, painting, cleaning, removing 

property." "The lawn -- the property was still maintained. The 

lawn was mowed, leaves were collected, the driveway was plowed." 

This work, he said, was performed by the same company his mother 

had been using, and extended to the disputed areas. During the 

time between when his mother died and the sale, Schwab and his 

brother "would sometimes go down there and shoot hoops. . . . 

[L]ike I said, there might have been some chipped paint, and 

maybe a crack or two in the surface, but it was certainly still 

usable."
9

known facts. Schwab concluded that, because the disputed areas 

never became overgrown, and because his mother had hired a man 

to maintain them (an arrangement that continued after his 

mother's death), the disputed areas must, in fact, have been 

maintained. 

Even if Schwab's statements to this effect were 

inadmissible as opinion (a questionable proposition),8 there was 

no objection or motion to strike at the time of the testimony. 

Moreover, the judge was free to independently draw the same 

inference from the facts established by Schwab's testimony, 

regardless of Schwab's own view that the lawn must have been 

mowed. We see no error in the judge's factual finding that the 

Schwabs maintained the disputed areas from 1983 through June 1, 

2000; nor do we see any error in his related findings that the

maintenance was "without interruption" and "continuous."

2. Application of law. Next, we turn to the judge's 

application of the law to the facts found, which we review 

without deference. See Kendall, 413 Mass. at 621 ("the 'clearly 

erroneous' standard of appellate review does not protect 

findings of fact or conclusions based on incorrect legal 

 

8 See Mass. G. Evid. § 701 (2019) (lay witness opinion 

testimony admissible if "rationally based on the witness's 

perception," helpful in determining a fact in issue, and not 

based on scientific, technical, or other specialized knowledge).
10

standards"). Title can be acquired by adverse possession only 

upon proof of "nonpermissive use which is actual, open, 

notorious, exclusive and adverse for twenty years." Lawrence v. 

Concord, 439 Mass. 416, 421 (2003), quoting Kendall, supra at

621-622. Spagtacular makes three arguments as to why the judge 

could not have properly concluded that the Schwabs actually used 

the disputed areas in a way that was sufficiently open and 

notorious.9 

a. Maintenance as actual use. First, Spagtacular asks us 

to distinguish between maintenance of the disputed areas and 

"use" of the disputed areas, on the theory that because no one 

was actually playing on these patches of land during the six 

years preceding June 1, 2000, adverse possession was not shown. 

Spagtacular points out that Schwab's mother was the only person 

living at the property during this time, and she was in poor 

health. As to the basketball court, Spagtacular suggests that 

the presence of the paved court and single post with hoop was 

not sufficient to amount to adverse possession unless someone 

was actually shooting baskets there. Similarly, Spagtacular 

suggests that maintaining a lawn for purely aesthetic reasons 

 

9 To the extent Spagtacular claims Mancini failed to prove 

lawn maintenance was performed regularly enough to satisfy the 

elements of adverse possession, see Pugatch v. Stoloff, 41 Mass. 

App. Ct. 536, 540 (1996), we disagree for the reasons already 

discussed supra. 
11

(as opposed to more active recreation, such as volleyball or

badminton) is not an actual "use" for adverse possession 

purposes. We disagree. 

"The nature and the extent of occupancy required to 

establish a right by adverse possession vary with the character 

of the land, the purposes for which it is adapted, and the uses 

to which it has been put." LaChance, 301 Mass. at 490. The 

requirements of adverse possession are established where the 

changes made on the land constitute "such a control and dominion 

over the premises as to be readily considered acts similar to 

those which are usually and ordinarily associated with 

ownership." Id. at 491. In other words, the adverse possession 

test is about the "degree of control exercised" by the 

possessors. See Shaw v. Solari, 8 Mass. App. Ct. 151, 156 

(1979). See also Sea Pines Condominium III Ass'n v. Steffens, 

61 Mass. App. Ct. 838, 847 (2004) (Sea Pines III) ("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"). Perhaps more 

importantly, the intensity or nature of use required to 

demonstrate the requisite level of control is context-driven:

"The actual use and enjoyment of the property as the 

average owner of similar property would use and enjoy it, 

so that people residing in the neighborhood would be 

justified in regarding the possessor as exercising the 

exclusive dominion and control incident to ownership, 
12

establishes adverse possession in the absence of evidence 

that his possession is under a license or tenancy." 

Shaw, 8 Mass. App. Ct. at 156-157, quoting 3 Am. Law of Property 

§ 15.3, at 765-766 (1974). 

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 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. 

Here, we cannot say the judge erred in finding that 

permanent installation of a paved basketball court and hoop, 

together with regular maintenance of the grass perimeter around 

it, was a sufficient exercise of dominion and control to satisfy 

the actual use requirement. The same is true with respect to 

the regular maintenance of the disputed back area as a lawn. 

See Shaw, 8 Mass. App. Ct. at 157 (determination of adverse 

possession upheld where portion of disputed strip used as 

suburban lawn, possessors "used various portions of the strip 

for various purposes, all as they chose," and "their possession 

of the whole strip was exclusive and indicative of a claim by 
13

them of ownership of the entire locus").10 That Schwab's mother

did not use these areas by actually playing on them during the 

relevant years does not invalidate the judge's conclusion. 

b. Mowing as actual use. Second, Spagtacular makes a 

related argument pertaining only to the grassy parts of the 

 

10 Apart from the question whether basketball was actually 

played on the court from 1994 to 2000, Spagtacular argues that 

the court had become so dilapidated by the date Mancini 

purchased the property that its presence could not qualify as an 

actual use of the land at that time. We need not, however,

consider the legal question of under what circumstances a 

neglected basketball court would cease to qualify as an "actual 

use" because the evidence simply does not support Spagtacular's 

underlying premise that the court was in poor repair. Schwab 

testified that he and his brother shot basketballs on the court 

after his mother died, while they were preparing the house for 

sale. At that time, he said, the court was functional. See 

note 7, supra. Mancini recalled that the condition of the court 

was "quite good" prior to seal coating that was performed in 

2005. "There were no cracks that needed to be filled, the way 

that the driveway had some cracks that needed to be filled." 

Mancini also testified that when she moved into the property she 

replaced the backboard because it was made of particle board and 

disintegrating. There was no evidence, however, that the pole 

holding the backboard was replaced at any time; nor was there 

any evidence to contradict Schwab's testimony that the court was 

usable (and, in fact, recently used) as of the date of the sale 

to Mancini. Spagtacular asked the judge to infer that because 

the listing sheet prepared to market the property did not 

include the basketball court as among the property's positive 

attributes, the court must have been in disrepair. The judge 

declined to make any such finding. In so doing, he may have 

found that the listing sheet was simply insufficient to support

a reasonable inference about the state of repair of the court. 

See Commonwealth v. Netto, 438 Mass. 686, 703 (2003) (inferences 

must be reasonable). Moreover, even if the suggested inference 

was reasonable, the judge as factfinder was free to reject it 

based on his own assessment of the evidence as a whole. See 

Crown v. Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 

225-226 (2014). 
14

disputed areas, asserting that mowing or lawn maintenance is 

simply insufficient to establish adverse possession under 

Massachusetts law and that some more permanent encroachment is 

required. Today, in Miller v. Abramson, 95 Mass. App. Ct. ___ 

(2019), we rejected this same argument. Massachusetts 

jurisprudence does not establish a per se rule that mowing and 

yard maintenance can never be adequate to establish adverse 

possession. See Brandao, 80 Mass. App. Ct. at 157 (adverse 

possession found where among primary activities were 

cultivation, mowing, and weeding); MacDonald v. McGillvary, 35 

Mass. App. Ct. 902, 904 (1993) (adverse possession found where 

use of land "consisted of little more than maintenance of a 

suburban lawn"). See also Shoer v. Daffe, 337 Mass. 420, 423 

(1958) (where possessor "planted [land] to lawn" and surrounded 

it with a hedge, possessor's "use was that ordinarily made only 

by an owner"); LaChance, 301 Mass. at 491 (adverse possession 

established by acts of control and dominion "similar to those 

which are usually and ordinarily associated with ownership").11 

 

11 Spagtacular relies on Peck v. Bigelow, 34 Mass. App. Ct. 

551, 553-554, 556-557 (1993), where activities including mowing 

of a thirty-by-thirty foot area on which the claimant kept 

various furnishings was insufficient to establish "actual" 

possession of the entire lot. Peck, however, does not stand for 

the proposition that mowing and yard maintenance is, in all 

circumstances, insufficient to support an adverse possession 

claim. On the contrary, because the nature and extent of 

occupancy required to establish adverse possession varies with 

the character and adaptation of the land, see LaChance, 301 
15

Moreover, here as in Miller, 95 Mass. App. Ct. at ___, the 

relevant evidence was not limited to mowing of a lawn. The 

judge also correctly found that the mowing occurred inside a 

well-defined vegetative boundary that did not move or change 

during the entirety of the twenty-year period. See id. at ___. 

The existence of the tree line, in stark contrast to the lawn 

areas, "allowed for easy identification of what land was being 

openly used and possessed by the [Schwabs]." Id. at ___. In 

this context, we see no error in the judge's conclusion that the 

lawn maintenance performed from 1994 to 2000 was sufficient to 

qualify as "actual" and "open" use of the disputed areas.

c. Wild and wooded lands. Finally, Spagtacular argues 

that the judge erred because he should have considered the 

disputed areas to be wild or woodlands, taking them out of the 

context of a suburban house lot. We note at the start that the 

locus is not remote, isolated, or rural in nature.12 

 

Mass. at 490, "[w]hether, in a particular case, [the] elements 

[of adverse possession] are sufficiently shown is essentially a 

question of fact." Kershaw v. Zecchini, 342 Mass. 318, 320

(1961).

12 Spagtacular's land houses an old warehouse fronting on 

Maple Avenue, also in Shrewsbury. Both Oak Street and Maple 

Avenue intersect with Route 9, which is nearby. Schwab 

testified that he walked to his high school, which was up the 

street from the locus. The Lake family lived next door. Aerial 

photographs show various buildings, including the Lakes' home, 

in close proximity to Mancini's house. And, Spagtacular's own 

property manager testified to taking photographs of an area 

being cleared by Spagtacular (apparently to the south of the 
16

Spagtacular's property is, however, undeveloped and densely 

wooded. 

"In cases involving a claim of adverse possession to wild 

or woodlands, the claimant generally must establish that 

the land has been enclosed or reduced to cultivation. . . . 

The strict rule applicable to wild or woodlands is, 

however, 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."

Sea Pines III, 61 Mass. App. Ct. at 848.

Even in a case involving wild or wooded land, the 

determination whether certain activities are sufficient to 

support an adverse possession claim remains "inherently factspecific." Id. See LaChance, 301 Mass. at 490 ("Evidence 

insufficient to establish exclusive possession of a tract of 

vacant land in the country might be adequate proof of such 

possession of a lot in the center of a large city"). Here, the 

facts supported a finding of adverse possession. The judge 

appropriately found that Spagtacular and its predecessor13 were 

on notice that the disputed areas had been incorporated into the 

house lot owned by the Schwabs and then Mancini. Although 

 

locus) from the parking lot of a bowling alley situated on Oak 

Street, diagonally across from Mancini's land.

13 Spagtacular acquired its property in 2013.
17

Spagtacular's land is wooded, the disputed areas are not within 

that vegetation. They are, instead, at the edges of the woods.14 

This is not a situation where the use and occupation relied upon 

by the adverse claimant occurred in the woods. See, e.g., 

Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 44-45 (2007) 

(prescriptive easement not established over trails traversing 

woods); Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 

993 (1984) (timber cutting insufficient for adverse possession). 

Instead, the disputed areas were clearly delineated as outside 

the wooded and allegedly wild area. Moreover, they could be 

easily seen from within the woods by anyone who chose to walk 

the perimeter of Spagtacular's land. 

To be "open," a use must be "without attempted 

concealment." Boothroyd, 68 Mass. App. Ct. at 44. 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." Id. On the facts presented here, the Schwabs' and 

Mancini's use of the disputed areas was both open and notorious, 

notwithstanding that Spagtacular's adjacent land is wooded and 

undeveloped. See id., quoting Foot v. Bauman, 333 Mass. 214, 

 

14 No evidence was presented whether the disputed areas were 

ever part of the woods now owned by Spagtacular or, if so, when 

those areas were first cleared and by whom. 
18

218 (1955) ("'It is not necessary that the use be actually known 

to the owner for it to meet the test for being notorious.' . . . 

It is enough that the use be of such a character that the 

landowner is deemed to have been put on constructive notice of 

the adverse use").

Judgment affirmed.