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-532

JENNIFER J. GACEK

vs.

MARY C. FOLEY, trustee,1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Jennifer J. Gacek and Mary C. Foley, as trustee of the 

Kanila Realty Trust, own adjacent properties in Dracut (Gacek 

property and Foley property, respectively).3 In 2019, Gacek 

filed suit against the defendants (collectively, the Foleys) in 

the Superior Court on a variety of theories including, as 

relevant here, trespass (count one) and injunctive relief (count 

six).4 The Foleys counterclaimed for adverse possession of a 

1 Of the Kanila Realty Trust.

2 Michael P. Foley and Mary C. Foley, individually.

3 Jennifer J. Gacek owns and lives at 829 Nashua Road; Mary C. 

Foley, as trustee of the Kanila Realty Trust, owns 833 Nashua

Road, where she lives with Michael P. Foley.

4 Additionally, Gacek made claims in trespass based on stormwater 

runoff (count two); placement of the Foleys' dock and the 

Foleys' use of commercial vehicles on their property (count 

three); violation of G. L. c. 242, § 7A (count four); conversion 

(count five); and claims in nuisance based on loud music and 

lights (count seven).
2

"side yard" portion of the Gacek property abutting the Foley 

property (count one), declaratory judgment (count two), and 

prescriptive easement over a portion of the Gacek property

(count three); the parties waived any monetary claims against 

each other. After a jury-waived trial that included a view of 

the Gacek and Foley properties, judgment entered in Gacek's 

favor on (1) her claims for trespass and injunctive relief and 

(2) the Foleys' counterclaims. After careful consideration of 

the Foleys' appeal from the judgment against them,5 we affirm.

Discussion. 1. Property boundary. The Foleys argue that 

the judge erred in his determination of the boundary line

between their property and the Gacek property. "When a boundary 

line is in controversy, it is 'a question of fact on all the 

evidence, including the various surveys and plans . . . where 

the true line originally ran, and was to be established.'"6

Paull v. Kelly, 62 Mass. App. Ct. 673, 679 (2004), quoting 

Hurlbut Rogers Mach. Co. v. Boston & Me. R.R., 235 Mass. 402, 

403 (1920). "The location on the ground today of what was 

described in the [prior] deed[s] . . . presents a question of 

fact . . . to be decided 'on all the evidence, including various 

5 Gacek did not appeal from the dismissal of counts two, three, 

four, five, or seven of her complaint. 6 To the extent that the Foleys argue that Gacek was required to 

call an expert witness to carry her burden of proof, they fail 

to provide any legal support for their contention, and we are 

aware of none.
3

surveys and plans.'" Bernier v. Fredette, 85 Mass. App. Ct. 

265, 268 (2014), quoting Hurlbut Rogers Mach. Co., supra. "It 

was the judge's task to determine which, if any, of the parties' 

approaches correctly located the boundary," and we will not 

reverse that determination "[s]o long as the judge's account is 

plausible in light of the entire record." Bernier, supra at 

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

501, 510 (1997). Reviewing the judge's decision for clear 

error, we discern none. See Brandao v. DoCanto, 80 Mass. App. 

Ct. 151, 156 (2011) (standard of review).

The judge's determination of the correct boundary took into 

account a variety of evidence; other than as we note below, 

there was no objection to the admissibility of that evidence. 

First, the judge considered the deeds in the parties' chains of 

title, going back to 1965. The earliest of these was an April

1965 foreclosure deed from Thomas Lindsay to the Lowell Five 

Cent Savings Bank (bank).7

Next, an August 1965 deed from the bank to the Lafortunes 

documented the transfer of a parcel "being shown as Lots 1, 3, 

12 and 13 on a [1947 plan], which plan is recorded in [the]

7 The 1965 deed memorialized the transfer of "the premises 

conveyed by [the] mortgage" from Lindsay to the bank; the 

mortgage itself, however, was not in evidence. The judge 

admitted the deed into evidence over Gacek's counsel's objection 

to its relevance.
4

Middlesex North District Registry of Deeds." The August 1965 

deed was made "together with and subject to a right of way as 

shown on [the 1947] plan, extending from Nashua Road to Long 

Pond" (Lafortune parcel). That deed specified that the property 

was bounded to the south "by the center line of a fourteen foot 

right of way as shown on [the 1947] plan, [running] 200 feet, 

more or less."

Next, in 1969, the Lafortunes subdivided their parcel as 

reflected in a "compiled plan of land" (1969 plan) that referred 

back to the 1947 plan. As subdivided, the property included a 

section designated as "Lot A." In January 1970, a deed (1970 

deed) reflected the Lafortunes' transfer to the DeCarolises of

"Lot A," as shown on the 1969 plan. The 1970 deed for that 

property described the bounds of "Lot A" as follows:

"NORTHERLY by remaining land of the grantors hereunder, 200 

feet;

EASTERLY by Long Pond as shown on [the 1969] plan, 60 feet;

SOUTHERLY by Lots 2 and 4 as shown on [the 1969] plan,. . .

200 feet; and 

WESTERLY by Lot 5 on [the 1969] plan, 42 feet.

Said lot is also subject to a seven foot right of way as 

shown on the [1969] plan to be recorded herewith."

"Lot A" was transferred five more times, the final sale being to 

Mary C. Foley as trustee of the Kanila Realty Trust. Each 

successive deed in evidence8 described the property with 

8 It appears that a mortgage foreclosure resulted in a transfer 

of the property sometime between 1988 and 1993. Neither the 

underlying mortgage nor that foreclosure deed was introduced 
5

reference to the 1947 and 1969 plans and recited metes and 

bounds consistent with the description in the 1970 deed. 

Notably, each deed after 1965 referred to the 1969 plan, which 

measured the property's southern boundary from the midline or 

"center line" of a fourteen foot right of way at the southern 

edge of the property.

The judge also considered a variety of other plans relating 

to the parties' properties. In addition to the 1947 and 1969

property division plans referred to in the deeds, the parties 

introduced plans prepared by different land surveyors before 

suit was filed, including a 1993 mortgage inspection plan for 

the Foley property (Desmarais plan), a 2008 building 

certification plan of the Foley property (Aho plan), and a 2018

plot plan of the Gacek property that also depicted aspects of 

the Foley property (Norse plan).9 Each of these plans placed the 

boundaries of the relevant properties consistent with the metes 

into evidence. The Foleys do not contend that this transfer 

changed the boundaries of their property.

9 The Norse plan depicted structures and other features on the 

properties with the boundary line superimposed on encroachments 

from the Foley property onto the Gacek property.

The parties also introduced a 2010 mortgage inspection plan 

for the Foley property (2010 plan). The distances of the 

boundaries depicted on that plan are consistent with those in 

the deeds from 1970 forward and the Desmarais, Aho, and Norse 

plans. The 2010 plan also referenced the right of way to the 

north of the Foley property but did not show where the boundary 

line was with respect to that right of way.
6

and bounds descriptions found in the deeds from 1970 forward. 

Likewise, each of these plans measured the western boundary of 

the Foley property from the center line of the fourteen-foot 

right of way at the southern boundary of that land, placing the 

boundary in the location ultimately endorsed by the judge.10

The boundary line as the judge placed it tracked the 

language in each of the deeds in the Foley property's chain of 

title from 1970 forward, describing the property using the same 

set of metes and bounds and referring to the same 1947 and 1969 

property division plans. Each of those deeds measured the 

location of the northern boundary of the Foley property (the 

line that also serves as the boundary between the Foley property 

and the Gacek property) in the same way, measuring from the 

midpoint of a right of way at the Foley property's southern 

boundary. The boundary as the judge placed it was likewise 

consistent with the Desmarais, Aho, and Norse plans. We discern 

no clear error in the judge's factual determination, by a 

preponderance of the evidence, of that line. See Bernier, 85

Mass. App. Ct. at 269 (preponderance standard).

10 The Foleys' argument that the judge erred in relying on "plot 

plans" rather than "land surveys" was not raised in the trial 

court; indeed, it appears from the record that parties agreed to 

the admissibility of the Desmarais, Aho, and Norse plans. "An 

issue not raised or argued below may not be argued for the first 

time on appeal." Century Fire & Marine Ins. Corp. v. Bank of 

New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).
7

The fact that the Foleys' expert witness, Edward C. Helmes, 

Jr., testified to his opinion about the existence of a different 

"potential lot line" dividing the properties in a way more 

favorable to the Foleys than the line the judge found to exist 

does not change our view. To the extent that it is implicit in 

the judge's decision that he did not credit Helmes's opinion or 

accorded it little weight, we defer to his assessment.11 See 

McLaughlin v. Zoning Bd. of Appeals of Duxbury, 102 Mass. App. 

Ct. 802, 811 (2023).

2. Order to remove encroachments. Having determined that 

the boundary line between the Foley and Gacek properties lay as 

depicted in, among other documents, the Norse plan; and that the 

Norse plan and Gacek's testimony established certain 

encroachments from the Foley property onto the Gacek property; 

11 The Foleys' argument that the judge was required to accept 

Helmes's opinion of the boundaries of the Foley property based 

on Helmes's reliance on "a monument" he identified in his 

inspection of the Foley property is not compelling. Although

"[g]enerally speaking, monuments . . . govern over distances"

when it comes to deed construction, an exception to this rule

exists "where, by strict adherence to monuments, the 

construction is plainly inconsistent with the intention of the 

parties as expressed by all the terms of the grant" (quotation 

and citation omitted). Bernier, 85 Mass. App. Ct. at 269. 

Here, the first document that references a monument (i.e., a 

fence post) is the 1969 plan; however, this plan also depicts 

the southern boundary as extending from the "center line" of a 

fourteen-foot right of way. Because we conclude that the 

intended location of the southern boundary was made clear by the 

language of the plan, it follows that even if the reference to a

fence post contravened this language, it was up to the judge to 

decide which evidence to rely on. See id.
8

the judge ordered the Foleys to remove the specified

encroachments. This injunctive relief is "ordinarily" afforded 

to a landowner who proves an encroachment. Brandao, 80 Mass. 

App. Ct. at 158, quoting Peters v. Archambault, 361 Mass. 91, 92

(1972).

"In rare cases, referred to in our decisions as 

'exceptional' courts of equity have refused to grant a 

mandatory injunction . . . 'where the unlawful encroachment 

has been made innocently, and the cost of removal by the 

defendant would be greatly disproportionate to the injury 

to the plaintiff from its continuation, or where the 

substantial rights of the owner may be protected without

recourse to an injunction, or where an injunction would be 

oppressive and inequitable . . . . What is just and 

equitable in cases of this sort depends very much on the 

particular facts and circumstances disclosed.'"

Capodilupo v. Vozzella, 46 Mass. App. Ct. 224, 226 (1999), 

quoting Goulding v. Cook, 422 Mass. 276, 277 n.3 (1996).

The Foleys offer no persuasive support for their argument 

that removal is inappropriate because the encroachments are "de 

minimis" in nature. Our review of the cases suggests that the 

encroachments, which the judge found to include a shed 

encroaching by 3.3 feet, a concrete pad encroaching by 3.5 feet, 

a lamppost encroaching by 1.5 feet, stairs encroaching by 1.4 

feet, and a pipe encroaching by 4.5 feet are, in each instance, 

greater encroachments than those our courts have previously 

considered "trivial." See Capodilupo, 46 Mass. App. Ct. at 226-

227 (collecting cases). Particularly where the Foleys failed to 

introduce any evidence about the cost of removing the
9

encroachments or the hardship, if any, associated with the 

removal requirement, we are not persuaded that the Foleys have 

presented a case that warrants application of the "narrow 

exception to the general rule favoring removal". Brandao, 80 

Mass. App. Ct. at 158-159 (cost of removal a factor judge must 

consider in "balanc[ing] the equities" of injunctive order for 

removal of encroachment).

3. Adverse possession and prescriptive easement. The 

Foleys have likewise failed to convince us that the judge erred 

in ordering judgment for Gacek on the Foleys' counterclaims for

adverse possession of a portion of the Gacek property at or near 

the boundary line between the parties' parcels (side yard), and 

prescriptive easement over the "side yard" and "any portion of 

the Gacek's premises over which the Foleys and their guests and 

invitees pass and repass for ingress and egress from and to 

Nashua Road through the right of way to the westerly part of the 

Foley premises."

"Title by adverse possession can be acquired only by proof 

of nonpermissive use which is actual, open, notorious, exclusive 

and adverse for twenty years." Kendall v. Selvaggio, 413 Mass. 

619, 621-622 (1992).

"[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) 
10

continuous or uninterrupted over a period of no less than 

twenty years."

Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 43–44 (2007). "The 

burden of proving adverse possession is on the person claiming 

title thereby and 'extends to all of the necessary elements of 

such possession.'" Lawrence v. Concord, 439 Mass. 416, 421 

(2003), quoting Mendonca v. Cities Serv. Oil Co. of Pa., 354 

Mass. 323, 326 (1968).

Even were we to assume that the Foleys' use of the disputed 

property was "open," "notorious," "adverse," and (as to the 

adverse possession claim) "exclusive," the Foleys' counterclaims 

falter on their failure to establish their continuous use of the 

disputed property for twenty years. The evidence supported the 

judge's finding that on April 1, 2018, Gacek had a notice of her 

intention to prevent the acquisition of the property served on 

the Foleys, see G. L. c. 187, § 3, and had a no-trespass letter 

served on the Foleys on March 21, 2019. There was thus no error 

in the judge's finding that as of March 21, 2019, Gacek had 

protected her rights against an adverse possession or 

prescriptive easement claim.

As to the disputed "side yard," the Foleys' sole witness on 

the issue of continuous use of the disputed property, Michael 

Foley, could not establish with any precision the date on which 

the Foleys' use of the disputed property began. His testimony 
11

on the subject was limited to his "guess" that it was "close" to 

twenty years from the time of trial. Although Foley testified 

to his recollection that the work that created the encroachments 

was done in "[19]98, [19]99," there was, as the judge noted, no 

documentary evidence at trial confirming the dates of that work

and the judge was not required to give the Foleys the benefit of 

the doubt. See McLaughlin, 102 Mass. App. Ct. at 811. There 

was no error in the judge's conclusion that the Foleys failed to 

establish that their continuous use of the disputed property 

began twenty years before March 21, 2019. See Bernier, 85 Mass. 

App. Ct. at 269 (deference accorded to trial judge's findings of 

fact and credibility assessments).

The judge did not make specific findings on the Foleys' 

counterclaim for prescriptive easement over a portion of the 

Gacek property used for "ingress and egress" from their 

property. Given the judge's determination that Gacek failed to 

prove that the Foleys' vehicles trespassed on her property, 

however, we conclude that the judge concluded that there was no 

need for such an easement. As Gacek has not appealed from the 

judge's ruling on her trespass claim, we need not address the 

issue further.
12

4. Foleys' additional arguments.12 The Foleys' spoliation 

argument based on Gacek's destruction of the old fence post was 

not raised in the trial court and so is waived. See Century 

Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, 

N.A., 405 Mass. 420, 421 n.2 (1989). Even if that were not the 

case, we fail to discern any basis for sanctions where Helmes 

had identified the post and its placement before Gacek destroyed 

it. See Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 

234 (2003) (doctrine of spoliation based on premise that party 

who has negligently or intentionally lost or destroyed evidence 

known to be relevant for upcoming legal proceeding should be 

held accountable for any unfair prejudice that results).

Judgment affirmed.

By the Court (Hand, 

Hershfang & Brennan, JJ.13),

Assistant Clerk

Entered: March 25, 2024.

12 The Foleys' claim that the judge's determination of the 

boundary produced the potential for prohibiting the Foleys and 

others from accessing their properties does not rise to the 

level of appellate argument; for that reason, we do not address 

it. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 

Mass. 1628 (2019). 13 The panelists are listed in order of seniority.