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Newton case proves Frost was wrong about good fences making good neighbors

The Massachusetts Appeals Court ruled today that a Newton couple can claim some land that used to belong to a neighboring lot because the people they bought the land from had put up a fence five feet over the line and the neighboring owner didn't complain - for at least 20 years.

In a ruling that upholds a 2019 Land Court decision, the appellate court said that the couple, the Nannuccis, had proven that they and their predecessors had maintained the five-foot strip behind a wooden fence "in a manner that was actual, notorious, exclusive and adverse" for the state-required 20 years and so the land is now theirs.

However, there are limits, and in this case a Land Court judge ruled the Nannuccis were owed nothing, nothing, good day, sir, for the three trees their neighbor cut down in a three-foot-wide strip they also claimed on the other side of the fence, because they could not prove they or previous owners of their house ever exclusively maintained the property on the other side of the fence.

Both the Nannuccis and the Hynds bought their Chaske Avenue properties in 2012. The Hynds property actually consists of two lots, and Stephen Hynds, a developer, quickly set about to develop the second lot - between his house and the Nannucci land - for construction of a house there. He had the land surveyed and discovered his property actually started five feet on the Nannucci side of a wooden fence between the two properties, a fence he wanted to tear down.

The Nannuccis, who had their house under agreement at the time Hynds had his land surveyed, agreed to meet with him on the issue. As Land Court Judge Keith Long wrote, "it was not the happiest of meetings."

The Nannuccis, shocked to learn the property they were about to buy not only did not extend just past the trees, but stopped five feet before the fence, agreed to remove the fence, but only on the condition Hynds not build the new house. He refused, the Hynds bought their property anyway, and the fight was on, Long wrote:

Nothing further happened until October 15, 2012 when Mr. Hynds, tired of waiting for the encroaching part of the fence to be removed, removed it himself and cut down the three trees, each of which showed signs of rot. The Nannuccis were angry at the loss of privacy and put up a solid, tall wooden fence all along the record boundary line to block out the view of Lot 51 [the empty Hynds lot] , which was now occupied by Mr. Hynds' back hoe and other equipment. Mr. Hynds has not yet constructed a house on the lot, and it is not clear whether he can actually do so. Relations between the parties continued to deteriorate, with quarrels about dogs, restraining orders sought, and complaints made to the Newton building inspector.

In October, 2014, the Nannuccis sued.

And today, six years later, and for the second time, they've won in court, at least about the five-foot-wide strip.

Long ruled that they had presented enough evidence that sometime at least 20 years before they bought their property, previous owners had put up a fence, consisting mainly of chicken wire, five feet onto what would become Hynds's property, then replaced that with a wooden-slat fence, and when that rotted, put up another.

Equally important was proof that prior owners had actively used the land - as that is also required for a claim of adverse possession. Now, normally, leaf raking and grass mowing in an urban area such as Newton wouldn't be enough, since urban residents rake and mow across property lines all the time without expecting to enlarge their land holdings, Long wrote, but couple that with the fence and the more unkempt condition on the other side of the fence, well, that's sufficiently open, notorious and adverse to take ownership, the judge ruled:

Here, the fence and the visual extension of its line, coupled with the regular raking and mowing of the "extended" area which gave it a maintained appearance distinct from the area between it and the trees, together constitute sufficiently "open", "notorious", and "adverse" acts. Anything beyond that clearly visualized and maintained line does not.

And yet, even though the McLeods, who sold their house to the Nannuccis, had planted the trees decades ago, the trees were clearly on the other side of the fence and the people Hynds bought his land from shared raking duty - both leaves and the large pods the trees dropped - with the McLeods, so nothing adverse was going on there, the trees remained on Hynds's land and he was within his rights to tear them down, Long wrote.

Hynds argued the date of adverse possession should have begun when he bought his land and realized the fence issue, under an ancient state law still on the books, but the judge ruled the law Hynds cited doesn't actually refer to adverse possession

Hynds appealed, citing some witnesses who claimed the fence had gone up less than 20 years before he complained, but the appeals court noted other witnesses had said a fence had been there for at least 20 years, and that, as a judge, Long "was entitled to credit the testimony of some witnesses over others" and so his ruling was not erroneous.

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In the poem, the speaker is criticizing the saying and mocking those who say it.

Nature is shown to pull down the fence yearly; hunters to pull it down to make an unnecessary kill; the wall is itself useless since it divides stationary trees of different species; the objects it walls off may be unexpected; it may give offense; its advocate is an unreasoning savage.

Or, as Frost suggests:

"Something there is that doesn't love a wall,
That sends the frozen-ground-swell under it,
And spills the upper boulders in the sun;
And makes gaps even two can pass abreast.
The work of hunters is another thing:
I have come after them and made repair
Where they have left not one stone on a stone,
But they would have the rabbit out of hiding,
To please the yelping dogs. The gaps I mean,
No one has seen them made or heard them made,
But at spring mending-time we find them there.
I let my neighbor know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.
And some are loaves and some so nearly balls
We have to use a spell to make them balance:
‘Stay where you are until our backs are turned!’
We wear our fingers rough with handling them.
Oh, just another kind of out-door game,
One on a side. It comes to little more:
There where it is we do not need the wall:
He is all pine and I am apple orchard.
My apple trees will never get across
And eat the cones under his pines, I tell him.
He only says, ‘Good fences make good neighbors.’
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
‘Why do they make good neighbors? Isn't it
Where there are cows? But here there are no cows.
Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn't love a wall,
That wants it down.’ I could say ‘Elves’ to him,
But it's not elves exactly, and I'd rather
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father's saying,
And he likes having thought of it so well
He says again, ‘Good fences make good neighbors.’

Anyway we need better poems about adverse possession.

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Voting closed 17

It's too bad that applying this law, which is supposed to simplify things by valuing longstanding on-the-ground use of land over obscure paperwork, takes almost a decade of lawyering.

Also, who rakes and mows their neighbor's lawn? I would never even consider doing that, for multiple reasons.

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Voting closed 11

You are completely misinterpreting Robert Frost in your headline! In fact, you have it exactly backwards. When he wrote in “Mending Wall” that “good fences make good neighbors,” he was using it satirically, not endorsing it: it wasn’t in the poet’s voice, but in the voice of the farmer who “will not go behind his father's saying.” Frost didn’t say that good fences make good neighbors. It’s the rigid, unimaginative farmer who said it.

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Voting closed 28

so I'm not sure it would apply. :-P

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Voting closed 9

But the poem is ambiguous. Frost admits that he disagrees with his neighbor mostly for the sake of mischief, and his arguments are flighty, fanciful - he mentions elves - while those of his neighbor remain solid, stony, simple, like a wall. Frost may have been satirizing his neighbor's viewpoint, but he was satirizing his own, as well.

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Voting closed 18

The sport of kings

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Voting closed 14

“Both the Nannuccis and the Hynds bought their Chaske Avenue properties in 2012. The Hynds property actually consists of two lots, and Stephen Hynds, a developer, quickly set about to develop the second lot - between his house and the Hynds land - for construction of a house there. He had the land surveyed and discovered his property actually started five feet on the Nannucci side of a wooden fence between the two properties, a fence he wanted to tear down.

The Hynds, who had their house under agreement at the time Hynds had his land surveyed, agreed to meet with him on the issue. As Land Court Judge Keith Long wrote, "it was not the happiest of meetings."”

The Hynds met with the Hynds? Hynds wanted to build on a lot between the Hynds house and his house?

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Voting closed 10

Because I should read what I write before hitting submit. Fixed.

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Voting closed 16

Why it took so long to resolve this in the courts is disconcerting. But the wheels of justice turn very slowly, as they say.

I think it was a fair ruling. It makes me think of the ongoing loss of public rights of way due to development and the lack of resources that ordinary people have to maintain their rights. Then there is also the foolish misconception that property ownership is a version of sovereign statehood.

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Voting closed 7

I started to comment, then walked away from this, but I can't stop thinking about it. This ruling is patently unfair, and contrary to the spirit of the law, surely. The new property owner cannot be held liable for actions detrimental to the property which had, at the time of the filing, recently changed hands. Further, he had shown a clear interest in maintaining the property. Further, FURTHER, the new owners claiming whatever bastardized version of adverse possession they dug out of a lawbook, should not be granted the benefit of the maintenance that the prior owner had affected. If you want to claim the land, why would your maintenance of undeeded land transfer? It doesn't make a lick of sense.

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Voting closed 6