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Banville v. Brennan

Supreme Court of Rhode Island

February 7, 2014

Donna BANVILLE
v.
Peter BRENNAN et al.

Page 425

[Copyrighted Material Omitted]

Page 426

Jeremiah R. Leary, Esq., Tiverton, for Plaintiff.

Joseph R. Palumbo, Jr., Esq., Middletown, for Defendants.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

The defendants, Peter and Joyce Brennan, appeal from a judgment entered by the Superior Court in favor of the plaintiff, Donna Banville, in this boundary dispute between neighbors. On appeal, the Brennans argue that the trial justice erred in finding that the doctrine of acquiescence applied to establish the dividing line between the two lots. The Brennans also argue that the trial justice erred in awarding damages to Banville based on the diminution in the fair market value of her real property as a result of the alleged encroachment by the Brennans. After a thorough review of the record and consideration of the parties' written submissions and oral arguments, we affirm the judgment of the Superior Court.

I

Facts and Travel

The plaintiff, Donna Banville, owns real estate at 1692 Eagleville Road in Tiverton, Rhode Island, which is designated as Block 108, Card 47C on the Tiverton Tax Assessor's map. Banville has resided on the property since 1984 when the lot was created by the subdivision of a larger lot. This larger lot was then owned by John and Monika Ferreira, who intended to divide it into two lots of approximately equal size.[1]

The other lot created out of the subdivision of the larger one is designated as Block 108, Card 47E on the Tiverton Tax Assessor's map and has the address of 1710 Eagleville Road. This lot currently belongs to the Brennans. In 1984, the owner of the so-called Brennan lot was Peter Edes. Edes placed a trailer and constructed a shed on the lot, both of which appeared to respect the town plat map boundaries as the boundary between the Banville lot and the Brennan lot. In 2003, Edes transferred the lot to Kevin and Gail Goncalo. The Goncalos transferred the lot to the Brennans on November 7, 2006.

At trial, Banville testified that, from 1984 on, she observed the Town plat map boundaries with respect to ownership and maintenance of her property, which was roughly demarcated on the easterly side by a row of trees. Banville further testified that in 2005 she pet up an electric fence that largely ran along the line of

Page 427

trees in order to keep her horses contained.

The instant dispute between the Brennans and Banville began on January 5, 2007, when Peter Brennan introduced himself to Banville as the new owner of the neighboring property and informed her that he was going to get his lot surveyed in order to construct a building on it. On January 8, 2007, Mr. Brennan informed Banville that his surveyor had encountered some problems because of the electric fence. Banville agreed to turn off the electricity while the Brennans' surveyor was working. The Brennans' surveyor, Mr. Steven Murgo, proceeded to conduct a survey of the two lots (the Murgo survey). On January 12, 2007, Banville returned home to find survey markers running through her front yard, a portion of her trailer, her pool, her backyard, and into her horse corral. There was also spray paint running along her trailer's foundation, indicating that, according to the Murgo survey, part of her trailer and her horse corral were on the Brennan lot.

On January 14, 2007, Mr. Brennan, relying on the Murgo survey, informed Banville that her trailer was partially encroaching on his property and preventing him from constructing his building. Banville told Mr. Brennan that she disagreed with this survey and that she wanted to hire her own surveyor in order to determine the boundaries.

On January 16, 2007, Mr. Brennan applied for a building permit from the Tiverton building inspector to construct a foundation on his lot.

On January 18, 2007, Banville returned home to find that her electric fence had been moved to be consistent with the Murgo survey stakes, thus trapping her horses into a small area. Banville called the Tiverton Police Department, which came to the scene and submitted an incident report. The police contacted Mr. Brennan and informed him that he could not move Banville's property without her express permission as to whether and where her property might be moved. Mr. Brennan apologized to Banville, and Banville again informed Mr. Brennan that she wanted to have her own survey conducted to determine the boundary line.[2]

Mr. Brennan and Banville had further conversations concerning the boundary line, with Mr. Brennan telling Banville that he " wanted to be a good neighbor," but that he needed to get his building constructed. Sometime on or around January 26, 2007, Banville consented to move her trailer and her dog kennel so that they were no longer over the Murgo survey line. At some point thereafter, Mr. Brennan had a row of large boulders placed along the Murgo-surveyed boundary between the two lots.

Banville hired Donald J. Medeiros, a registered land surveyor, to survey the properties. On January 31, 2007, Banville sent a certified letter to the Tiverton building inspector and to the Brennans, informing them that she had hired Mr. Medeiros to survey the land. Mr. Brennan testified, however, that he never received the letter.[3] On February 8, 2007, Mr. Medeiros first visited the properties to conduct his survey (the Medeiros survey). At that time, he informed Mr. Brennan that he had ...


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