County Superior Court
Plaintiff: Stephen A. Rodio, Esq.
Defendant: John P. McCoy, Esq.; Todd J. Romano, Esq.
matter is before the Court for decision following a non-jury
trial in an adverse possession and acquiescence action
regarding portions of certain waterfront property located at
243 Promenade Avenue in Warwick, Rhode Island (243 Promenade
Avenue). That property is in a section of the City of Warwick
commonly referred to as Olde Buttonwoods. While Plaintiffs
Dr. David Clark and Judith Clark (Dr. and Ms. Clark or the
Clarks) seek to establish title to that property, Defendant
Buttonwoods Beach Association (the Association) currently
holds record title to it. The Clarks assert that they have
acquired title to the property through adverse possession
and, in the alternative, by acquiescence.
facts, as determined from all of the evidence presented at
trial, are as follows. In 1882, as land in the section was
first being developed into house lots, a plat was recorded
with the Warwick Land Evidence Records as plat card 106 (the
1882 plat card) (Ex. M). That plat card indicates that
Promenade Avenue is eighty feet wide. Of significance, Peter
and Ginger Weichers took title to the property in 1986. The
property was subsequently transferred to Guy and Carolyn
Hurley (the Hurleys) in October 1989; to Larry and Nancy
Zigerelli (the Zigerellis)-now separated or divorced-on
February 16, 1999; to Edward and Laura Freeman (the Freemans)
in 2002; and finally, to the Clarks in June 2009.
deed conveying the property to Dr. and Ms. Clark, as well as
deeds to prior owners of record, reference the 1882 plat
card. The Clarks' deed, however, does not provide a metes
and bounds description. The legal title to the eighty foot
wide Promenade Avenue, as shown on the 1882 plat card, is
held by the Association. The Association owns many streets of
varying widths in the neighborhood, as well as several
undeveloped lots. Many are used for open space or recreation
such as overlooks, beaches, and a ball field. The community
is located on a peninsula in the City of Warwick. There are
stone pillars at the entrances with signs that read
"Residents and Guests Only." It is clearly a
unique, private area.
2009 deed to the Clarks conveys two separate lots: one to the
north of Promenade Avenue-on which their home is located (the
house lot)-and the other to the south of Promenade Avenue and
fronting on Narragansett Bay (the waterfront lot). As
indicated, the lots are on each side of Promenade Avenue, but
they are not built to that width. Therefore, according to the
1882 plat card, the only part of the waterfront included on
the Clarks' lots is the seawall and beach-not the grassed
area. Also according to the 1882 plat card, the front yard to
the Clarks' house ends several feet from the front steps,
and it does not include the area that now encompasses the
sidewalk, hedges, or much of the front yard. By 1989, much of
this area had been improved and landscaped by owners of the
house. It is difficult to distinguish the location of the
eighty foot platted street from being on the disputed
property itself. Exhibit 54 is an aerial photograph of the
property which shows the expanse of the landscaping.
Contrasted with the 1882 plat card (Ex. M), this photo
illustrates the expanse of the disputed area.
owners and neighbors testified at trial regarding the use of
the property, beginning with the Weichers. According to Mr.
Weichers' testimony, the Weichers (now divorced) owned
the home from 1986 to 1989. Mr. Weichers thought that he
owned the entire property, but for the paved street. Mr.
Weichers removed some fencing on the waterfront lot, planted
some hedges along the street sides of both lots, and put in
gates, walkways, sprinkler systems, and new grass. The
hedgerows border the grassed areas on both lawns from the
paved streets, with the gates facing the street. He rebuilt
the entire seawall, presumably at significant expense, as the
job required several cement trucks to finish. He asked no one
for permission, and he never considered the issue of whether
he owned the seawall. He does not recall seeing anyone on the
waterfront or house lots, but he was away at work about
twelve hours per day.
Hurley was deposed, and each party accepted his testimony as
if it were trial testimony. In his deposition, Mr. Hurley did
not discuss the boundaries when he purchased the home, but he
thought that all of the grassed area was his. While he
maintained the home and put in a brick walkway and a septic
system, he never asked for permission, and the Association
never complained. The Freemans, who lived nearby, used the
waterfront lot. When shown at his deposition a map of the lot
lines, Mr. Hurley testified as follows:
". . . I just assumed, and I don't have the facts to
back it up, because I don't really have the survey in
mind, but what I drew out that day, that's what I kind of
assumed my property was. Maybe I was wrong, I don't know,
but I don't know why they would have done this. I mean,
it was - - everybody had use of the property that wanted to
use it and, so, I don't know. . . ." Hurley Dep.
29:6-12, Sept. 4, 2015.
acknowledged that people in the area used the lot for beach
access and no one asked for permission to do so. He installed
steps and a railing for easier access to the beach.
Zigerellis owned the home from 1999 until 2002. They
renovated the interior of the house extensively when they
moved in, and they also completed renovations on the
exterior. They added a new septic system and new landscaping,
and they also placed a new brick walk, new hedges, and
underground sprinklers on the grassed areas on each side of
the street. The entire lawn and hedges were maintained.
Attached to a 1999 building permit application is a map
showing the property lines, as taken from the 1882 plat card.
Ms. Zigerelli testified at trial that she knew that the
street was wider than it appeared, but she was not sure how
wide. She recognized-from the meetings and the handbook-that
she needed approval for some of the landscaping, and she
accordingly requested approval from the Association. The need
for such approval was discussed at a 1999 meeting. Although
gates on the waterfront lot were installed by Mr. and Ms.
Zigerelli, they never tried to exclude anyone from that lot.
To the contrary, each of them appeared to be welcoming and
enjoyed the community and their neighbors' company.
Zigerelli testified that without his objection, the
Association's residents would access the waterfront lot
to watch fireworks, to sit on the grass, and to access the
beach. Mr. Zigerelli also testified that he realized the
street was eighty feet wide, that he never had an issue with
it, and that he allowed others to go through the gate to
fish, go to the beach, or to look at the view. He was
concerned only with young children being near the seawall.
Ms. Freeman purchased the adjacent property at 77 Cooper Road
in 1991. They also purchased the subject property from Mr.
Zigerelli in 1999 and sold the home in June 2009. Ms. Freeman
did not know that the Association had an interest in the land
next to 243 Promenade Avenue, as she thought she owned it and
never noticed that the Association improved or maintained the
property, though it maintained the paved road. The Freemans
maintained the property and cut the grass and hedges. Ms.
Freeman recognized that the Association needed to approve of
work done to the adjacent waterfront lot, as she assented to
it. The Freemans, longtime Buttonwoods residents, went to the
Association's meetings in the 1990s. Since the early
1990s, Mr. Freeman fished off the seawall using the property
in front of 243 Promenade Avenue, which the Freemans did not
own at all such times. They also went to the Fourth of July
parties at this location. They did not exclude people from
the waterfront lot when they lived on Promenade Avenue, and
they let others use the area.
Freeman revealed that he was unsure if he owned the grassed,
waterfront parcel or if he needed permission to alter it. On
August 9, 2013, Mr. Freeman signed a written
statementwhich was admitted into evidence and
provides, in part, (1) that he "understood that the
property [i.e., the grassed area located north of
the concrete patio and south of the paved area of Promenade
Avenue] was owned by the Fire District or the Beach
Association"; (2) that the Zigerellis never prevented
him and the other neighbors from crossing the grassed area to
the waterfront; (3) that when he purchased 243 Promenade
Avenue from the Zigerellis, they did not represent to him
that they owned the grassed area adjacent to the concrete
patio by the waterfront; (4) that he knew a portion of
[Promenade Avenue] included the sidewalk and grass along the
western side of the roadway; (5) that he would attend the
annual meetings of the Fire District from time to time, at
which a member of the Association would remind the community
that the Association owned all of the streets and parks and
that the actual streets were wider than the paved area; and
(6) that he never represented to the Clarks that he owned the
grassed area and bushes between paved Promenade Avenue and
the concrete patio. (Ex. 47 ¶¶ 9, 14, 17, 19, 25.)
indicated above, Dr. and Ms. Clark are the current owners of
the property. Before their purchase, Ms. Clark walked the
property and claims she was told by an unidentified realtor
that the waterfront lot was included. There was no discussion
regarding the size of the house lot, as Ms. Clark concluded
that "it's a part of the house." Although Ms.
Clark testified that the Clarks did not conduct, and never
saw, a survey before or soon after the closing in June 2009,
she acknowledged that she never asked the boundaries of the
lots before she purchased and "assumed" her
attorney was doing a survey. The Clarks closed on the
property quickly, paying the full asking price so no other
prospective owners would buy it.
Clarks rented the house to the prior owners until September
1, 2009, at which time they moved into the house. Although
Ms. Clark insisted that the grassed waterfront area on the
subject property was rarely used, many witnesses established
that it was a prominent gathering area for such annual events
such as Fourth of July parties, viewing airshows, accessing
the beach, and occasional fishing and sightseeing, such that
this Court finds that Ms. Clark recognized the site as a
prominent area in the plat used frequently by residents. As
discussed below, she appears to have only become alarmed when
a fisherman, whom she did not recognize, used the front lot
to fish. During cross-examination, Ms. Clark testified, in
part, that she assume[s the] house is on main lot . . . and
that she only take[s] title to what the deed says . . .
nothing more or less.
Z contains a survey of the house lot, with drill holes and
set rods, dated October 2009. Ms. Clark admitted signing the
zoning application to which the survey was
attached. The survey clearly reflects that Promenade
Avenue extends to the middle of the front lawn of the house
lot, and the hedges are entirely in the street. The Clarks
then renovated the house extensively and landscaped the
waterfront parcel. These lots had all been maintained and
kept up by all of the interim owners with more plantings, but
the gate was never locked. Ms. Clark improved the plantings
and the landscape almost immediately upon taking possession.
She offered the old plantings to her neighbors through the
Buttonwoods email notification system. In the summer of 2010,
Ms. Clark went to the annual meeting of the Association. She
testified that she recalled no handouts and no maps of the
area on the walls.
2011, Ms. Clark noticed an unfamiliar person fishing inside
the gate. Several days later, she posted "No
Trespassing" signs on the gate. She promptly received an
email from Ms. Susan Martins-Phipps, who was then the
president of the Association. The email mentioned that the
area was the Association's property and that the signs
must be removed. Ms. Clark telephoned Ms. Martins-Phipps in
disagreement. Attorney McKenney, a former president of the
Association, telephoned Ms. Clark about a month later to
press for removal of the signs. Ms. Clark testified that she
then commissioned a survey.
2011, Alpha Associates prepared a survey for Dr. and Ms.
Clark (Ex. O), which is strikingly similar to the same
surveyor's survey of 2009, except that it also describes
the waterfront lot. It shows Promenade Avenue to extend about
eighty feet in width from the front steps of the house,
across the lawn, the front hedges, the sidewalks, the paved
street, the fence on the waterfront side, and the hedges and
grassed area on the waterfront side to the seawall. Drill
holes and iron rods look to be the same as those set in 2009.
Again, apart from the drill holes and rods, it would be
difficult to determine the width of the road by standing on
the property itself.
Martins-Phipps did not own 243 Promenade Avenue individually,
but she was active in the leadership of the Association and
the Fire District. She has lived on Janice Road since 1983
and, almost every day, she walks her dog on the paved road
area of Promenade Avenue. She testified that the Association held
open meetings and that at each meeting the Association
displayed the plat maps and indicated that the roads were
larger than the paved area. To use the grassed areas platted
as roads, the Association had a policy that a written
application was required with neighbors' consents.
Permission was given only in writing by the Association's
board. Ms. Martins-Phipps testified that since 2007, the
Association would send out a letter to all new listing agents
of property in the area when property was placed for sale and
the Association would "send the two plat maps that are
color coded." Since 2007, meeting minutes are emailed to
members, but they were hand-delivered since the 1980s. Ms.
Martins-Phipps traversed the grassed area of the lot only to
walk her dog, but entered the waterfront lot to go to the
beach after the hedges and gates were installed. Several
people have fished off this lot, while others watch the air
show at Quonset from it. Of course, the roadway and the
sidewalks next to the street are routinely used.
addition to Ms. Martins-Phipps, several past and present
officers of the Association also testified-namely, Peter
Dorsey, Mark McKenney, and Romolo A Marsella. Together, they
established that the Association, in concert with the Fire
District, (1) owns legal title to the streets; (2) maintains
the streets (e.g., by plowing them and paving them);
(3) has negotiated with the city regarding installation of
sewers along the streets (circa 2004); and (4) has repeatedly
advised members that the Association owns certain lands with
large street widths and that permission needs to be obtained
in order to do construction on its property. Each of them
also testified that the waterfront lot is an area commonly
used by others for Fourth of July celebrations, access to the
beach, and other waterfront uses. While the Association
attempts to police the practice and, on occasion, give formal
approvals, some residents have added fences or plantings
without the Association's consent.
Dorsey added that ten to twelve years ago, he and his son
fished from the waterfront lot, as he thought it was common
land. In addition, he testified that he viewed a hurricane
from the lot about ten years ago and that he used the stairs
on the lot to get to the common beach more than fifteen years
ago. He distinctly recalled Fourth of July parties when the
Zigerellis resided in the home.
Miller, a land surveyor, testified regarding the legal title
of the Clarks' property and the road. He noted how it
would be difficult to ascertain the boundaries of each by
merely standing on the site. Further, Ron Phipps, Ms.
Martins-Phipps' husband and a prominent realtor for many
properties in the area, also testified. He testified that he
gave brochures routinely since the 1970s and that at least
since 1989, they included plat maps. He also testified that
the Freemans normally kept the gate to the waterfront area
open and that people were on the grassed area
"regularly." According to Mr. Phipps, the gate was
never locked during the Zigerellis' ownership of 243
March 19, 2014, the Clarks filed a two-count complaint,
alleging adverse possession and acquiescence as to the
waterfront lot. On April 20, 2012, the Association filed a
Notice of Intent to Dispute Interrupting Adverse Possession,
as provided by G.L. 1956 § 34-7-6. This Court,
sitting with a jury, held a bench trial, from which the above
facts are gleaned.