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Clark v. Buttonwoods Beach Association

Superior Court of Rhode Island

August 30, 2017


         Kent County Superior Court

          For Plaintiff: Stephen A. Rodio, Esq.

          For Defendant: John P. McCoy, Esq.; Todd J. Romano, Esq.


          LANPHEAR, J.

         This 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 and Travel

         The 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.

         The 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.[1] 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.

         The 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.

         Numerous 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.

         Mr. 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.

         He 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.

         The 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.

         Mr. 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.

         Mr. and 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.

         Mr. 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 statement[2]which 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.)

         As 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.

         The 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.

         Exhibit 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.[3] 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.

         In July 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.

         In July 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.

         Ms. 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. [4]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.

         In 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.

         Mr. 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.

         Harry 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 Promenade Avenue.

         On 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.[5] This Court, sitting with a jury, held a bench trial, from which the above facts are gleaned.


         Witness ...

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