Case of the Day – Friday, April 30, 2021

WHEN LILACS LAST ON THE FENCELINE BLOOM’D

rhodeisland210430The lilac bush over at the neighborhood church has started to bloom. It’s quite tranquil. Rather unlike the situation that attended the blooming lilac bush along the fence separating two tiny plots in the tiny State of Rhode Island and the Providence Plantations.

The case that arose over the lilacs was as big as the lots were small, encompassing the Massachusetts Rule, the doctrine of acquiescence, dueling experts, multiple police reports, and before it was over, legal fees aplenty.

 Walt Whitman was lamenting the death of Abraham Lincoln in writing

                  When lilacs last in the dooryard bloom’d,
                      And the great star early droop’d in the western sky in the night, 
                  I mourn’d, and yet shall mourn with ever-returning spring…

He could have been mourning the loss of neighborly civility over what even the judge called a “tempest in a teapot.”

Rosa v. Oliveira, 115 R.I. 277, 342 A.2d 601 (1975). The Rosas moved into their little house on a 43’ x 71’ lot in October 1970, next to the little house on the next-door 43’ x 71’ lot belonging to the Oliveiras. The adjoining lots were separated by a picket and wire fence installed by the prior owners of the Rosa lot some 70 years before. A line of 15’ tall lilac trees planted many years before ran along the Oliveira side of the fence.

Shortly after moving in, the Rosas got permission from the Oliveiras to cut the lilac branches which were growing over the fence and resting on the roof of the Rosa house. On Armistice Day, November 11, 1970, Mrs. Rosa cut down those parts of the trees that were on the roof. When Mr. Oliveira returned home, he was upset by what he saw. According to him, the lilacs “had been cut bad [sic] beyond the boundary line.” He said that when he asked Mr. Rosa about the pruning, Rosa replied, ‘Oh, that. It bothered us… You don’t know what you own.”

As the judge wryly put it, “While November 11, 1970, commemorated the cessation of World War I, it marked the beginning of hostilities which were to take place in the subsequent months on the ‘no man’s land’ that ran between the Oliveiras’ and Rosas’ residences.”

neighbor210430Sometime after the lilac trimming, Mr. Rosa told Mr. Oliveira he wanted to replace the old fence with a new one that would afford greater protection to children, Oliveira replied, “You can’t put the fence because this fence is mine and you can’t touch it.” Later, Mr. Oliveira replaced the wooden section of the fence with another wooden fence. It came down. In November 1971, the Rosas hired a fence builder who came out to the property, cut some lilacs, poured some concrete and set up some steel poles. Mr. Oliveira ripped out the poles. The Bristol police made several visits to both properties. Each side hired surveyors to lay out and determine the location of the dividing line between the two parcels of real estate.

Finally, in January 1972, the Rosas sued to quiet title to the fence – which they said belonged to them. Oliveira said the fence was his, and the Rosas had trespassed, and – for good measure – had damaged the lilac trees on his side of the line.

At trial three experts testified as to the proper boundary line, but none could agree precisely where it fell. It appeared that at most, the fence wandered onto the Oliveira property about 1½ feet.

The Rosas brought in someone from the family that has sold them the property, and her testimony established that the fence had been there for years, her family had put it in and used all of the property up to the fence, and that neither the Oliveiras nor the people who had owned it before had ever complained. Oliveira as much as admitted that by arguing that the case had “started over the cutting of the lilacs.”

Mrs. Rosa testified that she had not cut down the lilac bushes that grew on the Oliveira’s side of the line.

The trial court found that the fence marked the property line by acquiescence, and that Mrs. Rosa had properly exercised her rights to trim the lilac on her side of the fence line.

The Oliveiras appealed.

Held: The trial court ruling was affirmed.

The principle is well settled, the Court of Appeals said, that acquiescence in a boundary line assumed or established for a period of time equal to the statute of limitations will prevent the losing landowner to try to move the line back to where it actually belongs. The acquiescence is “conclusive evidence of an agreement to establish such a line and the parties will be precluded from claiming that the line so  acquiesced in is not the true boundary.”

Here, the appellate court ruled, any difference between the experts as to the location of the division line “is completely immaterial in the light of the trial justice’s finding as to the fence line, since he found that “the fence, which was built long before Mrs. Rosa took her saw to the lilacs, served as the dividing line between the two properties.”

lilacs180919As for Mr. Oliveira’s counterclaim, based on his allegation that the Rosas had damaged his lilac trees, Mrs. Rosa testified that she cut only those branches that protruded over or through the wire fence. “In taking such action,” the Court of Appeals said, “she was exercising her common-law right as a landowner to cut off the limbs which were overhanging or encroaching on her property from trees located on the adjoining property… Even though there is evidence that the fence builder hired by the Rosas had cut some of the lilac trees, Mrs. Rosa testified that the fence was being built on their property one foot away from the original fence line. Having brought the counterclaim, Mr. Oliveira incurred the burden of persuading the trial justice that the Rosas or their agents had damaged that portion of the trees that were on his side of the line. This he failed to do.”

– Tom Root

TNLBGray140407

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