REAL PROPERTY-ADVERSE POSSESSION-ADVERSENESS OF POSSESSION WHEN POSSESSOR HAS NOT CLAIMED A FEE

From 1924 until 1948 plaintiff and her family were in apparent, open and continuous possession of a portion of defendant's lot, without permission, and with the intent to exclude the defendant and all others from possession. Although plaintiff and her family constructed a lawn, gardens, steps and parking space on the premises, the court found that such use was "an incident to her occupancy of the house" on the adjoining lot, and was without any separate claim of title. In 1948, defendant entered and began excavating for the foundation of a house. Plaintiff sought an injunction and damages, resting her claim on title acquired through adverse possession.

The evidence disclosed that from 1937 until 1941 plaintiff and her family occupied the adjoining lot as tenant of a bank rather than as owner of the fee, but the bank made no claim to the disputed premises. From a final decree dismissing the bill, held, affirmed. Possession will not ripen into fee simple title where the possessor has not claimed a fee throughout the period of the statute of limitations. Holmes v. Johnson, (Mass.

1949) 86 N.E. (2d) 924.