Property dispute: appeals court weighs evidence for adverse possession and prescriptive easement

Aspell v. Rad (boundary dispute) — The Appeals Court heard competing accounts over whether decades of lawn care, plantings and recreational use by the Aspell family gave rise to a prescriptive easement or adverse possession across a strip of land between neighboring properties. The appellant (Aspell family) argued their documented, continuous use since the 1970s met the elements; respondents (the Rads and their witnesses) and the trial judge had reached different conclusions for different parts of the parcel.

Appellate counsel for the Aspells argued they used the entire disputed strip openly and continuously from 1972 onward—mowing, gardening and otherwise treating the area as their own—and presented photographs and witness testimony to support that timeline. Counsel told the panel it is not required that the use be identical year-to-year and cited precedent that differing seasonal uses may still support adverse possession or prescriptive rights.

Counsel for the Rads and their lender pointed to gaps in the evidence, discrepancies between a recorded survey and the witnesses’ recollections of how far the Aspells mowed, and testimony that occasional mowing by neighbors did not amount to the kind of exclusive, continuous acts necessary to acquire title. The appellees emphasized that the trial judge could reasonably credit more robust photographic evidence near the pool area while declining to find adverse use for other portions of the strip.

The panel questioned both sides about the quality of the photographic record, the reliability of recollections from witnesses who were minors when some acts occurred, and whether the trial judge could reasonably infer permissive use. After argument the court took the matter under advisement.