Background
Raymond and Debra Desrochers have owned 38 Pine Hill Avenue in Johnston, Rhode Island since 1985. When Raymond Desrochers purchased the lot — then entirely wooded — he had a conversation with George Cioe, the then-owner of the adjacent lot at 36 Pine Hill Avenue, while clearing trees near a row of hemlocks that both men treated as the practical boundary. Cioe’s words were, in substance, that the hemlocks were not going anywhere and that whatever Desrochers did on the north side of them was his own affair. Relying on that understanding, Desrochers over the following years installed a lawn, stone-dust basketball court, landscaping stones, a playset with rock-wall retaining borders, and a staging area for construction equipment — all of it extending up to or beyond the hemlock line.
In July 2011, Luigi Micheli III purchased 36 Pine Hill Avenue. When he commissioned a survey in 2013, it revealed that the surveyed deed boundary lay north of the hemlock line, meaning Desrochers’ improvements encroached on what the deeds described as Micheli’s property. Micheli began marking the boundary and, in May 2016, sent the Desrochers a formal “Notice of Intent to Dispute Adverse Possession.” The Desrochers responded by filing suit the same month to quiet title based on adverse possession, and a temporary restraining order was entered preserving the status quo. A five-day bench trial in Superior Court took place in July 2024.
The critical evidentiary dispute centered on the 1985 Cioe conversation. At his deposition, Cioe said he gave Desrochers “permission to use the property” and recalled that Desrochers had asked permission to build a plaything for his children. At trial, Cioe testified in somewhat different terms — that he told Desrochers the north side of the hemlocks was Desrochers’ own — language more consistent with a boundary acknowledgment than a grant of permission. The trial justice found this inconsistency clouded the hostility analysis, credited the deposition testimony over the trial testimony, and reached a split ruling: plaintiffs had failed to prove hostility as to the strip running along the old hemlock line (from Pine Hill Avenue east to the playset footings), but had proved all elements of adverse possession, including hostility, as to the area east of the playset footings where the staging equipment was kept.
The Court’s Holding
The Rhode Island Supreme Court affirmed in part and vacated in part the Superior Court judgment. On appeal, plaintiffs challenged the trial justice’s finding that any permission from Cioe survived the 1987 sale of the servient parcel to the Biziers, arguing that under Foley v. Lyons, 85 R.I. 86 (1956), a sale of the servient parcel terminates prior permission and restores hostility. They alternatively argued that Cioe’s ambiguous words never constituted permission at all, and that even if they did, the permission extended only to the playset and not to the broader hemlock-line strip. Micheli cross-appealed, contending the trial justice erred in finding hostility established for the staging-area portion and independently erred in finding the disputed area described with sufficient clarity to support an adverse possession decree.
The court applied its well-established standard of review: factual findings by a trial justice sitting without a jury will not be disturbed unless clearly erroneous or based on overlooked or misconceived material evidence, with deference at its zenith in the fact-intensive setting of adverse possession. Legal questions, including the reach of Foley v. Lyons and its interaction with Barrow v. D & B Valley Associates, LLC, 22 A.3d 1131 (R.I. 2011), were reviewed de novo. The court’s overall disposition — affirming the split result in part and vacating it in part — resolved the competing arguments on permission, the effect of property transfers on prior permissive use, and the sufficiency of the evidentiary record to identify the adversely possessed parcel.
On the question of describing the disputed area, the trial justice had rejected the requirement of metes-and-bounds precision, finding the hemlock line and playset footings established the boundary with sufficient particularity. The Supreme Court addressed whether that approach satisfied the clear-and-convincing standard required under Rhode Island adverse possession law, including Coscina v. DiPetrillo, 186 A.3d 590 (R.I. 2018), and suggested the parties engage a surveyor to delineate the new boundary for recording purposes.
Key Takeaways
- A grantor’s ambiguous statement that a neighbor may use land “on that side” can constitute permission sufficient to defeat the hostility element of adverse possession if the trial justice credits deposition testimony over contradictory trial testimony — even where the possessor subjectively believed he owned the land.
- Under Rhode Island law, the trial court has authority to split a single disputed strip into discrete sub-portions — finding hostility established for one (where permission never reached) and not for another (where permission was given) — rather than treating the entire encroachment as a single adverse possession unit.
- The effect of a servient-parcel sale on a prior permissive use remains a contested question in Rhode Island; plaintiffs pressed Foley v. Lyons while the trial justice applied Barrow, and the Supreme Court’s resolution of that conflict will govern future cases involving transfers of burdened property.
- Rhode Island adverse possession claimants need not prove boundaries by precise metes and bounds, but must identify the disputed area with enough particularity through the evidence — natural features such as a tree line and structural features such as playset footings can satisfy that standard.
Why It Matters
This decision is significant for Rhode Island real property practitioners because it directly engages the unresolved tension between Foley v. Lyons (sale of servient parcel terminates permission) and Barrow v. D & B Valley Associates (alienation of either parcel does not constitute a new hostile act). For decades, owners of abutting residential lots have relied on informal conversations with neighbors as substitutes for surveys — a common practice that, as this case illustrates, can generate deep factual disputes about whether words amounted to neighborly goodwill, a genuine grant of permission, or a mutual misunderstanding about where the boundary actually lay.
For litigators, the case is also a reminder that deposition testimony from a disinterested predecessor-in-title may carry decisive weight at trial even when the witness partially recants at the merits hearing. The trial justice expressly credited Cioe’s deposition over his live testimony because the deposition showed internal consistency — a credibility finding the Supreme Court was reluctant to second-guess under the highly deferential adverse possession standard. Attorneys advising clients in boundary disputes should carefully preserve and assess third-party deposition testimony early, as it may ultimately determine which side of a hemlock line their client ends up owning.