CLARISSA ALLEN vs. ROSS F. BATCHELDER, trustee, & others. [Note 1]

KASS, J. Sebastian, the tobacco-chewing sheep, would have been disconcerted by this appeal. His status as a Martha's Vineyard tourist attraction was a function of his visibility on the Allen farm, astride the South Road in Chilmark.

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Sebastian could not have achieved the modest notoriety he enjoyed without tenure of the Allen farm by his owners, Henry and Maude Allen. The appellant, Batchelder, has called in question the exclusivity of the Allens' title, which has come down to Clarissa Allen (Clarissa). Batchelder espouses a theory that his predecessors in title, nonpossessory cotenants, were not affirmatively ousted from possession of the locus and that, therefore, the Allen family could not, as the Land Court judge determined, have acquired exclusive title to the farm by adverse possession. In light of 150 years of well developed case law, we conclude that the appellant's position is so untenable as to be frivolous.

The case began with a petition in the Land Court under G. L. c. 185, Section 1, for registration. [Note 2] Clarissa occupies the locus, consisting of 116.7 acres, which her forebears acquired between 1762 and 1857. Land Court examiners (there were two) reported a record defect in Clarissa's title which developed upon the death of Tristam Allen, II, in 1864. [Note 3] Tristam left undivided fractional interests in a portion of the Allen farm to his widow, Tamson. Neither she, nor persons to whom her interests passed by devise, who were outside the Allen family, ever occupied the farm or made claim to any rents and profits from it. Batchelder claims under that line of title. Clarissa's line, in contrast, lived on and worked the farm actively.

After a long trial, the Land Court judge found that, at least from 1892, "the Allen farm was possessed by various members of the Allen family to the exclusion of any cotenant in common." Clarissa's grandfather, Henry Allen, was well known in Chilmark. He held office as selectman, assessor, overseer of the poor and town moderator, manifesting a bent for public life which a witness, Captain Poole, attributed to Henry's being "lazier than hell . . . he

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was a typical small-town politician. He'd pat you on the back wherever you met him and agree with you 100 percent." Manifestly, his occupancy of the Allen farm was widely known and far from concealed. Maude, his wife, was the sheep's patroness. Henry's son, Roger, industrious by any measure, ran the farm and used some of the farm's outbuildings for a contracting business. Roger died in 1967, and farming came to a halt. His widow, however, continued to pay taxes on the locus, aggressively posted no trespassing signs, and routinely checked the farm. Clarissa, in 1975, came to live on the farm and to rejuvenate it.

That the Allen family possessed the locus actually, openly and notoriously for at least ninety years is not in controversy. As the judge observed in his detailed and careful decision, the evidence on this score was overwhelming. [Note 4] Sebastian, the sheep, was but a minor example of how closely the Allen family were identified with the farm by residents of Martha's Vineyard. The judge found an equally strong case had been made that the Allen's possession was adverse and nonpermissive and that, accordingly, they had acquired good title by adverse possession to the seven parcels tainted with a record defect. For the elements of adverse possession, see Ryan v. Stavros, 348 Mass. 251, 262 (1964).

Batchelder's attack is on whether the Allens' possession was adverse and nonpermissive. It is uncontroverted that Clarissa's line was never aware of the claim now pressed on behalf of the Batchelder line and that no one in the Batchelder line was ever cognizant of the potential for that claim until publication of the registration petition in 1980 was called to Batchelder's attention by a William J. Devine. The judge found expressly that during the ninety-year period upon which he concentrated, no claim of title by Batchelder's predecessors was ever made.

Batchelder supports his claim with the argument that the interest of a cotenant cannot be wiped out by prescription

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without an ouster and, more to the point, communication of that ouster to the absent cotenant. It is correct that sole possession by one tenant in common is not in itself adverse to the interest of a nonpossessory cotenant; it could be consistent with the right of the cotenant. Rickard v. Rickard, 13 Pick. 251, 253-254 (1832). As early as that 1832 case, however, it was regarded by Chief Justice Shaw as equally "well settled, that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer an actual ouster." Ibid. There need be no "turning out by the shoulders" to manifest a decisive intent to occupy to the exclusion of the absent cotenant. Doe v. Prosser, 1 Cowp. 217, 218, 98 Eng. Rep. 1052 (1774). [Note 5] The principle has been many times restated or applied. Lefavour v. Homan, 3 Allen 354, 355 (1862). Ingalls v. Newhall, 139 Mass. 268, 273 (1885). Joyce v. Dyer, 189 Mass. 64, 67-68 (1905). Nickerson v. Nickerson, 235 Mass. 348, 352-353 (1920). Snow v. E.L. Dauphinais, Inc., 13 Mass. App. Ct. 330, 334 (1982). In those cases the periods of exclusive possession which worked an ouster varied from thirty to forty-seven years. Clarissa's line has possessed the Allen farm for not less than ninety years. "[M]en do not ordinarily sleep on their rights for so long a period, and a strong presumption arises that actual proof of the original ouster has become lost by lapse of time." Lefavour v. Homan, supra at 355-356.

It distorts the cases cited to find in them a requirement that the absent cotenant must have knowledge that he is dispossessed. Knowledge, when the absent cotenant appeared

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to have it, was a convenient factor in the equation in Ingalls v. Newhall, supra at 273-274, and in Nickerson v. Nickerson, supra at 353. The underlying inquiry, however, has always been what knowledge the absent party "must be deemed to have had." Ingalls v. Newhall, supra at 274. Precisely how long a possession should be to raise a presumption of ouster depends on many circumstances, ibid., but it is apparent from the cases that ninety years is far more than enough. Lefavour v. Homan, supra at 355, emphasizes that absence and failure to make a claim, "if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right," furnishes evidence from which the trier of fact ought to infer an actual ouster and adverse possession. Requiring actual knowledge of disseisin "would deprive the principle of prescription of much of its value in quieting controversy and giving sanction to long continued usages." Foot v. Bauman, 333 Mass. 214, 217-218 (1955). Long dormant claims to title could rise from the dust bin of history and many titles would become unsettled. This is particularly so in a case such as the instant one, where the absent parties did not live near the locus. Ada Cleveland, who took from Tamson, and her chain of title down to Batchelder, all lived off island. See also Ottavia v. Savarese, 338 Mass. 330, 333-334 (1959), which disposes of the proposition that the Allens' possession needed to be consciously adverse to the Batchelder line, i.e., that the Allens needed to be aware of the Batchelder claim to defeat it.

We have dwelled at some length on the extensive and decisive case law which defeats this appeal because it bears on how we deal with a motion by the appellee, Clarissa Allen, for damages and costs under Mass.R.A.P. 25, and Mass.R.A.P. 26, both as amended, 378 Mass. 925 (1979). Rule 25 authorizes assessment of damages, as well as double costs of the appeal, in instances where the appeal is frivolous. Mills v. Carlow, 15 Mass. App. Ct. 1104 (1983). See Good Hope Refineries, Inc. v. Brashear, 588 F.2d 846, 848 (1st Cir. 1978). See the cases collected in 9 Moore's Federal

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Practice par. 238.02 (2d ed. 1983), in which the cognate Federal rule (Fed.R.A.P. 38) has been applied. See also Katz v. Savitsky, 10 Mass. App. Ct. 792, 798 n.8 (1980). When the law is well settled, when there can be no reasonable expectation of a reversal, an appeal is frivolous. See Note, Penalties for Frivolous Appeals, 43 Harv. L.Rev. 113, 114-116 (1929).

An appeal should not, however, be tarred as frivolous because it presents an argument that is novel, unusual or ingenious, or urges adoption of a new principle of law or revision of an old one. Compare G. L. c. 231, Section 6F. In the instant case the appeal covers no ground not gone over by the cases, and the appellant has urged no policy consideration which would warrant reappraisal of the settled rule. Indeed, leading authorities are consistent with the Massachusetts decisions. Restatement of Property Section 458 comment i, illustration 9 (1944). 2 & 3 American Law of Property Sections 8.56 & 15.3 (1952). 7 Powell, The Law of Real Property par. 1013[2] (Rohan rev. ed. 1982).

Here, the appellant's case had lost all vestige of merit after the Land Court judge made his decision. A Land Court judge's findings in registration proceedings carry weight even beyond that generally accorded by an appellate court to findings of a trial judge. Norton v. West, 8 Mass. App. Ct. 348, 350 (1979). Coupled with the strong evidence built up in favor of Clarissa, there was no hope for the appellant on any issue of fact and, indeed, the appellant, Batchelder, attempted no argument aimed at the judge's findings.

The judge's decision also contained a discussion of the relevant authorities, all of which had been copiously cited and discussed in a posttrial memorandum filed on behalf of Clarissa. Before he launched his appeal, therefore, the appellant was fully aware of the powerful precedents built up over the years against the appellant's position. There was no reasonable expectation of a reversal; the appeal was frivolous.

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Another aspect of the case warrants comment. Batchelder, a candid witness, testified he resided in Winthrop and knew nothing about the Allen farm on Martha's Vineyard or a potential claim to an interest in it until, as we noted above, William J. Devine brought the possibility to attention. Devine proposed that he would pay the costs of mounting a legal campaign to assert the Batchelder claim and that he (Devine) and Batchelder would share the net proceeds of anything they realized from the litigation. To that end, Batchelder conveyed his interest in the locus, whatever it might be, to a trust of which he and Devine were equal beneficiaries.

This is the third occasion within a year in which we have come across the same pattern of a title challenge induced and financed by Devine. See Devine v. Nantucket, 16 Mass. App. Ct. 548 (1983), and Hilde v. Dixon, 16 Mass. App. Ct. 981 (1983). He appears to be a bounty hunter in troubled titles. The appellee has not raised the issue of champerty, but it is a subject to which a court may turn its attention on its own initiative. See Sherwin-Williams Co. v. J. Mannos & Sons, 287 Mass. 304, 312 (1934); Baskin v. Pass, 302 Mass. 338, 342 (1939). Champerty is the maintenance, at the champertor's expense, of a legal action in consideration of profit out of the action, if any. Sherwin-Williams Co. v. J. Mannos & Sons, 287 Mass. at 312. Pupecki v. James Madison Corp., 376 Mass. 212, 219 (1978). Devine is not a lawyer, but it is not necessary to be a member of the bar to make a champertous agreement. Graustein v. Boston & Maine R.R., 304 Mass. 23, 27 (1939). Gill v. Richmond Co-op. Assn., 309 Mass. 73, 76 (1941).

Champerty does not presuppose that the case to be maintained is a frivolous one. It is the latter characteristic which provides the occasion for invocation of Mass.R.A.P. 25. This case's champertous antecedents, however, bear on our willingness to apply the sanctions available under the rule and, as well, color our view of the damages which are appropriate.

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Accordingly, the appellee, Clarissa Allen, is to have $5,000 damages on account of her legal fees for the appeal, [Note 6] as well as double costs of the appeal.

The judgment is affirmed. Damages and costs shall be assessed in the Land Court as above provided.

So ordered.