CATHERINE E. CONTE, trustee, [Note 1] vs. MARINE LUMBER COMPANY, INC. (and a companion case). [Note 2]

ARMSTRONG, C.J. South of the town of Nantucket, [Note 3] in the direction

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of Miacomet Pond, in an acute angle formed by the junction of Somerset Road and Marble Way, lies a one-half acre, triangular-shaped parcel of land in dispute between the parties, known to them as "lot 5." The judge, after hearing the evidence, rejected the various claims of Marine Lumber Company, Inc. (Marine Lumber), to hold an interest in lot 5 though adverse possession, estoppel by deed, or equitable estoppel, and ruled that Catherine E. Conte, as trustee for the Cassidy Family Trust (trust), had a clear record title to the disputed lot 5. Marine Lumber has appealed. [Note 4]

Marine Lumber's connection to the lot arose in 1987 when William P. Cassidy, Jr. (hereinafter, W. Cassidy), being indebted to Marine Lumber for $39,650, gave Marine Lumber a promissory note in that amount secured by a mortgage of his interest in lot 5. Three years later, W. Cassidy, in default on the note and facing foreclosure on the mortgage, gave Marine Lumber a quitclaim deed of his interest in the lot in lieu of foreclosure. [Note 5] His interest in the lot was based on a quitclaim deed of the lot from his grandmother, Mary Cassidy, to W. Cassidy and his brother Padraic Cassidy as tenants in common, which was dated November 27, 1987.

Marine Lumber concedes that Mary Cassidy, at the time of the deed to her grandsons, did not have record title to the parcel, which was held by Norwood Farm Trust. Marine Lumber instead argues that she had a valid claim to title tracing back to an adverse possessor, one Gilbert Burchell, who, according to Marine Lumber's claim, used lot 5 continuously, openly, and

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adversely for twenty-one years, in the circumstances next described.

In 1939, a couple named Williams conveyed to Gilbert Burchell and his wife Isobel Burchell by deed a parcel of several acres that lay between Somerset Road and Marble Way, somewhat to the east of the disputed lot 5 (Williams land). In 1958, the Burchells were deeded a small working farm (Esau farm) that lay just to the east of the Williams land. Between 1939 and 1961, when he divorced Isobel and moved to Florida, Gilbert Burchell used the land between Somerset Road and Marble Way for his businesses. Foremost was his rubbish business; he would collect garbage and bury it on the land. He stripped trees from the land and planted rye grass, both to attract deer -- he was a hunter -- and to plow under for the purpose of enriching the soil. He supplied loam throughout Nantucket and, at times, maintained cemeteries, using some of his loam for grading and planting new graves. Gilbert Burchell may have had other lots on the island; one Henry Garnett, who used to work for Gilbert Burchell, testified (by deposition) to burying Siasconset garbage on land nearby. So far as the record shows, the land that Gilbert Burchell was deeded and whatever adjacent land he may have used for the purposes described were not, except for the Esau farm, [Note 6] the site of a home or buildings, nor were they fenced in.

In 1961, when he left Nantucket, Gilbert Burchell conveyed "all his property in Nantucket" to Isobel, who in 1973 deeded to their son Edward Burchell and one Donald Visco a portion of the land between Somerset Road and Marble Way claimed to have been worked from 1939 to 1961 by Gilbert Burchell. The portion included what became lot 5; it carried that designation on a 1973 plan bearing an endorsement by the planning board that approval under the subdivision control law was not required. [Note 7] Shortly thereafter, Edward Burchell and Donald Visco conveyed the land to Mary Cassidy, who in 1975 conveyed

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most of the land, including lot 5, back to Edward Burchell subject to an agreement that he would reconvey the land to her either on demand or on his succeeding in having the land registered. In June, 1977, Edward Burchell filed in the Land Court a petition for registration of a parcel of land between Somerset Road and Marble Way, comprising in the order of seventeen acres, [Note 8] the southwest corner (or triangle) of which was the disputed lot 5. In 2001, while the petition for registration was still pending, Edward Burchell purported to convey the entire seventeen-acre registration parcel (Burchell property or registration parcel) to a real estate trust, Blackfin, LLC (Blackfin), the two principals of which were W. Cassidy and J. Daniel Lugosch III. [Note 9] The deed recognized that the Burchell property was comprised of parts for which Edward Burchell's ownership was deeded and parts for which Edward Burchell's claim to ownership was grounded in adverse possession. Independently, Blackfin purchased from Norwood Farm Trust, record owner of lot 5, all parts of Edward Burchell's seventeen-acre registration parcel to which the Norwood Farm Trust held record title. Thereafter, Blackfin conveyed to Conte as trustee of the trust a portion of the seventeen-acre registration parcel that included lot 5.

Adverse possession. The two tracts deeded to Isobel and Gilbert Burchell, the Williams land and Esau farm, together accounted for only about ten of the more than seventeen acres claimed by Edward Burchell in his registration petition. More than seven acres, including lot 5, were based on the claim that Gilbert Burchell had used the land in his business from 1939 to 1961, when he deeded all his land in Nantucket to Isobel Burchell and moved to Florida. The claim was that by his "nonpermissive use which [was] actual, open, notorious, exclusive and adverse for twenty years," Ryan v. Stavros, 348 Mass. 251, 262 (1964) -- that is, the period from 1939 to 1961 -- Gilbert

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Burchell had by operation of the Statute of Limitations barred recovery of the property by record owner or owners. [Note 10]

To succeed in acquiring possession through adverse use, "[t]he nature [of the required use varies] with the character of the land." LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488, 490 (1938). As to a wild or wooded area, the general rule, as the judge recognized, is that a finding of adverse use will not succeed if the area is unenclosed or uncultivated. "[M]erely cutting wood and timber from wild land, and clearing and cultivating a part of it, are no proof of a disseisin beyond that part." Morris v. Callanan, 105 Mass. 129, 133 (1870). Here the testimony was that Gilbert Burchell stripped some areas of trees, buried rubbish, and planted rye grass both to attract deer and to plow under to enrich the soil. He dug loam from some parts. For purposes of decision we can assume that such activities could, with continuity and notoriety, suffice in intensity to qualify for adverse possession despite the lack of fencing or the construction of buildings. The problem with Marine Lumber's claim is that it failed to persuade the judge that those activities were conducted on lot 5 specifically, as contrasted with other areas of the registration parcel.

The evidence did not require the judge to find otherwise. The most specific evidence presented of the location of the activities was in the form of two videotaped depositions taken in 1995. The deponents, both deceased by the time of the trial in March, 2003, were Edward Burchell, born in 1942, three years after the start of the alleged twenty-one year period of adverse use; and Henry Garnett, who was born in Nantucket in 1919 and worked

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for Gilbert Burchell for many years. Apart from instances of Garnett pointing to a plan dated 1995 to show where the various activities were conducted, which are blind references in the record before us, the testimony of Garnett supported the judge's finding that the loam removal and rubbish burying activities took place in the central area of the 1995 plan along the fence that divided the land Gilbert Burchell was working from the Esau farm; and that the rye grass planting and hunting activities were concentrated in the center of the area on the 1995 plan (i.e., the areas south and west of the Esau farm) and not on lot 5 (in the extreme southwest corner of the area shown on the 1995 plan). [Note 11] In a 1990 affidavit that Garnett had reaffirmed in his deposition, Garnett had stated, "I recall that from about 1939 to about 1961 he [Gilbert Burchell] continuously used all of the land shown on the plan and southwesterly of the Esau farm for his business." The judge, exercising the proper prerogative of the fact finder, declined to weigh that general statement more heavily than the more location-specific answers Garnett gave in deposition. [Note 12]

All in all, Marine Lumber, relying on a variety of alleged

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uses many years before trial that left no permanent traces on the ground, and on affidavit and deposition testimony that was not compelling in defining the precise location where activities took place or the precise times as to such activities, presented a thin case for a finding of continuous, adverse possession for the requisite period. The judge cannot be faulted for declining to find that Marine Lumber had title by adverse possession.

Estoppel by deed. The rejection of the adverse possession claim requires a conclusion that no interest in lot 5 passed through the chain of conveyances beginning with Gilbert and Isobel Burchell, the chain that included the deed of lot 5 by Mary Cassidy to her grandsons W. Cassidy and Padraic Cassidy, and the deed of lot 5 from W. Cassidy to Marine Lumber. Citing Zayka v. Giambro, 32 Mass. App. Ct. 748, 752-753 (1992), however, Marine Lumber argues that the deed last mentioned -- W. Cassidy to Marine Lumber -- acts to estop W. Cassidy from raising against Marine Lumber any actual title to lot 5 that he should thereafter acquire from the true owner. As applied to this case, Marine Lumber argues that Blackfin was a nominal holder of title only, a front for W. Cassidy, and that the conveyance of lot 5 from the true owner, Norwood Farm Trust, to Blackfin was in essence a conveyance to W. Cassidy, with the effect that at the time of that conveyance title inured to Marine Lumber.

The deed from W. Cassidy to Marine Lumber was a quitclaim deed, and Marine Lumber recognizes that, historically, the doctrine of estoppel by deed was limited to warranty deeds. See cases and authorities cited in Zayka v. Giambro, 32 Mass. App.

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Ct. at 752. Marine Lumber, however, reads our Zayka decision as having eliminated that distinction, prompted in part by the fact that quitclaim deeds have largely supplanted warranty deeds in conveyancing practice.

Marine Lumber reads Zayka too broadly. It is true that in Zayka we applied estoppel to a quitclaim deed, and we pointed out that "no compelling logic or binding precedent proscribes its application to a quitclaim deed" -- presumably meaning to the extent that the covenants in a quitclaim deed support the logic of estoppel. Id. at 753. "Quitclaim covenants, after all, do warrant that the grantor shall not impair the title and shall defend the title against those claiming under the grantor. See G. L. c. 183, § 17." Ibid. Hence, we held that the title given by the father, although by quitclaim deed, operated to estop his daughter from asserting title by inheritance from him. Id. at 751. See Dalessio v. Baggia, 57 Mass. App. Ct. 468, 470-471 (2003). [Note 13]

That principle does not apply to the present case because Blackfin acquired its title to lot 5 not from W. Cassidy, or one claiming under him, but from Norwood Farm Trust, the record owner, who was a stranger to the Burchell-Cassidy-Marine Lumber transactions. In a quitclaim deed, the grantor's covenant "is a restricted covenant . . . . He agrees to warrant the title granted or released, and nothing more. That title only he under[takes] to assert and defend. To extend the covenant further, would be to reject or do away with the restrictive words of it, and to enlarge it to a general covenant of warranty . . . ." Comstock v. Smith, 13 Pick. 116, 120 (1832). Under the quitclaim deed form, the grantor "[does] not undertake to convey to the [grantee] an indefeasible estate, but only his own

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title, nor [does] he agree to warrant and defend it against all claims and demands, but only against those derived from himself; by which he must be understood to refer to existing claims or [e]ncumbrances, and not to any title which he might afterwards acquire by purchase or otherwise from a stranger." Ibid.

The estate that W. Cassidy conveyed to Marine Lumber by a quitclaim deed was a claim of title that had potential value although it ultimately proved unsuccessful. This was not due to any impairment of the title by W. Cassidy or one in privity with him. W. Cassidy gave Marine Lumber just what he promised: the title that he himself had, with no encumbrances created by himself or those claiming through him. There has been no breach of warranty, and no occasion for estoppel by deed. [Note 14] The analysis might be different if Marine Lumber were holding the property under the mortgage deed rather than under the quitclaim deed. [Note 15]

Equitable estoppel. Marine Lumber argues, finally, that by operation of the doctrine of equitable estoppel or promissory estoppel, the trust has an obligation to convey to it a fifty percent undivided interest in lot 5, and that the obligation exists regardless whether Marine Lumber's adverse possession claim is sustained. Its reasoning is as follows.

In October, 1975, Mary Cassidy conveyed to Edward Burchell three lots shown on the 1973 plan by John J. Shugrue, lots 5, 7, and 8. [Note 16] The conveyance was made subject to an agreement that was recorded with the deed, which obligated Edward Burchell to reconvey the lots to Mary Cassidy on demand or

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when they were registered. In his 2001 deed to Blackfin, Edward Burchell referenced the agreement and made the conveyance subject to the obligation therein contained. As we now know, Blackfin took no interest in lot 5 from Edward Burchell, but rather was conveyed lot 5 by Norwood Farm Trust. Nevertheless, Marine Lumber makes the argument that, by accepting the entire registration tract from Edward Burchell subject to the agreement, Blackfin obligated itself to reconvey to Mary Cassidy or her heirs or successors in title those parts of the registration tract that were subject to the agreement. Lots 5, 7, and 8 were so subject.

For several reasons, the argument is incoherent. To benefit from the agreement, Marine Lumber would have to be a successor in title to Mary Cassidy. In fact, neither had any title whatever in lot 5. Moreover, if Mary Cassidy had taken legal title under the deed from Stanley Cassidy (see note 10, supra), the obligation of the agreement, to return the legal title to Mary Cassidy, would have been extinguished as to lot 5 by merger, as Mary Cassidy then had both the legal title and the beneficial rights in the property. Thus, Marine Lumber would have held whatever interest it took in lot 5 free of any obligation under the agreement. This is the same as to say that if Mary Cassidy had received the legal title to lot 5 from Stanley Cassidy, and conveyed, as she did, all her right, title, and interest to W. Cassidy and his brother Padraic, they would have taken the title as a gift, free of any obligation under the agreement to return the legal title to her. Marine Lumber cannot escape this result by arguing that its right arose not from the agreement, but rather from the obligation Blackfin undertook when it accepted the deed from Edward Burchell, because the obligation was only to carry out the terms of the agreement. As applied to lot 5, Mary Cassidy had herself extinguished any such obligation. The judge correctly ruled that there was no basis for finding equitable estoppel.

The judgments of the Land Court determining that lot 5 belongs to the Cassidy Family Trust must therefore be affirmed.

So ordered.