CROSBY vs. HOLBROOK, TOWN OF, MISC 05-308965

Plaintiff Wayne Crosby commenced this action on April 27, 2005, seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, as to the rights of the parties to a parcel of real property located on South Franklin Street in Holbrook, comprising approximately forty-two acres of land. Defendant the Town of Holbrook answered the Complaint on May 15, 2005.

On July 30, 2007, John Blatchford and Peter Blatchford filed a Motion to Intervene as Defendants. The motion was argued on September 4, 2007, and allowed (Trombly, J.), adding John Blatchford and Peter Blatchford as defendants. The intervener defendants answered the Complaint the same day.

On September 5, 2007, with leave of court, Plaintiff filed an Amended Complaint, adding certain parties as defendants. [Note 1] The Town of Holbrook answered the Amended Complaint on September 21, 2007. [Note 2] Edward J. Dacey, Jr. and Catherine Dacey-Scott filed an Answer on October 3, 2007. John Blatchford, Peter Blatchford, Meredith C. (Baker) Hayes, Pauline A. (Baker) OShea, Elizabeth H. Baker filed an Answer on October 3, 2007. On March 3, 2009, Edward J. Dacey Jr. and Catherine Dacey-Scott withdrew their appearance and objections in the case.

Trial was held on March 3 through March 5, 2009 and March 12, 2009, at the Land Court. The court held a view of the Property and concluded trial in Randolph, on March 20, 2009. All remaining defendants except for the Town of Holbrook failed to appear. Therefore, they are hereby DEFAULTED, pursuant to Rule 55(a). Stenographers, Pamela St. Armand and Karen Smith were sworn to take the testimony.

Testifying were Steven Rumba, Donna Crosby, Wayne D. Crosby, William Pritchard, Clifton Winders, and Stephen Levreault for Plaintiff and J. Mark Haney, Kenneth B. Anderson, Joseph Rizzo, John F. Davis, Jr., James Cormier, Scott Witunsky, Thomas R. Cummings, Edward J. OBrien, Michael Yunits, Robert E. McKenna, Pontaya Ruff, Ken ONeil, Joan Brown, Janet ONeil, Donald Austin, Daniel F. Moriarty, Jr., and William D. Marble, Jr. for Defendants. Exhibits 1-16; 22-40; 42; 46-48; 51; 52; 56-59; 63-65; 67; 78; 80; 82; 86-90; 93-102; 105; 108; 116; 119-121; 123; 124; 146-259; 261; 262, and Chalks A-D; F; and G were admitted into evidence and Chalks E-1 and E-2 were marked for identification. On March 20, 2009, the Town of Holbrook filed a Motion for a Directed Verdict.

After reviewing the record before the court, I find the following facts:

1. The property at issue in this case is a parcel located on South Franklin Street in Holbrook, comprising approximately forty-three acres of land (Property).

2. The Property is primarily undeveloped woodland.

3. The Property includes a parcel of land depicted on a plan of land titled Edgewood Park, Holbrook, Mass., owned by D. W. Baker, Scale 40 feet per inch, dated September 1905, and recorded in the Norfolk Registry of Deeds as Plan Number 1946, Plan Book 41 (Edgewood Subdivision Parcel).

4. The Property includes also a parcel of land abutting the Edgewood Subdivision Parcel to the Southeast, consisting of approximately 16.12 acres (Back Parcel). A Decision Sketch is attached.

5. Plaintiff Wayne Crosby is the record owner of certain parcels of real property identified as Lots 88-90 and 113 of the Edgewood Subdivision.

6. A structure stands on Lots 87-90 of the Edgewood Subdivision (Structure).

7. The Property is almost entirely enclosed by an ancient stone wall, which has fallen apart in many sections.

8. In or about 1966, the Town made a number of takings of lots in the Edgewood Subdivision for non-payment of taxes. Some of the takings were foreclosed utilizing the so-called low value procedure. Other lots have been taken by the Town but have not yet been foreclosed.

9. Plaintiff purchased his lots in the Edgewood Subdivision in 1976.

10. In or about the 1950s, Plaintiff laid out and maintained a driveway for access to and from the Property and South Franklin Street located on Lots 100-123 and Dean Street of the Edgewood Subdivision (Driveway).

11. Initially, the Driveway was a narrow dirt road covered with leather chips.

12. At some point, Plaintiff widened the Driveway and built a stone border on each side.

13. From the time he laid the Driveway until 2002, Plaintiff regularly maintained it by adding sand and gravel.

14. In or about 2002, Plaintiff paved the Driveway.

15. In or about 1971, Plaintiff installed a locked gate on the segment of the Driveway located on Lot 104 of the Edgewood Subdivision.

16. Plaintiff has maintained the gate since that time.

17. In or about 1979, Plaintiff installed a second gate on the segment of the Driveway located on Dean Street and Lot 123 of the Edgewood Subdivision.

18. At some point, Plaintiff cleared and leveled an area around the Structure in the Edgewood Subdivision Parcel.

19. Plaintiff eventually expanded this cleared area to its current dimensions (Cleared Area).

20. Plaintiff stores sand and gravel on the Cleared Area for the grading of the Driveway and Cleared Area.

21. In or about the 1970s, Plaintiff installed lighting in the Cleared Area and around the Structure for security purposes.

22. In or about the 1970s, Plaintiff erected a six to eight foot high earth berm along the southern border of the Cleared Area.

23. Plaintiff maintained the berm each year by re-piling the earth.

24. In or about the early 1980s, Plaintiff installed fencing along the berm.

25. Plaintiff also erected a berm along the northern border of the Cleared Area.

26. At some point, Plaintiff began to store and repair vehicles in the Cleared Area, parking them on Lots 63 to 86 of the Edgewood Subdivision.

27. Initially, the stored vehicles on the Cleared Area numbered approximately twelve. Eventually, Plaintiff increased the number of vehicles stored in the Cleared Area as well as a clearing immediately to the East of the Cleared Area in the wooded area.

28. Plaintiff has continued to repair vehicles on the Property since that time.

29. At some point, Plaintiff also began storing a crane in the clearing immediately to the East of the Cleared Area on lots 171 and 172 of the Edgewood Subdivision, which he used to move the salvage vehicles.

30. Plaintiff continuously expanded his inventory of salvage vehicles in the Cleared Area until 1986.

31. In or about 1986, Plaintiff discontinued the salvage business and removed the vehicles from the Property.

32. At some point, Plaintiff began operating a sewage disposal business, known as Tri-Town Sewage, from the Cleared Area.

33. Plaintiff constructed a garage south of the Structure in the Cleared Area, to support Tri-Town Sewage.

34. The garage stood until 2004.

35. In or about the early 1970s, Plaintiff installed Tri-Town Sewage signs along the Driveway and at the Structure.

36. Tri-Town Sewage employees used to park on the Driveway outside the second gate, but subsequently parked in the Cleared Area.

37. Plaintiff has also stored dump trucks, snow plows, bulldozers, and other heavy vehicles and equipment on the Cleared Area for use in the Tri-Town Sewage business.

38. Plaintiff has also stored storage tanks and supplies in the clearing immediately to the East of the Cleared Area.

39. Plaintiff has also stored railroad ties in the clearing immediately to the East of the Cleared Area.

40. Plaintiff has also stored other equipment for Tri-Town Sewage in the Cleared Area, including pipes, manhole covers, and sandstone.

41. In or about 2004, the Town of Holbrook filed a zoning enforcement action in Superior Court, seeking to restrict Plaintiffs business to the parcels to which he holds record title. The court found for the town. Crosby removed much of his business operation from the Property, but continued to maintain control over the Property.

42. From the 1950s to the mid-1960s, Plaintiff drove motor vehicles in the Wooded Parcel, including a four-wheel drive jeep, a shovel dozer, and a bulldozer. Including during this time, on and off during the summer, he drove all the way to the southeast boundary of the Back Parcel. In order to do this, he made one or more openings in the internal stone wall.

43. In or about the 1960s, Plaintiff cleaned garbage and debris from the Property. He hired high school students to pick up glass that had been discarded on the portion of the Property abutting South Franklin Street.

44. In or about 1969 to 1971, Plaintiff removed various structures that had been built on the Property.

45. In or about the late 1960s or early 1970s, Plaintiff contracted an engineer to stake out the perimeter of the Property.

46. In or about the late 1960s or early 1970s, Plaintiff posted no trespassing signs at regular intervals around the Property.

47. Plaintiff has maintained these signs since that time.

48. Beginning in or about the early 1970s, Plaintiff occasionally cleared the vegetation around the stone wall defining the perimeter of the Property to make it more visible.

49. In or about the early 1970s and again, in or about the early 1980s, Plaintiff walked the perimeter of the Property.

50. In or about 1977, Plaintiff applied to the Town for and was issued a license to install a sewer pipe. The license states that Tri-Town Sewage had been operating for the previous eleven years.

51. By letter dated June 4, 1982, the Board of Selectmen of the Town of Holbrook, through its Chairman, Frank W. McGaughey, commanded Plaintiff to remove all material and equipment from the Towns land.

52. On December 17, 1982, following Plaintiffs request for findings, pursuant to Section 5 of the Holbrook Zoning By-Laws, the Town of Holbrook Zoning Board of Appeals found that a non-conforming use does exist on the lots owned of record by Plaintiff. The Board also noted that Plaintiff was also operating his businesses on some lots which he did not own.

53. Beginning in or about 1982, Plaintiff often requested of the Towns Tax Collector that he be billed for the taxes on the Property.

***

As an initial matter, The Towns Motion for Directed Verdict is hereby DENIED. As a secondary matter, Plaintiff calls into question Defendants standing to challenge the Plaintiffs title to the Wooded Area, because Defendant is not the record owner of that portion of the Property. While this may be the case, Plaintiff still has the burden of demonstrating that he has adversely possessed the Wooded Area in order to establish his title. Therefore, Defendants standing to challenge is inconsequential.

General Laws chapter 260, § 21 requires that [a]n action for recovery of land shall be commenced, or entry made thereon, only within twenty years after the right of action or of entry first accrued, or within twenty years after the demandant has been seized or possessed of the premises . Thus, if a landowner does not assert his or her rights to the property within twenty years of the commencement of an adverse possession, he or she is barred from challenging anothers claim of title. Murphy v. Commonwealth, 187 Mass. 361 (1905); Luther v. Winnismmet Co., 64 Mass. 171 (1851). To establish title by adverse possession, the claimant must demonstrate that his or her possession of the property was open, adverse, exclusive, and continuous for the statutory period. Totman v. Malloy, 431 Mass. 143 , 145 (2000); MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993); see Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The occupancy must constitute such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership. LaChance v. First Natl Bank & Trust Co., 301 Mass. 488 , 490 (1938); Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979). Acts of possession which are few, intermittent and equivocal [are insufficient to] constitute adverse possession. Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992) (quoting Parker v. Parker, 83 Mass. 245 , 247 (1861)).

The element of open and notorious possession is met if the true landowner knows or should have known of the encroachment. Foot v. Bauman, 333 Mass. 214 , 218 (1955). Thus, occupancy of the land conducted in a manner that would reasonably put the true owner on notice is sufficient. Shaw, 8 Mass. App. Ct. at 156; Lyon v. Parkinson, 330 Mass. 374 (1953); see Lawrence v. Town of Concord, 439 Mass. 416 (2003). Permanent improvements or significant changes to the land are more likely to be sufficient to satisfy the elements of adverse possession. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). Conversely, acts of possession that conceal or hide the assertion of a right in the property cannot satisfy open and notorious possession. Endicott v. Haviland, 220 Mass. 48 (1914).

However, [t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purpose for which it is adapted, and the uses to which it has been put. LaChance, 301 Mass. at 490; Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). Where undeveloped land is involved, this standard is inherently more difficult to attain; the claimant generally must establish that the land has been enclosed or reduced to cultivation. Sea Pines Condominium III Assn, 61 Mass. App. Ct. at 848.

General Laws chapter 260, § 31 specifically provides that land held by the Commonwealth and, thereby, municipalities of the Commonwealth are subject to adverse possession. See generally Town of Sandwich v. Quirk, 409 Mass. 380 , 385 (1991); Cohasset v. Moors, 204 Mass. 173 (1910); Gifford v. Westport, 190 Mass. 323 (1906); Wonson v. City Manager, 1 Mass. App. Ct. 880 (1974). However, land held by the municipality for conservation, open space, parks, recreation, water protection, wildlife protection, or other public purpose is expressly excepted from this rule. 260, § 31. The adverse possession period on land taken by the town for non-payment of taxes begins anew against the town from the date of the taking. Town of Sandwich, 409 Mass. at 385 (1991).

The Cleared Area

In the present case, Plaintiff has clearly made extensive use of, at least, some portion of the Property since the 1950s. In the 1950s, Plaintiff laid a driveway for access to and from the property and South Franklin Street. From that time until 2002, Plaintiff has continuously maintained the Driveway, widening it, adding sand and gravel, and building a stone border on each side, and paving it in 2002. Plaintiff also secured the Driveway, installing a locked gate at the entrance of the Driveway in 1971, and a second gate at the end of the Driveway in 1979. Plaintiff also cleared and leveled some portion of the Edgewood Subdivision parcel around the Structure and then expanded this cleared area to its current dimensions. Plaintiff installed lighting in the Cleared Area and around the Structure and erected a six to eight foot high earth berm around the Cleared Area. Plaintiff maintained the berm each year by re-piling the earth, and in the early 1980s, Plaintiff installed fencing along the berm.

Plaintiff has used the Cleared Area to store and repair vehicles and as the headquarters of a sewage disposal business, known as Tri-Town Sewage. Within the Cleared Area, Plaintiff has stored vehicles, equipment, and other supplies used in these enterprises. In the early 1970s, Plaintiff installed Tri-Town Sewage signs along the Driveway and at the Structure.

The Plaintiffs occupancy of the Cleared Area is certainly of the kind normally associated with ownership. There is no evidence in the record to suggest that the Plaintiffs occupancy of this area was not adverse, exclusive, and continuous. Moreover, the Plaintiffs occupancy was sufficiently open and notorious. Plaintiff not only conducted extensive activities on the Cleared Area, he developed the previously undeveloped land. Plaintiff cleared the trees and vegetation and leveled the land, transforming woodland into a large, marked, and obviously man-made dirt clearing. This cultivation is certainly a permanent improvement and significant change to this woodland. Rather than attempting to hide his occupancy, Plaintiff also posted signs for his business, installed lighting, and erected a six to eight foot wall of dirt on either side of the Cleared Area and a fence on top along one side. While Defendants argue that the berm is clear evidence of Plaintiffs attempt to hide the activity that he was undertaking within the Cleared Area, I believe the berm served to further declare his control over the Cleared Area. The berm, like a fence, defined the perimeter of the occupancy, the border between control and woodland, and constitutes reasonable notice to the true owner of the adverse possession.

Moreover, the Town had actual knowledge of the Plaintiffs occupancy. The 1977 License to Install a Sewer Pipe expresses the Towns acknowledgement that Tri-Town Sewage had been operating on the Property for the previous eleven years. By letter dated June 4, 1982, the Board of Selectmen of the Town of Holbrook, through its Chairman, Frank W. McGaughey, commanded Plaintiff to remove all material and equipment from the Towns land. On December 17, 1982, following Plaintiffs request for findings, pursuant to Section 5 of the Holbrook Zoning By-Laws, the Town of Holbrook Zoning Board of Appeals noted that Plaintiff was also operating his businesses on some lots which he did not own. Beginning in 1982, Plaintiff often requested of the Towns Tax Collector that he be billed for the taxes on the Property.

Defendants argue that the Plaintiff has not established adverse possession to the whole of the Cleared Area with its current dimensions because, contrary to Mr. Crosbys testimony, he has only recently expanded the Cleared Area and, therefore, has not occupied the entirety of the Cleared Area for the requisite twenty years. While the timeline of events is far from precise, local resident John F. Davis, Jr. testifies only that up until 1974 did he observe that the cleared area was not as extensive as it is now but that in 1974 he ceased regularly visiting the Property. And while, Mr. Davis testifies that his feeling is that the Cleared Area only expanded to its current dimensions in the past six or seven years, he has been visiting the Property less frequently since 1974. In fact, Mr. Davis observed much more vehicle activity in the 1980s and 1990s, which is consistent with Mr. Crosbys testimony and does not foreclose the adverse period. Moreover, I credit Mr. Crosbys testimony in this regard. Plaintiff expanded the Cleared Area to its current dimensions in the 1970s and has maintained it since that time, over the statutory requirement. Accordingly, I rule that the Plaintiff has established title by adverse possession to the Driveway and the portion of the Cleared Area not already held by him.

Defendant argues that if Plaintiff establishes title to any of the lots taken by the Town in 1966 for non-payment of taxes, these lots are held subject to a tax lien. This is not the law. The lots were taken by the Town in satisfaction of the unpaid taxes. There is no lien on the property held by the Town, and adverse possession may be established over town land not held for public purpose.

The Remaining Portion of the Edgewood Subdivision Parcel and the Back Parcel

Plaintiff has not, however, demonstrated similar conduct of control and dominion over the remaining Property. From the 1950s to the mid-1960s, Plaintiff drove motor vehicles in the wooded area, including during this time, on and off during the summer, driving all the way to the southeast boundary of the Back Parcel. In order to do this, he made one or more openings in the internal stone wall. Plaintiff also stored vehicles and railroad ties in the clearing immediately to the East of the Cleared Area. In the 1960s, Plaintiff cleaned garbage and debris from the Property and hired high school students to pick up glass that had been discarded on the portion of the Property abutting South Franklin Street. From 1969 to 1971, Plaintiff removed various structures that had been built on the Property. While these activities are certainly adverse to the true owner, they are not sufficiently continuous nor are they sufficiently open to constitute adverse possession in the context of this vast, undeveloped woodland.

Plaintiff argues that in addition to these activities, he set off the boundary of his controlled land. In the late 1960s or early 1970s, Plaintiff contracted an engineer to stake out the perimeter of the Property and posted no trespassing signs at regular intervals around the perimeter. Plaintiff has maintained these signs since that time. Beginning in or the early 1970s, Plaintiff occasionally cleared the vegetation around the stone wall defining the perimeter of the Property to make it more visible. In the early 1970s and again, in or about the early 1980s, Plaintiff walked the perimeter of the Property. Nonetheless, I do not agree these few and intermittent efforts to define an existing stone wall perimeter and the posting of no trespassing signs is sufficient to put the true owner on notice of the occupancy, even when coupled with the activities undertaken by Plaintiff in this wooded area. There are no permanent improvements or significant changes to this wild woodland area. To the reasonable observer, and this court, this wilderness has remained untouched, with the exception of a few signs. Plaintiff simply did not exercise the degree of control necessary to establish adverse possession. Accordingly, I rule that Plaintiff has not established title by adverse possession to the remaining portion of the Edgewood Subdivision parcel or the Back Parcel. Included in this remaining portion is the clearing immediately to the East of the Cleared Area, on which Plaintiff stored vehicles and railroad ties.

Conclusion

For the foregoing reasons, this court concludes that Plaintiff has established title by adverse possession to the Driveway and the Cleared Area, except Lots 88-90 and 113 of the Edgewood Subdivision, which he owns of record. However, Plaintiff has not established title by adverse possession to the remaining portion of the Edgewood Subdivision Parcel or the Back Parcel, including the clearing immediately to the East of the Cleared Area. Accordingly, it is hereby ORDERED that Plaintiff may commission a survey of the property, to which the court has ruled he has established title by adverse possession. This survey must be submitted to the court on or before November 13, 2009, at which time Defendant will have until December 14, 2009 to respond, and a judgment will issue accordingly. However, if Plaintiff elects not to file such a survey, judgment will be entered forthwith. So Ordered.

Charles W. Trombly, Jr.

Justice

Dated: September 4, 2009

[Note 1] With leave of court, Plaintiff amended paragraph 7 of the Amended Complaint on March 3, 2009.

[Note 2] With leave of court, The Town of Holbrook filed an Amended Answer on December 3, 2008.

MISC 05-308965

September 4, 2009

NORFOLK, ss.

Trombly, J.

DECISION