Plaintiff Michael S. Ronayne filed his unverified Complaint To Quiet Title And For Adverse Possession on April 17, 2007, seeking to quiet title to property located at 15 South Madison Road, Billerica, Massachusetts (Locus), and alleging adverse possession as to Locus, fraud and slander of title, and negligence. [Note 1], [Note 2] A case management conference was held on May 31, 2007. On June 1, 2007, Defendants Harold Baroni, Jr. and John Baroni, individually and as Trustee of the Vincent Realty Trust, filed their Answer, Counterclaim alleging adverse possession, and Cross-Claim against the heirs of Mary Jane Perron. [Note 3] Plaintiff filed his Answer to Counterclaim on August 19, 2008. A pre-trial conference was held on October 8, 2008. A site view and the first day of trial at the Lowell District Court was held on November 18, 2008. The second day of trial was held in the Land Court in Boston on December 9, 2008. Plaintiff filed an oral motion to dismiss at the end of the trial, which was denied by this court. Defendants filed their Post-Trial Brief on April 17, 2009. Plaintiff filed his Post-Trial Brief on April 23, 2009, at which time the matter was taken under advisement.
Testimony was given by Harold Baroni, Jr. (Defendant), Brian Baroni (Defendant), Michael Scott Ronayne (Plaintiff), Ann-Marie Valery (daughter of Carlo Tirone, prior owner of Locus), and Robert Baroni (father of Brian Baroni). There were thirty-nine exhibits submitted. Based on the sworn pleadings, my observations at the site view, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. Locus is located in Billerica, Massachusetts. [Note 4] By deed dated January 22, 1916, and recorded with the Middlesex County North District Registry of Deeds (the Registry) in Book 549, Page 430, James E. Burke (Burke), Trustee, conveyed Locus to Mary Jane Perron (Perron). Locus was shown as Lots 92 and 93 on South Madison Road on a subdivision plan titled Mechanics Park Annex North Billerica, Mass. Frank W. Coughlin Owner dated September, 1913, and prepared by John N. McClintock, Engineer (the 1913 Annex Plan). [Note 5] The 1913 Annex Plan was recorded with the Registry in Plan Book 30, Page 61. As shown on the 1913 Annex Plan, Lot 92 contained 3510 square feet and Lot 93 contained 3549 square feet.
2. By document dated April 16, 1927, and recorded with the Registry at Book 748, Page 442, the Town of Billerica (Billerica) made a tax taking of land (assessed to Perron) for nonpayment of real estate taxes for 1924 (Taking 1). Taking 1 referenced the land taken as Nine thousand fifty-two (9052) square feet of land, more or less, being lots numbered 92 and 93 on plan of land entitled Mechanics Park [North Billerica & Tewksbury Mass. Frank W. Coughlin Owner dated September 1913 and prepared by John N. McClintock, Engineer (the 1913 Park Plan)] and recorded in [the Registry], Book 30, Page 1. [Note 6] Each of Lots 92 and 93 on the 1913 Park Plan contained 2250 square feet. Taking 1 was never appealed and Perron never exercised her right of redemption. [Note 7]
3. By Affidavit dated March 1, 1929 (Affidavit 1), and recorded on April 15, 1930, with the Registry at Book 788, Page 21, the Commissioner of Taxation and Corporations declared that the property taken by Taking 1 was land of low value within the meaning of G. L. c. 60.
4. The property subject to Taking 1 was conveyed by Billerica to Daniel and Mary Baroni by deed dated May 3, 1930, and recorded with the Registry at Book 790, Page 294. The deed into Daniel and Mary Baroni described the conveyed property exactly as it was described in Taking 1, i.e. as Lots 92 and 93 on the 1913 Park Plan recorded with the Registry at Book 30, Page 1, containing 9052 square feet. [Note 8]
5. As a result of nonpayment of taxes for 1940 and 1941 by Daniel and Mary Baroni, Billerica made a tax taking in 1943 (Taking 2) of four parcels, including two parcels which were the same property subject to Taking 1. Taking 2 was dated March 8, 1943, recorded with the Registry in Book 989, Page 194. Taking 2 referenced Lots 92, 93, 164, and 165, comprising 15,052 square feet, as shown on the 1913 Park Plan but stated the recording information for the 1913 Annex Plan. Taking 2 was never appealed, and Daniel and Mary Baroni never exercised their right of redemption.
6. By Affidavit dated May 3, 1945 (Affidavit 2), and recorded with the Registry at Book 1023, Page 173, the Commissioner of Corporations and Taxation declared that the property taken by Taking 2 was land of low value within the meaning of G. L. c. 60.
7. The property subject to Taking 2, along with numerous other parcels (not including Locus), was conveyed by Billerica to John D. Cooke (Cooke) by deed dated July 5, 1945, and recorded with the Registry at Book 1022, Page 581. The deed into Cooke described the conveyed property exactly as it was described in Taking 2, i.e. as Lots 92, 93, 164, and 165 as shown on the 1913 Park Plan.
8. The Town of Tewksbury (Tewksbury) purported to make a tax taking of Locus in 1945 (Taking 3) as a result of nonpayment of taxes by Perron for 1943. Taking 3 was dated August 21, 1945, and recorded with the Registry in Book 1028, Page 289. Taking 3 referenced Lots 92 and 93 as shown on the 1913 Annex Plan and gave the recording information for the 1913 Annex Plan.
9. By Affidavit dated October 6, 1947, and recorded in the Registry at Book 1072, Page 501, the Commissioner of Corporations and Taxation declared Locus was land of low value within the meaning of G. L. c. 60. [Note 9]
10. Locus was purportedly conveyed by Tewksbury to Tewksbury by deed dated November 17, 1947, and recorded with the Registry at Book 1082, Page 481. The deed referenced Lots 92 and 93 as shown on the 1913 Annex Plan. [Note 10]
11. Cooke was assessed as owner of Locus for 1946.
12. Daniel Baroni was assessed as owner of Locus for 1949 and thereafter.
13. Daniel Baroni died on April 30, 1966 (Middlesex Probate No. 407308). Mary Baroni died on May 5, 1966 (Middlesex Probate No. 407307).
14. Mary Jane Perron died on January 18, 1978, in the State of Maine.
15. By deed dated August 27, 1985, August 29, 1985, August 30, 1985, October 3, 1985, November 2, 1985 and February 20, 1986, and recorded with the Registry on August 25, 1987, at Book 4208, Page 140 (the 1985 Deed), Vincent Baroni, individually and as Administrator of the Daniel and Mary Baroni Estate, John Baroni, Ralph Baroni, Joseph Baroni, Harold D. Baroni, Jr., June L. Chagnon, individually and as Administrator of the Estate of Harold D. Baroni, Robert H. Baroni, William P. Baroni, Dorothy C. Bourassa, Betty Ann Baroni, and Jo-Ann Dalziel (identified as all the heirs of Daniel and Mary Baroni) purported to convey Locus and two other lots as shown on the 1913 Annex Plan to Vincent Baroni, as Trustee of the Vincent Realty Trust. [Note 11] The deed referenced as the grantors title to the 1985 Deed is a tax taking deed into Daniel and Mary Baroni of Lots 94 and 95 but not Locus. [Note 12]
16. Vincent Baroni established the Vincent Realty Trust, Vincent Baroni, Trustee (the Trust) by Declaration of Trust dated August 22, 1987, and recorded with the Registry at Book 4208, Page 138. The sole beneficiary of the Trust was Harold D. Baroni, Jr.
17. By deed dated May 5, 1989, Cooke conveyed Locus to Carlo C. Tirone (Tirone) and Ann-Marie Valery as joint tenants, and recorded with the Registry at Book 4921, Page 90. By deed dated June 8, 2000, recorded with the Registry at Book 10869, Page 219, Tirone conveyed Locus to Plaintiff and Jody P. Ronayne. [Note 13], [Note 14] By deed dated May 27, 2004, and recorded with the Registry at Book 17398, Page 202, Jody P. Ronayne conveyed her interest in Locus to Plaintiff.
18. No later than the early 1940s, Harold D. Baroni, Sr. (Senior) lived in a house across the street from Locus. In the 1940s, Senior used Locus in connection with a chicken and egg business, and was helped by his son Robert Baroni (Robert), who was born in 1933. During such time, Robert assisted his father and two uncles in erecting a chicken coop (shed) and a fenced area on Locus.
19. In the early 1940s, Robert, as a young boy, played on what he described as a wooden frame or foundation that his uncle erected on Locus. [Note 15] Such structure was located on the easterly portion of Locus (the opposite side from South Madison Road). [Note 16]
20. In the 1950s, Senior went into the construction business as a general contractor, grading Locus and using Locus and Lots 94 and 95 to store materials and for the parking of vehicles and equipment. At such time, the fence erected as part of the chicken coop was removed, and some trees were cut to make room for parking. The shed was also used for storage of materials. Robert assisted Senior in the construction business. In the early 1960s, Harold D. Baroni, Jr. (Junior) (Roberts brother) cleaned brick on Locus to help his father in the construction business. This business continued until the death of Senior in 1972, and for several years after by his sons William and Robert. The Baroni family did not use Locus from 1976-1983.
21. In 1983, Junior had a perk test done on Locus and cleared some trees relative to same. Junior also moved a trailer to Locus in 1986 to store construction equipment for a proposed house, as well as a car and a boat.
22. Junior paid real estate taxes on Locus from 1983 to 1989. Tirone started paying the tax bill in 1989.
23. After Tirone purchased Locus in 1989, he cut some trees and cleaned the lot up.
24. Locus is currently an undeveloped wooded property. Fences do not enclose Locus along its northerly or southerly boundary; a stone wall runs along Locus eastern boundary and South Madison Road delineates Locus westerly boundary.
25. Senior and Cooke had regular business dealings relative to real estate in the Town.
Plaintiff alleges that he owns Locus by recorded deed, and that both Taking 1 and Taking 2 are valid takings. [Note 17] Plaintiff also asserts that Defendants cannot satisfy their burden to prove title to Locus by adverse possession. Defendants claim that neither Taking 1 nor Taking 2 are valid, that they have record title to Locus through the 1985 Deed, [Note 18] and, in the alternative, that they own Locus by adverse possession.
Record Title to Locus.
Plaintiff alleges record title to Locus based on the validity of Taking 1 and Taking 2. Conversely, Defendants allege record title to Locus through the 1985 Deed from the heirs of Daniel and Mary Baroni. Given the trial record, there appear to be two theories under which Defendants have obtained valid record title to Locus. The first is through the 1985 Deed itself. The second theory for Defendants claim of record title to Locus requires Taking 1 to be valid (resulting in a deed into Daniel and Mary Baroni) and Taking 2 (resulting in a deed into Cooke) to be invalid. I shall examine each of the parties theories in turn.
The trial record discloses that Perron obtained a deed of Locus in 1916. Through Taking 1, based on a nonpayment of real estate taxes for 1924 by Perron, Billerica took certain property and subsequently deeded it to Daniel and Mary Baroni. Taking 1 referenced Lots 92 and 93 on a different subdivision plan (the 1913 Park Plan) from the plan showing Locus (the 1913 Annex Plan), a different square footage (9,052 square feet) from Locus (7,059 square feet), and a different recording reference for the plan (Book 30, Plan 1 - the Lakeside Park Plan) compared to Book 30, Page 61 for the 1913 Annex Plan showing Locus. Moreover, Locus had a different street address (South Madison Road) from the address implicated in Taking 1 (Buchanan Road). Taking 1 was never challenged and the property was not redeemed. By Taking 2, based on a nonpayment of real estate taxes for 1940 and 1941 by Daniel and Mary Baroni for the property taken by Taking 1, Billerica took property and then deeded it to Cooke. Taking 2 references Lots 92 and 93 (as well as Lots 164 and 165) on a different subdivision plan from Locus (the 1913 Park Plan), [Note 19] a different square footage from Locus (9,052 square feet for Lots 92 and 93); Taking 2s recording information for the subdivision plan, however, is correct (i.e., the 1913 Annex Plan recorded at Book 30, Page 61). Taking 2 was never challenged and the property was not redeemed. Cooke conveyed Locus to Tirone, who conveyed Locus to Plaintiff.
A. Validity of Taking 1.
Defendants argue that Taking 1, the taking of property owned by Perron, had several fatal errors, including the following: (1) Taking 1 referenced the wrong subdivision plan (the 1913 Park Plan); (2) it contained the wrong square footage (9,052 square feet); (3) it cited the wrong recording information for the plan (Book 30, Page 1); and (4) it implicated the wrong street address (Buchanan Road). All of these factors together present a strong challenge to the validity of Taking 1.
With respect to determining the validity of a taking, both parties cite G. L. c. 60, § 54, which states, [t]he instrument of taking . . . shall contain a statement of the cause of taking, a substantially accurate description of each parcel of land taken . . . The description within an instrument of taking is adequate if it is reasonably accurate and fairly designates the property for the information of those interested. Lowell v. Boland, 327 Mass. 300 , 302 (1951). The purpose of the rule is that owners and prospective purchasers may be sure what property is being taken or sold. Ordinarily the question whether the description is sufficient is a question of fact for the judge. Franklin v. Metcalfe, 307 Mass. 386 , 389-90 (1940). [The description] must be sufficiently accurate to enable the owner and the public to identify the premises. It must give information so adequate that from its terms both owner and prospective bidders may locate the land to be sold with substantial certainty. Springfield v. Arcade Malleable Iron Co., 285 Mass. 154 , 156 (1934).
Plaintiff argues that the lot numbers were correct, and as a result the description was sufficient to identify the property being taken. However, the same lot numbers were present on the 1913 Park Plan, which was referenced by name in Taking 1, as well as the Lakeside Park Plan, which was referenced by Taking 1s recording information. In addition, Plaintiff states that Taking 1 was valid because Perron was given notice of the proposed taking (even though it was the wrong legal description) and she never paid the real estate taxes on Locus or appealed the taking. Presumably the argument is that Locus is the only property that Perron owned in Billerica (the trial record does not indicate otherwise), and that Taking 1 referenced Lots 92 and 93, which were the correct lots. The problem with this analysis is that case law is clear that notice must be proper not only for the owner of the property but also for the public (prospective purchasers) as well. See Franklin, 307 Mass. at 389-90. In this regard, as discussed, supra, the notice is confusing at best. Testimony that the Baronis knew what they were buying is not relevant as other potential buyers did not have proper notice.
Plaintiff also cites Robertson v. Plymouth, 18 Mass. App. Ct. 592 (1984) to argue laches as to Taking 1. When the validity of tax titles is put in question long after the event, it is appropriate for the judge . . . to weigh the factor of time against those making the challenge. Id. at 596. In support of his laches argument, Plaintiff notes that Taking 1 was never appealed, that Perron never exercised her right of redemption, and that the taking occurred eighty years ago. However, both Plaintiffs and Defendants claims to Locus rest upon the validity of separate takings, which are dependent on each other as to legal description, and both parties are guilty of delays. As such, this court is not convinced that Plaintiff is protected by the doctrine of laches.
As a result of the foregoing, I find that Taking 1 was not valid because the legal description was not substantially accurate.
Finally, Plaintiff argues that Taking 1 meets the requirements of G. L. c. 60, § 80C relative to low value tax takings. G. L. c. 60, § 79 states as follows:
If the commissioner is of the opinion that such parcels are of insufficient value to meet the taxes, interest and charges . . ., that none of such parcels exceeds five thousand dollars in value, and that the facts essential to the validity of the tax titles on such lands have been adequately established, he shall make affidavit of such finding, which shall be recorded in the registry of deeds for the district wherein the land lies . . Upon the recording of the affidavit the treasurer may sell all the parcels included therein, severally or together, at public auction to the highest bidder . . Title taken pursuant to a sale under this section shall be absolute upon the recording of such deed of the treasurer.
G. L. c. 60, § 80C, states as follows:
When any city or town has conveyed or sold any land under section seventy-nine or section eighty [Sale of Lands of Low Value Held by City or Town Under Tax Titles] by an instrument in writing conveying or purporting to convey such land, and said instrument is duly recorded in the registry of deeds for the district wherein such land is situated and a period of twenty years elapses after the instrument is accepted for record, and the notice or procedure for the taking and sale or conveyance under this chapter or the instrument or record thereof because of a defect, irregularity, or omission, fails to comply in any respect with any requirement of law relating thereto or the instrument or record thereof shall, notwithstanding such defects, irregularities, or omissions be effective for all purposes to the same extent as though such notice or procedure or the instrument of record thereof had originally not been subject to any such defects, irregularities, or omissions, unless within said period of twenty years a proceeding is commenced on account of such defect, irregularity, or omission and notice thereof is duly recorded in said registry of deeds and indexed and noted on the margin of said instrument of conveyance and in the event of such proceeding, unless relief is thereby in due course granted.
Plaintiff notes that Taking 1 was a low value tax taking pursuant to Affidavit 1. However, as discussed, supra, Taking 1 was not a taking of Locus. Moreover, G. L. c. 60, § 80C has been interpreted as follows: the statute cannot cure a defect which is founded on a want of title. It is designed to correct defects, irregularities, and omissions in procedure or in an instrument of taking. The statute cannot supply title which did not exist at the time of taking. Sheriffs Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 270 (1987). As discussed, supra, this court has determined that the error in the legal description was a substantial or misleading one, and as a result Taking 1 was not valid.
As such, I find that G. L. c 60, § 80C fails to validate Taking 1.
B. Validity of Taking 2.
Defendants argue that Taking 2, the taking of the property of Daniel and Mary Baroni, had several fatal errors, in that it referenced the wrong subdivision plan (the 1913 Park Plan) and contained the wrong square footage (9,052 square feet). [Note 20] Plaintiff argues that the lot numbers and the recording information for the plan were correct, and as a result the description was sufficient to identify the property being taken. [Note 21] Given Taking 2s flawed taking description with respect to plan reference and area, this court is not convinced that such description was sufficient to identify the property subject to the taking. Additionally, because Daniel and Mary Baroni never owned Locus, there could not be a valid taking of Locus from them. [Note 22]
For the same reasons that this court has found that Taking 1 is not valid, I also find that Taking 2 is not valid. In addition, for the same reasons that Taking 1 was not validated by G. L. c. 60, § 80C, I find that Taking 2 was not validated by G. L. c. 60, § 80C. Since neither Taking 1 nor Taking 2 were valid, I find that Plaintiff does not have a valid record chain of title to Locus from Perron.
C. Validity of the 1985 Deed.
On its face, the 1985 Deed references as its grantors title, a deed recorded at Book 790, Page 288, and such deed is clear that it does not convey Locus. As such, any deed purporting to convey Locus under the authority of the deed recorded at Book 790, Page 288, is invalid with respect to Locus. Moreover, this court has determined that Taking 1 was not valid, and as a result no title in Locus could have passed to Daniel and Mary Baroni. No other chain of title linking Locus to Daniel and Mary Baroni has been established in the trial record. As such, I find that Defendants do not have valid record title to Locus.
D. Validity of Taking 3.
The parties do not argue the validity of Taking 3. Moreover, the trial record does not supply enough information for this court to formally rule on its validity. As previously discussed, even though the deed into Perron indicates that Locus is located in both Tewksbury and Billerica, the 1913 Annex Plan shows Locus in Billerica, and nothing except Perrons deed (with a general reference to Tewksbury) and Taking 3 demonstrate that Tewksbury has an interest in Locus. While there are no recently recorded plans confirming the definitive location of Locus, both parties assert that Locus is in Billerica. Moreover, the deeds in the trial record signal that Locus is situated entirely in Billerica, and that is an assumption under which this court proceeds for the purposes of this decision.
In conclusion, as a result of the foregoing and given that neither Plaintiff nor Defendants possess valid record title to Locus, and given that the trial record does not disclose any transfer of Locus from Mary Jane Perron, I find that the heirs of Mary Jane Perron hold record title to Locus.
Fraud, Slander of Title, and Negligence.
Plaintiff alleges that the filing by Defendants of the 1985 Deed constitutes fraud and negligence, and is a slander of title. Plaintiff alleges that Defendants were aware of the fact that they did not have record title to Locus and that such deed was fraudulent. Based on this courts findings that Plaintiff has no fee title to Locus, as discussed, supra, Plaintiff does not have standing to raise these issues. Moreover, Plaintiff has the same problem that he alleges Defendants have, i.e., both are claiming record title to Locus based on invalid tax takings. Moreover, Plaintiff took his deed two years after the 1985 Deed was recorded and had notice of Defendants claim of record title. As such, this court shall not act on these claims.
Adverse Possession. [Note 23]
Defendants argue that they have used Locus for more than twenty years in an adverse, exclusive, and open and notorious manner. Plaintiff contends that Defendants cannot satisfy their burden to establish title to Locus by adverse possession given that Locus is a wooded parcel, and that Defendants use of Locus is not adverse.
It is well established in Massachusetts that [t]itle by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). See also G. L. c. 260, § 21. The adverse possessors acts should demonstrate 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 , 491 (1938). The nature of the required use varies with the characteristics of the land. Id. at 490. If the claimant has not been using the property for the required twenty year period, he or she can satisfy the requisite period by tacking on a grantors period of adverse possession, provided there is privity of estate between the adverse possessors. See Luce v. Parsons, 192 Mass. 8 (1906); G. L. c. 260, § 22. The burden of proving acquisition of title through adverse possession is on the party claiming thereby. See Lawrence v. Concord, 439 Mass. 416 , 421 (2003).
The facts presented at trial reveal that Senior and his family lived across the street (South Madison Road) from Locus commencing no later than the early 1940s. The record indicates that Defendants use of Locus began by the early 1940s, when, as a young boy, Robert played on a wooden frame or foundation that his uncle built on the back of Locus (away from South Madison Road toward the property of Anderson). Also in the 1940s, Defendants operated a chicken business and built a coop and a fence on Locus near the front of the lot. The shed (formerly the chicken coop) is still standing today. Robert helped his father Senior in the chicken business, killing and plucking the chickens on Locus. Senior then converted the use of Locus to a general contractor business in the early 1950s and Defendants used Locus for that purpose until several years after Senior died in 1972. During that time, Senior cut trees and partially cleared Locus. In connection with the construction business, the Baroni family stored equipment related to the construction business (cars, dump trucks and cement mixers, and a tractor) on Locus. [Note 24] The Baroni family also graded and partially graveled an area for parking at the front of Locus. The shed was used by Seniors kids for playing, schooling, and also by Seniors second wife for storage of furniture. The use stopped in 1976, several years after Senior died, and did not resume again until 1983, when Junior made attempts to build on Locus. Between 1989 and 2000, Tirone and his daughter purchased Locus and began to make some use of it, including cutting some trees and partially clearing the lot in attempts to sell Locus. As a result, the critical time frame with respect to Defendants claim of adverse possession begins in the early 1940s and continues until 1976. [Note 25]
With respect to a non-wooded lot, such evidence would be sufficient for this court to find adverse possession in favor of Defendants. However, Defendants burden to prove adverse possession is increased given that Locus is undeveloped and wooded. In cases involving a claim of adverse possession to wild or woodlands, the claimant generally must establish that the land has been enclosed or reduced to cultivation. Sea Pines Condominium III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). See also Dow v. Dow, 243 Mass. 587 , 593 (1923) (It is generally held that a title by adverse possession cannot be shown to wild or woodland that has always been open and unenclosed). Even so, that is not to say that a claim of adverse possession to woodlands is per se invalid without evidence of fencing or cultivation as
[t]he strict rule applicable to wild or woodlands is, however, but an application of the general rule to the circumstances presented by wild or uncultivated lands. That is to say, the nature of the occupancy and use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose. Accordingly, even the clearing of the land of all trees, on a single occasion, is inadequately continuous to satisfy the requirements for adverse possession. . . . Nonetheless, the determination whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific.
Sea Pines, 61 Mass. App. Ct. at 848 (internal citation omitted).
In the case at bar, Locus remains generally wooded with no fencing separating Locus from the adjoining lots to the north and south. However, Locus is enclosed by a stone wall to the east and South Madison Road effectively delineates Locus western boundary. [Note 26] Evidence shows that a portion of Locus was fenced in connection with the chicken coop, yet the fence was removed from Locus as part of the construction business. With respect to the construction business, testimony reveals that Defendants cleared off and graveled over a portion of Locus adjacent to South Madison Avenue on which they operated their construction business and parked their vehicles. [Note 27] Such use of the front portion of Locus is corroborated with several photographs accepted into evidence showing the shed and the parked vehicles both located at the front of Locus, toward South Madison Road.
As Locus was not cultivated in an agricultural sense, [Note 28] in order to satisfy their burden, Defendants must prove that they enclosed a portion of Locus. Keeping in mind the rationale for the woodland rule, as stated in Sea Pines, the previously stated facts support such a conclusion. To begin, Locus was effectively enclosed on two sides by the stone wall to the east and South Madison Road to the west. Also, and more importantly, together Defendants chicken and egg business and their construction business from the 1940s to 1976, along with the incidental uses thereof, took place on the portion of Locus fronting on South Madison Road, and were more than sufficient to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; . . . Sea Pines, 61 Mass. App. Ct. at 848. As such, I find that, as between Plaintiff and Defendants, Defendants have satisfied their burden to show more than twenty years of actual, adverse, exclusive, and open and notorious use of the front portion of Locus.
However, this courts inquiry into Defendants adverse possession claim does not end there. It is settled that where a person enters upon a parcel of land under a color of title and actually occupies a part of the premises described in the deed, his possession is not considered as limited to that part so actually occupied but gives him constructive possession of the entire parcel. Dow v. Dow, 243 Mass. 587 , 593 (1923). A successful adverse possession claim under color of title requires (1) a successful adverse possession claim; and (2) proof that the claim of ownership is based on a document or writing. Long v. Wickett, 50 Mass. App. Ct. 380 , 382 n.3 (2000). This rule is grounded in the theory that it is the presumed intent of the grantee to assert such possession. See Norton v. West, 8 Mass. App. Ct. 348 , 351 (1979). This court (Green, J.) has previously noted that the doctrine of color of title traces its origin to cases in which deeds, leases or other similar title instruments were ruled admissible to prove occupancy of land claimed by adverse possession, and as evidence of the nature of the claim asserted by the adverse user, and determined that this doctrine seems best suited to resolving the extent of a parcel claimed by adverse possession, where entry on land is made under an adverse claim and a deed or other title instrument is available to assist definition of the claim. Turturro v. Cheney, 6 LCR 293 , 297 (1998) (Misc. Case No. 178560) (Green, J.).
As previously discussed, Defendants have established title to a portion of Locus through their adverse possession claim. Moreover, pursuant to the deed from Billerica to Daniel and Mary Baroni dated May 3, 1930, Defendants entered Locus under color of title and commenced their use upon Locus prior to their divestment of such title in 1943 pursuant to Taking 2. [Note 29] As such, I find that, as between Plaintiff and Defendants, pursuant to the doctrine of adverse possession under color of title, Defendants have obtained title to the entirety of Locus.
The parties shall attend a status conference on Thursday, June 17, 2010, at 11:00 A.M. to determine the remainder of the case, particularly with respect to the Perron heirs. Judgment shall enter upon completion of these matters.
Alexander H. Sands, III
Dated: May 28, 2010
[Note 1] Plaintiff filed his Amended Complaint to Quiet Title on October 24, 2007, adding Brian Baroni, individually and as Trustee of the Vincent Realty Trust, as a Defendant, removing the Heirs of Mary Jane Perron as a Defendant, and removing the count for adverse possession.
[Note 2] There is an issue of whether this court has jurisdiction over the fraud and slander of title count and the negligence count, as both counts sound in tort and are related to damages. However, Plaintiff did not raise these issues in his pre-trial memo. Moreover, based on this decision, Plaintiff has no standing to assert such claims. Finally, Plaintiff does not assert any damages in his post-trial brief. In light of the above, this court shall not address such claims.
[Note 3] Defendants Harold Baroni, Jr., John Baroni, individually and as Trustee of the Vincent Realty Trust, and Brian Baroni, individually and as Trustee of the Vincent Realty Trust, and the Vincent Realty Trust (together, Defendants) filed their revised Answer and Counterclaim on May 15, 2008, alleging adverse possession. The revised Answer removed the Cross-Claim against the heirs of Mary Jane Perron. As a result, there was no publication and the heirs of Mary Jane Perron were never served.
[Note 4] See infra pp. 13-14.
[Note 5] Although the 1913 Annex Plan defines the land as only in North Billerica, the deed references the land as situated in North Billerica & Tewksbury. By deed dated February 10, 1914, Burke, Trustee, had received title to all lots shown on both the 1913 Park Plan (as hereinafter defined), which includes lots in both Billerica and Tewksbury, and the 1913 Annex Plan.
[Note 6] The plan recorded with the Registry at Plan Book 30, Page 1 is not the 1913 Park Plan, but rather a plan titled Lakeside Park Billerica and Tewksbury Middlesex Co. North District Massachusetts dated December 1911, and prepared by Ernest W. Branch, Civil Engineer (the Lakeside Park Plan). The Lakeside Park Plan shows Lots 92 and 93 as located on Dalton Street and containing 3,000 square feet each. The 1913 Park Plan is recorded with the Registry at Plan Book 31, Page 1.
[Note 7] The trial record does not indicate whether Perron owned any other parcels of land in Billerica or Tewksbury other than Locus. Plaintiff alleges that Lots 92 and 93 on the 1913 Park Plan are located in Tewksbury, but such information is unclear from the plan itself, as the plan references both Billerica and Tewksbury. Defendants do not oppose this fact.
[Note 8] By deeds dated May 3, 1930, and recorded with the Registry at Book 790, Pages 288 and 289, Billerica also conveyed a number of parcels on the 1913 Park Plan and the 1913 Annex Plan to Daniel and Mary Baroni (not including Locus).
[Note 9] This document is not in the trial record.
[Note 10] This document is not in the trial record.
[Note 11] The acknowledgments of the various grantors are dated between August 27, 1985, and July 15, 1986.
[Note 12] The title reference was to deed recorded at Book 790, Page 288, which included Lots 94 and 95. The tax taking deed for Locus was recorded at Book 790, Page 294.
[Note 13] There were several internal conveyances prior to this deed, which are not relevant to the issues in the case at bar.
[Note 14] Billerica had made a tax taking of Locus for the year 1998 by document dated March 29, 1999 (assessed to Ann-Marie Valery, daughter of Carlo Tirone), and recorded with the Registry at Book 10053, Page 150. Upon Carlo Tirones redemption of this tax title account, Billerica released such taking by document dated June 15, 2000, and recorded with the Registry at Book 10932, Page 173.
[Note 15] Robert would have turned seven years old in 1940, which is consistent with his testimony of such use as a young boy.
[Note 16] Robert testified that his uncle intended to build a camp atop the foundation and that the wooden frame was located down towards the wall for the Anderson property, close to there. The trial record fails to identify the owner of property abutting Locus to the east, but the 1913 Annex Plan identifies the land east of and abutting Locus as owned by Anderson.
[Note 17] At the commencement of the trial, the issue of the validity of Taking 1 and Taking 2 was discussed and the parties disagreed as to whether such validity was before this court. In their post-trial briefs, both parties argue the issues surrounding the validity of both Taking 1 and Taking 2. As a result, I shall address the validity of both takings.
[Note 18] Defendants also suggest that the 1985 Deed was based on Defendants purported ownership of Locus by adverse possession, but that argument is not relevant to record title.
[Note 19] It should be noted that Lots 164 and 165 only exist on the 1913 Park Plan and not on the 1913 Annex Plan.
[Note 20] Taking 2 referenced four lots, Lots 92, 93, 164, and 165. Lots 164 and 165 on the 1913 Park Plan have 3,000 square feet each. Lots 92 and 93 have 2,250 square feet each.
[Note 21] It is interesting to note that the arguments that Defendants use to invalidate Taking 2 would also invalidate Taking 1, one of the arguments on which their claim to title rests.
[Note 22] Moreover, whereas the trial record is not clear if Mary Jane Perron owned other property in either Billerica or Tewksbury, the trial record is clear that David and Mary Baroni owned many other parcels in both Billerica and Tewksbury.
[Note 23] As discussed, supra, the heirs of Mary Jane Perron were never served. As a result of this decision, it appears that such heirs have record title to Locus. As such they are a necessary party to the adverse possession claim and must be served. This court, however, shall discuss the elements of adverse possession based on the facts of this case as revealed at trial. It is unlikely that the heirs of Mary Jane Perron, who have not been involved with Locus for a number of years, will have further facts to add to this matter.
Both predecessors of Plaintiff and Defendants have been assessed for real estate taxes over the years. It should also be noted that neither Mary Jane Perron or her heirs have paid taxes on Locus for more than eighty years.
[Note 24] Robert testified that Locus was primarily used for the storage of equipment and vehicles rather than the operation of the business.
[Note 25] Plaintiff argues in his post-trial brief that Defendants use may not have been adverse because of the relationship of Defendants with Cooke. However, no concrete evidence has been submitted to show permissive use. Moreover, this court has determined that Cooke did not have legal title to Locus in order to give permission.
[Note 26] There was evidence that Senior also used other lots (he owned Lots 94 and 95 as a result of a 1930 tax taking) for his business. Lots 94 and 95 were adjacent to Locus.
[Note 27] Robert testified that Locus was primarily used for the parking of vehicles and not for the operation of the business in the later years. Robert testified as follows:
Q. And did you continue to use that property, 92 and 93, in the construction business
Q. up until the time of your fathers death?
A. Its like like I mentioned, that the the trucks stayed there and any and the trails (sic) and any excess materials . . .
Q. At some point did you stop using Lots 92 and 93 in the construction business?
A. There was always something on the lots there that was parked. But whether it was active active things I cant say that they were active. They were just dead, dead vehicles at the time.
[Note 28] This court has previously noted that the term cultivate
means to till, prepare for crops, manure, plow, dress, sow and reap, manage and improve in husbandry. . . . [H]usbandry is [a]griculture; cultivation of the soil for food; farming in the sense of operating land to raise provisions. . . . Agriculture includes the art or science of cultivating the ground . . .
Watson v. Bowen, 11 LCR 117 , 119 (2003) (Misc. Case No. 274328) (Lombardi, J.) (citing BLACKS LAW DICTIONARY, 4th ed. 1968).
[Note 29] It is noteworthy to compare the policies at work behind the notice required in a tax title taking versus the theory behind a claim of adverse possession under color of title. As previously discussed, the instrument of taking in a tax title taking matter must, with substantially accura[cy], describe land subject to the taking. See Boland, 327 Mass. at 302. This standard provides notice to owners as well as prospective purchasers as to what land is subject to the taking. Metcalfe, 307 Mass. at 389-90. Contrastingly, the doctrine of color of title assists in determining the intent of the adverse possessor, which is to presumably possess all of the land described in their deed. Norton, 8 Mass. App. Ct. at 351. As such, it is reasonable that a description that is deficient in one context may pass muster in another. Such is the case in the instant matter, where the description of land subject to Taking 1 was insufficient to provide notice to the world as to the extent of Taking 1, but the same language, which is the legal description found in the 1930 deed from Billerica to Daniel and Mary Baroni, is helpful to this court in determining the extent of Defendants adverse possession claim. Such scope reaches all of Locus as the 1930 deed is not in any way limited to a portion of a particular parcel.