MISC 07-342650

January 11, 2010


Scheier, C.J.


Plaintiffs initiated this action on March 9, 2007, by filing a complaint seeking a declaration of the parties’ rights in a 7.125 acre parcel of land in Belchertown, damages for Defendants’ alleged trespass, and equitable relief. On May 2, 2007, Defendants filed an answer, which included counterclaims for adverse possession, prescriptive easement, declaratory judgment, and to quiet title. [Note 1]

On July 9, 2009, this court took a view of the disputed parcel in the presence of counsel and parties and a one-day trial was held that same day at Northampton District Court. At trial this court heard the testimony of Defendants Steven McCafferty and Mary Beth Phair, Defendants’ neighbor Donna Kendall, and Plaintiffs Frank Evangelista, Jr., and Paul Malkoon. Seven exhibits and a stipulation of facts were entered in evidence. [Note 2] Both parties filed post-trial briefs by September 23, 2009.

Based on all the evidence and reasonable inferences drawn therefrom, as well as observations from the view, this court finds the following material facts:

1. Frank Evangelista, Sr., Plaintiff’s father, was the prior owner of a parcel of land bounded and described as follows:

Beginning at a stake and stones on the north side of a road, known as Blue Meadow Road, at the corner of land now or formerly of one Owen, thence north thirteen degrees, thirty minutes east on the west line of land now or formerly of Owen sixty-four (64) rods to a stake and stones on line of land now or formerly of A.D. and C.L. Randall, thence west eight degrees thirty minutes north twenty-three (23) rods to a stake and stones near a chestnut tree, thence South thirteen degrees thirty minutes west about sixty-five (65) rods to a stake and stones on the road, thence east on the north line of said road about twenty-three rods to the first mentioned corner, containing about ten acres, more or less, and being the same premises conveyed by deed of Lillian A. Miller to Edward A. Fuller, dated July 25, 1922, recorded in Hampshire County Registry of Deeds, Book 784, Page 56, to which reference is made for further description (Evangelista Property).

2. Following the death of Mr. Evangelista, Sr., on July 22, 1966, Plaintiff Frank Evangelista, Jr., as sole heir of his father’s estate became the record owner of the Evangelista Property. On May 30, 2006, Plaintiff Evangelista conveyed the Evangelista Property to himself and Plaintiff Malkoon as tenants in common. [Note 3]

3. On August 4, 1986, Otto H. McClure and Joan A. McClure conveyed a certain parcel of land on the northwesterly side of Warner Street in Belchertown, being known and designated as Lot 32M on a plan entitled “Plan of Land in Belchertown, MA Surveyed for Otto McClure,” dated October 21, 1985, recorded with the Hampshire County Registry of Deeds in Plan Book 138, at Page 97, to Defendants as tenants in common (McCafferty Property). [Note 4]

4. The August 4, 1986 deed purported to convey Lot 32M in its entirety, which included 7.125 acres of land previously included in the property conveyed in the deed into Frank Evangelista, Sr., and inherited by Plaintiff Evangelista upon his father’s death (Disputed Area).

5. The McCafferty Property, including the Disputed Area, contains approximately 17.02 acres of land. At the time Defendants purchased the McCafferty Property, it was heavily wooded.

6. In addition to having record title to the Disputed Area, Plaintiffs Evangelista and Malkoon have record title to a small rectangular parcel situated between Warner Street and the Disputed Area (Rectangular Parcel). The Rectangular Parcel contains about 2.5 acres and directly abuts the Disputed Area.

7. Defendants have lived at the McCafferty Property continuously since February 1987. In August of 1986, Defendants began clearing trees for their driveway and cleared an area for their house. They cleared the land for the remainder of their lawn in the fall of 1986. Construction on their home began in October 1986 and the home was completed by the end of January 1987. Defendants moved into their home on February 1, 1987. During construction of their home, Defendants installed a leaching field and a stump dump within the Disputed Area. In the spring of 1987, Defendants planted their lawn in the cleared area. Defendants’ home, most of their lawn, and a portion of their driveway are located within the Disputed Area.

8. Over the past twenty-three years, Defendants have made numerous additional improvements to the Disputed Area. They planted perennial gardens on both sides of their driveway, built a shed in 1990, upgraded and improved their driveway twice, and, in 1996, built an addition to their home, which contains a family room and garage. The shed and addition were built on areas cleared by Defendants in 1986.

9. Also, beginning in 1985, Defendants cut trails through the back portion of the Disputed Area by walking and clearing trees with a tractor. Since the mid-eighties, Defendants, sometimes with their neighbor, Donna Kendall, have used the trails for walking, hiking, and cross-country skiing.

10. In 1994, Defendants submitted 13.5 acres of the McCafferty Property, including a portion of the Disputed Area, to the provisions of G. L. c. 61 (Classification and Taxation of Forest Lands and Forest Products). In accordance with the certification under G. L. c. 61, the McCaffertys had timber on their property commercially cut in 1995. [Note 5]

11. Defendants never received permission from Plaintiffs to use the Disputed Area and no one other than Defendants has made any improvements within the Disputed Area.

12. Since 1986, Defendants have paid taxes on the whole of the McCafferty Property, including the Disputed Area. Plaintiff Evangelista has not paid taxes on the Disputed Area since 1985. In 1985, the Town of Belchertown sent Evangelista a tax bill for only the Rectangular Parcel and when Plaintiff Evangelista inquired as to why his tax bill did not include the Disputed Area he was told “[y]ou have to go to the Land Court” to file an action to establish his title. Plaintiff did not file any such action at that time, or during the subsequent twenty-one years. [Note 6]

13. Plaintiff Evangelista has rarely visited the Disputed Area over the last twenty-three years. The last use he made of the Disputed Area was to go hunting with his father in 1966.

14. Plaintiff Malkoon visited the Disputed Area for the first time in 2005 or early 2006, however he did not walk the property at that time. In 2006, he had a survey of the Evangelista Property prepared. When the survey was completed, Mr. Malkoon became aware that Defendants’ home was located within the Disputed Area, and so advised Mr. Evangelista.

15. Counsel for Plaintiffs sent two letters to Defendants dated March 23, 2006, and April 18, 2006, claiming that Plaintiff Evangelista was the true owner of the Disputed Area and indicating that he would bring an action in the Land Court to establish title. Defendants forwarded these letters to their legal counsel and continued their use and occupancy of the Disputed Area.

* * * * * *

An action to recover land adversely possessed by another must commence within twenty years “… after the right of action or of entry first accrued, or within twenty years after the demandant or the person making the entry, or those under whom they claim, have been seized or possessed of the premises…” G. L. c. 260, §21. 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). It is clear from the record before this court that Defendants have met their burden of showing adverse possession of the Disputed Area. The acts of dominion established at trial, set forth above in this court’s findings in numbered paragraphs seven through twelve, establish that Defendants began using the Disputed Area in a manner consistent with ownership in 1986, after taking title to it in August of that year. During the twenty-one year period between the beginning of Defendants’ use and the filing of this action, Defendants cleared portions of the heavily wooded Disputed Area, submitted a portion of the Disputed Area to G. L. c. 61, as forest land and had timber on the Disputed Area commercially cut, built a home and maintained a lawn and driveway within the Disputed Area and paid taxes on the Disputed Area. See Bernard v. Nantucket Boys’ Club, Inc., 391 Mass. 823 , 826 (1984) (“Payment of taxes evidences a claim of ownership.”).

Plaintiffs make much of the fact that Defendants never erected a fence or other enclosure around the Disputed Area. This fact does not defeat Defendants’ claim. Given the heavily wooded nature of the Disputed Area before Defendants began to exercise their dominion over it, their clearing of the area was sufficient to put Plaintiffs on notice that Defendants were claiming the Disputed Area as their own. When the land claimed by adverse possession is woodland, the party claiming adverse possession must establish the woodland has been enclosed or reduced to cultivation. See Senn v. Western Massachusetts Electric Co., 18 Mass. App. Ct. 992 , 993 (1984) (emphasis added) (citing Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961); Cowden v. Cutting, 339 Mass. 164 , 168 (1959)). The enclosure must indicate the boundaries with “substantial certainty,” and the acts must be sufficient to show occupation of the woodland. Dow v. Dow, 243 Mass. 587 , 593 (1923). As confirmed by this court’s view, Defendants extensively cleared and landscaped the area around their home establishing with “substantial certainty” that Defendants were asserting a claim of ownership to, at a minimum, that portion of the Disputed Area.

Defendants’ use, occupancy, and claim of ownership of the Disputed Area would have been clear to anyone who made an effort to examine the property. Even though Plaintiffs had no actual notice of Defendants’ use prior to 2006, and Defendants’ home was not visible from Warner Street during the months of the year when the trees have their leaves, it does not necessarily follow that Defendants’ use was not sufficiently open or notorious to establish adverse possession. The evidence established that as of 1985 Plaintiff Evangelista knew he was not paying real estate taxes on the Disputed Area, when he had been doing so before that date. Despite that knowledge, Mr. Evangelista conceded that he did not walk the Evangelista Property between 1966 and 2006 and that he made no effort to determine if anyone had entered upon and was using the Disputed Area. This is so despite the fact that the entrance to the McCafferty driveway is clearly visible where it meets Warner Street. It appears from Plaintiffs’ inquiries at trial and the arguments advanced in Plaintiffs’ post-trial brief that Plaintiffs believed Defendants could not establish adverse possession without showing Plaintiffs’ actual knowledge of Defendants’ use. However, that belief is incorrect. The “open and notorious [requirement] is intended only to secure to the owner a fair chance of protecting himself. To be open the use must be made without attempted concealment. To be notorious it must be known . . . to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.” Foot v. Bauman, 333 Mass. 214 , 218 (1955) (citing AMERICAN LAW OF PROPERTY, § 8.56). Plaintiffs did nothing to cut off Defendants’ adverse use of the Disputed Area until March 9, 2007, when they filed the instant action. Although “the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land,” Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n. 8 (1996), the twenty-year period necessary to establish adverse possession had already ripened by the time Plaintiffs took legal action. “To stop the running of the statute, the owner’s entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption.” Id. at 541-42. [Note 7]

Finally, the acts of dominion over portions of the Disputed Area were sufficient to establish Defendants’ title to the whole of the Disputed Area. “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, 243 Mass. at 59. This is so even where “that instrument does not pass a valid title.” Norton v. West, 8 Mass. App. Ct. 348 , 350-51 (1979). Defendants were conveyed title to the Disputed Area on August 4, 1986. Therefore, this court’s findings that Defendants adversely possessed portions of the Disputed Area entitle Defendants to invoke the doctrine of color of title to the entire 7.125 acres of the Disputed Area.

Judgment in Defendants’ favor to issue accordingly.

Karyn F. Scheier

Chief Justice

January 11, 2010


[Note 1] Plaintiffs’ complaint also included a count pursuant to G. L. c. 240, §§ 1-5, seeking to compel Defendants to come forward and try title to the property at issue. At the pre-trial conference, the parties indicated that they agreed that both parties have a claim of record title to the property in question, with Plaintiffs’ record claim predating Defendants’ record claim. (See numbered paragraph 4, infra.) Further they agreed that the try title count would not proceed.

[Note 2] At the close of evidence, Defendants moved for a directed finding pursuant to Mass. R. Civ. P. 41, which this court denied for procedural deficiencies.

[Note 3] By Deed recorded with said Deeds in Book 8751, at Page 124. According to Mr. Malkoon, at the time of the deed, he paid off outstanding real estate taxes due from Mr. Evangelista to the Town of Belchertown on property hereinafter defined as the “Rectangular Parcel,” in exchange for a co-tenancy in the Evangelista Property. (See numbered paragraph 6, infra.)

[Note 4] By deed dated August 4, 1986, recorded with said Deeds in Book 2782, at Page 35. On March 18, 1996, Defendants conveyed the McCafferty Property to Attorney Brian T. Conway by deed recorded with said Deeds in Book 4843, at Page 55. That same day, Attorney Conway conveyed the McCafferty Property back to Defendants as tenants by the entirety by deed recorded with said Deeds in Book 4843, at Page 56.

[Note 5] Under G. L. c. 61, all abutters to the McCafferty Property, which would have included Mr. Evangelista, should have received notice of Defendants’ timber cutting in 1995. There was nothing conclusive at trial regarding whether he was sent or received notice.

[Note 6] Mr. Evangelista testified that in 1985, when told that someone else owned the Disputed Area and that he could go to court, he did not have the money to pursue a court action.

[Note 7] The exceptions do not include the letters sent by Plaintiffs’ counsel to Defendants.