ARTHUR N. AMADON vs. JAMES B. DOWNING, ANNA M. DOWNING, BERTHA E. FESSENDEN, ETHELYN H. LIVINGSTON, GLENN EDWIN HELLYAR, FLORENCE L. HELLYAR

Arthur N. Amadon, the petitioner, of Wellesley, in the County of Norfolk and the Commonwealth of Massachusetts brings this petition pursuant to the provisions of G.L. c. 185, §1, to register and confirm his title to a parcel of vacant land on Weir Road in Eastham, in the County of Barnstable and said Commonwealth, containing about 11.137 acres.

By amendment to the petition the petitioner denied the existence of the abandoned town road and any rights of public or private use thereof. A second amendment denied that the premises were subject to any inheritance tax lien arising out of the estate of the petitioner's grandfather.

The petitioner also has brought a petition to register and confirm his title to a parcel of land on Nauset Road in said Eastham, containing about 4.153 acres. The two proceedings were tried together since in each the principal issue was the same: whether the petitioner had acquired title by adverse possession as against his co-tenants, the respondents Glenn Edwin Hellyar and Florence L. Hellyar. The cases will be treated separately, however, for the purpose of decision. The other respondents in this case, Mr. and Mrs. Downing, Mrs. Fessenden and Mrs. Livingston are abutters who claim either that the town road shown on the filed plan as "center line of abandoned road" had not been abandoned or alternatively that they had acquired the right by prescription to use such road as a private way. Appearances and objections were also filed on behalf of Eleanor F. Rowand, Dorothy R. Ropp and Mary M. Shurtleff, but they were withdrawn prior to the trial. The Commonwealth of Massachusetts also answered claiming an Inheritance Tax lien by virtue of possible inheritance taxes due on the interest of the petitioner's grandfather, Arthur F. Amadon in the premises. [Note 1] At a pre-trial conference it was agreed that any decree of registration which was entered would be so subject.

The trial was held at the Land Court on January 20, 1975 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The issues at the trial were narrowed by an agreement reached by the parties relative to the pertinent genealogy and the numerical interest of the respondents Hellyar should the Court determine that their interest had not been lost through adverse possession. The agreement also touched on a vote adopted by the 1922 Annual Town Meeting of the Town of Eastham to discontinue a certain road identified only by its location. This agreement is entitled "Stipulation of Facts", applies to both cases numbers 37905 and 37906 and reads as follows: [Note 2]

IT IS HEREBY STIPULATED in the above Matters as follows:

1. The two parcels involved in Land Court Registration Nos. 37905 and 37906 were the property at his death of Jesse Collins, the great-great-grandfather of the petitioner, Arthur N. Amadon. The parcel in No. 37905 was originally purchased by Jesse Collins in 1856, by deed from Jonathan Gifford, and was relatively recently altered by the sale of one piece and the purchase of another, accomplished in 1972 (to and from Avis Nickerson) (see narrative statement of the examiner in No. 37905 as well, as documentation included therewith). The parcel in No. 37906 was purchased by Jesse Collins in 1853 by deed from, Temperance Doane. (See narrative statement of the examiner in No. 37906 as well as documentation included therewith.)

2. Jesse Collins had five children who survived past infancy: Charles, Elisha, Joseph, Laura and Julia (great-grand-mother of the petitioner). His Will did not devise either of the parcels in question and it contained no residuary clause.

3. Joseph Collins conveyed all interest he may have had in the parcels in question to Nicholas P. Knowles, husband of Julia Ammidon Knowles, by deed dated 1873 (see sheet 7A of the examiner's report in No. 37906). No record of Nicholas Knowles' death and no record of probate of his estate has been found. At his death, Julia Knowles would have been his heir. (See sheet 2A of the examiner's report in No. 37906.)

4. No mention is made in Jesse Collins' Will of his son, Charles, and no record of Charles' death or of any probate of his estate has been found. (See sheet 2 of the examiner’s report in No. 37906.) The intestate share which passed to Charles thus is believed to have reverted equally to the heirs of Jesse Collins and their issue.

5. Julia Knowles died in 1904 leaving a Will with a residuary clause sufficient to devise her interest in this property to her son, Arthur F. Amadon, grandfather of the petitioner. An inventory filed with the probate for Julia's estate lists the two parcels (see sheet 9 of the examiner's report in No. 37906).

6. In 1925 Arthur F. Amadon caused the deeds to the two parcels to be recorded in Barnstable County (see certificate of registration on the deeds, appended as Exhibits A and B).

7. In 1940 Arthur F. Amadon filed an affidavit of relationship indicating his belief that he was the only surviving heir of Jesse Collins and thus was the exclusive owner of any property owned by the heirs of Jesse Collins (see sheet 11 of examiner's report in No. 37906).

8. On February 6, 1922 the Annual Town Meeting of the Town of Eastham "voted to discontinue a road leading from the Town road known as the Addie Nickerson road, westerly to Luther Smith's old asparagus bed as outlined in Article 27. (See copy of the vote, appended as Exhibit C.)

9. Arthur F. Amadon died intestate in 1950 leaving as his sole heir the petitioner, Arthur N. Amadon (see Affidavit of Relationship, of Arthur N. Amadon, appended as Exhibit D).

10. In 1957, the Town of Eastham took various parcels along Nauset Road as part of a perpetual easement for the town way. Parcel 12 was listed as "Arthur Amadon, 1,780 square feet more or less taken - awarded $8.90 no betterments". (See sheet 15 of the examiner's report, in No. 37906 and portions of maps filed in connection with these takings at sheets 16 and 17 of the examiner's report in No. 37906.)

11. As part of a Settlement Agreement between and among heirs of Elisha K. Collins and the petitioner, said heirs of Elisha K. Collins have conveyed all of their right, title and interest in the parcels in question by quitclaim deed dated January 17, 1975 (see copy of deed, appended as Exhibit E).

12. Laura Ann Collins, the daughter of Jesse Collins, married William J. Johnson (see copy of Certificate of Marriage, appended as Exhibit F).

13. Laura Ann Collins Johnson had two children: Louisa R. Johnson (later Taylor) and Charles W. Johnson. Both of these grandchildren of Jesse Collins were provided for in his Will (see sheet 6 of the examiner's report in No. 37906).

14. Charles W. Johnson died in 1887 (see sheet, S-1-2 of the examiner's supplemental report in Nos. 37905 and 37906).

15. Charles W. Johnson had two sons: Charles J. Johnson and William K. Johnson (see probate of Louisa Johnson Taylor's estate, sheet S-1-5 of examiner's supplemental report in Nos. 37905 and 37906).

16. Louisa Taylor died, testate, in 1897, leaving the residue of her estate in trust for her nephews, Charles J. Johnson and William K. Johnson for life, remainder to Mary L. Rhoades (see sheet S-1-6 of the examiner's supplemental report in Nos. 37905 and 37906).

17. Charles J. Johnson died in 1920, unmarried, and William K. Johnson died in 1933, unmarried (see sheet S-1-3 of the examiner's supplemental report in Nos. 37905 and 37906).

18. Upon the death of William K. Johnson any share of the parcels which had passed to Charles W. Johnson reverted to the heirs of Jesse Collins and any share held in trust for Charles W. Johnson's sons from the estate of Louisa Taylor would have been included in the assets ordered turned over to Blanche R. Hellyar as administratrix of the estate of Mary L. Rhoades, remainderman under the Will of Louisa Taylor (see. sheet S-l-7 of the examiner's supplemental report in Nos. 37905 and 37906).

19. Mary L. Rhoades died, intestate, in 1928 leaving her husband, Charles E. Rhoades, and two daughters, Elsie M. Manning and Blanche C. Hellyar as her only heirs and next of kin (see sheet S-1-10 of the examiner's supplemental report in Nos. 37905 and 37906). Charles E. Rhoades died, intestate, in 1930 leaving the said two daughters as his only heirs and next of kin (see sheet 8-1-12 of the examiner's supplemental report in Nos. 37905 and 37906).

20. Elsie M. Manning died, intestate, in 1962 leaving her husband, Ralph L. Manning as her sole heir (see sheet S-1-13 of the examiner's supplemental report in Nos. 37905 and 37906). Ralph L. Manning died in 1967 leaving his entire residuary estate to Florence L. Hellyar, one of the respondents in these proceedings. (See sheet S-1-15 of the examiner's supplemental report in Nos. 37905 and 37906.)

21. Blanche C. Hellyar died in 1970 leaving her son, Glenn Edwin Hellyar, as her only surviving heir and next of kin. Glenn Edwin Hellyar is the husband of Florence L. Hellyar and is also one of the respondents in these proceedings.

22. As a consequence of the events herein described, the petitioner now owns, independently of any claim he may have as to title by adverse possession, an undivided eighty seven and one-half per cent (87 1/2%) interest in the parcels in question and the respondent's (sic) Glenn Edwin Hellyar and Florence L. Hellyar, would similarly own an undivided twelve and one-half per cent (12 1/2%) interest in the parcels in question derived from the estate of Louisa Johnson Tyalor (sic)."

As clearly appears from the stipulation the petitioner and the respondents Hellyar claim under children of one Jesse Collins who held the record title to the premises. As between these parties the issue is whether the petitioner through acts of adverse possession exercised by him and his ancestors has barred the interests which the Hellyar otherwise would have inherited from members of the Collins family, they themselves not being related to the petitioner so far as appears in the record. At the trial Mr. Amadon, his wife, Albert Henry Nickerson, a Registered Land Surveyor, Arnold S. Dane, the Land Court examiner, and James B. Downing all were called as witnesses by the petitioner. The witnesses called by the respondents were Bertha E. Fessenden, Carol Livingston Niden and the petitioner. From their testimony and other evidence I find the following facts:

The petitioner, as a small boy growing up in the middle west, spent summers with his grandmother and grand aunt at their home in Orleans, the Town next adjacent to Eastham in the direction of the Upper Cape. His grandfather was working on the railroad during this period which extended from 1920 to 1935, and they had family picnics on the premises, and Mr. Amadon remembered playing in the woods as a child. When they went for a drive, they would ride by the properties now sought to be registered in the two proceedings, and his grandfather would say that these were the lots his mother (i.e Julia Collins Amadon Knowles) left him. They used to pick berries which would then be canned for later eating. His grandfather spoke of cutting wood on the lots and using it in the Orleans house; he also sold it to friends and acquaintances, one of whom, a Mr. Nickerson whose land abutted the Weir Road parcel offered to purchase the lot.

In the following fifteen year period the use was less since the petitioner's grandfather was injured at work and suffered permanent partial disability, but semimonthly family picnics on the lot and berry picking did continue. The petitioner and his wife would take his family on rides in the Lower Cape area and would drive by the locus in the course of the outing at which time Arthur F. Amadon again would refer to his wood lots. No one other than family members was ever seen on the property.

The petitioner's grandfather died in 1950. From that time to the present the petitioner and his wife made periodic trips to the Cape where after checking on the welfare of their respective mothers they would stop at one of the lots and take a walk or picnic on it. Over the years the berry picking and family picnics continued during the course of which their son and his friends played games in the woods. These occasions occurred as frequently as two or three times a month. Mr. Amadon held himself out as the owner (as he thought he was) so represented to town officials. Plans of abutting land list him as the owner, and he received legal notices as an abutter in hearings on subdivision plans. In 1972 he alone conveyed a piece of the Weir Road parcel to Avis. E. Nickerson (Abstract, Sh. 19); and at other times he received offers to purchase from third parties. For twenty-five years the petitioner paid what he thought was the tax bill for the premises, but for much of this time the wrong lot number and area was assessed to him. On at least one occasion photographs of deer were taken.

As is apparent from the photographs introduced as evidence as Exhibits 3 and 4, the former location of what is denominated the abandoned town road on the filed plan is overgrown with trees and brush typical of Cape Cod vegetation and is impassable with a vehicle from the southeasterly corner of the premises to Weir Road. There was evidence that this portion of the road had not been used for at least twenty-six (26) years and that it could not now be used although there was some testimony as to its sporadic use by grandchildren of one of the respondents at play. It is clear that access to adjoining parcels which would otherwise be landlocked has been from the easterly end of the road leading in from Great Pond Road which runs roughly parallel to Weir Road. This portion of the road is not located on the locus and the extent of any rights therein acquired by prescription or grant is not now determined. So far as the road formerly crossing the premises is concerned, on all the evidence I find and rule that no right by prescription has been established, and that no evidence of any private right by grant to use the way was introduced.

The question remains as to whether the 1922 vote referred to in paragraph 8 of the "Stipulation of Facts" related to the road here in question. There was testimony that at one time Addie Nickerson owned a house near the easterly end of the road and that Luther Smith had an asparagus bed across Weir Road from the locus. There was also further evidence that there was a building across from the old road and somewhat south of it which was used either as a processing building for the asparagus or a bake house for the crew that worked on the asparagus bed. Mr. Albert Henry Nickerson who lives in Eastham, is a surveyor familiar with the vicinity of the locus and has prepared many plans of properties in the general area, testified that in his opinion the vote has to refer to this road, and I so find.

The respondents have argued that the taking of a road as a public way must be shown before it can be discontinued or abandoned. Perhaps this may be so in an instance where rights may accrue by reason of the discontinuance or abandonment of a public way, but I need not reach this question. If not already a public way the vote of the town here at least was sufficient to serve as a disclaimer of any rights of the public therein, and no private rights have been shown. This aspect of the case is similar to Leonard v. Adams, 119 Mass. 366 , 368 (1876) wherein it was said that if the public easement was discontinued, the facts did not show a private right of way acquired before the town road was laid out, by grant or otherwise, which would revive upon its abandonment. Nor in the present proceeding is there sufficient evidence to establish the acquisition of an easement by prescription or grant after the discontinuance. Title may be registered therefore free from any rights in that part of the premises which lies within the former location of the road.

The more difficult issue is presented by the petitioner's claim to have barred the respondents Hellyars' interest in the premises by adverse possession.

It seems clear from the evidence in the present proceeding that Julia Collins Amadon Knowles and her sister Louise Collins Johnson for some reason drifted apart. The probate papers in the latter's estate show that those claiming under Mrs. Johnson were as ignorant of the existence of the Amadon heirs as the latter apparently were of Mrs. Johnson's history after she left Cape Cod. Nevertheless the petitioners and the respondents by descent and devise now hold the premises as tenants in common unless the Hellyars have lost their interest. The rule in Massachusetts as well as elsewhere (see, for example, Elder v. McClosky, 70 Fed. 529 (6th Cir. 1895)) stated briefly is that entry and possession by a tenant in common is presumed to be pursuant to his interest in the premises and not adverse to his co-tenants absent some unequivocal action on his part notorious enough to constitute notice, actual or constructive, of ouster to the co-tenant. Chief Justice Bigelow stated the rule in Lefavour v. Homan, 3 Allen 354 (1862) as follows:

"While it is true that the seisin and possession of one tenant in common is to be taken as the seisin and possession of his co-tenant, and the occupation of one will be deemed to be in conformity to his right and title as tenant in common and not to be adverse, so that mere lapse of time will not necessarily or of itself bar the right of the co-tenant, it is also true that there may be an actual ouster of one tenant in common by another, and that on such ouster the possession at once becomes adverse, and if continued for twenty years, the right of entry of the co-tenant would be thereby barred. Therefore it is necessary, in order to maintain a title by disseisin by one tenant in common against another, to show some act or series of acts to indicate a decisive intent and purpose to occupy the premises to the exclusion and in denial of the right of the other. The facts which will sufficiently prove such ouster and adverse possession will vary according to the different circumstances of parties, and no definite and positive rule can be laid down by which all cases can be governed."

A strong indication that the entire fee has been claimed is found in cases where a party owning of record only a fractional interest in the premises has executed a warranty deed purporting to convey the whole fee. Kittredge v. The Proprietors of the Locks and Canals on the Merrimack River, 17 Pick. 246 , 247 (1835). Historically at least the rule has been different as to quitclaim deeds, see Lafavour v. Homan, supra, but I question whether the logic of distinction applies to a deed with statutory quitclaim covenants. The chain of title to the locus, however, is completely devoid of deeds other than those to Jesse Collins recorded long after his death and not pertinent on the resolution of this question at any rate.

The inventory in the Estate of Julia Collins Amadon Knowles does list the entire interest in the real estate. The lack of precision with which such instruments are prepared keeps this from rising to the status of a warranty deed conveying the entire interest. The only other factors which might bring the occupation by the petitioner and his predecessors without the general rule applicable between tenants in common is the execution and delivery by the petitioner of a deed to an area which had comprised a portion of the original Weir Road parcel in an exchange between the petitioner and the owner of the adjoining land (Abstract, sh. 18 and 19) and the execution and recording of an affidavit of relationship referred to in paragraph 7 of the "Stipulation of Facts". It does not appear to me, however, that the recording of such an affidavit affords the notoriety required to alert the tenants in common to the fact that the entire interest in the premises was being claimed by the co-owners. The affidavit may follow within the purview of G.L. (Ter. Ed.) c. l83 §5A, but its effect is weakened by the fact that it relates to other property. It does, on the, other hand, provide some evidence that the Amadon chain was claiming the entire interest in the premises. Conversely the execution and delivery of the deed to Avis E. Nickerson dated July 24, 1972 and recorded in Book 1708, Page 88 is an act which indicates a decisive intent to exclude and deny the rights of others in the locus. However, this was done only very recently, and the twenty years clearly had not run before the respondents asserted their interest.

The respondents are residents of California and their predecessors lived in parts of the Commonwealth located far from Eastham. The petitioner is not on this account held to a greater degree of notoriety in his claim that he holds the entire interest in the premises, but his actions should be such as to afford knowledge to his tenants in common if they had visited the premises or the Registry of Deeds that he has attempted to disseise them. I find that this burden has not been met in the present proceedings.

I have no doubt that within the Amadon family the premises were considered to be the sole property of Julia which descended to the petitioner's grandfather, his father and finally the petitioner. The payment of real estate taxes in and of itself does not alone constitute adverse possession although, of course, it is some indication thereof, particularly since the petitioner did not attempt to follow the statutory procedure for recovering his share from his co-owners. See G. L. (Ter. Ed.) c. 60, §§85 and 86. The only other evidence of any persuasion was the fact that plans of abutting properties showed Arthur Amadon (whether the petitioner or his grandfather is immaterial at this time) to be the owner of the locus and the conveyance by the petitioner to the owner of abutting property of a portion of the parcel formerly comprising the premises. Other than the affidavit of kinship and the recent deed to Nickerson, however, there is nothing on the record so far as appears in the evidence to substantiate the generally held view that the petitioner was the sole owner of the parcel. The remaining evidence of adverse possession consists of acts which might be done by any visitor to Cape Cod whether or not an interest was claimed; the only distinction arises from the fact that the acts were continued sporadically over a period of many years. The terrain and the vegetation of the premises were such, however, that the activities of the petitioner and his predecessors were not apparent to the public.

The question of the acquisition of title by adverse possession to wild lands is a knotty one. It is of necessity used by many petitioners in establishing their title to real estate where defects exist on the record which otherwise cannot be cured. It must, on the other hand, be carefully weighed in instances where the degree of proof by the very nature of the property is slight, and there are others with a record claim to an interest in the property whose rights would be eliminated if the doctrine prevailed. The Supreme Judicial Court has always adhered to the well established doctrine that generally a title by adverse possession cannot be shown to wild or woodland that has always been open and unenclosed. See Cowden v. Cutting, 339 Mass. 164 , 168,169. The nature of the property in which it is sought to establish title by adverse possession must be considered in determining whether the burden has been met. LaChance v. First National Bank and Trust Co., 301 Mass. 488 . The cases cited in Cowden illustrated the difficulty of establishing title to land in its natural state. This burden is heightened where adverse possession is sought against a co-owner.

On all the evidence I find and rule that the premises shown on the filed plan are wild land, that any rights of the Town in the road, the center line of which forms the southerly boundary of the premises, have been abandoned and that no private rights by prescription or grant have been established, that the petitioner and his predecessors entered as tenants in common with the respondents' predecessors and others, and that acts carried out by the petitioner and his predecessors were not of sufficient notoriety to establish that they intended to claim the entire fee interest in the premises rather than their fractional interest therein and that therefore the petitioner has not established his title by adverse possession to the undivided one-eighth interest in the property held of record by the respondents. I find and rule, however, that the petitioner has established title adequate for registration to the remaining interests in the premises, but title may not be registered and confirmed of any interest less than the entire fee interest. See G.L. (Ter. Ed.) c.185 §26, as amended. If an amendment adding the respondents as petitioners is filed within thirty days after the expiration of the appeal period from this decision without any appeal having been taken or within thirty days from the decree of any appellate court affirming this decision, then title to the premises may be registered and confirmed in the petitioner, as to an undivided seven-eighths interest and in the respondents, as to an undivided one-eighth interest, subject to such other matters which are not in issue here but free of any rights of others in the abandoned town road. The petitioner has in good faith conveyed a portion of the original Collins parcel to an abutter who in consideration thereof conveyed a piece of the land shown on the filed plan to the petitioner. It is only equitable that the respondents Hellyar who are to benefit from the latter conveyance execute without monetary consideration a statutory quitclaim deed conveying to Avis E. Nickerson their interest in the land conveyed to her by the petitioner by deed dated July 24, 1972 and duly recorded in Book 1708, Page 88.

Decree accordingly.