REG 37906

April 14, 1975

Barnstable, ss.

Sullivan, J.


Arthur F. Amadon, of Wellesley in the County of Norfolk seeks in these proceedings to register and confirm his title pursuant to the provisions of G. L. (Ter. Ed.) c. 185, as amended, to a parcel of vacant land situated on Nauset Road in Eastham in the County of Barnstable. The premises are shown on Land Court Plan No. 37906A filed with the petition.

This is a companion case to No. 37905 between the petitioner and the same respondents (and others) in which the petitioner seeks to register and confirm his title to another parcel of land in said Eastham located on Weir Road.

The sole issue in this proceeding (as distinguished from Case No. 37905 where there is also a question as to the abandonment of a public way) is whether the petitioner has established his title by adverse posession to the fractional interest in the premises admittedly owned by the respondents if not barred by the petitioner’s conduct. The stipulation entered into by the parties is set forth at length in the decision in the Weir Road proceeding to which reference may be had and will not be repeated here. The applicable law also was set forth therein. In brief, it is that the possession of one tenant in common, although exclusive, does not amount to a disseisin of the co-tenant since it is consistent with the latter’s rights and that an ouster, or some act which the law considers equivalent to an ouster, is necessary to constitute a disseisin which if continued for twenty years will give the disseisor title by adverse possession. Bellis v. Bellis, 122 Mass. 414 (1877).

The evidence in this proceeding was very similar to that in the companion case, and to that extent it is not repeated. However, there were three additional indicia of adverse holding. The Town of Eastham made a taking of a perpetual easement for the widening and relocation of Nauset Road in 1957. Parcel 12 therein comprised a part of the locus and is described in the order and shown on the taking plan (Abstract, sh. 15, 16, and 17) as property of Arthur Amadon. The petitioner’s grandfather whose name was the same other than for the middle initial died in 1950 so presumably the property was taken from the petitioner and the award for damages made to him, but this is not at all clear from the evidence. On the question of disseisin it is immaterial whether it is the petitioner or his grandfather to whom the taking authority had reference as the owner since in any event it is clear that no interest of the respondents is recognized. Other evidence of ownership only by the Amadon interests was the plan filed in Registration Case No. 30420 in which Arthur Amadon is shown as an abutter. This is followed on the decree plan in said case. The final act of ownership was the removal by Mrs. Amadon of a wild cherry tree from the premises and its planting at her Wellesley home. The latter action is consistent with the Amadon’s status as tenants in common, but the other evidence in conjunction with that not set out herein comes closer to meeting the standard of notoriety imposed on one tenant in common as against his co-tenants to establish that he is claiming the entire interest in the premises and not just his own share. However, the twenty year period has not run either from the taking by the Town of Eastham or the filing with the Land Court of the Plan in Registration Case No. 30420 even should I be of the opinion that sufficient evidence to constitute adverse possession had been shown as to this parcel commencing with the settlement with the Town of Eastham.

On all the evidence I find and rule that the premises shown on the filed plan are wild land, that the petitioner and his predecessors entered as tenants in common with the respondents' predecessors and others, that the petitioners have not established that they have held the premises adversely to the respondents by acts of such notoriety as to constitute notice to the respondents for sufficient length of time to bar the interest of the latter and that 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.

Decree accordingly.