S. BAILEY NORTON, DRUSILLA N. PARKS, FLOYD C. NORTON, TRUSTEES OF N.P.N. TRUST vs. ROBERT E. WEST, DOROTHY M. WEST, ARTHUR GAZAILLE

On March 10, 1975 S. Bailey Norton, Drusilla N. Parks and Floyd C. Norton, Trustees of N.P.N. Trust (N.P.N.), filed a petition in this Court pursuant to G. L. c. 185, § 1 to confirm their title to a parcel of vacant land situated on Meeting House Road in Edgartown in the County of Dukes County. Certain of the respondents in the confirmation proceedings then filed, on October 8, 1975, a complaint in the Superior Court for Dukes County to establish title to Lots 24, 25 and 26 in the "Great Plains Third Division". On motion of N.P.N. the Superior Court proceedings were transferred to the Land Court; while not technically consolidated, the cases were tried together, and all evidence introduced was considered in reaching the decision in each proceeding.

In the confirmation case N.P.N. seeks to confirm title to the premises shown on a plan entitled "Plan of Land in Edgartown, Mass. to be filed in the Land Court" (the "Plan") dated February 7, 1975 by Schofield, Brothers, Inc. and filed as plan No. 38774A (Exhibit No. 1). The plan shows three lots numbered 24, 25 and 26, together containing about 51.54 acres. The premises are bounded on the northwest by Meeting House Road and land of Peter C. and Nanette West Conover, on the west and southwest by Proprietors Road and on the northeast by land now or formerly of Mary M. Waller, denominated as Lot 23 on said plan. The lot numbers refer to the so-called "Great Plains Third Division", the proper location of which has been one of the issues in the case. Meeting House Road has been known in the past as the Road to the Swimming Place, and Proprietors Road is shown as Plain Road on Land Court Plan No. 34426A. The locus is situated northwesterly of Herring Creek Road, a main thoroughfare in Edgartown, into which both Meeting House Road and Proprietors Road lead.

The petitioners principally rely upon record title although there were some sporadic acts of adverse possession shown at the trial. The plaintiffs in the miscellaneous case, Robert E. West, Dorothy M. West and Arthur Gazaille claim, title to the same premises under color of title and adverse possession. Arthur Gazaille initially was represented by counsel for Mr. and Mrs. West. When original counsel withdrew and new counsel appeared for the Wests, he did not also appear for Mr. Gazaille, who is Mrs. West's brother. This left Mr. Gazaille appearing pro se. The Court was advised that he was aware of the proceedings, was following the course of the trial, but did not wish to take an active part. He was notified by the Court by letter of his right to appear and be heard, but he has never communicated directly with the Court. The plaintiffs in the miscellaneous matter and the respondents in the confirmation case hereinafter are generally referred to as the "Wests".

The cases were heard at the Land Court in Boston on December 14 and December 15, 1976, February 28, March 1, March 2 and March 3, 1977 and in the court house in Edgartown on January 4 and January 5, 1977. At each session a stenographer was sworn to record the evidence. All exhibits introduced into evidence are incorporated herein by reference for the purpose of any appea1. A view was taken on January 5, 1977.

The abstract (other than the Narrative) prepared by Donald F. Smith, the Land Court Examiner, who testified at the trial, was introduced as Exhibit No. 2. It shows an one-half interest of record in Lot 24 outstanding in one Hattie A. Osborne in 1889; there has been no conveyance of record of this interest, and its devolution by inheritance cannot be traced. The Examiner was unable to locate any clue in the registry of deeds, the registry of probate or otherwise as to the present holder of this interest. Nor has the search for Ms. Osborne or her heirs or devisees been fruitful. The proper resolution of this question will be discussed later in this decision. Otherwise the Land Court Examiner concluded that record title was in the petitioners subject to ten other problems. Two of these in essence raise the same problem, the others are not in and of themselves sufficient to bar confirmation. The chain of title for each lot appears in Chalk B. The Wests' expert, Leon R. LeClair, Jr., who made no independent examination of the records but based his opinion on the Land Court Examiner's work, agreed with the Land Court Examiner in all but two respects. One matter of disagreement was the correct location of the second parcel in a deed from Mattie W. Modley to Robert P. Brown, Jr. (not of locus but of assistance in placing locus) dated June 19, 1941 and recorded in Book 23, Page 494 (Abstract, sheet 78). A more significant disagreement was as to the proper placement of the parcel marked "Peter C. & Nanette West Conover" on the filed plan. In order to clarify these points of difference I summarize the title.

N.P.N.'s title is derived from two deeds to Samuel B. Norton and Mildred J. Norton, husband and Wife, as joint tenants. One of these was a foreclosure deed from Antone P. Salvadore dated November 27, 1943 and recorded with Dukes County Registry of Deeds, [Note 2] Book 208, Page 187. The other was a deed from Mattie W. Modley dated December 21, 1948 and recorded in Book 215, Page 374. The Land Court Examiner concluded that the Salvadore deed conveyed an undivided one-eighth interest in Lot 24, an undivided one-fourth interest in Lot 25 and an undivided one-half interest in Lot 26 (except for a 300 foot square parcel thereof excluded from this conveyance). As far as the Modley acquisition was concerned, he concluded that her deed conveyed an undivided three-eighths' interest in Lot 24, an undivided three-fourths' interest in Lot 25 and an undivided one-half interest in Lot 26.

Salvadore initially acquired his interest in all three parcels in 1902 from Edward T. Vincent; he conveyed all of them to John B. Barriau1t by deed dated and acknowledged on September 27, 1923 but not recorded until October 1, 1938 in Book 177, Page 358 (Abstract, sheet 53). Barriault reconveyed the same interests in the same parcels to Salvadore by deed dated, acknowledged and also recorded on October 1, 1938 in Book 197, page 216 [Note 3] (Abstract, sheet 54). Salvadore then immediately conveyed to Barriault a parcel on Meeting House Road which was three hundred feet by three hundred feet by deed again dated, acknowledged and recorded on October 1, 1938 and recorded in Book 197, Page 217 (Abstract, sheet 55). Some of the difficulty with the title stems from this deed, for its location on the road is a matter of conjecture. The description begins at the northeasterly corner of the premises on the southerly side of the road "at land of Mattie W. Modley". This reference is ambiguous, for Modley and Salvadore, as tenants in common, together owned the three lots comprising locus. If the draftman of the Salvadore-Barriault deed intended to commence the description at a monument within some portion of this land, it would have been usual to describe it as "other land owned by the grantor et al". Alternatively some adjoining land of Modley may have been intended, but the location of the only parcel to which I have been referred (Abstract, sheet 78) the so-called Dunham's Corner Lot, was in dispute at the trial as hereinbefore mentioned. I find, as Mr. LeClair concluded, that it does not adjoin the locus, but rather is located on the opposite side of Meeting House Road.

Having carved out the 300 foot parcel, Salvadore proceeded to compound the mystery by conveying to Angeline Brazeau Maurry by deed dated October 4, 1938 and recorded in Book 197, Page 232 (Abstract, sheet 56) a parcel of land described as follows:

"The land in said Edgartown, on the "Great Plain" so-called, bounded and described as follows: Beginning at the northwesterly corner of the premises hereby conveyed on the southerly side of the Road to the Swimming Place and at the junction of another Road leading south; thence easterly by said Swimming Place to land of John B. Barriault; thence southerly by said Barriault land, 300 feet to a corner; thence easterly still by said Barriault land 300 feet to land of Mattie W. Modley; thence southerly by said Modley land to land of one Duchaine; thence westerly or northwesterly by said Duchaine land to a road leading south from the Swimming Place Road; thence northerly by said last named road about 38 rods and 6 links to the point or place of beginning. Being part of the premises conveyed to Antone P. Salvadore by deed of Edward T. Vincent dated June 13, 1902 and recorded with Dukes County Deeds, Book 105, Page 306."

Salvadore took back a purchase money mortgage from Mrs. Maurry (Abstract, sheet 57) in which the same description was used. The foreclosure deed to the Nortons, based thereon and in accordance with customary conveyancing practice, also set forth the same description. (Exhibit No. 4)

In addition to the problem of locating the Barriault piece, these several instruments run southerly "by said Modley land to land of one Duchaine". A predecessor in title of Mrs. West was one Arthur Duchaine who formerly owned the land on the southwesterly side of Proprietors Road marked "Robert E. & Dorothy G. West" and "Wayne E. West" on the filed plan. The deeds to Duchaine, (Exhibits 41A and 41B) run from Antone P. Salvadore and Mr. Salvadore et ux, are dated November 1, 1926 and September 16, 1930 and are recorded in Book 170, Page 126 and Book 181, Page 302 respectively (the latter deed being confirmatory of the 1926 conveyance). Mr. Duchaine thereafter conveyed these premises (generally called the "West homestead" herein) to Dorothy Gazaille (West ) by deed dated September 30, 1943 and recorded in Book 208, Page 97 (Exhibit No. 40). There was testimony at the trial that John Barriault lived in a shack at the rear of what is now the Conover parcel, and that its remains may still be seen. This being so, and I so find, then the parties to the 1938 Salvadore-Barriault deed must have intended title to the land on which his home was located to be in Barriault. This explanation does not answer the question as to why the premises were bounded by land of Modley which may merely have been a matter of poor conveyancing or reflect a lack of knowledge by Salvadore (or his attorney) as to the location of his boundary line or his common ownership with Modley. I am satisfied, however, that the Barriault piece has been correctly placed. I therefore find and rule that the description in the foreclosure deed to Captain and Mrs. Norton commences at the junction of Herring Creek Road, Slough Cove Road and Meeting House Road near Proprietors Road, then runs easterly to the parcel marked Conover on the filed plan, then runs southerly and easterly by the latter, then turns and runs southerly through what is shown as Lot 25 to a point on Proprietors Road opposite the northeasterly end of the southeasterly boundary of Wayne West whence it follows Proprietors Road to the point of beginning. This conclusion is buttressed by the fact that the Maurry home was located on Lot 26. The weakness in the conclusion is that it leaves Salvadore with outstanding fractional interests in the remainder of Lot 25 and in Lot 24. However, there is a logical explanation which will eliminate these interests which I do not believe Salvadore wished to retain. The deeds in this chain cease to speak in terms of fractional interests in 1938. Similarly the 1948 deed from Modley to the Nortons, hereinafter discussed, was couched in absolutes. The inference seems justified that Modley and Salvadore, had exchanged unrecorded partition, deeds. [Note 4]

John Barriault left the Vineyard for New Bedford and died on Cape Cod. Before he died, he conveyed the 300 foot parcel to Mrs. West's father, Joseph Gazaille, by deed dated April 29, 1946 and recorded in Book 211, Page 289 (Exhibit No. 7, Abstract, sheet 85). The deed also attempted to convey the same fractional interests in the same three parcels conveyed by Antone P. Salvadore to Barriault, who in turn had reconveyed them to Salvadore. The deed was ineffective to do so, however, for Barriault had already parted with his interest by a deed duly executed and recorded. The Gazaille chain also includes a taking by the Town of Edgartown from John Barriault for the nonpayment of 1943 real estate taxes on land described as "Land, Great Plains, 17 acres" recorded in Book 209, Page 301 (Exhibit No. 9) and an instrument of redemption recorded in Book 212, Page 345 (Exhibit No. 10). Assuming that the assessment was not bad for indefiniteness, it cannot in any event affect the title to the locus, for the assessed owner had conveyed out the premises before the assessment date of the 1943 taxes.

N.P.N.'s remaining interest in the locus is derived from Mattie W. Modley (Abstract, sheet 80). The respondents do not dispute this per se. They appear only to dispute the easterly boundary which they would move further to the east whereas the petitioners were content to fix this line by agreement with the abutter, Mary M. Waller (Exhibit No. 49). The deed to Captain and Mrs. Norton from Mattie W. Modley dated December 21, 1948 and recorded in Book 215, Page 374 (Abstract, sheet 80), described the granted premises in the following fashion:

"The land in said Edgartown" bounded and described as follows:

Beginning at a bound in the Meeting House Way directly opposite the Southeasterly corner of land sold or conveyed by Edward T. Vincent to Arthur Barriault; then running southerly by land of parties unknown to the Creek Road; then southwesterly by said Creek Road to a Proprietors Road or Way; then northwesterly by said Proprietors Way to the Meeting House Corner so called, on the Meeting House Way; then northeasterly by said Meeting House Way so called to point of beginning."

The Land Court Examiner fixed the point of beginning of said Modley deed by locating a deed from Edward T. Vincent to Arthur Barriault dated August 5, 1931 and recorded in Book 183, Page 151 (Exhibit No. 42, Abstract, sheet 81). This property bounds southerly on Meeting House Lane (Road) for six hundred fifty feet and northwesterly by the Telephone Right of Way. Accordingly, the Examiner pinpoints the Modley deed point of beginning as also being about six hundred fifty feet easterly of said right of way measured along the southerly side line of Meeting House Road. This would place the starting point somewhere near the northeasterly corner of land shown on the filed plan as "Mary M. Waller" and would include not only the entire locus but Lot 23 and land to the east as well. Whatever infirmities there may be, in the various descriptions in the chain of title, it is at least certain that the Modley-Norton deed conveys all of the Modley interest in the premises to which N.P.N. seeks to confirm its title. If, as I have earlier found, Modley and Salvadore exchanged unrecorded partition deeds, one would have expected the Modley deed to bound by land of Salvadore rather than encompassing the entire parcel shown on the Plan. However, the conveyancing problems in this title are such that inconsistencies are reassuring rather than disturbing.

In the posture of the case which I have taken, I have found record title to the premises shown on the Plan to be in the petitioners. Much of the evidence at the trial, however, centered on the claim of adverse possession made by the Wests. Inasmuch as some of this was under color of title, the following explanation may be helpful. John Barriault conveyed fractional interests in the locus to Mrs. West's father, Joseph Gazaille, after he had already conveyed the property to Salvadore. The deed, therefore, passed nothing. However, Mr. Gazaille then had color of title to an interest in the locus, but so far as appears from the evidence, he never entered upon the premises to exercise his claim of ownership. After Mr. Gazaille's death on February 27, 1952 and that of his wife on January 13, 1953, his children (other than Mrs. West and Arthur Gazaille) conveyed the same fractional interests in the locus and the 300 square foot parcel to Robert E. West and Dorothy M. West and Arthur Gazai11e and Martha Gazail1e, all as tenants in common (Exhibit No. 8; Abstract, sheet 86). This deed was recorded on February 3, 1959 so whatever activities the Wests thereafter engaged in upon the three lots had the benefit of the doctrine of color of title. As explained in Dow v. Dow, 243 Mass. 587 , 590 (1923), the advantage of having the benefit of the doctrine is that it, in effect, cuts down on the burden of proving adverse possession, i.e.:

"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. The entry is deemed to be coextensive with the grant upon the ground that it is the intention of the grantee to assert such possession."

Activities of the Wests on the locus commenced well before the recording of the deed to them, which is assumed to be the date of its delivery absent other evidence (cf. G. L. c. 183 § 5). While the acts now relied upon to establish adverse possession began after Mrs. West's father thought he had acquired title, there is no showing that such acts were done with his authority. It appears more closely tied to the acquisition by Mrs. West of the West homestead located on the southwesterly side of Proprietors Road, just across from the locus. (Exhibit No. 40). Accordingly, the doctrine seems inappropriate here prior to 1959.

Similarly inapplicable is the principle which limits the doctrine of adverse possession when the disseisor and disseisee are tenants in common. The reason for this rule is that possession of a tenant in common is presumed to be pursuant to his interest in the premises and not adverse to his co-tenants absent some unequivocable action on his part notorious enough to constitute notice, actual or constructive, of ouster to the co-tenant Lefavour v. Homan, 3 Allen 354 (1862). Although the Wests believed that they owned some interest of record in the premises, in fact they did not, and both the reason for the rule and its rationale are lacking here. CF. also Phipps v. Crowell, 224 Mass. 342 (1916).

There was voluminous testimony, much of it repetitive, concerning the nature of the locus and the activities of the Wests thereon. On all the evidence I find as follows: that at the time of the view the locus Was heavily wooded along the Meeting House Road side of the property for one-half to two-thirds of its depth; that the concentration of trees was greatest at the northerly boundaries of Lots 24 and 25 easterly of the Conover parcel; that in the 1930's the locus was largely free of trees; that as late as the 1940'S most of the area was open; that as the general raising of livestock on portions of the locus by predecessors in title of N.P.N. ceased and the character of the Island began to change, the locus became more wooded; that the pine trees grew in on the locus between 1945 and 1955; that the trees at the northern end of Lot 24 may be roughly forty years old and those on that part of Lot 25 nearest Meeting House Road forty-two to forty-five years old; that sometime between 1947 and 1951 the Wests began to abandon junk cars on the locus; that these cars eventually were sold and replaced by others; that the number is now less, apparently because of the death of one West son and an Edgartown by-law limiting the practice; that some cultivation began about 1947 in the vicinity of what is now the Conover lot; that the most visible use of the locus was a plowed tract about four hundred feet by thirty-five to forty feet located on Lot 26; that the garden was planted only intermittently and served also as a fire break and a tick deterrent; that the time when the Lot 26 plowing commenced is obscure, but it appears to have been sometime in the 1950's; that the feasibility of such use varies with the crops that were planted; that Mr. West purchased a tractor in 1946, but there is no credible evidence that the planting of the locus, other than on the Conover parcel, commenced earlier than the 1950's, although some of the land may have been disced; that one of the West sons was said to have driven the tractor at the age of eight years old (about 1955) with this use concealed to avoid his father's wrath; that in 1947 the Wests constructed a rough pig-pen which is an "A" frame structure still visible on the locus; that over a period of nearly thirty years pigs were kept on the locus only three times, in 1947, 1951 and 1963; that as is customary with pigs, they were raised only from April to September or October when they were slaughtered; that during boyhood and adolescence the oldest West son, Wayne, raised chickens for a time in the old "A" frame; that when the building deteriorated, a new chicken coop was constructed about 1960 by Wayne West close to the boundary between Lots 25 and 26; that this chicken coop is not visible from either road; that occasionally other livestock, normally kept on the West homestead, grazed on the locus; that these animals appear to have consisted of one or two cows and a few sheep, but the use of the premises for this purpose was very limited; that there also were recreational activities on part of the locus by the West children over the years which included blueberrying, playing, use of a swing and play house, horseback riding and driving cars, including driving in an area denominated the "race track" by the youngsters; that the "race track" was located on Lot 25; that testimony varied as to the date of its use began, but I find it to have been no earlier than 1960; that the children also crossed the locus to reach their aunt's home on the opposite side of Meeting House Road during the years from 1949 to 1960 approximately; that more recently the families have gone back and forth from the West homestead to the Conover parcel, but that such a use has not prevailed for more than ten years; that the condition of Proprietors Road, which is not paved, is such at certain times of the year as to have led the Wests to remove the trees along a path from the West house across Lot 26 to Meeting House Road in order to afford them access to a public way; that this way has been used for at least twenty years at the appropriate times of the year; that it appears in Exhibit No. 15, Pictures 11, 16, 19, 28 and 31, and was driven over during the view; that the telephone company right of way has been used not only by the Wests, but by strangers as well as a convenient means of crossing the property; that it was common practice in years past and while the "Plains" area was open for residents of the Vineyard to drive across such a field and not to limit their routes to the travelled ways; that people openly rode horseback, hunted and picked berries without considering it necessary to have permission; that such practices gradually have ceased; and that the Wests have hunted rabbits and pheasant on the locus and made an attempt to hunt deer.

The requisites for establishing title by adverse possession are well established: -the use of the premises must be open, continuous, exclusive and adverse under a claim of right for at least twenty years. Historically it has been difficult to obtain title by adverse possession in Massachusetts if the premises in question are "wild land", for the disseisor has been viewed as a wrong doer, and the rights he might acquire by application of the doctrine of adverse possession limited. Cowden v. Cutting, 339 Mass. 164 (1959), is a recent affirmation of this earlier principle. It is questionable whether this doctrine has merit today. It is more attuned to current philosophy to emphasize the equally well established doctrine that the degree of proof necessary to establish title by adverse possession varies with the character of the property, the purposes for which it is adapted and the uses to which it has been put. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). In any event, it is dubious that the locus properly can be characterized as wild land, other than the extreme northerly portions of Lots 24 and 25. During much of the time in question the land was open and in earlier years had been used for truck gardening and pasturing of farm animals. It may be that if the present trend continues, with the encroachment of the trees spreading uninterruptedly, all of the property once again will fall into this designation; this point has not been reached as yet. Nonetheless, even though the premises are not wild land, I still find and rule that on all the evidence the Wests have not established title by adverse possession. All of the activities which they conducted on the premises were occasional and intermittent and were either a spillover from those conducted on the West homestead or were recreational and not done under a claim of right. Many of these were not open and notorious but were obscured by the nature of the land or the activity from view. Since the confirmation case was filed in the Land Court in 1975 which stopped the running of adverse possession, the activities on the locus necessarily would have had to commence by 1955 to encompass the required twenty years. Most of those as to which there was testimony at the trial either did not start until later than 1955 or were so insignificant during the earlier period as not to merit consideration.

There is another fatal flaw in the West case. Although the use of the property by the Nortons over the years has been slight and consisted principally of an occasional removal of the top soil and the picking of Christmas greens, there is one respect in which the Nortons exercised dominion over Lot 26 where the activities of the Wests were concentrated. In 1947 two enormous masts from a large private yacht of which Captain Norton was the master were brought to the locus and placed thereon. They were not removed until after Captain Norton's death with the purchase of the masts by a local builder in 1963. While there was testimony that Mrs. West's father protested the presence of the masts on Lot 26, Captain Norton persisted in leaving them in place, and they were only removed after the Captain's death when Mrs. Norton liquidated his assets. While there was some conflict as to the actual dates the masts were on the property, there was unanimity as to their presence and conspicuous nature. The dominion evidenced by their continued presence from their installation in the 1940's to their removal in 1963 seems more extensive than that in Mendonca v. Cities Service Oil Company, 354 Mass. 323 (1968). This exercise of dominion broke the requisite element of continuity of possession of Lot 26.

For these reasons, the plaintiffs in the miscellaneous case cannot prevail nor can they bar the confirmation of the petitioners' title to the area hereinbefore delineated. However, the Wests have established an easement by prescription to use the way across the property in a general north to south direction from their property on the southwesterly side of Proprietors Road to a point on Meeting House Road across from the Reynolds homestead. This way is approximately ten feet wide, has been used continuously, openly, notoriously and under a claim of right for well over twenty years. N.P.N. is to submit to the Land Court engineers such data as the Land Court engineers may require for the location on the confirmation plan of the way. A decree is to be entered confirming the title of the petitioners to the premises shown on the Plan, subject to said way and subject to such other matters as are not in issue here.

The Conover parcel is not included in the present proceeding. The parties have agreed to the boundaries as shown on the filed plan. N.P.N. refused to agree, however, not to contest the title to this piece in some future proceeding. While the question is not now before this Court, much evidence inevitably was received as to the use of this parcel. There would seem to be no merit in any further litigation concerning the title to the Conover parcel.

Decree accordingly.