Home JOHN MEDEIROS vs. THOMAS N. MOTTE, NATALIE P. MOTTE

REG 38842

December 9, 1977

Plymouth, ss.

Fenton, J.

DECISION

The petitioner, John Medeiros, brought a petition under the provisions of G. L. c. 185, § 1(a) to register and confirm title to a parcel of land (the "locus") located in the Town of Plymouth, Plymouth County, as more completely described in said petition and shown on the filed plan.

The petitioner alleged that he obtained title to the locus from Mary G. Vieira by deed dated April 15, 1975 and recorded on April 16, 1975 in the Plymouth County Registry of Deeds, Book 4059, Page 659. [Note 1] He further alleged in an amended petition, filed May 24, 1976, that since 1933 he and his predecessors in title have had and have exercised continuous, uninterrupted and uncontested use of the locus.

The respondents, Thomas N. Motte and Natalie P. Motte, filed an answer in which they denied that the petitioner owns the locus and in which they alleged that they had acquired title to a substantial portion of said locus by deed from John J. Souza and John P. Souza recorded in Book 3945, Page 234 and also by deed from John L. Almeida et ux recorded in Book 3958, Page 52.

A stenographer was appointed and sworn to record the testimony at the hearing. All exhibits introduced into evidence, including the abstract and the filed plan, are hereby incorporated into this decision for the purpose of any appeal.

On all the evidence the court finds the following facts. The locus is part of a larger parcel of land, approximately twice the size of the locus, which Antonio Souza Cavaco, also known as Antone Souza Cavaco, conveyed to John Michaud Carreiro by deed dated December 20, 1915 and recorded on July 31, 1916 in Book 1255, Page 509. The larger parcel was described as follows:

"A certain lot of woodland containing two acres and situated on the southerly side of the location of the Plymouth and Middleboro RR in Plymouth. Description the same as that contained in Book 1305, Page 395, being a portion of the premises conveyed to me by deed of Philip Dries dated December 31, 1913 to be recorded herewith."

John Michaud Carriero conveyed the above-mentioned parcel of land to Louis Almeida by deed dated September 20, 1916 and recorded on June 20, 1918 in Book 1305, Page 395. This deed contained the following description of the land being conveyed:

"A certain lot of woodland containing two acres more or less and situated on the southerly side of the location of the Plymouth & Middleboro RR in Plymouth and bounded and described substantially as follows, to wit:

Northerly by said Railroad 250'

Easterly by Land now or formerly of Joseph Braunecker 300'

Southerly by Land now or formerly of Antonio Souza Cavaco 250'

Westerly by other land of said Cavaco 250'

Being a portion of the premises conveyed to Antonio Souza Cavaco by deed of Philip Dries dated December 31, 1913 and being the same premises conveyed to the grantor by deed of said Cavaco dated December 20, 1915 and recorded in Book 1255, Page 509."

In two deeds, Louis Almeida conveyed separate but overlapping portions of the above-described premises. One of these deeds is an essential link in the petitioner's chain of title while the other one is relied upon by the respondents. The first deed from Louis Almeida to Joseph A. Mateas was dated July 1, 1921 but was not recorded until September 8, 1933 in Book 1648, Page 349. This deed conveyed only a portion of the premises originally conveyed to Louis Almeida by John Michaud Carriero and described the land being conveyed as:

"A certain piece, parcel or tract of land lying adjacent to the Plymouth & Middleborough R.R. right of way and on the southerly side thereof, in Plymouth bounded and described as follows: -

Beginning at a stone bound it being NE corner bound of the tract conveyed, standing in the southerly side of the RR right of way,

thence Southerly by land formerly of Joseph Braunecker 300' to a stake;

thence Westerly by land formerly of Antonio Souza Cavaco 125' to a stake & stones and other land of the grantor;

thence Northerly by land of Grantor 300' to Plymouth & Middleborough RR right of way;

thence Easterly by RR right of way 125' to point of beginning;

and being the southerly half of the tract of land conveyed to the grantor by deed of John Michaud Carreiro dated September 20, 1916 and recorded in Book 1305, Pages 395-396."

By deed dated September 8, 1933 and recorded that day in Book 1648, Page 350, Joseph A. Mateas, also known as Joseph A. Mathias, purported to convey this land, the locus, to Manuel Medaros. Manuel Medeiros, also known as Manuel Medaros, died intestate on July 16, 1946 while his widow Mary G. Medeiros died intestate on March 8, 1951. Petitions for probate of their estates which were not filed until July 1, 1974 were both allowed on July 11, 1974. Included in the inventory in each estate filed on May 9, 1975 is "vacant land in Plymouth shown as Plot 41D in the Plymouth Assessor's Map Sheet #101, 1 acre lot more or less at John Hall Road." The Medeiros' only two heirs were a daughter, Mary G. Vieria, and a son, John Medeiros, the petitioner. By deed dated April 11, 1975 and recorded on April 16, 1975 in Book 4059, Page 659, Mary G. Vieria conveyed her interest in the locus to the petitioner John Medeiros.

The second deed out from Louis Almeida was dated February 17, 1923, approximately two and one-half years after the above-mentioned deed to Joseph A. Mateas. However, the second deed from Louis Almeida to Frank Almeida was recorded on March 17, 1923 in Book 1434, Page 21, more than ten years before the Mateas' deed. This deed to Frank Almeida contained the following description of the land being conveyed:

"A certain lot of woodland, containing one acre, more or less, situated on the Southerly side of the location of the Plymouth and Middleboro Railroad in said Plymouth, and bounded and described as follows: -

Northerly by land of Grantee, two hundred and fifty (250) feet, Easterly by land now or formerly of Joseph Braunecker, one hundred and fifty (150) feet; southerly by land now or formerly of Antonio Souza Cavaco, two hundred and fifty (250) feet; and westerly by other land, now or formerly of said Cavaco one hundred and twenty-five (125) feet. Being a part of the premises conveyed to me by deed of John Michael Carreiro, dated September 20, 1910 and recorded with Plymouth County Deed, Book 1305, Page 395, 396."

The only land now or formerly of Joseph Braunecker which could be located in the vicinity of the locus was not to the east thereof but to the northwest on land shown on the filed plan as owned by the Fronjohn Realty Trust. The easterly reference in this deed, as well as in the 1916 deed from John Michaud Carreiro to Louis Almeida, was, therefore, apparently in error. In addition, the northerly reference in this deed incorrectly recites that it is by land of grantee instead of by land of grantor. However, from a close examination of all the deeds in evidence and especially from an analysis of the 1923 deed to Frank Almeida in light of the 1916 deed to Louis Almeida, the court finds that the description contained in the 1923 deed includes the southeasterly half of the locus as shown on the filed plan as well as the southeasterly half of the lot shown on the filed plan as owned by Thomas N. Motte and Natalie B. Motte. Neither the Land Court title examiner who prepared the abstract for the court in this case nor the Registered Land Surveyor who prepared the filed plan included this deed in the chain of title to the locus. However, at the trial both the title examiner and the surveyor agreed that it was possible to construe this deed as including the southeasterly portion of the locus hereinafter referred to as the "disputed area."

By deed dated December 24, 1932 and recorded in Book 1637, Page 213 on December 30, 1932, Frank Almeida conveyed this land to John J. Souza, who by deed dated September 4, 1968 and recorded in Book 3470,Page 238 conveyed it to John J. Souza and John P. Souza as joint tenants. Finally, by deed dated October 31, 1973 and recorded in Book 3945, Page 234 John J. and John P. Souza conveyed the above-described land, including the "disputed area," to the respondents, Thomas N. and Natalie B. Motte, as joint tenants.

In 1932 when the petitioner was 16 his father, Manuel Medeiros, (Manuel) had to leave his job because he had bronchial asthma. At the suggestion of his doctor who thought the fresh air Would improve his condition, Manuel in September, 1933 purchased and began to farm a lot of land, the locus, in the Town of Plymouth. For 13 years, from, the time he purchased the locus in September, 1933 to the time he died in 1946, Manuel planted and sold potatoes, corn, lettuce, carrots, beets, garlic and onions on said locus. He also had strawberry beds and grapevines on the locus. These activities of Manuel were conducted on the "disputed area" as well as other portions of the entire locus. The petitioner and his father paid Louis and John Almeida to help plow the locus since they were the only ones in the area who had a horse and team. The petitioner had a truck with a sign on the door reading "J. Medeiros Farm Produce and Quality Fruit Plymouth" and had a state license to sell produce door to door. To house their tools and to keep themselves dry during inclement weather, the petitioner and his father constructed a small shed 16 feet by 8 feet. The shed, in which they occasionally spent the night, was located on the northeast boundary of the locus, adjacent to what is now Aldrin Road, closer to the southeast than the northeast corner and very close to the highest elevation on the locus. The shed which contained bedding and a stove was torn down in 1968 during construction of Aldrin Road by the Plymouth Industrial Park. At this time the petitioner's grapevines and strawberry bed were also destroyed. The petitioner complained to Mel Coombs of the Plymouth Industrial Park but received no satisfaction. He then hired a surveyor, now deceased, to survey his land. He was not pleased with the work performed by this surveyor and in 1975 he hired Malcomb Shaw.

The only other structure on the locus was a backhouse on the easterly side of the shed. In addition, the petitioner and his father constructed a fence and a gate along the easterly boundary of the locus as shown on the filed plan. Although constantly being remodelled, this fence kept falling apart and it was not repaired after 1952. In the earlier years, there was also a fence between the railroad and the locus. There were no fences on the other two sides of the locus.

The petitioner did not continue to farm the locus after the death of his father in 1946. However, he did allow a friend, Eugene David (David), to farm the locus for six years from 1946 to 1952 without the payment of any rent. David had worked with Manuel Medeiros on the locus before Manuel's death in 1946, had done some trucking for him and had obtained the lumber which Manuel used to build the shed and the backhouse on the locus. The petitioner did not charge David for the use of the locus because he believed that it was beneficial for the soil to be worked. David planted the back or southeasterly portion of the locus, the "disputed area" up to the shed because the soil closer to the railroad was too sandy. The petitioner went to the locus regularly to see David's cultivation which consisted mostly of corn and potatoes. Although there were not many crops on the locus in 1950, David was still cultivating the land in that year and did so until 1952. There has been no cultivation of the locus since 1952, but the petitioner continued to work the strawberry patches and the grapevines after that time. He and his son, Kenneth John Medeiros (Kenneth), picked grapes on the locus within the "disputed area" until the early or mid 1960's. The petitioner has done at least some work on the locus including the "disputed area" every year from 1933 until the filing of the petition in this case. Most of this work has been done in the spring, when the wind and rain bring down broken trees and limbs. Since 1953, the petitioner has maintained the entire locus, including the "disputed area," cleaned up the debris, pulled out seedlings and picked up a bushel of loam whenever he needed it for his backyard. Until 1975, no one ever questioned his right to go on any part of the locus. Since the late 1950's, the petitioner frequently, as many as two or three dozen times a year, brought his son with him to the locus. Kenneth recalls first having knowledge of the locus in 1956-1957 when he was eight or nine years old. After his release from military service in January, 1970, Kenneth went to the locus every two weeks to observe the construction of Aldrin Road. Since that time, he has also gone to the locus quite frequently with his father and on his own to work there. No one has ever prevented him from going on the locus. Kenneth, who is now employed by the Plymouth Fire Department, used to be employed by the Malcomb T. Shaw Company where he started out as a transit man in 1971 and became a chief of a party approximately one and one-half years later. While employed by Malcomb T. Shaw, Kenneth worked on the filed plan in this case.

The locus is a rectangular piece of land containing approximately 35,101 square feet of land on Aldrin Road in Plymouth, Massachusetts. Aldrin Road, a public road 100 feet wide was laid out by the Town of Plymouth on March 8, 1968 and was accepted by the Town of Plymouth on April 9, 1968. At the time of trial, the locus consisted primarily of a wild grass vegetation with the exception of the northwest corner which was wooded. Although the majority of the locus has the general appearance of being one continuous field with thick heavy grass, three furrows approximately forty to fifty feet apart were still identifiable thereon as recently as 1975. One of these furrows is 45 feet from Aldrin Road and one starts right on the southeasterly boundary line and is, therefore, in the "disputed area." There have been no structures on the locus since a small shed built by the petitioner's father was bulldozed during the construction of Aldrin Road. The highest elevation on the locus is located approximately one-half to three-quarters of the way towards the southerly boundary on the northeasterly boundary adjacent to Aldrin Road. The wooded northwest corner is at a lower elevation than the interior of the locus.

The respondents' land shown on the filed plan to the southwest of the locus was originally wooded but when John Souza purchased it he began to farm it regularly with the petitioner's father. Souza stopped farming the land before Manuel Medeiros' death in 1946, and in the ensuing thirty years the land has again become wooded.

At one time a small cranberry bog was located almost due east of the southeasterly corner of the locus. This bog was located very close to the land farmed by the petitioner's father and water from the bog drained onto the locus. Approximately one-half of this bog, was filled in 1968 during construction of Aldrin Road while the remainder was filled in by Mr. Balboni in 1975. A sandy area is now visible on the site of the former bog on the easterly side of Aldrin Road. The majority of the sandy area is located to the south of the locus, but a small portion does extend past a point due east of the southeasterly corner of the locus.

A small cartpath or country road, which is still visible, circled the cranberry bog and approached the southeast corner of the locus. Although another cartpath appears on land located on the westerly side of the locus, it was not definitely established that any such cartpath went through the locus itself. Such a cartpath may have run just to the south of the locus.

Since 1933, neither the petitioner nor his father has owned any property in Plymouth other than the locus. Since 1946, the petitioner has paid all the real estate taxes on land, which he claims is the locus, and which is described in the 1948 tax bill as "Lot - Nick's Rock Road, 37,500 square feet." The bill states the value of the land is $50.00 and the value of the building is also $50.00 for a total assessment of $100.00. The locus is not located on Nick's Rock Road. The 1975 tax bill describes the land taxed to the petitioner as .81 acres on John Hall Road which is located somewhere near the locus.

The respondents allege that they have also paid taxes on that portion of the locus referred to herein as the "disputed area." The respondents purchased some land in the vicinity of the locus from John Almeida and some from John Souza. The land described in their deed from John Souza is shown on the 1974 Assessor's plan as lot 4lC. The other land which the respondents own in the industrial park area is shown on the Assessor's map as lot 41E. The ownership of lot 41E is not in issue in this case. In a tax bill for the transitional period from January 1, 1974 to June 30, 1974 the respondents were assessed for .72 acres for land referred to thereon as lot 4lC of Plat 101. In tax bills for the period from July 1, 1974 to June 30, 1975, the respondents were again assessed for .72 acres for land referred to thereon as lot 41C of Plat 101. However, in their tax bill for the period from July 1, 1975 to June 30, 1976, they were assessed for only .40 acres for land again referred to as lot 41C of Plat 101. This change was reflected on the Town of Plymouth's Assessor's map. On the January 1, 1974 Town of Plymouth Assessor's Map 101 prepared by Delano & Keith Surveyors the northwesterly portion of the locus is shown as lot 41D while lot 41C contains the "disputed area" and the southeasterly portion of the land shown on the filed plan as belonging to the respondents. Lot 41C appears to be substantially the same land as that described in the deed in the respondents' chain of title from Louis Almeida to Frank Almeida. Lot 41E on this assessor's map is the other half of the respondents' land as shown on the filed plan. However, on the 1975 assessor's map lot 41D is doubled in size and appears to be substantially the same land as that shown on the filed plan as the locus while lot 41C is cut in half and appears to be substantially the same land as that shown on the filed plan as the southeasterly portion of the respondents' land. Mr. Charles Sanderson is the proprietor of Delano & Keith and is the individual who prepared the town assessor's map. The petitioner's son, Kenneth, talked to Mr. Sanderson around January 15, 1974 after which Sanderson changed the assessor's map.

In summary, the petitioners introduced tax bills from 1948, 1956, 1957 and 1958 for land which they claim to be the locus. The next bill they introduced, the 1975-1976 bill, was clearly for the locus. The respondents, on the other hand, have introduced no bills earlier than 1974 but they have introduced bills which show that in 1974 and a portion of 1975 they paid taxes on that portion of the locus referred to herein as the "disputed area."

It is a well established rule that the burden of proving registerability of title, either by record or by adverse possession, is upon the petitioner. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). The court finds and rules that the petitioner in the instant case has established a record and registerable title to approximately one-half of the locus, shown on the filed plan as the northwesterly portion thereof. However, the petitioner failed to sustain the burden of proof in establishing record title to the remaining, or southeasterly, portion of the locus, the "disputed area." The respondents introduced into evidence a 1923 deed from Louis Almeida to Frank Almeida which, if it described any portion of the locus, would place that portion of the locus in the respondents' rather than the petitioner's chain of title since it was recorded in 1923, before the 1921 deed introduced by the petitioner from Louis Almeida to Joseph A. Mateas which was not recorded until 1933. Earle v. Fiske, 103 Mass. 491 (1869). Once the respondents introduced the 1923 deed into evidence the petitioner had the burden of proving that no part of the locus was described therein. The petitioner failed to sustain this burden of proof and, in fact, both of his expert witnesses testified that the deed could be construed so as to include the "disputed area" portion of the locus, and the court has so found. The court, therefore, rules that the petitioner has not established that he has record title to the southeasterly portion of the locus, the "disputed area," and that he is not entitled to register this portion of the locus under a claim of record title thereto.

The petitioner also alleges that he acquired title to the "disputed area" by adverse possession. [Note 2] Title by adverse possession can be acquired only if the party so claiming can establish proof of nonpermissive use which is open, notorious, exclusive, adverse and under claim of right for a period of twenty years. See Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The court rules that the petitioner has satisfied this burden of proof.

The petitioner sought to establish not only his own use of the locus but also that of his predecessors in title, most particularly his father, Manuel Medeiros. Manuel had entered upon the "disputed area" under claim of right since the description contained in his deed from Joseph A. Mateas included the entire locus. There is no evidence that he or his successors in interest were aware of any defect in their title until the proceedings in this case. The fact that the petitioner's claim is based on a mistaken belief as to the location of his boundaries is not significant. Boutin v. Perreault, 343 Mass. 329 , 331 (1961); Jordan v. Riley, 178 Mass. 524 , 525 (1901).

The respondents, however, argue that in several other respects the petitioner has failed to sustain his burden of proving that he acquired title to the "disputed area" by adverse possession. First, the respondents argue that the petitioner has failed to prove that he or his predecessors in title cultivated the land for twenty years. The petitioner contended that his father cultivated the "disputed area" portion of the locus from 1933 to 1946, and his friend, Eugene David, cultivated it from 1946 to 1952. From the testimony of several witnesses, none of whom professed to be experts in the growing of crops, the respondents tried to prove that the petitioner's father could not have farmed the "disputed area" in 1933 since he did not acquire record title thereto until September of that year after that year's planting season. They also sought to prove that Eugene David did not farm the "disputed area" in 1952 by introducing an aerial photograph of the locus dated July, 1952 which purportedly shows the locus as one continuous field and does not show any corn or potato rows. Although testimony indicated that corn and potato rows should be at least two to three feet apart, it was not established that they always are. In any event the court has found that the activities of the petitioner and his predecessors in title were not limited to the 1933-1952 period. The petitioner testified, and the court has found, that he did some work on the locus including the "disputed area" every year until the filing of the petition in this case, that he frequently visited the locus with his son, that they picked grapes until the early 1960's and that their shed remained on the "disputed area" portion of the locus until the construction of Aldrin Road in 1968. These acts Were sufficient to indicate the petitionerÂ’s claim of dominion over the entire locus and to put the true owner on notice of the adverse claim.

The respondents also tried to prove that the land cultivated by the petitioner and his predecessors in title was not the locus but rather was that land which is now Aldrin Road. In advancing this theory, the respondents make several arguments. First, they argue that the petitioner must have known that his land was not the locus because he complained to the Plymouth Industrial Park when his shed, strawberry bed and grapevines were bulldozed during construction of Aldrin Road. However, the petitioner testified that the shed was located right on the boundary line between the locus and land which is now Aldrin Road, and it is entirely possible that this shed was inadvertently bulldozed during construction of that road. The respondents further argue that the petitioner and his predecessors in title could not have farmed the entire locus since the northwest portion of the locus is now wooded. They also point to the fact that the land to the west of the locus, supposedly farmed by Souza, is now heavily wooded. However, the locus has not been cultivated since 1952 and the land that belonged to Souza has not been cultivated since before 1946. Twenty-five to thirty years is a sufficient time for an area, once cleared, to become wooded.

The respondents also argue that the petitioner and his predecessors in title must have farmed land that is now Aldrin Road since said petitioner testified that the land farmed by his family and by Eugene David was immediately adjacent to a cranberry bog. The respondents sought to prove that the entire circumference of what was once a cranberry bog is still visible to the east of Aldrin Road. However, the respondents' testimony in this regard was inconclusive and the court has found that one-half of said cranberry bog, which did lie immediately adjacent to what is now Aldrin Road, was filled in during the construction of that road. The respondents also sought to prove that a small cartpath or country road entered the southerly edge of the locus and exited near the southwest corner of the locus. Since the petitioner testified that there was no cartpath in the location farmed by his family, the respondents argue that the Medeiros' did not farm the locus. However, the court has found the evidence insufficient to establish whether the cartpath ran just inside of or just outside of the locus.

The petitioner himself and several other witnesses including his son Kenneth, Eugene David and Antonio Vieira, the petitioner's brother-in-law who went to the locus many times with Manuel Medeiros and who actually worked there himself, positively identified the locus including the "disputed area," as the land farmed by the Medeiros' family.

Although these witnesses were not completely disinterested the court notes that the respondents' case rested primarily on the testimony of two witnesses, one of the respondents, and a law partner of the respondents' attorney who had been a member of the Massachusetts Bar for two years.

The court, therefore, finds and rules that the use of the "disputed area" by the petitioner and his predecessors in title was sufficiently open, notorious, exclusive, adverse and continuous for a period of twenty years under a claim of right to constitute an acquisition of title by adverse possession. The court rules that the petitioner has record title sufficient for registration to the remainder of the locus. The petitioner, therefore, is entitled to a decree of registration to the entire locus as shown on the filed plan. Said decree of registration is to be subject to such other matters as are disclosed by the examiner's abstract which are not in issue.

Decree to enter accordingly.


FOOTNOTES

[Note 1] Unless otherwise noted, all instruments referred to herein as recorded, are recorded in the Plymouth County Registry of Deeds.

[Note 2] The respondents argue that the petitioner's allegation of adverse possession is insufficient since the petition refers only to "continuous, uninterrupted and uncontested use" and fails to allege hostile or adverse possession. However, as stated by the Supreme Judicial Court in Rothery v. MacDonald, 329 Mass. 238 , 242 (1952), "[t]he important averment is that the petitioners are the owners, not how they obtained title."