MISC 82055

June 10, 1977

Plymouth, ss.



This is a complaint brought by Priscilla Shaw of East Bridgewater in the County of Plymouth to establish her ownership by adverse possession to so much of a strip of land in said town thirty (30) feet in width, shown as Osborne Avenue on a plan entitled “Plan of Land owned by C. W. Osborne and A. McCordick situated in East Bridgewater, Mass." dated June 1915 by S. Fuller, recorded with Plymouth Deeds, Plan Book 2, Page 577 (Exhibit No. 1) as lies southerly of the northerly line of Lot 3 on said plan extended westerly. Osborne Avenue is a paper street which has never been constructed. The plaintiff acquired title to said Lot 3 from Ida M. Kingston, a surviving joint tenant, by deed dated August 10, 1972 and recorded with said Deeds, Book 4188, Page 27 (Exhibit No. 4). The premises originally had been conveyed to Mrs. Kingston's husband by William A. Pitts by deed dated July 6, 1921 and recorded with said Deeds, Book 1389, Page 484 (Exhibit No. 2). Mr. Kingston subsequently conveyed Lot 3 to himself and his wife by deed dated July 27, 1945 and recorded with said Deeds, Book 1889, Page 219 (Exhibit No. 3). Mr. Kingston died in 1968, and sole ownership of Lot 3 passed to his widow by operation of law. Title to Lot 3 is not disputed. It is ownership of so much of a thirty foot wide paper street known as Osborne Avenue as lies between the public way, Central Street, and land of the defendants, Frank P. Solari and his wife, Dorothy, that is in dispute. The plaintiff contends that ownership thereof in fee simple free of any rights of third parties, was acquired by her predecessors in title. The defendants, on the other hand, claim that the fee in Osborne Avenue was conveyed to Mr. Solari of record and that any use by those in the plaintiff’s chain of title was permissive rather than adverse.

The complaint was brought first against Frank P. Solari to whom the record title to Osborne Avenue and adjoining land arguably was conveyed by John B. Thorndike, Commissioner to make partition, by deed dated December 8, 1949 and recorded with said Deeds, Book 2069, Page 421 (Exhibit No. 5). Thereafter by deed dated February 23, 1956 and recorded with said Deeds, Book 2482, Page 33 (Exhibit No. 6), Mr. Solari conveyed the same premises he had acquired in 1949 to himself and his wife as tenants by the entirety. Mrs. Solari originally was not a party to this proceeding and was added later as a party defendant with the assent of her counsel.

The trial was held at the Land Court on November 16, 1976, a stenographer having been appointed to record the testimony. All exhibits introduced into evidence at the trial are incorporated herein for the purpose of any appeal. A view was taken by the Court on March 16, 1977.

The deed to John J. Kingston from William A. Pitts (Exhibit No. 2) described Lot 3, now the plaintiff's land, as bounded westerly by a line "running northerly along the easterly side of a right of way, one hundred and fifty (150) feet to the northwest corner of the lot”. [Note 1] At first impression this would seem to present the threshold question as to whether such language conveyed to the Kingstons any part of the fee in the right of way or merely the right to use it in common with others entitled. Cf. G. L. c. 183 § 58 inserted by St. 1971 c. 684 § 1, as amended by St. 1973, c. 185 § 1. Casella v. Sneierson, 325 Mass. 85 , 89 (1949). It should be noted also that conversely the description in the two Solari deeds referred to above (Exhibits No. 5 and No. 6) clearly includes the land comprising Osborne Avenue within the premises thereby granted although it is not so denominated therein nor is the conveyance made subject to the rights of those entitled in the streets shown on Exhibit No. 1. However, since the deed out of Lot 3 was prior in time, its language would govern construction of the instruments so far as they may conflict.

In any event the proper construction of this language need not be decided, for the petitioner’s predecessors in title immediately upon the acquisition of title and the placement of the house on Lot 3 proceeded to use the entire fee in the way not as a street but as the driveway and side lawn of their home, all in apparent disregard of any rights of third parties therein. The petitioner therefore contends that title has been acquired by adverse possession to the area in dispute.

On all the evidence I find the following: Mr. Kingston consummated the purchase of Lot 3 in 1921. At that time the lot and the adjoining thirty foot strip were heavily wooded. Mr. and Mrs. Kingston cleared the land and had the house now located at 610 Central Street moved to the site. A lawn was put in, and at least as early as 1935 a driveway was added for their car. The driveway always has ended no further from Central street than the side entrance to the house and never extended to the northerly line. Four large trees marked the boundary line between Lot 2 and Osborne Avenue, but the owners of said lot have never claimed any rights in the way whether in fee or as an easement. At one time a path led from the side entrance of the Kingston house northerly into the woods on the defendants' property, and occasionally this was used by neighbors to reach a dump in the rear. Mr. Kingston, when his children were young, had chicken coops in the strip between the end of the driveway and the northerly line of Lot 3 extended. In 1951 a small white picket fence with a gate was placed in the Kingston backyard; it extended from Lot 3 across Osborne Avenue nearly to the easterly line of Lot 2. The fence remained in place until it was knocked down by the defendants in 1976. Over the years, however, it has been moved from time to time, being located at varying distances from the street. About 1959 Mrs. Kingston had the driveway blacktopped. Mrs. Ruth Gray, a tenant in the house, came to live at the premises in 1952; she always has had a car and has parked it to the west of the driveway to leave room for guests of the owner and to afford easy egress for her own car. She and Mrs. Kingston have shoveled the driveway in bad weather. The owners of Lot 3, and no one else, have continuously raked the grounds, cut the grass and otherwise exercised all prerogatives of ownership. Physically the so-called right of way on the ground appears only to be the side yard of the plaintiff's house with the usual suburban driveway. This condition has existed at least since 1951 as the photographs comprising Exhibits Nos. 7, 8A and B, 9 and 10 make apparent, but the testimony establishes that the plaintiff's predecessors commenced the use of the strip as their own property almost as soon as title to Lot 3 was taken.

The defendants contend that the plaintiff’s predecessors used the strip with their acquiescence, that such use was permissive only and not adverse, and that attempts were made to buy the Solari interest. The defendants also argue that the Kingstons’ belief that the town owned the right of way to which both Mrs. Kingston and her daughter testified obviates any contention that they claimed title as of right, one of the elements of adverse possession. They further claim that Mr. Solari had informed the Kingstons that their use of Osborne Avenue might continue so long as they owned Lot 3 but that such use must cease on a sale of the Kingston house. The defendants argue that with Mr. Solari's retirement he wishes to develop the remaining Solari land and the access from Osborne Avenue is crucial. Mr. Solari's attempts to bulldoze a way southerly through the land claimed by the plaintiff precipitated this litigation. Cf. Lyon v. Parkinson, 330 Mass. 374 , 380 (1953).

Title by adverse possession is acquired by actual, open, continuous possession of the premises for twenty years under a claim of right. Holmes v. Johnson, 324 Mass. 450 , 453 (1949). Collins v. Cabral, 348 Mass. 767 , 797 (1965). Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968). The plaintiff may establish a portion of her title of record and the rest by prescription. Robert v. O'Connell, 269 Mass. 532 (1930).

The use made of the premises by the plaintiff's predecessors was identical with, and such as is usually only made by, an owner. Shoer v. Daffe, 337 Mass. 420 (1958). The area was cleared, trees removed, a lawn planted and a driveway installed. In due course a fence was put in place across the rear of the strip parallel to the street. Many of these indicia of ownership occurred prior to Mr. Solari's 1949 purchase, and the Kingstons may well have acquired title by adverse possession before this time. It certainly must have been apparent to the defendants from an examination of the Kingstons' yard at the time of the Solari purchase that the use being made by the Kingstons was diametrically opposed to ownership of the fee, or even of an easement therein, by a third party.

The defendants claim, however, that the Kingstons’ use could not have been adverse, because they thought either that the town or the defendants owned the land. These views, if held by the Kingstons, seem to be inconsistent one with the other, but they have little bearing on whether the plaintiff has established an adverse use of the premises. The physical facts of entry and continued possession may evidence an intent to occupy and hold as of right sufficient in law to support the acquisition of title by adverse possession. As was pointed out in Flynn v. Korsack, 343 Mass. 19 (1961) at pages 18-19 "the uncommunicated mental attitude of the possessor is irrelevant where his acts import an adverse character to his holding”. Examples of such behavior are set forth in the latter decision. These cases constitute judicial recognition of the colloquial expression that “actions speak louder than words". There also is nothing in the fact that the plaintiff's predecessors attempted to perfect their title by gift from the defendant which requires a finding that this action constituted an abandonment or impairment of their title by adverse possession. Warren v. Bowdran, 156 Mass. 280 (1892).

On all the evidence I find and rule that the plaintiff has established title by adverse possession to so much of Osborne Avenue on Exhibit No. 1 as lies southerly of the northerly line of Lot 3 extended westerly free from any title or other rights of the defendants therein.

Judgment accordingly.


[Note 1] . It is assumed that the deed to William A. Pitts from the developers described Lot 3 in the same manner.