CONF 37782

February 16, 1978

Barnstable, ss.

Sullivan, J.


On February 27, 1973 the petitioners, Joseph B. Hanlon and Clare S. Hanlon, husband and wife, of Quincy in the County of Norfolk filed a petition to confirm their title to a parcel of vacant land, containing about 71.78 acres, situated on Snow Road in Brewster in the County of Barnstable. Objections to the petition were filed and subsequently withdrawn by Valeer Laga, an abutter, and The Commonwealth of Massachusetts. Janice L. Amato, Marcia L. Cahoon, Annie A. Crowell, Charles S. F. Ryder and Catherine Rosenfield all answered, each claiming to be the owner of an undivided interest in the premises. The petitioners have entered into stipulations with these respondents, who, as a result, have withdrawn their appearances and objections on condition that a decree of confirmation is entered in the names of the petitioners (and sums paid to the respondents). Alice P. Baker filed an appearance and answer pro se but failed to appear at the trial and was defaulted in open court. The other respondent who pressed his case at the trial held at the Land Court on September 20, 21, 27 and 28, 1977 was Fred N. Phillips, who claimed an interest in the premises, not in his own right, but as the buyer named in a purchase and sale agreement.

At the trial a stenographer was sworn to record the testimony. All exhibits introduced into evidence are incorporated herein by reference for the purpose of any appeal.

The Land Court Examiner's report was adverse. To facilitate his examination he divided the locus into seven separate parcels; he concluded that the petitioners had good record title to only one of such parcels and that they held fractional interests of record in the remainder of the locus, with one exception. [Note 1] The petitioners have not attempted to attack the conclusions of the Examiner, but rather have rested their case on adverse possession. The respondent, Fred N. Phillips, entered into a purchase and sale agreement dated August 30, 1974 (Exhibit No. 22) with Winifred M. Hicks, a lady of advanced age, covering all real estate owned by the seller in Barnstable County to which she has "a good, clear and marketable title...." Under the agreement the buyer had one year from the date of its execution to complete his purchase, which date of performance was extended for six months by a written extension executed July 23, 1975 (Exhibit No. 23). It was alleged at the trial that Mrs. Hicks, through her attorney, had further extended the time for performance until the conclusion of these confirmation proceedings. However, no written evidence of any such extension was introduced.

At the conclusion of the evidence the petitioners moved to strike the appearance, objections and answer of the respondent Phillips on the ground that he lacked standing, since the purchase and sale agreement was unenforceable. They also moved to strike Exhibits Nos. 14 through 21 for lack of a proper foundation, and for the respondent's failure to establish any connection between such documents and the locus. Both motions were denied.

Winifred M. Hicks, as seller, unquestionably would have had standing to answer in this proceeding, and doubtless any buyer of her interest would have been permitted to answer in her name. Historically a buyer has been considered the equitable owner of the seller's interest and, therefore, would seem entitled to prosecute, in his own name, a confirmation proceeding covering the land under agreement, if said agreement remained in full force and effect. The petitioners did not argue otherwise but rather argued that the agreement either had expired or had not been seasonably extended before its expiration date. The latter point, however, is one which may be raised by a party to the agreement, but not collaterally. Although little credible evidence was introduced to establish that the agreement had, in fact, been extended orally, the evidence presented was uncontradicted and, as a result, sufficient to persuade the Court to overrule the motion. In my discretion I also overruled the motion to strike.

The respondent Phillips claims that his seller has good record title to the major portion of Parcel F and substantially all of Parcel A on the Examiner's Chalk (Abstract, Exhibit No. 2). His contention is that Enos Rogers acquired title to a thirty-five acre parcel from Thomas Small by deed dated January 26, 1810 and duly recorded in Harwich Book 3, Page 29 (Exhibit No. 13), that the grantee in said deed never conveyed out such parcel and that, consequently, the land passed by inheritance to Winifred May Hicks (Exhibits Nos. 14 to 20).

The Land Court Examiner assumed good title in Enos Rogers without locating any conveyance into him and took as his starting point a deed from Enos Rogers to Enos Rogers, Jr., dated April 8, 1846 and duly recorded in Book 48, Page 198 (Abstract, sh. 2; Exhibit No. 16) which conveys all the grantor's real estate in Harwich, Chatham, Brewster and Orleans [Note 2] "consisting of woodland, cleared land and buildings, meadow and cedar swamps excepting one half of a woodlot situated in Brewster at a place called Kings Neck." This is not locus. The deed then recites "Also one half of the pasture field situated in said Brewster at a place called the 'weiging hole'." It is difficult to determine whether the draftsman intended the latter phrase to be part of the exception or included in the grant. For our purposes it need not matter, for each party traces title back to Enos Rogers, Jr., and it can be assumed in view of the lapse of time that, either by grant or inheritance, he acquired title from his father to the thirty-five acre piece unearthed by the respondent. [Note 3] The petitioners contend that Enos Rogers, Jr. conveyed Parcel A on the Chalk (whether the title source be the Small deed or otherwise) to Francis Baker by deed dated January 30, 1866 and recorded in Book 90, Page 500 (Abstract, sh. 3) wherein the second parcel is described as follows:

"Also one-half of a lot of land situated in said Brewster lying in common and undivided with the heirs of Josiah Rogers late of Harwich deceased, the whole lot is bounded as follows viz:

On the West and North by land of Tully Crosby and Thaddeus Ellis;

On the East by Charles Small, Simeion Small and Ezekiel Cahoon

On the South by Lincoln and Josiah Foster.

Containing about 16 acres more or less."

Again it is unclear whether Rogers intended to convey an eight acre portion of the sixteen acre tract or as would be more usual, and I so decide, an undivided one-half interest in the entire parce1. [Note 4] The respondent disputes the petitioners' location of the parcel conveyed to Baker and claims it is either north of the thirty-five acre parcel as shown on Exhibit No. 12 or in another area altogether. His position is that Enos Rogers, Jr. neither conveyed out this parcel nor any part of it and that title, therefore, has devolved to Mrs. Hicks.

The title to Examiner's Parcel B was acquired by one Tully Crosby from Moses Hopkins by deed dated May 21, 1863 and recorded in Book 82, Page 262 (Abstract, sh. 29) conveying a forty-five acre parcel. This deed, which runs easterly, northerly and easterly by Enos Rogers' land, ties in with the above deed given shortly thereafter by Enos Rogers, Jr. to Baker, the description of which bounds on the west and north by land of Tully Crosby and Thaddeus Ellis. The location of these two parcels as shown on the Chalk seems correct. Exhibit No. 13, on which the respondent relies, bounds westerly and northerly by land of Isaac Foster whereas the description quoted above bounds southerly by land of Lincoln and Josiah Foster. This is some indication that Foster land intervened. While helpful in placing parcels in a chain of title, too much emphasis can be placed on calls by abutters in deeds. It does appear to the Court that the Small parcel lies southerly and easterly of the present locus with its easterly tip (bearing in configuration some resemblance to Cape Cod) intersecting the Widgeon Hole [Note 5] at a point similarly southerly and easterly of the point shown on Exhibit No. 12. This would be consistent with the general placement of parcels in the vicinity as evidenced by Land Court Registration Case Nos. 29334 and 35595. Without complete abstracts of title for the abutting properties (and perhaps even then) the precise location of the Small parcel cannot be determined definitively; and it need not be in the present posture of the case. On all the evidence I find and rule that Enos Rogers, Jr. did indeed convey that portion of locus owned by him; that this was Parcel A on the Examiner's Chalk; that Parcels A, B and G are located as shown thereon; and that the respondent has not shown that he has any interest, whether it be legal or equitable, in the premises.

Moreover, the main thrust of the petitioners' case has been to establish title by adverse possession. The modern chain of title commences with a deed from Minnie B. Noyes, formerly Minnie H. Baker, to her nephew, Clifton P. MacLean, and his wife, Patricia, dated December 1, 1954 and recorded in Book 895, Page 430 and a confirmatory deed from Mrs. Noyes to Mr. and Mrs. MacLean dated June 25, 1955 and recorded in Book 912, Page 291. The MacLeans then conveyed to John J. Moriarty and Frederic W. Sheehan by deed dated June 14, 1955 and recorded in Book 912, Page 293. Messrs. Moriarty and Sheehan, in turn, conveyed to the petitioners by deed dated June 25, 1963 and recorded in Book 1207, Page 291. Thus, the petitioners' claim to the locus by adverse possession is under color of title.

On all the evidence I find as follows: as early as 1926 the locus was shown as land of Minnie B. Noyes on a plan of adjoining property (Exhibit No. 7); that shortly thereafter Mrs. Noyes conveyed a piece of said land to the abutter, The Brewster Country Club, Inc. by deed dated April 3, 1930 and recorded in Book 474, Page 419; that a 1948 plan of land adjoining the locus on the south also showed Mrs. Noyes as owner of the locus (Exhibit No. 8); that Mr. MacLean's aunt, Mrs. Noyes, made a gift of the property to him; that she pointed out the boundaries to him and that he thereafter had Nickerson & Berger, Inc., a surveying firm, stake it; that a plan was prepared by said firm on which the description in the deed from the MacLeans to Messrs. Moriarty and Sheehan was based, but that no copy of the plan is extant (but see Exhibits Nos. 9 and 10); that prior to the latter purchase Mr. MacLean and the buyers went to Brewster; that the weather kept Mr. Sheehan inside, but Messrs. MacLean and Moriarty walked the boundaries; that the locus is substantially enclosed by stone walls, and that bounds were set by the surveying firm more than twenty years ago; that after their purchase Messrs. Moriarty and Sheehan planned to develop the land and sell individual lots; that three plans were prepared by Nickerson & Berger, Inc. for them of which the central portion, recorded in Plan Book 150, Page 115, showed a subdivision of 26 lots with several paper streets laid out thereon (Abstract, sh. 74); that this plan was approved by the Brewster Planning Board on August 31, 1956; that the plans of the northerly and southerly portions of the locus were endorsed "Approval Not Required" by the Planning Board in 1963 and recorded in 1964; that Messrs. Moriarty and Sheehan investigated the installation of a sewage disposal system and discussed with a representative of Grossman's technical aspects of development; that they obtained geodetic maps; that they had brochures printed for advertising purposes which were distributed to acquaintances but not to the general public (Exhibit No. 4); that they held themselves out as the owners of the land to abutters, to a town selectman and to a realtor; that they paid the real estate taxes; that they contracted with the firm of Turner and Breivogel to permit the latter to remove rock from the property for construction purposes for which they were paid as the owners of the land; that the construction firm bulldozed several rough roads on the locus in order to gain access to it; that such firm maintained cranes and equipment on the property and remained there for approximately a year; that the petitioners purchased the property with the intention of developing it and selling it piecemeal; that the commencement of a new career, by Mr. Hanlon in lieu of retirement, militated against this design; that the petitioners then elected to sell the entire locus and advertised it both locally in the Boston Globe, the Boston Herald, the New Bedford Times, and nationally in the Wall Street Journal (see Exhibits Nos. 5 and 6); that several interested parties who responded to the advertisements were shown the property by the petitioners; that at least two purchase and sale agreements were executed, but never consummated; that the petitioners also negotiated with Cape Lands, Inc., an abutter, in connection with a possible sale of the premises; that the petitioners permitted a representative of one of the proposed buyers to conduct percolation tests on the land; that an application had been filed and was still pending at the time of the trial with the Brewster Planning Board for a Planned Unit Development on the premises; that the town took from the petitioners an easement for a town way called Snow Road and a parcel of land containing 10,600 square feet of land and awarded damages to them (Abstract, sh. 70); that the petitioners have paid a substantial amount in real estate taxes to the Town of Brewster; that, while they had never lived on the property, they visited it throughout the years; that they have maintained the rough roads bulldozed through by Turner and Breivogel so that they are passable, and have kept the boundaries clear; that they have posted no trespassing signs with their telephone number and address; that the petitioners installed a forty foot-chain pipe gate at the access point of Snow Road; and that the petitioners' children built a small shack on the locus.

The law is well settled that to establish title by adverse possession the disseisor must prove that he has had open, exclusive, notorious and continuous possession of the premises adverse to all the world under a claim of right for at least twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949).

However, the proof varies with the nature of the premises in question. As the Supreme Judicial Court succinctly stated in LaChance v. First National Bank & Trust Co., 301 Mass. 488 , 490 (1938):

"[t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put."

A classic example of the application of the rule enunciated by the court in LaChance is found in Kershaw v. Zecchini, 342 Mass. 318 (1961), where the court held that activities such as paying taxes, clearing the land of brush and trees and practicing stunts and exercises on the property were sufficient to establish adverse possession even though the petitioners had never lived on the property. Kershaw is controlling here, for the activities carried on by the petitioners and their predecessors are very similar. While the athletic activities of Kershaw are lacking, the petitioners and their predecessors have applied to the town authorities for permission to develop the locus. With the legal publications which such application entails, the claim of ownership is apt to be more widely known than if the petitioners had carried on additional activities on the ground. In Foot v. Bauman, 333 Mass. 214 (1955), where the court clarified the tests as to whether use of the property was "open and notorious", it was said:

"To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious."

On all the evidence I find and rule that the petitioners have sustained their burden of establishing all the elements which constitute adverse possession. It is difficult to envision what more the petitioners might have done, save actual construction on the premises, to make open and notorious use of the locus. The occasional random use of the property by members of the general public, such as horseback riding, was not such as to defeat the exclusivity of possession. As to the length of occupation the petitioners may tack the occupation of their predecessors in order to establish the twenty year period, Wishart v. McKnight, 178 Mass. 356 (1901), Sawyer v. Kendall, 10 Cush. 241 (1852), and as the premises have been described as one parcel at least since 1955, the doctrine of Dow v. Dow, 243 Mass. 587 (1923), relieves the petitioners, who claim under color of title, from proving actual occupation of every inch of the locus.

A decree may be entered confirming the petitioners' title to the premises shown on the filed plan (other than to that portion thereof referred to in footnote 1 subject to such matters as may be shown by the abstract and not in issue here. A supplementary report of the Examiner as to the Railroad parcel should be furnished to the Court unless the petitioners elect to sever and dismiss as to it.

Decree accordingly.


[Note 1] The Examiner found title to a triangular parcel of land at the northerly end of the locus to be in the trustees of the Penn Central Transportation Company. Evidence introduced at the trial makes this conclusion suspect, and the Examiner is to review his conclusions in the light of such evidence.

[Note 2] The deed reserves to the grantor "all the improvement of the above named property during (his) natural life." This reservation is immaterial now.

[Note 3] While no record of probate proceedings for Enos Rogers was introduced, the respondent did introduce, as Exhibit No. 14, a certified copy of his will wherein, after a specific devise of one-half of his cattle pasture field lying eastward of his sheep pasture in Brewster to two grandchildren and of a Brewster, woodlot, to his four daughters, the decedent conveyed his remaining real estate in Harwich, Orleans, Brewster and Chatham to Enos Rogers, Jr.

[Note 4] The devolution of the other undivided one-half interest held by the heirs of Josiah Rogers has been lost in the mists of time and may now be disregarded. It is not alluded to in the detailed report by the Land Court Examiner.

[Note 5] Testimony at the trial and Exhibit No. 12 refer to the Widgeon Hole which I assume may be the "weiging hole" mentioned above. It also is spelled as "widging" in Exhibit No. 13.