A. D. MAKEPEACE COMPANY v. LAWRENCE I. WINOKUR, Executor under the will of ALVIN J. TERRY.

This case was brought in the Land Court by A. D. Makepeace Company, a Massachusetts corporation, (Makepeace) to register and confirm its title to a certain parcel of land in Plymouth and Carver, Barnstable County, Massachusetts (locus) pursuant to G. L. c. 185, § 1(a).

Answers were filed by the Attorney General for the Common- wealth of Massachusetts, New Bedford Gas & Edison Light Co., and Alvin J. Terry. On January 4, 1974, the appearance of the Attorney General was withdrawn; on January 30, 1974, a stipulation was made that the registration would be made subject to an easement from A. D. Makepeace Company to Plymouth County Electric Co. dated September 22, 1961, recorded at the Plymouth County Registry of Deeds, Book 2884, page 246, [Note 1] and New Bedford Gas & Edison Light Co. withdrew its appearance as well.

The remaining answer, filed by Alvin J. Terry, denies that Makepeace has good record title to all of the locus, and argues that record title to the southeasterly portion thereof is in Mr. Terry. In the alternative, Mr. Terry claims title to the locus by adverse possession. The Court has noted, in conjunction with Mr. Terry's claim of adverse possession, that he was unable to testify due to illness and his advanced age; a suggestion of death was filed on his behalf, and his executor, Lawrence I. Winokur, has been substituted as respondent.

Following a number of continuances, conferences, and motions, trial was held on May 22, 1974, May 20, 1975, and May 18, 1976. As noted above, Mr. Terry's illness was severe during trial, and even the one year delays between hearings were not sufficient to coincide with his periods of fair health and to permit him to testify [Note 1a] Each time a stenographer was duly sworn to record and transcribe the testimony. Two exhibits, the abstract and filed plan, were introduced into evidence and seven witnesses testified; all exhibits and records are incorporated herein for the purpose of any appeal.

Makepeace claims to have record title to the locus, as shown on the filed plan extending southerly to the brook. Respondent Terry claims a portion of that parcel located northerly of the brook by deeds in to him, or, in the alternative, by adverse possession.

An exhaustive abstract of title was filed in this case; it contains over 270 pages, and traces title to the locus back to 1690. The Court has studied this abstract and photocopies of certain additional instruments, referred to in the abstract and requested by the Court from Makepeace, in detail. Complete review of all of these instruments is too cumbersome to be undertaken here and is unnecessary to resolve the real matter in dispute: the location of the southerly boundary of the easterly portion of the locus (the northerly boundary of respondent Terry's land).

In 1690, the Town of Plymouth conveyed certain uplands to various parties. While no record could be found of a specific conveyance of the meadowland part of the locus, other conveyances which were recorded indicate that at that time, one Baruck Jordain [Note 2] owned the upland portion of the locus area. (Abstract, Sheets 3 and 4). Since the land claimed by Mr. Terry is meadowland, and the property originally held by Jordain which can be accurately located was upland, this information cannot wholly substantiate petitioners' claim of record title. There were, however, various early grants of meadowland to Jordain mentioned in Jordain's will (Abstract Sh. 8) and in a deed from Jordain's heirs to the subsequent owner of this land. (Abstract, Sh. 35). The description in these instruments are very vague, however, and the specific conveyances of the meadowland were not recorded so as to be included in the abstract.

At his death in 1699, Baruck Jordain retained only a portion of the land originally granted to him; shortly before his death he conveyed the westerly portion of the upland tract to Jeduthum Robbins by a deed recorded in Book 15, page 174. (Abstract, Sheet 5). As this half of the locus passed through several owners, it increased in size through the addition of various parcels of upland to its north. Also since its conveyance by Eleasor Crocker to Jonathan King in 1759, (Abstract, Sheet 16), the land has been described as including meadowland and extending "to the river called Swan Hole River [Note 3] and then bounded by said River upstream till it comes to the meadow of william Lucas..." (See Abstract, Shs. 16, 18, 29 and 30). The division line between the western and easterly portions can be ascertained by comparing the descriptions in the deed from Benjamin Ryder to Lemuel Cole dated February 15, 1802 and recorded in Book 92, page 147 (Abstract, Sheet 29) with the deed from Eleazer Robbins to Thomas and Benjamin Hammond, dated January 19, 1802 and recorded in Book 92, page 138. The Ryder deed describing the western portion begins "at Swan Hole River at the southerly corner of land of Thomas and Benjamin Hammond near the sawmill". The Robbins deed to the Hammonds begins "at Four Mile Brook about 5 rods downstream from the sawmill down which is a corner of Major Ryder's land". The first six calls in both deeds correspond, determining pretty well the dividing line between the parcels. The western portion, commencing west of the slow is not in issue here as respondent Terry's claim is only against the eastern portion.

Baruck Jordain died about 1699. The inventory filed in his estate listed no real estate but his will does. We know he had 100 acres of uplands and various meadowlands and that the only deed out during his lifetime was the westerly portion of the 100 acres. In his will he devised the easterly portion of the 100 acres to his son John Jordain. His wife Mary Jordain was left the remainder of his land either for life or for "disposing". The exact location of the remainder of his land including the meadow- lands cannot be ascertained but both the easterly upland and the meadowlands passed from John and Mary Jordain through Jedathan Robbins and Jedathan Robbins, Jr. to Eleazor Robbins [Note 4] who held them until his death in 1777. (Abstract, Sheet 46). At Robbins' death, one W. Teven, Judge of Probate, partitioned Robbins' estate among his nine heirs. (Abstract, Shs. 49-53). Nine separate contiguous strips of land were laid out and conveyed to the nine heirs, beginning with the widow's strip which can be located at the northeast side of the 50 acre lot. The nine strips then divided the land to the "land of Benjamin Ryder" on the west (Abstract, Shs. 48-54). The strips ran southeasterly from the road 160 poles, an archaic term for a rod, and hence a distance of 2640 feet. In addition meadowland was appositioned between the upland shares and Swan Hole River. Certainly the Commissioners appointed by the probate court to partition the land believed that the strips and the additional meadowland connected thereto went to the brook. The probate court must also have believed this as they confirmed the partition. The Court finds that these strips and the meadowland included the area from Swan Hole River northerly to Wenham Road.

This partition and the subsequent conveyances among the heirs are crucial to the case as petitioner Makepeace traces its title to the disputed portion of the locus from Eleazor Robbins the younger, and respondent Terry traces its title from Consider Robbins.

After the partition, several of the said heirs conveyed their strips north of the riVer to Eleazor Robbins, the younger (Abstract, Shs. 55, 56, 61, 62, 63) so that by 1791 he had acquired five shares. In 1802, he conveyed this property to Thomas Hammond and Benjamin Hammond by a deed dated January 19, 1802, recorded in Book 92, page 138, (Abstract, Sheet 66) describing it as bounded "by the river". Consider Robbins acquired the share of two heirs, Silvanus Robbins and Seth Robbins, which together with his share south of the river (Abstract, Shs. 57, 58) he conveyed to the same Benjamin Hammond by a deed dated December 19, 1808, recorded in Book 111, page 185 (Sh. 69). The parcels north of the river as may be seen from the description in Consider Robbins' deed were described as follows:

"Certain parcels or lots lying in Carver adjoining Swan Hole or four mile brook, sometimes called.

Beginning at the southerly corner of Abijah Lucas lot on northwesterly side of said brook or river aforementioned;

Northwesterly in line of Abijah Lucas 'till it comes to said Lucas westerly corner,

South 49° West to the line of said Hammond land,

Thence in Hammond range to the river or brook, upstream by the brook to the beginning.

10 acres, more or less."

The remaining share, that of Jemina Robbins, containing the strip or at least the meadowland to the southeast thereof (it is not entirely clear) was conveyed to Benjamin Hammond by a deed dated April 1, 1916 and recorded in Book 128, page 278 (Abstract, Sheet 71). Jemina's share was likewise included in the description of the deed from Eleazor the younger to Hammond. (Abstract, Sheet 66). Thus it would appear that one way or another her share went to Hammond.

Therefore, by 1816 Benjamin Hammond had acquired all of Eleazor's land by deeds that described the land as extending all the way to the water and was the sole owner of the entire area of the locus here in dispute.

Petitioner's title comes down from Benjamin Hammond through his heirs to his son, also Benjamin Hammond, (Abstract, Shs. 79-80), who held it until 1879 when he conveyed it to Walter Hammond describing it as going to the water (Abstract, Sheet 84). By mesne conveyances it then came down to petitioner in 1937. (Abstract, Sheet 102).

Respondent Terry, however, claims record title to that portion of the easterly half of the locus between Barnes Mill Pond on the south and the upland on the north as shown on plan 36063A-3, based on a deed from Consider Robbins the younger to Alfred Cole, dated November 21, 1838, recorded in Book 197, page 134 (Sh. 219). This deed conveyed:

"A certain lot of cleared and improved land laying in Carver & Plymouth;

Containing by estimation 35 acres be the same more or less, bounded as follows:

Beginning at a stake near the raceway of Capt. Joshua Cole's mill in the line of Benjamin Hammond;

Thence Southerly by said Hammonds land to a maple tree near the slow;

Thence nearly an east course to a stake standing by the shore which is the corner of said Cole's and Watson's lots;

Thence Northwesterly by said Coles lot to Jordin lot;

Thence Southwesterly to the bound first mentioned."

As the above quoted description shows, the parcel conveyed begins near the raceway of the mill lot, and then runs southerly to a maple tree near the slow (slough). This line takes the parcel easterly all the way to land now registered in Land Court Case No. 11879, once Cole's lot. Thence the course runs "Northwesterly by said Cole's lot to Jordin lot; thence Southwesterly to the bound first mentioned." Respondent Terry contends that Jordain's lot must, without the aid of more specific information, be construed to be the easterly half of the upland conveyed by the Town of Plymouth to Baruck Jordain. If this is so, then one of two courses must be presumed for this northerly line. The first would have this line run along the upland as shown on the R. A. Bent Plan, Sheet 243 of the Abstract. This would mean that the northeast corner of the parcel would be some 200 feet north of the raceway. Or the second construction of this line would have it run in a southwesterly course cutting off a large portion of the area claimed by Terry to get to the raceway.

Terry, and after his death his estate, claims title by mesne conveyances from this Consider Robbins the younger deed. The Court however, cannot agree with this contention for as can be seen from page 7 and 8 hereof by 1816 Benjamin Hammond had a "solid front" of property bounding on the river to the south. This title was concentrated in Hammond for over 20 years before the deed in to the respondent Terry's predecessor in title from Consider Robbins (Abstract, Sheet 219). To find otherwise would mean disregarding the probate court division made some 60 years before in 1777. This Consider Robbins deed could not have included land north of the river and the Court so finds.

Therefore, since the source of Terry's claim did not include this area, Terry cannot make out good record title to it either. The Court finds and rules that title is in petitioner to yhe locus shown on his file plan.

Respondent Terry also claims title by adverse possession to a parcel shown on a plan of land entitled "Plan of Land in Carver Belonging to Alvin J. Terry, Scale 1" = 100', October 8, 1963. R.H. Bent Surveyor Plymouth" found on Sheet 243 of the Abstract. Two pacels are shown on this plan, the westernmost being shown as "Area = .6 Acres +" and the second to the east of a ditch shown as "Area = 3 Acres + E'ly of Road."

Terry obtained a deed from Mary J. Boutemain dated August 31, 1955, recorded in Book 2454, page 136, for a parcel of land described as being all her "right title and interest" to the mill site and to land westerly of Old Place Road, shown on the plan as "Area = .6 Acres +". Certainly from this date in 1955 on Terry claimed ownership of this parcel to the west of the road until he conveyed the same to Lawrence J. Litchfield et ux by deed dated July 3, 1964, recorded in Book 3124, page 7. With this deed out by Terry, any claim he had to this .6 acre parcel west of Old Place Road would vanish.

This leaves only the area to the east of Old Place Road to which Terry has a possible claim by adverse possession. On March 24, 1962 Alvin J. Terry was the grantee of a deed from Barbara T. Hogan, Ernest J. Terry, Arthur J. Terry, Lawrence A. Terry, and Lena M. Lunt, being unmarried and Willard F. Terry being married, recorded in Book 2936, page 140. This deed recites the parcel described as being "all remaining land of our mother, the late Mary J. Boutemain." Mary J. Boutemain left a will dated March 11, 1954 in the first paragraph of which she left one half of her estate to her daughter Barbara T. Hogan and in the second paragraph of which she left the remaining half to her other six children. These six children were those recited in the deed as grantors above (aside from Barbara T. Hogan) and the respondent grantee Alvin J. Terry. The petition for probate in the estate of Mary J. Boutemain does not list Alvin J. Terry as an heir. Evidently this was an error but it would appear to be of no significance here as we have found that the record title of petitioner is paramount to the record title of Terry, the latter's title coming as it does from Consider Robbins whose land was south of the river. The deed does set a time, March 24, 1962, from which we know respondent Terry claimed title, adverse or otherwise. The parcel conveyed was the land to the east of Old Place Road as shown on the plan, Sheet 243 of the Abstract. This parcel is the one now claimed by Terry both by deed and adverse possession.

To establish such title by adverse possession respondent must show that he has had open, notorious, actual, exclusive, adverse possession for a period of twenty years or more. Ryan v. Stavros, 348 Mass. 251 (1964).

Respondent Terry had a trailer in which he lived until his death, located easterly of Old Place Road on the shore of a pond, called variously Fresh Meadow Pond, Pinewood Lake and Bartlett Mill Pond among other names.

To support his claim witnesses Joseph L. Bresncher, Walter E. McClellen and Janice Richards, were called. The last witness lives in the respondent's trailer, having moved to it in April of 1975 to care for respondent Terry in his last illness. From these witnesses came confusing evidence as to Terry's use and to the area used by him. Petitioners produced two witnesses who likewise testified as to Terry's use, namely Russell Makepeace and William Snow.

From all the evidence the Court concludes that respondent Terry had been living in the area of locus on and off from 1947, mostly in the summer. At some point in time Terry lived in a small trailer and tent on Old Place Road to the south of locus on land not shown on the file plan. Later still, he lived in a camp (since moved), near the road south of the mill site and locus.

There was some evidence Terry had at one point had a trailer north of the mill site on the west side of Old Place Road and that this area had been fenced in so that he could keep several horses there.

The Court believes that if there was a trailer placed on the west side of Old Place Road it came after respondent Terry got a deed to the .6 Acre parcel from Mary Boutemain (see page 10 hereof) in 1955. There was evidence of a fenced corral to keep in horses on the parcel to the west of the road and that a vegetable garden was planted there, but the exact location of them was very vague.

Mr. Makepeace testified that Terry lived in a small trailer to the south of the mill site and that it was not until 1963 that he placed a trailer on its present location north of the mill site and east of Old Place Road by the pond. The Court believes that the trailer was moved, either from the west side of Old Place Road or from south of the mill site after Terry got the deed of land to the east of Old Place Road from the heirs of Mary T. Boutemain on March 24, 1962 (see Sheet 241, Abstract). There was evidence also that there was a barbed wire fence on the east side of the road by the present trailer; that horses were likewise kept there by Mr. Terry for some years; that he grew vegetables and perhaps flowers in the general area. In 1964, Mr. Terry apparently filled the ditch dividing the parcels near Old Place Road when he moved his trailer to its present location to the east of the road (Transcript 1:31; 2:7; 3:6-10, 84, 87).

It was this occurrence that alerted Mr. Makepeace, who was notified of it by one of his foremen, Mr. Pierce. (Transcript 2:9). The latter also told Mr. Terry to remove his trailer from the Makepeace land. (Transcript 3:12). Shortly thereafter, Makepeace began proceedings to eject Mr. Terry from the property on the northeast side of the road. (Transcript 2:11-13). It was then that Mr. Makepeace knew that Mr. Terry was openly claiming that he owned this land. (Transcript 3:80, 96).

It seems clear and the Court finds that Terry laid claim to this parcel east of Old Place Road as shown as "Area = 3 Acres E'ly of Road" on the plan, Sheet 243, Abstract from 1962 on. His claim became open and notorious when he moved the trailer to it in 1964. Even if we were to consider that his claim of adverse use could be allowed from the earliest date, 1962, only 16 years have elapsed to the present and not the 20 years needed to acquire title by adverse possession. Actually, his claim to adverse possession may well have been cut off so far as accruing time is concerned by the filing of the Land Court Petition by Petitioner Makepeace on April 1, 1969. Baumgartner v. Doherty, 286 Mass. 583 (1934).

The Court finds that the respondent has not made adverse use of the parcel claimed for the requisite 20 year period and therefore his claim to title by adverse possession must fail.

The petitioner is entitled to a decree of registration in conformity with the findings of this decision, subject only to such other matters not in issue herein as are disclosed by the abstract of title.

Decree accordingly.