MISC 38315

July 6, 1979

Barnstable, ss.

Sullivan, J.


On March, 29, 1974 the petitioner, G. Douglas Hofe, Jr., and Skymeadow Airfield, Incorporated, filed a petition with this Court to confirm title to a large parcel of land situated in Orleans in the County of Barnstable and shown on the plan filed with said petition. Subsequently, motions to amend the petition by eliminating the corporation as a party and to sever and dismiss a portion of the land shown on the filed plan were filed and allowed by this Court. An amended plan dated July 27, 1976 entitled "Plan of Land in Orleans, Mass. as Surveyed and Prepared for G. Douglas Hofe, Jr.," by Schofield Brothers, Inc., Was filed on September 9, 1976 as Plan No. 38315A2. This plan shows the land remaining in the case after the severance (the "locus"); adjoining the southwesterly and southeasterly boundaries thereof is other property denoted by the surveyor as "claimed by G. Douglas Hofe, Jr." It is also claimed by the heirs of Julia Atwood and the decree plan will so indicate. The petitioner apparently sought by the severance to eliminate any objection to his title, but he was unsuccessful in this objective. There still are two contested matters involved in the present proceeding. One is as to the title to that portion of the locus shown on the A2 plan as lying between the edge of upland and the southeasterly boundary of the land claimed by the petitioner, being in part the center line of a tidal creek. The area in question is cross-hatched on a reduced copy of the A2 plan attached hereto as Appendix A. A copy thereof was introduced at the trial as petitioner's Exhibit No. 2. The other is as to the existence of rights to use the dirt roads shown on the A2 plan (the "Plan"). The Plan, in accordance with Land Court rule, shows that on the ground there are two 8-foot wide dirt roads leading to the locus from land of Robert B. and Marianne Wass. The most northerly of such roads terminates at a private way known as "Captain Linnell Road," but the other 8-foot wide road, characterized as "overgrown" by the surveyor, leads to the area in dispute.

Answers were filed on behalf of Wilhelmina Bearse, Administratrix, David G. Bearse, Madeline P. Armeson and Marion L. Kendrick in which such defendants claim to own a portion of the same land claimed by the petitioner, but made no specific claim of any right of way across the locus. The other defendants, Norma B. Santiago, Dorrance M. Bearse, Alvah T. Bearse and Gloria Julianna Jablonski, answered denying the title of the petitioner to the land shown on the filed plan and claimed to own a portion thereof. During the course of the proceeding, the attorney for the latter respondents withdrew from the case, and they proceeded thereafter to represent themselves.

A trial was held at the Land Court on January 4, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The petitioner based his case both on record title to the premises and to title by adverse possession. As to the area in question, the examiner reported that a predecessor in title, William F. Mayo, had acquired title to seven parcels of land from Asaph Mayo by deed dated January 26, 1852 and recorded with Barnstable Deeds in Book 54, Page 380 (Abstract, sheet 54). Of the seven parcels conveyed by said deed, the examiner placed three of these in the neighborhood of locus; of such three, parcels 5 and 6 allegedly comprise a portion of the land heretofore severed. The remaining parcel number 2 in the deed was described as follows in the 1852 conveyance: "A lot of land situated in said Orleans called the Sandy Bank field, containing about 11 acres and bounded on the North by land of Alfred Kendrick and Northeasterly by land of David Taylor and others, on the Southeast by the meadow and south- west by the meadow." The difficulty with the record title of this parcel is found in the deed out from William F. Mayo to T. Frank Ellis dated July 9, 1914 and recorded with said Deeds in Book 332, Page 272 (Abstract, sheet 55). The description in the 1914 deed, as abstracted by the Land Court examiner, read: "All my right, title, and interest in a certain piece of swamp and upland situated in the northwest part of said Orleans at a place called Sandy Bank. Containing about 3 Acres. For title see 2nd parcel of land sold to me by my father, Asoph (sic) Mayo in Book 54 Page 380, dated January 26, 1852. Recorded at Barnstable Registry of Deeds." The description thereafter in the chain of title followed that in the Mayo to Ellis deed of 1914. Title to a small part of locus derives from another chain, but it is apparent that much more than three acres stems from the Mayo conveyance. The petitioner has argued that it was intended in the 1914 grant to convey all of the second parcel in the 1852 deed. The argument is two-pronged. On the one hand, the inventory in the estate of William Mayo was introduced as an exhibit (Petitioner's Exhibit No. 8), and shows that the decedent died without owning real estate, the argument being therefore that it was his intention to convey all the second parcel to Mr. Ellis. The petitioner also relies upon cases such as Waller v. Barber, 110 Mass. 44 (1872) and Ide v. Bowden, 342 Mass. 22 (1961), which hold that under certain circumstances the wording of a title reference may be employed to interpret the grant and ascertain the intention of the parties if the description is ambiguous. I have no difficulty in applying this rule to the present case and in ruling that the petitioner has shown good title to the premises shown on the A2 plan other than to the area in dispute. But an argument based on the inclusion of the second parcel as described in 1852 in the deed to one of the petitioner's predecessors in title does little to solve the problem with which the Court is presented. The Mayo to Mayo deed bounds both south- easterly and southwesterly by "meadow." The term "meadow" as used in conveyancing apparently has not been defined as yet by the Supreme Judicial Court, but it is understood by conveyancers as meaning "low-lying grass land subject to natural flooding." On Cape Cod it is said that the favorite son was usually the devisee of the salt marsh which was grass land flooded with tides. The hay that grew was encrusted with salt and could be used to feed the livestock; it was a source for providing them with sufficient salt without purchasing the latter. It appears that upland and meadow were used to distinguish two different types of land with the latter being subject to inundation. In the present case, a description which bounds by the meadow would not include as part of the premises conveyed the land to the southeast of the "edge of upland" as shown on the A2 plan. I therefore find and rule that the petitioner has not sustained his burden in showing record title to the area in dispute. However, the petitioner claims to have acquired title to the disputed area by adverse possession.

At the trial the petitioner relied on the following acts of dominion to establish his claim to the disputed area. Title was taken to the parcel in question in 1956 by deed from Elijah C. Long dated June 4, 1956 and duly recorded in said Deeds, Book 958, Page 5 (Abstract, sheet 61). Thereafter real estate taxes were paid by the petitioner (Petitioner's Exhibits No. 10, 11, 12A, 12B, 12C and 12D). At approximately this time the petitioner filed with the Orleans assessors a plan by Schofield Brothers, Inc. dated July, 1956 which includes the area in dispute as a portion of the petitioner'S land (Petitioner's Exbibit No. 10). Advertisements for sale of 45 acres of upland, 40 acres of protective salt marsh, and an adjoining subdivision with 20 lots were placed in the Boston Herald on May 3rd and 10th, 1964 and the Wall Street Journal on May 1st of that year. A lilac bush was transplanted to the petitioner's home from the locus. A letter was written to Mr. Harold Moye, a prominent Cape Cod developer, by the petitioner in February of 1965 in which it was suggested by the petitioner that the addressee might be interested in the land in question; the letter specifically referred to "and extensive bordering salt marsh extending to Namskaket Creek;" negotiations also have been had with others relative to the sale of locus. The petitioner's Exhibit No. 17 is an elaborate presentation to the appropriate Orleans town officials of a proposed subdivision encompassing locus including the disputed area made on behalf of Michael A. Dunning and Brian M. Kelley, with whom petitioner had executed a purchase and sale agree- ment. The first set of the definitive plans of Skaket Highlands, the subdivision in question, is petitioner's Exhibit No. 16 in this proceeding and includes the disputed area. The petitioner also has been shown as an adjoining owner on plans of the property of abutters. This is so in the case of an April, 1964 plan by Arthur L. Sparrow Co. (Petitioner's Exhibit No. 6) and of July, 1973 plan of land of Arlene W. Rowe by Schofield Brothers (Petitioner's Exhibit No. 7). Tests have also been conducted on the locus, but not clearly on the disputed area for percolation and for the height of the land above the water table to be presented to the planning board.

It is apparent that whatever title the petitioner may have acquired by adverse possession did not fully ripen until after the filing of the present proceeding in this Court, for record title was taken in 1956, no evidence of adverse use by a predecessor in title to whose occupancy that of the petitioner might be tacked has been shown, and the petition was filed in 1974 although the case was not heard until this year. The case law is to the effect that the filing of the petition stops the running of prescriptive rights in favor of third parties, but there seems to be no reason why the time which elapses during the pendency of a registration or confirmation case cannot be considered in computing the necessary years for acquisition of title by adverse possession. Nonetheless, I find and hold that even though the time span has been shown, the petitioner has not borne the burden of establishing title by adverse possession to the disputed area. The doctrine of Dow v. Dow, 243 Mass. 587 (1923), does not help him. The rule in the Dow case is to the effect "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." Citations omitted. In the present case I have ruled that the grant did not include the meadow of which the disputed area forms a part and that there- fore Dow does not apply. The difficulty with the petitioner's case is that there has been no showing of any open and notorious activities which took place and which would have been likely to direct the attention of the respondents to an adverse use of the land they claimed. Historically, it has been difficult to obtain title by adverse possession in Massachusetts if the premises in question are "wild land." See Cowden v. Cutting, 339 Mass. 164 (1959). In every case it must be shown that the use of the premises has been open, continuous, exclusive and adverse under a claim of right for at least twenty years. Ryan v. Stavros, 348 Mass. 251 , 252 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949). It is well established that the degree of proof necessary to prove title by adverse possession runs with the character of the property, the purpose for which it is adapted and the uses to which it has been put. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); LaChance v. First National Bank & Trust Co., 301 Mass. 488 , 490 (1938).

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."

I have no difficulty with the concept that activities of an intellectual nature carried on off the property may constitute elements of a claim of adverse possession such as correspondence with town officials, submission of plan including the property to the planning board and payment of taxes. In addition and adequately to meet the requirements of adverse possession, there must also be physical contacts with the disputed area. There has been no proof of such physical activity on the ground in the present proceeding. The only such activity would seem to be for the limited tests of the nature of the soil to which the petitiouer testified. Accord- ingly, I find and rule that the petitioner has not borne the burden which is his of proving that he has acquired title by adverse possession to the disputed area.

The remaining contest concerns rights in the more southerly way shown on the A2 plan. Neither party offered any explanation as to the use made of the 8-foot way over the years. In Merry v. Priest, 276 Mass. 592 (1931), the Supreme Judicial Court inferred that the burden of proving the title sought to be registered was free from encumbrances rested on the petitioner but that the extent of the encumbrances was an affirmative fact to be proved by those who claimed its benefit. The respondents in the present case presented no evidence by which the Court could find that they had either a prescriptive or record right to use the 8-foot wide over- grown road. For all that appears on the present state of record the road may have been used randomly by members of the public without any claim of right. Reference in the title to other portions of the land formerly owned by the petitioner to a right of way to reach the cranberry bog do not suggest that any way or bog was located at the southeasterly corner. Since it does not appear that any third party has shown such right, title registered free from any rights in the roads or ways shown on the Plan. On all the evidence I find and rule that the petitioner has borne the burden of establishing title to the land shown on the A2 plan other than the disputed area and that a decree may be entered confirming as of 10:00 A.M. on May 25, 1978 the petitioner's title to said land subject to the filing with the Court of the additional material heretofore requested and to such matters as are revealed by the abstract and are not in issue, but free from any rights in the above mentioned ways.

Decree accordingly.

Exhibit 1

plan of land