MISC 90050

July 11, 1979

Suffolk, ss.

Randall, C. J.


Plaintiffs have filed this action pursuant to G. L. c. 185, §1(k) to establish title to certain real property on which is a small dam and a watergate located between School Street and Forge Pond in the Town of Granby. They further claim that they own "all riparian rights" and the fee interest in two small streams that flow through said land. They do not assert title to the abutting premises, but do claim an easement permitting them to enter the land for the purposes of maintaining, repairing, and replacing the structures to which they claim title. Title is claimed by grant and in the alternative by right of adverse possession.

Defendant's answer essentially denies the validity of all claims plaintiffs have made to the property in Granby, whether based on grants by deed or on adverse possession.

A trial was held in this Court on March 15, 1979. Plaintiff Samuel Salem and Attorney Timothy J. Howes testified for plaintiffs, and Frank M. Falk and Attorney Lewis Whitney testified for defendant. Also submitted into evidence were ten exhibits, which are hereby incorporated into the record for purposes of any appeal.

The Court finds the facts to be as follows:

The parcel of land (locus) owned by defendant, Town of Granby, on which the disputed dam and streams are located is approximately 1.2 acres in size. It is bounded to the south by a parcel of land owned by defendant's grantors, Frank M. Falk and Mary R. Falk, husband and wife. Until it was conveyed by the Falks to the defendant in 1977, the locus was part of an 8.1 acre tract identified on a 1954 plan (exhibit 1) as parcel 2. Located to the north of the locus and adjacent thereto is a .4 acre parcel owned by Thomas R. Cooke and Regina F. Cooke, husband and wife, and noted on the same plan as parcel 1. The locus is bounded on the west by School Street and on the east by Forge Pond. The dimensions of Forge Pond were not given, but the evidence indicates that it is not a great pond within the meaning of G. L. c. 91, §35.

Two streams, neither of which are navigable, flow from Forge Pond across the locus. One is located along the northern edge of the locus and serves as the boundary line between it and the Cooke's land. This stream is identified on the plan by its common name, Bachelor Brook. At the mouth of the brook is a dam consisting of a concrete crest overlaid by a wood crest. Plaintiffs claim ownership to this dam. The other stream, also flowing westerly from Forge Pond, is located approximately 200 feet to the south. A stone spillway is set at the mouth of this stream, and a sluice gate stands approximately 40 feet back. Plaintiffs assert that they own these structures also. The latter stream converges with Bachelor Brook at a point just westerly of School Street. Plaintiffs not only claim riparian rights to the water flowing through these streams, but also a fee interest in the stream beds as they run through defendant's land.

Plaintiffs' own land is situated an unspecified distance to the southwest of the locus in an area of South Hadley known as Pearl City. A paper mill located on the property at the time plaintiffs purchased it in 1964 has since been destroyed by fire. Bachelor Brook flows from Forge Pond some two miles before reaching plaintiffs' land. Both plaintiffs and their predecessors in title, American Tissue Mills, (hereafter ATM) used water from the brook to treat paper being produced by the mill. While the mill was operational, plaintiffs used to open and close the sluice gates, usually during the dry months of the summer, for the purpose of providing a steady flow of water for their mill. On one occasion, acting on the orders of an unnamed state agency, plaintiffs opened the sluice gate to allow water to flow out from the overflowing pond. Plaintiffs also effected minor repairs to the sluice gate, but have never touched the dam. Falk occasionally repaired the spillway but never the dam or sluice gate, and he testified that he did not believe he owned either structure. Plaintiffs also paid real estate taxes on property noted on a tax receipt (exhibit 7) as a "superstructure", but it is unclear whether that term refers to the dam, sluice gate, or both. This receipt also shows that taxes were paid on at least a portion of the locus.

Both sides have submitted evidence pertaining to their respective chains of title, upon which the Court bases the following findings. Parcels one and two, Forge Pond, the locus, and other property in Hampshire County was on February 8, 1870 under the sale ownership of one Sibbel Clark of Granby. On this date she conveyed to George Carver and Samuel Smith the tract of land that includes what is now parcels one and two, and the locus by a deed recorded in Hampshire Deeds, Book 270, Page 201. (Exhibit 6) In the deed the critical easterly boundary of the land along Forge Pond is described as follows:

"thence southeasterly bordering on the pond to the southeast corner at the fence of the Mill House lot."

By mesne conveyances the Clark parcel described in the 1870 deed (Exhibit 6) and other property of Clark, perhaps the Pearl City Property of plaintiffs, although this is not clear, were held in single ownership by American Tissue Mills, Co., Inc. (hereafter ATM) by 1954. On May 28 of that year ATM conveyed the locus to the Falks in a deed dated May 28, 1954 recorded in Book 1168, Page 406. (exhibit 3). It conveyed parcel 1 to the Cookes in another transaction at an unspecified date.

The Court cannot agree with the plaintiffs' contention that the deed from Sibbel Clark to Carver and Smith conveyed merely a right to use the dam and the water from Bachelor Brook, and excepted the fee interest in both properties, and that consequently in 1954 ATM had no fee interest in the dam and in the stream beds.

Ordinarily, the conveyance of land carries with it all permanent buildings and structures thereon, whether specifically mentioned in the deed or not. Weiner v. Boston and Maine Corp., 361 Mass. 427 (1972); Meriam v. Brown, 128 Mass. 391 (1880). The dam was clearly within the boundary line running "southeasterly bordering on the pond", since the dam merely continued the shoreline submerged by the mouth of Bachelor Brook. Furthermore, the easterly face of the dam lay on the western edge of Forge Pond, and thus must have been within the bounds of the property conveyed. The streams, being non-navigable, were conveyed to the extent that they lay within the general description of the property. See Casner, American Law of Property, §12.27 (1952); Flynn v. City of Boston, 153 Mass. 372 (1891); Knight v. Wilder, 56 Mass. 199 (1848).

The Court thus finds that ATM in 1954 had the fee interest in the locus, which fee interest included the dam, sluice gate, spillway and stream beds. In addition, ATM had in 1954 all other rights in this property, including riparian rights.

ATM's 1954 deed to the Falks, (Exhibit 3) and apparently to the Cookes, contained this provision:

"Reserving, however, and not hereby granting all riparian rights, privileges and easements now owned or used by the grantor herein, including the right to have the water in the streams in the granted premises flow to other property of the grantor herein, its successors and assigns, and the right to use the water in quantities and in the manner as has been hereto enjoyed; also expressly reserving the right to enter the premises herein conveyed at reasonable times for the purpose of maintaining, repairing and replacing the dams as they are presently located on Forge Pond."

It seems to the Court that what the Falks did not get by the first part of the clause quoted above was exactly what it says - "no riparian rights, privileges and easements." These were specifically not granted but remained at ATM. The remainder of the clause to the semi-colon is simply a restatement of his rights as a riparian owner for the Pearl City parcel, located downstream. Amory v. Commonwealth, 321 Mass. 240 (1947); Stratten v. Mount Herman Boys' School, 216 Mass. 87 (1913). There is no language in the deed which could act to except the stream beds themselves from the conveyance and they were thus included therein. Cf. American Law of Property §12.27 (1952), The second part of the clause reinforces the first part in that it expressly retains the right of ATM to enter into the described premises to maintain, repair, and replace the dam to make sure that the rights retained by ATM could be enjoyed. It makes little difference whether this is called a reservation or an exception. The riparian rights and the means of maintaining these riparian rights were retained by ATM and the Court so finds.

American Mills, Inc., formerly ATM conveyed to Ansco Realty Co., Inc. (Exhibit 4) on January 29, 1957 and Ansco Realty Co., Inc. in turn conveyed to the plaintiffs (Exhibit 5) all its land in the towns of South Hadley and Granby on August 11, 1964, including therein the following clause:

"Together with the benefit of the easements set forth in the deeds from American Tissue Mills to Thomas R. Cook and Regina F. Cooke and to Frank M. Falk and Mary R. Falkrecorded in the Hampshire County Registry of Deeds."

To the Court it appears that the easement referred to above is that wherein the right to enter the premises to maintain, repair and replace the dam was retained by ATM in its deed to Falk. This easement is specifically granted to the plaintiffs. Similarly, the Cooke easement is presumedly the same although the Court does not have it in evidence before it. Thus, the Court finds that the plaintiffs succeed to the rights of ATM to the riparian rights in the two brooks flowing from Forge Pond, joined as they are just west of locus, and have an easement over locus to maintain, repair and replace the dam and spillway to maintain their riparian rights.

Plaintiffs' claims to the dam and sluice gate based on adverse possession must also fail. Their use and repair of the sluice gate was minimal and sporadic. such use as was made of the sluice gate and land was consistent with plaintiffs rights under their deed, thus depriving the use of the necessary adverse character. Plaintiffs have submitted a receipt for the payment of taxes on at least a portion of the locus and a "superstructure" located thereon. Such evidence has little weight where, as here, there was insufficient use made of the property to constitute possession. Whitman v. Shaw, 166 Mass. 451 (1896). Assuming such possession did exist, evidence that taxes were paid would be relevant to show that the possession was adverse. Eluell v. Hinckley, 138 Mass. 225 (1885). We do not believe, however, that it would be sufficient to rebut our earlier finding that plaintiffs' actions on defendant's land were done in accordance with the rights granted by their deed.

In sum, this Court finds that defendant owns the locus and the structures thereon; and that its deed from Frank and Mary Falk is valid; we further find that plaintiffs, their heirs and assigns have the right to repair, maintain, and replace the structures on defendant's property and may enter the premises for the purpose of doing so; and that they have riparian rights to the water in the stream as they flow through defendant's land.

Decree accordingly.