ANNA R. SULLIVAN, THOMAS F. SULLIVAN, KATHLEEN M. SULLIVAN, MARY ROSE SULLIVAN and MARK A. BEAUREGARD [Note 1], Substituted Pt'r. v. ROLAND H. BROCHU, CECILE M. BROCHU.

This petition was brought for registration of a parcel of land located in Belchertown, Massachusetts, as shown on the filed plan, under the provisions of G. L. c. 185, §1.

An objection was filed by the Town of Belchertown but was later withdrawn with the provision that the decree plan clearly show that Three Rivers Road is three (3) rods in width (49.5 feet). The only other objection was raised by respondents Brochu, southerly and westerly abuttors of the locus, who claimed title to a portion of the locus. At the trial they submitted no evidence.

The case came to trial on October 30, 1979 at Northampton, Hampshire County. A stenographer was sworn to take and transcribe the testimony. Two witnesses testified and thirty exhibits were entered into evidence which are incorporated herein for the purpose of any appeal.

Upon all of the evidence the Court finds the facts to be as follows:

1. On August 4, 1884, John M. Crowley and Francis M. Parker conveyed to Martin Austin by deed recorded at Book 380, Page 494 [Note 2] a portion of land previously conveyed to them by Abigail M. Cleavland.

The deed described the land as

"A certain tract or parcel of land situated in said Town of Belchertown, bounded and described as follows to wit:

Beginning at the Martin Bardwell's S. E. corner; on the West side of the road leading from said Belchertovm to Three Rivers, in the Town of Palmer, running thence S. 84-3/4° W. 16 rods to a pile of stones; thence N. 84 1/2° W. 40 1/2 rods to Frank Miller's northeast corner; thence N. 84-3/4° E. one rod to stake and stones; thence S. 1 1/2° W. 25 1/4 rods to stake and stones; thence N. 84-3/4° E. 60-3/4 rods to the road above mentioned; thence northerly on said road to the first mentioned bound, containing 22 acres and 42 rods be the same more or less." (Exhibit 6)

The deed recites that it contains 22 acres and 42 rods; actually the metes and bounds description describes an area of only 6.985 acres as shown on the filed plan and on Appendix A. [Note 3] (This same description was used in all succeeding deeds and instruments in petitioners' chain of title.)

2. Martin Austin conveyed the premises with the same metes and bounds description containing 6.985 acres to Patrick J. Sullivan by a deed dated May 17, 1905, recorded in Book 630, Page 407. This deed recites that it is the same premises as described in paragraph 1 hereof wherein the area is described as containing 22 acres and 42 rods. Austin reserved for himself, his heirs and assigns the wood and standing timber and the right to enter and to cut and carry away said wood and standing timber, which right was relinguished by deed dated May 1, 1908, recorded in Book 631, Page 244. (Exhibits 7 and 8).

3. Patrick J. Sullivan died testate in Belchertown August 29, 1946 (Probate No. 26703). By will he left his estate to his four daughters, Helen A. Murphy, Nora A. Sullivan, Margaret T. Cole, and Julia Gebhardt, two sons Timothy F. Sullivan and Maurice T. Sullivan, and two grandsons Wilfred R. Palmer and Howard R. Palmer, children of a deceased daughter, Catherine. (Abs. Sh. 7, Ex. 1). Margaret T. Cole was named executrix (Ex. 12) and the inventory of his estate listed the "Cleveland Lot, so called, containing about twenty-two acres - situate on the Three Rivers-Belchertown Road in Belchertown, Mass., $500.00." (Exhibits 11 and 12).

4. Helen A. Murphy, one of the above mentioned daughters of Patrick J. Sullivan, died intestate November 28, 1961 (Probate No. 116060) leaving as her only heirs at law those persons listed in paragraph 3 (Abs. Sh. 10, 11, Ex. 1).

5. All of the heirs and devisees of Patrick J. Sullivan, being also the heirs of Helen A. Murphy, conveyed the property to Timothy F. and Anna R. Sullivan, husband and wife as tenants by the entirety by deed dated October 10, 1962 recorded in Book 1394, Page 445. (Ex. 13) The same metes and bounds description was used and no mention was made of area.

6. Timothy F. Sullivan died December 26, 1964 and on February 6, 1965 Anna R. Sullivan, widow, conveyed the property to Anna R. Sullivan and Thomas F. Sullivan as joint tenants by deed recorded in Book 1456, Page 472 (Ex. 14). Again the same metes and bounds description was used with no mention being made of area.

7. Thomas F. Sullivan and Anna R. Sullivan conveyed the land to said Anna R. Sullivan, Thomas F. Sullivan, Kathleen M. Sullivan, and Mary Rose Sullivan, the petitioners, by deed dated April 12, 1965 recorded in Book 1459, Page 679 (Ex. 15). The same metes and bounds description sans mention of area was used.

Thus, there is no question that the petitioners have record title to the area shown as 6.985 acres as shown on the filed plan and on Appendix A attached hereto and the Court so finds.

Petitioners claim the remainder of the "22 acres and 42 rods", the areas shown as Lots 1 and 2 on the filed plan and on Appendix A by adverse possession. To be successful in their claim they must prove actual, open, notorious and exclusive use of the premises for a period exceeding twenty years. Wonson v. City Manager of Gloucester, 1 Mass. App. 880 (1974); Uliasz v. Gillette, 357 Mass. 96 (1970); Ryan v. Stavros, 348 Mass. 251 (1964).

There was evidence that Patrick J. Sullivan and his family used the locus bordered on the west by land of Brochu and land of Welch, on the south by land of Brochu and on the east by Three Rivers Road as shown on the filed plan and Appendix A for grazing animals and gardening from about 1905 to 1918. Fences and stone walls were mended whenever necessary. After 1918 he did not graze animals but he plowed, planted, and harvested hay and corn until 1928, when he began to rent the land to an abutting neighbor for pasturing cows. The real estate taxes assessed on the property were paid. In 1936 he and his wife gave a mortgage on the property to the Ware Savings Bank recorded in Book 914, Page 346 and later discharged. After Patrick's death in 1946 Margaret T. Cole managed the family farm and continued to rent it until 1952 when the neighbor died. From about 1952 to 1962 she planted and tended a garden in the part of the "front" lot nearest Three Rivers Road and posted "no trespassing" signs in that area. She was assessed and paid the real estate taxes on the property from 1951 to 1962.

Her brothers, Maurice and Thomas Sullivan had begun to cart junked cars to a location in the "front" lot sometime in the forties and by the fifties they had a sizeable junk yard there from which they sold-scrap metal. From 1972 to the present, real estate taxes on the twenty-two acres were assessed to and paid by four Sullivan petitioners.

Upon all of the facts the Court finds that petitioners Sullivan have satisfactorily met their burden of proving actual, open, notorious, and exclusive use of the land claimed for a period exceeding twenty years. In turn, they conveyed parcel 2 as shown on the filed plan (see footnote 1) to Mark A. Beauregard as substitute petitioner in part.

The Court thus rules that petitioners Sullivan and substitute petitioner Beauregard are entitled to decrees of registration of title to parcels 1 and 2 of the locus, as shown on the filed plan, respectively, subject to the provision that the decree plan clearly show that Three Rivers Road is three (3) rods in width (49.5 feet) and to such other matters as may be disclosed in the examiner's report not here in issue.

Decree accordingly.

Exhibit 1