REG 38771

January 24, 1980

Worcester, ss.

Randall, C. J.



The Court sees no reason to review the pleadings extensively in these often acrimonious cases. Suffice to say, Arthur P. Snow and Joseph W. Snow, hereinafter the petitioners, brought a petition to register title to a certain parcel of land on the north side of Worcester Street in the Town of Grafton as shown on a plan filed herewith and hereinafter called "locus". Various parties who filed appearances now have been defaulted with the exception of the Commonwealth of Massachusetts, and E. L. Dauphinais, Inc., hereinafter respondent.

The Commonwealth filed an answer to protect the public's interest in state highway layouts, highway bounds, easements, and waterway interests, and took part in the trial of the case to establish particularly its rights in the Quinsigamond River. Petitioners and the Commonwealth submitted a stipulation agreeing that a decree may enter registering and confirming title in the petitioners subject to the rights of the public in and to the said Quinsigamond River, together with the rights in common with others to use Snow Road, not here in issue.

Respondent E. L. Dauphinais, Inc. filed an answer claiming title and certain easements in a portion of locus both by grant and by adverse possession.

After the petition in Land Court Case No. 38771 went to citation on September 23, 1977, respondent in turn filed a complaint against petitioners Arthur P. Snow and Joseph W. Snow, and then later amended its complaint to include Estelle M. Rivard, being Civil Case No. 10393 in the Superior Court, County of Worcester. This complaint was dismissed and judgment entered therein by order of the Superior Court. The Appeals Court vacated the judgment and ordered the action to be removed to the Land Court Department for trial and disposition in accordance with G. L. 212, ยง 26A. In effect this complaint seeks to quiet title to land occupied by respondent and claimed by them in their answer in Registration Case No. 38771. The two cases were tried together and are herein consolidated in this opinion.

A third case was brought by Arthur P. Snow, et al, being Land Court Miscellaneous Case No. 89485, against E. L. Dauphinais, Inc., seeking a temporary and a permanent injunction to restrain E. L. Dauphinais, Inc. from trespassing or otherwise interfering with Snows' use of the locus. Defendant's motion to frame jury issues was denied by the Land Court on May 3, 1979, and an appeal was entered by the defendant E. L. Dauphinais, Inc. which is still pending.

Trial was held on June 12, 13, 14, 15 and July 31, 1978. A stenographer was duly sworn to record the testimony. Briefs were filed on August 27 and 28, 1979 and final arguments were heard on October 3, 1979. Six witnesses testified and forty-seven exhibits were introduced into evidence, all of which are incorporated by reference herein for the purpose of any appeal. A view was taken by the Court in the presence of Arthur P. and Joseph W. Snow, Emile Dauphinais and attorneys for all concerned except the Commonwealth of Massachusetts on June 11, 1978.

Three questions are involved: the first is the boundaries of the locus sought to beregistered; the second, the possible encroachments by respondent E. L. Dauphinais, Inc.; and the third, assuming that there were encroachments, whether they have ripened into title under the theory of adverse possession.

I. What are the boundaries of the locus sought to be registered?

The Court finds that petitioners' title is derived from a deed of Ashley W. Rice to one George H. Snow, dated June 11, 1894, recorded in Book 1442, Page 468 [Note 1] which purported to convey some 76 acres of land. The petitioners seek to register two parcels, one north of the Massachusetts Turnpike containing 57.42 acres, about which there is no dispute, shown on Sheet 2 of the filed plan, and the other containing 23.93 acres on the south side of the Massachusetts Turnpike, shown on Sheet 1 of the filed plan. It is part of this latter parcel that is in dispute. Combined the two parcels contain well over the 76 acres as called for in the above-mentioned deed into George H. Snow and, in addition, do not account for other parcels heretofore conveyed out. However this may be, the above deed would seem to include the area in dispute here and the Court so finds.

In 1933 Alfred J. Dauphinais made an agreement with George H. Snow, the petitioners' predecessor in title, to dig sand and gravel from a 26 acre parcel and continued to do so until his death. The operation was then carried on by his sons. The sand and gravel was trucked from the premises over the right of way shovm on the filed plan to Worcester Street. The way itself was constructed in 1933 by Emile L. Dauphinais, now a principal officer of respondent. During the course of its construction a swampy area was discovered so that instead of being laid out in a straight line to the southeast corner of the land conveyed to Dauphinais the way was curved to the northwest to the Dauphinais land. It is shown on the filed plan (Exhibit No. 2), on an unrecorded surveyor's plan being Sheet 51 of the Abstract, (Exhibit No. 1) and on Exhibit 24, a partial copy of which is attached as a sketch plan, Appendix A. [Note 2]

On March 5, 1936, George H. Snow, petitioners' predecessor in title, conveyed this 26 acre parcel to Emile L. Dauphinais, respondent's predecessor in title, by a deed recorded in Book 2663, Page 19. The description in this deed (Exhibit No. 31) describes the parcel of land shown as "E . L . Dauphinais, Inc." on Sheet 1 of the filed plan (Exhibit No. 2 - see also the sketch plan attached hereto, Exhibit No. 34 and Sheet 51 of the Abstract, Exhibit No. 1) together with the right of way running from the premises to Worcester Street over which the grantor George H. Snow evidently reserved no right of way.

Emile L. Dauphinais later deeded this parcel to the present respondent, E. L. Dauphinais, Inc., although no copy of this deed was placed into evidence.

George H. Snow died intestate on July 7, 1937, survived by his widow, Clara M. Snow. She was appointed administratrix of his estate on November 23, 1937. His heirs at law and next of kin were listed as Estelle M. Rivard, a daughter of a prior marriage, of unknown whereabouts;Arthur P. Snow, and J. Walter Snow, sons and the present petitioners, and Cecile Snow, known in religion as Sister Marie Reine DeImmaculate, of Auburn, Maine, a daughter. The inventory lists 55 acres of woodland in North Grafton, presumably the locus. Clara M. Snow inherited a one-third interest; the four children a one-sixth interest each.

On May 11, 1942 Cecile Snow died intestate leaving her mother Clara M. Snow as heir to her one-sixth interest in the locus. Cecile's estate was not probated until April 28, 1955 at which time her brothers, the petitioners herein Arthur P. and J. Walter Snow were appointed Administrators.

Clara M. Snow died on June 19, 1949, well before the probate of Cecile's estate. At her death Clara had her original one-third share from her husband's estate plus the one-sixth share as heir of Cecile, a total of one-half. The administrator of her estate, being No. 160990 Worcester Probate Court was Burton A. Lewis who assented to the appointment of petitioners as administrators of Cecile's estate. Clara's inventory listed "land with frame house" in Grafton, presumably the locus. Her half interest went to her surviving sons, Arthur P. and J. Walter Snow so that they would have five-sixths of the record title at least, and perhaps more depending upon what happened to Estelle Rivard, who at most owned a one-sixth interest.

There was evidence that Estelle Rivard, who married but remained childless, left Worcester in the summer of 1931 never to return or to make contact with her family. She is listed in the probate of her father's estate as an heir at law of unknown residence. From 1937, the year of their father's death on, Estelle's brothers, the petitioners, together with their mother Clara, until her death, developed the land, cut timber from it for sale and sold gravel obtained from it. During this period the brothers and the mother apportioned the profits from the land among themselves. Clara and Joseph Snow, and on Clara's death Joseph, lived on the property and paid each year's real estate tax on it. Petitioners' long, exclusive and uninterrupted possession without any claim of profits or possession by Estelle Rivard is evidence from which it may and ought to be inferred that there was an actual ouster of her. See Joyce v. Dyer, 189 Mass. 64 (1905), Nickerson v. Nickerson, 235 Mass. 348 , 352 (1920). Nothing in the case indicates where Estelle Rivard resided. However, even if she lived a great distance away her brothers would not be held to a greater degree of notoriety in their claim to the entire interest in the prenises than otherwise would be the case. Their actions should be such as to afford knowledge to her if she had visited the premises that they had attempted to disseise her. The Court finds and rules that petitioners have satisfied their burden of proving adverse possession of the premises as against their absent co-tenant, Estelle Rivard, and have therefore disseised her of her one-sixth interest.

It is the Court's opinion that even if it had found Estelle Rivard's one-sixth interest to be outstanding, respondent would have gained no advantage since respondent never claimed title to the locus through Estelle Rivard.

The 26 acre parcel and the right of way to Worcester Street as deeded to Emile L. Dauphinais was described as following, course by course, an unrecorded plan of the parcel found in the Abstract, Exhibit No. 1, Sheet 51. Exhibit 34 is a copy of the filed plan showing the areas of supposed encroachments outlined in red. Kenneth Engvall, the engineer who prepared the filed plan and Exhibit 34 convincingly testified as to the manner in which he placed the locus, tieing it in with the Quinsigamond River on the west and Worcester Street on the south.

The respondent submitted no deed giving it any land in addition to that described in the deed, Exhibit No. 31. It submitted a plan of land (Exhibit No. 38A) drawn by one Donald L. LaVallee who testified that this plan was not drawn from the description in the deed to respondent but rather was drawn to show the land "occupied" by them. Exhibit 38A shows a line entitled "Toe of the Slope" and a line to its east entitled "Top of the Slope." As may be seen by comparing Exhibit 38A with the filed plan and the sketch plan attached hereto this "toe" is to the east of the respondent's easterly line as shown on the latter plans. Great emphasis was placed upon this "Toe of the Slope" by respondent. It should be noted that this slope area as observed on the view is wooded with trees of sometimes large size. The "Top of the Slope" which marks the ridge really divides the excavated and now level (except for the stacked sand and gravel) gravel pit of respondent and an excavated pit to the east of the ridge. It is difficult to see how it has any real value except for the value of what wood might be cut from it to anybody except to the respondent.

However this may be, the Court is satisfied and finds that the parcel of land depicted as "E. L. Dauphinais, Inc." and as "30' Existing Right of Way to E. L. Dauphinais" (in capital letters) is correctly shown on the filed plan.

This being so, it becomes evident from a glance at the filed plan that the respondent is encroaching on the petitioners' land at various points. This leads to the second question.

II. Where are the areas of encroachment by respondent?

The petitioners contend that the respondent is encroaching on their remaining land at ten locations numbered by the Court 1 to 10 from north to south and shown on the sketch plan attached hereto as Appendix A. In addition, certain poles are located to the east of the line claimed by petitioners.

The Court on its view of the locus observed at location No. 1 on Appendix A, a silt pile of considerable height; at locations 2, 3 and 4, small areas of paving evidently pushed over from the land of respondent to the west; at location No. 5 the southwest corner of a large truck garage; at location No. 6 pavement extended from the southwest corner of the garage to the right of way; at location No. 7 a paved area southwesterly of the line of the right of way; at location No. 8 a relatively large area containing the extension of a way and including in part a 40 to 50 foot high gravel and sand pile with conveyor; at location No. 9 a deserted shack to the southwest of a travelled way; and at location No. 10 a sign located to the west of the right of way from Worcester Street to the Dauphinais property.

In 1933 this sand and gravel business was commenced in a rather remote area off in the woods. The petitioners cut the wood on the parcel and then the respondent removed the sand and gravel. Nobody was very careful about boundaries, particularly in the early days. The view shows and the Court finds and rules that there was encroachment in the areas set forth above. Each of these areas will now be considered in connection with respondent's claim to title by adverse possession.

III. Has the occupation of the areas encroached upon ripened into title in respodent by adverse possession?

The Court has found that respondent does not have title by deed to the areas occupied by it. In addition the Court finds that no deed was executed or delivered in accordance with a supposed agreement (Ex. No. 35) between George A. Snow's widow and its predecessor in title for which some $700.00 was paid. The respondent thus bears the burden of proving its title by adverse possession.

"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 at 262 (1964). Unexplained use for twenty years will be presumed to be under a claim of right. Ullian v. Cullen, 3 Mass. App. 1975, Flynn v. Korsack, 343 Mass. 15 (1961). All the elements upon which adverse possession is claimed must be proven by the person asserting title by adverse possession. Holmes v. Johnson, 324 Mass. 450 (1949); Mendonca v. Cities Service Oil Co., 354 Mass. 323 (1968).

The land on the east side of respondent's parcel between the line as shown on the filed plan and the so-called "toe of the slope" is for the most part cleared. As has been stated heretofore, east of the "toe" and from it to the top of the ridge is a heavily wooded area. Location No. 1 on Exhibit No. 34 is the silt pile. Silt is obtained as a residue from the washing of sand and is in great demand as an additive to loam which it enriches and makes smoother. The pile is some six or more feet in height and encompasses a large area being about 250' by 200' at its largest extremities. About one-half of this encroaches on petitioners' land, filling what used to be a swamp. If anything, the silt pile improves petitioners' land. How long this has been there is uncertain --certainly for a long time, but proof is insufficient to establish its presence for the twenty year period. Locations 2, 3 and 4 represent small encroachments where pavement has been allowed to overflow from the land of respondent onto land of petitioners, where it has hardened and is now visible. It has been put to no use by respondent. There was no evidence of the length of time the six "poles" located east of the easterly line shown on the filed plan and south of the truck garage were used. The same is the case also with the "vent" pipe and "filler pipe" presumedly used for oil storage. Location 7 shows an encroachment of the paved way outside of the limits of the way at a bend in it to the south. There was testimony that the road was first of gravel, then was treated with oil or Tarvia and later was on two occasions hot-topped. Obviously care was not taken to keep within the boundary of the way. How long the way was used in its present state is uncertain. The Court finds and rules that the respondent has not sustained its burden of proof with respect to these areas of encroachment.

The Court is of a different opinion as to certain other areas of encroachment, however. With reference to location 5, the southwesterly corner of the truck garage is shown encroaching over the southerly line of petitioners. The first and rear part of the truck garage was built in 1951 or 1952, faced west and had four doors. It was two trucks deep. An addition was built to the front of the garage in 1956, increasing the capacity from ten to twenty trucks. Later, a paint shop was added on but not to the front of the building. The Court finds and rules that the encroachment consisting of the front southwest corner of the garage came into being in 1956.

Similarly, location 6, the paved area forming an apron in front of the truck garage which joins the granted right of way came into being at the same time. The question thus arises as to the tolling of the requisite 20 years for title by adverse possession.

The petition for registration in the present case was filed on March 5, 1975. The citation in the case was not issued until September 23, 1977. Respondent received notice by registered mail October 14, 1977; Special notice was posted on the land October 19, 1977. There is authority that the filing of a registration petition suspends the tolling of time on an adverse possession claim. McMullen v. Porch, 286 Mass. 383 (1934). There the Court likened the petition to register land to a writ of entry relating the decree back to the filing date. In that case the twenty year prescriptive period required for respondent's claim would not have run until a time "between the date of petition and the dates of hearing and order for decree." McMullen, supra at 387. The Court said the question was

"Whether the bringing of the petition for registration of title to land, issuing a citation thereon, giving notice by registered mail, and posting notice on the land, serve to interrupt the adverse possession of one claiming adversely to the petitioner." McMullen, supra at 387.

From this summation of the issue it appears that the McMullen respondent had notice of the petition before the prescriptive period had been satisfied. But in the present case the respondent's adverse claim achieved the requisite twenty year period, after the filing of the petition but before the citation was published or notice was received. This Court questions the applicability of the McMullen holding that the mere filing of a petition for registration stops the prescriptive period from running.

The Supreme Judicial Court's decision in Baumgartener v. Doherty, 286 Mass. 583 , 587 (1934) founded on McMullen, supra, ignores the fact that the prescriptive period for the McMullen respondent was not achieved until after citation was issued and notice received. Baumgartener holds that the filing of a petition for registration is a proceeding against all the world and therefore by such filing alone an owner effectively asserts against any adverse possessor discontinuance of the owner's so called acquiescense. But this is a legal fiction since this Court cannot say that one in adverse possession of land has a duty to check entries from day to day in the Land Court.

Respondent had made frequent, continuous, open, notorious use of the encroaching corner of the truck garage for nineteen years before the filing of the petition and for an additional two years prior to receiving notice of the filing. [Note 3] Thus the issue before this Court is different from that decided by the Court in McMullen v. Porch, supra and that holding ought not apply. Where the issue before this Court was not addressed in Baumgartener v. Doherty, supra, that case ought to be controlling. [Note 4] This Court finds and rules that the respondent has satisfied the twenty year period for title by adverse possession.

This leaves three encroachment areas, locations 8, 9 and 10 to be considered. The first of these at location 8, was a road going in a curve up a hill connecting to the granted right of way from Worcester Street. An enormous pile of sand and gravel is located in the area to its north as it curves from the right of way. This way was first constructed in the summer of 1937 and later rebuilt, after an agreement was supposedly made between respondent and Clara M. Snow, Administrator of the estate of George H. Snow. (Exhibit 35) Neither Arthur P. Snow nor J. Walter Snow could or would identify their mother's signature to this agreement. There was evidence thatthe sum of $700.00 was paid to the Snows. Some of the items provided for in this agreement were completed and some were not, most notably the item requiring the Dauphinais land to be surveyed and concrete markers put in. The important thing, though, is the obvious claim of right this gave to the respondent.

The northeasterly portion of the area marked location 8 is designated "Sand-Gravel Pile." This has been used by the respondent since 1937 and perhaps well before, for its sand and gravel and cement mixing operation. At the moment there is a large pile of sand located thereon and a conveyor on the northeast side of it. It is at the heart of the whole operation and has been used for the requisite period adversely. The Court finds and rules that respondent has established ownership by adverse possession.

The portion of location 8 labeled "Driveway" on Appendix A consists of a road up the hill built in the summer of 1937 and used as part of its sand and gravel and cement mixing operation from then to this day. The Court does not understand that the respondent claims title to this road area but rather a prescriptive right to its use. The Court finds and rules that respondent has used this way openly and notoriously, unquestioned by petitioners, under a claim of right for this requisite period of time. The Court thus finds and rules that respondent has established a right of way over this road area (marked "Driveway" and numbered location 8 on Appendix A) by prescription.

Location 9 marks the remains of a building which stands just to the southwest of the road up the hill. Its function today would not appear of great importance and it is obvious that it has not been used for a long time. The respondent has not borne its burden of proving title by adverse possession to this location and the Court so finds and rules.

The last area of encroachment, location 10, involves a sign located just to the west of the respondent's right of way at Worcester Street. It consists of an illuminated sign six by nine feet, with the "Dauphinais" name widely exhibited thereon. Part of the area encompassed by this sign may be owned by the Commonwealth. There was evidence that his particular sign was a relatively new one, being erected about three years ago. Whether previous signs were on the same location is not clear although it seems apparent they were in the same general area. At any rate, the Court is not convinced that the respondent, who has the buden of prooving adverse possession, has satisfied its burden and so find and rules.

Thus, the Court concludes that in Land Court Registration Case No. 38771, petitioners are entitled to a degree registering title to the locus as shown on the filed plan excluding areas identified on Appendix A, attached hereto, as location numbers 5 and 6 and the northeasterly portion of location number 8 designated "Sand-Gravel Pile", and subject to an easement to pass and repass over the way marked "Driveway" and numbered location 8; and further subject to the stipulation filed by petitioners and the Commonwealth, and to any matters disclosed by the examiner's report not in issue here.

In Miscellaneous Case 93058 the Court finds and rules that as between the parties title to the land identified as locations 5 and 6 (the southwesterly corner of the truck garage and the paved apron in front of the garage) and the northeasterly corner of location 8 (designated "Sand-Gravel Pile") on Appendix A rests in the respondent, E. L. Dauphinais, Inc.; and in addition that E. L. Dauphinais, Inc. has a right to pass and repass over the way marked "Driveway" and numbered location 8 on Appendix A.

Judgment accordingly.

Exhibit 1

Appendix A


[Note 1] All recording references herein are to the Worcester District Registry of Deeds.

[Note 2] Appendix A is a copy of part of a plan in evidence as Exhibit 34 with areas of possible encroachment numbered by the Court for the purpose of identification. Exhibit 34 is a copy of the filed plan with the areas of encroachment placed thereon.

[Note 3] Petitioners' attorney sent a 1etter to respondent dated February 19, 1975 demanding that respondent "cease and desist from various trespasses." (Ex. 37) The letter did not inform respondent of petitioners' intention to register their property. In light of respondent's defiance of the demand the letter was insufficient to suspend the tolling of the statute. See Ryan v. Stavros 348 Mass. 262 , 263 (1965); Rothery v. MacDonald, 329 Mass. 238 (1952).

[Note 4] In their brief petitioners cite Dugan v. Wellock, 348 Mass. 778 (1964) as applicable. But that rescript opinion merely reiterates the Supreme Judicial Court's holding in Baumgartener, without indicating as in Baumgartener, whether notice of the registration petition was given prior to the running of the prescriptive period.