ALEXANDER D. FORGER, Trustee, Substitute Petitioner vs. NELL L. HOWELL, PAULINE VANDERHOOP, LEONARD VANDERHOOP, ALFRED HALL, THE TOWN OF GAY HEAD, THE COMMONWEALTH OF MASSACHUSETTS, IDA V. COLBY and LEWIS F. COLBY.

This petition originally filed by the Cape Cod Company under the provisions of General Laws (Ter. Ed.) Chapter 185, Section 1, seeks to register title to two parcels of land (hereinafter called locus) in Gay Head, Dukes County, Massachusetts. Lot 1, a 3.65 acre parcel, is located on the north side of Moshope Trail and Lot 2 containing 173 acres is located on the south side of Moshope Trail, as shown on the filed plan. Alexander D. Forger, Trustee under a declaration of trust dated January 16, 1978, recorded with Dukes County Registry of Deeds, Book 353, Page 467, was substituted on motion as petitioner.

An answer based on a claim of adverse possession was filed by Pauline and Leonard Vanderhoop but was later withdrawn.

Nell L. Howell filed an answer claiming a right of way over Lot 2 but later withdrew her objection and stipulated that a decree registering the title of the substituted petitioner might be entered.

The Town of Gay Head filed an appearance but later stipulated with the substitute petitioner that the decree registering the title of the substitute petitioner may be entered subject to:

"1. The rights of the Inhabitants of the Town of Gay Head to use the Gay Head Herring Creek for the purpose of fishing, and reserving for the use of said Inhabitants for the purpose of fishing and clearing the creek a strip of land one rod wide on each side of said creek, said creek being that creek shown on Land Court Filed Plan No. 39760 as extending southerly from a culvert under the State Highway and thence through Lots 384, 382, 381 and the easterly corner of 380 and thence emptying into Squibnocket Pond; and

2. The rights of the Inhabitants of the Town of Gay Head to take water and harvest watercress from "Cook Spring" and to maintain, repair and replace the existing waterworks in their present location, said "Cook Spring" being that spring shown and located on a plan designated "Supplementary Plan Showing Spring and Watercress Area, Drawn for Alexander D. Forger, Tr., November 7, 1979", a copy of which is attached to and made a part of this Stipulation, and the area which is subject to such rights being bounded and described according to the plan as follows:

"Beginning at a point on the southwesterly sideline of the State Highway, thence running by the sideline

S 53°22'35"E 145 feet; thence S 00°52'52"E 57.23 feet; thence Westerly 55 feet; thence Northerly 85 feet; thence N 53°22'35"W 85 feet; thence N 36°37'25"E 10 feet to the point of beginning ."

The Commonwealth filed a late answer and on the day of trial it, too, entered into a stipulation with the petitioner that a decree may enter registering and confirming title in the name of the petitioner subject to the rights of the public in Squibnocket Pond and also subject to Chapter 272 of the acts of 1855.

Ida V. Colby and Lewis F. Colby filed an answer claiming a right to collect peat from Indian Lot 296, shown on filed plan 39760A, Sheet 1, and being a portion of Lot 2.

Alfred Hall, a man of eighty-one, filed an answer claiming a right of way over parcel 1 of locus. On the day of the trial a motion to sever and dismiss Lot 1 from the petition for registration was filed with the Court. This will be addressed later herein.

Trial was held at the Land Court May 22, 1979 at which a stenographer was sworn to take and transcribe the testimony. Three witnesses testified including the Land Court Examiner who prepared the title abstract, and four exhibits were entered into evidence which are incorporated herein for the purpose of any appeal.

The Court will first consider the claim of respondents Ida V. Colby and Lewis F. Colby to collect peat from Indian Lot 296. Under the residuary clause of the will of Harriet E. Ellis who died in 1975, Ida V. Colby and her husband Lewis F. Colby were left all the rest, residue and remainder of Harriet E. Ellis' estate. (Exhibit No. 3). Harriet E. Ellis was the granddaughter of Isaac D. Rose, who died in 1886, to whom the right to collect peat from Lot 296 was originally reserved in the set off of the lot to Elton Francis by the Commissioners in 1878 (See Exhibit No. 4).

The original petitioner, The Cape Cod Company, acquired title to the locus subject to all rights, easements and agreements set forth or referred to in deeds to the grantor, duly recorded in the Registry of Deeds, by deed of Ralph Hornblower dated June 25, 1943 recorded in Book 207, Page 483. In turn Ralph Hornblower acquired title to Lot 296 from Richard M. Russell, Trustee, by deed dated April 12, 1926 recorded in Book 169, Page 280, which gave a metes and bounds description of the lot and also described it as "The land conveyed to said Hammond by Everett P. Clisby by deed dated September 24, 1902 recorded with said Deeds Book 105, Page 140 ...." The deed further recited that the conveyance was "subject to the reservation of the peat thereon, therein contained."

Upon all of the evidence the Court finds and rules that the respondents have succeeded to the peat rights of Harriet E. Ellis and that the petitioner's title is subject to these peat removal rights.

The second question involves the answer filed by Alfred Hall. At the time of the trial Ben L. Hall, with the permission of the Court, appeared for his aged father, Alfred. The right of way claimed by the Halls is over parcel 1. Parcel 1 was conveyed by the substitute petitioner herein, Alexander J. Forger, Trustee, to one Frank J. Nuovo by a deed, dated September 1, 1978, recorded with Dukes County Registry of Deeds, Book 361, Page 48. Since the substitute petitioner no longer owns this parcel 1 a motion was filed by him at the time of the trial to sever and dismiss the petition as it applies to Lot 1. This was done in accordance with G. L. c. 185, § 31. Thus any rights of way the Halls may have over parcel 1 are not now before the Court.

To sum up the Court finds and rules that the petitioner is entitled to a decree of registration of title to Lot 2 as shown on the filed plan subject to the right of respondents Colby to collect peat from that portion of land designated as Lot 296 on the filed plan, subject also to the provisions of the stipulations filed by the Commonwealth, to wit, the rights of the public in Squibnocket Pond and the rights of Abner and George Mayhew and associates to build a fishway through Squibnocket Pond in the usual season, as authorized by c. 272 of the Acts of 1855, approved May 2, 1855; subject also to the provisions of the stipulation filed by the Town of Gay Head, to wit, 1) the rights of the inhabitants of the Town of Gay Head to use Gay Head Herring Creek for fishing and to use a strip of land one rod wide on each side of the creek for fishing and clearing. Said creek is shown on the filed plan; 2) the rights of the inhabitants of the Town of Gay Head to take water and harvest watercress from Cook Spring and to maintain and replace the existing waterworks at their present location. Said Cook Spring is shown on the "Supplementary Plan Showing Spring and Watercress Area, Drawn for Alexander D. Forger, Tr. November 7, 1979;" subject also to any matters disclosed in the examiner's report and not in issue here.

Decree accordingly.