DAN HUNTINGTON FENN and ANNA Y. FENN vs. WALTER J. SLEEPER, JR., his heirs, executors, legal representatives, successors and assigns.

Plaintiffs bring this complaint seeking to remove a cloud on and to quiet title to a parcel of land (locus) shown as Lots 14 and 15 on a "Plan of Land in Littleton, Mass. Scale: 1 inch = 40 feet Cheney Engineering Co., Inc. July 25, 1978, Needham, Mass." [Note 1] which references a plan recorded in Plan Book 140, Plan 20 at the Middlesex South Registry of Deeds. (Exhibit 5). They pray that "the Court enter a judgment that plaintiffs ... have obtained good, clear and marketable title to the premises by adverse possession as against Walter J. Sleeper, Jr. and all those persons claiming title to the premises, by, through or under him."

The defendant, Walter G. Sleeper, son of Walter J. Sleeper, Jr., claims that he is the record owner of a one-third undivided interest in the locus as a tenant in common. He "demands" that the plaintiffs complaint be dismissed and that they be ordered to pay to the defendant his costs and reasonable attorneys fees.

A Guardian Ad Litem, appointed by the Court to represent the interests of Walter J. Sleeper, Jr. or his heirs, devisees or legal representatives and other persons unascertained in the action, assented to the allowance of the prayer of the complaint. He obviously does not represent the interests of defendant Walter G. Sleeper, one of the heirs, however.

Trial was held October 17, 1979 at which a stenographer was sworn to take and transcribe the testimony. Five witnesses testified and twenty-one exhibits were entered into evidence and are incorporated herein for the purpose of any appeal.

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

1. At the time of his death in Westford, Massachusetts on August 12, 1908, one Walter J. Sleeper, a physician, owned several parcels of land including the locus. (Exhibit 17). Dr. Sleeper left as his only heirs at law two daughters, Dorothy M. Sleeper and Natalie Sleeper and a son Walter J. Sleeper, all minors (Exhibit 16). By his will each of the three children was to receive a one-third undivided interest in their father's estate.

2. The son, Walter J. Sleeper, Jr. moved away, married one Celeste Ganin and later died in Lake County, Illinois on May 21, 1930 leaving an eight year old son, Walter Ganin Sleeper, the defendant herein. (Exhibits 20 and 21).

3. On July 8, 1947 the two Sleeper daughters, Natalie Sleeper Hartwell and Dorothy Sleeper Hartwell, conveyed the locus to Bradford P. McGranahan and Ivy Maud McGranahan as tenants by the entirety, by quitclaim deed recorded at the Middlesex South Registry of Deeds in Book 7183, Page 174. [Note 2] (Exhibit 2).

4. The McGranahans then conveyed lots 14 and 15 to plaintiffs Fenn by quitclaim deed dated March 25, 1948 and recorded in Book 7263, Page 327. (Exhibit 1). At the time they acquired the locus plaintiffs Fenn owned Lot 13 which abuts Lot 14 on the latter's northwesterly line, as shown on Appendix A. Plaintiffs' summer cabin is situated on Lot 13.

5. Plaintiffs have good record title to an undivided two-thirds of Lots 14 and 15; defendant has record title to the remaining one-third.

Lot 15 is situated on the southerly shore of Forge Pond. Lot 14 is between it and Lot 13 all as shown on Appendix A. The whole area surrounding the pond is attractive woodland which has been used for several generations for a summer camp area. The locus is thick with low brush. Evergreen and other trees grow there in abundance, their branches overhanging the pond except along a short stretch of beach on Lot 15. From the level of the pond the land gently rises to a height of about forty feet. There is a trampled footpath well padded with fallen leaves crossing Lot 14 to the beach area of Lot 15. Lots 14 and 15 are bounded by Robinwood Road on the northeast, east and southeast and by Forge Pond on the northwest. Though there is no fence or natural boundary between Lot 15 and land of Gilpatrick to the southwest the Gilpatrick land is entirely cleared (it has been so since 1945) and the boundary line is obvious.

6. Since 1947, the plaintiffs have used and maintained lots 13, 14 and 15 as a summer camp spending most of each summer there until recently. They have made occasional use of the locus in other seasons also. They have periodically cut dead wood from all the lots including lots 14 and 15 and cleared them of brush after storms. Each summer they have beached and stored their canoes along the shore front of Lot 15, have used this for bathing and recreational purposes. They have maintained this shoreline free of debris. They have staged Easter egg hunts on lots 14 and 15 over the years and have enjoyed the area as a frequent picnic site. Plaintiffs' children and grandchildren have used these lots to play in and romp over. In various years the family has cut evergreens and pine branches from the trees on the lots for Christmas decorations. Mrs. Fenn occasionally cut swamp azalea from the path they used across lot 14. In winters over the years starting in 1969 plaintiffs' family has used lot 14 to get to the pond for skating. In 1972 they cut firewood from the lots. They have paid the taxes on lots 14 and 15 each year since 1948. In 1970 plaintiffs had lots 13, 14 and 15 surveyed and staked off, and then placed green metal fence posts at each of the surveyor's stakes in the ground. They have used lots 14 and 15 interchangeably with Lot 13 on which their camp is located, treating the three lots as one property since the acquisition of Lots 14 and 15.

The only question before the Court is whether plaintiffs, who have good record title to an undivided two-thirds interest in the lots, have acquired title to the remaining one-third by adverse possession.

To obtain title by adverse possession the plaintiffs must prove actual, open, notorious, exclusive and uninterrupted possession 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).

Applying these principles to the facts at hand the Court finds that the plaintiffs have sustained their burden of proof. While the area is not fenced (see Cowden v. Cutting, 339 Mass. 169 (1959) it is well defined by Robinwood Road and Forge Pond, plaintiffs' other lot 13 and the cleared Gilpatrick lot. It has not been cultivated by growing crops as such but has had its woodland tended in a manner to preserve it. The land's inherent beauty has been maintaind by keeping the premises in its undeveloped, natural state. It has been used interchangeably with plaintiffs' lot 13 for summer vacation recreation by plaintiffs and their children and grandchildren who have roamed through and over the area at will. This is particularly true of the grandchildren who played with other children living on the Gilpatrick lot to the southwest. The plaintiffs' use of lots 14 and 15 in the off seasons are the uses any owner might make of them, cutting evergreens at Christmas, using it to get to Forge Pond for skating, cleaning up brush each year, keeping the paths open by trimming and cutting and taking away firewood. This use has continued since plaintiffs acquired title from the McGranahans in 1948 until the present time. Taxes have been paid on these lots by them ever since this time. The Court further finds from the fact of the prolonged absence of the co-tenant defendant, without any claim by him that an ouster of him by plaintiffs has occurred. See Joyce v. Dyer, 189 Mass. 64 (1905), Nickerson v. Nickerson, 235 Mass. 348 , 352 (1920).

Thus the Court rules that plaintiffs have satisfied their burden of proving title by adverse possession for more than twenty years to lots 14 and 15 as shown on Appendix A as against Walter J. Sleeper, and all those claiming title to the premises by, through or under him. The Court declines to allow counsel fees other than those allowable by statute. Mass. G. L. c. 261, §23.

Judgment accordingly.

exhibit 1