HARRIET T. BARNUM and MARY HULETT vs. BERKSHIRE WHITE PORTLAND CEMENT COMPANY, its successors and assigns.

Plaintiffs filed this complaint August 24. 1979 seeking to quiet title to two parcels of real estate, one lying easterly and the other westerly of the Konkapot River in the town of New Marlborough. Prior to trial however, plaintiffs relinquished their claim to the land on the west side of the river.

The case was consolidated for trial with Land Court Case No. 82371 at which a stenographer was sworn to take and transcribe the testimony July 30, 1980. Two witnesses testified and two 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. By a deed dated June 4, 1907 recorded in Book 201, Page 67 at the Berkshire Southern Registry of Deeds [Note 1] one Godfrey Goldmark conveyed to the Berkshire White Portland Cement Company, along with other land, the parcel of real estate bounded westerly by the thread of the Konkapot River, containing 71.98 acres more or less shown on a plan dated July 1978 entitled "Portion of Land of the Berkshire White Portland Cement Company drawn by Robert Macy and Associates (Exhibit 2) - see Appendix A.

2. By deed dated May 3, 1910, recorded in Book 209, Page 6 the Berkshire White Portland Cement Company conveyed a portion of the property obtained from said Godfrey Goldmark, not including the above described parcel, to one George W. Greene. This conveyance is the last transfer of property by the Berkshire White Portland Cement Company on record at the Berkshire Southern Registry of Deeds.

3. The Berkshire White Portland Cement Company, a corporation existing under the laws of the State of Maine has been dissolved.

Although there has been an intensive search made both in Maine and in Massachusetts, there is presently no record of its existence nor of any of its officers, directors, or stockholders.

4. Plaintiffs Barnum and Hulett are the owners of land in New Marlborough which abuts the southerly line of the Berkshire White Portland Cement Company land on the east side of the Konkapot River as shown on Appendix A. Mary Hulett testified that she has lived on this property in New Marlborough for sixty-two years, almost all her life, and her parents lived on and owned this property prior thereto, on which they operated a farm. Mrs. Hulett, together with her husband took up the operation of the farm some forty years ago. Like her parents she treated the adjoining cement company's land as part of her farm. Mrs. Hulett, and her parents before her, maintained a fence along the northerly boundary and easterly boundary of the cement company land. The land was bounded on the west by the Konkapot River. There was never a fence separating the cement company land from Mrs. Hulett's farm on the south. The Huletts grazed cows on the cement company land, cut timber for their own use thereon and allowed a man with a "portable sawing operation" to also cut timber from the parcel. They used two ponds on this parcel for skating and also cut ice from them. The Huletts' nephew and his friends built a cabin or "shelter" on the land. Real estate taxes on the land were assessed to Mrs. Hulett's father until his death in 1957 and then to her mother Harriet Tinker. Mrs. Hulett presently receives and pays each real estate tax bill for the property. The last communication from the Berkshire White Portland Cement Company was received by Mrs. Hulett's father sometime in the late 1920's.

The sole question here is whether or not the plaintiffs have acquired title by adverse possession to the parcel east of the Konkapot River.

Plaintiffs in this case have relinquished any claim by adverse possession to land west of the Konkapot River and in turn, the petitioner in Land Court Case No. 82371 has relinquished any claim she might have to the parcel east of the Konkapot River. See Appendix A.

In order to acquire title to the premises by adverse possession plaintiffs must prove actual, open, notorious, exclusive and uninterrupted use of the premises for a period exceeding twenty years. Wonson v. City Manager of Gloucester, 1 Mass. App. 800 (1947); Uliasz v. Gillette, 357 Mass. 96 (1970): Ryan v. Stavros, 348 Mass. 251 (1964). Upon all of the facts the Court finds and rules that plaintiffs have sustained their burden of proof.

The Court orders that judgment issue that plaintiffs have acquired title by adverse possession to the approximately 71.98 acres of land bounded westerly by Konkapot River in New Marlborough, shown on Appendix A.

Judgment accordingly.

exhibit 1