REG 39927

October 20, 1982

Dukes, ss.



This complaint was brought under the provisions of General Laws (Ter. Ed) Chapter 185, Section 1 to register title to a certain parcel of land on both sides of "South Road" in the Town of Chilmark, Dukes County, Massachusetts, consisting of Lot 1 on the south side of said road containing 37.9± acres and Lot 2 on the north side of said road containing 78.77 acres, all as shown on a plan entitled "Plan of Land in Chilmark, Mass. surveyed for Catherine B. Allen and Clarissa Allen, November 10, 1974, Scale l"=100', Dean R. Swift, Reg'd. Land Surveyor Vineyard Haven, Mass." filed with the complaint. Title is claimed of record and by adverse possession.

The complaint was filed on July 27, 1978 and the title referred by the Court on August 8, 1978 to Philip Norton, Jr., a Land Court Examiner suggested by the Plaintiff. For some reason unknown to the Court the reference was returned to the Court with no action having been taken on it on May 27, 1980. It was then re-referred to a second Land Court Examiner suggested by the Plaintiff, James F. Reynolds, who filed his report on July 23, 1980.

Various appearances were entered, all of which were withdrawn except for that of Attorney John Wyman for defendant Ross F. Batchelder, Trustee of the Ross Batchelder Trust and individually and Howard Palmer, Assistant Attorney General and Attorney Jane Cohen for the Plaintiff. Attorney Davis Howes appeared for Eleanor R. Mayhew and Attorney Elizabeth Kunz appeared for Eileen Mayhew and Virginia E. M. Peckham. Neither took part in the trial of the case.

Defendant Ross F. Batchelder, Trustee of the Ross R. Batchelder Trust filed an answer claiming an interest in the locus as a legatee of one Emma A. Cleveland who by devise and inheritance acquired the interest, if any, of one Tamson Allen, the wife of Tristram Allen who died in 1862 as will appear more fully hereafter.

The Attorney General entered into a stipulation with the Plaintiff as to the flow of the brook and to the rights of the public in Chilmark Pond and thereafter withdrew from further participation in the case.

Many and various preliminary motions were filed. Significant was Plaintiff's petition for a preliminary injunction which was granted by Justice Fenton of this Court on October 6, 1981, enjoining Ross F. Batchelder both personally and as trustee from transferring any interest in the locus. A second motion by Plaintiff filed on October 6, 1981, sought the appointment of a Guardian Ad Litem on behalf of Ross F. Batchelder. An evidentiary hearing on this motion was held on October 23, 1981 and the motion was denied on the same date.

The case was heard by the Court in Boston on December 30, 1981, January 7, 8, 21, 25, February 16, March 24, 25, 31, on May 17 and 18 at Edgartown and on July 1, 1982 again at Boston. Briefs were filed on September 8, 1982. A view was taken by the Court on May 17, 1982 at Chilmark with all counsel present. Twenty-five exhibits were introduced into evidence together with twenty-eight chalks and are incorporated by reference herein for the purpose of any appeal.

The case itself was vigorously contested by both sides. This Court has never heard a better prepared case. The chalks presented were numerous and skillfully prepared and both sides filed admirable briefs. The case involves two questions: 1) whether or not Plaintiff has good record title suitable for registration of locus and, if not; 2) whether or not Plaintiff has obtained such title by adverse possession.

I. Does Piaintiff have good record title suitable for registration?

The Plaintiff, Clarissa Allen, is the one remaining blood relative in the Allen family since the deaths of her father, F. Roger Allen (hereinafter Roger) in 1967 and her Aunt Alice W. Weeks in 1970. Clarissa took two-thirds of her father's share by inheritance. She took her aunt's share as the beneficiary of an intervivos trust upon her aunt's death in 1970, said trust having been set up by Alice W. Weeks on March 25, 1967. The remaining one-third interest of her father which passed to her mother, Catherine B. Allen by inheritance was conveyed to Clarissa by deed of her mother dated May 25, 1979, recorded in Book 366, Page 312. [Note 1]

Sometime after 1975 an attempt was made to obtain a mortgage on the farm to pay estate and inheritance taxes among other things and it was then discovered that there was an apparent flaw in the title. The discovery of the title flaw eventually lead to the filing of this complaint. Clarissa's mother Catherine Allen died in 1979.

The title was examined by Attorney James F. Reynolds, a Land Court Examiner, who filed an exhaustive report with the Court and testified with the help of many painstakingly drafted chalks. In addition, the Plaintiff called one Attorney Henry Thayer, likewise a Land Court Examiner, and likewise an expert in the title field, to corroborate the work and the opinion of James F. Reynolds.

The Court sees no reason to review every particular of the Land Court Examiner's title report in this decision, particularly since the Defendants called no title experts and basically agreed with the conclusions of the Plaintiff's experts which have been accepted by the Court.

The Land Court Examiner divided the locus into eight parts as shown on Chalk C and numbered 1-8 thereon. He testified that in his opinion the Plaintiff has good and marketable title of record suitable for registration as to parcel 1. The Court accepts his opinion and finds and rules that the Plaintiff has a good and registerable title to this parcel.

As to parcels 2-8 the Land Court Examiner found certain difficulties with the Plaintiff's title. These difficulties stemmed from the ownership of Tristram Allen II who died in 1864 leaving a widow Tamson Allen to whom he devised his interest. This interest varied with the parcels being a two-fifths interest in parcels 2, 3 and 8 a one-fourth interest in parcels 4, 6 and 7, and a one-fifth interest in parcel 5. Tamson Allen devised this interest to her friend Ada S. Cleveland, who on her death in 1887 left it to her husband, Capt. Benjamin D. Cleveland. Benjamin married again and left his interest to his second wife, Emma A. Cleveland. On Emma's death in 1939 the interest of Tristram Allen was left under her will one-third to Ross F. Batchelder, one-third to Cornelius Batchelder, nephews of Emma, and one-third to her Portuguese maid Erna Souza. Ross F. Batchelder, the defendant herein, in turn conveyed his interest as has been set forth heretofore to himself as Trustee of the Ross Batchelder Trust. Cornelius Batchelder died in 1960 leaving a widow, Mary C. Batchelder, [Note 2] who testified at the trial and who in turn conveyed her interest to Clarissa, plaintiff herein. Erna Souza has not been located, presumably having returned to her native Portugal after Emma's death in 1939.

Again, the Court agrees with the analysis and the opinion of the Land Court Examiner as buttressed by the opinion of Attorney Thayer and finds and rules that as to Parcels 2-8 the Plaintiff does not have good and marketable title of record suitable for registration.

Attorney Howes appeared for Eleanor Mayhew, who it appeared might have a 1/120 interest in parcel 5 and Attorney Kunz appeared for Eileen Mayhew and Virginia E. M. Perkham who it appeared might have a 1/240 interest in parcel 5 as descendants of Ephraim Mayhew. They took no part in the trial of the case. There are probably other descendants of Ephraim Mayhew who have not been located and might also have interests in this parcel under Mr. Reynolds' first interpretation of an instrument dated April 23, 1819, recorded in Book 21, Page 126 from Henry Allen to Samuel Nickerson. He first interpreted this instrument as a deed but later changed his mind about it when he read it in conjunction with another instrument from Thomas Nickerson, Administrator of the Estate of Samuel Nickerson, to Ephraim Mayhew, dated September 8, 1932, recorded in Book 24, Page 340 and concluded that it was in fact a mortgage and not a deed. Attorney Thayer concurred with Attorney Reynolds in this interpretation. No evidence of a mortgage foreclosure was found, nor was the mortgage brought forward in the registry so that presumably it died under the provisions of G. L. c. 260, §3. While this is not free from doubt, the Court finds and rules that any interest the Mayhews might have had in Parcel 5 has long been extinguished.

The interest of the Defendant, Ross F. Batchelder, Trustee, depending as it does upon the interest of Tristram Allen II, who died in 1864 was sought to be negated under a theory that Tamson, Tristram's widow, conveyed back her interest in the Allen farm to the Allen family by an unrecorded deed. There was no evidence of this and the Court thus dismisses this claim. The title put forth still another theory wherein a deed (Exhibit 19) from Tristram and Tamson Allen to Jonathan and Thomas Allen, dated June 20, 1853 which conveyed "All our right, title and interest in and to all the real estate which descended or in any manner came to me from Tristram Allen, father of said Tristram and situatedin a place called Squipnocket in the Town of Chilmark" was interpreted as conveying the locus. With this latter opinion the Court does not agree and so finds and rules. To sum up, the Court finds and rules that the Plaintiff has good and marketable title of record suitable for registration to parcel 1 but not to parcels 2-8. Plaintiff's interest in these parcels is as follows: parcels 2, 3 and 8, a three-fifths undivided interest plus the interest of Mary C. Batchelder if any; parcels 4, 6 and 7, a three-fourths undivided interest plus the interest of Mary C. Batchelder, if any; parcel 5, a one­ fifth undivided interest plus the interest of Mary C. Batchelder, if any, as the widow of Cornelius Batchelder.

II. Plaintiff's claim to title by Adverse Possession.

Plaintiff's claim of adverse possession requires the Court to look at two issues. First, has Plaintiff shown an ouster of her co-tenant, and, if so, has Plaintiff proven adverse possession. Justice Spiegel for the Supreme Judicial Court in Ryan v. Stavros, 348 Mass. 251 (1964), set down succinctly the elements of adverse possession thus: "title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years", citing Holmes v. Johnson, 324 Mass. 450 (1949) among others. These elements must be proven by a fair preponderance of the evidence. Cohasset v. Moors, 204 Mass. 173 (1910). Whether or not Plaintiff must hold under a claim of right, as set forth in Holmes v. Johnson, supra, is not a problem here, inasmuch as the Court has found that the Plaintiff has in fact shown record title to a large undivided interest in the Allen farm. See Ottavia v. Savarese, 338 Mass. 330 (1959). Title by adverse possession may be gained by one tenant in common against another tenant in common. Snow v. E. L. Dauphinais, Inc., 13 Mass. App. Ct. 330 (1982). An ouster of one tenant in common by the other claiming by adverse possession must be shown. The Court may infer an actual ouster from long, exclusive and uninterrupted possession. The rule is stated by Shaw, C. J. in the case of Rickard v. Rickard, 13 Pick. 251 (1832) as follows:

It is in general true, that the seisin and possession of one tenant in common, is to be taken as the seisin and possession of his co-tenant, and the occupation of one will be deemed to be in conformity to his right and title as tenant in common, and not adverse, and consequently that lapse of time will not bar the co-tenant. But this rule is subject to some qualification, and it has long been held, that there may be an actual ouster of one tenant in common, by another, that upon such actual ouster the possession becomes adverse, and if continued for a sufficient length of time the right of the co-tenant out of possession may be barred. It is also now well settled, that a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a jury may and ought to infer an actual ouster. Doe v. Prosser, Cowp. 217. And in the same case Mr. Justice Ashhurst stated, in giving his opinion, that after such a lapse of time (it was there thirty-six years) almost any thing might be presumed in support of an exclusive possession, even a conveyance. ID at 253 and 254.

The length of time of possession necessary to infer ouster by one tenant in common against another tenant in common ranges from the thirty-seven years in Doe v. Prosser, 1 Cowp. 217, on up. The latest case involving this question, Snow v. Dauphinais 13 Mass. App. Ct. 330 , (1982), involves a period of forty-seven years.

LeFavour v. Homan, 3 Allen 354 (1862) contains the following language: "it is necessary, in order to maintain a title by disseisin by one tenant in common against another, to show shown some act or series of acts to indicate a decisive intent and purpose to occupy the premises to the exclusion and in denial of the right of the other." Id at 355.

The defendant claims that to prove a decisive intent proof has to be under the criminal standard, namely "beyond a reasonable doubt" basing its claim on the case of Hunt v. Hunt, 44 Mass. 175 (1841). Certainly as applied to the proof needed for allowance of a claim by adverse possession this criminal burden of proof is not the law now and has not been if it ever was, since the case of Cohasset v. Moors, 204 Mass. 173 , (1910). The Court finds no support for a different standard of proof for an ouster, and rules that "ouster" and "disseisin" are subject to the same requirements of proof as adverse possession, namely a "fair proponderence."

Applying these principles to the facts in issue herein the Court finds and rules that at least from the death of Jonathan Allen in 1892 the Allen farm was possessed by various members of the Allen family to the exclusion of any co-tenant in common. Henry Allen moved from Maine and occupied the farm until his death in 1933. His sister Clara, Henry's co-owner, did not occupy it but her interest in the farm eventually came down to Henry's granddaughter, Clarissa, the Plaintiff herein. After Henry Allen's death in 1933 his widow Maude lived on the farm together with their son Roger Allen. Maude died in 1956 still living at the homestead. Roger married Catherine in 1950 and built the home for her and Clarissa, about two miles up the road from the farm. Roger continued to actively work the farm and he used some of its out buildings for his contracting business until his death in 1967. The farming operation came to a halt with his death but the farm was kept under close scrutiny by his widow and was visited almost daily by her. Catherine continued to pay the accrued taxes on the farm. There was testimony that she aggressively posted the land with "No Trespassing" signs and enlisted the help of a friend, who was a Chilmark policeman, to routinely check the farm. The plaintiff Clarissa was a frequent visitor to the farm and moved in to rejuvenate it in 1975, remaining there to the present. Thus, the Plaintiff and her immediate Allen predecessors have occupied the farm exclusively from 1892 to the present, some ninety years. Lord Mansfield talked of forty years in the case of Doe v. Prosser, supra, where he stated "therefore, I am clearly of the opinion.... that an undisturbed and quiet possession for such a length of time is a sufficient ground for a jury to presume an actual ouster." The Court finds that there was at least a ninety year period in which the Allen farm was worked and occupied exclusively by successive generations of Allens.

During this ninety year period of Allen possession, from Jonathan's death to the present, there has been no evidence of any claim being made by anyone in Tamson Allen's line (or otherwise) for rents or profits. It appears that no one in the line beginning with Ada S. Cleveland, through whom the defendants claim, ever knew of any possible interest in the Allen farm. Certainly the defendant Ross F. Bachelder, the executor of the estate of Emma A. Cleveland, never knew. There was other property on Martha's Vineyard owned by Emma Cleveland at her death and this was disposed of by him as her executor. The Court finds that there was no claim of title by the Defendants' predecessors during this ninety year period.

The Court finds and rules that an actual ouster by the plaintiff and her predecessors in title occurred.

Thus, the single remaining question to be answered is whether or not Plaintiff has proven title to parcels 2 - 8 by adverse possession. The evidence of adverse possession is overwhelming.

From at least 1892 to the present date, Henry Allen, his wife Maude, their son Roger, and their granddaughter Clarissa have been in exclusive possession and control of the farm. They have been aided and abetted by Roger's wife, Catherine, who maintained a close watch over the premises both during Roger's life and after his death until she in turn died in 1979. She had a fixation about keeping people off the premises and personally ordered them off. [Note 3] The farm was posted against trespassing and hunting. Persons who did hunt there did so with permission from the Allens. Use of a way to the beach through the south pasture was granted by the Allens to the members of a group called the "Barnhouse" whose buildings were located on the north side of South Road west of the Allen farm. These members used the way each year to go to the beach. The Court finds and rules that the Plaintiff and her predecessors had exclusive use of the Allen farm for over ninety years to this date well beyond the needed twenty for adverse possession.

The Court finds that the use made of the Allen farm by the Plaintiff and her predecessors was open and notorious. Not only did the Plaintiff produce evidence of the use of the farm as a whole but also showed use of each of the various sections of the farm, the hay fields, the pasture area, the pond area, the watering hole and the various buildings including the homestead. The farm itself, from 1892 until Roger's death in 1967, was just that, a farm. Cattle, goats, sheep, pigs, chickens and other animals were raised; cows were milked. Gardens were planted and tended. Roger was a carpenter and in addition to his farming maintained a contracting business. He had a carpenter's shop at the farm containing cabinet making tools; he stored materials there and maintained a dump on the premises for unwanted materials, the remains of which were observed by the Court on its view. Also seen on the view was the present state of the farm. The buildings are in good condition, with improvements to many of them being evident. New fences have been erected and the original stone walls, very much in existence, surround a major portion of the farm. These walls have been repaired in many areas. The pasture land which had grown up from 1961 to l975 and thereafter is being reclaimed with the emphasis being on the raising of sheep at the present time.

The Plaintiff and her predecessors have made no secret of their use and control of the premises. This use was supported by the testimony of many witnesses. One Eugene Smith occupied a cottage on the shore of the lake in the south pasture for some thirty years. The Court, on its view, saw this cottage as well as the old camp at the watering hole on the north pasture. One William Norton had been allowed to hunt deer and birds for some thirty-six years. Others had pastured horses on the land with the permission of the Allens. Roger hired various individuals to help him work the farm, particularly for haying. In addition, Roger carried on his contracting business from his office at the farm, having many visitors there in connection with various projects on which he was working. In addition Roger's father, Henry Allen, held many town offices in the town for a great many years, including that of selectman. Presumably, the townsmen knew where he lived. [Note 4]

Thus the Court finds that as to parcels 2 - 8 the Plaintiff has met her burden of proving all the elements necessary to prove adverse possession - namely in the words of Ryan v. Stavros, 348 Mass. 251 at 262 (1964), that "it was nonpermissive, actual, open, notorious, exclusive and adverse" and that it lasted well over the required twenty years.

The Court thus rules that Plaintiff is entitled to a decree registering title to locus as set forth on the filed plan subject to such other matters as may be shown by the examiner's report not here in issue.


[Note 1] References to book and page refer to instruments recorded in the Dukes County Registry of Deeds.

[Note 2] Question was raised at the trial as to whether or not Mary C. Batchelder was in fact the widow of Cornelius Batchelder but this was never pursued and in any event has little bearing on the case.

[Note 3] Reportedly she ordered a former United States Attorney General and family to stop using the way through the farm to the beach as they had not sought her permission.

[Note 4] Of interest was the statement of Captain Poole, a hale and hearty seventy-eight year old with a large gold hoop firmly embedded in his right ear who testified that Henry was "lazier 'n hell" being one reason he liked to hold so many town offices. The ring in the captain's ear was given to him by his wife after 50 years of marriage and it perpetuated an old whaling tradition as the Captain came from a long line of Martha's Vineyard whaling greats.