REG 40448

November 11, 1982

Barnstable, ss.



Lawrence S. Segura and Sonja S. Segura, husband and wife, filed with this Court on February 22, 1980 a complaint to register and confirm their title pursuant to the provisions of G. L. c. 185 ยง1 (a) to two parcels of land in Truro in the County of Barnstable. The principal parcel (Parcel 2), situated between Cape Cod Bay and Route 6A, is the site of a motel and cottage colony, and has been severed from Registration Case No. 40948. The Attorney General has appeared to protect the interests of the Commonwealth and the public below mean high water mark, but no other person objects to the registration of the title to Parcel 2. The second parcel claimed by the plaintiffs is located on the northerly side of Route 6A across from Parcel 2 and between Route 6A and land formerly of the New York, New Haven and Hartford Railroad Company [Note 1] and is shown as Parcel 1 on the filed plan. Route 6A is a former State Highway which was discontinued as such on February 11, 1970 (Exhibit No. 1). The filed plan in this case is entitled "Plan of Land in (North) Truro To Be Filed in the Land Court LAWRENCE S. SEGURA, ET UX, PETITIONER" dated December 1978, by William N. Rogers [Note 2] (the "Plan"). (Exhibit No. 2).

The defendant Louise MacKenzie claims to own a portion of Parcel 1 by virtue of a deed to her from Rose Freeman dated August 16, 1972 and recorded in the Barnstable County Registry of Deeds [Note 3] Book 1963, Page 221 (Exhibit No. 4). The deed conveyed "Lots 52, 53, 54, 55 and 56 at Beach Point, Truro, Massachusetts," which admittedly are situated on the bay side of Route 6A; the defendant claims that the lines of such lots may be extended northerly across Route 6A, and it is to the registration of the so-called back lots that she objects. Joseph Aborn, Public Administrator of the Estate of Rose S. Freeman, also answered but was subsequently defaulted.

A trial was held at the Land Court on June 14, 1982 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introducted into evidence are incorporated herein for the purpose of any appeal. The Court viewed the premises in the presence of counsel on October 23, 1982.

On all the evidence, I find and rule as follows:

1. Warren S. Freeman conveyed to Horace A. Spear, Jr. in trust by deed dated May 4, 1897 and recorded in Book 228, Page 407, a large tract of land at the Provincetown-Truro town line, bounded northeasterly by the land of the New York, New Haven and Hartford Railroad Company and the County Road and southwesterly by the sea (high water mark) (Exhibit No. 3, abs. s. 2).

2. The deed stated that the property was to be held in trust for the benefit of nine named persons and their heirs and assigns. Warren F. Freeman was one of such parties. The trustee was given power to sell the land and at the end of three years to pay, convey, assign and make the trust property over to the beneficiaries "for the time being according to their respective rights" or to make such other disposition of said trust property as may be agreed upon in writing by all beneficiaries.

3. In 1916, an agreement was entered into by those claiming to be the parties entitled to the beneficial interests in the trust; the agreement ratified the conveyances by the trustee made after the expiration of the three year term and provided for the continuance of the trust until the death of the last survivor of the parties thereto unless sooner terminated by the sale of all the real estate (Exhibit No. 3, abs. s. 5). Neither Mr. Freeman nor Eugene Bonney, who was also said to have an undivided one-ninth interest in the trust res, was a party to the 1916 agreement.

4. The agreement was followed in 1924 [Note 4] by a certificate of the trustee as to the then beneficial interests in the trust of which the trustee certified that there were seven undivided interests (some of which were held by more than one person) (Exhibit No. 3, abs. s. 7).

5. By this instrument, the successor trustee was directed therein to convey to the beneficiaries the various lots not theretofore conveyed as representative of their interests. (Exhibit No. 3, abs. s. 9) and pursuant thereto Lots 52 to 55 and the land opposite between County Road and the Railroad were conveyed by the then trustee, Evans F. Spear, to Ellen F. Hartshorn by deed dated June 14, 1935 and recorded in Book 512, Page 240. (Exhibit No. 3, abs. s. 59). At this time the then beneficiaries by the instrument of conveyance dated April 22, 1935 and recorded in Book 511, Page 403 (abs. s. 9) set forth the history of the beneficial interests since 1924, gave the names of the then beneficiaries and transferred their interests to each other as more fully appears therein. Warren F. Freeman did not appear at this time as having an interest. By probates and mesne conveyances, title to Lots 52 to 55 and the land between the sidelines thereof extended across Route 6A to the old Railroad right of way devolves by instruments of record to the petitioners.

6. Lot 56 (with non locus Lot 59) had been earlier conveyed by the original trustee, Horace A. Spear, Jr. to Joseph V. Daly by deed dated November 28, 1919, and recorded in Book 369, Page 217 (Exhibit No. 3, abs. s. 43), but this deed is silent as to the land opposite said lot on the other side of Route 6A. Lot 57 also was conveyed to Mr. Daly by Horace A. Spear, Jr. by deed dated August 22, 1920 and recorded in Book 382, Page 162 (Exhibit No. 3 abs. s. 44). Each lot ultimately devolved to Herbert F. Mayo and Margaret A. Mayo, one in 1940 and the other in 1957. It was not until the Mayos conveyed the premises to Mrs. Mayo alone in 1965 that the language of the conveyance was broadened to include the land opposite lots 56 and 57 as well as that opposite lots 52 to 55 inclusive. (Exhibit No. 3, abs. s. 63). Since 1965, substantially the same language has appeared in all the conveyances of record.

7. Warren F. Freeman died testate, a resident of Boston in the County of Suffolk on December 9, 1944, Suffolk Probate No. 321349, leaving a widow Rose and a son, Warren F. Freeman, Jr. By his will, the residue of his estate was devised to his widow. The inventory did not list any interest in Truro real estate.

8. Rose S. Freeman received tax bills for back lots 52, 53, 54, 55 and 56 at Beach Point in 1956, 1962, 1963 and fiscal 1975. (Exhibit Nos. 6A, 6B, 6C and 7). Receipted tax bills also were introduced for 1964, 1965 and 1968 in which Rose S. Freeman appeared as the party to whom the bill was sent, and the property covered was Lots 52 to 56 at Beach Point. (Exhibit Nos. 6D, 6E and 6F). The plaintiffs also claim to have paid taxes on Parcel 1. The Assessors' certificate shows the easterly portion assessed to the defendant and the remainder to the plaintiff.

9. Margaret A. Mayo, predecessor in title of the plaintiffs, testified that she had continually utilized the land between Route 6A and the railroad tracks during the period that she and her husband (or she alone) owned the property, 1939 to 1967 as to Lots 52 and 55 and the land opposite, from 1940 as to Lot 56 and from 1957 as to Lot 57. The Mayos had erected a clothes line on the land in question, placed rubbish barrels there, parked a truck thereon and attempted to fill in the gully with grass clippings. Neither she nor the plaintiffs ever saw a third person using Parcel 1 nor did anyone claim the right to do so. Sonja S. Segura, one of the plaintiffs, who with her husband acquired the property in 1967, testified that she used the property for gardening and had done so since the purchase of the land. The area where she has her garden is primarily an accumulation of soil and sand with the land sloping in the back on which she grows both vegetables and flowers. She also testified that she had caused trucks and cars to be parked there fairly regularly since 1967 and no one had ever objected. Her husband and co-owner, Lawrence S. Segura, confirmed her testimony.

10. In 1974 and 1975 the defendant MacKenzie visited the plaintiffs and asserted a claim of ownership of Parcel 1.

11. There was evidence that over the years the Mayos and the plaintiffs had made overtures to Rose Freeman to acquire her title to the area now in dispute.

12. Other than the payment of real estate taxes, Mrs. Freeman's only contact with the locus was occasional visits in the company of the defendant. The terrain suggests this may have involved only driving by, or a brief stop in the road while remaining in an automobile. The road is heavily traveled even as late in the season as the Saturday view and in recent years at any rate, parking or walking in the road would be hazardous. The defendant also checked on the property from a car and visited it with a builder who so testified at the trial to consider the possibility of constructing a house on locus. This would seem to be difficult to accomplish where it is so narrow.

13. A view of the premises was enlightening. At the northwesterly line there is an area of approximately fifteen feet within the highway layout between the pavement and the southwesterly corner of Parcel 1, which decreases to about ten feet at the southeasterly corner. This area as well as locus is covered with beach grass, wild vines, poison ivy and a tangle of nature's making. The grade of the public way, the unpaved portion thereof and much of Parcel 1 is the same although the latter falls off steeply as distance increases from Route 6A. Clippings and other materials have been deposited thereon, but it is impossible to tell how long they have been there. There is no sign of a clothes line today, although a bird house of apparent recent origin is located thereon. A path through the under brush was evident on the ground and led to the garden about which Mrs. Segura testified. In light of the narrow width of locus, it is possible that part, if not all, of the garden is on land previously within the railroad right of way. Along the paved surface across from Lots 56 and 57 are several white highway posts of the type formerly used by the Commonwealth of Massachusetts. They effectively block access to locus in the area where they have been affixed.

The plaintiffs' title to the portion of Parcel 1 which falls within the lines of Lots 52-55 inclusive extended across Route 6A to land formerly of the railroad is good of record from 1935 when the trustee conveyed title thereto. Most, but not all, of the actions taken by the trustees at the direction of the beneficiaries from time to time and the status of the beneficiaries can be verified of record. To the extent that they cannot, I see no reason to doubt the statements made in the certificates of record, which were made over forty-five years ago and have not been challenged. My conclusion is buttressed by the fact that the trust in question apparently was organized to develop the real estate held by it. This was a business transaction, not a device to shelter the unsophisticated. Mr. Freeman, under whom the defendant claims, was a businessman who did not die until 1948 and had sufficient time to question the dealings of the trustee and the other beneficiaries if in fact they were not as reported in the certificates. I, therefore, find and rule that the plaintiffs have shown good record title to so much of Parcel 1 as is encompassed within the sidelines of the northwesterly line of Lot 52 and the southeasterly line of Lot 55 extended across Route 6A to the land formerly of the railroad.

The deed from Mrs. Freeman to the defendant conveyed only numbered lots, but the defendant claims that it should be construed to include the part thereof which falls within the extended lines of the numbered lots. As detailed above, however, Warren Freeman's interest in the trust terminated in the period between 1897 and 1916, and I have so found. There is no explanation of record as to the disposition of his interest, but the certificates by his successors and his failure to claim an interest before his death years later, are persuasive. Even if I were wrong, title would not be in the defendant even if we accept her contention that the conveyance of the numbered lots should be extended across the road. The trust as originally drafted required a conveyance by the trustee to thebeneficiaries or a sale of the real property to others in order terminate the trust. Title did not pass automically to the beneficiaries. Neither did Mr. Freeman retain a right of reverter of any kind when he conveyed the property in trust in 1897. I also find and rule that the defendant failed to prove title by adverse possession to said Parcel 1 by the Freemans or herself.

The plaintiffs do not have record title to the back part of Lots 56 and 57. Lot 56 (together with non locus Lot 59) was conveyed out in 1919 to Joseph V. Daly by the original trustee, Horace A. Spear, Jr. by deed dated November 28, 1919 and recorded in Book 369, Page 217 (Exhibit No. 3, abs. s. 43). Lot 57 was conveyed (together with non locus Lot 58) to said Daly by Horace A. Spear, Jr., trustee by deed dated August 22, 1920 and recorded in Book 382, Page 162 (Exhibit No. 3, abs. s. 44) and title thereto ultimately was acquired by the Mayos. It was not until 1965 that the language of deeds was broadened to include the land across the public way from Lots 56 and 57. Indeed the early descriptions make it clear that the parties were focusing on the land southwesterly of Route 6A. The trustee must have intended, however, to include within his grant the land on the opposite side of the public way, for there would have been no reason to retain title to a strip only about eight feet in width in this location, and I so find and rule. The deeds in the chain to both Lots 56 and 57 accordingly are reformed to include the appropriate part of this land. It follows that title to parcel one may be registered and confirmed in the plaintiffs subject to such matters as may appear in the abstract and are not in issue here.

Judgment accordingly.


[Note 1] The former Railroad land is shown on the filed plan of Alton C. Churback, et al, Trustees of Chatfield Equity Trust and by the Examiner's Report on the Assessors' Certificate to now be owned by plaintiffs.

[Note 2] The filed plan was updated by the surveyor on March 29, 1982.

[Note 3] All recording references herein are to said Registry of Deeds unless the context otherwise suggests.

[Note 4] This instrument alleged an assignment of the interests of Eugene Bonney (not of record) and of Caleb O. Davis (recorded) to the other beneficial interests. There has not been an explanation of record as to the devolution of Warren A. Freeman's original one-ninth interest. One Evans S. Spear does appear as a beneficial owner at this time although not originally a party. The assumption is that he may have purchased the Freeman share.