PHILIP C. MACALLISTER and PATRICIA A. MACALLISTER vs. VELIA DeSTEFANO.

This complaint is brought under the provisions of G. L. c. 185, section 1 to register and confirm title to a certain parcel of land bordering Nye Road and Ames Way in the Centerville section of Barnstable, Massachusetts, containing 4.46 acres total, (hereinafter locus), all as shown on a plan of land entitled "Land Court Petition Plan of Land in Barnstable (Centerville) Mass. Petitioner Philip C. and Patricia A. Macallister, Scale 1"=50' October 18, 1981, Baxter Nye, Inc. Registered Surveyor" filed with the complaint and entered into evidence as Exhibit 1. Title is claimed of record and by adverse possession.

An answer was filed entitled "Objection of Respondents" disputing Plaintiffs' ownership to the Northeast one-half to the property claimed by them on their filed plan as shown on Appendix A. [Note 1]

The Attorney General and the New England Telephone and Telegraaph Co. filed appearances, later withdrawn, subject to both seeing the final decree prior to its issuance herein.

The northeast portion of the locus sought to be registered and also claimed by the Defendants herein, is the subject of a complaint for registration filed by the Defendants, being Land Court Case No. 40322. One Bernard Greenhood, a Land Court Examiner, was appointed to examine the title to both parcels. In both cases, No. 40322 and 40930, he reported that the plaintiffs therein "do not have a good title as alleged and proper for registration." (See Exhibits 1 and 3 herein). He based his report on his inability to determine the location of the boundary line between the parcels. Land Court Case No. 40322 was not tried but will of necessity be affected by any decision rendered herein, involving as it does the northeast portion of locus and the disputed line. In addition, there is still a third case involving the same parties, originally filed in the First District Court of Barnstable being Case No. 18118 therein, on August 26, 1981. It was later transferred to the Superior Court of Barnstable County, and became Superior Court Case No. 41409 and still later, was transferred to the Land Court where it became Land Court Miscellaneous Case No. 104338. This matter basically involves a damage claim for slander of title and likewise was not joined herein but awaits further action.

Trial was held on Land Court Registration Case 40930 on July 13, 1982 with four witnesses being called by the Plaintiffs herein. Briefs and "Requests for Rulings" were filed on September 27 and 28, 1982. No witnesses were called by the Defendants. Thirteen exhibits were introduced into evidence, all of which are incorporated herein for the purpose of any appeal.

Two questions are involved: 1, Do the Plaintiffs have good record title suitable for registration and 2, If not, do the Plaintiffs have good title suitable for registration by adverse possession.

I. Do the Plaintiffs have good record title suitable for registration?

The Court answers this in the affirmative.

Plaintiffs trace their title back to a deed from John B. Cornish to George F. Meiggs dated September 22 , 1883, recorded in Book 1554, Page 255. (Exhibit 6) [Note 2] The first course in the description in this deed, namely, "Beginning at a certain stake and stone in the road leading to Lumbert's Mill thence running a westerly course by woodland belonging to John B. Cornish to a stake and stone and land of Isaac Crocker, Jr.," creates the difficulty with the title to locus. Presumably, this is the deed that Defendants' refer to in their "Request for Findings of Fact" as "petitioners' source deed." The same description was carried over by reference in a deed from George Meiggs to Russell Marston (Exhibit 7) and in the deed from Russell Marston to Sara Meiggs both dated August 12, 1899, (Exhibit 8 herein). Locus, as shown on Appendix A, reveals that this course runs northeasterly rather than westerly as prescribed in the above deeds. The Defendants argue for a "northwesterly" interpretation of the "westerly" course as called for in these deeds, even though such a line passes through a cranberry bog and a pond. Their file plan in Land Court Case No. 40322 (Exhibit 4) shows such a line. A change in the description of locus was found first in the deed from Sara C. Meiggs to Alfred A. Rosengren, dated August 30, 1911, recorded in Book 310, Page 597, Exhibit 9, wherein the first course reads "thence Northerly by said Cornish Woodland to a stake and stones set by Woodland now or formerly of Isaac Crocker's, Jr." [Note 3] This same description is used in later deeds first of Rosengren to Victor Adams, dated September 16, 1941, recorded in Barnstable Deeds, Book 588, Page 47 on Exhibit 10, from Victor Adams to John S. Harmon, et ux dated April 15, 1968, recorded with Barnstable Deeds, Book 1455, Page 205, Exhibit 11, and in the deed from John S. Harmon, et ux to Plaintiffs herein dated March 12, 1971, recorded with Barnstable Deeds, Book 1583, Page 148 in Exhibit 12. This line corresponds with that shown on Appendix A and has been described thus from 1911 to date. It skirts the cranberry bog and includes the area where Plaintiffs' house was built in 1972. The filed plan in Land Court Case No. 40322, Exhibit 4, shows the westerly line claimed by Plaintiffs in that case (defendants herein) as shown in blue on Appendix A. It bisects a small pond and a cranberry bog. In area, it more closely corresponds to the two and one-half acres set forth in the various deeds from 1883 to date than does the locus claimed by Plaintiffs herein.

William C. Nye, a professional land surveyor, was called as a witness for the Plaintiffs. He had assisted in the preparation of the plan, Exhibit 5, dated June 4, 1971 and he was the engineer for the filed plan, Exhibit 2, dated October 19, 1981. His testimony was that the first course in the Cornish to Meigg deed, Exhibit 6 herein, designated as westerly was incorrect and that it was corrected in the 1911 deed from Meiggs to Rosengren, Exhibit 9. If the description in the original deed, Exhibit 6, were followed to the letter, there would be no closure of the parcel. Reference to Appendix A will confirm that a strict westerly course from the starting point marked "X" on this plan by the Court would run south of Ames Way. This is obviously not correct. Thus, while there may be nothing ambiguous in the terms "westerly" itself as claimed by the Defendants', reference to the plan shows the impossibility of such a course. Mr. Nye's explanation of the fact that an error had been made in the earlier deeds corrected over 70 years ago in 1911 is a reasonable one under the circumstances.

Defendants do not claim that the original "westerly" should be followed in their Land Court petition in case number 40322. Rather, they claim the line ran northwesterly even though this would result in bisecting a pond and a cranberry bog as shown on Appendix A, a highly unlikely event.

The Defendants herein presented no evidence of their own to refute the opinion of Mr. Nye. It is interesting to note that Defendants did not call Philip D. Holmes, the civil engineer and land surveyor who drafted the plan filed by them with the Court in Land Court Case No. 40322, Exhibit 4 herein. They make much of the fact that the original deeds called for two and one­half acres of land whereas the locus on Appendix A contains roughly four and one-half acres. The disparity in acreage, while a wide one under the circumstances, still is not so unusual in Cape descriptions.

The Court would point out that in the earliest of the plans before the Court, drawn by Mr. Nye in 1971 (Exhibit 5) the starting point was located as being "Old Post & Stone Fnd " as shown as point "X" on Appendix A. The line as surveyed running almost due north, terminated at some stones found at an old wood road. There was testimony that the cleared area ran some thirty feet back from the cranberry bog and that beyond this was woodland. The description in the 1883 deed (Exhibit 6) bounded the line by "woodland belonging to John B. Cornish" and this same "woodland" description has been used in the deeds thereafter, including the corrected deeds after 1911. Thus, this agrees with the plan of locus in the present case. The plan filed by Defendants in Case 40322 shows the line bisecting a cranberry bog and pond, and not bounded by woodland.

From 1911 on, the description of locus is clear cut and is accurately depicted on the Plaintiffs' filed plan, Exhibit 1. The Court agrees that the description as corrected in 1911 is the correct one and thus finds and rules that the Plaintiffs have proven good record title suitable for registration to locus.

II. Do the Plaintiffs have good title suitable for registration by adverse possession

If the Court is found to be wrong in its ruling on record title there is ample evidence to prove title is in the Plaintiffs by 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). Color of title in an adverse possession claim is an assertion of a claim of ownership based on an instrument of title, such as a deed, even though the instrument does not pass a valid title. The advantage which a person may gain from that doctrine is that the activities relied on to establish adverse possession reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant. Norton v. West, 8 Mass. App. Ct. 348 (1979) citing Dow v. Dow, 243 Mass. 587 (1923) As the Court has found that the Plaintiffs have in fact shown record title to at least a portion, if not the whole locus, they are entitled to the benefit of the color of title doctrine.

Applying these principles to the facts in issue herein the Court finds that at least from the conveyance in to Victor F. Adams from Alfred A. Rosengren on December 16, 1941 (Exhibit 10) until 1979 a cranberry bog was in full operation as shown on Appendix A. Indeed, the cranberry bog was in existence in 1941 when Victor F. Adams purchased it and had been operated by Rosengren and perhaps others before him for an unknown number of years prior to 1941, although there was no evidence of its being in operation in 1883.

Victor Adams testified that he operated the bog on locus from 1941 through 1967, taking up its operation from that of Mr.Rosengren. Mr. Adams operated this bog in addition to several others including one that he got to by going east on Ames Way as shown on Appendix A. Ames Way was little more than a cart road which he used to traverse with his truck. He testified at length as to the operation of cranberry bogs in general and this bog on locus, named White Pine Bog, in particular. Cranberry bogs must be sanded every three or four years to keep down insects and to keep the plants healthy and Mr. Adams saw to this. From mid April through the fall harvest he went to the bog two to four times a week checking on it. On weekends he worked on the bog, pruning and sanding. In the winter he went there at least weekly to inspect this bog and others he owned. Around the edge of the bog on locus, Adams testified that he cut back the brush some 30 to 40 feet, dug the pond shown on Appendix A for irrigation purposes, put in a sprinkling system, the remains of which are still there, maintained the pump and pump house and the dirt road around the bog as shown. He cultivated the cranberries and harvested crops from 1941 to 1967, keeping excellent records of his yield from this and four other bogs owned by him from 1948 through 1965. (Exhibit 13). He located the stake marked X on Appendix A but had no occasion to use the area to the extreme northeast of locus. For twenty­seven years he paid the real estate taxes.

To the same effect was the testimony of the Plaintiff, Mr. Macallister, after he purchased the cranberry bog from John S. Harmon in 1971 (Exhibit 11). In addition to maintaining the bog, Mr. Macallister cleared around the bog so that he could place a house on it. He put in the foundation of the house located as shown on Appendix A in February of 1972. He was there everyday until August of 1972 when he moved into the four bedroom Garrison type house he built with his wife. Mr. Harmon, from whom he purchased the property, walked the bounds of the property with plaintiff, Mr. Macallister. After he sanded the bog in 1977 the weeds started to get ahead of him and he picked in 1978 for the last time. His cranberries were sold to the Ocean Spray Company each year. Taxes were paid on the property by him annually. His wife testified that she, her husband and their two children had lived there from 1972 until 1979 and that nobody ever challenged their title to the premises. In 1979 they moved to another house and rented the house on locus. They had already given up cultivating the bog. The Court finds that on all the evidence ample use and possession of the locus by Plaintiffs and their predecessors back to at least 1941 was shown. In all probability the same use may well have been made of the area from 1911 on. This use and possession was actual, open, notorious and continuous from at least 1941 to the present time to the exclusion of all others, well over the twenty years required by G. L. c. 260, §21. The Court rules that Plaintiffs have proven title by adverse possession.

Plaintiffs filed 33 suggested "Findings of Fact" and 7 "Requests for Rulings of Law" all of which the court grants.

Defendants filed 10 "Proposed Findings of Fact" and the Court grants Numbers 1, 2, 6, 7, 9 and 10 and denies the others. The Defendants also filed 9 "Proposed Rulings of Law" and the Court grants Numbers 2, 4, and 5 and denies the remainder.

Decree Accordingly.

exhibit 1