THOMAS H. CHIRGWIN, JR. vs. KENNETH DEITZ.

Plaintiff filed a petition under the provisions of G. L. c. 185 §l (a) seeking to register and confirm title to a parcel of land described in the petition and situated in the Town of Edgartown, Dukes County. The locus, containing approximately 11.6 acres of woodland, is bounded northeasterly by Ben Tom's Road (also known as Penny Wise Path), southerly by the Massachusetts State Highway (also known as Edgartown - West Tisbury Road), southwesterly by the land of Philip J. Norton, and northwesterly by the land of George E. Pessotti. The locus is more completely described in the petition and shown on the file plan. Plaintiff, an Edgartown resident, is the sole legatee and devisee of one William J. Bell who was the record owner of the locus at the time of his death in 1949. The plaintiff relies on the record title set forth in the examiner's abstract.

Defendant, also an Edgartown resident, filed objections claiming title to the entire premises described in the petition by adverse possession. He also claimed the locus through inheritance of the property from his great grandmother, Julia A. Harrington. However, at trial, defendant waived the inheritance claim.

A stenographer was sworn to record and transcribe the testimony. Ten witnesses testified and nineteen exhibits were introduced into evidence and are incorporated herein for the purposes of any appeal.

Based on all the evidence, the Court finds the following facts:

1) This case concerns title to approximately 11.6 acres of vacant, unenclosed woodland located on the northerly side of Edgartown - West Tisbury Road. Said Edgartown - West Tisbury Road was laid out as a State Highway on June 26, 1923.

2) Said 11.6 acres of woodland are bordered northeast by "Ben Tom's Road", an ancient way running by the locus and on into the heavily-wooded hinterlands of Edgartown. At one time, Ben Tom's Road was referred to as the Penny Wise Path, a cartpath used by local inhabitants. As the surrounding land developed, the path was widened by more frequent use. Today, Ben Tom's Road may be described as an eight to ten foot wide dirt road which has not as yet, been designated a public way by the Town of Edgartown. Recorded instruments are silent about rights of others to use Ben Tom's Road (such portions thereof as are within the limits of the locus) Plaintiff has admitted any such rights in his petition.

3) By deed dated May 30, 1885, recorded in Book 81, Page 124, [Note 1] Edward W. Chadwick, Administrator of Joseph V. Kelley, by license granted him by Dukes Probate Court on June 2, 1884, conveyed locus to Joseph Furlong.

4) Joseph Furlong died intestate on January 5, 1914, Dukes Probate D3/388.

5) On September 3, 1923, William E. Deitz, the defendant's father, filed a petition to be appointed Administrator of the estate of Joseph Furlong, which was allowed December 4, 1923. However, no bond was approved, no letter was issued, and the decree was revoked by Dukes Probate Court on March 4, 1924.

6) On March 4, 1924, William J. Bell filed a petition to be Administrator of the estate of Joseph Furlong, as "the only heir at law and next of kin of said deceased." On April 15, 1924, William J. Bell was appointed Administrator of the estate of Joseph Furlong.

7) On July 28, 1949, William J. Bell died testate, Dukes Probate 05/2412. He left his entire estate, which included the locus, to Thomas H. Chirgwin, Jr., the plaintiff.

8) The defendant's father, William Deitz, moved his family from Boston back to Martha's Vineyard in 1928. The defendant, Kenneth Deitz, was then nine years old. The family's home was located approximately a half mile from the locus in a southeasterly direction towards Edgartown.

9) In late 1927, shortly before the Deitz family returned to the Vineyard, a significant fire burned approximately eight to ten miles of the southern half of the island. In 1928 the defendant began walking on the locus regularly with his father to gather and cut dead oak to heat their home during the winter months. The defendant estimated that he and his father removed at least a few cords of wood from the lot annually, and, in this way, cleared the locus of all fire-killed oak. The defendant gathered wood from the locus for heating purposes from 1928 to approximately 1950 at which time the family converted to oil heat. The defendant also continued to cut and gather wood off the locus to heat an auto repair shop which he built in 1938. This shop was also located approximately a half mile from the locus. The defendant handcrafted a motorized saw which he used in later years to cut wood. The saw made noise when in use.

10) Sometime in either 1938 or 1939 the defendant and his father carved out an access road running in a southwesterly direction from Ben Tom's Road into the locus in order to more conveniently remove wood by motor vehicle. The road was sufficiently wide enough to allow the defendant and his father to drive in, turn a vehicle around and drive out. The defendant's father, sometime in 1938 or 1939, frustrated by people pulling in that access road and depositing trash on the locus area, positioned an old piece of cable across the road. The defendant recalled that piece of cable remaining in place for at least four or five years.

11) The defendant's father, also in 1938, posted a "No Dumping" sign in the southeastetly corner of the locus, approximately thirty yards in from the State Highway on the westerly side of Ben Tom's Road. This sign was approximately a thirty-six inch by six inch wooden block, painted white with black letters, saying "No Dumping" signed "W. E. Deitz". There was no indication on the sign as to any specific metes and bounds of an area onto which one was restricted from dumping. The weathered sign was last seen in the 1950's. It was visible from Ben Tom's Road, an infrequently travelled path at that time. The sign could have been seen from the State Highway when the leaves were not in foliage.

12) From approximately 1937 to 1950, the defendant, a self-employed auto mechanic, would junk, from as few as four to as many as a dozen, cars on a portion of the locus near the midpoint area of its northwesterly border, by the land owned by George E. Pessotti. The defendant would haul these cars onto the locus with a Ford truck down short access roads and position them so as to camouflage the unsightly equipment from public view and also to prevent vandals from stealing parts.

At a later date, the defendant deposited a panelled truck one hundred yards down another access road cut into the locus heading northwest from the Mass. State Highway.

The junk cars and panelled truck could not be seen from the Mass. State Highway but might have been viewed while travelling in a northwesterly direction on Ben Tom's Road when there was no foliage on the trees.

13) Approximately six times a year, from 1937 to 1950, the defendant, sometimes accompanied by a co-worker or friend, would go on to the locus to the site of these junked vehicles, and remain, for an hour or two at a time, to work on or pull parts from the cars.

14) After removing the castings from the residue of the remaining cars sometime in either 1949 or 1950, sheet metal automobile parts remained. The decaying parts were observable at the time the Court viewed the locus area.

15) After 1950, the defendant would go on to the locus, approximately once or twice a year for wood to repair different structures about his home. He repaired chicken coops with approximately a dozen, eight foot high, three inch thick oak posts taken from the woodlot.

16) The defendant and his father never enclosed the vacant woodland by means of fences, walls or other noticeable and permanent objects to show an established or claimed boundary line.

17) The defendant and his father did not build any structures on the property, graze animals or participate in any agricultural activities on the locus.

18) In approximately 1950, the defendant drove on to the locus with a half ton truck to remove six tons of humus for top soil for his homestead. Around this same period of time, he also dug up and removed six tree shrubs from the northeast corner of the locus for home landscape purposes.

19) Since 1948 one week has been set aside annually for legal deer hunting on Martha's Vineyard. During this week the defendant and others travel with their dogs over the locus' wooded area searching for deer.

20) Almost every day from 1957 to 1964, the defendant's daughter would ride her horse, accompanied by five or six friends also riding their horses, over the locus for hours at a time. The children would construct horse jumps with fallen tree branches across short access roads and Ben Tom's Road.

21) The defendant's father, aware that he was not the record owner of the locus, never paid a tax bill he received.

22) Although having been contacted by the Assessor's Office of the Town of Edgartown in 1968 to pay taxes, the defendant, would not pay taxes on land he also believed he had no record title to.

23) The defendant did not probate his father's estate upon his father's death in 1967. Instead, on March 19, 1974, he filed for voluntary administration in the estate of his father in which he stated that his father possessed an estate consisting only of $430 of personal property.

24) No survey plan based upon the work done by Hollis Smith, a local surveyor hired by the defendant to survey the locus property in 1968, has been recorded in the Dukes County Registry of Deeds. The plaintiff offered to reimburse the defendant for the cost of the survey.

25) From 1952 to 1957, a Mr. Black cut a boat stake when clamming with the permission of the defendant.

26) William Bell, through inheritance from Joseph Furlong, held record title to the locus from 1924 until his death in 1949 at which time he deeded the property to the plaintiff. William Bell lived within walking distance of the locus wood lot. He often told a long-time neighbor he was going to the wood lot. He stored wood in his backyard.

In order to establish title by adverse possession, there must be proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 (1964), G. L. c. 260, §21. The burden of proving adverse possession extends to all of the elements of such possession and if any single element is left in doubt, the claimant cannot prevail. Mendonca v. Cities Service Oil Co. of Pennsylvania, 354 Mass. 323 , 326 (1968).

The purpose of the requirements of adverse possession, that the non-permissive use by another be actual, open, notorious, exclusive and adverse, is to put the true owner on notice of the hostile activity of possession so that he may have an opportunity to take steps to protect himself. Ottavia v. Savarese, 338 Mass. 330 (1959). There need not be actual knowledge of the use by the owner. The use must be made without attempted concealment. It must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision of the property. The nature of the use may be such as to constitute notice to all the world. LaChance v. First National Bank and Trust Co. of Greenfield 301 Mass. 488 (1938); Foot v. Bauman, 333 Mass. 214 (1955).

It is necessary to examine the topography and character of the land in dispute to assess what might reasonably constitute notice to the world that someone was using this particular property as their own.

The Massachusetts Supreme Judicial Court has been especially reluctant to find adverse possession when the land involved is, as in this case, unenclosed brushland or woodland. The Court has always held that to establish such title there must be evidence of not only a substantial enclosure, but also an actual occupancy, and that the acts done on the land be sufficiently notorious to warrant a presumption that the owner had notice thereof. Dow v. Dow, 243 Mass. 587 , 593 (1923).

Acquisition of title through adverse possession is a fact to be proved by one asserting the title. The burden of proof is upon the adverse possessor to establish all the facts necessary to prove his title. Holmes v. Johnson, 324 Mass. 450 (1949). That burden is somewhat more difficult in the case of nearly twelve acres of heavily wooded oak territory on a sparsely populated island, for it has been held that evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city. Bowen v. Guild, 130 Mass. 121 , 123 (1881) ; Houghton v. Wilhelmy, 157 Mass. 521 , 524 (1893) ; Tinker v. Bessel, 213 Mass. 74 , 76 (1912).

The defendant maintains that he and his family made continuous use of the locus as a woodlot from 1928 to approximately 1950; that they in fact cleared the locus of all fire-killed oak at one point during that time period. It has been held that evidence of occupation of wild, unenclosed land, by cutting firewood and bushes and trimming the trees thereon, and, in one instance within twenty years, by cutting off the entire growth of wood upon the land and leaving it to grow over again, is insufficient to establish title by possession, although such acts are within the knowledge of the owner. Parker v. Parker, 1 Allen 245 (1861). The defendant never enclosed the lot by means of fences, walls or other noticeable and permanent objects to show an established or claimed boundary line. The locus, a tract of unenclosed, vacant woodland, was accessible for public consumption of wood. The defendant himself admitted that there was no way of knowing how many people had cut wood off that same woodlot. Since wood was a significant source of fuel for heating purposes on this rustic island during the early half of this century, it may be inferred that there were others sharing the locus' dead timber.

There is further doubt about the exclusiveness of the defendant's possession. The "No Dumping" sign was erected to prevent people from dumping trash in a specific area, namely by pulling in the particular road that the defendant had carved out to provide vehicular access to the woodland. Anyone might have dumped trash or junked parts in a more remote area of the locus with or without the defendant's knowledge or permission. One witness testified that anyone seeing the sign would not really know how large a parcel it was referring to. This same witness testified to personally doing activities on the locus for a period from 1939 through 1946 and to never observing anyone actually cutting wood on the lot. One witness who was a long time neighbor and abutter also did not recall seeing anyone on the locus during the time period in issue.

There was further evidence as to the non-exclusivity of possession with regard to hunting activities on the locus. Many travelled over the locus with their dogs hunting deer. The defendant never tried to stop anyone from hunting on the lot.

With regard to the issue of the openness and notoriousness of the defendant's possession, the Court must consider several of the defendant's own admissions. The defendant used part of the locus as a storage site for junked automobiles. The defendant testified that he was in fact trying to the best of his ability to hide the cars from public view and that they were no warning to anyone that he was claiming the property as his own. One witness, a neighbor, could not say as a matter of fact that the cars were the property of the defendant.

The defendant's use was more intermittent than continuous. The defendant's testimony is contradictory in regards to this element. The defendant speaks of "only seasonal chopping of wood" in the early years to "in there once or twice a year (after 1950) for wood" to repair chicken coops. He later testified to being in there to work on the cars between 1937 and 1950 "probably half a dozen times a year" to finally saying, "I was there (on locus) almost constantly."

The acts which the defendant contend constitute actual, open, notorious, exclusive and adverse possession of a vacant, unenclosed woodlot are analogous to those found in Cowden v. Cutting, 339 Mass. 164 (1959). In Cowden, the adverse claimant and her predecessors in interest had cut firewood and lumber on the locus, removed fallen trees therefrom, posted no-trespassing signs and maintained a road on the locus for access to their land. The Court concluded that "It is well estabished that acts such as those found by the judge or shown by the evidence do not require a conclusion of disseisin of wild or wood land not fenced or reduced to possession by cultivation." Id. at 168.

Here, the defendant's claim is even less convincing than the claim in Cowden, Id. The Court does not question that the defendant and his father used the locus at times, but there is also convincing evidence that numerous area residents also made use of the locus. The defendant's only discriminating use was in junking cars on a remote part of the locus. He was discarding the cars as inconspicuously as possible and not by this action asserting an open and notorious right to land which was unenclosed, vacant woodland. The defendant and his father continuously refused to honor the tax obligations of a record owner knowing they were not such, and the "No Dumping" sign arguably asserts fewer possessory rights than the advertised prohibitions against all entries in Cowden, Id. The defendant has neither cultivated, improved, fenced nor resided on the property.

In recent years the Supreme Judicial Court appears to have adopted a more liberal view of the acts that are necessary to establish title to unenclosed vacant land by adverse possession. Kershaw v. Zecchini, 324 Mass. 318 , 320 (1961); Collins v. Cabral, 348 Mass. 767 , 797 (1965). However, in Kershaw, which was a tacking case, the locus involved less than 5,000 square feet, the defendant's predecessor placed bounds at each corner of the lot and clearly conducted activities on the locus in an open and notorious manner. In Collins, fruit was grown and harvested and grass was mowed on the locus. It was regularly used for picnics, a septic tank was installed and the area filled, graded and seeded. Neither of these cases compel the conclusion that title to nearly twelve acres of unenclosed, unimproved, rural woodland was established by the type of uses conducted on the locus by the defendant and his father.

For all the foregoing reasons, I rule on all the evidence that the defendant has not sustained his burden of establishing the acquisition of title to locus by adverse possession.

Accordingly, I further rule that the plaintiff as the record owner is entitled to a decree of registration of the locus subject to such other matters as are disclosed by the examiner's abstract which are not in issue.

Decree accordingly.