MISC 105830

August 12, 1988

Essex, ss.



This cause came on to be heard upon the plaintiff's motion for leave to file a second amended complaint and her motion to amend the court's judgment. The plaintiff brought a claim of adverse possession of certain upland along the Danvers River in Danvers, Massachusetts, record title to which upland rested in the defendant. The plaintiff's first amended complaint, on which the case was tried, defined the area being claimed as that shown on an attached plan, Exhibit A to the first amended complaint. After a trial extending over ten days, the court ruled that the plaintiff had proven her claim, and adjudged her to be the owner of an area defined by two encroachment plans that were referenced extensively at trial and which show roughly the same area of adverse possession as shown on Exhibit A to the first amended complaint. These plans show that where the area being claimed approaches the river, it is bounded by a line that follows the approximate high water line of the river and does not encompass any portion of the adjacent tidal flats. In a footnote to its decision, the court stated that because none of the pleadings in the case contained any claim of title to the flats, it was not necessary to reach the issue at that time.

The plaintiff's instant motion for leave to further amend her complaint is based on Mass. R. Civ. P. 15(b), which states:

[w]hen issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

The plaintiff contends that the issue of title to the tidal flats adjacent to the area of adverse possession was tried with the consent of both parties, and that she should be given leave to further amend her complaint to add a claim to the flats. Presumably, the plaintiff is referring to the evidence she presented as to activities such as swimming, boating, and clamming that she and her family conducted in the area of the flats. On that point, the court specifically found that the issue of adverse possession of the flats had been raised, at least impliedly, and that the plaintiff's proof was insufficient. Other than this attempt to prove adverse possession of the flats, no claim to them was made on the record until the plaintiff did so in her post-trial memoranda and requests for findings and rulings.

The theory underlying both of the plaintiff's present motions is that because she proved title to the upland by adverse possession, she gains title to the tidal flats adjacent thereto as a matter of law. As will be explained more fully infra, the court did not after trial, and does not now, accept the plaintiff's contention. Because the plaintiff's claim to the flats was not made prior to or during the trial, and because the court did not accept the legal theory on which that claim was based, the court confined its judgment to the area it found to have been actually possessed for the statutory period by the plaintif and her family. However, because the plaintiff's theory calls only for a further ruling of law based on the record already established and the facts already found by the court, and because the issue has been explored in depth by both counsel in detailed post-trial memoranda and oral argument, the court sees no prejudice in exercising its discretion under Mass. R. Civ. P. 15(b) to allow the plaintiff's motion for leave to further amend her complaint as requested. See Castellucci v. United States Fidelity & Guaranty Co., 372 Mass. 288 , 289-290 (1977).

Having allowed the plaintiff's motion for leave to further amend her complaint, the issue now before the court is whether to amend its judgment so that in addition to the portion of upland she was found to have adversely possessed, the plaintiff is declared the owner of the tidal flats adjacent thereto as a matter of law. As noted in the court's decision, the plaintiff failed to prove adverse possession with respect to the flats.

Since the Massachusetts Colony Ordinance of 1641-1647, it has been the law of the Commonwealth that title to land bordering on tidal waters extends to the mean low water line, or 100 rods from the mean high water line, whichever measure is less. See Drake v. Curtis, 55 Mass. 395 , 412-413 (1848); Porter v. Sullivan, 73 Mass. 441 , 445 (1856); Boston Waterfront Development Corp. v. Commonwealth, 378 Mass. 629 , 634-635 (1979). [Note 1] It also has been held that title to the flats follows that of the upland, and proof of title to the upland is prima facie proof of title to the flats. Valentine v. Piper, 39 Mass. 85 , 94 (1839); Drake, supra, at 413 (1848). It is prima facie proof only, however, because, constituting an interest in fee, the flats may be separated from the upland, for example by the conveyance of one without the other. See Valentine, supra; Drake, supra. The key question then, which never has been squarely answered in this jurisdiction, is: does proof of adverse possession of upland bordering on tidal waters carry with it title to the adjacent tidal flats as a matter of law, or does it amount to a separation of the upland from the flats with title to the flats remaining in the erstwhile upland owner?

In memoranda supporting her motion to amend the court's judgment, the plaintiff argues the former proposition, citing numerous cases from this and other jurisdictions. Not one of the cases on which the plaintiff relies, however, involves precisely the situation presented here. Valentine v. Piper, 39 Mass. 85 (1839), on which the plaintiff leans heavily, involved a dispute over tidal flats adjacent to upland long occupied by the plaintiffs and their ancestors, although a gap existed in the plaintiffs' chain of record title. Regarding that gap, the court in Valentine stated:

[w]here a great number of circumstances concur, such as peaceable possession of an estate, the presence of those, who upon any other hypothesis would have an adverse title, without claim, all tending to show an undisputed ownership on the part of those who set up such non-appearing grant, they have been considered as presenting so strong a presumption of fact, that a deed has been executed, that it is allowed to stand as proof of such deed.

The question of whether a grant should be presumed was put to a jury, and the judge instructed the jury that they could presume a grant from the heirs of the original owner to the plaintiffs' ancestors if the evidence satisfied them that such a presumption could reasonably be made, but that the rule of presumption as to twenty years' adverse enjoyment of an easement was not to govern the case (emphasis added). Although in her memoranda the plaintiff cites several cases stating the general proposition that the law presumes a grant whenever adverse possession for the statutory period is proven, the nature of the judge's jury instruction in Valentine makes it clear that the concepts are not to be equated, and that Valentine turned specifically on the doctrine of presumed grant and not on adverse possession for the statutory period. This better view, that the two concepts are distinct, is corroborated by distinguished scholars in the field.

Tiffany, for example, in section 1136 of his The Law of Real Property (3d ed. 1939) states:

[t ]he doctrine, occasionally asserted, that the long continued possession of land by one claiming as owner gives rise to the presumption of a valid conveyance to him or to the person under whom he claims, though ordinarily similar in its practical results to the statutes of limitation, is entirely independent thereof. It involves a presumption of the rightfulness of one's possession, while the statutes of limitation are by their terms applicable only when the possession is, apart from such statutes, wrongful.

Similarly, in volume III of American Law of Property at section 15.15 (1952), the author notes:

[w]hen the adverse possessor is claiming under the presumption of a lost grant, it will be readily perceived that there is a difference in the value of the respective elements of possession from what is the case when his title must depend upon the running of a statute of limitations. The assertion of claims of title or ownership and of occupancy as a matter of right will be of increased materiality as will payment of taxes, and noninterruption of or challenge to his possession; the extent of occupancy or use of the property and the length of the period will be of lesser importance.

Clearly, the doctrine of presumed grant is a legal fiction that permits courts to sanction the long, undisturbed possession of land by a party whose possession is arguably rightful. Where, as in the instant case, there is no evidence to suggest the rightfulness of the plaintiff's possession, and her claim is premised solely on the running of the statutory limitation on ejectment actions, there is no need to resort to the fictive presumption of a grant.

The court also notes that even if the plaintiff's contention is correct, that the presumption of a grant arises in all cases where adverse possession for the statutory period is proven, it does not follow inexorably that the plaintiff gains title to the tidal flats in question. First, there is nothing in the case law to suggest that such a presumption is conclusive, and evidence of record suggests that if it arose at all in this case, the presumption was rebutted. More importantly, though, even if the presumption remained, it should not, in these unusual circumstances, enable the plaintiff to circumvent the longstanding requirements of adverse possession. One of the key elements of the doctrine is its "openness" requirement, which enables a plaintiff to fairly argue that the true owner was on notice of the adverse use and failed to bring an ejectment action within twenty years. Here, the several activities the plaintiff and her family engaged in on the flats were fully within the broad rights of the public, and thus did not put the defendant or his predecessors on notice that an ownership interest in the flats was being claimed. It would be an unwarranted overburdening of the doctrine of presumed grant to permit the plaintiff, by use of that fiction, to appropriate to herself the benefits of the colonial ordinance of 1641-1647 in contravention of one of the chief policy considerations underlying adverse possession.


The colonial ordinance of 1641-1647 did not bestow upon littoral landowners a new, separate title to the tidal flats adjoining their land. Rather, its effect was to extend the owner's existing title so that it encompassed the flats as far as the mean low water mark or 100 rods from the mean high water mark, whichever measure was less. Conceptually, then, the plaintiff here proved adverse possession of only a portion of the land owned by the defendant. Because the plaintiff did not enter upon this land under color of title, she gains title only to that area she was adjudged to have actually possessed. Her adverse possession has the effect of separating the upland from the adjacent tidal flats, and title to the flats remains in the defendant. Accordingly, the plaintiff's motion to amend the court's judgment is denied. [Note 2]


[Note 1] The fee interest thereby conferred in the tidal flats is subject, however, to the rights of the public to fish, fowl, boat, swim and float in

that area. See Butler v. Attorney General, 195 Mass. 79 , 83-84 (1907); Opinion of the Justices, 365 Mass. 681 , 685-686 (1974).

[Note 2] Although never considered frontally by our appellate courts, the trial court's approach finds support, albeit in dicta, in a case cited by the plaintiff herself. In Drake v. Curtis, 55 Mass. 395 (1848), a dispute over tidal flats, the court made the following observation:

[t]he case then begins with the assumption, that the demandant has established a prima facie title, by deed, to the upland or shore bordering on tide water, to which the land in controversy would belong, as parcel, if not alienated and separated by a deed of the proprietor, or by a disseizin and lapse of time, which, in law, would work such alienation (emphasis added). 55 Mass. at 411.

While in the above passage the Drake court was contemplating the reverse of our own situation, that is, disseisin with respect to tidal flats rather than adjacent upland, the logic underlying the court's position clearly flows in both directions.