JAMES M. KNOTT vs. PAUL F. BERRY and JOYCE A. BERRY

This cause came on to be heard upon the plaintiff's request for an order that the defendants remove their dwelling house from a 4.63 acre parcel of land at 113 Puddon Street, Northbridge, Worcester County, Massachusetts ("locus") and repair damage to the locus caused by such removal. The defendants' counterclaim alleges ownership to locus under deed and by adverse possession and they ask that they be declared record owner of locus.

A trial was held on December 7, 1987 at which a stenographer was sworn to record and transcribe the testimony. Four witnesses testified and ten exhibits were introduced into evidence which exhibits are incorporated herein for the purpose of any appeal.

I find the following:

1. The plaintiff is the owner of a 76 acre parcel of land in Northbridge, Worcester County, Massachusetts by deed dated May 1, 1979 from the Bleecker Associates, Inc., recorded in the Worcester Registry of Deeds, Book 6725, Page 43. [Note 1]

2. The plaintiff's chain of title flows from a deed from Paul Whitin Manufacturing Co. to Riverdale Woolen Co. dated September 21, 1894 recorded in Book 1455, Page 176. This deed describes the parcel by metes and bounds and encompasses the locus.

3. The defendants claim title by virtue of a deed from Otto Valdivia and Silvia Gonzalez dated June 13, 1983 recorded in Book 7783, Page 150 in which the locus is referred to as five acres, more or less, and is referenced on a plan entitled "Plan of Land owned by Henry Ebbeling, Northbridge, Mass., December 1953" ("plan"), recorded in Plan Book 196, Plan 75. Henry Ebbeling was the predecessor in title to Otto Valdivia.

4. The defendants' record chain of title runs from a deed from Engele Baarda to Edward Turner dated June 22, 1927 at Book 2441, Page 35. The Baarda title had been acquired from one Fowler who had acquired title from Paul Whitin Manufacturing Co. The bounds of the Baarda deed, however, appear to be land east of the locus and east of land of Riverdale Woolen Co.

5. Henry F. and Teofila Ebbeling acquired title to locus on March 26, 1954 from Henry's parents, T & D Ebbling and Minna Koopman, by deed recorded at Book 3578, Page 329. The deed describes the locus.

6. Prior to his purchase of locus, Henry Ebbeling walked the locus to the boundaries with a surveyor and a plan was prepared and recorded at Plan Book 196, Plan 75 depicting the locus. The locus was surrounded by stone walls approximately 30 inches wide on all boundaries and had an old cellar hole about 12 feet by 12 feet with collapsed walls and an 8 inch diameter birch tree growing in the center.

7. Between 1954 and 1956, Henry Ebbeling made openings in the stone wall boundary on Puddon Street for vehicle access and for a driveway to the old stone foundation. The foundation had existed on the property at least as far back as 1938. In 1954, Ebbeling removed the birch tree growing inside the foundation, bulldozed the foundation and cleared trees and brush from the area. He then poured a modern concrete foundation with dimensions of 32 feet by 26 feet, 3 feet to 3 1/2 feet above grade. This foundation was set back approximately 50 feet from Puddon Street. Mr. Ebbeling placed rafters, stringers and subflooring in the foundation. He then roofed and covered the foundation with tarpaper as it was his intention to live in the foundation until he and his wife had enough money to finish construction on the house.

8. Between 1954 and 1956, Mr. Ebbeling and his father dug a 21 1/2 foot deep well on the locus and capped the well with a cement ring approximately 2 1/2 feet above ground. Mr. Ebbeling constructed a driveway from Puddon Street to the foundation. During the construction, 12 to 15 trees were removed to clear the driveway.

9. Between 1954 and 1956, Henry Ebbeling acquired an old Blue Sunoco gas station building approximately 12 feet by 16 feet. He moved the building to the locus and stored tools and lumber in it while completing the foundation.

10. In 1956, Henry Ebbeling's wife Teofila died.

11. Between 1956 and 1967, Henry Ebbeling continued to come to the locus to remove trees around the foundation, clear brush and cut pine logs in the rear portion of the locus. Mr. Ebbeling brought the pine logs to a mill to saw into lumber and then stored cut lumber in the foundation. At one point, Mr. Ebbeling had 10,000 feet of lumber stored in the foundation. After his wife's death, Mr. Ebbeling and his daughter resided with his mother six miles from locus. He abandoned his plans to complete the house yet continued to visit the locus and to use the foundation and old gas station for storage purposes. Mr. Ebbeling paid tax bills on the locus from 1954 to 1966.

12. Mr. Ebbeling was never questioned upon his ownership of the locus from 1954 to 1967 nor did anyone trespass or enter upon the property or made claim against his title.

13. In or about 1965 or 1966, Henry Ebbeling constructed a new home on Sylvan Road and cleared his tools from the old gas station. He used lumber stored in the foundation in the construction of his new home. He then removed the gas station and took the siding up to his Sylvan Road property. During this period, he maintained the closed in cellar, driveway and well which would have been obvious to anyone inspecting the property.

14. In January of 1967, Henry Ebbeling sold the locus to Otto and Rosemarie Valdivia along with his plans for the completion of the house. The Valdivias partitioned the foundation, cemented the floor and lived in it with their two children. They constructed a septic system and used the well dug by Henry Ebbeling and his father.

15. On or about 1969, the Valdivias constructed a house upon the foundation with a breezeway and garage. A lawn and a 100 foot by 150 foot garden were also put in southwesterly of the house after removing stumps and stones.

16. Counsel for both parties here stipulated that the acts from the time of the erection of the house in 1969 by the Valdivias forward are sufficient to satisfy the requirements of adverse possession.

17. The plaintiff, James M. Knott, may well be record owner of the locus but no evidence has been presented that he or his predecessors in title ever set foot on locus or knew of its existence prior to this claim in 1985.

The defendants claim that they own the locus under the doctrine of adverse possession. The law with respect to adverse possession is clear. In Ryan v. Stavros, 348 Mass. 251 , 262 (1964), the court stated:

Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.

The purpose of the elements of adverse possession is to put the true owner on notice of a use adverse to him or her and to afford the true owner an opportunity to vindicate his or her rights. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). The defendants claim their adverse possession under the doctrine of color of title by virtue of their deed and plan of locus.

Color of title, in the context of an adverse possesion claim, is an assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title. See Attorney Gen. v. Ellis, 198 Mass. 91 , 97-98 (1908). The advantage which a person may gain from that doctrine is that the activities relied upon 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. Dow v. Dow, 243 Mass. 587 , 590 (1923).

Norton v. West, 8 Mass. App. Ct. 348 , 350-351 (1979).

It is clear that from the purchase of the locus by Henry Ebbeling in 1954 until the filing of this suit by the plaintiff in November of 1985 that the acts of the defendants and their predecessors in title were actual, open, exclusive, notorious and adverse for in excess of twenty years. Although acts by owners in the defendants' chain of title prior to Ebbeling in 1954 may not have reached the level of adverse possession, the bulldozing of the pre-existing foundation, creation of a driveway, storing of the old gas station, clearing of brush, cutting of trees and storing of lumber by Ebbeling and the subsequent purchaser's building of a home and maintaining a lawn and garden does meet such requirements. It is unlikely that one could pass by and observe the locus without being aware of the activities of Ebbeling and the later use by the Valdivias upon this area of the locus. Even during the period between 1965 and 1967 after the gas station building had been removed, the closed in cellar, well and driveway were maintained on the property and there was ample evidence of cutting trees, any and all of which would have put the record owner of the locus on notice that the locus was being occupied adverse to his own interest. The defendants have tacked onto these prior uses and the actions after the building of the house in 1969 are not in dispute.

On all the evidence, I find and rule that the defendants' use of the locus has been sufficiently open, continuous, exclusive, adverse and notorious such as to have acquired title by adverse possession. Under the doctrine of color of title, I find and rule that the defendants are the owners of the 4.63 acres of land at 113 Puddon Street.

Judgment accordingly.