MISC 119241

January 8, 1988

Barnstable, ss.




The plaintiffs, Martin D. Rich and Richard F. Rich, chose to pursue their claim to a large parcel of vacant land in Harwich in the County of Barnstable against Oscar W. Doane, Jr. on two judicial fronts: in Miscellaneous Case No. 119241 by a complaint in the nature of writ of entry for possession of the premises; and in Miscellaneous Case No. 119381 (originally brought in the Barnstable Superior Court on September 30, 1985 as Case No. 45589 and transferred to this department on a motion by the plaintiffs argued on March 9, 1986) by a complaint to remove a cloud on the plaintiffs' title arising from a deed from Katherine F. Doane to the defendant dated December 8, 1970 and recorded with the Barnstable County Registry of Deeds Book 1494, Page 225 (to which Registry all recording references herein refer) and from a plan recorded in Plan Book 317, Page 18. The defendant answered in each action and, in the case first filed in the Superior Court, denied any title in the plaintiffs and alleged his ownership of the premises both by record title and by adverse possession. The answer filed in the complaint to remove a cloud in essence relied upon the same defense.

On motion of the plaintiffs the two actions were consolidated and tried together on August 20 and September 25, 1987. On each day of trial a stenographer was appointed to record and transcribe the testimony. The plaintiffs called as witnesses Janine M. Perry, an expert who searches the Registry records and abstracts the appropriate documents, but who is not a member of the Bar of the Commonwealth; Joseph D'Elia, an attorney experienced in conveyancing matters who has qualified as a Land Court Title Examiner; Richard A. Hall, a land owner who resides close to the locus; and the two plaintiffs, Martin D. Rich and Richard F. Rich. The only witnesses for the defendant were his son, John W. Doane, and the defendant himself. There were introduced into evidence thirty-three exhibits, one of multiple parts, and Chalk A consisting of the abstract of title prepared by the witness Janine M. Perry.

On all the evidence I findĀ· and rule as follows:

1. By deed dated December 8, 1970 and recorded in Book 1494, Page 225, Katherine F. Doane purported to convey to Oscar W. Doane, Jr. two parcels of vacant land situated in Harwich, in the County of Barnstable, of which the second constitutes the locus (Exhibit No. 12).

2. The Doane deed describes the premises as follows:

On the North by the North Harwich Road; on the

East by woodland of the heirs of the late Joseph Gorham and Dr. Franklin Dodge; on the

South by Deacon Folly Road so-called; and on the

West by cranberry bog of Lewis F. Smith and woodland of the heirs of the late John W. Hall.

Containing four (4) acres, more or less.

The title reference was to a deed from Jonathan C. Hall, et al, dated October 21, 1905 and recorded in Book 272, Page 469.

3. The grantor in the deed to the defendant was his mother.

4. The defendant subsequently had prepared a plan entitled "Plan of Land in Harwich Mass. For Oscar W. Doane, Jr." dated September 23, 1977 by Eldredge Engineering Co., Inc., recorded in Plan Book 317, Plan 18 (Exhibit No. 13).

5. The defendant also had prepared a plan entitled "Subdivision Plan of Land in Harwich, Mass., Prepared For: Oscar W. Doane, Jr., Being a Subdivision of Lot 1 As Shown on a Plan of Land Prepared For Oscar W. Doane, Jr. By Eldredge Engineering Co. Dated September 23, 1977" which is dated August 1978 by Down Cape Engineering, and recorded in Plan Book 356, Plan 56 (Exhibit No. 14). Shown on said plan is a Lot 1A which is situated between the northwesterly line of Deacon's Folly Road, a public way, and a cranberry bog owned by the plaintiff(s) or by their corporation, such ownership not being in issue here. The conveyance of Lot 1A was designed to afford access from the cranberry bog to the public way. At the same time, Lot 1B on a plan entitled "Plan of Land in Harwich, Mass. Prepared For: Richard Rich" dated August 1978 by Down Cape Engineering recorded in Plan Book 356, Plan 55 (Exhibit No. 15) was to be conveyed to Oscar W. Doane, Jr. by the record title holder acting on behalf of the plaintiffs. The exchange of the parcels of land was completed, and the deed from the defendant to Rich & Company, Inc. dated August 18, 1979, was recorded in Book 3351, Page 134 (Exhibit No. 17). The deed from Rich & Company, Inc. to Mr. Doane of Lot 1B was not introduced into evidence, but it was in fact executed and delivered.

6. The Town of Harwich laid out Deacon's Folly Road acting through the Board of Selectmen, and the layout is shown on a plan by Martin E. Moran, Town Engineer, dated July 1974 and recorded in Plan Book 294, Page 44 (Exhibit No. 16). The plan indicates that the owners of locus are "Gersham (sic) Hall et ali" (Exhibit No. 16).

7. The plaintiffs had the records examined at the time of the exchange with the defendant to confirm his title, and their researcher was unable to find any record title in the defendant prior to the deed from his mother to him (Exhibit No. 12). The examination which was done on behalf of the plaintiffs commenced with the deed given as a title reference in the deed from Katherine F. Doane to her son, i.e., the deed from Jonathan C. Hall, et al to Gershom Hall, et al, dated October 21, 1905 and recorded in Book 272, Page 469. The parties agree, therefore, that it is from this deed that the record title comes (Exhibit No. 1).

8. There were three grantees in Exhibit No. 1: Gershom Hall, Hortense Baker and Bethiah Taylor. Until the deed to Martin D. Rich, et al, in 1985 (hereinafter mentioned), there are no deeds in the chain of title from 1905, but only Probate proceedings.

9. Gershom Hall died on February 23, 1906 and gave the residue of his estate to his sister Hortense Baker, who therefore then held an undivided two-thirds interest in locus (Exhibit No. 2). Bethiah Taylor died intestate on December 25, 1907 owning the other undivided one-third interest and left as her only heir, her daughter, Mary A. Sherman (See Barnstable Probate No. 15200, Exhibit No. 3). Hortense Baker died on October 13, 1914 and left as her only heir at law and next of kin her daughter, Edna B. Freeman (Barnstable Probate No. 17305, Exhibit No. 4). Said Edna B. Freeman, who was the owner of an undivided two-thirds interest in locus subsequently filed a petition for probate of the Will of Mary A. Sherman, who held record title to the remaining undivided one-third interest. The Will which was allowed on December 27, 1948 devised the residue of the estate of Mary A. Sherman to her cousin, Edna B. Freeman, who then held the entire record interest in locus (Exhibit Nos. 5 and 6). Edna B. Freeman in turn died on October 27, 1953 and left as her only heir at law and next of kin a cousin, but in her Will, which was allowed on November 24, 1953 (Plymouth Probate No. 70820) the residue of the decedent's estate was devised to George I. Reynolds (Exhibit Nos. 7 and 8). Finally, Mr. Reynolds died on July 4, 1972 leaving his wife and a daughter, and in his Will devised all of his estate, real and personal, to his wife, Marion T. Reynolds (Plymouth Probate No. 109646, Exhibit Nos. 9 and 10).

10. Marion T. Reynolds, being the owner of all of the interest of record in locus, conveyed to Martin D. Rich and Richard F. Rich, as joint tenants, the parcel on North Harwich Road, described in the 1905 deed of Jonathan C. Hall, by a deed dated May 20, 1985 and recorded in Book 4544, Page 36 (Exhibit No. 11). Record title, therefore, was acquired by the Riches after the exchange between them and the defendant.

11. Mr. Doane's familiarity with the locus commenced about 1932 when as a small child he accompanied his parents to the adjoining cranberry bog now owned by the plaintiffs or their corporation. He testified that he was about six to nine years old at the time he first remembered the locus. Apparently, his grandfather managed cranberry bogs for others which included arranging to have a crew pick the crop for the various owners. The cranberry bog in question which was referred to during the trial as the "Dodge Bog" was known to the defendant as the "Smith Bog" and it adjoins the parcel in dispute. The defendant accompanied his mother, father and grandfather when they went to pick the crop, and the cranberry boxes were brought to a knoll on the locus where there was very little growth and where the southern exposure permitted more sunshine for working. The knoll became known as his mother's property. Mr. Doane further testified that the family also would go to the bogs in the fall when they were being sanded, an activity which took place in the afternoon since in the morning there might be ice remaining which would cause the workers to slip on the planks that were used to push the wheelbarrows out to the bog. There also was a sand pit on the locus from which sand was taken for the adjoining bog.

12. Mr. Doane went away to school and to service in World War II, but at some point he returned to the Cape and became aware that his mother was receiving tax bills in which the owners were described as the heirs of ''Hortense Baker and Hall and some other person." No such bills ever were introduced into evidence.

13. Mr. Doane testified that he revisited the property some time in the 1960's, and that at some time over the years, although the date is uncertain, he had met with various parties on the locus who were interested in purchasing some of it from him. Then in the 1970's he met Mr. Richard Rich, one of the plaintiffs, and bargaining for the exchange commenced. He also testified that beginning in the 70's he paid the tax bills that his mother had paid in earlier years introduced into evidence. However, no receipted bills were introduced into evidence.

14. Another activity to which Mr. Doane pointed as constituting an element of his claim of adverse possession was receipt by him of notices from the Board of Appeals relative to hearings concerning an adjacent cement factory and other public hearings concerning properties in the vicinity. He also granted to New England Telephone and Telegraph Co. and New Bedford Gas & Edison Light Company (now Commonwealth Light Company) an easement for the installation of lines for the transmission of electricity and of intelligence by electricity, dated April 13, 1972 (Exhibit No. 18). The defendant also authorized employees of the Cape Cod Mosquito Control, of which he is Superintendent, to cut hard wood, specifically oak, from all three parcels comprising locus. Mr. Doane also testified that he personally had cut such wood and that he had authorized a third person to trim the branches that had been left from the previous cutting and, presumably, to take them. During the 1970's the defendant caused the property to be posted by affixing to approximately 50 trees aluminum tags entitled "No Trespassing - Property of Oscar W. Doane, Jr".

15. The Town of Harwich took the property for the non-payment of real estate taxes by instrument dated June 26, 1963 and recorded in Book 1209, Page 17 (Exhibit No. 19). This taking was disclaimed (Exhibit No. 33). The property again was taken in 1970 for non-payment of the real estate taxes from 1961 to 1969 by instrument dated July 29, 1970 and duly recorded in Book 1479, Page 1126 (Exhibit No. 20). Ultimately, the plaintiffs redeemed the property as appears from an acknowledgement of satisfaction by the Town acting through its Treasurer by instrument dated June 7, 1985 and recorded in Book 4630, Page 267 (Exhibit No. 29). Thereafter, the Town which had brought a complaint to foreclose the rights of redemption against Mary A. Sherman, et al, was allowed to withdraw its pending Land Court complaint (Exhibit No. 30).

16. Several exhibits were introduced covering adjoining lands as an effort to locate the premises, and these are found as Exhibits Nos. 31A to 31Q, but there is no real dispute between the parties as to the chain of title since Mrs. Doane's deed to her son, as well as those deeds on which the plaintiffs rely, gives the 1905 deed as a source of title.

The present case provides a classic example of a conflict between the present record title holder of premises whose predecessor had done nothing indicative of such ownership for more than three quarters of a century, and a third party who has exercised some elements of adverse possession sporadically over the years. Although the defendant's belief in his claim may have arisen some fifty years ago from his understanding as a young child that locus belonged to his mother, he has failed in this litigation to show a reason for such belief. Absent such evidence, it strains credulity to assume that the defendant's mother owned the locus when there was no claim of ownership to the abutting cranberry bog which admittedly was being worked as a cranberry bog by the defendant's grandfather for third persons. In any event, the defendant principally rests his title on adverse possession and not on record title. The defendant argues that commencing about 1929 his mother and those claiming under her including himself have conducted such activities on the locus as to constitute adverse possession which has ripened into ownership. As we have so often said, it must be shown to establish title by adverse possession that the use of the premises has been actual, open, notorious, continuous, exclusive and adverse for at least twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949). The Supreme Judicial Court has imposed a more stringent test on the acquisition of title to lands considered to be "wild land". Cowden v. Cutting, 339 Mass. 164 ( 1959). The locus doubtless would fall into this category for purposes of a consideration of acquisition of title, but it may be more accurate to suggest that title still may be acquired by adverse possession to lands without an area such as Boston's "Downtown Crossing", but that the degree of proof necessary to acquire title by adverse possession varies with the character of the property, the purpose for which it is adapted and the use to which it has been put, and that this is more difficult to prove in an area like the locus. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); LaChance v. First National Bank and Trust Company, 301 Mass. 488 , 490 (1938). The element which may be most difficult to establish in an area infrequently visited is the open and notorious nature of the occupation. In Foot v. Bauman, 333 Mass. 214 , 218 (1955) the Court attempted to explain these two requirements by citing the following passage from s. 8.56 of the American Law of Property:

To be open the use must be made without attempted concealment. To be notorious 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 over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.

When the principles set forth in the cases above and many others similar thereto are applied to the facts which I have found, the defendant failed to prove by a preponderance of the evidence that first his mother and then he had acquired title to the locus by adverse possession. I do not believe that the casual sitting upon the locus during the harvesting of crops on adjacent land, or otherwise during servicing of the adjoining bog or the stacking of boxes thereon constitutes an adverse use sufficient to sustain the defendant's claim of ownership of locus even if the defendant's childhood recollection is that his elders made some claim among themselves to this property as being his mother's. Although seasonal use may ripen into a valid claim of adverse possession, this use, for a short period of time during the seasons of the year when activities are engaged in at cranberry bogs, is insufficient, especially as to notoriety to put the true owner on notice, or to make him aware at his own risk of the claim of ownership by another. The activities at best seem to have been a casual trespass which made life easier in the harvesting of the crop. These activities in any event ceased many years ago, and although the defendant contends that his mother thereafter paid real estate taxes over the years, there is no evidence of this. There is ample evidence that the taxes were unpaid during the decade of the 1960's. It is in 1960 that the defendant must establish the common element of sufficient activities at the locus to start the running of the statute. Cutting of the hard wood might have done so, but when this activity began is unclear. The various steps carried on at the locus on which the defendant relies to show his claim of ownership commenced in the 1970's and were concentrated in that decade and continued up until the filing of the present complaints. Even if we consider time subsequent to the filing as the defendant contends is appropriate, I find and rule that his activities fall short of the required twenty years and that, in addition, their nature is such that as in Norton v. West, 8 Mass. App. Ct. 348 (1979), rev. den. 379 Mass. 926 (1979), they fail to establish that title has been acquired by adverse possession. The defendant relies on what I have previously called activities of an intellectual nature, as well as physical dealings with the premises (See Hofe v. Barse, et al, Confirmation Case No. 38315) and I agree that evidence of one's claim to own a property by payment of the taxes, advertising it for sale and submission of plans for approval to the planning board may constitute evidence of adverse possession just as surely as erecting a fence, cutting a Christmas tree, or engaging in other physical activities on the property. Compare Ottavia v. Savarese, 338 Mass. 330 , 333-334 (1959) (uncommunicated mental attitude irrelevant). Nonetheless, as I have weighed the evidence here, I have found the sum of the various uses made by his mother and by the defendant insufficient to constitute the acquisition of title by adverse possession. Those which merely were the overflow from working the bog did not constitute use under a claim of right or even if so considered, did not continue uninterrupted until the present. There was no activity on the locus by the defendant or his mother, under whom he claims, during the intervening years until at the very earliest, the late 1960's. Those of the activities that do show a claim of adverse possession, such as cutting of the wood and the posting of the trees, were all concentrated in the decade of the 1970's. I therefore find and rule that the evidence is insufficient to show twenty years of the type of activity necessary to acquire title by adverse possession in an area such as that within which locus is situated. I do not find and rule on the defendant's requests since I have made extensive findings and rulings of my own.

In Miscellaneous Case No. 119381 a judgment may enter that the plaintiffs hold title free from any claim of the defendant including any cloud arising from a deed from Katherine F. Doane to the defendant, dated December 8, 1970 and recorded in Book 1494, page 225; in Miscellaneous Case No. 119241 a judgment may enter that the plaintiffs are entitled to possession of the premises in dispute.

Judgment accordingly.