REG 35018

March 11, 1988

Barnstable, ss.



Louise E. Wanamaker, predecessor in title to the present plaintiffs, Charles V. Boulton and Dorothy F. Boulton, husband and wife, as tenants by the entirety (the substituted plaintiffs) commenced this action to register her title to a large tract of land on Cape Cod Bay in Orleans in the County of Barnstable, by filing a complaint in the Land Court pursuant to the provisions of G.L. c. 185, §1(a) on April 7, 1967. For a myriad of reasons too numerous to outline here, the progress of the registration proceedings continually was delayed until finally on May 26, 1987 the trial commenced, continued on August 28 and October 23 and concluded on October 26, 1987. At each session a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. Witnesses for the substituted plaintiffs included: Mr. Boulton; Henry H. Thayer, a well-known conveyancer throughout the Commonwealth and a Land Court Examiner; and Anne Gainey, a neighbor. Those for the defendants included: Mr. Barbarisi; Madeline Wi1Cox; Robin Wi1Cox, a registered land surveyor; and James H. Quirk, Jr., a Cape Cod conveyancer and Land Court Examiner. The original Land Court Examiner has died and under the circumstances the Court was not required officially to appoint a successor to act. Both Messrs. Thayer and Quirk testified as expert witnesses. A view was taken by the Court in the presence of counsel on December 3, 1987.

The area which the substituted plaintiffs Boulton and other substituted plaintiffs in part claiming under Mr. and Mrs. Boulton, seek to bring within the operation of Chapter 185 is shown outlined in green on the A3 plan entitled "Plan of Land in Orleans, Mass. to be filed in the Land Court, Land Court, Case No. 35018" dated April 14, 1981 by Schofield Brothers, Inc. (Exhibit No. 2B), a reduced copy of which is attached hereto as Appendix A (the "Plan"). The only area as to which there is a contest concerns that marked 1C on the Plan although certain of the defendants do claim rights to use in common with others entitled, Beach Plum Lane and Cranberry Lane as shown on the Plan. As to those portions of the locus not in dispute, title thereto may be registered subject to such matters as appear in the abstract and are not contested and to such additional evidence, if any, as the Court may require in entering orders for decree and the drafting thereof and of the final decree.

As noted above it is the title only to Parcel 1C which is in contention in this, the contested part of the registration proceedings. A stipulation has been entered into between the plaintiffs and the Orleans Conservation Trust to which the plaintiffs' title will be subject and a stipulation is anticipated also with The Commonwealth of Massachusetts so that there remain two classes of defendants who contest the registration of title in the name of the substituted plaintiffs. Title to Parcel 1C is claimed by Madeline Armeson who was allowed to answer late. Earlier in the long­running saga of the case her husband, George E. Armeson, had appeared and answered not only for her, but also for David G. Bearse, Wilhelmina Bearse and Marion L. Kendrick. The latter three defendants also were allowed to answer late but took no active part in the trial, and their present status as defendants is not clear; however, their interests in large part track those of Mrs. Armeson and in ruling on her claims their claims also will be determined. Appearances also were filed on behalf of Ruth Melore and Myra H. Malcolmson who claimed, as the heirs of E. H. Linnell, to be among the owners of record of an undivided one-half interest held in common with the plaintiffs in parcel 1C, but neither defendant appeared at the trial, and both have been defaulted. The other defendants who seriously contested the plaintiffs' title were Robert B. Barbarisi, Maryan Barbarisi, Robert F. Roda and Sally S. Roda, Trustees, Reed S. Mathews, Jarvis Hunt, Jr., Judith N. Hunt, Fred B. Byers, Marguerite Byers and Marianne Rotar, who were allowed to intervene in the proceedings. This category of defendants is comprised of owners of homes in the so-called "Unity Acres" Subdivision ("Unity Acres") who claim certain rights to cross parcel 1C and to use rights of way in the Unity Acres Subdivision as well as separate rights of way not involved in this litigation and which do not affect any parcels shown on the Plan. To the extent that either Mrs. Armeson or these defendants cast doubt on the plaintiffs' title, then the Unity Acres defendants apparently hoped to be able to forge an agreement which would allow them to cross the causeway and bridge located on Parcel 1C to reach the beach on Cape Cod Bay.

At the trial the plaintiffs took the position that, absent abuses by the general public, they do not bar people from using the beach which forms part of parcel 1C above high water mark or indeed between high and low water marks where the public does have rights but not such as would allow them to use the beach without the Boultons' concurrence, but that they do object to third parties crossing parcel 1C either to reach the beach or to exit from it.

On all the evidence I find and rule as follows:

1. The plaintiffs hold title of record to an undivided one-half interest in parcel 1C by virtue of a deed dated December 30, 1861 but not recorded until January 8, 1925, with Barnstable County Registry of Deeds in Book 384, Page 202 (all recording references herein being to said Registry), from the heirs of Seth Knowles, Barnstable Probate No. 43196 to Phebe Freeman (Exhibit No. 5A). The description in this deed is inartistic, and it recites that it lies in common and undivided with E. H. Linnell. No instrument of record from Captain Linnell or those claiming under him was found by the Land Court Title Examiner, nor by any of the parties. Title then passed by deed of Phebe Freeman to her daughters Phebe B. Freeman and Lucinda K. Freeman, dated April 18, 1891 and recorded in Book 195 at Page 122 (Exhibit No. 5B). Thereafter followed the deed of Phebe B. Freeman, Lucinda K. Freeman and Seth K. Freeman, their brother, to Henry Fletcher Hall, dated November 7, 1924 and recorded in Book 406 at Page 385 (Exhibit No. 5C). This latter deed contained the following description of locus which is the third parcel therein: "a piece of sedge ground lying now or formerly in common and undivided with E. H. Linnell bounded, North: On the Bay; East: by land now or formerly of Benjamin Gould and others; West: by the said Creek." The deed concludes with this catch-all language: "[m]eaning and intending to convey all and singular the premises conveyed by Franklin Gould, et als to our mother Phoebe (sic) Freeman, wife of Francis Freeman, by deed dated December 30, 1861, recorded herewith, together with all easements and rights of way apurtenant (sic) thereto."

2. It would be difficult today to place the description in the deed to Henry Fletcher Hall if Mr. Hall had not brought a petition in the Land Court to register his title to what is now parcel 1C, together with certain adjoining land. The land which was sought to be brought within chapter 185 is shown on a plan entitled "Plan of Land in Orleans, Mass. Property Of Henry Fletcher Hall" dated May 1937 and filed with the Land Court as Plan No. 15539B (Exhibit No. 3). Lots A and B which show on said plan indeed were registered in that case and they are shown on the official plan also bearing the number 15539B (Exhibit No. 19). Parcel 1 also shown on this filed plan (Exhibit No. 3) as containing 13.72 acres was also registered in part as shown on Land Court Plan 15539A (Exhibit Nos. 18 and 65) as Parcel 1 containing 10.10 acres. This parcel, having since been subdivided, now appears on Land Court Plans 15539C, D, E and F as the lots which abut the land sought to here be registered on the north and east (See Exhibit No. 28). Parcel 2 shown on Exhibit No. 3 as containing approximately 3.23 acres was not registered until 1967 in Case No. 31767 (Exhibit No. 63). The remainder of the land shown on this plan (Exhibit No. 3) as Parcel 3 and the unregistered portion of Parcel 1 (salt marsh) is Parcel 1C, which is the subject of this litigation.

3. The interest held in common with E. H. Linnell was not defined in the earlier recorded instruments, and the deeds in the chain of title after the deed to Mr. Hall (Exhibit Nos. 5D-5I) dropped the reference to the Linnell interest until the deed from the original plaintiff, Louise E. Wanamaker, to the substituted plaintiffs wherein the covenants are stated to relate only to an undivided one-half interest in parcel 1C. This deed is dated September 20, 1971 and recorded in Book 1530, Page 207 (Exhibit No. 5I).

4. The substituted plaintiffs also claim title to parcel 1C through adverse possession, both as to the Linnell interests and as to others. Parcel 1C consists of a large area of salt marsh and upland barrier (dune) as shown on the filed plan (Exhibit Nos. 11C-11F). A tidal creek runs through the parcel in a general northeasterly direction from Namskaket Creek. There is a causeway which runs from parcel 1A on a virtually straight line to Cape Cod Bay which was originally constructed by the Wanamakers (Exhibit No. 11B). The causeway is generally raised over the level of the marsh and provides access to the beach along Cape Cod Bay. An earlier bridge across the tidal creek was constructed by the Wanamakers, and substantial repairs to the bridge were made by Mr. and Mrs. Boulton about 1975, and they presently are preparing to do further work on the bridge with permission having been sought from the appropriate regulatory authorities. As to the earlier work, in February of 1975, the plaintiffs filed a notice of their intent to repair the bridge across the tidal creek (Exhibit No. 13C) as shown on a plan entitled "Bridge and Access Maintenance" (Exhibits No. 7 and 13D) pursuant to G.L. c. 131, §40 the "Wetlands Protection Act" so-called. The hearing thereon was held March 19, 1975 pursuant to a notice duly published (Exhibit No. 13B) and an Order of Conditions was issued by the Orleans Conservation Commission (Exhibit No. 13A).

5. The present plans of the Boultons to maintain the bridge and its access are subject to a current order of conditions dated December 2, 1986 and recorded in Book 5513, Page 34 (Abstract, Exhibit No. 1, s. S5-4). A special permit also has been issued for work on the bridge and recorded in Book 5524, Page 190 (Abstract, Exhibit No. 1, s. S5-5).

6. The work on the causeway was commenced and mainly completed in 1960 or 1961 although work continued for a number of years. A road was cut through, a pipe was put in the first year, then rocks, some weighing as much as a ton, were put around it, then about 6,700 truck loads of fill were brought in by the Wanamakers. Nonetheless, the winter tides worked their mischief, and the crossing of the creek again was a problem so a bridge was built. Twenty-four or twenty-five telephone poles were sunk in the creek with huge half-ton rocks in some cases pushing them down, then laced together with other poles and a bridge bolted on top of that. The completion of the project was celebrated by a large party.

7. Signs have been posted by both Wanamakers and Boultons at each end of the causeway admonishing third parties not to trespass or to keep off, but the "mortality" rate of such literature was great (Exhibit Nos. 6-1-6-3). Those at the beach end of the causeway were and still are the particular objects of vandalism. People continue to attempt to use the causeway and bridge who walk down the shore from the town beach to the northeast and seek a shorter route back on foot or even on horseback across the marsh. Others such as the residents of Unity Acres have followed Beach Plum Lane to the west, then turned right and crossed parcel 1B, the Boultons' title to which is not contested, to reach parcel 1C and the causeway. There is a double gate in the rear of the Boultons' house which has a chain lock (Exhibit No. 6-3). The gate preceded the Boultons' ownership.

8. The Wanamakers for a year or two had a farm for clams and oysters in the bed of the tidal creek, but the project was not able to survive the buffeting of natural forces. They and the Boultons have walked the causeway and beach, watched the birds on the Atlantic flyway, and in the case of the Boultons granted permission to certain neighbors to use the causeway and bridge to reach the beach. The Boultons have kept a sunfish on the beach.

9. The plaintiff and substituted plaintiffs have believed they were paying taxes on parcel 1C over the years in question (Exhibit No. 10), and the valuation lists of the Orleans assessors, beginning in 1949 with Mrs. Hall, continually show parties in the Boulton chain of title assessed for salt marsh or marshland although the boundaries of the assessed parcels are not clearly fixed.

10. The Hall registration proceedings of 1937 constituted a claim of ownership to parcel 1C. The present case filed in 1967 by his successors in title is a continuation of that claim.

11. Title to parcel 1A, on which the substituted plaintiffs' home is located, comes through the Unity Acres subdivision. Title thereto was acquired by the developer, Millard H. Tibbetts, an Orleans attorney, from Clarence E. Knowles and Laura Knowles as executors of the will of Julia A. Atwood by deed dated July 16, 1948 and recorded in Book 699, Page 6 (Exhibit No. 45). It is to this source that Mrs. Armeson also looks for her claim of title to Parcel 1C. The deeds delivered pursuant to the Unity Acres development (See Exhibit No. 23 for plan) granted rights to use Beach Plum Lane and the other streets and roads shown on the Unity Acres plan. As abstracted by the Land Court Examiner, they also included the right to use the beach to the west of Beach Plum Lane and "the present existing foot bridge to the beach, but without any obligation on the part of the grantor, his heirs and assigns, to maintain said bridge or any liability for damage suffered thereon by any person for any cause." (See Exhibit No. 20). Similar language appears in the deeds to the defendant Unity Acres lot owners (See Exhibit Nos. 24 and 26 to 30, inclusive). The language granted rights to those within the subdivision to proceed westerly from the end of Beach Plum Lane across non-locus land and a tidal creek, by the bridge then in that location, while it remained. Now, the bridge having for practical purposes been destroyed, its former locus can be found by walking at low tide, to the beach adjacent to land formerly of Tibbetts, from the end of Beach Plum Lane as extended from its terminus near the "private parking area" (as shown on the A3 plan) westerly toward Cape Cod Bay. This is not the bridge constructed by the Wanamakers and repaired by the Boultons.

12. Mrs. Armeson testified to her childhood use of the beach in the area of locus, sporadic use thereof as she reached high school and college age and occasional use in recent months. None of it was such as to constitute adverse possession nor do I understand that she claims otherwise. Rather she bases her argument that she has record title upon several deeds to her ancestors the Atwoods. As an aid in identifying where the descriptions in earlier deeds fall on the ground, Mrs. Armeson testified as to artifacts found on the beach which might constitute the remains of a salt works (Exhibit Nos. 32A-E). It is clear that members of Mrs. Armeson's family did indeed own land in the vicinity of locus for the adjoining Unity Acres subdivision is situated on land formerly of her great aunt Julia A. Atwood. Claims have also been made on behalf of Mrs. Armeson's family both in registration proceedings across Namskaket Creek in Brewster brought by Tonn, Inc., Registration Case No. 36915, and in those by G. Douglas Hofe, Jr. in Registration Case No. 38315. Nevertheless in this matter, no witness testified who could place any of the deeds into Julia A. Atwood or her predecessors in the location of parcel 1C; indeed no deed was introduced in the Atwood chain which bounded by Cape Cod Bay.

The findings which I have made compel the conclusion that the substituted plaintiffs have shown sufficient title to register parcel 1C. While the description in the deeds in the chain of title is sketchy and perhaps inaccurate in describing the granted premises as sedge land, it generally fits the area of locus. The earlier registration case placed the parcel in the same location, and the claim has continued to the present. Both the decree plan in Registration Case No. 15539 and in Registration Case No. 31767 give the owner of the land in the position of locus as of the substituted plaintiffs' predecessors in title. While abutters are not adjudicated in a registration proceeding, their names, as shown by a registered land surveyor or by the assessors, is evidence at least of a claim made on behalf of the abutter. It is true that in 1861 there was indication of an outstanding interest in E. H. Linnell. Nearly one hundred thirty years have elapsed, however, since that reference, and no such claim ever materialized. Two parties to which the Land Court sent notices of this case as heirs of Linnell did appear, [Note 1] but they failed to participate further in the case and had been defaulted by the time of trial.

On all the evidence I therefore find and rule that the Linnell claim has been abandoned, and that the substituted plaintiffs Boulton hold record title to parcel 1C. Additionally, it seems clear that the activities of the substituted plaintiffs and their predecessors have been such as to establish their title to the Linnell interest, whatever it may have been, by adverse possession, even though as to co-tenants the burden of proof is greater than as against third parties. Kabat v. Shawmut First Bank, Conf. No. 41288 (Cauchon, J.; August 5, 1987) citing Allen v. Batchelder, 17 Mass. App. Ct. 453 , 455-456 (1984).

The defendants argue that the plaintiffs' record title is imperfect since no deed into the party said to own it in the 1800's can be found; moreover, it is argued, the description lacks a boundary, does not accurately suggest the size of locus and wrongly describes the granted premises as sedge. Those infirmities do indeed appear in the Boulton chain, but they are characteristic of Cape Cod titles. Moreover, they have shown title as well by adverse possession. The substituted plaintiffs must, of course, bear the burden of establishing that they have sufficient title to bring the land which they claim within the operation of chapter 185 of the General Laws. Allen v. Wood, 256 Mass. 343 , 349 (1926) citing Bessey v. Ollman, 242 Mass. 89 , 91 (1922). And to show title by adverse possession they must establish that they have used the land openly, notoriously and exclusively under a claim of right for at least twenty (20) years. Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Ryan v. Stavros, 348 Mass. 251 , 262 (1964). This does not mean, however, that they must occupy each portion of the locus for the requisite period, but they may rely on the doctrine of color of title to shoulder a portion of the burden. "Color of Title" is explained by Justice Kass in Norton v. West, 8 Mass. App. Ct. 348 , 350-351 (1979) as follows:

Color of title, in the context of an adverse possession 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). For example, if the act of adverse possession were cultivating a half acre parcel of land, but the claimant held an invalid deed describing three acres, the claimant would have constructive possession of the three acres for the reason that it is the presumed intention of the grantee of the deed to assert such possession.

Or as more succinctly stated in Nantucket v. Mitchell, 271 Mass. 62 , 68 (1930), "[a]ctual possession of a part of a large tract, when proved, is not limited to the part so possessed but gives constructive possession of the entire parcel when the entry was made under color of title." (citation omitted). Activities carried on before Mrs. Wanamaker acquired title to parcel 1C are unclear although the Land Court records show title was claimed from at least 1937 forward. Activities on the locus which can be documented began about 1960 and have continued to the present. Entry clearly was made under color of title. Twenty years had not run prior to the filing of an answer on behalf of the Atwood heirs in 1976, but this did not stop the running of the period as would have been the case if it were the defendants who had filed the registration complaint. Nor did the 1980 dismissal for failure to prosecute affect the merits of the transaction. During this entire period the substituted plaintiffs continued to bar third parties from the causeway and bridge, kept signs posted to bar access, maintained a gate across the path, completed the mid-seventy repairs and took steps to gain permission to repeat repairs at the present time, and paid the real estate taxes. There were no significant steps taken by any defendant or third party to interrupt the running of the twenty year period. The fact that the Boultons had the same difficulties as they would have had with a registered title in keeping trespassers off the causeway and bridge should not, in the light of the general picture here, be determinative. Accordingly, I therefore find and rule on all the evidence that the substituted plaintiffs, Boulton, have borne their burden of establishing title both on the record and by adverse possession to parcel 1C free from any easements or claims of the defendants, other than the Commonwealth of Massachusetts, title, of course, being subject to the rights of the public in the tidal creek and below mean high water mark.

The defendant Armeson filed requests for twenty-seven rulings of law, but since I have made my own extensive findings of fact and rulings of law I decline to do so.

Judgment accordingly.

exhibit 1

Appendix A


[Note 1] Ruth Melore and Myra H. Malcolmson.