MISC 122236

June 21, 1989

Barnstable, ss.




The Town of Sandwich instituted two actions against Paul E. Quirk and Beatrice Quirk of said Sandwich, in the County of Barnstable. The initial case was brought in the Superior Court alleging a common law trespass on parcels D-6 and D-9 on assessors' map 60, and a preliminary injunction was issued by Justice Elizabeth J. Dolan in which the defendants were ordered to cease and desist from activities upon said lots which, as clarified by the Court, was interpreted to mean that no further actions were to be taken by the defendants to alter the land. Subsequently, a writ of entry, pursuant to the provisions of G.L. c. 237, s. 1, was brought in the Land Court. The Land Court case sought possession not only of Lots D-6 and D-9, but D-7 and F-2 as well. I was designated by the Chief Administrative Justice to sit as a Superior Court Justice on the trespass case, and both actions were tried together on February 9 and March 15, 1989. At the first day of trial, the town made a motion in limine that evidence of adverse possession by the defendants be excluded. It was argued by the Town that the filing in the Land Court of tax title foreclosure proceedings by the Town and the entry by this Court of final decrees in Tax Lien Case Nos. 45919, 47516, 48679 and 51935 interrupted the adverse possession claimed by the defendants, and there being no period of twenty years' use prior to the institution of such proceedings, [Note 1] nor after the conclusion, the defendants should be barred from introducing evidence of use made by them of the premises in order to establish title by adverse possession. The motion was allowed by decision dated March 2, 1989, a copy of which is attached.

At the trial a stenographer was appointed to record and transcribe the testimony. The witnesses were Michael Marsh, a Land Court Title Examiner and member of the Bar, William Maravell, The Town Engineer for the Town, and John Ellis, a principal in the firm of Ellis & Thulin, Inc. The witnesses all testified on behalf of the Town. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The defendants introduced no evidence since they claimed the order of the Court as to adverse use was in error, and their defense was based on a claim of adverse possession.

On all the evidence, I find and rule as follows:

1. A final decree entered by the Land Court in Case No. 47516 forecloses the tax payer's equity of redemption in what is now assessors' lot F-2, the final decree in Tax Lien Case No. 48769 foreclosed such rights in Lot D-9, the final decree in Tax Lien Case No. 51935 foreclosed said right in Lot D-7, and the final decree in Tax Lien Case No. 45919 foreclosed the right of redemption in assessors' Lot D-6. A question was raised as to the validity of the decree in the latter Land Court case, but the Court ruled that the decree could not be collaterally attacked.

2. The defendants constructed a driveway which crosses F-2, D-6, D-7 and D-9 (and D-8 which is said to belong to a third party). There presently is a building on D-9 and the defendants' home in which they live is located on D-6. The building on D-9 appears to be a rodeo stadium where contests involving horses and riders are held.

On the findings I have made it seems clear that the defendants are trespassing on four lots of land to which the Town holds record title. The construction of the buildings in question on Lots D-6 and D-9 and the use of a driveway on the other two lots for access to and egress from the premises constitute a common law trespass. Any question of damages incurred by the Town of such trespass has been severed, and no finding has been made thereon at this time until after all appeals finally have been determined. In addition, the complaint does not allege a trespass on any but Lots D-6 and D-9 and the Judgment in the Superior Court action will be framed to reflect this.

So far as the Land Court writ of entry is concerned, the Town clearly is entitled to regain possession of Lots D-6 and D-9. Technically, however, they have possession of the remaining two lots in question, F-2 and D-7, since use by the defendants is of a limited nature akin to an easement or right of way if it had been continued for a sufficient period of time. Accordingly, upon the proper amendment under the complaint, the defendants can be restrained from using the driveway on the two lots in question, but there is no showing of disseisin to support a judgment as to that entitling the Town to relief by an action in the nature of a writ of entry.

The defendants have filed extensive requests for findings of fact and rulings of law which are addressed to a posture of the case not adopted by the Court, and accordingly, I have taken no action on them.

Judgment accordingly.


[Note 1] It was unnecessary to decide in the proceeding whether tax foreclosure proceedings against the record owner cut off a party who claims adversely. In an appropriate case I suggest, but do not decide, that it does.