MISC 122236

March 2, 1989

Barnstable, ss.




In the motion in limine filed in the above numbered actions by the plaintiff, the Town of Sandwich seeks to exclude any evidence of adverse possession by the defendants, Paul E. Quirk and Beatrice Quirk. The motion is grounded on the plaintiff's allegation that the institution of tax title foreclosure proceedings in the Land Court and the entry by this Court of final decrees in Tax Lien Case Nos. 45919, 47516, 48679 and 51935, effectively stopped the running of the period of adverse possession, and that accordingly, any acts evidencing such possession which occured after the entry of the final decrees being less than twenty (20) years ago, are immaterial. The present action in the Land Court is a civil action in the nature of a writ of entry brought pursuant to the provisions of G. L. c. 237 and the Superior Court case is a civil action alleging common law trespass. In the latter action an interlocutory order was entered by Honorable Elizabeth J. Dolan restraining the defendants from encroachment, use, construction of structures, removal of trees on two of the parcels of land situated in the Town of Sandwich, described in the complaint in the Land Court action. The issue presented by the motion in limine is a matter of first impression in this Commonwealth, and the motion seems an inappropriate vehicle for making such a far reaching ruling; however, the parties have fully briefed the matter, and accordingly, I have elected to rule on the motion on the substantive grounds argued by the parties in order that the issue may be determined without unnecessary expenditure of further time and money.

The issue presented is a narrow one. The defendants have been using land which, for purposes of this motion, the parties agree was the subject of the four tax title proceedings in the Land Court in which final decrees we reentered in 1971, 1973, 1975 and 1977, respectively, none of which is more than twenty (20) years ago. The defendants admit that they have not used the premises in question for a sufficient length of time to have acquired title thereto by adverse possession prior to the filing of the complaints by the Town of Sandwich to foreclose the taxpayer's right of redemption. If the bringing of such complaints and the ultimate entry of final decrees foreclosing such rights interrupts the running of the twenty (20) year period of adverse possession, and bars the defendants from taking possession before and after the entry of the decrees, there has been insufficient time since the entry of the final decrees for adverse possession to have been obtained by the defendants. For purposes of this discussion, the Court has assumed that adverse possession does indeed run against a governmental entity such as a municipality, a question which I therefore do not decide. See, for example, Inhabitants of Cohasset v. Moors, 204 Mass. 173 (1910) and Bates v. Cohasset, 280 Mass. 142 (1932).

The authorities in other jurisdictions are divided on the question now before the Court. In view of the differences in the various tax statutes little is to be gained by a comparative study of such cases. In McMullen v. Porch, 286 Mass. 383 (1934), the Supreme Judicial Court held that the filing of a petition to register title to land interrupted the adverse possession of the party claiming in opposition to the petitioner. In the decision, Justice Crosby discussed two analagous situations. At page 388 he stated "[i]t has been held in this Commonwealth that in real actions judgment must be rendered upon the state of the title as it existed at the date of the writ, and that adverse possession is interrupted at that time, provided the plaintiff is ultimately successful. These cases all relate to writs of entry." The Court then distinguished cases involving a partition where the determinative date had been found to be the trial of the action, rather than the date of filing of the petition for partition. The McMullen doctrine was recently reaffirmed by the Appeals Court in a decision overruling one made by this Court in a registration case. In Snow v. E. L. Dauphinais, Inc., 13 Mass. App. Ct. 330 (1982), the Appeals Court stated "[t]he filing of a petition is 'significa[nt]' to a claim of adverse possession in that 'the so called acquiescence of an owner of land in hostile possession thereof, - as distinguished from permission for possession not hostile - implied from the failure of an owner to assert his rights effectively against a person in adverse possession, comes to an end when - and as of the date of the petition - such owner effectively asserts his rights by a petition for registration.'"

The present case seems analagous to the principles applied to a petition for registration. By filing the Land Court action, the Town of Sandwich sought to acquire title as against the record owner of the premises under whom it now claims by operation of law. The procedure provided by the General Court in c. 60, ยง65, et seq., gives notice to all the world through publication and recording in the Registry of Deeds, as well as to the record owners, and others with an interest, by certified mail, and indeed the Court understands, although placing no weight on this aspect in view of the nature of the motion, that the defendants had actual notice of the tax proceedings. The filing of the Land Court petitions in which the Town successfully prosecuted to final decree was an effective assertion of the rights of the Town of Sandwich which as a matter of law concluded use of the land adversely by the defendants. The paramount title of the town therefore bars the defense by the defendant of adverse possession, a result presaged by Justice Holmes' decision in Langley v. Chapin, 134 Mass. 82 (1883).

In order to prevail, therefore, on the defense of adverse possession, the defendants would have to show adverse possession of the land as against the Town of Sandwich for a period of at least twenty (20) years comencing with the entry of the final decrees, if we assume that land acquired by the Town through the tax title foreclosure provisions can be adversely possessed. Since less than the required period of time has elapsed from the entry of the decrees, the defendants as a matter of law will be unable to prevail on the defense of adverse possession, and thus, evidence thereof will be excluded.

By the Court