ROBERT B. JORDAN vs. RONALD E. POLLACK and MILTON R. POLLACK, JR.

Robert B. Jordan and his wife Patricia live at 22 Webb Street in Middleton in the County of Essex. Across from the property to which the plaintiff Jordan and his wife own record title is a large area of vacant land containing approximately sixty (60) acres. The plaintiff claims title to a small portion thereof by adverse possession. The defendants in this litigation are Ronald E. Pollack and Milton R. Pollack, Jr., both of said Middleton who claim record title to the area through a deed from their great-uncle Gordon E. Sheldon, the original defendant.

A trial was held at the Land Court on June 15, 1988 at which the proceedings were electronically transcribed. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. There were twelve such exhibits of which two had multiple parts, being a series of photographs. Also introduced was a copy of a deed marked as Chalk B and hereafter identified. Nine witnesses testified at the trial. These were the plaintiff, his wife Patricia, Gordon E. Sheldon, his wife Helen, the defendant Milton R. Pollack, Jr., plaintiff's daughter Diane Smart, his wife's second cousin, Donna Couture, and Paul Donohoe, a land surveyor who visited the locus and prepared a plan entitled "Plan of Land in Middleton, Mass. Prepared for Robert B. Jordan" dated March 30, 1987 by Donohoe and Parkhurst, and recorded with Essex South District Deeds in Book 9048, Page 537 (Exhibit No. 10). A view was taken by the Court in the presence of counsel on November 9, 1988.

The only issue presented in this action is whether the plaintiff has acquired title to that portion of the land claimed by the defendants which is cross-hatched on a copy of a portion of Exhibit No. 10 and attached hereto as Appendix A. The complaint filed in this case claims title only through adverse use. At the time of the trial the plaintiff raised the question as to whether a deed to his wife's parents conveyed record title to the premises (see Chalk B, a deed from Robert Patterson, et al, to Milton E. Collins and Pauline F. Collins, dated May 9, 1949 and recorded in Book 3664, Page 93). He further attempted to allege that Mr. and Mrs. Collins, who are now deceased, conveyed the locus to him (or to him and his wife) by an unrecorded deed. This evidence was excluded since it fell without the scope of the complaint, constituted an entirely different claim of title and would have unfairly prejudiced the defendants to have it litigated so late in the proceedings. The defendants for their part introduced deeds in their chain of title, but they did not call either a Land Court Examiner or a registered land surveyor as an expert witness. Accordingly, there is only the narrow issue in the case as to whether the plaintiff has borne his burden of establishing title by adverse possession to the disputed area or whether the defendants are entitled to prevail on the ground that the plaintiff's use was permissive.

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

1. The plaintiff's wife, Patricia M. Jordan, was born in Chicago, but as a small child her family moved to Middleton to live with her grandparents on Webb Street, which is now a public way on which locus abuts. See "Plan of Land in Middleton, Mass." dated August 17, 1987 by Hayes Engineering, Inc., duly recorded in Plan Book 232 as Plan No. 37 (Exhibit No. 8). After the marriage of Patricia Collins and the plaintiff approximately forty years ago, they lived in a two-family home owned by family members in the neighborhood, and thereafter in 1952 moved to their present residence at 22 Webb Street. The premises were conveyed to them by Milton E. Collins, et al, by deed dated February 19, 1952 and recorded in Book 3876, Page 502 (Exhibit No. 1) and were essentially a gift from Mrs. Jordan's parents.

2. The land acquired by the plaintiff and his wife is shown on a plan entitled "Plan of Land Owned by Milton Collins in Walnut Park, Middleton, Mass." dated September 22, 1951 by W. W. Esty, Jr., recorded as Plan No. 107 of 1952. The granted premises contained about 12,520 square feet according to the plan, then ended in a point at the southerly intersection of two rights of way, each twenty (20) feet in width. On the southeasterly side of the way which forms the southeasterly boundary of the land and shown on Exhibit No. 9 appears the legend "N/F HOWE", a predecessor in title of the defendants. Apparently, with the passage of time, the Jordans constructed a driveway which connected the two rights of way and left a grassy triangular plot at the intersection of what is now Webb Street and the more westerly way now known as Walnut Lane, as is apparent from a comparison of Exhibits Nos. 9 and 10.

3. Mrs. Jordan has now inherited with other family member (s) real estate formerly owned by her parents, who are now deceased, on Webb Street and Mr. Jordan has acquired tax title property in the neighborhood at sales conducted by his wife who is Town Treasurer of Middleton. The land claimed by Mr. Jordan in this action, however, has never been assessed to him nor has he ever paid any real estate taxes thereon. Currently the land is assessed to predecessors in title of the defendants, Albert and Gordon Sheldon, as evidenced by tax bills issued to them for two parcels of land containing fifteen (15) and forty-five (45) acres respectively (Exhibits Nos. 5 and 6).

4. Map 25 of the Middleton Assessors (Exhibit No. 7) shows the large parcel claimed by the defendants as bounded southerly by a former Boston and Maine Railroad right of way now said to belong to the Town of Danvers, westerly and northwesterly by Webb Street and otherwise by strangers to this litigation. The westerly twenty (20) foot right of way is now called Walnut Lane, and the names of the assessed owners of the parcels within the triangular area bounded by Webb Street and Walnut Lane, as well as on Jordan Lane, include many members of the Collins (or Leary) families, Mrs. Jordan's mother having been a "Leary".

5. The plaintiff assisted the contractor in constructing his home at 22 Webb Street and testified that he removed soil from the disputed area to fill in his lot. Shortly after he moved into his new home, he mowed the disputed area and began his gardening efforts thereon. He planted a garden mostly of vegetables, but with some flowers, in an area which now appears to be about thirty-five (35) feet by fifteen (15) feet, which has been described by various witnesses as previously having been larger or smaller. He ran hoses from his own land across the intervening street to water the garden. When he first started raising vegetables, he commuted to Boston but after a few years he started his own television repair service. Since he was then self-employed, he was able to work on his garden when others were at work. The area was fenced in to keep out wild animals, other than for any other reason. Anyone who wanted to work in the garden had to be agile, and Mrs. Jordan testified that this kept her from persuing her interest in growing flowers.

6. The larger tract of which the disputed area forms just a small part has been used over the years by its owners for the cutting of hay and the occasional grazing of animals, but Mr. Sheldon testified that the grass was of too poor quality to use it intensively. He and his brother Albert acquired title to land of Nellie C. Howe by deed from Thomas F. Fitzgibbon, as Conservator, dated May 12, 1952 and recorded in Book 3895, Page 347. At some time the site was used for semi-professional baseball games at which Mr. Sheldon's father sold cold drinks, but ultimately this presumably was discontinued as were the railroad trains which once ran by the field. Exhibit No. 10 shows what appears to be the remains of an old fence running through the land claimed by the defendants which at some time in the past kept the cows out of the cornfield in the larger portion of the sixty (60) acre tract. Mr. Sheldon, who was a livestock broker before his retirement, and his brother at some time kept cows in the upper pasture.

7. In addition to the semi-professional baseball games at which Mrs. Jordan's father excelled as a pitcher, the plai ntiff's children and their cousins, of whom there were many, played baseball over the years in the area. Home plate was located on the triangle formed by the drive connecting Webb Street and Walnut Lane, and some of the outfield was on the area in dispute. In the winter there also were activities by the children on the locus such as sliding across Webb Street from the Leary land. The neighborhood children also would pass through the opening in the old wire fence by the cornfield to reach a pond to the east for skating.

8. At some time there was an old county road in the vicinity which may have run through the locus, but there is no documented evidence as to the location of the road or its abandonment, and it is impossible to determine any clues as to title therefrom.

9. All of the parties involved in this litigation were acquaintances and in many instances close friends. Gordon Sheldon and his wife, for example, were friends of Mrs. Jordan's grandmother. The Sheldons also became close friends of Mrs. Jordan's uncle (her mother's brother) and his wife. Accordingly, they were invited guests at the wedding of the plaintiff and Patricia Collins and knew members of the Jordan family well. The Sheldons bought their first television set from Mr. Jordan, and he thereafter kept it in repair for them. In fact, the area seems to have been an enclave where small town values prevailed and neighborly customs were observed.

10. Some time after Mr. Jordan commenced his garden in the disputed area, Mr. Sheldon drove by and saw him working on it. The conversation which took place was substantially as follows: Mr. Sheldon said to Mr. Jordan, "You started a new garden", to which the reply was "Yeah, do you mind?" Mr. Sheldon replied, "No." There was other evidence as to the permissive use by third parties of the locus. Mr. Sheldon granted Mrs. Jordan's brother, Richard Collins, permission to hold a wedding reception in the field. At various times during the years, Mr. Collins kept old cars on the field and removed them at Mr. Sheldon's request.

11. Mr. Sheldon, as the years went by, visited the Webb Street area once or twice a year, more frequently in the winter when he used to plow the snow for the neighborhood.

12. The plaintiff never made any claim of title to any part of the defendants' land until he was visited by the Pollacks to explain their development plans. After he learned the price of the lots he visited his attorney and filed an affidavit at the registry of deeds in Book 9048, Page 540 (Exhibit No. 2). This litigation followed.

The rules governing the acquisition of title by adverse possession have frequently been stated. The plaintiff must show that he has used the premises openly, notoriously, adversely and exclusively under a claim of right for twenty years in order to defeat the title of the record holder. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961), Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1971) rev. den., 394 Mass. 1101 (1985). The burden is on the party claiming adversely to show that he has met the test as to each element which comprises adverse possession, and if any one of these is lacking, then he cannot prevail. Mendonca v. Cities Service Oil Co., 354 Mass. 323 (1968). In the present litigation there is a dispute as to whether the plaintiff's use was permissive, rather than adverse, and I have concluded on the basis of all the evidence that this indeed was the case. See Ryan v. Stavros, 348 Mass. 251 (1964) and Bigelow Carpet Co. v. Wiggin, 206 Mass. 542 , 548 (1911). The relationship of the parties, the neighborly spirit in years past, and the permission granted to use the area, all dispel any conclusion that the plaintiff intended to hold adversely to the predecessors in title of the defendants. It seems to have been an opportunistic response to the increase in the value of real estate, dictated perhaps by a pamphlet on the subject of adverse possession displayed by the plaintiff which led to a claim of title. The plaintiff argues that he has used the land for thirty­five (35) years, and indeed there is no dispute that he did indeed use a portion thereof. He did not, however, ever attempt to obtain a tax bill for the property and in view of his wife's position, he clearly knew about such a requirement for an owner.

The use made by the children is of no evidentiary value on the question as to the adverse nature of the occupation since it is typical of children's playtime activities, done without regard to ownership, simply for the fun of the activities and indeed games cannot have covered the twenty (20) year span even if weight should be given to them which I do not believe.

Even if I had not found, as I do, that the plaintiff's use was permissive, there is no element of color of title, and the most the plaintiff could have hoped to establish was title to the small garden plot and an easement to reach it. This he has not done.

Therefore, on all the evidence, I find and rule that the use made by the plaintiff of land claimed by the defendants was permissive, not adverse, and that he has not acquired title thereto.

Judgment accordingly.

Exhibit 1