JOHN J. PARKER and SANDRA E. PARKER vs. ROBERT M. FINO and COMMONWEALTH OF MASSACHUSETTS.

The plaintiffs seek to register their title pursuant to the provisions of G.L. c. 185 §1 (a) to a parcel of land situated on the westerly side of Beach Street in Milford, in the County of Worcester on which there are located two houses now known as and numbered 53 and 53 1\2 Beach Street. The only parties named in the citation who appeared and answered are The Commonwealth of Massachusetts which took no active part in this litigation and the abutter to the north, Robert M. Fino, who claims the northerly property line of the locus is the northerly face of the house at 53 Beach Street extended.

A trial was held at the Land Court on December 28, 1988 and March 9, 1989 at which the proceedings were electronically recorded and thereafter transcribed. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial the plaintiffs, the defendant and Frank R. Pirrello, Jr., the registered land surveyor who supervised preparation of the filed plan testified.

On all the evidence I find and rule as follows:

1. Title to the premises adjoining locus on the south was registered in Land Court Registration Case No. 2785, and the boundaries thereof are as shown on Land Court Subdivision Plan No. 2785B. There was registered, as an appurtenant right, a right of way fourteen feet in width over locus, so far as now in force "and not released". There is no evidence of any release. Accordingly the way to which locus is subject is fourteen, not twelve feet in width, and the buildings on locus encroach thereon.

2. The plaintiffs' predecessors in title had record title to a parcel of land measuring approximately eighteen (or sixteen feet in light of the wider right of way) on Beach Street plus the right of way, the fee of which historically has been treated as part of locus, a total of thirty feet, eighty-two and 5/10 feet on the registered land, twenty-two and 5/10 feet on the west and northerly by a distance not stated. The starting point of the abstract (Exhibit No. 1) on file is a deed from Guiseppa DiPietro to Salvatore Cimino et ux dated September 8, 1923 and recorded with Worcester District Deeds, Book 2312, Page 140 (to which Registry District all recording references herein refer).

3. There also is a deed in to Antonetta Cimino from the Inhabitants of the Town of Milford dated September 23, 1963 and recorded in Book 4416, Page 415, but the method by which the town acquired title to the abutting land of which the parcel conveyed was a small piece has not been established. Between the front and rear parcels is a large area, including that also on which the right of way is situated to which the plaintiffs have no record title.

4. The deed to the plaintiffs from Lottie Cimino dated October 30, 1979 and recorded in Book 6863, Page 40 describes the property in accordance with a plan dated June 1947 and recorded in Plan Book 155 as Plan No. 34. This plan encompasses the entire locus so the plaintiffs have the benefit of the doctrine of color of title in seeking to establish title by adverse possession to those parts of locus to which they do not have record title.

5. The activities carried on upon the locus by the plaintiff's predecessors in title, the Ciminos, and the plaintiffs, both as tenants claiming under Mrs. Cimino from 1963 and as owners since 1979 included possession of the houses on the locus, the rental of the rear house at 53 1\2 Beach Street, use of the back yard and the area between the houses for family recreational activities, cutting the grass and trimming the hedges. The historical treatment of the fee to the area where the right of way is found is unusual. Neither the plaintiffs nor the abutters to the south have record title to it, but apparently it has been considered as part of the present locus subject to the right, as appurtenant to the registered piece, to use fourteen (14) feet thereof. Both houses on the locus numbered respectively 53 and 53 1\2 Beach Street encroach on the registered right of way, and the Court recommends that the plaintiffs and others having rights therein modify the legal rights to reflect the actual situation on the ground.

6. The real estate tax bills at least since fiscal 1980 (i.e., June 1, 1980) issued to and paid by the plaintiffs reflect the area now claimed by the plaintiffs. There is on record an affidavit dated October 16, 1948 and recorded on October 18, 1948 in Book 3151, Page 446 (Exhibit No. 7) by a prior owner, Salvatore Cimino, as to the assessment (but unclear as to what was encompassed thereby) and the use of the premises for dwelling purposes since 1923.

7. When the title question was raised in 1947, a plan was prepared by Eastman and Corbett, Inc., Civil Engineers of Milford which shows the locus substantially as it appears on the filed plan (Exhibit No. 5). At that time there were fences along each boundary line except the street where there is one today. A retaining wall between a portion of the plaintiffs' land and that of the defendant Fino is shown on both plans. They both indicate that the front house on locus is not flush with the property line but is approximately one foot therefrom, and I so find. Accordingly it was a trespass for Fino to hardtop the area up to the plaintiffs' foundation, and he is responsible for any water in the plaintiffs' cellar or other damage caused thereby.

In a registration proceeding the plaintiffs must satisfy the Court that they have title sufficient for registration even if there is no defendant who contests it. The plaintiffs have borne their burden as to that part of locus to which they have no record title and where they must rely on adverse possession. They also have established their northerly boundary line as shown on the filed plan by a preponderance of the evidence.

I therefore find and rule that a decree may be entered registering the title of the plaintiffs to the land shown on the filed plan subject to the rights in the fourteen foot way registered in Land Court Registration Case No. 2785 and such other matters as appear from the abstract and are not in issue here.

Judgment accordingly.