CIV 87-0536

September 1, 1989

Bristol, ss.



The present action involves a dispute between Warner B. Goff, the plaintiff, who claims title to an undivided one-third interest in a parcel of vacant land known as the "Phillips Lot" situated off the southeasterly side of Berkley Road in Berkley in the county of Berkley and Edward B. White who also claims title to the northerly triangle of said lot both by conveyance and adverse possession. This matter had issues in common with Butler, et al v. Staples, et al, Land Court Misc. Case No. 87-0536 which by agreement of the parties was tried with it. Chief Justice Marilyn M. Sullivan of the Land Court was designated a Superior Court justice to hear and decide the Superior Court case. A decision and judgment in each action were entered on September 2 and 3, 1988 respectively but were partially vacated as to the Superior Court action by order dated September 9, 1988, they having been entered inadvertence and mutual mistake.

In addition to the earlier days of trial on May 10 and 11, 1988 a further day of trial was held on March 22, 1989 at which a stenographer was appointed to record and transcribe the testimony. Seventy exhibits, some of multiple parts were introduced into evidence in this and the Land Court case; three chalks were provided for the assistance of the Court; and two items were marked for identification only. It was agreed at the trial that the evidence and exhibits were to be considered in each case so far as relevant. Duane Butler, Edmon St.Yves, E. Otis Dyer, a Registered Land Surveyor, Thomas B. Cantwell, Esq., Edward B. White and Warner Goff all testified.

On all the evidence I find and rule as to the Superior Court case as follows:

1. I affirm the previous findings of fact and rulings of law as to the foreclosure by the defendant Bristol County Savings Bank and its waiver thereof.

2. I strike paragraph 11 in its entirety which appears on pages 7 and 8 of the decision. I also strike line 6, commencing with the words "In the Superior Court case . . ." of the last full paragraph of the decision and the remainder of the paragraph.

3. The land in dispute in the Superior Court case is situated on the easterly side of Berkley Street. The plaintiff Warner Goff Claims under a deed to him from Virginia D. Haskins dated March 12, 1987 and recorded in Book 3343, Page 22 (Exhibit No. 1), whereas Edward B. White claims under a deed from Bristol County Savings Bank to him dated April 3, 1986 and duly recorded in Book 2967, page 178 (Exhibit No. 2B), together with title acquired by adverse possession. Frederick B. White, et al, conveyed land on the easterly side of Berkley Street to the defendant White by deed dated November 23, 1962 and recorded in Book 1415, Page 153 (Exhibit No. 50); Stewart E. White, Jr. conveyed to the defendant White by deed dated November 23, 1960 and recorded in Book 1415, Page 154 (Exhibit No. 51). A careful plotting of the description in said two deeds and a comparison of it with the Assessor's plan (Chalk C), the Dyer plans of July 13, 1982 (Exhibit No. 32) and of May 28, 1982 (Exhibit No. 69) establishes that the land described in the deeds to the defendant White extend across the northerly position of the Haskell parcel to land now or formerly of Narragansett Improvement Company. It is the triangle formed by the extension of the White southwesterly land which is in dispute as to any title acquired by Mr. White by adverse possession.

4. There was evidence of possession by the White family of Lot 27 as shown on the Assessor's plan, but it was difficult to determine which activities were located on the disputed area and which on the remainder of the White holdings. It is clear that over the years Mr. White raised potatoes and corn in the area and in the late 1950's kept as many as seventeen heads of cattle on the land for five or six years with a fence to contain them. The Whites also cut wood on the land.

5. About 1955 Mr. White's mother signed a lease to McCabe Sand and Gravel on the back of a brown paper bag, and.Mr. White thereafter felt bound to honor it by executing an instrument dated January 14, 1963 (Exhibit No. 52) demising a portion of the land conveyed to him, including the disputed area, to the same party. The lease was for a term of twenty years beginning on January 14, 1963. It appears that the lessee may have commenced his operations at the Berkley Street end of the premises and thereafter proceeded easterly. The evidence was disputed as to whether any operations actually took place on the triangular parcel prior the expiration of the term of the lease. There was testimony by an expert witness that he found no evidence of the gravel operation on locus in 1977 or thereafter until the 1980's. I find, however, that the operations were carried on upon the remainder of the parcel described in the deeds to Mr. White and may have crossed the line.

6. In recent years Mr. White has seeded the area with approximately 5000 fir and spruce trees which he obtained from Bristol Agricultural School. The project of forestation has been suspended until this litigation is complete. The 1987 application to the Soil Conservation Board for permission to remove gravel made by G. Lopes Construction Inc. (Exhibit No. 55) and the permit (Exhibit No. 56) refer to an area 600 feet easterly from Berkley Street. The permit requires sloping and restoration of the work area as the work progresses.

It is well settled in this Commonwealth that title to real estate may be acquired by adverse possession upon a showing of open, notorious, exclusive and uninterrupted possession adverse to all the world under claim of right. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). There is a corollary to the doctrine which is set forth in Dow v. Dow, 243 Mass. 587 , 590 (1923) as follows:

where a person enters upon a parcel of land under a color of title and actually occupies a part of the premises described in the deed, his possession is not considered as limited to that part so actually occupied but gives him constructive possession of the entire parcel.

This is known as color of title, and has been followed, or at least recognized in Nantucket v. Mitchell, 271 Mass. 62 (1930) Norton v. West, 8 Mass. App. Ct. 348 , 351 (1979) and Macallister v. DiStefano, 18 Mass. App. Ct. 39 , 42 (1984).

The defendant White has brought his occupation within the doctrine of color of title since activities sufficient to constitute adverse possession took place on the land described in the deeds to him which included within the description the disputed triangular area. It accordingly may be embraced within the blanket of possession even if acts did not specifically occur thereon.

Accordingly I find and rule that as between the plaintiff, Warner B. Goff and the defendants Edward B. White and Bristol County Savings Bank the plaintiff has title to an undivided oneĀ­third interest in the so-called Phillips lot conveyed to him by Virginia D. Haskins by deed dated March 12, 1987 and duly recorded with Bristol North District Registry of Deeds, Book 3343, Page 22, other than the triangular northerly portion thereof, the defendant White having acquired title thereto by adverse possesion.

Judgment accordingly.