EINI E. HEYWOOD vs. ESTATE OF ROY F. HEYWOOD, SR. (MIDDLESEX COUNTY PROBATE #86p-3850A), ROBERT C. HEYWOOD, ADMINISTRATOR.

By complaint filed on April 29, 1987, the Plaintiff, Eini E. Heywood (hereinafter referred to as "Plaintiff"), commenced this action seeking a declaration, pursuant to G.L. c.231, §1, that she is the owner, by adverse possession, of certain property consisting of approximately one hundred (100) acres of land, located on Greenville Road in Ashby, Massachusetts ("Locus") and further, that the Defendant, Robert C. Heywood, be enjoined from including said property as an asset of the estate of his father, Roy F. Heywood, Sr., and from disposing of the property through said estate. The Plaintiff also seeks the issuance of an order compelling the aforesaid Robert C. Heywood to execute a deed giving any and all right, title and interest which he may hold in said property to the Plaintiff and her assigns, forever in fee simple, as well as a declaration that, in 1964, the aforesaid Roy F. Heywood, Sr. intended to and did convey such property in fee simple absolute to the Plaintiff and her husband, the late Raymond C. Heywood.

The Defendant, in his capacity as Administrator of the Estate of Roy F. Heywood, Sr., filed an answer and counterclaim to the Piaintiff's complaint on June 23, 1987, seeking therein a determination that he, as Administrator, holds the sole and exclusive right, title and ownership to Locus. The Plaintiff filed her answer to such counterclaim on July 20, 1987, said answer being amended thereafter on July 22, 1987.

A trial was held on June 29, July 18 and November 16 of 1989, at which times the proceedings were recorded, and later tran- scribed, by a court-appointed reporter. Testimony was presented by thirteen (13) witnesses and twenty-eight (28) exhibits were introduced into evidence. All of these exhibits are incorporated herein for purposes of any appeal. The Court viewed Locus, in the presence of counsel, on July 25, 1989.

Upon consideration of all of the evidence, I find the following facts to be most pertinent hereto:

1. The Plaintiff is the widow of Raymond C. Heywood. The Defendant, Robert C. Heywood, Administrator of the Estate of Roy F. Heywood, Sr., is the brother of Raymond C. Heywood and Roy F. Heywood, Jr. (referred to collectively as "the Heywood brothers"). [Note 1] The Heywood brothers are the sons of the late Roy F. Heywood, Sr. and Winona Heywood. [Note 2]

2. Addie S. Heywood, paternal grandmother of the Heywood brothers, acquired title to Locus on September 6, 1905, said conveyance being evidenced by a deed recorded at Book 3182, Page 479 in the Middlesex South District Registry of Deeds (Exhibit No. 9). Locus is described therein as "a certain tract of land, with the buildings thereon, containing about one hundred acres, formerly known as the Locke Farm". At the time of the death of Addie S. Heywood on October 8, 1933 (See Exhibit No. 3), she owned Locus in fee simple.

3. By her Last Will and Testament, Addie S. Heywood left a life estate in Locus to her husband, Harry C. Heywood, and a remainder interest in fee to her son Roy F. Heywood, Sr., said remainder interest being subject to the right of Harry C. Heywood to dispose of Locus during his lifetime.

4. The Plaintiff married Raymond C. Heywood in March of 1941, both parties then being approximately eighteen (18) years of age. After their marriage, they resided in the farmhouse situated on Locus, rent-free. At this time, Harry C. Heywood, Roy F. Heywood, Sr., Winona Heywood and Robert C. Heywood were also living in the farmhouse.

5. Harry C. Heywood died on November 28, 1941 (See Exhibit No. 2), never having exercised his right to dispose of Locus. At this time, title to Locus thus vested in his son, Roy F. Heywood, Sr., and the Town of Ashby began assessing the real estate taxes due on Locus to Roy F. Heywood, Sr. as the owner of record.

6. From 1941 to approximately 1944, the Plaintiff and Raymond C. Heywood contributed to the maintenance of Locus by occasionally painting and wallpapering the farmhouse. During this time, the farm consisted mainly of open fields, the only farming activity being a small vegetable garden and two or three milking cows.

7. In early 1944, Raymond C. Heywood entered military service and the Plaintiff moved to Fitchburg. Around this same time, Roy F. Heywood, Sr. and Robert C. Heywood moved to Lunenberg. The record is silent as to the whereabouts of Winona Heywood at this time.

8. From 1944 to 1945, Roy F. Heywood, Sr. was committed to a mental institution in Gardner.

9. In 1945, the Plaintiff gave birth to a son, Raymond C. Heywood, Jr. During this same year, Roy F. Heywood, Sr. informed the Plaintiff that, during his stay in the hospital, he had not paid the real estate taxes due on Locus. In an attempt to remedy this situation, he suggested that the Plaintiff make such payments in exchange for his allowing her and her family to return to Locus and reside there with him and Robert C. Heywood. The Plaintiff consented to this arrangement and returned to Locus in early 1946, after Raymond C. Heywood left the military service. Under the terms of their living arrangement, the Plaintiff, Raymond C. Heywood and Raymond C. Heywood, Jr. occupied the first floor of the farmhouse on Locus, where they paid only for utilities.

10. From 1946 to approximately 1959, Roy F. Heywood, Sr. and Robert C. Heywood occupied part of the second floor of the farmhouse. During 1946, all of the occupants of the farmhouse ate their meals together on the first floor. These meals were usually prepared by the Plaintiff. In 1947, however, disputes and disagreements arose between Roy F. Heywood, Sr. and Robert C. Heywood, and Raymond C. Heywood and the Plaintiff. Thereafter, Roy F. Heywood, Sr. and Robert C. Heywood ate their meals alone on the second floor.

11. In 1959, Robert C. Heywood entered military service. Upon his return, he moved to Greenville, New Hampshire, visiting Locus on various weekends to see his father.

12. Between 1946 and 1964, the Plaintiff and Raymond C. Heywood installed a furnace and bathroom in the farmhouse and made necessary reparations to the premises, including painting, and repair of the roof and chimney. During this time, they also furnished Roy F. Heywood, Sr. with the money needed to pay the real estate taxes on the premises.

13. During the 1950's and 1960's, Roy F. Heywood, Jr. and his children, who were at this time residing in Greenville, New Hampshire, visited Locus at least once a month. In the eary 1960's, certain sons of Roy F. Heywood, Jr. began storing "junk vehicles" in a field in the rear of the farmhouse. From time to time thereafter, his sons would go to Locus and take parts from the cars, said activity continuing until approximately 1975. At no time were Roy F. Heywood, Sr. or his children physically prevented from entering Locus nor was their presence there met with objection.

14. On August 16, 1961, the Town of Ashby made a taking of Locus due to nonpayment of real estate taxes for the year 1959. This tax taking is evidenced by an Instrument of Taking recorded at Book 9894, Page 293 in the Middlesex South District Registry of Deeds (Exhibit No. 6).

15. In 1964, the Plaintiff and her family moved from Locus into their own house located a short distance away. Subsequent thereto, the Heywood brothers met with their father at Locus, where they discussed the possibility of renting the first floor of the farmhouse in order to finance the cost of maintenance and real estate taxes relative thereto.

16. Shortly after the Plaintiff and her family moved from Locus, Eva Tokala and her family, friends of the Plaintiff, assumed occupancy of the first floor of the premises, said occupancy continuing until 1969. At this time, Roy F. Heywood, Sr. resided on the second floor. The Tokalas paid no rent for their use and occupancy of the premises, but they did pay for utilities and do the cooking and cleaning for Roy, Sr. During this time, the Plaintiff and her family returned to Locus on occasion to visit Roy, Sr. and the Tokalas.

17. As evidenced by an Instrument of Redemption, dated September 16, 1964, recorded at Book 10665, Page 258 in the Middlesex South District Registry of Deeds (Exhibit No. 7), Raymond C. Heywood redeemed title to Locus on behalf of his father. [Note 3] Thereafter, all tax bills relative to Locus were sent to Raymond C. Heywood.

18. On May 11, 1966, Roy F. Heywood, Sr. died (See Exhibit No. 1) intestate, survived by his three sons, Raymond C. Heywood, Roy F. Heywood, Jr. and Robert C. Heywood. By operation of the death of Roy F. Heywood, Sr., title to Locus vested in the Heywood brothers as tenants in common, subject to whatever rights Winona Heywood may have had therein.

19. From 1969 to some time in the 1980's, the Plaintiff and Raymond C. Heywood rented out the first floor of the farmhouse, said rental fee ranging from $100.00 to $300.00 per month over the years. At no time did they make an accounting of such rents to either Roy F. Heywood, Sr. or Robert C. Heywood. Rather, the proceeds from such rents, at least in part, were used to defray the cost of real estate taxes due on the property, which cost, at all times pertinent hereto, was paid by the Plaintiff and/or her husband, without any claim for contribution from the other co-tenants. It is unclear from the record before the Court whether or not the Plaintiff and/or her husband made any further improvements or reparations to Locus during this time.

20. Through the 1970's and 1980's, the condition of the farmhouse deteriorated and a barn on Locus was torn down. The surrounding lands became overgrown with brush and trees. At the time the Court viewed Locus on July 25, 1989, the exterior of the farmhouse was in need of maintenance and, with the exception of some stone walls bounding a portion of Locus, the surrounding area was mainly unenclosed wood land.

21. Raymond C. Heywood died on June 7, 1976 (See Exhibit No. 6), his interest in Locus then descending, by operation of law, to the Plaintiff and Raymond C. Heywood, Jr., who became tenants in common with Roy F. Heywood, Jr. and Robert C. Heywood, again subject to whatever rights Winona Heywood may have had therein. The probate of the estate of Raymond C. Heywood, which included Locus as an asset (See Exhibit No. 5), was not objected to by any members of the Heywood family.

22. On March 29, 1978, the Commonwealth of Massachusetts, Department of Public Works, made a taking of a portion of Locus for purposes of relocating the State Highway, Route 31, in Ashby. This taking is evidenced by an instrument entitled "Layout No. 6228 and Order of Taking", recorded at Book 13417, Page 556 in the Middlesex South District Registry of Deeds (Exhibit No. 23). The Commonwealth awarded damages on account of the taking and layout to the Estate of Roy F. Heywood, Sr. As noted below, these damages remained unclaimed until 1987.

23. In 1981, Raymond C. Heywood, Jr. had a number of white pine trees removed from approximately forty (40) acres of Locus. Roy F. Heywood, Jr. objected to the removal of timber, despite the assurances of Raymond C. Heywood, Jr. that the proceeds therefrom would be applied to the installation of a new furnace in the farmhouse. The Plaintiff and Raymond C. Heywood, Jr. received approximately ten thousand dollars ($10,000.00) from the sale of the timber (See Exhibit No. 13), the majority of which proceeds are being retained in escrow at present. No further trees were removed from Locus after 1981.

24. During 1981, Roy F. Heywood, Jr. contacted legal counsel regarding the settlement of his father's estate. A death certificate and certain tax information were obtained and a title examination performed.

25. Roy F. Heywood, Jr. died in New Hampshire in 1982, his interest in Locus then descending, by operation of law, to his heirs, who became co-tenants with Robert C. Heywood, the Plaintiff and Raymond C. Heywood, Jr.

26. In December of 1986, Robert C. Heywood was appointed Administrator of the estate of his father, Roy F. Heywood, Sr. No objections to this appointment were filed.

27. On or about December 29, 1986, Robert C. Heywood, in his capacity as Administrator of the Estate of Roy F. Heywood, Sr., closed out the savings account of Roy F. Heywood, Sr., and received therefrom a draft in the amount of $3,482.97 (See Exhibit No. 27).

28. On or about September 1, 1987, Robert C. Heywood, in his capacity as Administrator of the Estate of Roy F. Heywood, Sr., applied for, and was awarded, the damages resulting from the Commonwealth's 1978 taking for, and layout of, Route 31.

The Plaintiff seeks a declaration that, based on the nature and intensity of her acts with respect to Locus from 1964 to 1987, which acts, she contends, constitute an ouster of her fellow co­tenants, she has acquired the exclusive fee interest in the property by adverse possession. To prevail on this theory, she must sustain her burden of proving to the trier of fact that for twenty years, without interruption, she and/or her predecessors in title used the one hundred (100) acres of land comprising Locus in a manner which was actual, open, notorious, exclusive and adverse to the true owner(s) of such property. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985); Senn v. Western Massachusetts Electric Company, 18 Mass. App. Ct. 992 , 993 (1984); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979); Ryan v. Stavros, 348 Mass. 251 , 262 (1964). A failure to sufficiently prove any one of these requisite elements will bar her claim of adverse possession. Mendonca v. Cities Service Oil Company of Pennsylvania, 354 Mass. 323 , 326 (1968); Gadreault v. Hillman, 317 Mass. 657 , 661 (1945). The question as to whether or not these elements are sufficiently proven is essentially a question of fact, inasmuch as the nature and extent of occupancy required to establish adverse possession will vary with the character of the land, the purpose for which it is adapted and the uses to which it has been put. Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961) citing Lachance v. First National Bank and Trust Co., 301 Mass. 488 , 490 (1938). For example, where one asserts title by adverse possession to land comprised chiefly of wild or wood land, he or she must establish that such land has been enclosed or reduced to possession by cultivation. Senn at 994; Cowden v. Cutting, 339 Mass. 164 , 168 (1959); Bates v. Cohasset, 280 Mass. 142 , 153 (1932). These various requirements serve to put the true owner on notice of the hostile activity of the possession, so that he may be afforded the opportunity to take steps to vindicate his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Dow v. Dow, 243 Mass. 587 , 593 (1923).

Where, as here, the claim of adverse possession is asserted by one co-tenant against her other co-tenants, the sole and exclusive possession of Locus by the claimant is not, in and of itself, adverse to the interests of the nonpossessory co-tenants, inasmuch as each co-tenant holds title to the entire property by unity of possession, and, accordingly, enjoys the common right to freely use and occupy the whole premises. Rickard v. Rickard, 30 Mass. 251 , 253-254 (1832); Silloway v. Brown, 94 Mass. 30 , 36 (1866); Altobelli v. Montasi, 300 Mass. 396 , 398 (1938); Tucci v. DiGregorio, 358 Mass. 493 , 497 (1970). However, it is well-settled law in this Commonwealth that a long, exclusive and uninterrupted possession of Locus by one co-tenant, without any possession or claim for profits by the others, is evidence from which the fact­finder may infer an actual ouster. Rickard at 253-254; Joyce v. Dyer, 189 Mass. 64 , 67-68 (1905); Nickerson v. Nickerson, 235 Mass. 348 , 352-353 (1920); Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984). See also Snow v. E.L. Dauphinais, Inc ., 13 Mass. App. Ct. 330 , 334 (1982). In short, the Plaintiff must introduce evidence of a series of acts which indicate a decisive intent and purpose to occupy the premises to the exclusion and in denial of the rights of the other co-tenants. Lefavour v. Homan, 85 Mass. 345 , 355 (1862).

In the instant matter, the Plaintiff places great emphasis on Raymond C. Heywood's redemption of Locus from tax title in 1964 and their payment of taxes on the premises thereafter. I find the significance which she impresses upon these acts to be misplaced, inasmuch as the responsibility for the payment of real estate taxes, or any other encumbrance on the common property, is the shared legal obligation of all of the co-tenants. Sheehan v. Sheehan, 361 Mass. 196 , 197 (1972). Specifically, as to the payment of real estate taxes on the common property by one co­tenant, G.L. c.60, §85 provides that:

A tenant in common . . . who pays the entire tax assessed upon land held . . . in common, shall have a lien upon the interest of each of his co-tenants to secure the payment to him of the proportion of each tax payable by each of said co-tenants respectively, with the costs of enforcing the same . . .

See also Howland v. Stowe, 290 Mass. 142 , 147 (1935); Salter v. Quinn, 334 Mass. 220 , 224 (1956). In order for said co-tenant to enforce his or her lien for the payment of real estate taxes on the common property, he or she must record a certificate evidencing the same in the appropriate Registry of Deeds, otherwise the lien is dissolved. G.L. c.60, §86. Accordingly, I decline to find that, by redeeming Locus from tax title in 1964, and by paying the real estate taxes due thereupon thereafter, the Plaintiff acquired anything greater than a lien upon the interests of the other co­tenants to secure the payment of their proportionate share of these taxes. Further, for the reasons set forth below, I also decline to find that the nature and duration of the Plaintiff's other acts with respect to Locus from 1964 to 1987 were sufficient to effectuate an ouster of the other co-tenants.

The foregoing facts indicate that, upon the death of Roy F. Heywood, Sr. in 1966, Locus was held by the three Heywood brothers as tenants in common, subject to whatever rights Winona Heywood possessed therein, said co-tenancy resulting in the brothers' shared right to freely use and occupy the whole parcel. However, even prior thereto, the Plaintiff and her family, Roy F. Heywood, Jr. and his family, and Robert C. Heywood all visited, used or occupied Locus at will, and at times, in the conscious presence of one another. These visits to Locus continued, although perhaps with less frequency, even after the death of Roy, Sr. in 1966. The evidence further reveals that, at times from 1969 to the 1980's, the Plaintiff and Raymond C. Heywood rented out the first floor of the premises. Although no accounting for such rents was made to the other co-tenants, see Fiske v. Quint, 274 Mass. 169 , 173 (1932); Nychis v. Fields, 7 Mass. App. Ct. 931 (1979), the proceeds therefrom were used, at least in part, to pay for real estate taxes due on the property, and to a lesser extent, to cover the costs of its maintenance. Insofar as I find the actions of the Plaintiff and her husband to be consistent with the arrangement to which all of the Heywood brothers agreed in 1964, I fail to find that they were carried out in a manner adverse to the interests of the other co-tenants, and hence infer no ouster therefrom. Additionally, the record reveals that, in 1981, Raymond C. Heywood, Jr. logged approximately forty (40) acres of Locus for profit, said activity being carried out despite the repeated verbal objections of Roy F. Heywood, Jr. Altough the removal of trees from Locus clearly constituted an act which was open, notorious and adverse to the interests of the other co-tenants, I do not find that the use, which was terminated in that same year and which affected only a portion of Locus, was of sufficient duration or intensity to effectuate an ouster of these co-tenants. Moreover, I note that, as the view of Locus confirms, neither the farmhouse nor the surrounding open lands appear to have been actively maintained or reduced to cultivation for many years prior to 1989.

In view of the foregoing, I thus rule that, even when considered collectively, the Plaintiff's acts with respect to Locus from 1964 onward are not of sufficient duration and intensity to put the other co-tenants on notice of an adverse claim to the property. In fact, quite contrary thereto, the co-tenants' permitted presence on Locus during these years, combined with their assertion of certain rights therein, constitute acts which are consistent with an acknowledgement of their interest in Locus. Accordingly, I find that, due to the prevalent interruptions in the Plaintiff's use and occupancy of Locus from 1964 to 1987, and the infrequent, albeit casual, nature of her acts with respect thereto during this time, she has failed to sustain her burden of proving that for an uninterrupted period of at least twenty (20) years, she used and occupied Locus in a manner which was exclusive, open, notorious and adverse to the other co-tenants. On all of the evidence, I thus find no ouster and rule that title to Locus presently stands in the names of Eini S. Heywood, Raymond C. Heywood, Jr., Robert C. Heywood and the heirs of Roy F. Heywood, Jr., as tenants in common, subject to any rights which Winona Heywood or her heirs may have therein. I decline herein to make a determination as to the proportionate share of real estate taxes or other expenses which each co-tenat may owe to the Plaintiff under G.L. c.60, §85 or otherwise, inasmuch as neither the Plaintiff nor the Defendant has asserted such a request in any of the pertinent pleadings, and as there is insufficient evidence of record upon which to base such a determination.

The Plaintiff and the Defendant have filed requests for findings of fact and rulings of law, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts and rules of law which I consider most pertinent hereto.

Judgment accordingly.