This case involves a Petition to Register title to a parcel of land, pursuant to G.L. c. 185, on the Island of Chappaquiddick in Massachusetts (hereinafter lot 68, the locus). Lot 68 is more fully described in the Petition and shown on the file plan. [Note 1] The petitioners or their predecessors have had color of title to all of lot 68 since 1906; [Note 2] and have utilized both lot 68 and several abutting parcels as a summer home from 1907 until the filing of the Petition. Lot 68 was at one time part of an Indian Reservation, and certain descendants of the Chappaquiddick Indians who originally held title to that indian land, respondents among them, [Note 3] still hold a partial, record interest in lot 68 as tenants in common. The petitioners do not hold record title to an undivided interest in lot 68, and therefore, the issue to be resolved is whether the petitioners have registerable title to lot 68 by way of adverse possession. For the reasons stated hereinafter, I rule that they do.
This case has a long history in both this court and in related cases in the Federal Courts. The Petition in this case was filed in 1975. Before this case could go to trial, Indian respondents brought a declaratory judgment action in the United States District' Court for the District of Massachusetts asserting an interest in certain land on Chappaquiddick, lot 68 included, pursuant to the Indian Non-Intercourse and Trade Act, 25 U.S.C. ยง 177 (1976) ("Non-Intercourse Act"). Because that case might have affected the Registration Petition herein, the Court voluntarily held this case in abeyance pending the outcome of the Federal case. The District Court, upon motion, dismissed the action finding that the plaintiffs did not state a claim for relief under the Non-Intercourse Act. That decision was appealed, and the United States Court of Appeals for the First Circuit affirmed the decision of the District Court. Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979). Upon the decision of the Appeals Court, this case proceeded to trial.
Four years after Indian respondents had filed their objection and answer to the Petition and one week before the trial was scheduled to commence, Indian respondents filed a motion to dismiss, which was denied. [Note 4] In denying that motion, the Court, inter alia, ruled that it had subject matter jurisdiction to consider the Petition for Registration. [Note 5]
Subsequent to the commencement of trial on the Petition, certain groups of Indian descendants, Indian respondents among them, brought another declaratory judgment action in the United States District Court for the District of Massachusetts seeking a declaration of their tribal status and of their rights to certain lands in southeastern Massachusetts. This Court, again, voluntarily held the Petition for Registration in abeyance while awaiting the outcome of the second Federal case. The District Court rendered an adverse judgment, plaintiffs appealed, and the First Circuit Court of Appeals held that the appellants had not established their tribal status, which was necessary to assert a claim to aboriginal title. [Note 6] Mashpee Tribe v. Sec. of Interior, 820 F.2d 480 (1st Cir. 1987). The Indian respondents subsequently stipulated that the second Federal case disposed of their arguments regarding subject matter jurisdiction and their arguments related to indian land claims. This leaves the issues relative to record title and adverse possession.
Upon motion of the Indian respondents, and due to the long delay between the final resolution of the second Federal case and the last day of trial on the Petition for Registration, the Court Ordered that final argumnts on the Petition be reargued. Subsequent to those arguments, the Indian respondents filed an affidavit of their attorney and a motion to have it included as an exhibit and another motion to reopen the case for further hearing. Those motions were opposed. The reason given in support of their motion to reopen the case was based on the petitioners' reliance on Allen v. Batchelder, 17 Mass. App. Ct. 129 (1984). [Note 7] Indian respondents asserted that the champerty and bounty hunting issues raised in the Allen case somehow taint their motivations in this case. Although the holding herein is in part based on Allen, the holding in no way addresses or considers the issues of champerty or bounty hunting. Moreover, the long and numerous delays in this case to date would only be further exacerbated by allowing such a motion. I therefore deny both the motion to admit the affidavit and the motion to reopen the case for further hearing.
Two separate stipulations were entered into in this case; one between the Commonwealth and petitioners and the other between respondents Sherman and Harriet B. Hoar and petitioners. Neither stipulation effects this decision.
Four days of trial were held at which a stenographer was sworn to take and transcribe the testimony. Nine witnesses testified and nineteen exhibits, including the file plan and the title examiner's abstract with supplemental report, were introduced into evidence, all of which are included for the purpose of any appeal. Based on all of the evidence, I find the following to be the facts;
1/ The locus, title to which is sought to be registered, is a 5.4 acre tract of land situated on the southeasterly side of Edgartown (Chappaquiddick), Massachusetts. The locus (hereinafter "lot 68") is described as Lot #68 on a plan of land entitled "Land in Edgartown, Mass. Chappaquiddick Island Est. of Dr. Frank L. Marshall", dated September 1, 1947, by Dean H. Swift, Surveyor. [Note 8]
2/ By an 1878 report of the Probate Commissioner for Dukes County, recorded at Book 65, Page 57, [Note 9] the following persons were declared to be the owners of lot 68:
(a) Jane Sams - 16/50
(b) Sophronia Amos - 6/50
(c) Marsilla Rogers - 6/50
(d) Angeline Mosby - 6/50
(e) Richard Goold, Jr. - 16/50
3/ By deed, in 1866, Jane Sams purported to convey all of lot 68 to John Ross. That deed was not recorded until January 20, 1890, at Book 82, Page 18. Although Jane Sams purported to convey the fee interest to lot 68, she only could have, and did only, convey a 16/50ths interest in lot 68. By deed dated January 20, 1890, recorded at Book 82, Page 49, John Ross conveyed his interest in lot 68 to Chester Pease. By deed dated September 17, 1906, recorded at Book 117, Page 58, Chester Pease conveyed his interest in lot 68 to Frank L. Marshall, the father of one of the petitioners, Robert B. Marshall.
4/ Frank L. Marshall died intestate on February 28, 1947, leaving as his heirs his four children, to whom lot 68 passed as follows:
(a) Frank M. Marshall - 4/50
(b) Robert B. Marshall - 4/50
(c) Mary Marshall Swanson - 4/50
(d) Barbara Marshall - 4/50
5/ By deed dated Decembr 31, 1949, recorded at Book 218, Page 168, Frank M. Marshall, Robert B. Marshall and Mary Marshall Swanson conveyed their interests in lot 68 to Barbara Marshall Fynbo. [Note 10]
6/ By deed dated February 24, 1959, recorded at Book 236, Page 323, Barbara Marshall Fynbo conveyed her interest in lot 68 to the petitioners as joint tenants. The petitioners therefore now hold record title to a 16/50ths interest in lot 68.
7/ The respondents who hold an interest in lot 68, acquired their interest, if at all, by deed or through intestate succession from the individuals listed in paragraph 2 and their heirs and/or devisees; and are all potential co-tenants of the petitioners.
8/ The deed into Frank L. Marshall, dated September 17, 1906, purports to convey the fee interest in lot 68, as described therein, with full warranty covenants. Although the deed into Frank L. Marshall purported to convey the fee interest in the locus, that deed only conveyed a fractional 16/50ths interest in the locus.
9/ Various local residents believed that lot 68 was "Marshall land".
10/ The deed into Frank L. Marshall described the land conveyed as follows:
A certain tract of land situated on the Island of Chappaquiddick in said Edgartown and at a place called North Neck, bounded and described as follows: to wit,
Beginning at a stone set in the ground near Cove Meadows, so called, being the south corner bound of the land set off to Thomas Lathen: thence
N 37 W by said Lathen's land across said Neck to a bound on the cliff; thence
S 53 W 14-1/2 rods to a ditch; thence
S 37 E across said neck to a stone set in the ground near Cove Meadow; thence
SEly by said Meadow to the first mentioned bound, containing 5-1/2 acres and 20 rods.
11/ Lot 68 is only one of a number of abutting lots which were owned by Frank L. Marshall from 1906 until the time of his death;
and thereafter owned by various members of the Marshall family. [Note 11] Although both Appendix A & B show a portion of the sliver lots as belonging to someone other than the Marshalls, the Marshalls have treated all of the sliver lots as their own.
12/ Lot 68 is a large meadow or pasture like field which rises to a bluff on the northerly portion, then drops off to a sand dune and then the harbor. It is bounded on the north by Edgartown Harbor, on the south by Cove Meadow, which is a salt marsh consisting of water and mud, on the west by a group of sliver lots, some owned by the Marshalls and some owned separately, and on the east by land of another. (See Appendix A & B) The land is covered by beach grass and intermittent beach plum bushes. An access road runs through the more southerly section of lot 68 from the west to the east bound. ( See Appendix A & B). That road is referred to variously as an open way and "Road to North Neck". The Road was originally located closer to cove Meadow, however, Frank L. Marshall moved the road away from the Meadow in the 1920's, due to the fact that Cove Meadow was causing the road to deteriorate. Until the 1960's, there were no structures on lot 68, other than the fences subsequently described. The Marshalls' home was located approximately 780 feet from lot 68. (See Appendix B).
13/ The petitioners and their predecessors openly and continuously used lot 68 and the other Marshall land shown on Appendix B as one tract of land for their summer home, from the year after Frank L. Marshall acquired the land in 1906 until the time of the filing of the Petition for Registration in this case.
14/ The records of the Board of Assessors for the Town of Edgartown indicate that the petitioners and their predecessors were assessed for real estate taxes on lot 68 from 1907 until 1978. Those taxes were paid by the petitioners or their predecessors for all the years assessed.
15/ In 1972, both respondent Brine and the petitioners were assessed for real estate taxes.
16/ No one ever objected to the petitioners or their predecessors working on lot 68 and no one, to the petitioners' knowledge, made any claim to lot 68 from 1906 until at least 1972.
17/ At least as early as 1915, a cedar post and barbed wire fence demarked the easterly boundary of lot 68. That fence line was still standing, although in some state of disrepair, in approximately 1925. In 1960, the only thing remaining from that fence consisted of a number of posts which were either flush with the ground or protruding from the ground but hidden beneath vines and beach plum bushes. The fence was rebuilt in 1960, substantially along the same line using the same type of construction. When the fence was rebuilt, a steel pipe and barbed wire fence was also built on the westerly bound of lot 68. A split rail gate was installed across the Road to North Neck on both the west and east bound, both of which were generally kept open to allow access to property owners further east on North Neck. Some of the posts which were installed in 1960 have since been stolen, however, the fence line was, at the time of trial, still clearly visible. In 1946 or 1947, four steel pipes were set to demarcate the bounds of lot 68. Two of those pipes were set on the east bound and two were set on the west bound of lot 68. (See Appendix B). Both a cement bound and a collection of sticks and stones were in existence demarcating the west bound of lot 68 prior to 1947, but for an unspecified period of time.
18/ In the 1910's and 1920's, Frank L. Marshall, various members of his family, and certain friends would annually "burn off" significant portions of the Marshall land, including lot 68. From the 1930's until 1959, the burning off was less frequent, occurring every two or three years. This burning off was done to control the tick and mosquito population in the area. Very often, but depending on the direction of the wind, the burning off would occur from a westerly direction to an easterly direction. When that was the case, the burning off would incorporate a "back fire" established at the east bound of lot 68. [Note 12] The back fire, or as it is commonly known a fire break, was a means for containing the fire within the Marshall land.
19/ In the 1960's, the petiioners had a paddock and split rail fence built on lot 68. The split rail fence enclosed less than half of lot 68. ( See Appendix A).
20/ Begining in 1906 and up until at least the 1920's, when the Marshalls came to Chappaquiddick for the summer they would bring with them a pony, a horse, approximately seven pigs, and a cow. All of these animals were grazed on lot 68 and the fence on the east bound was sufficiently in tact to keep the grazing animals from straying. During the 1920's and the 1930's for at least twenty years, Barbara Marshal Fynbo would ride and graze her pony on lot 68.
21/ At least as early as the late 1920's, one of the petitioners' predecessors, Frank L. Marshall, cultivated certain beach plum bushes located on the northerly portion of lot 68's east bound. [Note 13] That cultivation consisted of pruning, fertilizing, pluming, [Note 14] and burning off gypsy moths. The bushes ranged in size from four to five feet. The Marshalls would pick the beach plums in large quantities to make beach plum jellies. The cultivated bushes were regarded by other residents of the Island to be of superior quality, and so, they would frequently ask permission to come on to lot 68 to pick the beach plums. In the 1920's, one individual, who received some unspecified award of distinction for his beach plums, was given permission by Frank L. Marshall to take clippings from the beach plum bushes on lot 68. The Marshalls have picked beach plums from lot 68 up and until the filing of the Petition for Registration.
22/ The Marshalls also used lot 68 at various times from 1907 until after the Petition was filed, for picking bay berries, for family picnics and recreational fires, for recreation on the dunes and beach at the northerly portion of lot 68, and for the storage of large timbers. In the 1960's, the Marshalls also dug underground trenches for utility lines. Somewhere between 1959 and 1964, they bulldozed a portion of lot 68 for construction of a proposed cottage. Beginning in the early 1970s, the petitioner, Mr. Marshall, began to mow lot 68 up to its easterly bound.
23/ In the 1920's, certain relatives of the Indian respondents believed that they might hold some interest in certain unspecified lands on Chappaquiddick. There was, however, no evidence introduced that those individuals ever made any claim to lot 68, or objected to the use of it by the Marshalls. Moreover, there was no evidence that they made any claim to any land on Chappaquiddick.
The petitioners' claim of adverse possession requires the Court to examine two issues. First, have the petitioners shown an ouster of their co-tenants, and, if so, have the petitioners proven adverse possession. Allen v. Batchelder, 17 Mass. App. Ct. 453 (1984). In order to establish title by adverse possession, there must be proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 (1964). These elements must be proven by a fair preponderance of the evidence. Cohasset v. Moors, 204 Mass. 173 (1910). The burden of proving adverse possession extends to all of the elements of such possession and if any single element is left in doubt, then the claimant cannot prevail. Mendonca v. Cities Service Oil Co. of Pennsylvania, 354 Mass. 323 , 326 (1968).
Sole possession by one co-tenant is not in and of itself adverse as against another co-tenant; in fact, it can be consistent with the rights of the co-tenant. Allen v. Batchelder, 17 Mass. App. Ct. at 456. It is well settled, however, that a long exclusive and uninterrupted possession by one co-tenant, without any possession, or claim for profits by the other co-tenant, is evidence from which a trier of fact may and ought to infer an actual ouster. Id. Moreover, the failure of a co-tenant to "make a claim, 'if unexplained or controlled by any evidence tending to show a reason for such neglect or omission to assert a right,' furnishes evidence from which the trier of fact ought to infer an actual ouster and adverse possession". Id. at 457 (quoting Lefavour v. Homan, 3 Allen 354 , 355 (1862)) (emphasis added). The periods of exclusive possession where an ouster have been inferred have ranged from thirty to ninety years. Id. at 456. In fact, there is support for the proposition that when a co-tenant takes possession under a deed purporting to convey the "whole estate with warranty", for the prescriptive period, then an actual ouster of the co-tenant should be found. Lefavour v. Homan, 3 Allen 354 , 355 (1862).
Frank L. Marshall acquired color of title to and possession of lot 68 in 1906, and there was no evidence introduced to show that any of the co-tenants made a claim of right or engaged in any act of dominion on the property until at least 1972, a period of sixty-six years. Moreover, Frank L. Marshall took title to lot 68 by a deed purporting to convey the entire fee interest in the property, with full warranty covenants. The myriad of actual, open, notorious and exclusive acts committed by the Marshalls on lot 68 from 1907 until at least 1972 are described more fully hereinafter. Based on the foregoing, I rule that the petitioners and their predecessors, back to and including Frank L. Marshall, ousted their co-tenants by at least 1972.
The remaining issue to be resolved is whether the petitioners have proven title to lot 68 by adverse possession. I rule, for the reasons stated hereafter, that the petitioners have established title to lot 68 by adverse possession.
The respondents argue that the characteristics of lot 68 bring that land within the "woodland requirement" for adverse possession; namely, that unenclosed woodland which is sought to be acquired by adverse possession must, in addition to the usual requirements for
adverse possession, be fenced or cultivated for the prescriptive period. See Cowden v. Cutting, 339 Mass. 164 (1959). Lot 68 is not woodland. Rather, it is open meadow or pasture type land covered by beach grass and intermittent beach plum bushes. Lot 68 does not have the type of characteristics which would bring it within the "woodland" category. I therefore rule that the petitioners are not required to meet the so called "wooland requirement" of Cowden.
Despite the fact that the petitioners are not required to meet that standard as a condition for obtaining title by adverse possession, fencing of land can be a factor which will support a finding of adverse possession. Lot 68 has been partially fenced for at least twenty consecutive years.
Due to the topographical characteristics of lot 68, only the east bound of that lot would have to be fenced in order to demark the extent of the Marshall land. See Dow v. Dow, 243 Mass. 587 , 593 (1923) (total enclosure by fencing not necessary when boundaries of locus can be shown with substantial certainty by resort to existing monuments); Cf Phipp v. Crowell, 224 Mass. 342 , 343 (1916) (case where fencing of one end of peninsula was sufficient to demark land claimed). The characteristics of lot 68 which dictate that result are related to the fact that two of the bounds are natural boundaries and over one half of a third boundary abuts another Marshall lot. [Note 15] The northerly bound of lot 68 is Edgartown Harbor, the southerly bound is Cove Meadow, which is a marshy area distinct in character from lot 68, the westerly bound is both another Marshall lot and land of another, and the easterly bound was fenced as hereinafter described.
The facts relevant to fencing of lot 68 are that, at least as early as 1915, a cedar post and barbed wire fence demarked the easterly bound, that fence was still in existence in 1925, the fence was sufficiently in tact to prevent grazing animals from wandering off of lot 68 at least until the 1930's, steel pipes were set on the easterly and westerly bounds in 1947, the fence on the easterly bound was rebuilt in 1960, and at that time remnants of the fence line were still in existence, a fence was also placed on the west bound in 1960, and split rail gates were placed on the Road to North Neck across both the east and west bounds of lot 68 in 1960. Prior to 1947, both a cement bound and a collection of sticks and stones demarked the westerly bound. The net affect of all of this is that the east bound of lot 68, which was the easterly most bound of the Marshall land, was clearly fenced for at least twenty years beginning in 1915, that the fence was in some state of disrepair from the 1930's until 1960, that form 1960 until the filing of the Petition, the fence was again standing with gates across both the east and west bounds; and, that the west bound, for an unspecified time prior to 1947, was demarked by a cement bound and a collection sticks and stones, subsequent to 1947, two steel pipes additionally demarked that bound, and after 1960, the west bound was fenced.
Because the petitioners hold color of title to all of lot 68, they are only required to establish use of a portion of lot 68 in order to establish title by adverse possession to all of that land. Norton v. West, 8 Mass. App. Ct. 348 , 350-51 (1979). The petitioners have established that they used various portions of lot 68 for over sixty-six years in an actual, open, notorious, exclusive and adverse manner. The fact that the petitioners only used lot 68 as a summer home does not affect their ability to acquire lot 68 by adverse possession. See Lachance v. First Nat. Bk. & Trust Co., 301 Mass. 488 , 490 (1938) (nature and extent of occupancy required to establish a right by adverse possession varies with the character of the land, the purposes for which it is adapted, and the uses to which it has been adapted).
The Marshalls went to Chappaquiddick every summer, from the time Frank L. Marshall acquired the Marshall property in 1907 until the time of trial. The Marshalls' summer home was situated on a large tract of land, of which, lot 68 was a part. The Marshalls would make use of lot 68 in each of those summers as hereinafter described.
Every year for approximately the first twenty years that Frank L. Marshall owned the Marshall land, he would annually burn off the land, including lot 68, in order to keep down the tick and mosquito population. That process became more intermittent in the 1930's continuing up and until 1959, when the last burning off occurred. The burning off was conducted in an open manner, sometimes with the assistance of other Chappaquiddick residents. The smoke from the burning off was visible from other parts of the Island. The act of burning off the land was one of the most open and notorious acts of dominion and control committed by the Marshalls on lot 68. The fact that it would occur only once a year for twenty years, then more sporadically thereafter, does not detract from the continuous nature of the act. Other residents of the Island were aware when it took place, and, it is a reasonable inference that the burning off would leave a scorched area for at least a time until the grass could grow back in.
The Marshalls cultivated the beach plum bushes on lot 68 at least as early as the late 1920's, and have picked beach plums from those bushes on a regular basis up and until the filing of the Petition for Registration. The cultivation of those bushes extended to pruning, fertilizing, pluming, and burning off gypsy moths. The high quality of beach plums on lot 68 was known of by other residents of Chappaquiddick. Some of those individuals would occasionally ask permission from Frank L. Marshall to come on to lot 68 to pick the beach plums. One individual even asked Marshall for permission to take cuttings from the bushes on lot 68. The act of cultivating the bushes and limiting access to them is an example, among other things, of the exclusive nature of the Marshalls' possession of lot 68.
The Marshalls also used lot 68 for a variety of other activities; such as picking bay berries, picnicking, recreational fires, access to the dunes and beach, storage of timbers, preparing the site for building, and mowing the lot. The Marshalls grazed a variety of animals on lot 68 for over twenty years. Barbara Marshall Fynbo rode her pony on lot 68 for over twenty years. In the 1920's, Frank L. Marshall changed the position of the Road to North Neck. From the time Frank L. Marshall acquired lot 68 in 1906 until 1978, the various Marshall title holders have been continually assessed for taxes on lot 68 and have paid those taxes. I find and rule that all of the acts described in the foregoing paragraphs were collectively conducted in an actual, open, notorious, exclusive, and adverse manner under a claim of right for over sixty-six years. [Note 16] I therefore rule that the petitioners have established registerable title to lot 68, as described in their Petition and shown on their file plan, by adverse possession. Said Decree of Registration is to be subject to such other matters as are disclosed by the examiner's abstract which are not in issue.
Decree of Registration to issue accordingly.
ROBERT B. MARSHALL, et ux, v. OITZELLE EPPS, REBECA MARCHANDO, THELMA McFARRELL, JACQUELINE ROZARIO, THERESA BRYANT, JULIAN EPPS, JULIUS EPPS, ERNEST EPPS, JOHN L. BLACK, SHERMAN HOAR, HARRIET B. HOAR, and WILLIAM H. BRINE, and the Commonwealth of Massachusetts.
