REG 40759

March 7, 1990

Essex, ss.



By petition dated March 26, 1981, the Plaintiff, Richardson Farms, Inc. ("Plaintiff"), seeks to register title, pursuant to G.L. c. 185, §1, to a certain parcel of land located in Boxford, Massachusetts, consisting of approximately eleven (11) acres ("Locus"), as shown on Land Court Plan No. 40759-A, entitled "Plan of Land in Boxford, Mass.", dated August 20, 1980, by Robert E. Anderson, Inc. (Exhibit No. 28). On April 23, 1985, Katherine Decoulos, as Trustee of the Dekka Realty Trust, filed an objection to the Plaintiff's registration petition. The matter was referred to Land Court Title Examiner, Mitchell S. M. Krock ("Examiner"), on July 9, 1986. On July 31, 1987, an Abstract of Title to Locus was filed with the Court ("Abstract") (Exhibit No. 1). In the Abstract, the Examiner reported that, in his opinion, the Plaintiff "has not a good title as alleged, and proper for registration".

On July 14, 1987, Christ J. Decoulos, as Trustee of the Sheeps' Pasture Realty Trust ("Defendant"), filed a motion to be substituted as the Party-Respondent herein. This motion was subsequently allowed by the Court.

The case was tried on September 13 and 14 of 1988, and on January 11, 1989, at which times the proceedings were electronically tape-recorded and later transcribed. A fourth and final day of trial was held on August 21, 1989, at which time the Court appointed a stenographer to record and transcribe such testimony. A total of thirty-eight (38) exhibits were accepted into evidence and nine (9) witnesses offered testimony. All exhibits are incorporated herein for purposes of any appeal. After considering the evidence, testimony and perinent documents, I find that there is insufficient evidence to support the Plaintiff's contention of title to Locus as the holder of record title. The Plaintiff's claim thereto must therefore be considered under the doctrine of adverse possession. In view thereof, on all of the evidence, I make the following findings of fact:

1. As shown on Land Court Plan No. 40759-A, Locus is a rectangular shaped parcel consisting of 11.272 acres of land, surrounded almost entirely by stone walls. It is located at the westerly end of a fifty (50) foot wide way known as Burning Bush Drive, which way was accepted by the Town of Boxford as a public way on October 9, 1961 (See Exhibit No. 1, Sheet 121).

2. Locus, in its entirety, is heavily wooded vacant land, covered with rock ledges and hilly terrain. It is not suitable for agricultural purposes and has not, perhaps for that reason, been cultivated.

3. From approximately 1908 to 1914, members of the Richardson family caused large amounts of cordwood to be removed from a heavily wooded area of land, which included Locus.

4. Each Christmas during the late 1960's, members of the Richardson family traversed Locus and surrounding lands to gather up red berries and greens for the holiday season.

5. For a few months per year during the late 1970's, the Richardsons hired a professional logging company to remove timber from land including Locus.

6. Although the Plaintiff contends that the Richardsons paid the real estate taxes due on Locus from 1902 to 1977 (See Exhibit No. 23), there is sparse evidence in the record to support such an assertion, particularly insofar as the Richardsons were unable to identify the precise property on which such taxes were paid. Moreover, there is a question as to the extent to which such an act, in and of itself, is able to put the true owner of Locus on notice that an adverse claim to his property is being made.

7. The Defendant Decoulos is the owner of certain property located at 56 Burning Bush Drive. By this action, he claims ownership to Locus, which property lies westerly of his residence. I find that the evidence which the Defendant has presented herein is sufficient to defeat the Plaintiff's claim of registerable title to Locus, but insofar as this case is a proceeding to register title in the Plaintiff, pursuant to G.L. c. 185, §1, I decline to rule, beyond such finding, on the merits of the Defendant's claim of title to such property.

As the Plaintiff seeks to establish title to Locus by adverse possession, it must prove to the trier of fact that for twenty years, without interruption, it or its predecessors used the area in dispute actually, openly, notoriously and exclusively. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure to prove any one of these requisite elements will bar the Plaintiff's claim. Gadreault v. Hillman, 317 Mass. 657 , 661 (1945). Whether these elements are sufficiently proven is essentially a question of fact, inasmuch as the nature and extent of the occupancy required to establish title by adverse possession vary with the character of the land, the purpose for which it is adapted and the uses to which it has been put. Kershaw at 320 citing LaChance v. First National Bank and Trust Co., 301 Mass. 488 , 490 (1938). From the standpoint of the true owner, the purpose of these elements is to put the true owner on notice of the hostile activity of the possession, so that he may be afforded an opportunity to vindicate his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Dow v. Dow, 243 Mass. 587 , 593 (1923). Upon consideration of all of the evidence before the Court, I find and rule that the Plaintiff has failed to establish title to Locus by adverse possession.

In the instant matter, the land in dispute may be characterized as wild or wood land. To prevail on a claim of title by adverse possession to such land, the claimant must present sufficient evidence of fencing or cultivation, which acts are illustrative of possession. Cowden v. Cutting, 339 Mass. 164 , 168 (1959). This rule is consistent with the general principle that title by adverse possession cannot be shown to wild or wood land which has always been open and unenclosed. Cowden at 168 citing Bates v. Town of Cohasset, 280 Mass. 142 , 153 . (1932). The evidence before the Court reveals that Locus has been heavily wooded since the early 1900's. In addition, there is no evidence that the Richardsons or their predecessors ever enclosed the land in dispute by erecting fencing along the boundaries of the property. Althoµgh Locus is almost entirely surrounded by stone walls, it is impossible to glean from the record the approximate date these walls were erected or the identity of those persons who positioned them in their present location.

Notwithstanding the foregoing, I find that the Plaintiff's removal of cordwood from a large area of land, including Locus, from 1908 to 1914, its logging of Locus in the late 1970's, and its annual berry picking during the winters of the late 1960's constitute acts which are far too sparse and sporadic to establish title to such land by adverse possession. At the very most, the duration of the Plaintiff's use entails an uninterrupted period of six years, which period is grossly inadequate when measured against the twenty years required for adverse possession.

In consideration of the foregoing, I find and rule that the Plaintiff has failed to prove title to Locus based on the theory of adverse possession, or otherwise, and that it does not have title to Locus proper for registration. Its petition to register title to Locus must be dismissed accordingly.

Judgment accordingly.