REG 41126

November 19, 1990

Nantucket, ss.



Frank L. Hardy, deceased husband of the plaintiff and the original plaintiff, has been memorialized in the reports of the Commonwealth by the interest which he acquired in Nantucket real estate by virtue of the John Doe tax procedure so popular on this island during the years from 1950 to early 1970's. In Hardy v. Jaeckle, 371 Mass. 573 (1976) the Supreme Judicial Court discussed the title history of Nantucket's outlands and its assessing practices. The justices of this Court have long been familiar with what had been a common procedure followed by island residents in an effort to return land to the tax rolls. Mr. Hardy had been instructed in the niceties of the technique by Llewelyn Schofield, a registered land surveyor, during the years that Mr. Schofield was engaged in surveying in Nantucket for the federal government and subsequently for the Town of Nantucket, and roomed with the Hardy family. The present registration proceedings are an offshoot from an earlier case, Registration Case No. 37073 from which the locus had been dismissed for failure to establish title.

The present case which covers a parcel containing approximately 168,396 square feet or 3.87 acres on Hummock Pond Road in Nantucket in the County of Nantucket shown on a plan entitled "Plan of Land in Nantucket, MA" dated February, 1982 by John J. Shugrue Inc. and filed as Land Court Subdivision Plan No. 41126A (Exhibit No. 2) on July 22, 1982 has had a checkered history in attempting to bring the matter to trial. Finally, a trial was held on December 14 and 15, 1989 and January 4, 5 and 29, 1990. At the trial a stenographer was appointed to record and transcribe the testimony. There were seventeen witnesses called by the parties and fourteen exhibits introduced into evidence which are incorporated herein for the purpose of any appeal. Witnesses called by the plaintiff were Ethel Dunham, Mr. Hardy's sister-in­ law, Mary Irene Hardy, his widow, Robert Mooney, a member of the bar who represented Mr. Hardy initially in the present proceeding, John Shugrue, a registered land surveyor who prepared the filed plan and Ralph and Richard Hardy, Mr. Hardy's two sons. Witnesses called by the defendants, the Nantucket Land Council, Inc. and Frank H. Low and Clara B. Low, included John Topham, a utility company executive in Nantucket and a former partner with Mr. Hardy in erecting small transmission lines, Arthur Reade, Jr., Land Court Title Examiner and member of the Massachusetts bar, James Glidden, also a member of the bar and counsel for the Hardy family, Ted Godfried, a Nantucket resident, Charles W. Fisher, son-in-law of Matthew Jaeckle, a defendant in the famous case of Hardy v. Jaeckle and a friend of Ralph and Richard Hardy, Paul Bennett, a predecessor in title of Nantucket Land Council, Inc. and an original defendant in the proceedings who exchanged an interest in other land with the defendant Council during the course of this litigation, Linda S. Horne, executive director of the Council, Philip Bartlett, a member of a well known Nantucket family, Albert H. Locksley, former assessor for the Town and S. Lister Landow, a business partner of Mr. and Mrs. Low.

The sole question to be determined in the present litigation is whether the plaintiff had acquired title by adverse possession to the locus shown on Exhibit No. 2. During the course of the litigation Frank L. Hardy died on December 2, 1985, Nantucket Probate No. 85P-0077-El and by his will devised all his property, real, personal and mixed, to his wife, Mary I. Hardy. At the time of the trial the only defendants remaining in the case were Nantucket Land Council, Inc. (the "Land Council") and Frank H. Low and Clara B. Low. In a registration proceeding the only title which can be registered is that of the plaintiff, see Hopkins v. Holcombe, 308 Mass. 54 , 56-57 (1941), but it is necessary for the defendants to establish some standing in order that they can be heard to question the plaintiff's title. A second issue at the trial therefore was whether the defendants had shown such an interest.

On all the evidence I find and rule as follows:

1. The locus is situated within the Smooth Hummock's Division, Share No. 15.

2. In Registration Case No. 37073 the Court decreed that Frank L. Hardy was the owner in fee simple of a parcel of land adjoining the present locus. The earlier registration case was filed on May 27, 1971 and included the present locus since the frontage on Hummock Pond Road shown on the filed plan was 1,350 feet. The registration proceeding was based on a Land Court decree of foreclosure of the right of redemption pursuant to an assignment of the tax title from the Town of Nantucket to Frank Hardy dated and recorded with the Nantucket County Registry of Deeds, Book 127, Page 220. The final decree in the Land Court foreclosure proceedings, 44475. T.L., was entered on April 30, 1971 and recorded on the following May 10 in Book 135, Page 549. Proceedings to register the title then were immediately brought.

3. The tax title premises described in the assignment of tax title bounded westerly by the division line between Lots 3 and 4 on Land Court Subdivision Plan 13629 extended to Hummock Pond Road. The registration decree accordingly followed the same description, and the Court suggested to counsel in this uncontested litigation that title to the present locus which was situated westerly of the division line could not be registered without additional title evidence. The notice of filing the petition in the earlier case and the publication did, however, include the locus, and these events occurring in 1971 constitute evidence of adverse possession. However, the plaintiff declined to attempt to establish record title as he might have done based on a deed from Robert C. Caldwell to Frank L. Hardy dated April 4, 1972 and duly recorded in Book 137, Page 141 nor was the question of adverse possession raised at this time Accordingly the Court on petition by the plaintiff entered an order severing and dismissing the present locus in 1973.

4. After the Court registered only a portion of the premises claimed by Mr. Hardy in 37073, he was indignant at the Court, but he apparently failed to realize that the description in the tax deed did not by its very language extend over the entire area which he claimed, that his counsel had declined to attempt to show record title and had made no claim of adverse possession.

5. There was a delay in the filing of the new registration proceedings which led to a change of counsel and the filing of the complaint in 1982. Much of the activity which the plaintiff engaged in upon the locus had taken place by the filing date. In about 1954 Ethel Dunham, Frank and Irene Hardy and a family named Van Pelt bought property to the east and northerly of the locus abutting on Hummock Pond. Ethel Dunham constructed her first cottage in this area which was approached by a road she and Mr. Hardy had constructed from Hummock Pond Road. In connection with this enterprise, the building of the cottage, its rental during summer months and the acquisition of the John Doe tax title, the Hardy family, Mr. Hardy's in-laws including the mother of Mrs. Hardy and Miss Dunham were frequently in the neighborhood. From approximately the middle fifties to 1983 some of the activities in which they engaged were situated on the present locus. These included the picking of bayberries, the parking on a high knoll at sunset to see the deer, the eating of lunch on the land when engaged in cleaning the cottages off locus, the picking of raspberries for the women's mother and the chauffeuring of guests from the Hardy's guest house to see the locus.

6. In approximately 1965 Frank Hardy and John Topham who was a witness at the trial constructed a pole line from Hummock Pond Road to the Eisner property which line forms the westerly boundary of locus. Mr. Eisner was a Nantucket police officer who built a home on the shores of Hummock Pond, for which he needed services. He subsequently sold the property and moved to another part of the United States. The question as to who selected the site of the pole line was controverted, but the location chosen was the shortest distance from the Eisner house to Hummock Pond Road where there was service. In 1975 Mr. Hardy granted an easement to William H. Eisner dated August 17, 1976 and recorded in Book 155, Page 65 (Exhibit No. 7). This instrument provides that the wires will be placed underground once the servient tenement has been registered. The grant also includes the right to keep and maintain the existing well point and connections thereto. Indeed, the Hardys had installed a pump of their own of a very primitive nature in another location in order to provide water for a garden which they tilled, planted and lost to the deer and rabbits in the early years of their activities. The Hardys did not try again after their first efforts. Mr. Eisner, however, needed a source of water other than the pond and such a grant was included in the recorded easement although like the utility easement the actual work was done previously. The loose ends were tied up at the time that Eisner was selling his home to a third party. The Eisner septic system also may be situated on the Hardy locus.

7. In about 1956 Frank Hardy strung an old fashioned barbed wire fence along one part of the locus for just one year. Thereafter Mr. Hardy noticed bits of fur in the barbed wire and was told by others that it was a danger to deer. The fence was removed and not replaced; otherwise, the locus was never fenced.

8. Ethel Dunham worked for many years in hardware stores on Nantucket, and she was frequently asked to bring home small cardboard signs with the legend "No Trespassing" which were placed in several places on the locus. The signs fell prey to the elements and were in place only for short periods of time, an explanation perhaps for why witnesses for the defendants, as opposed to the plaintiff, were unable to remember the presence of such signs. The lapse of time also doubtless contributed to their memory lapses.

9. Mr. Hardy in this period of his life rose at an early hour in the morning and frequently drove to the locus in his distinctive green and white Chevrolet simply to observe it. In the evening he and his wife frequently parked on locus to watch the sunset.

10. During one of the early years for which locus was claimed, Mr. and Mrs. Hardy took advantage of the seedling program and planted small trees on the locus.

11. Mr. and Mrs. Hardy had a guest house and would frequently bring favored guests on island rides which might include a visit to the locus with the representation that it was their land. It was widely known in Nantucket that Frank Hardy claimed land in the area, and it is difficult now to separate the knowledge of such claims based on John Doe tax assessments from the present claim based on adverse possession. Several witnesses testified that they knew Frank Hardy claimed land in the area in question and that it was generally known.

12. An appearance was filed in this case and Superior Court litigation also was commenced by Robert Caldwell who claimed to own an interest of record in locus as an heir of Cyrus Hussey. In the original Land Court proceeding (Registration Case No. 37073) it was intended that after the registration decree was entered, Caldwell would be conveyed a lot in the southwesterly corner thereof, and it was for this reason that Caldwell did not in fact file an appearance in Court in that original registration case. The controversy which arose between Mr. Caldwell and Mr. Hardy after the unsuccessful proceedings to register title to that portion of locus where Caldwell was to receive a deed was settled by the payment by Mr. Hardy of $5,000, apparently in lieu of a real estate conveyance. He did not reconvey the interest Caldwell conveyed to him (see Exhibit No. 6), but no claim of record title is made in this proceeding.

13. Hunting, at least in the years in question, was widespread in Nantucket on open lands. For many years until the registration of the adjacent parcel there were no homes from Judge Poland's camp to the east of locus and a tea house run by a member of the Bartlett family to the west. Unless land was posted, the owners did not object to hunting by Nantucket residents and hunters felt free to go throughout the open lands of the island. This included locus where several witnesses testified they had hunted over the years. The Hardy sons also hunted in this location but in view now of the limitation on hunting within 500 feet of an occupied dwelling and the width of locus it would seem to be of little value for the pursuit of such activities even though certain objections to registrations actually are grounded in the fear that construction of homes will limit available land for hunting.

14. The interest of the Nantucket Land Council in locus is minute, but record ownership is sufficient to give it standing to challenge the Hardy petition. An interest was acquired from Paul Bennett in exchange for a share held by the Council in another island set-off. The presumption is warranted that the Land Council acquired title from Mr. Bennett in order vigorously to contest the plaintiff's title. The interest acquired by the Land Council on locus was approximately an undivided one-twentieth interest of record, but Council also claims to have acquired additional interest from the Bunker Land Trust of which William Devine (see Christian v. Mooney, 400 Mass. 753 (1987)) was a trustee, but no examination to substantiate this ownership was introduced into evidence. The Lows have been assessed in very recent years for an interest in locus, and they claim that their interest was recognized by assessments covering "outlands" generally in years prior to the preparation by Schofield Brothers of modern assessors' plans. Although the Lows' standing is dubious, I do not reach this question so long as at least one defendant, the Land Council, has sufficient title to at least give it standing.

15. Mr. and Mrs. Hardy dreamed of constructing a home on locus and may have indeed staked out a particular site for it. However, construction was never commenced, and they built a home in Nantucket in a different location. However, bounds have been placed to demarcate the premises, first by Schofield in connection with the first registration proceeding and more recently for the current case by John Shugrue in locations shown on the filed plans.

The plaintiff bears the burden of establishing title to land which she seeks to register pursuant to the provisions of G.L. c. 185, §l (a). It is undisputed that activity by Frank L. Hardy and subsequently by his wife and family ended with Mr. Hardy's death in 1985. The answers filed in this proceeding by parties claiming record title stopped the running of the period of adverse possession in 1983. Indeed the Hardys did little on the locus after this time in view of Frank Hardy's health and subsequent death. Accordingly the actions required to constitute adverse possession had to be commenced by 1963 in order to meet the requirement as to the duration of adverse possession. In fact the evidence shows that they began in the fifties. It is well established that in order to prevail on a claim of title by adverse possession the land must have been claimed openly, notoriously and adversely under a claim of right as against the world for at least twenty years. The activities which the plaintiff, her predecessors and those claiming under her engaged in on the property may be summarized as gardening, installation of a primitive well, construction of a pole line easement to serve a neighbor and the grant of an easement to maintain such pole line as well as a well serving the neighbor's property, frequent presence on the locus including picnicking, enjoyment of the natural beauty of the surroundings, keeping the property clean, the installation of Land Court concrete bounds at the four corners of the property and otherwise on it, the picking of bayberries and raspberries, the construction of a barbed wire fence and of planting of seedlings for a short period of time, the continuous posting of "No Trespassing" signs, the holding oneself out as the owner of the land and the filing of a claim of ownership in the Land court in the two registration proceedings. Admittedly the entire premises have never been completely fenced, the plaintiff paid no taxes on locus and hunting was enjoyed by members of the public if not by the wildlife pursued thereby on this locus as well as commonly in Nantucket. The activities began somewhere in the mid or late fifties and continued to 1983 so the required twenty year span of time was met.

In determining which activities are sufficient to obtain title by adverse possession the Court must be mindful of the type of property, the neighborhood and the general customs of the area, for what might well constitute adverse possession in a built up city block might fail in a country wilderness. See LaChance v. First National Bank and Trust Company of Greenfield, 301 Mass. 488 , 490 (1938) and cases cited. The present case is a very close one. It shows a conscious effort by a party who had no record ownership other than that acquired during the course of the proceedings and not documented in either Land Court case to acquire title to this tract, either by the John Doe tax title route or as to the land not within the description of the parcel in the tax title, by adverse possession. There have been over the last twenty to twenty-five years a number of activities including the decision to pursue the plaintiff's rights in this litigaition which constituted adverse possession by the plaintiff and which informed the general public of the plaintiff's claims, both by the posting, recording and publication in the two Land Court cases, the installation of bounds on the ground but more particularly by Frank Hardy's claims which became common knowledge in Nantucket. If he be viewed as somewhat of a robber baron as far as land was concerned, the activities of the defendants also are not above reproach.

On all the evidence therefore I find and rule that Mary I. Hardy has proved by a preponderance of the evidence that she has acquired title to the locus through adverse possession and that the title thereto may be registered subject to such matters of record as appear in the abstract filed in this case (Exhibit No. 1) or as reflected in the exhibits.

Judgment accordingly.