REG 39003

August 6, 1991

Dukes, ss.



The plaintiff, the present trustees of Cracktuxet Trust under a declaration of trust dated February 23, 1956 (Exhibit No. 4), seeks to register the title to a parcel of land situated in Edgartown on the island of Martha's Vineyard between the Atlantic Ocean and the Crackatuxet Cove, containing about 14.6 acres, and shown on a plan entitled "Plan of Land, Edgartown, Mass." dated December 31, 1974 by Schofield Brothers, Inc. The present trustees of the trust are Henry Foley, Jr. whose father was one of the original members of the trust and the attorney whose firm prepared the declaration, Paul E. Vietor (presumably a descendant of Alexander O. Vietor, one of the makers of the trust), Helen Barron and Betsy Chapin. The defendant Richard Brown claims to be the owner of an undivided interest in a portion of the trust property. The complaint was filed on October 24, 1975, and it is only recently that the plaintiff has elected to move the case forward (with encouragement from the Court). Answers were filed by the Commonwealth, which withdrew its objection at the start of the trial, and Andrew P. Houlahan and Daniel J. Mullen who did not further pursue the case.

A trial was held at the Land Court on May 8, 1991 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff called as witnesses Henry Foley, Jr., senior trustee of the trust, Catherine Foley, wife of one of the founding members and mother of Henry Foley, Jr. and Melville Chapin, a member of the trust and an attorney with the Boston firm of Warner & Stackpole. The witnesses for Mr. Brown were John C. Larson, the original Land Court examiner appointed in the case who has since resigned as a member of the bar of the Commonwealth and the defendant Richard Brown. There were 15 exhibits introduced into evidence, some of multiple parts, which are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The premises which the plaintiff seeks to register are shown on a plan entitled "Plan of Land in Edgartown, Mass." dated December 31, 1974 by Schofield Brothers, Inc. (Exhibit No. 2). The constituent parts of the property are shown on separate plans prepared at the time of the acquisition of the property by the plaintiff's grantor, one entitled "Plan of Land in Edgartown, Mass. surveyed for H. Thomas Osborne" dated January 26, 1954 by Hollis A. Smith and recorded with Dukes County Registry of Deeds in Book 225, Page 531 (Exhibit No. 9) and on a plan entitled "Plan of Land in Edgartown, Mass. surveyed for Ralph D. Osborne, Jr." dated July 12, 1954 by Hollis A. Smith and duly recorded in Book 226, Page 544 (Exhibit No. 10). All recording references herein are to the Dukes County Registry of Deeds.

2. The declaration of trust of the plaintiff was dated February 23, 1956, was made by E. Bonner Bowring, Alexander O. Vietor and Gerrit W. Van Schaick and was recorded in Book 230, Page 428. This was a Massachusetts trust with transferable shares representing the beneficial interests therein (Exhibit No. 4).

3. Title to the premises was conveyed to the trust by H. Thomas Osborne by deed dated June 9, 1956 and duly recorded in Book 230, Page 557 (Exhibit No. 5). The granted premises included the two parcels shown on the Hollis A. Smith plans. The conveyance was subject to rights in a twenty foot wide right of way as shown on the registration plan (Exhibit No. 5).

4. The property was used by the holders of the beneficial interest in the trust for summer activities, as well as annual and special meetings of the trust. There are thirty shares of beneficial interest, some of which are owned jointly. There also has been created in recent years a new category of membership known as a summer subscriber. The members enjoy the usual beachside activities during each season, which roughly extends from Memorial Day until after Labor Day, and only members and their guests are allowed to use the beach.

5. Located on the trust property is the main building which is used as a clubhouse, a pumphouse which has been recently renovated, a barbecue pit, a garage and a toolshed. The main building is occupied by the caretakers who live there during the summer. It has several bedrooms, a large living room, a couple of fireplaces, a gas stove, refrigerator, gas lights, running water and a bathroom. In the past it has been used for parties by the members. The present buildings have all been there since at least 1963 and have been renovated and repaired in the meantime.

6. Access is from the state road which leads to the adjoining public beach, there being a right of way across the Commonwealth's land to the locus. The plaintiff has erected a gate to bar trespassers from access to the trust property. There is a fence in this area as well, but it is difficult to keep the gate intact; recently someone drove right through the barricade. The gate was damaged; presumably the four wheel drive vehicle or pick-up truck suffered damage as well.

7. Each year the caretakers mark the easterly boundary of the beach with a rope which they use to delineate the plaintiff's property and which is placed across the beach to mesne high water. There also are "no trespassing" signs at this point. There is a similar rope at the westerly end of the property, but it is placed not at the boundary line between land of Stephen Gentle and the plaintiff but with permission at Gentle's westerly boundary. Similarly there are "no trespassing" signs at this point' as well. The rope and signs are intended to bar third parties from stopping on the plaintiff's property (particularly from the public beach to the east), although beachgoers may pass across the trust's beach. The success rate is unclear.

8. The caretakers are young men hired to live at the property during the summer. They patrol the beach to limit its use above high water mark to members and their guests as well as serving as lifeguards.

9. The Cracktuxet Trust has been assessed for the locus, and taxes paid by it for at least the last twenty years. From 1970 to 1974 the assessment included two parcels, one of 11 acres and the second of 7 acres. From fiscal 1975 through fiscal 1979 the assessment was the same. More recently, from fiscal 1980 to fiscal 1990 the tax bills referred to two parcels of 5.6 acres and 9.0 acres which would equal the acreage shown on the registration plan. Assessment and payment of taxes thus have a history of a period of no less than, and doubtless larger, twenty-one years. The change in area presumably reflects the serious erosion at South Cape Beach where several hundred feet in depth have become victims of the ocean. In addition, the trust has maintained insurance of the property.

10. The Commonwealth of Massachusetts made a taking of the adjacent property by instrument dated June 28, 1988 and duly recorded in Book 502, Page 693 (Exhibit No. 1B) which preserves the right of way "to access a parcel of land described in a deed recorded in the Dukes County Registry of Deeds in Book 230, Page 557, as may be held now or formerly by the Cracktuxet Trust of Edgartown under a declaration of trust dated February 23, 1956 and recorded with said Registry in Book 230, Page 428, to the extent, if at all, such right of way has been legally established of record by grant or reservation, or as been legally established by implication or prescription as of the date of recording this order." Such right of way has been established.

11. Restrictions imposed by an order of the Department of Natural Resources dated June 25, 1975 duly recorded in Book 328, Page 319 (sheet 86-A of the abstract of title (Exhibit No. 3)) were excepted from the rights taken by the Commonwealth.

12. The title report submitted by the Land Court examiner was adverse since fractional interests in others were outstanding from early partition proceedings. The lack of probate and the difficulty of tracing interests made an accurate assessment of the outstanding fractional shares difficult, but the respondent Richard A. Brown claims to own possible fractional interests in two of the four parcels comprising locus. These he attempted to convey to the Edgartown Conservation Society which failed to accept them, causing Mr. Brown's renewed interest in the case.

The plaintiff relied at the trial on the doctrine of adverse possession to eliminate the missing interest in their record title rather than attempting by a lengthy review thereof to establish the adequacy of the record. There is some question as to the location of the interests claimed by Mr. Brown which are of a shotgun nature. [Note 2] I am persuaded that his grantors may have had some record interest in the locus although the absence of the necessary probate records reveal flaws in Brown's holdings. In addition, the conveyances to him are of any interest, and accordingly they may be subject to prior interests of record. The lack of such records makes it is difficult to be certain of the extent of the Brown interest. However, that proves immaterial in this case since I find and rule that adverse possession by the plaintiff buttressed by the doctrine of "color of title" has given title to the plaintiff.

To prove that one has acquired title by adverse possession the plaintiff must show that it has had open, notorious and adverse possession as against all the world under claim of right for at least twenty years. There is no real dispute that the easterly portion of the premises upon which the buildings are located is good either of record or by reason of adverse possession. As to the remainder of the property it has been used by the plaintiff who has paid taxes on it, and whose predecessors in title both granted and reserved a right of way across it many years ago. In addition, however, the plaintiff has the benefit of the doctrine of color of title. As was said by Justice Kass in Norton v. West, 8 Mass. App. Ct. 348 (1979) at page 350:

Color of title, in the context of an adverse possession claim, is an assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title. See Attorney Gen. v. Ellis, 198 Mass. 91 , 97-98 (1908). The advantage which a person may gain from that doctrine is that the activities relied upon to establish adverse possession reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant. Dow v. Dow, 243 Mass. 587 , 590 (1923). For example, if the act of adverse possession were cultivating a half acre parcel of land, but the claimant held an invalid deed describing three acres, the claimant would have constructive possession of the three acres for the reason that it is the presumed intention of the grantee of the deed to assert such possession.

Here there were conveyed to the plaintiff many years ago, over thirty-six to be exact, two adjoining parcels of land in Edgartown along the shore of the Atlantic Ocean and touching Cracktuxet Creek. There were flaws in the record title by virtue of missing interests. The plaintiff has used portions of the property intensively during the intervening years for beach activities which were family oriented. The construction of buildings is after all the strongest possible evidence of adverse possession. The possession thus gained is extended by law to the entire tract through the doctrine of color of title. In addition, the marking during the appropriate season of the year of the boundaries, the patrol of the caretakers, all the elements of ocean front occupation establish the plaintiff's title to the entire area claimed.

The defendant argues that the area to be registered was not completely enclosed and therefore may not be considered to have been adversely possessed. However, I find and rule that the area was almost entirely enclosed by fencing or natural boundary which meets the test of "substantial enclosure" and that the doctrine of color of title together with actual possession proves the plaintiff's case. The doctrine of Cowden v. Cutting, 339 Mass. 164 , 168 (1959) is inapplicable.

On all the evidence therefore I find and rule that the plaintiff has shown sufficient title for it to be registered subject to such matters asmay be shown by the abstract and are not in issue here.

Judgment accordingly.


[Note 1] Also spelled "Crackatuxet".

[Note 2] This description apparently takes its name from the scattered shot of such a deed which generally is phrased as including "all my right, title and interest" in some large geographical area. Such is the case here with most of the interests which Mr. Brown has been energetically pursuing in the Brine or Divine modus operandi.