WALTER S. PIELA, JR. and GLORIA D. PIELA vs. THOMAS R. GOUR, LANA V. GOUR, RICHARD C. NICOLI and GERALDINE A. NICOLI.

This case involves a contested complaint to register title to a parcel of land, pursuant to G.L. c.185, situated on Little Alum Lake in Brimfield, Massachusetts. [Note 1] The locus consists of approximately 18,640 square feet of land and is shown more particularly on a plan entitled "Plan of Land in Brimfield, Mass.", dated April 12, 1979 and prepared by Kenneth C. Sherman. This plan was revised a number of times, the final revision having been prepared at the request of the court and dated August 20, 1985. (hereinafter referred to as the "plan"). Although the locus is described in the complaint as a single parcel of land, I will often treat it as two parcels of land in this decision because separate chains of title and different issues are involved. The two parcels will be referred to hereinafter as the "triangle" and the "five foot strip." The apex of the triangle is near the high water mark of the southerly shore of the lake [Note 2] and its base borders on Third Street, a private way. The five foot strip is a five foot by one hundred and fifty foot strip of land which lies westerly of the triangle and which runs for five feet along the southerly shore of the lake.

The plaintiffs Gloria D. Piela and Walter S. Piela (the "Pielas") claim title to the locus both by deed and "by failure of one Mary Flynn to include a five (5) foot strip of land in her deed dated March 9, 1954. . ." The Pielas also claim title to the locus by adverse use and possession of the locus from 1954. In addition, the Pielas claim the following rights as appurtenant to the locus:

Littoral rights in. . .Little Alum Pond and in the area above, below and on the surface of said Pond, delineated by the "DOCK" as shown on petitioners (sic) plan filed herewith; together with the right to use the areas on all sides of said "DOCK" for the launching, landing, anchoring and securing of pleasure craft as is reasonably necessary and convenient, having due regard for similar rights of abuttors (sic)...[T]he right to use...Third Street from Little Alum Road Northwesterly to petitioners' Southwesterly corner, in common with others legally entitled thereto.

The defendants Richard C. Nicoli and Geraldine A. Nicoli (the "Nicolis") filed an answer, in which they denied that the Pielas were the owners of the locus and also denied that the Pielas had the appurtenant rights which they claimed in the complaint. In addition, the Nicolis asserted numerous affirmative defenses, the most important of which was a claim that they (the Nicolis) were the owners in whole or in part of the locus. The Nicolis also claimed that the Pielas or their predecessors in title had abandoned all property interests, rights and easements. The other affirmative defenses asserted by the Nicolis were not argued or briefed by the Nicolis and therefore, I do not address them in this decision. The Nicolis are the owners of property which abuts the triangle easterly.

The defendants Thomas R. Gour and Lana V. Gour (the "Gours") also filed an answer, in which they claimed that the boundary line shown on the Pielas' plan "does not show the correct bounds with respect to the land of [the Gours] inasmuch as the Gours have greater rights established by the deeds of their predecessors in interest." The Gours also claimed that the Pielas had neither littoral rights nor easement rights as appurtenant to the locus. The Gours are the owners of property which abuts the triangle and the five foot strip westerly.

Eleven days of trial were held at which a stenographer was appointed to record and transcribe the testimony. Ten witnesses testified, one chalk and 120 exhibits were introduced into evidence and are incorporated herein for the purposes of any appeal. One exhibit was marked for identification only. A view of the locus westerly or southwesterly direction and the boundary running 100 feet along the land of the grantor to an iron pin at the corner of lot 2 ran in a northwesterly direction and I so find.

4. Also on May 24, 1921, Mysliwy conveyed another parcel of land which was situated on Little Alum Pond and locally known as lot 2 (shown as "Lot 2" on the Appendix) to Martin J. Flynn by deed recorded at Book 1115, Page 381. The description of the land so conveyed was as follows:

Beginning at iron pin at corner of lot this day sold to Kilpatrick, known as Lot No. l; at line of said Pond; thence about 150 feet along last named land to iron pin; thence along grantor's other land about 100 feet to an iron pin at line of lot No. 3; thence along line of last named lot about 150 feet to iron pin at line of said Pond; and thence about 100 feet, more or less, along line of said Pond, to iron pin and point of beginning.

It can be seen that lot 1 and lot 2 abut completely along their common lot line of 150 feet. The chain of title to lot 2 is important because it contained what is now the five foot strip. Accordingly, the chain of title to the relevant portion of lot 2 will be set out at a later point in this decision.

5. John Kilpatrick conveyed the westerly half of lot 1 to Robert W. Kilpatrick by deed dated September 26, 1921 and recorded at Book 1116, Page 231. The westerly half of lot 1 is shown as Parcel B on the Appendix and will be referred to as Parcel B hereinafter. This conveyance left John Kilpatrick with the easterly half of lot 1 which is shown as Parcel A on the Appendix and will be referred to as Parcel A hereinafter.

6. By deed dated June 25, 1937 and recorded at Book 1640, Page 35, Robert Kilpatrick and his wife, Alberta, conveyed to Arthur G. and Wilhelmina F. Chase, as tenants by the entirety, two parcels of land. The first parcel of land conveyed by this deed was Parcel B which had been conveyed to Robert Kilpatrick by John Kilpatrick in 1921. [Note 4] The second parcel of land was a parcel of land which is shown as Parcel G on the Appendix and which was located between Parcel B and Third Street. Parcel G had been conveyed to Robert Kilpatrick by Martin and Mary Flynn by deed dated September 8, 1928 and recorded at Book 1396 , Page 481. [Note 5]

7. Arthur and Wilhelmina Chase conveyed Parcels B and G to Richard C. and Geraldine A. Nicoli as tenants by the entirety by deed dated September 2, 1910 and recorded at Book 3531, Page 509. The Nicolis are the present owners of Parcels B and G and are defendants in this action.

8. Returning to the chain of title to Parcel A, by deed dated September 12 , 1938 and recorded at Book 1661, Page 558 , John Kilpatrick conveyed three parcels of land to Conchita Mastroianni, one of which was Parcel A which had been conveyed to John Kilpatrick by Mysliwy. [Note 6] Mastroianni then conveyed the three parcels back to John Kilpatrick and his wife, Margaret, as tenants by the entirety by deed dated September 12, 1938 and recorded at Book 1661, Page 558. John Kilpatrick became the sole owner of the three parcels by right of survivorship in 1941 when his wife died. By deed dated April 14, 1949 and recorded at Book 1986, Page 360, John Kilpatrick conveyed the three parcels to Donald R. Kenyon and Gifford Kenyon as tenants in common. By deed dated November 25, 1966 and recorded at Book 3252, Page 181, the two Kenyons conveyed the three parcels to Elizabeth A. Wetherbee, who then conveyed the parcels to Donald R. and Dorothy F. Kenyon as tenants by the entirety by deed dated November 25, 1966 and recorded at Book 3252, Page 183. Donald R. and Dorothy F. Kenyon are the present owners of these three parcels, including Parcel A.

TITLE TO THE TRIANGLE

9. By deed dated June 28, 1924 and recorded at Book 1234, Page 126, Victoria Mysliwy conveyed the triangle to Martin J. Flynn, which deed described the parcel as follows:

That certain (sic) triangular tract of land situated on the southerly shore of Little Alum Pond so­called,...bounded and described as follows, to wit: Beginning at a stake in the ground at high water mark on the southerly shore of said Little Alum Pond at the N.E. corner of land of William Curry thence southerly along the easterly line of land of said William Curry to a stake in the ground on the northerly side of a driveway leading from the Warren Road, so-called; thence Easterly along the northerly line of said driveway one hundred sixty-two (162) feet to a stake in the ground, at land of Robert Gilpatrick, [Note 7] thence Northerly along the westerly line of land of said Robert Gilpatrick to the stake in the ground at the point of beginning on the southerly side of said Little Alum Pond.

The driveway referred to in this deed is what is now known as Third Street and Warren Road is what is now called Little Alum Lake Road.

10. Martin Flynn conveyed the triangle to Justin Cohen by deed dated July 24, 1942 and recorded at Book 1742, Page 581. Justin Cohen in turn conveyed the triangle to Martin Flynn and his wife, Mary, as tenants by the entirety by deed dated July 24, 1942 and recorded at Book 1742, Page 582. Martin Flynn died on September 16, 1942 and Mary Flynn became the sole owner of the triangle by right of survivorship. Mary Flynn conveyed the triangle to Charles W. and Ida Fournier as tenants by the entirety by deed dated March 9, 1954 and recorded at Book 2319, Page 264. Charles and Ida Fournier were the parents of one of the plaintiffs, Gloria Piela.

11. Charles Fournier died on August 31, 1969 and Ida Fournier became the sole owner of the triangle by right of survivorship. Ida Fournier conveyed the triangle to her son-in-law and daughter, the plaintiffs Walter S. and Gloria O. Piela, by deed dated June 26, 1975 and recorded at Book 4148, Page 389.

RECORD TITLE TO THE FIVE FOOT STRIP

12. As was previously discussed, on May 24, 1921, Victoria Mysliwy conveyed lot 2 to Martin Flynn. Martin Flynn then conveyed the easterly half of lot 2 (Parcel C plus the five foot strip shown on Appendix) to William G. Curry by deed dated September 26, 1921 and recorded at Book 1116, Page 232. [Note 8] The easterly half of lot 2 contained what is now the five foot strip. By deed dated September 22, 1927 and recorded at Book 1380, Page 453, William Curry conveyed the easterly half of lot 2 back to Martin Flynn and his wife, Mary, as tenants by the entirety. The Flynns then conveyed the easterly half of lot 2 to Justin Cohen by deed dated July 24, 1942 and recorded at Book 1742, Page 581, who in turn conveyed the property back to Martin and Mary Flynn as tenants by the entirety by deed dated July 24, 1942 and recorded at Book 1742, Page 582.

13. Martin Flynn died on September 16, 1942 and Mary Flynn became the sole owner of the easterly half of lot 2 by the right of survivorship. By deed dated June 7, 1944 and recorded at Book 1781, Page 329, Mary Flynn conveyed to Marie Blanche Roy a portion of the easterly half of lot 2 (shown as Parcel C on Appendix). The description of Parcel C so conveyed was as follows:

A certain lot of land situated in Brimfield, Massachusetts, on the shore of Little Alum Pond, so­called, bounded and described as follows: Beginning at a point on the southerly line of Little Alum Pond at the northeast corner of land formerly of Martin J. Flynn and now supposed to be of one Lavoie and running thence Easterly along the southerly line of said Little Alum Pond forty-five (45) feet to a point at land of the grantor; thence running Southerly one hundred fifty (150) feet, more or less, along the land of the grantor to a point in the driveway leading from the Warren Road, so­called; thence running westerly along the said driveway forty-five (45) feet to said land formerly of Martin J. Flynn and now supposed to be of one Lavoie; and thence running Northerly along said last-named land one hundred fifty (150) feet, more or less, to the point of beginning . . .

This description excludes a portion of the easterly half of lot 2 approximately five feet wide and 150 feet long lying northeasterly of the parcel conveyed to Mrs. Roy. This is now known as the five foot strip. Record title to this strip remained in Mary Flynn.

14. Mary Flynn died intestate on March 11, 1954 (Hampden County Probate Case No. 99502) leaving thirteen heirs, consisting of brothers, sisters, nieces and nephews. There is no record of Mary Flynn having conveyed the five foot strip to anyone before her death. Therefore, title to the five foot strip passed to her heirs upon her death.

15. Marie Blanche Roy purported to convey three parcels of land to George W. and Nancy E. Papadopulos as tenants by the entirety by deed dated October 30, 1972 and recorded at Book 3744, Page 508. The first parcel was Parcel C. The second parcel was a parcel of land between Parcel C and Third Street (shown as Parcel F on Appendix). The third parcel was all of Mrs. Roy's right, title and interest to what is now known as the five foot strip. This is the first deed of record conveying or purporting to convey any interest in the five foot strip. In this deed, Mrs. Roy stated that her title to the five foot strip was based upon adverse possession of the strip since June 7, 1944. However, because the evidence presented refutes any claim by Mrs. Roy of adverse possession of the five foot strip, I find that Mrs. Roy had no interest in the five foot strip to convey to the Papadopuloses. Therefore, the subsequent deeds for the Roy property purporting to convey an interest in the five foot strip did not do so.

16. By deed dated March 30, 1973 and recorded at Book 3787, Page 127, the Papadopuloses conveyed the property [Note 9] to Stephanie Fitzgerald, who then conveyed the property to Nancy E. Papadopulos by deed dated March 30, 1973 and recorded at Book 3787, Page 129. This set of conveyances was for the purpose of putting title in Nancy E. Papadopulos to refinance a mortgage obligation to the Polish National Credit Union which was outstanding on the property at that time.

17. The Polish National Credit Union foreclosed on the mortgage given by Nancy E. Papadopulos on the property and then conveyed the property to Richard C. and Geraldine A. Nicoli as tenants by the entirety by deed dated December 20, 1976 and recorded at Book 4365, Page 111. The Nicolis conveyed the property to the defendants, Thomas R. and Lana V. Gour as tenants by the entirety by two deeds dated October 17, 1979. By one deed recorded at Book 4848, Page 355, the Nicolis conveyed Parcel C and Parcel F. By the other deed recorded at Book 4848, Page 354, the Nicolis conveyed to the Gours all their right, title and interest in the five foot strip. The Nicolis did not, however, have any record interest in the five foot strip to convey to the Gours.

18. By deed dated January 4, 1979 and recorded at Book 4715, Page 388, Thomas P. Shea, Jr., Mary H. McGuire, Irene T. O'Malley, George R. Shea, Edward J. Shea and Owen F. Kelly conveyed their interest in the five foot strip to the Nicolis. In that deed, the grantors stated that any interest they had acquired in the five foot strip was by reason of being heirs of Mary Flynn.

19. By deed dated September 11, 1981 and recorded at Book 5179, Page 296, Charles A. Ellison, Patricia J. (Ellison) Ferro and David C. Ellison conveyed their interest in the five foot strip to the Pielas. The title examiner's opinion was that these grantors were the heirs of Eileen Ellison, who was a niece and heir of Mary Flynn and I so find.

20. By deed dated October 10, 1981 and recorded at Book 5179, Page 295, William P. Humphrey, Claire S. Kelly, Joan F. (Smus) Seibert, Esther A. Kelly and Constance (Kelly) Jacques conveyed their interest in the five foot strip to the Pielas. William P. Humphrey was the sole heir of his mother, Nora S. Humphrey, who was a sister and heir of Mary Flynn. The title examiner was of the opinion that the remaining grantors were some of the heirs of James J. Kelly, a nephew and heir of Mary Flynn, and one of the heirs of Anna Sums a/k/a Smus, a niece and heir of Mary Flynn and I so find.

21. By deed dated October 22, 1981 and recorded at Book 5182, Page 262, Violet M. Kelly, Gerald E. Kelly and John J. Kennedy conveyed their interest in the five foot strip to the Pielas. John J. Kennedy was the sole heir of Katherine S. Kennedy, who was a sister and heir of Mary Flynn. The title examiner opined that the remaining grantors were some of the heirs of Thomas P. Kelly, a nephew and heir of Mary Flynn and I so find.

USE OF THE TRIANGLE AND FIVE FOOT STRIP BY THE FOURNIER AND PIELA FAMILIES

22. Mrs. Piela's [Note 10] parents, Charles and Ida Fournier, purchased the triangle from Mary Flynn on March 9, 1954. It should be noted that the deed from Mary Flynn to the Fourniers only contained a description of the triangle and did not contain a description of the five foot strip. When the Fourniers purchased the triangle, there was a cottage located on the parcel. [Note 11] The topography of the locus at that time was as follows: The triangle sloped down from Third Street to roughly the middle of the triangle where the cottage was located. From the cottage there was a very steep incline down to the lake. There was a walkway which went down the steep incline from the house to the lake which consisted of circular concrete steps (the "circular steps"). The circular steps were located partially on the five foot strip and partially on the triangle. The area from the bottom of the circular steps to the apex of the triangle was fairly flat with just a slight incline.

The five foot strip (which runs about 150 feet along the westerly boundary of the triangle) had an incline similar to that of the triangle. The northerly portion of the five foot strip which was nearest the lake was fairly flat coming from the water. Attached to the northerly tip of the five foot strip, at the water's edge, was a dock. To the west of the northerly portion of the five foot strip, on the Roys' property, was a stone walk which was used by the Roys to reach the lake. The land then rose in a steeper slope as it ran southerly.

23. A few days after her parents had purchased the triangle, Mrs. Piela went to the locus with her mother, father and brother. To reach the property coming from their home in Chicopee, the family drove northerly on Little Alum Road and then made a left on to Third Street, travelling westerly until reaching the locus.

On that first day, Mrs. Piela and her brother went fishing off the dock which was attached to the northerly tip of the five foot strip. Also that day, Mr. Fournier trimmed by hand the overgrowth of grass around the circular steps and on the northerly portion of the five foot strip which led to the dock. The grass was cut around the steps and that portion of the triangle from in front of the cottage to the dock was also groomed on this first visit. Mrs. Piela and her family did not stay overnight at the cottage on this first visit.

24. After the initial visit, the Fournier family went to the locus every weekend in the spring of 1954 until Memorial Day. On these weekends, the "older people" [Note 12] took inventory of what had been left in the cottage by Mrs. Flynn and cleaned the cottage to ready it for summer occupancy. The family also performed general maintenance on the locus. The entire triangle and the entire five foot strip were raked and the grass was mowed on these spring visits. Portions of the triangle and the five foot strip could not be mowed due to the rocky and hilly terrain. Accordingly, the family trimmed these areas by hand.

On these weekends, members of the Fournier family went out on the lake in their rowboat which was kept anchored to the dock throughout the summer. To reach the dock, the family walked from the cottage over the northerly portion of the five foot strip. Coming from the dock, the family then walked back up the five foot strip to the cottage. The oars and life vests for the rowboat were stored in the cellar of the cottage, the entrance to which was located on the westerly side of the cottage, almost flush with the easterly border of the five foot strip and roughly 100 feet from the shore of the lake. To carry the oars and life vests to the dock, the family walked out the doors on the westerly side of the cottage and down the five foot strip approximately 100 feet to the water. The five foot strip was the most direct path from the cellar to the dock and was used to reach the dock regularly on these spring weekends, throughout the summer of 1954 and during the years up until the time of trial.

25. In the summer of 1954, Mr. and Mrs. Fournier, Mrs. Piela and her two brothers, Jerry and Roger, moved to the lake when the children got out of school for the year and lived at the lake until the children returned to school in the fall. Mr. Fournier commuted to work from the lake. Other members of the Fournier family also spent time at the lake during this summer.

During the summer of 1954, various improvements were made to the triangle and the five foot strip. Mr. Fournier built a rose arbor in back of the cottage. [Note 13] Mrs. Piela and her mother planted bushes and flowers on both sides of the circular steps which were partially on the triangle and partially on the five foot strip. The family also spot-seeded that area of the five foot strip between the bottom of the circular steps and the dock. Mrs. Piela's father and her brother, Jerry, installed a two seat glider swing near the apex of the triangle, about six or seven feet up from the lake. One of the legs of the metal swing frame was located on the five foot strip. This swing remained in the same location, with one leg on the five foot strip, from 1954 until at least 1979 when the feud started between the Pielas and the Gours and Nicolis. [Note 14] At the time of trial, the Pielas maintained a swing in the same general area but a portion of the swing frame was no longer on the five foot strip. Also that summer, the Fournier family put three metal lawn chairs in front of the cottage, near the apex of the triangle, just easterly of the five foot strip. In addition, the Fourniers did "quite a bit" of painting in the summer of 1954.

Mr. Piela first visited the lake in the summer of 1954 as the guest of Mrs. Piela's brother, Jerry. He visited twice that summer and each time he walked over the northerly portion of the five foot strip to reach the lake. He also observed members of the Fournier family using the five foot strip to reach the dock and the lake.

During the spring and summer of 1954, the family did not ask anyone for permission to use any portion of the triangle or five foot strip, nor did anyone object to the family's use thereof.

26. The Fourniers moved back to their home in Chicopee after Labor Day in 1954, when the children started school. During the fall of this year, the Fournier family went to the locus several times to clear the property of pine cones and pine needles and other debris and to rake leaves. The entire triangle and five foot strip were raked. The Fourniers stored the lawn chairs and swings in the cellar for the winter. In order to store the chairs and swings in the cellar, the family carried these items from the apex of the triangle over the five foot strip to the entrance to the cellar on the westerly side of the cottage. The dock attached to the northerly tip of the five foot strip was not brought up and stored for the winter. It remained in the water attached to the tip of the five foot strip. In addition, the Fourniers closed the cottage for the winter. To do so, water was drained from the toilet and antifreeze was added, the pump to the well was shut off and the beds were stripped.

Members of the Fournier and Piela families engaged in the fall cleanup of the triangle and the five foot strip each year from 1954 to the time of trial. Mr. Piela participated in the fall cleanup each fall from 1956 to the time of trial, with the exception of the fall of 1957 when he was in the Army.

27. During the winter of 1954-55, the Fournier family went to the locus to go ice skating on the lake. To reach the lake, members of the family walked over the five foot strip and sat on the dock to put on their ice skates. On these visits, they used the cottage to warm up and to prepare hot chocolate or something to eat. Also that winter, Mrs. Piela's brother-in-law, Chester, went to the locus to ice fish on the lake. On these occasions, Chester spent the night in the cottage with the Fourniers' permission. On the winter trips to the locus, Mrs. Piela saw few other people at the lake. Mrs. Piela knew of only one house at the lake which was inhabited year round at that time. Most of the houses on the lake were (and still are) summer homes.

Every winter from 1954 to the time of trial, at least some members of the Fournier and Piela families went to the locus to ice skate and fish. The Fourniers and Pielas always used the five foot strip and dock for access to the lake.

28. In the spring of 1955, the Fourniers went to the locus more frequently than they did in the winter. Beginning in early May, the Founiers went to the locus to do what was to become the annual spring cleanup. Every spring from 1954 untii the time of trial, members of the Fournier and Piela families went to the locus on weekends to do a spring cleanup of the locus. The entire triangle and five foot strip were raked and cleared of debris. In addition, Mrs. Piela's father, brothers and husband mowed the grass on the triangle and the five foot strip. [Note 15] No one other than members of the Fournier and Piela families participated in the spring cleanup and no one objected to their performing said cleanup.

29. In June of 1955, the Fournier family again moved to the locus to live for the summer. Every summer from 1954 until the time of trial, members of the Fournier and Piela families lived at or visited the locus. Mr. Fournier lived at the locus each summer from 1954 until his death in 1969. Mrs. Fournier lived at the locus each summer from 1954 until 1974, the year in which the cottage burned down. Mrs. Piela lived at the locus during the summers of 1954 and 1955 and visited with her husband and family every summer thereafter. Mr. Piela went to the locus every summer from 1954 until the time of trial. Mrs. Piela's siblings' families also spent time at the locus during the summers from 1954 to the time of trial.

The Fournier and Piela families have made considerable use of the locus over the summers. They swam, boated and water skied on the lake. The families have always used the five foot strip to gain access to the dock and to the lake and continued to do so as of the time of trial. They maintained the dock at the end of the five foot strip each and every year and kept their boat anchored thereto. Every year from 1954 to 1974, the extended Fournier family gathered together at the locus in August for a birthday party for Mrs. Fournier.

During the summers from 1954 to the time of trial, the Fournier and Piela families performed general maintenance of the locus which included mowing the grass of the entire triangle and five foot strip, hand trimming the grass where necessary and spot seeding the northern tip of the five foot strip where the grass was worn away due to heavy foot traffic coming from the dock. Mr. and Mrs. Piela both testified that they never saw anyone else raking or mowing the triangle or five foot strip during the years from 1954 to 1974. Members of the Fournier and Piela families did not ask anyone for permission to perform the summer maintenance on the triangle and five foot strip and no one ever objected.

30. Numerous projects were undertaken by the Fournier and Piela families during the springs and summers between 1954 and 1974. Mrs. Fournier painted the interior of the cottage every summer from 1954 to 1974. The roof of the cottage was repaired several times over the years. In the summer of 1954, the bathroom was renovated. In 1954, Mrs. Piela's brother, Jerry, enlarged the circular steps which were present when the Fourniers purchased the triangle by adding concrete and making rectangular slabs out of the circles. In the summer of 1954 or 1955, Mr. Fournier placed a cement slab over the rusty metal cover of the septic tank within the five foot strip. This cement slab remained over the septic tank until 1979. In the summer of 1955 or 1956, the kitchen of the cottage was also renovated.

In the summer of 1956, the exterior of the cottage was painted by Mr. Fournier, Mrs. Fournier and Mrs. Piela's brother-in-law, Chester. The exterior of the cottage was painted several more times over the years. Also that spring and summer, Mr. Fournier had some terracing work done on the triangle to level off the steep slope of the triangle in back of the cottage. When the terracing was done, fill was brought in to smooth out the upper level and to create the "upper driveway." On the lower level, the "lower driveway" and a picnic area were created. A swing was placed by the picnic area after the terracing was completed. This swing remained at the picnic area until approximately 1981 or 1982. After the terracing was done, Mrs. Piela's brother built a retaining wall just westerly of the hypotenuse of the triangle to hold the fill which had been brought in for the terracing. This wall was constructed over a period of years from the late 1950s to the early 1960s. Some of the stones for the wall were taken from the back of the triangle where the terracing was done. Mr. Piela helped his brother-in-law build this wall.

In the early 1960s, Mrs. Piela's father, brothers and husband added another extension to the dock. Also in the early 1960s, Mrs. Piela's father and brother, Jerry, built concrete steps which ran from the easterly side of the cottage across the front of the triangle to the westerly side of the triangle where they connected with the aforementioned concrete slabs which had once been the circular steps.

In the spring and summer of 1966, Mrs. Piela's father and brothers built a slate patio by the back entrance of the cottage. At the same time a patio was built near the apex of the triangle in that area where the family kept their swings and lawn chairs, just easterly of the five foot strip. Most of the patio so constructed was on the triangle. However, a row of patio blocks approximately one foot wide and ten to twelve feet long extended onto the five foot strip. This patio was built in the same location as that of an earlier patio which had been there since at least 1954. A portion of the earlier patio approximately one foot long and ten feet wide had also been located on the five foot strip. In early 1967, the patio in back of the cottage was roofed and screened in.

In the late 1960s or early 1970s, the Fourniers installed stairs which led from the upper driveway down to the back entrance of the cottage. In 1973, the porch of the cottage was reroofed by Mrs. Piela's brothers and husband. Early in 1974, Mrs. Piela's brothers, Jerry and Roger, installed paneling in the living room of the cottage.

The Fournier and Piela families did not ask anyone for permission to make any of these improvements and no one objected to the improvments being made.

31. Although there is no direct evidence on whether members of the Fournier and Piela families always used Third Street for vehicular access to the locus, I have taken a view of the locus and surrounding area and it is evident that Third Street is the only means of vehicular access to the locus. Therefore, I find that members of the Fournier and Piela families must have used Third street to reach the locus each time they drove to the locus from 1954 until the time of trial.

32. The cottage burned down in September of 1974. Shortly thereafter, members of the Fournier and Piela families cleared away the debris from the fire. In the fall of 1974, members of the Fournier and Piela families performed the customary fall raking of the triangle and five foot strip.

33. In the winter of 1974-1975, Mr. and Mrs. Piela went to the locus to "look over the area" and to let their son go snowmobiling Mrs. Piela's brothers-in-law did use the lake to go ice fishing that winter.

34. In the spring of 1975, Mrs. Fournier hired someone to bulldoze the remaining foundation and walls of the cottage and to level off the terrain. Also that spring, the family performed the customary spring maintenance of the triangle and five foot strip. They mowed the grass and cleared away debris. That spring, Mrs. Fournier decided not to rebuild the cottage. Mr. and Mrs. Piela purchased the triangle in June of 1975.

35. In the summer of 1975, the Piela family visited the locus every weekend. They kept their boat anchored at the dock and used the boat throughout the summer. They continued to maintain the dock at the northern tip of the five foot strip as they had done since 1954. Mr. Piela and his son put up a screen enclosure on the triangle to use as a picnic area. Mrs. Piela's sister parked a trailer on the lower drive near the picnic area for two or three weeks that summer with the permission of Mr. and Mrs. Piela. Other members of the Fournier family took day trips to the locus that summer. The Pielas continued to mow what grass was left on the triangle after the fire. They also mowed and raked the five foot strip. The Pielas did not have the annual birthday party in August for Mrs. Fournier at the locus that summer or the following summer.

36. In the fall and winter of 1975, Mr. and Mrs. Piela consulted with a builder about the plans for a new cottage.

37. In May or June of 1976, construction of the new cottage began. The Pielas continued to use the locus every weekend as they had the previous summer. By the end of 1976, the full structure of the new cottage was complete. Rough plumbing and a septic system were in place. The new cottage is located approximately 25 to 30 feet farther back from the lake than the old cottage was. No one objected to the construction of this new cottage and no one told the Pielas that the land they were building upon was not theirs. The Piela family first occupied the new cottage in 1977. As of the time of trial, the Pielas continued making improvemnts on the new cottage and maintaining the triangle and the five foot strip.

38. In August of 1976, the Pielas received a letter from Attorney Skvirsky which was written on behalf of the defendant Richard Nicoli and which stated that the plaintiffs had no land on the shoreline of the lake and no rights to maintain a dock on the lake. This was the first challenge by anyone to the Pielas' rights to the five foot strip and the first time the Pielas became aware that their deed to the triangle did not describe the five foot strip. The only action that the Pielas took in response to this letter was to meet with an attorney. The Pielas did not change their use of the five foot strip in any way after receiving this letter.

USE OF THE TRIANGLE AND FIVE FOOT STRIP BY THOSE OTHER THAN MEMBERS OF THE FOURNIER AND PIELA FAMILIES

39. In 1944, Marie Blanche Roy purchased from Mary Flynn the aforementioned Parcel C which abutted westerly what is now the five foot strip. Mrs. Roy did not purchase the five foot strip. When Mrs. Roy purchased the parcel, Mr. Roy asked Mrs. Flynn if he could put a septic tank for his house a few feet within Mrs. Flynn's land and Mrs. Flynn gave him permission to do so. Shortly thereafter, Mr. Roy's father installed the septic tank within the five foot strip.

When the Fourniers purchased the triangle, Mr. Roy informed Mr. and Mrs. Fournier that the tank was within the five foot strip with Mrs. Flynn's permission. After the Fourniers purchased the triangle, the Roys continued to maintain the septic tank within the five foot strip with the Fourniers' permission. The Roys used this tank until they sold this property to the Papadopuloses in 1972.

40. Other than using the septic tank which was within the five foot strip, the Roys did not use the five foot strip for any purpose, nor did Mr. Roy mow the grass on the five foot strip. [Note 16] In 1972, Mrs. Roy sold her property to Mr. and Mrs. Papadopulos. Mr. and Mrs. Piela never saw Mr. or Mrs. Papadopulos use the five foot strip, nor did the Pielas ever see the Papadopuloses clearing any brush off the five foot strip. It is unclear from the record whether Mrs. Piela ever saw Mr. Papadopulos mowing the grass on the five foot strip. Mrs. Piela testified that, although she never saw him do so, she assumed that Mr. Papadopulos may have cut the grass on the northerly tip of the five foot strip because it was the practice of people at the lake that whoever was cutting the grass would go "straight across" and not stop at boundary line of their property. No evidence was presented as to whether the Papadopuloses ever used the septic tank. Mr. Papadopulos did not ask for the Pielas' permission to use the septic tank located within the five foot strip. The Pielas did not have any discussion with the Papadopuloses about ownership of the five foot strip.

Contrary to the Pielas' testimony that the Papadopuloses never used the five foot strip, Mr. Gour testified that in 1973 and 1974 he visited the Nicolis at the lake and observed Mr. and Mrs. Papadopulos walking on the northerly portion of the five foot strip. Although Mr. Gour visited the Nicolis at the lake, he did not rent or own property at the lake at that time. The Pielas, on the other hand, lived at the cottage every summer from 1954 until the time of trial and regularly used the five foot strip in connection with their use and occupancy of the triangle. Accordingly, I find that the Pielas were better situated to know whether the Papadopuloses used the five foot strip or not. Based on the foregoing, I find that the Papadopuloses did not use the five foot strip.

Although Mr. Gour also testified that in 1973 and 1974 he saw Mr. Papadopulos performing general cleanup on the five foot strip, I find Mr. and Mrs. Piela's testimony that no one other than members of the Fournier or Piela families regularly maintained the five foot strip to be more credible than that of Mr. Gour. Therefore, I find that only members of the Fournier or Piela families regularly maintained the five foot strip.

There is conflicting testimony as to the use of the five foot strip by people other than the parties to this action and their predecessors in title. Mr. and Mrs. Piela testified that they never saw anyone other than members of their family walk from Third Street and over the five foot strip in order to reach the lake. Mr. Nicoli, however, testified that since 1970 he has regularly seen unknown people walk from Third Street and use the five foot strip to access the lake to go fishing. Since 1970, Mr. Nicoli has owned his property on the opposite side of the triangle from the five foot strip. From the Nicolis' property it would be relatively difficult to determine whether someone who was walking in the area of the five foot strip was actually walking down a narrow strip of land, such as the five foot strip, or not. Furthermore, because the Pielas have used and lived at the triangle each year from 1954 until the time of trial, the Pielas were in a much better position than Mr. Nicoli to see whether someone was using the five foot strip for access to the lake from Third Street. I therefore find the Pielas' testimony to be more credible on this issue and find that only members of the Fournier and Piela families used the five foot strip for access to the lake, with the possible exception of an occasional trespasser.

Mr. and Mrs. Piela did see people walk over the northerly tip of the five foot strip while walking around the shore of the lake. No one ever asked the Pielas for permission to walk over the northerly tip of the five foot strip. Beginning in 1970, Mr. Nicoli frequently walked over the northerly tip of the five foot strip while walking along the shoreline of the lake. In addition, in 1971 and 1972, Mr. Nicoli walked over the northerly tip of the five foot strip from his property easterly of the triangle to visit the Roys. Mr. Nicoli never asked the Fourniers or Pielas for permission to do so and they never objected. Mr. Nicoli did not feel that he had to ask permission of any of the owners in order to walk over their portion of the shore, nor did he feel that anyone had to ask his permission in order to walk over his portion of the shore because it was the common practice for owners and renters on the lake to walk along the shore to visit and to fish without asking for permission from anyone. Similarly, because of the rather free use owners and renters on the lake made of the shore of the lake, the Pielas did not feel that anyone had to ask them for permission to walk over the northerly tip of the five foot strip. Accordingly, the Pielas allowed others to walk over the northerly tip of the five foot strip without objection.

41. When the Fourniers purchased the triangle in 1954, their neighbors to the east were Mr. and Mrs. Chase. Some time after the Fourniers purchased the triangle, Mr. Fournier and Mr. Chase entered into a verbal agreement whereby Mr. Fournier allowed Mr. Chase to park his car on a small portion of the triangle from time to time and Mr. Chase allowed the Fourniers to use his property on the shore of the lake occasionally. Most of Mr. Chase's driveway was on his own property with the exception of the small area within the triangle upon which Mr. Fournier allowed Mr. Chase to park. This area is marked "grass" on the plan and will hereinafter be referred to as the "grass area." The grass area was the only portion within the triangle upon which Mr. Chase parked. As far as Mrs. Piela knew, this arrangement continued until Mr. Chase sold the property to Mr. Nicoli in 1970.

Mr. Nicoli began parking within the triangle after he purchased the property in 1970. In 1970, Mr. Nicoli had some fill brought in which he spread on his driveway and on the area within the triangle upon which he parked. In 1971, Mr. Nicoli had more fill brought in and added to his driveway and the parking area within the triangle. Neither time did Mr. Nicoli ask Mrs. Fournier for permission to put the fill within the triangle and she did not object to his doing so.

Mrs. Piela believed that when Mr. Nicoli purchased the chases' property, he knew of the arrangement the Fourniers had with the Chases and that he (Mr. Nicoli) parked within the triangle with implied permission of her mother. Mr. Nicoli, however, denied having any knowledge of the Fournier/Chase parking arrangement. Mr. Nicoli did not ask for Mrs. Fournier's permission to park within the triangle and Mrs. Fournier did not object to his parking there. Based on the foregoing, I find that Mr. Nicoli parked within the triangle without the permission of Mrs. Fournier.

There is a further dispute as to that portion of the triangle upon which Mr. Nicoli parked. The Pielas testified that Mr. Nicoli only used an area within the triangle depicted on the plan as the "grass" area. Mr. Nicoli, however, testified that he used an area within the triangle as his driveway larger than the grass area depicted on the plan. Mr. Nicoli testified that he used a strip of land within the triangle, along its hypotenuse, approximately 50 feet long and approximately twelve feet wide. In addition, the surveyor who prepared the plan located the area used by Mr. Nicoli and designated it as "grass" on the plan. Consequently, I find the Pielas' testimony on the issue more credible and I find that the area within the triangle upon which Mr. Nicoli parked is the grass area shown on the plan and not the larger area upon which Mr. Nicoli claims to have parked.

42. Beginning in 1954, Mr. Roy had an agreement with the Fourniers whereby he was allowed to drive from Third Street over the southwesterly corner of the triangle (the "southwesterly drive"). This agreement continued when Mr. and Mrs. Papadopulos purchased the property in 1972. In 1971 and 1972, Mr. Nicoli saw Mr. Massarfo drive over the southwesterly drive to reach his property which was on the other side of the Gour property from the triangle. Between 1970 and 1977, Mr. Nicoli also saw fishermen drive over the southwesterly drive in the spring and summer.

After Mr. Nicoli purchased the property in 1976, Mr. Piela believed that he had an implied agreement with Mr. Nicoli concerning Mr. Nicoli's use of the southwesterly drive although Mr. Piela and Mr. Nicoli did not discuss Mr. Nicoli's use thereof. Mr. Nicoli did not ask for the Pielas' permission to drive over the southwesterly corner of the triangle and the Pielas did not object to Mr. Nicoli doing so. In May of 1979, Mr. Piela placed cement berms across the southwesterly drive in order to prevent anyone from using this drive for access to the property which was owned at that time by the Nicolis and is presently owned by the Gours.

43. Mr. Nicoli saw people park in the Fourniers' driveway to go fishing on the lake in the winter and the spring when the Fourniers and Pielas were not living at the cottage.

44. Mr. Nicoli testified that when he purchased his property in 1970, a drainage ditch was present along the northerly portion of the hypotenuse of the triangle. According to Mr. Nicoli, the ditch started on the Nicolis' property at a point south of their cottage and ran northerly to the lake. The ditch crossed the hypotenuse of the triangle near the southerly end of the Nicolis' cottage. The ditch then ran northerly along the hypotenuse of the triangle, meandering approximately two to four feet within the triangle, and ended near the apex of the triangle. From a view taken of the area and from the evidence in this case, that portion of the ditch located on the Nicolis' property appears to be fairly distinct. However, as the ditch runs northerly on to the triangle, it appears to become an insignificant meandering ditch which looks as if it is a natural feature of the sloping terrain.

After he purchased the property, Mr. Nicoli cleared leaves out of the ditch which had accumulated over the years so that water could drain from his property into the lake. It is unclear whether Mr. Nicoli cleared the leaves out of that portion of the ditch located on his own property or that portion within the triangle. His testimony is also unclear as to whether the portion of the ditch which he claims he dug was on his own property or within the triangle. In addition, Mr. Nicoli's testimony as to how often he dug the ditch is inconsistent. In one instance, Mr. Nicoli testified that he dug out the ditch every weekend "from the fall of 1970 on." In another instance, he testified that he maintained the ditch every year from 1970 until the time of trial. In still another, he testified that there were several times that he had to dig out the ditch because it had filled in with soil due to natural erosion. Mr. and Mrs. Piela, on the other hand, testified that they first saw the ditch being dug in 1979. Some time after Mr. Piela first noticed the ditch, he filled the ditch in. Mr. Nicoli then redug the ditch. According to Mr. Piela, he filled the ditch in and Mr. Nicoli redug it several times from 1979 until the time of trial. At no time did Mr. Nicoli ask either Mrs. Fournier or the Pielas for permission to dig the ditch.

A photograph was introduced into evidence which was dated August, 1974 which shows that portion of the drainage ditch in the approximate area where the ditch crossed from the Nicolis' property on to the triangle. Based upon this exhibit and upon Mr. Nicoli's testimony that a portion of the ditch was present when he purchased his property in 1970, I find that the ditch did exist within the triangle when the Nicolis purchased the property. However, I find it hard to believe that if Mr. Nicoli actually dug the portion of the ditch within the triangle each weekend beginning in 1970 as he claims to have done, that Mrs. Fournier or the Pielas would not have noticed him digging the ditch until 1979. In addition, as of the time of this photograph, the ditch located within the triangle does not appear to have been maintained. It looks to be more a part of the slope of the terrain of the triangle than a well defined drainage ditch. Furthermore, Mr. Nicoli's testimony is inconsistent as to how often he dug the ditch and unclear as to whether the digging was on his own property or within the triangle. Accordingly, I find that while the ditch existed as early as 1970, Mr. Nicoli did not dig the ditch within the triangle except on very few occasions prior to 1979.

45. In the latter part of 1976, Mr. Nicoli planted some bushes on the hypotenuse near the northerly tip of the triangle. [Note 17] He did not ask anyone for permission to plant the bushes. These bushes were planted about five to eight feet up from the lake and extended about twelve to fourteen feet along the hypotenuse of the triangle. Some of the bushes were planted approximately one to two feet within the triangle and some were planted on the Nicolis' property. This was the first time that the Pielas were aware of Mr. Nicoli planting something on the triangle without their permission. Mr. Nicoli maintained and pruned these bushes every year, without objection by the Pielas, until they were removed by Mr. Piela and his daughter in 1987. In 1987, Mr. Nicoli erected a stockade fence along the drainage ditch about three to four feet within the triangle, also without the Pielas' permission.

46. In 1976, Mr. Piela for the first time noticed a clothesline running from the defendant Nicolis' house on the eastern side of the triangle to a tree located approximately one to one and a half feet within the triangle above the drainage dtch somewhere north of the retaining wall near the middle of the hypotenuse of the triangle. Prior to 1976, Mr. Piela had noticed a clothesline on the easterly side of the Nicoli house.

In contrast to Mr. Piela's testimony, Mr. Nicoli testified that the clothesline running from his house to the tree within the triangle was there when he first purchased the property in 1970. The Nicolis claim to have used the clothesline every day in the summers beginning in 1970. Mr. Nicoli did not ask for permission to tie the clothesline to the tree within the triangle and the Fourniers and the Pielas did not object to the Nicolis' use thereof. A photograph dated August, 1974 was introduced into evidence which shows the clothesline attached to a tree within the triangle. Based on this, I find the testimony of Mr. Nicoli to be more credible on this issue than that of Mr. Piela and find that the clothesline was tied to a tree within the triangle beginning in 1970 and remained there without objection by Mrs. Fournier or the Pielas until 1976 when Mr. Piela removed the clothesline.

47. In April of 1979, Mr. Piela received a call informing him that his dock had been taken apart and the pieces piled on the triangle. When Mr. Piela went to the locus to see what had been done to his dock, he noticed that another dock had been placed at the northerly tip of the five foot strip where his dock had been since 1954. There was a "no trespassing" sign nailed to this dock. There was also a "no trespassing" sign placed on the five foot strip approximately 100 feet from the water's edge. Mr. Piela removed these signs immediately. No one replaced the signs. This was the first time that anyone had moved the dock or done anything on the five foot strip without the permission of the Fourniers or the Pielas. In May of 1987, Mr. Piela placed another dock in the same location at the northerly tip of the five foot strip where the original dock had been. 48. In July of 1979, a barrier snow fence was erected near the easterly boundary of the northerly portion of the five foot strip. The row of patio blocks which the Fourniers had placed on the five foot strip had been removed. This fence ran from the northeasterly tip of the five foot strip, by the apex of the triangle, to the northwesterly corner of the cement steps and then to the stone retaining wall on the property presently owned by the Gours. The fence blocked the Pielas' access to the lake. This was the first time that anyone had done anything to obstruct the Pielas' access to the lake.

Two days after the Pielas noticed the fence, Mrs. Piela pushed the fence down, walked over the northerly tip of the five foot strip and went into the lake. In response to Mrs. Piela's actions, Mr. Nicoli filed a complaint against Mrs. Piela for trespassing. From 1979 until the fence was removed in 1982, the Pielas continued to maintain as much of the five foot strip as was possible with the fence in place. After the fence was removed in 1982, the Pielas replaced the row of patio blocks which had been removed from the five foot strip in 1979.

In a registration proceeding, the burden of proof is upon the plaintiff to establish title to the locus. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). The Pielas had the burden of proving their exclusive title to both the triangle and the five foot strip. The Pielas claim title to the triangle under a chain of title commencing in 1924 or alternatively, by adverse use and possession since 1954. They claim title to the five foot strip by adverse use and possession since 1954.

I first consider whether the Pielas have proven their exclusive title to the triangle. The triangle has been described in the Pielas chain of title continuously since the deed in 1924 from Victoria Mysliwy to Martin J. Flynn (the "1924 deed"). The description of the triangle in the 1924 deed begins at a stake in the southerly shore of Little Alum Pond at the northeast corner of land of William Curry and thence runs southerly along the easterly line of land of William Curry to a stake in the ground on the northerly side of Third Street and thence easterly 162 feet along the northerly line of Third street to a stake in the ground at land of Robert Kilpatrick and thence northerly along the westerly line of land of Robert Kilpatrick to the stake at the point of beginning.

A careful review of the chains of title to the lands of William Curry and Robert Kilpatrick indicates that the 1924 deed for the triangle purports to convey a parcel of land at least portions of which had previously been conveyed by Mysliwy. The 1924 deed describes the westerly line of the triangle as running along the land of William Curry, which land was known at the time as Lot 2 and which had been conveyed to William Curry by Martin Flynn by deed dated September 26, 1921. Upon reading the 1924 deed, it appears that the westerly line of the triangle borders the easterly line of Lot 2. However, the deeds from Mysliwy in 1921 conveying Lot 1 to John Kilpatrick and Lot 2 to Martin Flynn clearly show that Lot 1 abuts Lot 2 along Lot 2's easterly line. Therefore, from reading the deeds to the triangle and Lot 1, it appears that both parcels purport to abut Lot 2's easterly boundary.

Based on this, the title examiner reached two possible conclusions as to where the triangle could be located. The first conclusion the title examiner reached was that the triangle is located over the major portion of Lot 1, explaining the fact that both Lot 1 and the triangle abut Lot 2 on its easterly line. The second conclusion the title examiner reached was that Mysliwy "was of the opinion that there was in fact a triangular parcel of land between Lot No. One (1) and Lot No. Two (2) which had never been conveyed." Because Lot 1 abuts Lot 2 along Lot 2's easterly boundary, I do not see how a triangular parcel of land could in fact be located between Lots 1 and 2. Accordingly, I rule that the title examiner's first conclusion is the only logical one and that approximately the northwesterly two thirds of the triangle lies over the southwesterly portion of Lot 1 (see Appendix). Because Lot 1 was conveyed prior to the triangle, Mysliwy had no title in the northwesterly two thirds of the triangle to convey by the 1924 deed to Martin Flynn. Accordingly, good record title to the northwesterly two thirds of the triangle is in the owners of that portion of Lot 1 over which the triangle lies.

The westerly half of Lot 1, Parcel B, was conveyed by John Kilpatrick to Robert Kilpatrick by deed dated September 26, 1921, leaving the title to the easterly half, Parcel A, in John Kilpatrick. After a series of mesne conveyances, Parcel B was conveyed to the Nicolis in 1970. Similarly, after a series of mesne conveyances, Parcel A was conveyed to the present owners, Donald and Dorothy Kenyon in 1966. Therefore, the Nicolis and the Kenyons have good record title to the northwesterly two thirds of the triangle.

As for the southwesterly one third of the triangle, record title to the southwesterly corner, Parcel G, is also in the Nicolis by virtue of the 1970 deed by which they also took title to Parcel B. From the record before me, it is not possible to determine who holds the record title to that portion of the triangle which does not lie over Parcels A, B and G so it may well be that the Pielas do have record title to this portion of the triangle. In any event, because I have found that the Fourniers did not have title to most, or all, of the triangle by virtue of the 1924 deed, any title which they did have to the triangle must rest upon adverse possession of the triangle since 1954 when they purchased the triangle.

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 , 262 (1964). The purpose of the requirements for adverse possession is to put the true owner on notice of the hostile character of the possession so that he may vindicate his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). 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 Pa., 354 Mass. 323 , 326 (1968).

The Pielas claim title to the triangle by adverse use and possession since 1954 when the Fourniers first purchased the triangle from Mary Flynn. Therefore, the twenty year period for adverse possession began on March 9, 1954 when the Fourniers purchased the triangle and ran until March 9, 1974. Because Mrs. Fournier exercised dominion and control of the triangle during the years between 1954 and 1974, [Note 18] it is the use by the Fourniers and their relatives and guests which forms the basis of the Pielas' claim for acquisition of title by adverse possession. If Mrs. Fournier had acquired title to the triangle in 1974 by adverse possession, then when Mrs. Fournier conveyed the triangle to the Pielas by deed in 1975, she had good title to convey and the Pielas took title accordingly.

Beginning in 1954, the Fourniers and the Pielas used the cottage mainly as a summer home, although they engaged in spring and fall cleanup each year and members of the Fournier and Piela families also used to the triangle occasionally in the winters. The fact that the Fourniers' use of the triangle was mostly a seasonal one does not affect their ability to acquire title to the triangle by adverse possession. See Lachance v. First National Bank and 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). Given that the majority of the homes on the lake were used primarily as summer homes, I rule that it is compatible with the character of the land that the Fourniers and members of their family used the triangle primarily (although not solely) in the summer and that this mostly seasonal use did not defeat their adverse possession of the triangle.

From March of 1954 until the time of trial, members of the Fournier and Piela families went to the locus each and every year and occupied the cottage as a summer.home. Mr. Fournier lived at the cottage each summer from 1954 until his death in 1969. Mrs. Fournier lived at the cottage each summer from 1954 until the cottage burned to the ground in 1974. Other members of the Fournier and Piela families visited the locus each and every summer from 1954 until the time of trial. Each summer beginning in 1954, members of the Fournier and Piela families mowed the grass on the triangle and performed general maintenance. Each spring and fall from 1954 members of the family engaged in the spring and fall cleanups of the triangle which included raking and mowing the entire triangle.

Numerous improvements have been made to the cottage and on the triangle, such as the terracing which was done to level off the steep slope in back of the cottage, enlarging the circular steps leading to the dock, installing a glider swing near the apex of the triangle, painting both the inside and outside of the cottage and building a patio and screened-in porch in back of the cottage, to name just a few. The Fourniers and their relatives and guests never asked anyone for permission to maintain and improve the triangle and no one objected to their use and maintenance thereof. I rule that these acts were non-permissive and of the actual, open, notorious and adverse nature necessary to prove the Fourniers' adverse possession of the triangle.

The only issue to be determined as to the Fourniers' adverse possession of the triangle is whether the Fourniers' possession of the triangle was exclusive. The defendants do not seriously question the exclusivity of the Fourniers' possession and use as to the majority of the triangle. People parking in the Fourniers' driveway to go fishing on the lake in the winter and spring when the Fourniers were not living at the cottage does not interrupt the Fourniers' adverse possession of the triangle because such uses were merely "temporary intrusion [s] or occasional trespass[es] by. . .stranger[s] [which did] not interrupt the running of the statute in behalf of the adverse occupant." Dorntree v. Lyons, 224 Mass. 256 , 260 (1916). In addition, the fact that the Nicolis had a clothesline running from their cottage to a tree within the triangle since 1970 is not a sufficient interruption of the Fourniers' adverse possession. Accordingly, I rule that, with the exception of one area to be discussed hereinafter, the Fourniers' use and possession of the triangle was exclusive.

The defendants claim that the Nicolis have used three areas within the triangle without the permission of the Fourniers, thereby defeating the Fourniers' adverse possession of these areas. The Pielas deny that the Nicolis or anyone else used these three areas without the Fourniers' permission within the twenty year period from 1954 to 1974. The three areas in dispute are the area near the hypotenuse of the triangle upon which Mr. Nicoli parked his car since 1970, the drainage ditch near the apex of the triangle and the driveway over the southwesterly corner of the triangle.

The doctrine of color of title applies where, as here, a person enters upon a parcel of land asserting a claim of ownership based on a deed, which deed, due to some defect, does not convey a valid title to the land. Norton v. West, 8 Mass. App. Ct. 348 , 350-51 (1979). Under this doctrine, the claimant need only establish adverse possession of a portion of the parcel in order to establish title by adverse possession to the entire parcel as described in the deed. Id. at 351, Dow v. Dow, 243 Mass. 587 , 590 (1923). If, however, the true owner is in possession of a portion of the land described in the deed, the claimant's constructive possession of the entire parcel will not extend to that portion in possession of the true owner. Bellis v. Bellis, 122 Mass. 414 , 417 (1877).

From the record, it is difficult to determine whether the Nicolis, as the true owners of Parcel. B over which a portion of the triangle lies, are the true owners of those three areas which they claim to have used within the triangle or whether they are third persons with no title to these areas. There appears to be no authority which addresses the situation where a third person, not the true owner, is in possession of a portion of the premises described in the claimant's deed. In Bellis, the Court was faced with the situation where a true owner, not a third person, was in possession of a portion of the premises. The Court did, however, place a qualification on the rule that a claimant's possession is considered to be coextensive with his deed and that qualification is that the possession must be exclusive. Bellis, 122 Mass. at 417. Based upon this reasoning, I rule that, if it can be shown that the Nicolis, whether as true owners or as third persons, possessed and used a portion of the triangle in such a way as to defeat the exclusivity of Mrs. Fournier's adverse possession of the disputed areas, the doctrine of color of title did not operate to give Mrs. Fournier title to the entire triangle as described in her deed.

I first consider the use of the southwesterly drive. From 1954 until 1972, Mr. Roy had an agreement with the Fourniers to use the southwesterly drive to reach his property. Because Mr. Roy's use of the southwesterly drive was with the permission of the Fourniers, his use did not interfere with the exclusive character of the Fourniers' possession. See, Bellis, 122 Mass. at 416. This agreement continued when the Papadopuloses purchased the property from the Roys in 1972 and therefore, the Papadopuloses' use was similarly permissive. Mr. Nicoli testified that he saw fishermen use the southwesterly drive between 1970 and 1974 and that he also saw a neighbor of the Roys to the southeast, Mr. Massarfo, and his guests, use the drive between 1970 and 1974. However, I rule that the occasional uses of the southwesterly drive by fishermen and by Mr. Massarfo were occasional trespasses which did not interrupt the Fourniers' adverse possession. Dorntree v. Lyons, 224 Mass. at 260. Consequently, I rule that the Fourniers' adverse possession of the southwesterly corner of the triangle was not interrupted by the permissive use of the Roys and the Papadopuloses, nor by the occasional trespasses of fishermen and Mr. Massarfo. That Mr. Nicoli may have used the southwesterly drive without the permission of the Pielas after he purchased the Roy property in 1976 is irrelevant as to the Fourniers' adverse possession because Mr. Nicoli's non-permissive use was after the statutory twenty year period had expired in 1974 and Mrs. Fournier had already acquired title to the triangle by adverse possession.

The second area in dispute is the grass area on the hypotenuse of the triangle upon which Mr. Nicoli parked beginning in 1970. From 1970 until 1974, Mr. Nicoli parked his car within the triangle, along its hypotenuse, without the permission of Mrs. Fournier. I rule that such parking amounted to an interruption of Mrs. Fournier's adverse possession of the grass area of the triangle and therefore, Mrs. Fournier did not acquire title to the grass area of the triangle by adverse possession.

Finally, there was a portion of a drainage ditch preent on the triangle when Mr. Nicoli purchased his property in 1970. Although Mr. Nicoli dug this ditch on a very few occasions from 1970 until the time of trial without the permission of either Mrs. Fournier or the Pielas, I rule that this intermittent digging was not the type of activity which interrupted Mrs. Fournier's adverse possession of this area. In addition, that portion of the drainage ditch located within the triangle is so close to the hypotenuse of the triangle and so indistinct as to be inadequate notice to the Pielas that anyone was using this portion of their land. Furthermore, that water may have flowed naturally from the Nicolis' property into the drainage ditch is not a use by the Nicolis which interrupted Mrs. Fournier's adverse possession. I also rule that because I find that Mr. Nicoli did not plant the bushes along the drainage ditch until after 1974, such acts by Mr. Nicoli did not interrupt Mrs. Fournier's adverse possession of this part of the triangle.

In summary, I find and rule that the Pielas have established that by 1974, their predecessor in interest, Mrs. Fournier had acquired title to the entire triangle by adverse possession with the exception of the grass area where Mr. Nicoli has parked his car since 1970. Accordingly, I rule that the Pielas have established registerable title to the triangle with the exception of the grass area. An updated and amended plan shall be filed by the Pielas with this court omitting the grass area.

The next issue to be determined is whether the Pielas have established that Mrs. Fournier acquired title to the five foot strip by adverse possession from 1954 and 1974. When the Fourniers purchased the triangle in 1954, the deed for the triangle did not include title to the five foot strip. Members of the Fournier and Piela families used the five foot strip without objection from 1954 to 1979, when their right to use the five foot strip was challenged for the first time. From 1954 to 1979, a dock was attached to the end of the five foot strip which dock was used daily in the summers by members of the Fournier and Piela families. Also from 1954 to 1979, approximately the northerly 100 feet of the five foot strip was used daily in the summers by the Fourniers and the Pielas as the path from the cottage to the dock and the lake. A row of patio blocks approximately one foot wide and ten feet long was located on the five foot strip from 1954 until 1979. Concrete steps used by the Fourniers have also been located partially on the five foot strip since at least 1954. In addition, a corner of a swing frame was on the northerly tip of the five foot strip from 1954 until 1979. The northerly portion of the five foot strip was also used in the winter by the Fourniers and the Pielas for access to the lake for ice skating and ice fishing. The Fourniers and the Pielas did not ask any one for permission to use the five foot strip and no one objected to their use thereof until 1979 when someone removed the row of patio blocks located on the five foot strip and erected a fence along the northeasterly boundary of the five foot strip between the five foot strip and the triangle.

Members of the Fournier and Piela families also performed regular maintenance of the entire five foot strip from 1954 to the time of trial, such as mowing the grass each year. In addition, from 1954, the entire five foot strip was raked and cleared of debris when the families performed their annual spring and fall cleanups of the five foot strip. No one other than members of the Fournier and Piela families performed maintenance of the five foot strip and no one objected to their maintenance thereof. Accordingly, I rule that the use of the five foot strip by the Fourniers was of the actual, open, adverse and notorious nature required to establish the acquisition of title to the five foot strip by Mrs. Fournier.

A question remains, however, as to whether the use of the five foot strip by the Fourniers was exclusive. Mr. and Mrs. Roy did not use the five foot strip from the time of the Fourniers' purchase of the triangle in 1954 until Mrs. Roy sold their property to the Papadopuloses in 1972, nor did the Roys maintain the five foot strip. The Roys did use a septic tank which Mr. Roy installed within the five foot strip with Mary Flynn's permission shortly after Mrs. Roy purchased the property in 1944. The Roys' use of the septic tank after the Fourniers purchased the triangle was with the Fourniers' permission. The Papadopuloses did not use the five foot strip when they owned the property from 1972 until 1976. In addition, no one other than members of the Fournier and Piela families used the five foot strip for access from Third Street to the lake with the exception of an occasional trespasser. Howeer, the use of the five foot strip by an occasional trespasser did not destroy the exclusivity of the Fourniers' adverse possession of the five foot strip. Dorntree, 224 Mass. at 260.

People other than members of the Fournier and Piela families regularly walked over the northerly tip of the five foot strip while walking along the shore of the lake without asking the Fourniers for permission to do so. However, for reasons hereinafter stated, I rule that this use by others does not destroy the exclusivity of the Fourniers' adverse possession of the five foot strip see Bowen v. Guild, 130 Mass. 121 , 123 (1881) (what is an interruption of adverse and exclusive possession depends upon the character of the land and its uses).

From 1954 to the time of trial, it was the common practice of owners and renters at the lake to walk along the shore of the lake in order to visit others on the lake and to fish. This was done without asking for the permission of the owners of property on the lake and the owners did not object to others walking across their property along the shore of the lake. Similarly, the Pielas did not object to anyone walking over the northerly tip of the five foot strip. In view of the practice of other property owners on the lake, it is entirely consistent with the character of the five foot strip as lake front property that the Pielas allowed others to walk over the northerly tip of the five foot strip without objection. Bowen, 130 Mass. at 123.

Furthermore, adverse possession may be established, in the absence of evidence that possession is under a license or tenancy, when the actual use and enjoyment of the property is the same as the average owner of similar property would use and enjoy it, so that people in the neighborhood would be justified in regarding the possessor as exercising the exclusive domain and control incident to ownership. Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-57 (1979). I therefore rule that the Fourniers, in continuously using and maintaining the five foot strip, exercised the exclusive domain and control to be expected from owners of lake front property, including allowing others to walk across the northerly tip of the five foot strip without objection. [Note 19]

For the aforementioned reasons, I rule that the Pielas have established that Mrs. Fournier acquired title to the five foot strip by adverse possession. The Pielas as the successors in title to the Fourniers now have title to the five foot strip. Because I have found that the Roys did not use the five foot strip and had no interest in the five foot strip, the deed from Marie Blanche Roy to the Papadopuloses which purported to convey the five foot strip did not convey any interest in the five foot strip. Similarly, the deed from the Polish National Credit Union to the Nicolis and the deed from the Nicolis to the Gours conveyed no interest in the five foot strip. Furthermore, the deed dated January 4, 1979 from certain heirs of Mary Flynn conveying their interest in the five foot strip to the Nicolis conveyed no interest to the Nicolis because as of March 9, 1974 when Mrs. Fournier acquired title to the five foot strip, the heirs of Mary Flynn had no interest to convey. Therefore, the Nicolis have no interest in the five foot strip and title rests solely in the Pielas.

The final issues to be resolved are whether the Pielas have established their claims of two appurtenant rights. The first involves a claim of littoral rights in the lake. The Pielas have not argued and have not proven this claim and therefore, I rule that they have not established the claimed appurtenant littoral rights.

The Pielas second claim is of an appurtenant right to use Third Street, a private way, from Little Alum Lake Road to the southwesterly corner of their property. None of the deeds to the triangle, beginning with the 1924 deed, conveyed any appurtenant rights to use Third Street. Accordingly, the Pielas' claim of an appurtenant right to use Third Street must be based on the Fourniers' acquisition of an easement by prescriptive use of Third Street from 1954 to 1974.

In order to establish a prescriptive easement to use Third Street, the Pielas must prove that the Fourniers used Third Street in an uninterrupted, open, notorious and adverse fashion for a twenty year period. Ryan v. Stavros, 348 Mass. at 263. The unexplained use of an easement is presumed to be under a claim of right and adverse, and will be sufficient to establish a prescriptive easement unless controlled or explained. Tucker v. Poch, 321 Mass. 321 , 324 (1947).

When the Fourniers first purchased the triangle in 1954, they reached the property coming from Chicopee by driving northerly on Little Alum Lake Road, turning left on to Third Street, driving westerly until reaching either the upper or lower driveway which are located within the triangle. In addition, I have found that members of the Fournier and Piela families continued to drive over Third Street to reach the locus up to the time of trial. No evidence was introduced to show that the Fourniers used Third Street with the permission of anyone. I therefore rule that because the Fourniers use of Third Street for twenty years was unexplained, their use of Third Street was not permissive. I further rule that the vehicular use of Third Street by members of the Fournier and Piela families was uninterrupted, open, notorious and adverse for a twenty year period beginning in 1954 and that by 1974 Mrs. Fournier had acquired a prescriptive easement to use Third Street for vehicular access to reach the locus. The Pielas as Mrs. Fournier's successors in title, have now acquired the benefit of that easement.

Finally, in light of the continuous use that the Fourniers and Pielas made of the locus and Third Street beginning in 1954, I find no merit in the Nicolis' argument that the Fourniers and the Pielas abandoned all property interests and easements.

Based on the foregoing, I find and rule that the Pielas have established registerable title to the five foot strip and to the triangle, with the exception of the area upon which Mr. Nicoli parks. Said judgment of registration is to be subject to such matters as are disclosed in the examiner's abstract which are not in issue. I also rule that the Pielas have established the appurtenant right to use Third Street for vehicular access from Little Alum Road to the locus. I further rule that the Pielas have not established any appurtenant littoral rights.

Judgment of registration to issue accordingly.

exhibit 1