JOHN W. WALLER vs. ROBERT WEST and DOROTHY WEST.

This case was commenced by a complaint filed May 10, 1983 pursuant to G.L. c. 185, §1 whereby Plaintiff seeks to register and confirm title to a parcel of land in Edgartown consisting of approximately 19.35 acres of land ("Locus" or "Premises"), lying southerly of Meetinghouse Road and shown on Land Court Plan No. 41327A (the "Plan"). Various appearances have been filed, but all have been resolved except those of Defendants.

This matter was referred to Land Court Examiner John C. Larsen, Esq., whose abstract filed March 5, 1983 reported "petitioner has not a good title as alleged, and proper for registration." A subsequent report was filed and testimony was given by Charles Gaffney, Esq., also a Land Court Examiner, who reported, after further research, that record title to Locus is in the Plaintiff.

This case was tried on two days at Boston and one day at Edgartown. Following the Edgartown hearing a view was taken of Locus in the company of counsel. All of the testimony has been recorded, nine witnesses testified, eight exhibits were entered into evidence and four chalks have been submitted, all of which are incorporated herein by reference for the purpose of any appeal.

Certain portions of Land Court Case 38774 have been noted as to evidence bearing on the Defendants' record title to Locus. Such issue is now moot as Defendants, through counsel, agree that they do not have record title to Locus. In addition certain portions of Land Court Cases 19694, 20640, 26131, 38774, 41889, 42374, 42375 and 42376 have been reviewed for whatever bearing they may have on establishing Plaintiff's boundaries.

In consideration of all of the foregoing and briefs and memorandum of counsel I make the following findings, first as to the claim of Defendants:

1. As stated the Defendants West concur that they do not have record title to Locus and accordingly seek to establish their claim through adverse possession.

2. Defendants moved to their present location, westerly of but not abutting Locus in 1945. At that time and for an undetermined period thereafter, sheep and cows grazed in the general area and may have on occasion grazed on Locus. I note that in the registration proceeding (Norton) for the adjacent parcel the Wests make the same claim. I give no credence to the allegation that livestock was kept penned on Locus, considering among other facts the distance to the West property. Such livestock may well have been penned nearer or on the West property.

3. On a few occasions the Wests may have deposited scallop shells on Locus, so that they could properly "age" before being added to their driveway. I cannot from the evidence determine the time period, nor extent of such. activity. The "scallop dump" was seen on the view and appeared to contain approximately a bushel or so of shells which may have been in place for at best a year. There was certainly no evidence of recent dumping.

4. In 1946 or 1947 and for a short period thereafter tree stumps were deposited by defendants on a portion of Locus comprising less than a quarter acre.

5. For some period of time Defendants may have grown white pine trees on Locus; however, there is no credible evidence as to when such trees were planted or, if so, how long they remained. The view revealed only one such tree in the northerly portion of Locus, which may have been five to ten years of age. There was some evidence of one other tree.

6. Defendants and their children made some use of Locus as a play area for occasional recreation and picking of blueberries.

7. Locus is heavily wooded with "scrub" oak and "pitch" pine, the usual vegetation for this area. Although Defendants claim to have picked wild grapes on Locus, none were observed on the view.

For Defendants to prevail they must prove that for a period of not less than twenty years, without interpretation, they and/or their predecessors in title have used the area in a manner which was actual, open, notorious, exclusive and adverse. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979). The action must be such as would put the true owner on notice of such adverse use, should he observe it, so that he may be afforded an opportunity to take steps toward vindicating his rights by legal action. Ryan v. Stavros, 348 Mass. 251 (1964); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). In this instance I do not find that any of the activities of'the Defendants West occurred continuously over a period of twenty years. Moreover, considering that Locus is comprised of nineteen acres of wooded land, I find that such activities were insufficient in degree (i.e., notorious) to meet the test of Ottavia and Ryan.

Accordingly I rule that Defendants have no valid claim of title to Locus by record or otherwise, and that accordingly their answer and objections are stricken.

PLAINTIFF'S PETITION

As noted above all of the adjoining and many of the nearby registration and/or confirmation cases have been reviewed. For the most part these decrees are based upon assumptions which are largely supportive of an inference, at least, that Locus is land of the Wallers.

On all of the evidence I find that the Plaintiff has shown at least some title to Locus, registration of which is subject to a further determination of the Court hereinafter subject to such matters as may appear in the abstract and materials in this and other abutting and nearby cases and which are not material hereto.

Judgment accordingly.