IRENE H. HUNT vs. INEZ T. CHIVOLO and YOLANDA E. CONVERS.

This is a complaint by Irene H. Hunt of Fitchburg in the County of Worcester to bring her land situated on Pratt Road in Fitchburg, now known as and numbered 150-152 thereon, and shown on a plan entitled "Plan of Land in Fitchburg, Mass." dated March 1, 1985 by William R. Bingham & Associates (Exhibit No. 2) filed in this case 41865-A within the operation of Chapter 185, section l (a) of the General Laws. The complaint was originally brought by Gerald P. Hunt and Irene H. Hunt, but during the pendency of the proceedings Mr. Hunt has died.

There is only one question at issue in the registration proceedings and that is whether the owner of the land adjoining the locus on the north, the defendant Inez T. Chivolo, and her sister, Yolanda E. Convers, who owns the lot next northerly have rights to use so much of the locus as is included within the limits of Fayerweather Street, as shown on said plan, or whether they have been lost by adverse possession.

A trial was held at the Land Court on January 29, 1991 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff, her son Donald J. Hunt, Wallace J. Smith and Viola Smith, both neighbors, and Raymond Delorme, Mrs. Hunt's brother, testified for the plaintiff. The two defendants testified in their own behalf. A total of six exhibits, one of which had several parts, were introduced into evidence and are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. There is a plan recorded with Worcester District Deeds in Plan Book 30, Page 15 entitled "Plan of Land for Fitchburg Housing Corporation" which shows a parcel of land bounding southerly on Pratt Road, northerly on Pratt Street, westerly by Frankfort Street and easterly by Fayerweather Street. There are other plans on record which also show the general area and which suggest that the land to the east of Fayerweather Street also had a right by implication to use the same (see Abstract, Exhibit No. 1, Sheet 19, for example). It makes no ultimate difference in the decision of this action whether the abutters to the east own the fee in Fayerweather Street to the middle line thereof or merely have the right to use it as will appear from the facts found in this case.

2. The deeds out of the lots on the Fitchburg Housing Corporation Plan did not contain an express grant of the right to use either Frankfort Street or Fayerweather Street, and the rights of way to use the ways rest on implication.

3. Title to lot 15 on the plan was acquired by the plaintiff's father-in-law and mother-in-law by deed from the Fitchburg Savings Bank dated April 29, 1941 and duly recorded in Book 571, Page 645 (Exhibit No. 1, Sheet 40).

4. The plaintiff met her late husband on New Year's Eve of 1945 while he was in the service during World War II. When she first visited her husband's parents, there was a dirt driveway in the same location as the present paved driveway. Her father-in-law had a garden on the side lawn where Fayerweather Street appears of record and flowers in a circle and green grass in the middle. While her fiance was in the service, she visited his parents.

5. After Mr. and Mrs. Gerald P. Hunt were married they lived at Wyman's (apparently a reference to a pond in Winchendon) and ultimately her in-laws bought this home, and Gerald and Irene moved into the side of the duplex on locus which the parents formerly had occupied and lived there from 1948 to 1955. In the latter year the plaintiff, her husband, brother and sister-in-law purchased the premises, and the husband's parents, Arthur J. and Margaret M. Hunt, conveyed the locus to Joseph A. Hunt and Agnes Hunt, husband and wife as tenants by the entirety (Gerald Hunt's brother and his wife) and Gerald P. Hunt and Irene H. Hunt, husband and wife as tenants by the entirety, all as tenants in common by deed dated February 17, 1955 and recorded with Worcester Northern District Deeds [Note 1] in Book 755, Page 290. Subsequently, in 1960, Joseph A. Hunt obtained a new position and desired a single family home. At that time the entire interest that part of locus shown as lot 15 on the Fitchburg Housing Corporation Plan was acquired by Irene H. Hunt and her husband by deed dated March 4, 1960 and duly recorded in Book 856, Page 92 (Exhibit No. 3). However, Gerald and Irene Hunt acquired a strip of lot 14 on the old subdivision plan twelve feet in width and sixty-eight feet in width by deed of James B. Ryan et al by deed dated June 1, 1962 and recorded in Book 902, Page 476 (Exhibit No. 1, Sheet 65). The remainder of the strip, not abutting on Fayerweather Street, was acquired by deed dated April 15, 1982 and recorded in Book 1284, Page 231 (Exhibit No. 1, Sheet 67). All of the deeds bounded by Fayerweather Street and did not expressly include the fee thereof.

6. The Hunt family used that portion of the locus included within the limits of Fayerweather Street as their side lawn. They took care of it, they raked leaves from it, their children played on it, they mowed the grass, fed the lawn and played badminton there. Mr. Hunt and his son Donald J. Hunt were archery enthusiasts and conducted bow and arrow practice in the yard along with other friends. They acquired a large piece of canvas which they strung across Fayerweather Street at the boundary line between lots 15 and 14 extended easterly and placed bales of hay in front of it. They did this to keep the arrows from shooting into the woods beyond the Hunt property line and within the portion of Fayerweather Street adjacent to land of the defendants which was heavily wooded and overgrown.

7. A weeping willow was planted within the line of the right­of-way because there was a spring in that area, and the waters flooded the cellar of the Hunt home. It was hoped that the tree would draw water. This area was used for a small skating rink for the children in the winter. The weeping willow has now died but some of its trunk remains and appears in the exhibits as located within the right-of-way. Gerald P. Hunt also planted what appears to be a birch tree at the common property line with Wallace J. Smith to the east, the City of Fitchburg and the easterly line of Fayerweather Street. This tree may well be within the limits of the public street layout.

8. The Hunts purchased two loads of loam about 1972 and spread the loam in the wetlands area, and the lawn was then seeded and grass was planted to supplant the moss which had prevailed earlier. Somewhat later in time in the 1980's Donald J. Hunt built a shed for his father to replace the buckets in which he stored his tools and which extended across the northerly line of the property. While the senior Hunts lived at locus, Mr. Arthur Hunt had a garden within the limits of Fayerweather Street. During the 1980's Gerald P. Hunt and after his death, the plaintiff had a garden in the disputed area.

9. Gerald P. Hunt also raised beagles since he was an avid huntsman and he and the dogs participated in this "sport". He had a two bay kennel and a number of dogs, which number varied over the years from 12 to 20. It also was located within the right-of­way.

10. Wallace J. Smith, the next door neighbor to the Hunts who with his wife conveyed to them the fee in the easterly half of Fayerweather Street for a depth of 75 feet, was familiar with the area from the time he was a youngster. He had played ball in his younger years on the very location where his house now sits and had seen the garden planted by Mr. Hunt, Sr. He was familiar with the target shooting and said that beyond it, on land in part at least owned by one of the defendants, Fayerweather Street was a jungle. He also testified that there was a two foot drop from the northerly boundary of the Hunt property to the land below and that there were rocks there so that access over the paper street would be difficult.

11. When the real estate market became active in the 1980's, Miss Chivolo who owns the lots adjoining land of the plaintiff on the north and being lot 2 and the major part of lot 14 on the Fitchburg Housing Corporation Plan and her sister Yolanda E. Convers, the owner of lot 13 thereon decided to clear out some of the wooded area within that portion of Fayerweather Street adjacent to their properties. They hoped to be able to combine lots 13 and the portion of 14 to build a duplex thereon for rental purposes. They also wanted to replace a rickety fence which appears to have been along the southerly boundary line of the Chivolo land with a chain link fence. A workman whom they hired to carry out this project drove across the Hunt property in a truck to reach that part of Fayerweather Street adjacent to the land of the defendants. His route may well have been over the Hunt's driveway rather than completely within the location of paper Fayerweather Street. It is unclear how long this practice continued, whether a single day or several weeks, but it ultimately ended in a confrontation between Mr. Gerald P. Hunt and the workman employed by the defendants. Mr. Hunt allegedly brandished an ax and sat on the property line effectively barring any further use of Fayerweather Street. In any event by 1985 the plaintiff had acquired title to the fee of the southerly portion of Fayerweather Street free of any easement rights therein since the twenty year period had been exceeded by at least ten years. After the confrontation the truck bearing the defendants' workman reached the site by proceeding southerly on Fayerweather Street from Pratt Street rather than northerly from Pratt Road. It is the Court's understanding that the part of Fayerweather Street off Pratt Street which the workman eventually used for access to the defendants' lots may be improved, although there was no specific evidence to this effect.

The decision in this case parallels that in Shaw v. Solari, also decided by me. See Land Court Miscellaneous Case No. 82055 and 8 Mass. App. Ct. 151 (1979) for that decision. In Shaw the fee in the right-of-way was claimed by another, and Mrs. Shaw prevailed in establishing that she had acquired title thereto by adverse possession. In the present case the plaintiff owns the fee in Fayerweather Street, the westerly half by implication pursuant to the common law, see Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965) and by Statute G.L. c. 183, §58. The easterly half of the fee of Fayerweather Street was acquired from Mr. and Mrs. Wallace J. Smith who acquired it by the same rule of construction as the plaintiff. While none of the conveyances including those to the defendants contained an express right to use Fayerweather Street, but such right is implied from the description which bounds thereby and by the reference in the deed to a lot on a plan where the way is shown, the deeds to the defendants originally would have been construed to include the appurtenant right to use Fayerweather Street from the premises north to Pratt Street and southerly to Pratt Road, but such rights can be lost by adverse possession. [Note 2] That is what has happened in the present litigation. The plaintiff has established that she has acquired title by adverse possession to Fayerweather Street free from the rights of third parties therein. Title by adverse possession is acquired by actual, open, continuous possession of the premises for twenty years under a claim of right. Owens v. Johnson, 324 Mass. 450 , 453 (1949), Collins v. Cabral, 348 Mass. 767 , 797 (1965) and Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968). The plaintiff may establish a portion of her title of record and the rest by adverse possession. Robert v. O'Connell, 269 Mass. 532 (1930). The use made of the premises by the plaintiff and her family closely parallels the use in Shaw, and I can only conclude that the defendants have lost any implied right which they had to use the portion of Fayerweather Street situated on land claimed by the plaintiff in this registration proceeding by the exercise of adverse possession by the plaintiff, her husband and their predecessors in title. The defendants still are free to go from their premises northerly to Pratt Street, but their inaction has deprived them of the right to go southerly to Pratt Road. While not material in this action there is a question under the present Fitchburg Zoning Ordinance as to whether the defendants will be able to construct a building on the two lots which they have allocated to this project, but the resolution of the zoning matter is not before the Court.

On all the evidence therefore I find and rule that the plaintiff has a title sufficient for registration to the land shown on the filed plan including so much thereof as is included within the limits of Fayerweather Street free from the rights of others therein but subject to such matters as are shown by the abstract and are not in issue here.

Judgment accordingly.