REG 42051

January 10, 1991

Barnstable, ss.




These two complaints to register title to land situated on Old Queen Anne Road adjacent to the Town's disposal area in Harwich in the County of Barnstable present overlapping claims for the Court's determination.

It is clear from the records that Barbara M. Pinkham has record title to a parcel of land containing approximately two acres of land and shown on a plan entitled "Plan of Land in Harwich, MASS. - To Be Filed in the Land Court," dated January 7, 1987 by Schofield Brothers, Inc. except for a triangular portion thereof, containing about 1,748 square feet taken by the Town of Harwich. The record title of Christine S. Wood to her land is murky, but she also claims to have acquired title by adverse possession to the entire Pinkham locus as well as an adjoining piece not claimed in the earlier case.

A trial was held at the Land Court on April 10, 1990 at which a stenographer was appointed to record and transcribe the testimony. Witnesses for Ms. Pinkham were Richard S. Burling, [Note 1] the Land Court Examiner in the Pinkham case. David A. Schofield of Schofield Bros., Inc. and Peter W. Soule, formerly of said firm who did the research and signed the plan as a Registered Land surveyor respectively, and Ms. Pinkham; witnesses for Ms. Wood were Robert E. Marceline, the retired superintendent of the Harwich disposal area, Joseph Gomes, an employee of a Harwich contractor familiar with the disposal area and Ms. Wood. Neither the Land Court Examiner in the Wood case nor a registered land surveyor from the firm which prepared the filed plan testified. Nineteen exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal.

At the trial Ms. Wood had planned to call as a witness Robert E. Joy, a former employer and owner of registered land (Case No. 37943) abutting the Wood premises to the west, but illness prevented his attendance. Two weeks and one day later, on April 25, 1990, Mr. Joy died. Counsel then moved to have an affidavit executed by Mr. Joy on January 21, 1987, objection ensued and the motion was argued on September 18, 1990. The Court ruled that the affidavit was made in good faith and paragraphs 1 through 11 inclusive were made of the affiant's own knowledge and were admissible but that the remaining paragraphs 12, 13 and 14 were excluded. The affidavit, to the extent admitted, was marked Exhibit No. 20.

On all the evidence I find and rule as follows:

1. The land to which the title is in dispute originally extended from Old Queen Anne Road to Flax Pond. A major portion thereof was taken by the Town of Harwich for the Town Disposal Area by instrument dated May 9, 1967 and recorded with the Barnstable County Registry of Deeds, to which the recording references herein relate, Book 1365, Page 345 (Exhibit No. 8). The taking was from Chase Street Village, Inc. which is shown as the owner on the taking plan (Exhibit No. 13).

2. More recently Ms. Pinkham conveyed to Commonwealth Electric Company by deed dated December 2, 1987 and recorded in Book 6045, Page 234 the land between the disposal area and Flax Pond which is south of the present locus.

3. Accordingly the area sought to be registered in Case No. 42051 covers a parcel bounded northerly by Old Queen Anne Road, both easterly and southerly by land of the Town of Harwich, and westerly by land of Ms. Wood. In Case No. 42400 Ms. Wood seeks to register a parcel which encompasses the parcel claimed by Pinkham with frontage on the public way of about three hundred sixty-five feet and bounded again easterly and southerly by land of the Town of Harwich and westerly by the land registered in Case No. 37943.

4. Old Queen Anne Road also has been known as Old Chatham Road, and the title examiners in the three registration cases all recognize the identity although there is no official recognition of the various names.

5. Ms. Pinkham's record title stems from a 1888 deed from Hezekiah Moody to the Town of Harwich dated June 13, 1888 and recorded in Book 180, Page 41. The Town acting through its overseers conveyed the premises by deed dated March 23, 1888 but not recorded until May 14, 1912 to Simeon H. Moody. Title then passed through the estate of Ms. Pinkham's grandfather and father to Ms. Pinkham and her sister Virginia H. Moody. For title, also see Barnstable Probate No. 16589 and Suffolk Probate No. 419834, as well as a deed from Ida B. Baker, formerly Moody, to her son Augustus dated May 11, 1931 and recorded in Book 398, Page 432 and the deed from Virginia H. Moody to Ms. Pinkham dated December 28, 1965 and recorded in Book 1322, Page 505.

6. The description in the deeds in the Pinkham chain varies little and reads as follows (Exhibit 1, page 10):

Beginning at the Southeast corner at Flax Pond;

Thence Northerly in Shadrach Kelley's and Jonathan Ellis' range to the Old Chatham Road;

Thence Westerly by the said road to a stake;

Thence Southerly by land formerly owned by Matthew Allen deceased to the said Flax Pond;

Thence by the said Pond Easterly to the first mentioned bound, said lots containing six acres be the same more or less.

Its unclear why the description never was changed to reflect the ownership of the land to the east by the Town, but the likely explanation is the hesitancy of conveyancers to change a description of record. The westerly boundary is by land of Matthew Allen. The Joy land to the west of Wood bounds on the east by Davis Lothrop, but the Land Court examiner was unable to find any deed into Simon Fraser in whom record title was assumed in the Wood abstract, nor is there any support for the Fraser ownership in any of the evidence. Nor is there any clue either as to Allen or Lothrop as a predecessor, although the description in the deed to Ms. Wood's predecessor does bound on the west and south by Lothrop land.

7. The abstract of title in the Wood case reveals the failure to find any deed into Mr. Fraser. The title commenced with a deed from John P. Sylvia, Jr., as Public Administrator of the Estate of Simon Fraser, to Gershom D. Hall dated February 28, 1939 and recorded in Book 549, Page 326 (Exhibit No. 61). The Probate Court proceedings reflect the lack of record title and include a letter that Fraser's holdings of odds and ends principally were used for cedar to make rustic fences (Exhibit No. 4, sheet 11). Judge Hall subsequently conveyed the premises to his corporation, Chase Street Village, Inc. (Exhibit No. 7) which conveyed to Ms. Wood the parcel she now claims by deed dated January 22, 1973 and recorded in Book 1797, Page 80 (Exhibit 4, sheet 18). The easterly boundary with the Town of Harwich as described in the latter deed was changed by an exchange of triangular parcels (see Exhibit Nos. 11 and 12).

8. The legal description of the premises John P. Sylvia, Jr., Public Administrator of the Estate of Simon Fraser, conveyed to Judge Hall (Exhibit No. 6) is as follows:

A certain lot of pine land situated in said Harwich and bounded on the North by land now or formerly of Ann Robbins; on the East by land formerly of Davis Lothrop; on the south by land now or formerly of the heirs of Davis Lothrop; and on the West by land formerly of Reuben Allen and by land now or formerly of the heirs of David Lothrop; containing one and 1/3 acres more or less.

Also a parcel of woodland bounded on the North by Queen Anne Road; on the East by a wood lot belonging to the Inhabitants of the Town of Harwich; on the South and on the West by parties unknown.

It may be that the easterly boundary of the second parcel is the Moody, now Pinkham land, as Harwich at one time owned the Pinkham parcel, but lack of any back title reflects adversely on the Fraser record title.

9. At the time of the deed from the Public Administrator the Town of Harwich owned no land of record in this area, the Pinkham locus, formerly the Town's, having been conveyed out and the deed to land now comprising the entrance to the disposal area not having been put on record. The latter deed was from William H. Nickerson to the Town of Harwich dated February 10, 1933, recorded in Book 650, Page 568 (Exhibit 1, sheet 16). The practice of conveyancers in frequently adhering to a prior abutting owner of record in a description leads me to conclude that the premises conveyed to Judge Hall abutted, but did not include, the Moody piece belonging to Ms. Pinkham's family.

10. The record owners of the Pinkham locus have had little physical contact with the land for many years. Ms. Pinkham remembered visiting the locus with her father when she was a youngster and a more recent visit in which she attempted to find the locus by approaching it from the rear, presumably from Kelly Street which is beyond Flax Pond.

11. The Town of Harwich has assessed and billed members of the Moody family for a parcel of vacant land at Flax Pond for many years. In 1965 Ms. Pinkham paid a bill to Augustus H. Moody which referred to a locus deed in Book 313, Page 246; more recently the tax bills have referred to Book 1322, Page 505, the recording reference for the deed from Ms. Pinkham's sister to her (see Exhibit No. 3). Town officials were unable, however, to locate the parcel covered by the bills introduced into evidence when Ms. Pinkham made inquiries. At the same time the Town has assessed and billed Ms. Wood and her predecessors beginning in 1967 for taxes on locus (Exhibit Nos. l8A and 18B). The current assessors' plan shows a division line through so-called Lot Fl to reflect this controversy.

12. The land described in the deed to Gershom Hall must have comprised a much larger parcel than remains today. A portion was taken for the town disposal area in 1967 by an order of taking recorded in Book 1365, Page 345 and shown on a plan in Plan Book 211, Page 73 (Exhibit No. 8). Subsequently the Town took from Ms. Wood a triangular portion of the locus by instrument dated July 11, 1975 and recorded in Book 2215, Page 082 (Exhibit No. 10). The exchange previously had been authorized by Town Meeting (Exhibit No. 9) also recorded in Book 2215, Page 81, so it is unclear whether the taking evidenced a commendable caution followed in all acquisitions or an awareness of Ms. Wood's title infirmities. The exchange which was designed to have the actual location of the road into the dump accord with supposed title was completed by delivery of a deed from Christine S. Wood to the Town of Harwich dated July 14, 1975 and recorded in Book 2215, Page 77 and of a deed from the Town of Harwich to Christine S. Wood to said Town dated July 14, 1975 and recorded in Book 2215, Page 79.

13. The parcel which Gershom Hall apparently thought he had acquired from the Public Administrator was said to contain in excess of fourteen acres. Starting at least in the mid-fifties local contractors began to secure Cape Cod hardening from the site for use as a base for roads and driveways. Using a grid pattern trees and stumps would be removed and dumped in a hole, and the loam would be stripped and stockpiled on the site. Then the hardening, four to eight inches thick would be removed and stockpiled to be used as needed. The hardening eventually would be loaded on trucks and taken to the site when and where needed. Judge Hall was paid for this. So far as appears his title never was questioned, perhaps in view of his prominence as a judge and local attorney.

14. The land claimed by Ms. Wood was the last to be excavated. "The top piece was always quite a wooded area" according to Robert E. Marceline, the retired superintendent of the disposal area. He testified that it was in the late sixties when the front piece was excavated after the "dump" started. Previously, the Town had a sand pit in the rear to the left as trucks entered from Old Queen Anne Road, and private parties were excavating in the rear on the right. Nature has covered man's indignities, and the results of the stripping are no longer apparent on the site.

15. Activities on the site since the late sixties have been sporadic. Ms. Wood has a plastic shed thereon where lobster men kept their lobster pots; she also has a small greenhouse, and it is this which apparently is or was leased to Mark J. Coleman by instrument dated July 28, 1982. Mr. Our and Ms. Wood also had a garden on locus in the mid seventies and laid plastic pipes to water it from the adjoining Our parcel.

16. Very recently, within the past year, Ms. Wood erected "No Trespassing" signs on the locus directed to Route 6 construction workers. She also had attempted to sell the land before she was informed of the Pinkham claim.

Adverse possession frequently is a helpful principle by which to buttress defective record title in registration proceedings. It is rare, however, when there is a contest between the actual record owner of the land and a party attempting through alleged occupation over a period of twenty years to seize title thereto. This is such a case. To acquire title by adverse possession the use must be open, exclusive, continuous and adverse under a claim of right for at least twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). The filing of the Pinkham complaint for registration on February 5, 1987 stopped the running of the period of adverse possession so for Ms. Wood to prevail, she must show twenty years adverse use prior to that date. All the activities on locus appear to have commenced sometime shortly after the crucial date of February 5, 1967. Ms.Wood's own witness, Mr. Marceline, placed the excavation on the locus in the late sixties after the disposal area was begun and the back lands taken by the Town.

It is true that assessment and payment of taxes by Ms. Wood and her predecessors began about the same time as the twenty years commenced to run, but other than the technical January 1 assessment date contacts were later in the year; payment would have been presumably in those years about October 1. In any event payment of taxes alone is insufficient to constitute adverse possession although it is some evidence of it.

I have considered the doctrine of color of title to see if activities earned on by those claiming under Judge Hall in other parts of the locus might benefit Ms. Wood. Norton v. West, 8 Mass. App. Ct. 348 , 350-351 (1979). It appears to me, however, that the description in the deeds to and from Judge Hall are too indefinite to bring this doctrine into play.

On all the evidence therefore I find and rule that the plaintiff Barbara M. Pinkham has borne her burden of proof as to the record title to the locus shown on the filed plan in Case No. 42051 (Exhibit No. 2) except for the triangular parcel marked thereon "Area Claimed by Town of Harwich 1,748 sq. ft. ±"; that in Case No. 42400 plaintiff, Christine S. Wood has not established a superior title by adverse possession; and that the Pinkham title may be registered subject to such matters as may be shown by the abstract and are not in issue here.

And I further find and rule that the deed to the predecessor in title to Christine S. Wood bounded by land of the Inhabitants of Harwich which I construe to be the Pinkham land; that while the deed into the decedent Simon Fraser whom she claims cannot be determined, the parcel appears properly to be located between Registration Case Nos. 37943 and 42051; that the record title thereto has been buttressed by acts of adverse possession; and that title to the portion of the land claimed by Ms. Wood between that to be registered in Case No. 42051 and the heretofore registered Joy land may be registered subject to such matters as appear in the abstract and are not in issue here.

In Case No. 42051 it is ordered that the case be dismissed as the parcel taken by the Town of Harwich. In Case No. 42400 it is ordered that the case be dismissed as to the land included within Case No. 42051. The triangular parcel of land shown on the filed plan in the latter case as "Area Claimed by Christine S. Wood" appear to belong to her, but it would be inappropriate to register title in this proceeding. I therefore dismiss the case as to it.

Ms. Wood is to have ninety (90) days after the expiration of the appeal period (or after any rescript from an appellate court) to move the aluminum frame structure on the Pinkham locus.

Judgments accordingly.


[Note 1] After the conclusion of the trial Mr. Burling was temporarily suspended from the practice of law in the Commonwealth by order of the Supreme Judicial Court dated June 21, 1990.