ELIZABETH I. MORRIS vs. SAID ABU-ZAHRA as he is the TRUSTEE OF ABU-ZAHRA FAMILY TRUST.

By complaint filed June 30, 1987, Plaintiff seeks to register and confirm title, pursuant to G.L. c. 185, § 1, to a parcel of land located in Lynnfield, consisting of approximately 17.476 acres, as shown on Land Court Plan No. 42113-A, entitled "Plan of Land in Lynnfield, Mass.", dated January 27, 1987, by Hayes Engineering, Inc. ("Locus") (Exhibit No. 2). Following the issuance of notice to all potential claimants in the matter, including the Attorney General for the Commonwealth of Massachusetts ("the Attorney General"), Said Abu-Zahra, as trustee of Abu-Zahra Family Trust ("Abu-Zahra") and the Attorney General both on June 27, 1988, and the Lynn Water and Sewer Commission ("the Commission") on July 6, 1988, filed objections to Plaintiff's registration complaint. On October 27, 1989, the Attorney General withdrew his objection. The Commission was represented at the first day of trial, but thereafter made no appearance and filed no post-trial memorandum. On July 6 , 1987, the matter was referred to Land Court Title Examiner, Thomas J. Donovan, Esq. ("the Examiner"). On April 26, 1988, an Abstract of Title to Locus was filed with the Court ("the Abstract") (Exhibit No. 1). In the Abstract, the Examiner reported that, "Petitioner has a good title as alleged, and proper for registration."

The Court took a view of Locus on June 25, 1991.

This case was tried on August 24, 1990, and April 10 and 30, 1991, at which times the trial proceedings were transcribed by a court-appointed reporter. Six witnesses testified and nineteen exhibits and a chalk were introduced into evidence. All of the exhibits and the chalk are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. As shown on Land Court Plan No. 42113-A, Locus is a large multi-sided parcel with frontage on Salem Street.

2. Plaintiff's title contains six parcels, which entered into the chain over time. Those parcels are designated "A" through "F" on Exhibit Number 6.

3. Defendant disputes Plaintiff's ownership of a southerly portion of Locus ("the Disputed Area" or "the Disputed Parcel"). The Disputed Area is shown, on the Plan, as being bounded to the north by a stone wall and to the south and east by a scattered stone wall and land of Said Abu-Zahra and is traversed by a woods road. This area is further shown on Exhibit Number 6 as parcel "B" ("Parcel B") and the portion of parcel "D" ("Parcel D") to the south of the stone wall.

4. Plaintiff claims Parcel B from a deed dated September 2, 1876, recorded in the Essex South Registry of Deeds [Note 1] at Book 960, Page 207 ("the James Ramsdell Deed"), by which James A. Ramsdell conveyed to Ira M. Ramsdell a parcel of approximately one and one half acres described as follows:

Beginning at the NW corner of a lot of land adjoining corner of land of the said James Newhall & is bounded E'ly & N'ly as the wall stands by the land of James Newhall to a stake & stones by lands of Elijah R.Mansfield. Then bounded W'ly by saidMansfield land to a white oak tree marked by land by land [sic] of Daniel P. Emerson, bound still W'ly by land of said Emerson to land of John A. Hawkes then E'ly by land of said ' ' to the place of beginning or however otherwise bounded. [Note 2]

5. Plaintiff claims Parcel D from a deed dated June 14, 1883, and recorded in Book 1109, Page 201, by which Sophia Ramsdell conveyed to Ira Ramsell a parcel of approximately five acres ("the Sophia Ramsdell Parcel") (hereinafter referred to along with the James Ramsdell Parcel as "the Ramsdell Parcels") described as follows:

Beginning at the NE [Note 3] corner of said land by the highway leading from Peabody to Wakefield by land of George S. Hawkes, Thence S'ly by land of said Hawkes to land of heirs of Eben Aborn, Thence E'ly by land of Daniel Taylor to land of the heirs of Josiah Newhall, Thence N'ly by land of the heirs of ' ' & land of said Ira M. Ramsdell to said highway, Thence W'ly by said Highway to a corner of the wall by land of said Ira M. Ramsdell, Thence S'ly by said Ira M. Ramsdell's land to the NE'ly corner of the dwelling house, Thence W'ly by the N'ly side of said ' ' to the Foundation of an old wall, Thence N'ly by said old wall to said highway ' ' W'ly by said highway to the point or place of beginning.

6. The Examiner explains that the above-mentioned Ira Ramsdell died intestate leaving his widow Sarah Ramsdell and two minor daughters and that Sarah E. Ramsdell sold the portion of Locus she owned, which allegedly included the Disputed Parcel, under a license to pay debts to Mercy W. Nourse ("the Nourse Deed"), who later deeded it back to Sarah. The Nourse Deed is dated December 5, 1892, and recorded at Book 1364, Page 218, and describes Locus as follows:

Baginning at the NE'ly corner thereof by the Hwy. leading from Peabody to Wakefield (sic) Thence running W'ly by the land of Sarah E. Ramsdell; Thence S'ly & Westerly by land of heirs of Eben Aborn; Th E'ly by " " " " Daniel Taylor; Thence N'ly, Thence E'ly, Thence NE'ly by land of the heirs of Josiah Newhall to the point began at.

The Nourse deed also describes Locus as having buildings thereon and references the James Ramsdell Deed. [Note 4]

7. Plaintiff and her husband, both of whom have lived on Locus for about forty-one years, testified that they participated in activities on Locus, including gathering wood products, picnicking, collecting flowers, taking walks, and once posting a "no trespassing" sign.

8. Defendant owns the parcel of land to the south of Locus, marked "Said Abu-Zahra" on the Plan ("the Abu-Zahra Parcel"). Defendant contests Plaintiff's ownership of the Disputed Parcel and claims an easement over the path marked "woods road" on the Plan leading from the Abu-Zahra Parcel to Salem Street.

In a registration case, the Plaintiff has the burden of proving he has a title that is proper for registration. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). He must prevail, if at all, on the strength of his own title and not on the weakness or nonexistence of the Defendant's title. Butrick v. Tilton, 141 Mass. 93 , 96 (1886); Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987). In the present case, I find that Plaintiff has failed, for the reasons below stated, to show that she has title to the Disputed Area suitable for registration. Moreover, inasmuch as this is an action based on a petition for registration, I do not hereby decide Defendant's claim of title to the disputed area nor to an easement over Locus.

Plaintiff's land surveyor admits that there is some confusion as to the southern boundary, and accordingly marked the Plan on that boundary with the words "LINE CLAIMED BY PETITIONER". As the Examiner correctly points out in his abstract, "[d]escriptions throughout title abstract are generally vague and without courses and distances. Plans are few."

The Examiner did not examine various neighboring chains of title which may or may not have more definitely located Locus. The evidence presented here is insufficient to adequately demonstrate that the Ramsdell Deeds conveyed the Disputed Area. While the James Ramsdell Deed describes the Disputed Area as being bounded to the north and east by a stone wall, it does not explain the jog Plaintiff claims in the parcel's northerly boundary. The Sophia Ramsdell Deed fails to mention the stone wall allegedly running through Parcel D or its alleged jagged shape as shown on Exhibit 6. Further, while there is a woods road running through the Disputed area and a scattered stone wall on its southerly boundary, none of these are mentioned in the Ramsdell Deeds. Were such features in existence when the Deeds were drawn, it might be possible to use them or monuments by inference but inasmuch as there is no evidence as to the age of those features, it could well be that such monuments were non-existent at the times of the conveyances, which then leaves us with no courses, distances, or monuments, with the exception of the above-mentioned wall in the James Ramsdell Deed.

The evidence is inadequate to establish the location of the abutters in the James Ramsdell Deed, namely James Newhall, Daniel P. Emerson, or John A. Hawkes, or the southerly abutters in the Sophia Ramsdell Deed. Further, the Nourse Deed does little to help establish title by its description of Locus or its reference to abutters. By making the above findings, I do not mean to suggest that those are the only deficiencies in proof of Plaintiff's title, however, they are sufficient to defeat registration based upon record title.

Plaintiff also claims title to Locus through adverse possession. For Plaintiff to prevail on such a claim, she must prove that for twenty years, without interruption, she and/or her predecessors in title have used the Locus 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); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure on the part of Plaintiff to prove any one of those elements will preclude a finding on her behalf. Gareault v. Hillman, 317 Mass. 657 , 661 (1945). The purpose behind those various requirements is to put the true owner on notice of hostile activity of the possession, so that he may be afforded an opportunity to take steps toward vindicating his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Dow v. Dow, 243 Mass. 587 , 593 (1923).

In the present case, Plaintiff makes claim to a number of activities on Locus but has failed to provide credible evidence establishing the extent, duration, or location of those activities.

In summary, I find that Plaintiff has not established title sufficient for registration and her complaint must be dismissed. However, I hereby stay the dismissal of Plaintiff's complaint for 30 days from her receipt of the Decision and Judgment in this case, in order that, should she wish to do so, Plaintiff may move to sever and dismiss as to the Disputed Parcel and proceed with registration to the remainder of Locus subject to such other matters as may appear of record and are not involved in this proceeding.

The parties have submitted Post-Trial Memoranda and Plaintiff has submitted Requests for Findings of Fact and Rulings of Law. I have not attempted to rule on each of Plaintiff's Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Judgment accordingly.