FREDERICK C. OSIECKI and ELIZABETH C. OSIECKI vs. EDWARD WALENTY and COMMONWEALTH OF MASSACHUSETTS.

On October 6, 1987 plaintiffs filed a petition seeking to register title pursuant to G.L. c. 185 to a parcel of land ("Locus") on the southerly side of River Road in Uxbridge. Locus is shown as Lots 1 and 2 on a plan dated October 22, 1986 and entitled "Plan of Land in Uxbridge" filed with the Court as Land Court Plan No. 42183 (Exhibit No. 7).

Defendant Edward Walenty ("Walenty") filed an answer claiming to be the record owner of Locus. Defendant Commonwealth of Massachusetts filed an answer raising various defenses. The Commonwealth by its attorney during the trial waived all its answers except for the Fourth Defense.

The action was tried March 19, 1991. Plaintiff Frederick C. Osiecki testified as did his daughter, Elizabeth J. Bailey, and Edward A. Rainen, Esq., an expert title examiner, who prepared the Report of Title in this matter (Exhibit No. 14). Thirteen Exhibits were admitted into evidence and are incorporated herein for purposes of any appeal. An Affidavit of the Uxbridge Assessor dated March 13, 1991 was marked for identification as Exhibit No. 3 but not admitted into evidence. A Stenographer recorded the testimony but no transcript was prepared.

I find and rule as follows:

1. In his Report of Title, the Land Court Examiner states his opinion that the petitioners do not have a registerable title.

2. Petitioners are the grantees in a deed dated March 28, 1960 and recorded April 12, 1960 at Worcester District Registry of Deeds at Book 4101, Page 546. That deed leaves one in some doubt whether the easterly bound is a stone wall or the Uxbridge/Millville town line. If the latter, the deed encompasses all of Locus; if the former, the deed would not include a roughly triangular parcel formed by the stone wall, the Conrail right-of­way and the town line.

3. Even if the 1960 deed describes the entire Locus, there are defects in the record title, described in the Report of Title, which renders record title insufficient for registration. These, in summary, are: missing deeds from the four children of George Whitaker or their heirs or devisees; missing deeds from George Greene, Daniel Earl Greene, Elizabeth F. Greene, David E. Greene, Jr., Aridne Nason, Margaret Kelly, Mary Kelly and Esther Ellen Kelly or their heirs or devisees; and questionable validity of low value tax deed. I agree with the Examiner on those points although I do not agree that there is a problem as to the identity of one A. Frederick Anderson, as suggested by him. Plaintiffs must make up the deficiencies by adverse possession. The Examiner testified that during the period of his search (since 1860) there is no indication of any title interest of either of the defendants.

4. Locus is an area of slightly over five acres. Plaintiffs' house lot abuts Locus to the west. Locus is bounded by River Road to the north and by Conrail right-of-way to the south. Locus is in part cleared land and in part lightly wooded.

5. Plaintiffs have paid the real estate taxes on Locus from 1960 or 1961 to date.

6. Since 1960 plaintiffs have resided in their house in the lot abutting Locus. Plaintiffs and their family have used Locus continuously since 1960 as follows: parking cars, gardening, planting trees, cutting firewood, erection of a shed and a religious shrine, grass cutting, sledding and landscaping, all as the seasons allowed. No one other than plaintiffs and their family have used Locus during plaintiffs' ownership except possibly for occasional trespassers.

7. Plaintiffs' use of Locus from 1960 to the present has been non-permissive, actual, open, notorious, exclusive and adverse. In making this finding and ruling, I am aware that the evidence of plaintiffs' use of the portion of Locus east of the broken stone wall (a minor portion of Locus) is somewhat sparse. However, I find and rule that the 1960 deed into plaintiffs carries to the Uxbridge/Millville town line (thus including the land east of the stone wall) and, that being the case, deficiencies, if any, in evidence of activity east of the wall are cured by the doctrine of color of title, Norton v. West, 8 Mass. App. Ct. 348 (1979).

8. Defendant Walenty pressed upon the Court, as the basis of an alleged title in him, a 1939 deed to Stephen Walenty from United States Rubber Company recorded at Worcester District Deeds at Book 2764, Page 148. Contrary to Mr. Walenty's assertions, that deed conveys only three parcels of land, none of which appears to be Locus. Moreover, even if that deed had been of Locus, plaintiffs' title by adverse possession would control.

9. On all the evidence I therefore find and rule that plaintiffs are entitled to a decree registering plaintiffs' title to Locus, subject to such matters as may appear in the Report of Title and are not in issue here, except as to a $250 mortgage recorded at Book 1148, Page 541 on July 10, 1883. As Locus is not yet registered, plaintiffs have the benefit of G.L. c. 260, §33 (fifty year mortgage statute). That being the case, I rule that title may be registered without reference to the 1883 mortgage.

Judgement accordingly.