JOHN F. KELLEHER and ANN M. KELLEHER vs. MARY R. BROWN, as she is the TRUSTEE OF MINNIE TRUST.

By complaint filed October 21, 1988, Plaintiffs seek to register and confirm title, pursuant to G.L. c. 185, § 1, to two parcels of land located in Mashpee ("Locus"), the first consisting of approximately .54 acres ("Parcel Number 1") and the second consisting of approximately .27 acres ("Parcel Number 2"), as shown on Land Court Plan No. 42437-A, entitled "Plan of Land in Mashpee, Mass.", dated September 28, 1987, by the BSC Group ("the Plan"). Following the issuance of notice to all potential claimants in the matter, Mary R. Brown, Trustee of Minnie Trust ("Brown"), Robert R. DeLory and Pauline F. DeLory ("the DeLorys"), Veronica F. Jurczak ("Jurczak"), Nicholas Catalina ("Catalina"), the Town of Mashpee ("Mashpee") and Donald T. Trainor ("Trainor"), filed objections to Plaintiffs' registration. All objections except those of Defendant have either been withdrawn or dismissed or the parties making such objections have failed to participate at trial. On November 2, 1988, the matter was referred to Land Court Title Examiner, Thomas P. Cantwell, Esq. ("the Examiner") who filed his report and abstract ("the Abstract") (Exhibit No. 1) on April 27, 1989. The Examiner reports that, in his opinion, the Plaintiffs "have not 'a good title as alleged, and proper for registration.'" Plaintiffs do not claim record title to Locus; their claim to title is by adverse possession.

On January 18, 1990, Plaintiffs filed a Motion for Summary Judgment or in the Alternative Motion to Strike Answer and Appearance of Mary R. Brown, Trustee, which motion was denied on March 27, 1990. On February 22, 1990, Brown filed a Motion for Summary Judgment, which motion was denied on March 27, 1990.

This case was tried on May 15, 1991, at which time the proceedings were recorded by a court-appointed reporter, however, those recordings were not transcribed. Six witnesses testified and twenty-two exhibits were introduced into evidence. All of the exhibits 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 the Plan, Parcel Number 1 is an eight-sided parcel and Parcel Number 2 is a three-sided parcel, both bordering Great River and divided by Bay Road.

2. By quitclaim deed dated August 16, 1954, and recorded at the Barnstable Registry of Deeds [Note 1] at Book 882, Page 587, Carl A. Avant ("Avant") conveyed Locus to Amelia Caroline Studley ("Studley"). The Examiner was unable to locate any records, and no evidence was presented to the Court relating to ownership of Locus between 1919 and 1954 or any basis from which to determine that title ever vested in Avant. Accordingly, I find that Plaintiffs have not proven record title sufficient for registration.

3. Studley died testate on May 5, 1981, devising Locus to Frederick Nagle ("Nagle").

4. By deed dated May 24, 1984, and recorded at Book 4510, Page 102, Nagle conveyed Parcel Number 1 to Plaintiffs and by deed dated May 5, 1985, and recorded at Book 4537, Page 236, Nagle conveyed Parcel Number 2 to Plaintiffs.

5. Studley, Nagle, and Plaintiffs, have all paid real estate taxes on Locus during their alleged ownership.

6. Immediately after purchasing parcel number 1, Plaintiffs began clearing the area around lots 541-3 and 548-551 as shown on the Plan. They cleared the land during the weekends, but never spent time overnight on Locus. In 1985, they obtained a building permit, put in a foundation, septic system and framing for a dwelling which was never completed.

7. By letter dated June 26, 1986, Brown advised Plaintiffs that they did not have good title to Locus.

8. Between 1950-62, there was a small shack ("the Shack") in the area of lots 535 and 536 as shown on the Plan. The Shack was one story, had a flat roof, and was about 20-24 feet long and 12-18 feet high. The Shack deteriorated and by 1969, only remnants remained. Around 1954, a friend of Studley, with Studley's knowledge and consent, lived in the Shack for about a year. No evidence was presented as to the construction of the Shack or its exact location.

9. Other than the Shack and the dwelling partially constructed by Plaintiffs, there have been no structures on Locus since at least 1960. Before Plaintiffs clearing of Locus, it was an overgrown wooded parcel and had been that way since at least 1960.

10. From 1960 to 1964, Studley and Nagle walked on Locus approximately four or five times each year and from 1969 to 1974, they walked on Locus approximately two or three times a year. She told Nagle, that among other things, she was checking boundary markers on Locus. Pauline DeLory, a friend of Studley, also walked on Locus with Studley.

11. Studley had Locus surveyed and around 1967 filed a plan with the Mashpee Planning Board. She listed Locus for sale with a broker around 1967-8 and received at least one offer.

12. In 1981, Nagle had Locus surveyed to see if the lots were buildable. In the process of making the plan, bounds were placed on Locus by the surveyor.

13. During her alleged ownership, Studley gave permission to a Mr. Eldridge to use Locus for hunting purposes and allowed the Boy Scout to use Locus. Also, friends of Studley stored boats on or near Locus and she made a neighbor remove utility poles from Locus.

For Plaintiffs to prevail on their adverse possession claim, they must prove that for twenty years, without interruption, they and/or their predecessors in title have used the disputed 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); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure to prove any one of those elements will preclude a finding on their 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).

It is generally held that a title by adverse possession cannot be shown to wild or woodland that has always been open or unenclosed. Cowden v. Cutting, 339 Mass. 164 , 168 (1959), quoting Dow at 593. Further, while surveying and placing boundary lines (See Coburn v. Hollis, 44 Mass. (3 Met.) 125 (1841)), and paying taxes on Locus (See Blanchard v. Lowell, 177 Mass. 501 (1901), may be considered by a Court, they do not, in and of themselves, constitute notice proper for adverse possession.

In the present case, as Defendant correctly argues, prior to Plaintiffs' purchase, Locus was mostly wild or woodland and Plaintiffs have presented no credible evidence of hostile activity sufficient to constitute actual or constructive notice.

Accordingly, I find that Plaintiffs have not established title sufficient for registration and their complaint must be and is hereby dismissed.

Plaintiffs submitted Requests for Findings of Fact and Rulings of Law and Defendant submitted a Post Trial Memorandum and Requests for Rulings of Law. I have not attempted to rule on either Plaintiffs' or Defendant'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.