By complaint pursuant to G.L. c. 185 Theodore T. Griffith and Bertha V. Griffith seek to register their title to a parcel of vacant land situated on Valley Road, off Windsor Road, in Milford in the County of Worcester and containing approximately 4.10 acres. The plaintiffs no longer claim that they have record title to the parcel but seek to prevail on the basis of adverse possession. During the course of the trial it appeared that title has been transferred by the plaintiffs to their son, Mark Griffith, who wishes to build a single family residence thereon, but neither the deed nor a motion to substitute Mark Griffith has as yet been filed with the Court. In addition, the title examiner's supplemental rundown must be provided. Finally, service has not been had on an abutter, Peter E. Nohr, and his consent to the registration proceedings must be obtained, nor is there evidence of service on the record owners Nvart and Ardash Sarkisian. The Commonwealth of Massachusetts filed an answer in the proceeding, but its objections have been withdrawn and a report from the Department of Public Works filed at the request of an assisant attorney general is Exhibit No. 5. The only other answer filed in the proceeding was by abutters John R. Devendorf and Carol Devendorf who dispute the plaintiffs' right to use Valley Road as shown on the filed plan for access to and from the locus as shown on a plan entitled "Plan of Land in Milford, Mass. Property of Theodore T. & Bertha V. Griffith" dated June 21, 1988 by Guerriere and Halnon, Inc. (Exhibit No. 2).
At the trial the defendants contested the plaintiffs' claim to have obtained title by adverse possession, but since they do not claim any interest in the locus I find and rule they had no standing in this respect. The defendants do, however, have standing to challenge the access to locus.
A trial was held at the Land Court on May 7, 1991 at which a stenographer was appointed to record and transcribe the testimony. Witnesses for the plaintiffs were Theodore T. Griffith who is now 88 years old, his son, John Griffith, and his grandson, Mark Griffith. The defendants called no witnesses. There were nine exhibits introduced into evidence of which some had multiple parts, which are incorporated herein in case of an appeal.
On all the evidence I find and rule as follows:
1. The plaintiffs understood that they had record title to the locus, but the deed on which they relied and which was introduced in evidence as Exhibit No. 6 from Caroline Conant to Andrew Griffith dated August 1, 1904 and recorded with Worcester District Deeds in Book 1821, Page 69 conveyed non-locus parcels.
2. Even if the Conant deed had conveyed title to the locus, the deed to the plaintiffs from the heirs at law and next of kin of Andrew Griffith which was dated June 18, 1970 and recorded in Book 5069, Page 233 did not include as grantors those entitled to the interest of a deceased son of Andrew Griffith (Exhibit No. 3).
3. The examiner appointed by the Court to review the records, Erik A.N. Anderberg, reported that record title was in Ardash Sarkisian and Nvart Sarkisian. Another member of the Sarkisian family, Vahan L. Sarkisian, Trustee of the Sarkisian Realty Trust, held title to the subdivision in which the defendants' property is located, having acquired title by deed dated March 6, 1972 and recorded in Book 5202, Page 118. Vahan Sarkisian reported to the Court that the family did not wish to appear or be heard, but in light of the examiner's report counsel for the plaintiffs will have to obtain confirmation from the record owners. Valley Road as it appears on the filed plan was created by the subdivision which appears in the abstract at Sheet 29 of the so-called Hallmark Estate with a revised plan entitled Colonial Village having been recorded in Plan Book 311 as Plan 87.
4. Theodore Griffith was born in 1904 and when he was approximately nine or ten he remembers his father, Andrew Griffith, saying "he bought a piece of land off of Connors and was going to put a place where he could bring the cows down, you know, for pasturing." After the eldest Mr. Griffith made this statement, his sons were indeed entrusted with bringing the cows from the farm on which the family lived across what seems to have ben property of third parties through a gap in the stone wall to the locus. This practice continued with the cows brought down to pasture in the morning and brought home at night although the young stock stayed in the pasture from the warm weather in the spring until the fall. There were two to three cows at the most in the pasture plus the youngest stock. On occasion the fields between the locus and the Griffith farm were being mowed for hay and to prevent the cows from trampling it, they were brought down Purchase Street to Windsor Road and up what is now Valley Road to the locus. Mr. Theodore Griffith described Windsor Road and Valley Road as "wagon roads". At the appropriate time he would receive his orders from the elder members of the family to use that route for the cows.
5. It is unclear when this practice ceased. Theodore Griffith was married and left home in 1929. During his father's later years the father did not keep a cow in the field. Mr.Andrew Griffith died on November 30, 1949 so presumably pasturing of the cows on the locus ceased around the end of World War II. The practice thus had continued from 1915 to 1945, a period greater than that required to obtain title by adverse possession.
6. Mr. Theodore Griffith described a wagon road as being a road with ruts which ran up and down with small brush growing in it, presumably between the ruts made by the wagon wheels and muddy in the spring. Huckleberry Brook which shows on the filed plan was relocated when Route 495 was constructed and was not in its present location during the years in question. The brook looks the same now as it did in years gone by, but it has been reocated.
7. In addition to placing the cows on the locus the Griffiths picked blueberries, hunted thereon and gthered chestnuts and walnuts. They also used the wagon road to get wood for the winter. The stone walls which show on the filed plan on the westerly and northerly boundaries have been there in their present location for all of Mr. Griffith's life span.
8. John Griffith used to go with his grandfather, that is Andrew Griffith, when he was seven or eight years old to get the cows and the route that they followed would depnd on where the cows were. His son also camped on the locus. They would approach locus over Valley Road, cut the wood and bring it out. It is unclear whether Valley Road in its life as a wagon road had any name or whether the Sarkisians christened it as Valley Road. However, it seems clear that there was access in its approximate location to locus. It also is clear that others hunted on locus or may have picked blueberries with or without asking permission from the Griffith family, but that is the natural result of vacant land and human nature.
9. American Telephone and Telegraph Company has an easement to construct, operate and maintain a communication systems over a twenty foot wide strip of land running across locus and through a portion of Valley Road with the cable designated to be located ten feet from and parallel to the westerly line of the road as given by Ardash and Nvart Sarkisian by instrument dated March 14, 1968 and duly recorded in Book 4893, Page 486.
10. The plaintiffs have been assessed by the Town of Milford from fiscal 1980 for a 3.8 acre parcel off Valley Road and have paid the tax bills during this period of time. From 1971 to 1979 they also were assessed for and paid the taxes on a Camp Street location. It is unclear whether the Griffiths actually owned any land on Camp Street pursuant to the deed referred to above or whether this was an error and the locus was intended. The assessor's certificate as filed in this proceeding shows the locus assessed to the plaintiffs. The westerly abutter is given as one Peter E. Nohr, and the plaintiffs have not yet furnished the Court with proof of service on Mr. Nohr.
11. After or contemporaneously with their purchase the Devendorfs learned that their house was situated within one foot of the side line of Valley Road, closer than the Milford Zoning By-law authorized. Subsequently the defendants learned that their septic system was situated beneath the Valley Road layout. They, with the abutter on the opposite side of Valley Road, petitioned the Planning Board for a discontinuance of the subdivision street. The Planning Board granted their request and its action has been appealed to the Superior Court. However, the action of the Board is immaterial as far as the registration proceeding is concerned. The plaintiffs would have no right to use the subdivision road in any event, and their underlying claim is a prescriptive right to use the wagon road in the approximate location of the subdivision road.
12. Exhibit Nos. 8A, 8B and 8C show a grassy lawn at the approximate location of Valley Road, but the pictures also reveals traces of gravel in portions thereof and a trail leading into the wooded area of locus. AT&T uses ten feet of Valley Road to service its cable, and its trucks enter from Windsor Road.
13. The wagon road used by the Griffiths is not depicted on the file plan and the plaintiffs should so amend it before a final decree may enter.
The Court was impressed by the demeanor of the plaintiffs' witnesses, particularly that of Mr. Theodore V. Griffith, who clearly is the soul of rectitude. While the documentary evidence which the Griffiths formerly believed showed their record title to the premises was flawed, I am satisfied that they have acquired title to the locus by adverse possession which has continued for about 75 years, although the more intense use ceased about 1945. There is no evidence, however, that the Griffiths intended to abandon the title which they had acquired during the earlier years of this century. The law applicable to adverse possession is well established and need not be repeated here. I am satisfied that the four prongs thereof have been satisfied by the evidence introduced on behalf of the plaintiffs. The plaintiffs rely on the theory of a lost grant, that is, a deed from O'Connor to Andrew Griffith which embodied the conveyance our plaintiff learned of as a small boy. "The theory of a lost grant is a legal fiction intended to meet the difficulty of contemplating the creation of a valid title in land by something other than a deed. It has been used to support a title really acquired by long continued adverse use and granted by public policy. . . " Bucella v. Agrippino, 257 Mass. 483 , 487 (1926).
The more difficult question is whether the plaintiffs have shown a prescriptive right to use the so-called wagon road approximately twenty-five feet wide for access to and egress from Windsor Road and for all other usual purposes of a way in Milford. This determination does not turn on the status of Valley Road as a subdivision street since it is clear that an abutter without the subdivision has no right to use a subdivision way while the Sarkisians as holders of the record title, if they had chosen to assert such rights, doubtless would have an appurtenant right over Valley Road. The Griffiths who have acquired title by adverse possession do not. However, an unexplained use for over twenty years is deemed to constitute a prescriptive right to use the way in question. The evidence shows that members of the Griffith family have gone to and from their farm to locus (and subsequently from other residences) for access to and egress from Windsor Road and the locus. Even after the days of dairying were numbered, the wagon road in this location continued to be used to remove wood cut from locus and for access to the property. Without access from Windsor Road, the locus would be landlocked, and it would be unavailable for any use.
I am not unmindful of the hardship posed by the presence of the septic system serving the Devendorfs' house beneath Valley Road. The zoning problem should be resolved by G.L. c. 40A, §7, but any heavy vehicles crossing the septic system, particularly for the construction of a home on the locus, might present serious problems to the maintenance of the fragile machinery beneath the surface. If this should prove to be the case, then the plaintiffs must provde the defendants with an easement within which their septic system can be relocated at the defendants' expense, provided that there is a nearby area of locus where percolation tests are satisfactory.
The plaintiffs' easement acquired by prescription is framed by the use to which it has been put. A right of way for all purposes, but for one house only on locus, should both provide the plaintiffs with access to their property and the defendants with protection.
A decree may be entered registering the title of the plaintiffs or of any substituted plaintiffs to the locus subject to such matters that may appear in the abstract and are not in issue here and subject also to the provisions of this decision relative to the Devendorfs' septic system, to the assent by Peter Nohr, Nvart and Ardash Sarkisian of service in this matter, as well as the examiner's supplemental report and showing of the wagon road on the file plan.