WILHELM GILL and ROSINA GILL vs. JOSEPH G. WILLIAMS and his heirs, vs. E. OTIS DYER

E. Otis Dyer ("Dyer") filed a petition in this Court (Case 86326) to foreclose all rights of redemption in a parcel of land ("Locus") located on Plain Street in Rehoboth. Wilhelm and Rosina Gill (the "Gills") claim superior title to Locus by means of a tax deed issued by the Town of Rehoboth (the "Town"), and in the alternative, by adverse possession. The Gills filed a try-title action under G. L. c. 60, §80B in Bristol Superior Court. This Court has exclusive jurisdiction over such an action and the case was transferred here on November 8, 1989 (Case 138532). Defendant Williams in that case was the assessed owner of Locus and Dyer, as alleged current owner, intervened. The cases were consolidated for trial.

A trial was held on November 12, 1991. A stenographer was appointed to record and transcribe the testimony. Seventeen Exhibits (some with multiple parts) were introduced into evidence, all of which are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Elizabeth Patterson (the Town's Tax Collector), the Gills, and Anita Gill (their daughter), all for the Gills; and Raymond T. Nickerson (an environmental planner); Peter John Sanderson (an employee of Dyer), David Smith (a real estate broker at one time retained by Dyer), and Dyer, all for Dyer.

On all the evidence, I find and rule as follows:

1. Locus is a parcel of land in the Town containing approximately 2.6 acres with 225' frontage along Route 181, also known as Plain Street. Locus abuts to the north the lot (the "House Lot") upon which the Gills' house stands. Locus extends back from Plain Street about 300', at which point it narrows to a width of about 109' (still abutting the House Lot), at which width Locus extends another 362' further back from Plain Street. The line furthest to the north from the House Lot thus has three segments - a 300' line roughly perpendicular to Plain street, a jog southerly (toward the House Lot) and a 362' line roughly perpendicular to Plain Street; the last two of those segments are bounded by stone walls (as is the 109' easterly-most boundary of Locus). Locus is lightly wooded land, with a swampy area near its Plain Street frontage.

2. The Gills acquired the House Lot by deed dated May 25, 1964, and recorded at Book 1442, Page 1004 with the Bristol County Northern District Registry of Deeds (all recording references in this Decision are to that Registry) (Exhibit 4). The House Lot also contains approximately 2.6 acres, and has about 185' frontage on Plain Street. A copy of Exhibit 6, showing both parcels, is attached hereto.

3. Locus was formerly owned by Emma Campbell, who acquired title by deed dated November 3, 1906 and recorded at Book 611, Page 416 (Exhibit 15A). Locus was taken by the Town for nonpayment of taxes and sold to Harrie J. Williams by deed dated February 11, 1921, and recorded at Book 725, Page 289 (Exhibit 15C). Dyer alleges, and I will assume, that Harrie J. Williams conveyed Locus to Joseph H. Williams by deed dated November 18, 1942, and recorded at Book 876, Page 283 (Exhibit 15B), an "all­my-real-estate-in Massachusetts" deed. It is this tax title which Dyer (see 8 below for his title) seeks to foreclose.

4. Locus was again taken for nonpayment of taxes, by instrument recorded August 27, 1951, at Book 1041, Page 448 (Exhibit 12). That was a taking of a "Parcel of land known as the Campbell lot said to contain 3 acres. Same as described on Assessor's 1949 record Page 143 Line 1." for 1949 taxes assessed to Joseph G. (sic) Williams.

5. An Affidavit of Low Value of the Commissioner of Corporations and Taxation, dated April 21, 1954, was recorded at Book 1131, Page 14 (Exhibit 12), which included Locus as item 9. A Treasurer's Statement Relative to Tax Title was recorded with the Affidavit, at Book 1131, Page 24, also Exhibit 12.

6. Locus was conveyed to the Town by a "Treasurer's Deed to Municipality Land of Low Value" dated June 15, 1954, and recorded at Book 1135, Page 189 (the "Tax Deed") (Exhibit 12). "Harold A. Goff" is listed as the interested person served by registered mail with notice of sale under Chapter 60 Section 80A. Counsel for Dyer suggests that Goff was the then Register of Deeds, but that fact is not in evidence.

7. The Town conveyed Locus to the Gills by deed dated December 27, 1965, and recorded at Book 1476 Page 394 (Exhibit 3). Wilhelm Gill ("Wilhelm") testified that he paid the outstanding taxes on Locus as its purchase price. The deed states: "Authority for the Rehoboth Town Officials to release the Rights of The Town of Rehoboth in favor of William Gill et ux being given by the voters of the Town under Article #43 at the annual Town Meeting of March 1, 1965".

8. Olga Williams, recited as widow of Joseph H. Williams, and Florence Bartoshuk and Edna Ball, reciting themselves as his daughters, all three reciting themselves as only heirs of Joseph H. Williams who died on May 6, 1966 in Cook County, Chicago, conveyed a substantial number of properties in Dighton and Rehoboth (including Locus) to Dyer for $500 by deed dated July 7, 1970, recorded at Book 1561, Page 473 (Exhibit 15D).

9. On April 7, 1987, there was recorded a Disclaimer and Release (Exhibit 15-E) (the "Disclaimer") at Book 3370, Page 256. That states: "The Town of Rehoboth by and through its Treasurer, Elizabeth A. Patterson, hereby releases and disclaims any and all interest the Town of Rehoboth acquired by means of tax deed dated June 15, 1954 and recorded on June 18, 1954 in Bristol County Registry of Deeds Book 1135 Page 189. Said parcels taken under such deed were incorrectly taken by means of incorrect descriptions for the lots shown."

10. Wilhelm Gill ("Wilhelm") testified that as of 1964, Locus was used by the Gills and their children in the following manner: firewood was removed, 15-20 trees were cut down and removed, bees were kept and honey produced for sale, chickens were raised, berries were picked, the Gills' dogs were exercised daily, a bike path was cleared for and used by the Gills' children, rocks and stones were removed and used in the construction of the Gills' driveway, the Gills'children constructed and used a playhouse, and trash was removed from along the roadway. Not all these activities were carried on continuously, but Locus was used by the Gills continuously in one or more of these activities. The bee-keeping was continuous from the late 1960's to date. Since 1965, the Gills have been assessed for, and have paid, the taxes on Locus.

11. In 1964, the Gills were assessed for 5.2 acres of land. Wilhelm inquired of the Town as to why the Gills had been assessed for 5.2 acres when the deed for their house lot described only 2.6 acres. The Town Tax Assessor recommended that Wilhelm have his land surveyed at this time. Wilhelm then hired Dyer to survey the land. After completing the survey, Dyer provided Wilhelm with a plan dated October 29, 1964 (Exhibit 6), and showed Wilhelm where the property lines were. In response to Wilhelm's inquiry, Dyer informed Wilhelm that Locus once belonged to a Mr. Williams, but had been taken by the Town for the non-payment of taxes. The Gills then contacted Town officials as to how to purchase the property. After approval at a Town Meeting, the Town conveyed Locus to the Gills.

12. Dyer was aware that the Gills had purchased Locus and, in fact, he attended the Town Meeting in March, 1965, at which the vote was taken to convey Locus to them.

13. In 1970, Dyer contacted Olga Williams, heir of Joseph H. Williams, and purchased Locus from her. Dyer did not speak to the Gills at that time, or at any other time since completing the survey for them in 1964. Dyer contends he walked the property a few times in the following years, but never used Locus for any purpose. Dyer noticed the playhouse, which he admits was not there when he surveyed Locus, but stated he never saw any further signs of activity on Locus when occasionally driving by. Dyer testified that he has never paid any taxes on Locus.

14. The Gills contend they have superior title to Dyer by means of the tax deed from the Town, or alternatively, by adverse possession, having occupied Locus openly, notoriously, and exclusively, since they acquired the House Lot in 1964.

15. Dyer claims title to Locus by denying the validity of the tax taking. Dyer asserts the taking is invalid because it was made against Joseph G. Williams, rather than Joseph H. Williams, the correct name, because the Treasurer's Deed indicates Harold A. Goff as the party served by registered mail (see 6 above) and because the description of the land was too vague.

16. Locus and the House Lot together appear as one parcel of land (Lot 19) on Rehoboth Assessor's Map 4 and have been assessed as one parcel since at least 1964. Map 4 was submitted into evidence post-trial by agreement of counsel. The Gills have paid the real estate taxes on both Locus and the House Lot since at least 1965. Dyer has paid no taxes on either lot.

17. I find and rule that Dyer's objections to the 1951 low value proceedings through which the Gills claim are not sufficient to invalidate. The discrepancy in initials applied to six other parcels taken at the same time and there is no suggestion in the record or in the evidence that there ever was a Joseph G. Williams (as opposed to Joseph H.). In a town the size of Rehoboth in 1951 the Town's error would not mislead. Locus was from 1906 to 1921 owned by one Emma Campbell so that a reference to the Campbell Lot was understandable. If notice was sent to Mr. Goff and not Williams, no notice was required to begin with, Guaranty Mortgage Corp. v. Burlington, 385 Mass. 411 (1982).

18. Alternatively, I find and rule that the Gills have since 1965 used Locus openly, notoriously, exclusively, adversely and non-permissively and that they have established title to Locus by adverse possession, based on the facts set forth above. The Gills benefit from the doctrine of color of title, Norton v. West, 8 Mass. App. Ct. 348 (1979) by virtue of the deed into them described at 7 above.

19. Dyer argues that the Gills have not fenced Locus or reduced Locus to cultivation and that under Senn v. Western Massachusetts Electric Company, 18 Mass. App. Ct. 992 (1984) and the cases cited therein, their case fails. I conclude to the contrary. In the first place, Locus almost meets a fencing requirement. One side is the street and another is the common boundary with the House Lot -- I do not understand that fences need be established on those bounds. There are four other bounds to Locus, two easterly and two northerly. All of those are enclosed by stone walls except for the smaller northerly bound. Second, Locus is somewhere between a suburban lot and the wildland that Dyer's cases speak of and it is of only modest size. The reasons for the fencing requirement do not apply with much force in this case. I note also that the Gills benefit from color of title, although it is not clear to me whether that is decisive on this point.

20. Dyer also suggests that he is the holder of an unforeclosed tax title (see 3 above) and that until foreclosure any adverse possession could run against Mrs. Campbell but not against the Town or its assigns, citing Sandwich v. Quirk, 409 Mass. 380 (1991). In Sandwich the Supreme Judicial Court held that a foreclosed tax taking interrupts the running of adverse possession, thus defeating a claim that the adverse possessor had acquired title to town owned land. But here we have land acquired by a private party (Harrie J. Williams ) from the Town after the taking, leaving an adverse possessor perfectly free to run up twenty years against Williams or his successors. The Town's activity in putting title in Harrie Williams is a red herring.

21. The Town's disclaimer, paragraph 9 above, does not undo the Gills' title. The Gills own Locus.

22. In Dyer's petition to foreclose (Case 86326), judgment of dismissal shall enter. In the Gills' try-title action (Case 138532), Dyer having intervened and claimed title, there is no point to a decree ordering him to try title; his intervention is taken as his action to try his title and a decree shall enter that the Gills have title.

Judgment accordingly.

exhibit 1