MISC 142795

February 27, 1992

Berkshire, ss.



This matter was commenced March 6, 1990, pursuant to G.L. c. 258, §4, the court has ordered Defendants to try their claim to a certain parcel of farmland ("Locus") containing about six acres located in the town of Richmond, shown as outlined in green on a plan entitled, "Plan of Land in Richmond Massachusetts" dated February 1989 and being Exhibit No. 1 herein. Although record title to Locus is in others, members of the Malnati family, three of whom are defendants herein, have farmed and improved it since buying the farm adjacent in 1935. In 1987, in connection with a proposed sale, the Roses, plaintiffs herein, learned of Defendants' claim to Locus, which claim constitutes a cloud to their title. The case was tried in Pittsfield, at which time the proceedings were transcribed by a court-appointed reporter. Eight witnesses testified and nine exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal. Locus was viewed on the day of the trial.

In its complaint, Plaintiff asserts that Defendants' occupation of Locus has been permissive and that accordingly Defendants' activities do not meet the elements necessary to establish a valid claim by adverse possession. Defendants alleged that since 1935, their possession of Locus has been actual, open and visible, exclusive, hostile, and continuous, and that thereby, they became true and actual title holders in 1955.

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

1. In 1935, Defendants' late grandfather, Antonio Malnati, bought and moved onto a 322 acre dairy farm in Richmond, together with his son and wife. In 1941, Antonio died, devising the farm to his son, Martin, Sr., who, on April 18, 1972, conveyed it to his own three sons, Martin, Jr., Francis, and Joseph, defendants in this case. At the time of the purchase, a portion thereof was considered to be a field of about 23 acres which was fenced as a single unit. That field contains Locus. At purchase, the seller told Antonio that no survey of the property was needed since the wire fence marked the boundary of the farm. The 23 acre field abuts property of Plaintiffs, which in the 1940's was known as Quarry Spring Farm.

2. Locus and the adjacent land of Defendants is mostly open, cultivated property, except for about a 1/4 acre farm dump in which Defendants have, from time to time, placed stumps and stones from the farm in order to fill in a steep gully.

3. From 1935 to the present, Malnati and his successors exclusively farmed the entire field. They, and their hired hands, plowed and hayed it, rotated various crops on it, grazed it fertilized it, installed a drainage system, and on occasion backfilled the gully. These activities were done continuously from 1935 to at least 1987 and in the belief that they owned Locus. While many farming activities were by their nature seasonal, and improvements sporadic, the Malnati family constantly maintained Locus for farm purposes and kept it in some form of cultivation. The land in its current state is a witness to the Malnatis' care therefor, and evidence of such care is uncontroverted. From 1935 to date, it has been obvious to even a casual observer that Locus is under cultivation.

4. Plaintiffs' property, the Quarry Spring Farm, was owned prior to 1946 by an Edith Glazier, and sold in 1946 to one Mary Ris, who in 1963 sold it to the Roses. While Ris had record title in Locus, she was unaware that her title included Locus, believing rather that Defendants owned Locus. Neither Ris nor Defendants ever discussed title to Locus.

5. In 1963, Henry and Eva Rose bought a parcel roughly 90 acres in size including the record title to Locus. In 1965, the Roses conveyed title thereto to Hero International Corp., a closely held partnership of which the Roses were general partners. In 1986, Hero conveyed the Quarry Spring Farm to Rose Land, another family partnership, and Plaintiff in this case.

6. Record title to Locus is in Rose. Defendants do not contest that. Defendants, as stated, claim to have acquired title to Locus in 1955. There is no evidence to refute Defendants' allegation of the various activities on Locus. Plaintiff claims merely that from 1946 to the present; there has been implied permission for Defendants to use Locus, and that Defendants' uses thereof have not been of substantial quality to amount to an adverse taking. Neither Plaintiff's claims of permissive, nor non­continuous use is supported by credible evidence.


I find that Defendants have acquired title in Locus by adverse possession inasmuch as the evidence demonstrates: 1) that their possession was actual, 2) that it was visible and notorious, 3) that is was exclusive, 4) that it was hostile by its character, and 5) that it was continuous for at least a 20-year period. Holmes v. Johnson, 324 Mass. 450 (1949); Mendoca v. Cities Service Oil Co. of PA 354 Mass. 323 (1968); Inhabitants of Nantucket v. Mitchell, 271 Mass. 62 (1930); La Chance v. Rubasche, 301 Mass. 488 (1938); Ryan v. Stavros, 348 Mass. 251 (1964).

In order to establish the requisite 20-year period of adverse use, a claimant may add to his years the years of use of the same property by a previous possessor so long as there is privity between the parties. Matthys v. First Swedish Baptist Church of Boston, 223 Mass. 544 (1916); Bucella v. Agrippino, 257 Mass. 483 (1926). Adverse possession may also be established by seasonal uses, or even by uses at different times in a year, so long as the property is used as a true owner would use it. Lebel v. Nelson, 29 Mass. App. Ct. 300 (1990), review denied, 408 Mass. 1105 (1990); Kershaw v. Zecchini, 342 Mass. 318 (1981).

The party claiming adverse possession has the burden of proof as to all the five elements. Stavros, supra. If any of the elements are in doubt, then the claimant cannot prevail. Mendoca, supra; Gadreault v. Hillman, 317 Mass. 656 (1945). A principal purpose of these strict requirements of adverse possession is to place the defending owner on notice such that it can have the opportunity to take any necessary steps to vindicate its rights by legal action. Ottavia v. Savarese, 338 Mass. 330 (1959).

Defendants have farmed Locus since 1935 by growing crops, grazing, etc. See pp. 2-3, supra. Plaintiff does not refute the facts of Defendants' allegations on this matter. The rule is that uses which qualify a use as "actual" vary with the character of the land. La Chance, supra.

In this case, Locus has been farmed and fenced since 1935. Defendants have been systematic in their use of the land and have improved it over the past 56 years. All of Defendants' uses of the land have been obvious farming activities. Driscoll v. Commissioners of Essex County, 268 Mass. 163 (1929); Lyon v. Parkinson, 330 Mass. 374 (1953); Kershaw v. Zecchini, supra.

In order to satisfy the "visible and notorious" element of the test, it is not essential that the opposing party personally have seen the use; rather, the claimant's use must have "put the world on notice." Dow v. Dow, 243 Mass. 587 (1923); La Chance v. Rubasche, supra; Foot v. Bauman, 333 Mass. 214 (1955). Notice is given to the world when those who would normally be expected to inform the owner of the adverse use are able to see the use, and when the adverse possessor makes no attempt to hide such use. Foot, supra. In this case, it is undisputed that surrounding land owners, including Plaintiff and town officials were well aware of Defendants' use of the land.

A claimant must prove that its possession was exclusive, and that the record owner exercised none of its possessory rights over the parcel in question. Ansin v. Taylor, 252 Mass. 159 (1928). There is no evidence that either Plaintiff or its predecessors in title used Locus at any time prior to Plaintiff's surveys of their property which commenced in 1988.

There is no evidence that Plaintiff or any of their predecessors in title demonstrated any assertion whatsoever of their possessory interest in Locus; nor is there any evidence refuting Defendants' claims of exclusiveness prior to 1955.

Plaintiff's only serious claim in this case is that Defendants' possession of the property was not hostile; they offer two grounds: 1) that Plaintiff had granted Defendants implied permission to use Locus for farming, and 2) that the character of the small town was such that even the exclusive use of Defendants was not of a character sufficient to have been hostile.

Generally, in order to prove hostility, a possessor must show that its possession was under a claim of right, or with theintention to hold the land at the exclusion of everyone else. Leavitt v. Elkin, 314 Mass. 396 (1943); Holmes v. Johnson, 324 Mass. 450 (1949). It is not necessary for claimant to show that he honestly believed that he had a right to the property. Warren v. Bowdran, 156 Mass. 280 (1892).

An element of this rule which often confuses contestants in adverse possession cases, as here, is the importance of intent of either party. The courts of this state have stated on numerous occasions that intent is unimportant enough that title may be acquired even by mistake as to location or boundaries. Jordan v. Riley, 178 Mass. 524 (1901); Ottavia v. Savarese, supra. Adverse possession can occur even where the claiming party did not intend to deprive the owner of the property. Ottavia v. Savarese, supra. The only way to defeat the element of exclusiveness or hostility is proof that such use was permissive. Batchelder v. Wakefield, 62 Mass. (8 Cush.) 243 (1851). The evidence in this case does not support a claim of permissiveness.

The evidence establishes that Defendants' use of Locus was continuous.

In consideration of the foregoing, I find that Defendants adequately have met all the elements of adverse possession. Title in Locus is determined to be in Defendants.

While the mowed and fenced area, as outlined on Exhibit No. 1 are clear to the viewer there does not appear to be an accurate plan of Locus. Accordingly, Defendants are to file or, if not available, to prepare and file an engineered plan sufficient to identify Locus, such plan to be subject to Plaintiff's reasonable approval, said plan to be filed on or before six months after the final judgment date of this matter.

Judgment accordingly,