SEAMEN'S SAVINGS BANK vs. CHARLES N. ROGERS and WILLIAM N. ROGERS.

By petition filed February 24, 1992, under G. L. c. 240, §§ 1-5, Plaintiff, Seamen's Savings Bank (Seamen's) seeks to require Defendants to try their title to a parcel of land (Locus) off Route 6 in Provincetown. Locus is a pentagonal parcel containing 28,852 s.f. according to a plan (the Atkins Plan) entitled "Plan of Land in Provincetown, Mass. As Surveyed for John Atkins" dated October 29, 1971 by Down Cape Engineering, recorded in Barnstable County Registry of Deeds at Book 294 Page 72.

In his Amended Answer filed May 6, 1992, in addition to raising various affirmative defenses, Defendant, Charles N. Rogers (Charles) counterclaimed, alleging that Defendants own a 1.04 acre parcel (the Rogers Parcel). The description of that parcel shows a significant overlap with Locus, along the southeasterly portion of Locus. A motel stands on the overlap. Charles' Counterclaim is that Plaintiff be required to try its title to Locus. Each party, therefore, wants the other ordered to try title.

There then followed the following motions, together with the action I am taking on them:

a. Charles' motion to dismiss for failure to commence within the period of the statute of limitations-denied, as Plaintiff is not claiming damages for slander of title;

b. Charles' motion under Mass. R. Civ. P. 12 (b) (6), failure to state a claim upon which relief can be granted-denied. Plaintiff need not allege the elements of slander of title to prevail in a try title action, and the Complaint on its face states a claim upon which relief can be granted;

c. Plaintiff's motion for judgement on the pleadings­denied, if for no other reason than Charles' second affirmative defense states a good defense;

d. Plaintiff's motion under Rule 12(b) (6) to dismiss Charles's Counterclaim-denied, as the descriptions of the two parcels of land contained in the Counterclaim, when compared to the plans incorporated in the Complaint, make it clear that there is an overlap, even though the plan at Book 291 Page 78 does not itself show the "Roger's Locus" described in the Counterclaim ; and

e. Plaintiff's motion for summary judgment, as to which see below.

In the interval between motions d and e, Seamen's moved to substitute as Plaintiff White Sands Beach Club, Inc., a Massachusetts corporation, being the new owner of Locus. That motion was assented to and I allowed it. Therefore, references hereinafter to "Plaintiff" shall refer to that corporation.

These motions were argued on August 25, 1992. In support, affidavits of the following have been filed: Maria Kuliopulos; Richard M. Berrio; Christopher J. Snow; Elizabeth J. Atkins; Terry W. Eldredge; Peter S. Farber; Chester Nimitz Lay; and Charles. I struck item 5 of the Affidavit of Mr. Berrio and took under advisement a motion to strike all of the Affidavit of Mr. Snow. I have since stricken so much of item 6 of the Snow Affidavit as commences with the words "Furthermore, the last purchasers", through the last sentence of that Affidavit. I denied all other motions to strike.

In order to succeed in its try title action, Plaintiff must, under G. L. c. 240 §1, have record title and be "a person in possession of such land claiming an estate of freehold therein" (there are other possibilities not relevant here). I find that Plaintiff does have record title. I am satisfied that the early record descriptions of Locus do not show a lack of title in Plaintiff for purposes of these proceedings, although describing a four sided parcel and not a pentagon, as pointed out by Defendants.

The closer question is that of possession. Plaintiff must have "substantially and practically the exclusive possession", India Wharf v. Central Wharf, 117 Mass. 504 , 505. The record descriptions show there is a long sliver of land, about 28' at its widest, contained in the record titles of both parties. A major portion of that is occupied by Plaintiff's motel. See the plan attached to Charles' Affidavit. Defendants' assertion of title to the disputed strip is the "adverse claim" necessary under G. L. c. 240 §1.

The motel has been on Locus since the early 1970's and I find that Plaintiff or its predecessors have been in possession of Locus since then. The question is whether Defendants have also been in possession such as to disqualify Plaintiff under the requirement set forth in India Wharf; or, more to the point, whether there is a material dispute as to possession, such that we must go to trial on that point.

I find there is no such dispute. Taking Charles' affidavit at full faith, he says that from 1974 to date neither he nor his children have been barred from entering the disputed strip. That does not say that he or they did enter it. He does say that from 1976 to 1988 he pruned trees, and his children played, in the disputed strip. None of that goes to possession at present or at the time this action was commenced. Moreover, such minimal contact with the disputed strip would not be enough to disqualify Plaintiff. Plaintiff has "substantially" exclusive possession, notwithstanding the activities of Charles and his children, even if they had continued to the time this action was begun.

Judgment shall enter requiring Defendants to bring an action by December 18, 1992 to try their title to Locus.

Defendants' counterclaim is dismissed.

Judgment accordingly.