REG 40747

October 26, 1992

Hampden, ss.



The record owners of land situated on the southerly side of Pendleton Avenue, in the City of Chicopee, the County of Hampden, object to the complaint filed by the plaintiffs, Joseph T. Tumidajewicz and his mother Catherine T. Savey, to register title to the premises shown on a plan entitled "Plan of land in Chicopee, Massachusetts dated February 16, 1981 by Heritage Surveyors" filed in the Land Court as Land Court subdivision Plan No. 40747A (Exhibit No. 1). This proceeding, commenced in March of 1981 has been slow to move forward, in part because the examiner required more than eight years to produce the abstract of title, and thereafter the matter has been controverted. A portion of the land was acquired by the defendant Deauseault from Leo J. Kleciak, Sr. and Edward Kleciak to whom it was conveyed by the defendant Roman Catholic Bishop of Springfield ("RCB") who claims title to the remainder of the registration locus. The plaintiffs originally rested their case in large part on the doctrine of adverse possession, but during the course of these proceedings they received a deed from one John S. Clark, dated August 11, 1988 and recorded with Hampden County Deeds Book 6930, Page 372, to which Registry of Deeds all recording references herein refer (Plan Exhibit 4), which they claim conveyed record title to them. I disagree.

The trial was held at the Land Court in Boston on June 29, 1992 and at the Hampden county Court House in Springfield on June 30, 1992 at both of which hearings a stenographer was appointed to record and transcribe the testimony. All exhibits, of which there were 29 including some with multiple parts are incorporated herein for the purpose of any appeal. Witnesses who testified at the trial included Timothy J. Howes, the Land Court examiner who prepared Land Court abstract and title (Exhibit No. 2) and reported on the title to the court, Edward J. Chapdelaine, the son of the registered land surveyor who prepared several plans of the locus and who is himself a land surveyor who is working toward Registration, Henry Thayer, a well known Boston conveyancer who was engaged by the defendant "RCB", Sophie Godin, the sister and aunt of the two plaintiffs, Joseph Tumidajewicz, Catherine Savey, Leo Kleciak, predecessor in title of Deauseault and his son Edward Kleciak, also a predecessor in title.

In registration cases, plaintiffs must prove by a preponderance of the evidence that they have acquired title to the land in which they seek to register and confirm their title, pursuant to the problems of the General Laws, Chapter 185, Section lA. The adequacy of the title of the defendants is immaterial other than to establish their standing to challenge the plaintiffs complaint since even without opposition the Court is slow to register title to property, which is in effect guaranteed by the Commonwealth of Massachusetts.

The basic title question is whether a deed to Eliza A. Aldworth, Susie B. Pendleton and Mary S. Goodenough recorded in Book 488, Page 112 conveys the locus or whether it remained in Mary S. Goodenough to pass through her estate and those claiming under her. If the former is the correct interpretation, the defendants prevail as to record title. If the latter scenario is correct, the plaintiffs acquired title by a deed from John S. Clark who claims through Mildred M. Clark, a descendant of Mary S.Goodenough. The deed is dated August 11, 1988, is recorded in Book 6930, Page 372 and gives a consideration of $10,000. The deed was obtained during the pendency of these proceedings, the plaintiffs originally and still resting their claims also on adverse possession.

On all the evidence I find and rule

1) The description in the deed to Aldworth et al is difficult to place; however, following the precept that monuments control distances in interpreting descriptions and land of an adjoining owner is a monument, it seems clear to me that the description in said deed to Aldworth conveys the locus which then passes as outlined by the expert witness, Mr. Thayer to the "RCB" even though the distances as set forth in the deed do not completely match the actual configuration of the disputed area on the ground. The answer to this question depends upon the lengthening of certain lines in the description and shortening others. It also requires the assumption of certain procedures by the draftsman. It is also reinforced by a deed of an adjoining piece given by Mary Goodenough in which she describes the adjoining land as of "Aldworth (sic)" rather than of the grantor.

2) The local parish cemetery of which this acquisition forms a part, abuts the locus to the south. The question is whether the locus passed via the conveyance to Aldworth et al and thus is the RCB's. There apparently had been no controversy about ownership of locus until 1980 when the plaintiffs became aware of a conveyance by the corporation sole to Leo Kleciak and his son. Earlier in 1945 the pastor of the local church had conveyed a plot to Mr. Kleciak. The parish cemetery adjoins locus, and the pastor used a form normally covering a cemetery lot in memorializing this transaction to which is now attached a legal description describing locus. The plaintiffs question the authenticity of this instrument since the reference on the second page where the description is set forth includes a note that states, 16 feet in width have been appropriated by City of Chicopee for proposed road. The road itself was not laid out until 1962 and could hardly have been mentioned in a 1945 instrument. The RCB, however, apparently accepted the grant which is Exhibit No. 26 as authentic since the land requested by Mr. Kleciak ultimately was conveyed to him and his son Edward by the corporation sole, being an 18,750 square foot parcel comprising part of locus by deed dated May 8, 1980 and recorded in Book 4939, Page 296. (Exhibit 27)

The validity of the 1945 transaction accordingly is immaterial, activities pursuant thereto, however, did interrupt the plaintiffs' adverse possession.

3) The 1980 conveyance by the diocese was without consideration. The Kleciaks subsequently conveyed the parcel to defendant Sheree L. Deauseault by deed dated December 22, 1986 and recorded in Book 6341, Page 371, and a house has been built upon it.

4) The Kleciaks owned a lot not involved in this litigation to the east of the Deauseault piece which has been conveyed to Bernard R. Fontaine et ux. A portion of the contested land within locus is shown on a plan entitled "Plan of land in Chicopee, Mass. owned by the Roman Catholic Bishop of Springfield" dated February 7, 1980 by Durkee, White, Towne and Chapdelaine, recorded in Plan Book 190, Page 94, (Exhibit No. 18b) which shows the area now in dispute as including 18,750 sq. ft. to be conveyed to Leo J. and Edward Kleciak. To the west is the remainder of the parcel which the plaintiffs seek to register and labeled on the plan "The Roman catholic Bishop of Springfield".

5) The mother of Catherine Savey acquired title to property on the northerly side of the highway leading from Willimansett to Ludlow from John J. O'Connell, dated May 20, 1931 and duly recorded in Book 1482, Page 560. (Exhibit No. 2, p. 63; Exhibit No. 24) The deed refers to the land being on the notherly side of the highway leading from Willimansett to Ludlow and containing 55 acres. Thehighway now is known as Middleton Avenue has been widened and is in the same approximate location as the street referred to in the deed. There is a plan prepared for Mrs. Savey's father entitled "Plan of land in Willimansett, MA". Owned by Joseph Tumidajewicz and dated April 1934 by Cobb Beesley­Miles, ( Exhibit No. 25) which shows a large parcel of land situated on the northeasterly side of Pendleton Avenue and Ludlow Road and which does not indicate in any way holdings to the southwesterly side of the highway by Joseph Tumidajewicz. This plan does show a fork of Pendleton Avenue branching off to the south but this cannot be the way referred to in the deed in question.

6) Acts which the plaintiffs and their witnesses have recited as establishing adverse possession include the grazing of cows on the locus for approximately five or six years in the 1930's although the locus has been described as overrun by growth and without water. Other acts of adverse possession include the construction of a ramp on the south side of the road by which equipment for haying in other locations could be loaded on the family's truck. It seems a strange method of operation since the main farm property was on the northerly side of the road and presumably the equipment would be kept there, however, the family witnesses all testified to this use and I have no reason to question their veracity.

7) The predecessors to the plaintiffs also cut timber on the locus. The wood that was cut from the locus provided heat for the farmhouse on the opposite side of the road. This practice lasted only a few years since central heating was installed ultimately in the farmhouse. There are two other activities testified to by witnesses for the plaintiffs. One consists of the installation of fence posts, from the locus across the end of a right of way on the locus used by neighbors to the south to reach the public way, the other was the sale to contractors working on the construction of a bridge of fill from the locus. The latter activity concerned only a period in 1957 to 1958.

8) The locus has no water and had no fencing in the years that the cows were said to be tethered there, whereas there was a fence on the opposite side of the street where the main property owned by the plaintiffs and their predecessors was located.

9) Catherine Savey's sister testified to accompanying her mother whose English was limited to the home of the grantor named in the deed to her mother, one John O'Connor, and the grantor is alleged to have said that the land was situated on both sides of the road, but this totally contradicts the language of the deed and without further explanation it cannot be given probative weight.

10) Leo Kleciak grew up in a house on the north side of Pendleton Avenue; he subsequently purchased a parcel of land on the southerly side, now shown as Fontaine on the file plan. In connection with his ownership of this property he cleared the oak trees situated on the easterly part of the locus in the area marked. "Claimed to be owned by Leo J. Kleciak, Sr. and Edward Kleciak per deed Book 4939, Page 296, Plan Book 190, Page 94. The Kleciaks planted many seedlings obtained from the University of Massachusetts as well as a garden on the disputed area. He also constructed a fence in the area where the plan indicates an iron bar found. Other indications of the fence have disappeared from the construction activities carried on when the Sheree Deauseault home was built. Ms. Deauseault, also a defendant, claims under Kleciak and the RCB.

The plaintiffs originally based their case on title acquired by adverse possession. Subsequently during the course of the proceedings they acquired a deed from one to whom the record title arguably descended, if in fact the chain of title through Eliza Aldworth to the "RCB" did not convey locus to the diocese. I find and rule that the deed did indeed convey title to the "RCB" since the infirmities in the deed as to the length of lines are not decisive. The law in Massachusetts is well settled that monuments control distances and the applicability of this principle to the deed in question is controlling.

The question then arises as to whether the plaintiffs and their predecessors acquired title by adverse possession, that is, whether the activities of the plaintiffs and their predecessors in locus were sufficient to establish title in them by adverse possession. The activities which the plaintiffs' witnesses testified were sporadic and not continuous. I have difficulty in believing that cows would be tethered on the south side of the road in view of the nature of the property and the locus would be used for a ramp for loading farm vehicles, but even if true, none of these activities carried on by the plaintiffs and their predecessors lasted for any significant period of time. Other acts of dominion testified to in behalf of the plaintiffs included some cutting of wood, erection of cut off trees in parts to block the road through the locus, and the removal of soil, all were carried on during short periods of time and not continuously. The records of the City of Chicopee as to whom the authorities beleived owned the land are contradictory. In 1962 the relocation of Pendleton Road showed the "RCB" as the owner of locus whereas the following year in connection with the installation of sewers the records indicated the predecessors in title of plaintiffs owned on both sides of the street. There were numerous tax bills introduced which were all paid by or on behalf of the plaintiffs but which are impossible to locate without the Assessors' Maps, if indeed there were any, for the earliest years. As time progressed land to which the plaintiffs admittedly had record title was taken by the City for a school and figures as to the area of the land assessed to the plaintiffs on which taxes were billed changed. There is nothing in the tax bills to suggest that any of the parcels covered land on the southerly side of the street.

The rule in Massachusetts as to acquisition of title by adverse possession is clear. The occupation by the adverse possessor must be open, uninterrupted, exclusive, notorious and continuous and under claim of right for at least twenty years. (See Ryan v. Stavros, 348 Mass. 251 [1964]). Proving title by adverse possession to wild land which is not fenced is difficult. Cowden v. Cutting, 339 Mass. 164 -168 (1959). This locus qualifies as wild land. The rule prohibiting adverse possession of wild land is not absolute however, since upon a strong showing of adverse possession of so called wild land title may be found to have been acquired by the "wrong doer" but in an area such as locus where the land was covered with brush and trees and not built upon by the adverse possessors, and the activities were diverse and sporadic and not notorious, the evidence falls short of establishing that the plaintiffs have acquired title by adverse possession. I therefore find and rule that they have not done so.

In a registration case the burden is on those seeking to bring their land within the provisions of Chap. 185 of the General laws to prove by a preponderance of the evidence that they have acquired title to the locus by grant, adverse possession or both. The plaintiffs have failed to sustain their burden and I therefore dismiss their complaint.

Judgment accordingly.