CONF 41022

September 21, 1992

Plymouth, ss.



On March 3, 1982, Plaintiff, Vistic Associates, Inc. filed a petition pursuant to the provisions of G.L. c.185 to confirm title in a certain parcel of land located in Plymouth, Massachusetts, which throughout the course of these proceedings was referred to as the "Brown Parcel." Defendants Adrienne Carreau, David Carreau, Edward E. Carreau, Susan Carreau, Joanne Malone, Carol Black, and Diane Snell filed answers asserting that they were the true owners of that property by virtue of a deed or, alternatively, by virtue of adverse, possession.

The petition of Vistic Associates, Inc. was dismissed by Order of this Court on September 15, 1988 for the reasons stated therein. Defendant, Adrienne Carreau, has filed a motion for summary judgment on her counterclaim for adverse possession. The sole issue of law before the Court is whether Adrienne Carreau is, by virtue of adverse possession, the lawful owner of the Brown Parcel, consisting of approximately 74.08 acres of land, as shown on a Plan of Land in Plymouth, MA, Prepared for Carreau Family Land Trust, December 31, 1991, Scale 1" = 150', Thompson Surveying & Engineering, Inc., Marion, MA.

In deciding this motion, I have considered the testimony of Arthur Thompson, a registered professional land surveyor, given at previous evidentiary hearings held on July 31, 1986 and August 1, 1986. I have also reviewed the 66 exhibits offered into evidence during the course of 14 days of evidentiary hearings held in this case between May 12, 1986 and January 16, 1987. Of these 66 exhibits, all of which are incorporated herein for any possible appeal, I have given particular weight to Exhibit 13 (Vistic's Land Court Confirmation Plan), Exhibit 16 (Barnabus Hedge's Plan Copied in 1882), Exhibit 49 (Perimeter Plan dated May 15, 1980), and Exhibit 34 (Deed from Martha Seaver Brown to Euclid and Adrienne Carreau dated December 29, 1961). With respect to discrepancies appearing on said plans as to the exact location of the boundaries of the Brown Parcel, I note that by agreement of the parties all such uncertainties have been resolved and I find that the boundaries of said parcel are located as shown on the plan of land drawn by Arthur Thompson dated December 31, 1991 which was attached as Exhibit A to the Defendant's brief in support of her motion for summary judgment. Finally, I have considered the affidavits of Adrienne Carreau, David Carreau, and Arthur Thompson submitted in support of the Defendant's motion.

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

1. Beginning in 1951 Defendant Adrienne Carreau, her husband, Euclid, and their children first used and occupied land in Plymouth now known as the Ellis Haven campgrounds. Ellis Haven contains the entire Brown Parcel, plus several contiguous parcels of land obtained by the Carreaus from other grantors. Throughout the 1950's, the Carreaus heated their home at Ellis Haven with firewood, much of which was cut from the Brown Parcel. Defendant Adrienne Carreau has resided at Ellis Haven continuously from 1951 until the present.

2. Beginning in the mid-1950's, the entire Carreau family worked for years to develop the Ellis Haven campgrounds into a commercial camping facility. Euclid Carreau and his sons, Edward and David, acting for themselves and in behalf of Defendant Adrienne Carreau, cleared the land, trimmed and cut trees for firewood and constructed roads throughout Ellis Haven, including the Brown Parcel. Defendant Adrienne carreau and Euclid Carreau also allowed others to do logging on a commercial basis on the Brown Parcel, and maintained the dirt roads so that vehicles could have access throughout Ellis Haven, including the Brown Parcel, for such purposes.

3. In the mid-1950's, Euclid Carreau, using a family-owned bulldozer, constructed roads on the Brown Parcel near Grassy West Pond and Spring Pond. At the same time, the Carreaus constructed a bathing beach at Spring Pond and stocked the pond with trout for fishing. During the late 1950's the Carreaus cleared and improved several existing cartpaths across the Brown Parcel.

4. The Carreaus also used a cabin located between Spring Pond and Grassy West Pond as a hunting camp throughout the 1950's.

5. Since the 1950's Defendant Adrienne Carreau and her family have driven cars and trucks on the various cartpaths throughout the Brown Parcel.

6. Defendant Adrienne Carreau has been since the early 1950's continuously, currently and still is operating the Ellis Haven campgrounds as a commercial campground. It has been and continues to be her sole occupation. Defendant Adrienne Carreau has since the inception of Ellis Haven, given her campers free access to the entire Brown Parcel which they have used for hiking, swimming, picnics, blueberrying, birdwatching, fishing and general recreational use. The Carreau family has made the same use of the Brown Parcel as the campers.

7. Beginning in the 1950's, Defendant Adrienne Carreau posted No Trespassing signs throughout Ellis Haven, including the Brown Parcel, and since that time she has evicted those who have entered Ellis Haven, including the Brown Parcel, without her permission.

8. In the late 1950's, Defendant Adrienne Carreau and her husband, Euclid, learned that the Town of Plymouth assessor's records listed Harold Day Brown as the owner of the Brown Parcel. In January of 1961, Mr. and Mrs. Carreau visited Mr. Brown at his home in Vero Beach, Florida. At that time, Mr. Brown orally agreed to sell whatever his interests were in the Brown Parcel to Mr. and Mrs. Carreau for $500.00. However, Mr. Brown died before he could deliver the deed to the Carreaus. Mr. Brown's widow, Martha Seaver Brown, thereafter deeded the Brown Parcel to the Carreaus for $500.00 by a deed dated December 29, 1961, which was recorded on February 7, 1962 at the Plymouth Registry of Deeds at Book 2914, Page 417. Although I make no ruling on the effectiveness of that deed to convey title to the Brown Parcel, I do find and rule that Adrienne Carreau may rely upon that deed, and its description of the property, under the doctrine of color of title, in support of her claim of adverse possession. See Dow v. Dow, 243 Mass. 587 , 137 N.E. 746 (1923).

9. Euclid Carreau died on January 19, 1970. From 1962 until Mr. Carreau's death, he and Defendant Adrienne Carreau paid all the real estate taxes on the Brown Parcel. Since her husband's death until the present, Defendant Adrienne Carreau has paid all real estate taxes thereon.

10. It is clear from the evidence and I so find that Defendant Adrienne Carreau has exclusively possessed the Brown Parcel since 1951 openly, adversely under a claim of right until the present to the exclusion of all others. No evidence has been presented which suggests that anyone else has ever occupied or used the Brown Parcel at least since 1951.

11. Based on the foregoing, I find that there are no genuine issues of material fact, and that the Defendant Adrienne Carreau has used the Brown Parcel in a manner which was actual, open, notorious, exclusive, and adverse to all others for a period in excess of twenty years. Accordingly, Adrienne Carreau is the lawful owner of the so-called Brown Parcel, as said parcel is shown on a Plan of Land in Plymouth, MA, prepared for Carreau Family Land Trust, December 31, 1991, Scale 1" = 150', Thompson Surveying & Engineering, Inc., Marion, MA, which plan is incorporated herein and is to be recorded herewith.

Therefore, Defendant Adrienne Carreau's motion for summary judgment on her counterclaim for adverse possession is hereby allowed.

Judgment accordingly,