VERA R. NELSON and WALTER JOHN NELSON vs. PAUL ANUSAVICE, TRUSTEE and COMMONWEALTH OF MASSACHUSETTS. [Note 1]

This is a complaint brought by the plaintiffs, Vera R. Nelson and Walter J. Nelson, known to his friends as John ("the Nelsons") to register and confirm title pursuant to the provisions of G.L. c. 185, §1 (a) to twenty-one and two thousandths (21.0002) acres of woodland (hereinafter, "locus") located on the southeasterly side of Conant Street in the Town of Bridgewater in the County of Plymouth to which the plaintiffs claim title by adverse possession. The defendant, Paul Anusavice ("Anusavice"), is the trustee of Chesett Realty Trust, a nominee trust, a copy of which was not introduced into evidence.

The Court allowed Anusavice to answer late on the submission of an affidavit (Exhibit No. 25) given under the pains and penalties of perjury that he had filed a petition to partition in the Plymouth Probate Court against the heirs of Fannie K. Sturtevant, a sale of a portion of locus having been approved by the latter Court for $4,000 which he claimed to have paid the commissioner. In addition, the affidavit stated that he had purchased additional fractional shares from certain named individuals. In fact, he admitted at the Land Court trial that he had done none of these things. Presumably his uncle, a dentist, is the real party in interest and expended the funds, but I have no proof of that.

In addition, the defendant's answer to the plaintiffs' request for admissions (Exhibit No. 22) purportedly bears the signature of Anusavice, but he denied at the trial that he had signed it.

It is my opinion that the defendant and those whom he represents have perpetrated a fraud on the Court with which I propose to deal after the conclusion of this case. In addition, they introduced no evidence, and consequently they were unable to bear their burden of proving that they held record title, with the partition decree, to a portion of locus. As to the Sturtevant interests the same flaw is apparent, and additionally they cannot register title without the acquisition of all fractional interests.

In any registration case, whether contested or not, the plaintiffs bear the burden of establishing either that they have record title sufficient for registration or have acquired title by adverse possession. Accordingly, to prevail even if Anusavice has no title, the Nelsons must prove by a preponderance of the evidence that they and their predecessors (husband and father of the plaintiffs) whose possession can be tacked have used the locus openly, notoriously and adversely to all the world under a claim of right for at least twenty years. The Nelsons have borne their burden.

A trial was held on March 18 and 19, 1992. At the trial a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of appeal. Witnesses called by the plaintiffs include W. John Nelson, one of the plaintiffs; David Delaney, the Land Court examiner; John Delano, the registered land surveyor who prepared the filed plan for the plaintiff; Bill Wilford Proudy, a state animal inspector and field director for the Town of Bridgewater; Roy T. Fischer, a neighbor and part-time farm hand; Ralph Harlow, John's childhood friend; Stephen Fischer, Roy's brother who worked for Walter Nelson, the father; Clifford Whiting, a neighbor and long time friend of the Nelson boys who also worked on the farm; James Lewis, a local service station owner and friend of the senior Nelson; Thomas E. Nelson, the other son of Vera and Walter Nelson; and the defendant.

On all the evidence I find and rule as follows:

1. The locus in question is 20.001 acres of vacant land bounded Northwesterly by Conant Street; Northeasterly by the dairy farm, now of Thomas E. Nelson and Lynn Nelson; Southeasterly by land of William B. Bradley and Irene Bradley; Southwesterly by land of East Bay Properties, Inc.; Westerly by land of Ernest F. Taylor, Jr., et al; and Westerly and Northwesterly by land of Edward Hogan. The locus is shown on a plan entitled "Land Court Plan of Land in Bridgewater, Mass. to be claimed by Vera R. Nelson" dated October 20, 1985, Rev. April 22, 1986, by John W. Delano and Associates, Inc., filed with the complaint as Plan No. 41943-A (Exhibit No. 18).

2. The earliest deed of consequence in the chain of title dates back to April 24, 1899 when the locus was conveyed by one Marcus Pierce to Fannie K. Sturtevant of said Bridgewater by instrument dated April 24, 1899 and recorded with the Plymouth County Registry of Deeds, to which all recording references refer, Book 716, Page 391. The granted premises were shown on a plan of lots of the Pierce Estate dated April 22, 1899 and recorded in Plan Book 1, Page 206. Lots 1 to 95 after various conveyances were subdivided and shown on a second subdivision plan entitled the Highland Park Plan, recorded in Plan Book 2, Page 99. Ms. Sturtevant subsequently reconveyed title to much of the Plan in bulk or piecemeal up until 1907.

3. During the interim period between 1907 and 1989 when the deed to the defendant was recorded, there were no record transfers of title.

4. In 1942, Walter S. Nelson, deceased spouse of the plaintiff, purchased six parcels comprising the bulk of his farm by deed recorded in Book 1839, Page 135. On September 11 and 12, 1958, Walter Nelson conveyed his non-locus land in two consecutive transfers to himself and his spouse Vera R. Nelson, one of the plaintiffs, as joint tenants with a right of survivorship, by deed recorded in Book 6543, Pages 140 and 141.

5. Following his purchase of the adjoining property, Mr. Nelson began his possessory activities of the locus. It is not wild land as to which adverse possession is difficult to obtain. Rather it has been used extensively by the Nelsons since 1942. There is a cart path which meanders lengthwise through the locus beginning at Conant Street and terminating at Vera Drive; testimony shows that Mr. Nelson maintained and improved the existing way to accommodate farm vehicles by cutting trees, trimming shrubs, and clearing at least six separate areas as well as a cul-de-sac. Originally much of the wood was sold for profit, and later it was used by Mr. Nelson as an important source of fuel to heat the farmhouse. Mr. Nelson also used this path to transport wet baled hay to the town dump located directly across Conant Street from the locus which he approached through Vera Drive.

6. At some point in the early 1950's Walter Nelson constructed a barbed wire and post fence with a swinging gate along the northern boundary with Conant Street and between the locus and the family's dairy farm to the northeast. During two short stretches, he utilized electric fences abutting to the pastures to prevent cattle from wandering into the locus. Until removal of the fencing in the early 1980's in response to danger to trespassers and animals, the Nelsons and their farm workers repaired and replaced it. The Conant Street gate and remnants of the fencing still remain. Mr. Nelson also collected stray stones from the fields and placed them along the southeastern boundary nearby an existing eighteen inch wide stone wall.

7. At the Conant Street and Vera Drive entrances to the locus the Nelsons placed boulders and sand piles to block entry of hunters, college students and other youngsters. In addition, the Nelsons purchased "no hunting" signs and placed them throughout the property. While such efforts evidently were not always successful, both Walter Nelson and his children confronted a few such trespassers each year and asked them to depart.

8. In 1964 town officials approached the Nelsons and offered to sell tax title land now included in the locus (Lots 48 and 49). The lots were conveyed by the Treasurer of the Town of Bridgewater to Mr. and Mrs. Nelson by deed dated December 21, 1964 and recorded in Book 3172, Page 478. The Land Court examiner testified the taking was "probably invalid" as it was his opinion that the premises were improperly assessed. On December 21, 1964 the Nelsons purchased the property, and thereafter paid all real estate taxes. Mrs. Nelson, her mother, and children on several occasions took advantage of the vast numbers of blueberry bushes growing on these and other portions of the locus to pick the berries for pies.

9. The Nelson children and their friends used the locus for a variety of recreational activities and later aided Mr. Nelson with much of the clearing, cutting and repair. As young children they played and camped in a series of huts they built on the locus, and in the winter they cross country skied and searched for their Christmas trees on the parcel. Often, friends spent time on the locus, but they did not venture onto the locus without either the presence or permission of the Nelsons. In fact, neighborhood children observed the practice of going to the Nelson house prior to entering onto the locus. W. John Nelson and his friend bought minibikes, motorcycles and later unregistered second hand cars to drive back and forth on the cart path, but they kept the keys at the Nelson home and always drove together.

10. As the children grew older they used the cart path as a jogging path. In 1972 Walter Nelson suffered a heart attack and was forced to sell the majority of his cattle; however, testimony indicates that use of the locus did not decrease, but it may in fact have increased as a result.

11. On June 22, 1989 Mr. Anusavice filed a petition to partition the locus with the Plymouth Probate and Family Court. The court approved the sale of a five-sixths (5/6) portion of the locus to Mr. Anusavice on April 24, 1990 for the sum of $4,000.

12. On or about September 28, 1990, the Nelsons filed a motion to intervene in the petition to partition seeking to revoke the decree of partition. The Probate Court granted plaintiffs' motion to intervene, denied their request to revoke the partition decree and stayed the petition to partition pending the outcome of the Land Court proceeding.

The well settled law of adverse possession in Massachusetts requires acquisition of land in a manner which is open, notorious, continuous and adverse to the title holder for a period of twenty or more years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964), with the activities of the "wrongdoer" on some one else's land being so apparent as to put the owners "on notice of the hostile activity of the possession so that the owner may have the opportunity to take steps to indicate his rights by legal action." Where the servient estate is wild or woodland, the court further requires that potential adverse possessors either fence or cultivate the property. See Senn v. Western Massachusetts Elec., 18 Mass. App. Ct. 901 . While accepting this general proposition, "the acts done by the disseisor on land by reason of which he claims a title of this character are seldom if ever of the same description; and the decision of each case depends upon its particular facts. Stevens v. Taft, 11 Gray 33 . As such, a lack of complete fencing should not, by itself preclude an otherwise justifiable claim of adverse possession where the possessor has acted in a manner so notorious and open as to announce his intentions to the world at large. Hardy v. Nantucket Land Council, Inc., Land Court Registration Case No. 41126. In the present case, the plaintiffs partially enclosed the locus by means of barbed wire for a period of at least fifteen but less than twenty years before dismantling it in the early 1980's to avoid injuries to trespassers. At no time did the fencing completely enclose the locus.

The Nelsons' adverse actions occurred during a span of over forty years and included such diverse activities as camping, picking blueberries, construction and maintenance of a barbed wire fence, continuous posting of "No Trespassing" signs, improvement and repair of the cart path for recreation and farming duties, exclusion of trespassers by means of obstacles, gates and confrontation and cutting wood for fuel and Christmas trees. Admittedly the locus was never completely fenced, yet plaintiffs' regular work-related and recreational forays onto the locus, as well as their continuous maintenance and repair of the cart path and entrances demonstrate a pattern of use which one typically associates with ownership. Keith v. Kennard, 222 Mass. 398 , 110 N.E. 1030.

In the present case, the Nelsons have exercised dominion over the woodland property to such an extent that their undisputed ownership of the locus is recognized by both neighbors and the Town of Bridgewater. Plaintiffs were under the belief they held title, including ownership of the locus. Through their conscious efforts of blockading entrances, posting signs and confronting trespassers the plaintiffs have successfully excluded others from the locus and put any and all claimants on notice. Conversely, there is no indication the defendant or his predecessors made any such effort to question or challenge this claim or exert control over the locus at any time during the past forty years. In fact, for most of the twentieth century the record title holders have displayed no interest in the premises.

On all the evidence therefore I find and rule that the plaintiffs have borne their burden of establishing title to the premises by a preponderance of the evidence proving adverse possession subject to such matters as may appear in the record and are not in issue here.

Judgment accordingly.