MARY P. GARDNER, RICHARD GARDNER and SHIRLEY M. GARDNER vs. MAURICE F. JOYCE and WALTER FOLGER, Trustees of the FOLGER TRUST, 1980.

The Plaintiffs herein ("Plaintiffs" or "Gardners") seek to register title, pursuant to the provisions of G.L. c. 185, §1, to a certain parcel of land ("Locus") situated westerly of Hummock Pond Road in Nantucket. Locus is shown on a plan entitled "Plan of Land in Nantucket, Massachusetts, prepared for Mary P. Gardner et al" ("the Plan"), dated May 27, 1986, and updated June 27, 1991. The Plan is filed with the Court as Land Court Plan No. 42023A.

The Complaint was filed October 3, 1986, and was referred to Land Court Examiner, Margaret G. Wittenborg, Esq., December 29, 1986. In her report which was filed March 14, 1988, she found title to Locus "not good as alleged . . . ," finding that Plaintiffs had record title to only a portion of Locus. She also found Plaintiffs' predecessors to Locus had "a considerable involvement with land in the area of locus, over a lengthy period."

As shown on the Plan, Locus is composed of two lots identified as Lots 1 and 2. Those lots for the most part comprise parcels 18 and 19 of an 1821 division of common lands. For the remainder of this Decision Lot 1 on the Plan will be referred to as "Parcel 18," while Lot 2 will be referred to as "Parcel 19," inasmuch as that is how the lots are known to the parties herein and that is how they are referred to throughout the transcript.

Defendants' challenge is limited to that portion of Parcel 19 which lies northwesterly of the line shown on the Plan as "1874 Superior Court Partition Line," which area is referred to herein as "Lower 19." The portion adjacent to Hummock Pond Road is referred to as "Upper 19." Lower 19, the disputed area, contains approximately 32.7 acres.

This matter was tried on December 4, 1991 in Nantucket, at which time Locus was viewed. Further trial days were February 12 and 13, 1992, in Boston. Sixteen witnesses testified on behalf of Plaintiffs and one on behalf of Defendants. Sixty-five exhibits, including the Plan and the Land Court Examiner's Report and Abstract, were entered into evidence, and four chalks were submitted to assist the Court, all of which are incorporated herein for any possible appeal. Both Plaintiffs and Defendants have filed briefs.

Neither Plaintiffs nor Defendants presented all of their witnesses, Plaintiffs having one remaining witness to testify as to Plaintiffs' activity on Locus, presumably including Lower 19. The testimony of Defendants' witness, Mr. Joyce, demonstrated that Defendants have acquired a record interest by descent, to the share of at least one of the Folgers, acquired in "planting shares" in Parcel 19 at the time of the 1821 partition. Such interest was limited to Lower 19 by the further petition in 1874. Mr. Joyce's testimony would allegedly establish similar interests in others together with an ownership interest in the Gardners thereby, according to Defendants' theory, establishing a co-tenancy between Plaintiffs and Defendants.

While I find such joint tenancy questionable, for the purposes of this decision I will assume that as of the 1821 set-off both Plaintiffs' and Defendants' predecessors held "shares" in Lower 19 and that as of that date they may well have been tenants in common.

In consideration of all of the foregoing, I make the following findings of fact:

1. Plaintiffs' (Mary P. and Richard Gardner are first cousins) family has record ownership of land in the vicinity of and abutting Locus which began at least as early as 1835.

2. Since at least the 1880's, Plaintiffs' predecessors in title, Wallace and Charles Gardner, have occupied and farmed the land across Hummock Pond Road from Locus.

3. Between 1913 and 1915, Marion Gardner, wife of Wallace, obtained partial record interests in Upper 18 and 19.

4. It is clear from the detailed Examiner's Report that Plaintiffs are owners of record of at least a portion of Locus and successors to any interests their predecessors have acquired therein. Moreover, a review of certain deeds and documents in the back title demonstrates that the 1964 deed from Edward Gardner to Mary R. Gardner, a plaintiff herein, recorded in Book 126, Page 479, together with the 1962 deed from John J. Gardner to Katharine Gardner (Katharine Gardner later conveyed to Plaintiff, Richard Gardner), recorded in Book 123, Page 364, are deeds which purport to convey the entire estate in Locus. While it might be argued that the language in the 1964 deed, "All right, title and interest . . . that came to us through the will of our mother, Marion O. Gardner . . ." is a limitation, Marion Gardner's probate indicates she owned, or at least claimed, all of shares 18 and 19 and accordingly that is the assumption under which the grantee took. I note further that the 1962 deed conveys "all right, title and interest," indicating further that the Gardner family felt Marion owned all of 18 and 19. The actions of Mary P. Gardner and Richard Gardner thereafter, as described below, support the presumption that they held and continue to hold the estate in its entirety, in conformity with the deeds and under a claim of right to the fee in the whole. Joyce v. Dyer, 189 Mass. 64 , 68 (1905), such holding being adverse to all persons including co-tenants of record.

5. Parcel 19 was fenced and used, at least in part, for raising livestock as early as 1909 and possibly before. In any event, by 1925, Parcel 19 was completely fenced with either "ribbon" or barbed wire fencing. The parcel was used for haying and grazing and at various times a portion of Lower 19 was used to grow silage corn. In addition, as stated below, a portion of Locus was fenced and used for truck gardening. The land was so used as a portion of the Gardners' commercial dairy farm, which was conducted on Locus and adjoining land from some time prior to 1926 to 1950. The dairy herd consisted of between forty and fifty cows. After 1950, a few cows were kept on the land for family use. The fencing around Parcel 19 remained functional until the mid-1960's. Portions of the fence are still visible.

6. As mentioned above from 1909 to about 1955, in addition to the dairy cows, various types of livestock were raised on 19. Turkeys were raised from about 1935 to at least 1956, chickens from at least the late 1920's to at least 1946 and pigs from the 1930's to about 1950 together with geese and at times a horse. The turkeys and chickens were kept on adjacent portions of Upper and Lower 19, while the pigs appeared to have ranged throughout Locus, presumably not while Locus was in cultivation. During that time there were various small farm buildings, sheds or animal shelters on both Upper and Lower 19.

7. Mary P. Gardner lived "off island" from 1944 to 1960, although she made frequent, sometimes weekly visits. In 1960, her father became ill and she returned to Nantucket. Since 1960, both Plaintiffs have personally posted the perimeter of Locus with standard sized "No Trespassing" signs. Those signs identify the Plaintiffs as owners and while originally placed within "sighting distance" of each other, they have more recently been spaced closer together. Ms. Gardner has paid real estate taxes on Locus since 1960.

8. About 1963, Plaintiffs placed a small building on Lower 19, which has been used as a camp or summer cottage.

9. From at least 1909 until the 1960's, flowers and vegetables were grown on the land on both sides of Hummock Pond Road. The farm produce was marketed in Nantucket by horse and wagon and later by truck. A farm stand was mainained on Upper 18 or 19 in the 1940's-50's. While most of the gardening was done on Upper 18 and 19, along the road, from at least 1938 until the 1960's, Lower 18 and 19 were used in part, and in addition to the uses in Finding Number 5 above, to grow corn and lima beans. From 1981 until 1986, Mary P. Gardner raised and planted several thousand black locust seedlings under a c. 61A forestry program, on Lower 18 and 19. The seedlings in general became deer fodder, a fate similar to that which befell 22 of 25 cultivated blueberry bushes which Ms. Gardner's father planted on Upper and Lower 18 and 19 in 1950 -- three of which survive!

10. From at least 1936 to about 1948, Lower 19 was used for various recreational purposes. A picnic ground with fireplace and benches was built and, for a while, a shooting range was maintained. The area is still used for hunting. Since at least 1970, the road, shown on the Plan as running along the northeasterly boundary, has been barricaded by a chain. The road is presently shared by the Gardners and Mass. Audubon, an adjacent landowner.

11. It is clear from the testimony that from a least 1926 to date, Locus has been widely considered to be a portion of the Gardner farm. There is no evidence of anyone other than the Gardners or their predecessors in title ever having occupied, used, or making any claims for rents or profits or anything else, from Locus. The only definitive indication of anyone other than the Gardners or their predecessors having any interest in Locus is the 1821 set-off and perhaps arguably the 1874 partition.

12. Since at least 1926, Locus has been possessed by either Plaintiffs or their predecessors in title to the exclusion of all others including any co-tenants in common.

13. As stated above, Defendants have demonstrated that they have acquired a record interest by descent of at least one of the Folgers, who was granted a "planting share" in the 1821 set-off and there may well be other such interests which Defendants have acquired.

14. Defendants offered no evidence to rebut Plaintiffs evidence of long possession, relying rather on their status as non-possessory co-tenants against whom there has been no affirmative ouster.

Assuming ad arguendo that Defendants are co-tenants, which fact I do not herein find, it has been held that sole possession by one tenant in common is not in itself adverse to the interest of a non-possessory co-tenant inasmuch as it could be consistent with the rights of the co-tenant. Rickard v. Rickard, 13 Pick. 251 , 253 (1832) as cited in Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984). That same case (Rickard) contained Chief Justice Shaw's further statement that it is equally "well settled, that a long exclusive uninterrupted possession by one, without any possession or claim for profits by the other is evidence from which a jury may and ought to infer an actual ouster." In the numerous cased cited in Rickard and Allen, periods of exclusive possession, which worked an ouster, varied from thirty to forty-seven years. The Gardners have shown possession of at least part of Locus since 1908 and exlusive possession of all of Locus, including Lower 19, since 1926. Defendants have shown no evidence of possession whatsoever. While the lapse of more than sixty-five years raises obvious problems in proving activities and the extent thereof prior to 1926, the Supreme Judicial Court has held that inasmuch as men do not ordinarily sleep on their rights for so long a period, a strong presumption arises that actual proof of original ouster has been lost by lapse of time. Lefavour v. Homan, 3 Allen 354 , 355-356 (1862).

Moreover, as stated in Finding Number 4, supra, it is clear from the deeds therein that the Gardners were claiming the entire Locus adverse to Defendants. Defendants are presumed to have had notice that Plaintiffs' possession was adverse by the recording of the deed. Joyce v. Dyer, supra 69; Ball v. Allen, 216 Mass. 469 , 472 (1914); Phipps v. Crowell, 224 Mass. 342 , 343 (1916).

Clearly the Gardners' activities on Locus, for a period of over sixty-five years were such as to put any owner, including a co-tenant, on notice of a hostile activity of possession so that such owner had an opportunity to take steps to vindicate any rights by legal action. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985).

In consideration of the foregoing, I find and rule that if in fact Defendants were co-tenants, the possession of and activities on Locus, including Lower 19, by the Gardners constituted an ouster of such co-tenants; if Defendants were not co-tenants, and as to all other parties, such possession and activities has more than met the standard of Ryan v. Stavros, 348 Mass. 251 (1964), Ottavia v. Savarese, 338 Mass. 330 (1959), and Kershaw v. Zecchini, 342 Mass. 318 (1961), and accordingly has established the Gardners title in any non-record portion of Locus by adverse possession.

Without going into the complexities of the early forms of ownership of the common lands of Nantucket, it does appear that the nature of a "planting share" which Defendants were allocated in the 1821 set-off, and in fact the sheep common which preceded such shares contemplated uses and possession by "co-shareholders", whereby sole possession by one could well be adverse to the interests of others, assuming of course a lack of permission. There is language in Mitchell et al v. Starbuck et al, 10 Mass. 5 , 17 (1813), which describes the use of each parcel as being "assigned (by the proprietors) yearly to respective freeholders, and in the same parcel one frequently has the right of tillage, and another the agistment or pasturage," the latter two uses being inconsistent with the former. While Mitchell determined that the sheep commons were individual interests subject to partition, it is somewhat questionable whether or not every shareholder was ". . . entitled to an interest in every inch of the property." Park, Real Estate Law, §125, and perhaps more questionable as to a "planting share."

In any event, I find that Defendants have no interest in Locus even accepting as true all of their allegations. Plaintiffs have filed a Motion to Dismiss as to Defendants, which Motion I allow.

I further find that Plaintiffs have a good title as alleged and proper for registration, subject to such matters as may appear in the abstract and are not here in issue.

Judgment accordingly.