JOHN HAMMOND vs. JOHN F. McMASTER, JACQUELINE McMASTER and DOROTHA WESSELLS.

This is a complaint brought by John Hammond, an eighty-eight year old resident of Jamestown, Rhode Island to register his title to two adjoining parcels of land in Pepperell in the County of Middlesex situated off Dow Street and said to have been in the Pierce family for almost two hundred years. Answers were filed on behalf of John F. McMaster and Jacqueline McMaster who claim a right of way across the premises and who also dispute the location of the boundary and the plaintiff's title to Parcel No. 1. An answer also was filed on behalf of Dorotha Wessells across whose premises the right of way to locus crosses.

A trial was held at the Land Court on September 20, 1991 at which the proceedings were to be electronically recorded. Interference with the transmission cancelled the Court hearing, but the proceedings to the time of cancellation now have been transcribed. The trial was held also on November 1, 1991 and November 4, 1991 on each of which days a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial Karyn Faith Scheier, a Land Court examiner, William Murdock, abstracter of records in the registry but not a member of the bar, the plaintiff, David Shattuck and Leon Shattuck, abutters (or former abutters) and Kevin Visnaskas, an employee of the Pepperell Assessors' Office were called by the plaintiff to testify. Mr. and Mrs. McMaster called no witnesses, and Joan LaRue, the daughter of the record owner of the abutting property over which the plaintiff claims the right of way passes was the only witness for Mrs. Wessells.

On all the evidence. I find and rule that the plaintiff is entitled to the entry of a decree of registration pursuant to the provisions of G.L. c. 185, §lA together with the benefit of the right of way preserved in a deed from Calvin Pierce to Walter Shattuck dated February 5, 1916 and recorded with Middlesex South District Deeds (to which all recording references herein refer) in Book 4195, Page 197. The decree also will be free of any rights in the "woods road" shown on the file plan, and it is to be eliminated from the decree plan.

All parties agree that the plaintiff has title sufficient for registration to Parcel No. 2 shown on the file plan entitled "Plan of Land in Pepperell, Mass. Prepared for John F. Hammond" dated September 20, 1987 and filed in the proceedings in this case (Exhibit No. 1). Parcel No. 2 contains approximately 17.703 acres. The dispute centers about the title to Parcel No. 1, shown on the Plan, this containing 15.512 acres to which parcel the right of way across land of Laurence Wessells from Dow Street runs. There is no record title in the plaintiff to Parcel No. 1, but I find and rule that the deed out from Calvin Pierce to John W. Pierce, both family members, should be reformed to include Parcel No. 1. Title to this parcel also has been established by adverse possession; the McMasters also claim title to some or all of this parcel, but I find and rule that their claim which is solely based on payment of tax bills and some wood cutting operations has not been shown by a preponderance of the evidence. So far as the right of way is concerned, there is a record right of way appurtenant to the plaintiff's land which has not been lost by adverse activity on the part of the defendant Wessells or by abandonment.

On all the evidence I find and rule as follows:

1. An ancestor of the plaintiff named Ebenezer Pierce acquired title to the two parcels in question as separate conveyances sometime shortly after the adoption of the Constitution of the United States. The abstract begins with a deed from Mary S. Burge to Calvin Pierce dated February 1, 1905 and recorded in Book 3144, Page 386. This deed gives two title references, one for seventeen acres of land described in a deed given by Daniel Dow to Ebenezer Pierce recorded in Book 178, Page 387 and the other described in a deed by Eben Blood to Ebenezer Pierce recorded in Book 139, Page 544. There also is a deed from Jonathan Blood to Ebenezer Pierce dated May 26, 1810 and recorded in Book 517, Page 189 (Exhibit No. 7) which fits the description of Parcel No. 2. The Land Court examiner did not trace the pre-1905 title that began with the deed into Calvin Pierce, who it was assumed had good record title.

2. On February 5, 1916 Calvin Pierce made two conveyances simultaneously, but while the one to John W. Pierce was recorded on June 22, 1916 the deed to Walter L. Shattuck covering the parcel subject to the right of way was kept off the record until April 23, 1918.

3. The deed from Calvin Pierce to John W. Pierce described the premises to be conveyed as the same premises conveyed by Daniel Dow to Ebenezer Pierce by deed recorded in Book 178, Page 387, i.e., Parcel No. 2. The deed also contained this language:

Also a right of way on, and over, the northerly side of a certain piece or parcel of land adjoining the above described premises conveyed by me this day by warranty deed to Walter L. Shattuck of said Pepperell, reserving a right of way as herewith described, to pass and repass at any and all times, on foot or with teams for myself, those employed by and for me, and by my heirs and assigns forever.

4. The deed from Calvin Pierce to Walter L. Shattuck conveyed a parcel of land on Dow Street and reserved "a right of way on and over the northerly side of said premises to pass and repass at any, and all times, on foot, or with teams, for myself, those employed by and for me, and my heirs and assigns forever." The abstract follows the Shattuck title into Dorotha R. Wessells, one of the defendants herein.

5. Calvin Pierce died on March 20, 1919 and made no provision in his will for any real estate situated in Pepperell. It seems clear to me that he was of the opinion that his conveyance to his brother John W. Pierce disposed of all his real estate. He must have concluded that he had effectively conveyed all his real estate in Pepperell. The reservation of the right of way which terminated in Parcel No. 1 buttresses this conclusion, for it would have been pointless not to grant a continuation of the right of way across Parcel No. 1 to Parcel No. 2 if Calvin had not intended that John own both parcels. It also would have been illogical to locate the right of way as it was if Calvin retained title to Parcel No. 1 and John held title to Parcel No. 2 which was landlocked if the conveyances are strictly construed. These reasons lead me to the conclusion that the description in the deed should be reformed as this can be done without affecting adversely the rights of any bona fide purchasers.

6. The plaintiff also has established title by adverse possession to Parcel No. 1. After he purchased the Pepperell land from his mother and aunt in 1941 he believed that he had acquired record title to both parcels and carried on his activities indiscriminately on the thirty-two acres. The activities included cutting the wood which had been felled by the 1938 hurricane which he then hauled to local sawmills and had cut into lumber. The United States Government purchased and hauled away a great many of the trees damaged by the 1938 hurricane. The government built a skidway and took the trees away on trucks. Subsequently Mr. Hammond rebuilt the skidway and later constructed a second one. In more recent years, particularly in the 1970's when there was a fuel oil shortage, trees were cut in order to obtain cords of wood for firewood which the plaintiff both trucked to his home in Rhode Island and brought to his mother in Pepperell for her use.

His grandfather had a small stable or shed in the southwesterly corner of Parcel No. 2 where he kept his horse, and it was at that point that the plaintiff and a friend blocked a wood road which over the years third parties had begun to use, particularly for horseback riding. During World War II the plaintiff volunteered for a program at Fort Devens in which land was sought for tank practice, and the tanks used the locus for maneuvers. The plaintiff thereafter repaired the right of way by filling the holes with gravel. He also tapped the maple trees on the locus, and it drew off maple syrup and carried on the sugaring operations on the locus. In 1945 his operation was just underway when his father became ill, and he had to go to Rhode Island to run the father's store. He obtained gravel over several years from the Shattucks to fill in wet spots in the way, and both Leon Shattuck and his son David confirmed that this had been done. Mr. Hammond and Mr. Wessells put up a makeshift gate to block third parties from going through the right of way, and each of them had a key to the padlock.

7. At some point Mr. Hammond became aware of wood cutting in the neighborhood on behalf of Mr. and Mrs. McMasters. It's unclear how much of this occurred on locus.

8. The plaintiff has walked the bounds of the two parcels with the Shattucks, but Mr. McMasters declined an invitation to accompany them.

9. The plans in the Assessors' office originally showed the locus as one parcel. Calvin Pierce was assessed for 38 acres, and after the conveyances to John Pierce and Walter Shattuck, John was assessed for 32 acres. At some point and for some unexplained reason the area assessed to the Pierce family was reduced to 17 acres. Perhaps the Assessors intended to assess 34 acres in all or 17 acres to the two family members who inherited it. Subsequently the plaintiff went to the locus with one of the assessors who recognized the locus to be larger than the area then assessed to the plaintiff. However, he only added about two acres to the assessed area, whereas fifteen acres would have been realistic.

Mr. and Mrs. McMasters called no witnesses to support their claim of title and right of way.

The plaintiff has the burden of establishing by a preponderance of the evidence that he has title sufficient for registration pursuant to the provisions of G.L. c. 185, §l (a) together with the appurtenant right of way across land of Wessells and free from any rights of others in the wood road approximately shown on the filed plan. He has borne this burden.

The circumstances surrounding the conveyance from Calvin Pierce to John W. Pierce, the failure of Calvin to provide for a devise of Parcel No. 1 in his will if it had not been conveyed, the conduct of his successors to Parcel No. 2 as also including ownership of Parcel No. 1 and the reputation in the neighborhood as to ownership all lead to the conclusion that Parcel No. 1 was omitted by error from the deed from Calvin Pierce to John W. Pierce dated February 5, 1916 and recorded in Book 4062, Page 205 (Exhibit No. 2, s. 5) and from successive conveyances and may be reformed as part of these registration proceedings.

Moreover, and more traditionally, the plaintiff has acquired title by adverse possession not only as against the defendants but against putative tenants in common. The facts which I have found show uninterrupted possession by the plaintiff openly, notoriously, under claim of right and adverse to all the world for well over twenty years. Lachance v. First National Bank and Trust Company of Greenfield, 301 Mass. 488 , 490 (1938) and cases cited. There clearly is appurtenant to locus the record right to pass and repass, on foot and in vehicles, over land of the defendant Wessells to and from Dow Street. In order that a right of way of record be terminated it must be cut off by an adverse use of the servient tenement for at least twenty years or abandonment by the dominant owner evidenced by a factual situation showing an intent never to use the way again. Desotell v. Szezgyiel, 338 Mass. 153 (1958); Sendler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965). There has been no such showing here.

Therefore on all the evidence I find and rule that there may be entered a decree of registration in the plaintiff's name free from any claims of the defendants including any rights in the "woods road" shown on filed plan which is eliminated and will not appear on the decree plan but subject to such matters as may appear in the abstract but are not an issue here.

Judgment accordingly.