REG 42662

October 7, 1992

Barnstable, ss.



The plaintiff, Adeline B. Seibel, seeks to register and confirm her title pursuant to the provisions of G.L. c. 185, § l (a) to a parcel of land in Dennis in the County of Barnstable shown on a plan entitled "Plan of Land in East Dennis, Massachusetts for Adeline B. Seibel," dated November 30, 1989, by Land Use Technology, Inc. filed with the Court as Plan No. 42662A (Exhibit No. 1) (the "Plan"). An answer was filed by an abutter Mildred A. Ericson who claimed a) title to a portion of locus by adverse possession or b) in the alternative to a prescriptive easement across that same portion. Answers also were filed on behalf of George H. Bateman and Jacqueline D. Bateman, Ellen S. Curran and Henry Homer Sears, Elizabeth Sears and Richard H. Sears, and they were disposed of by stipulations relative to the Way known as Cobbs Grove shown on the decree plan in Registration Case No. 42662. After the trial the Court ordered further notice to parties abutting on said Way, and an appearance was filed by Brian J. Donnelly and an answer by Dorothy V. Howe and Everett R. Howe, both relating to rights in the Way which crosses locus. Stipulations also resolved the objections. The decree entered in this case will be subject to the terms of the stipulations, rights in the Way registered in Case No. 23506 and to any other rights in the Way shown on the Plan.

The trial was held at the Land Court on February 25, 1992 at which the proceedings were electronically recorded. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The only witness was the defendant Mildred E. Ericson. A view was taken by the Court in the presence of counsel on May 1, 1992.

On all the evidence I find and rule as follows:

1. The plaintiff acquired her title to the locus situated off Sea Street in said East Dennis by a deed to her and her late husband Joseph O. Edwards from Henry L. Murphy dated December 8, 1939 and recorded with Barnstable Deeds, Book 560, Page 549 (Ex. 2 , s. 10).

2. The description in the chain of title has only four boundaries whereas the locus has five, is difficult to fit on the ground and of record is smaller than locus is by survey.

3. Deeds and plans of abutting properties which are a part of the abstract of title serve to circumscribe the premises and define its boundaries with the exception of the area claimed by the defendant Ericson and shown on Appendix "A" attached hereto.

4. The defendant Mildred R. Ericson, the owner of the land abutting locus to the north and east and shown as land of Salt Works Realty Trust on the Plan admits that she or it does not have record title to the disputed area but claims it by adverse possession.

5. Mrs. Ericson's family has a long history of property ownership in the Sea Street neighborhood. Her father was a school principal in Attleborough, and a friend of the superintendent of schools. The latter was the owner of Lot 19 on the Assessors' Plan (Exhibit No. 3) at that time which is the property now owned by Mrs. Ericson. Through his friendship with the superintendent Mrs. Ericson's Father purchased Lot 21 which lies to the east of Lot 19 and fronts on Sea Street. Subsequently her father bought Lot 22, and she and her sisters bought the lot behind the cottage in the 1960's, apparently Lot 20.

6. The driveway used during the Fales' ownership of Lot 19 was the same one now used by the plaintiff as well as the intervening owners, a family named Rollent. Both Superintendent Fales and his daughter had a car. He had a granddaughter the same age as the defendant so the two of them were back and forth between the two homes. Since Mrs. Ericson was only two years old in 1934 her recollection of the activities on the disputed locus during the early years is dim. Then and now there was a huge beach plum bush near the property line; parking on Lot 19 is not feasible.

7. The next owner after the Fales were the Rollents who acquired title about 1960. About 1961 he moved the small cottage, now a guest house, from a point to the northwest of the house on Lot 19 to the east of the house. His two daughters used the cottage, and after they were married, their families stayed there while visiting the Rollent parents. Cars of the entire family, their guests and other invitees parked on the circle of the driveway.

8. Mr. Rollent winterized the house in the early sixties and ultimately lived there year round. There is a garage to the east of the guest cottage.

9. Mrs. Ericson and her husband acquired Lot 19 in 1971, perhaps as trustees of Salt Works Realty Trust. No documentary evidence was introduced as to the defendant's chain of title, but the plaintiff does not dispute it is as represented.

10. The plaintiff and her husband have two sons who were banished to the guest cottage to insulate the plaintiff from the music fancied by the younger generation. The plaintiff parks her car facing her house on the north side of the driveway. Her sons and their guests park in the circle of the driveway. From there to reach the house or the cottage the autoists must cross the disputed area to reach their destination. The filed plan indicates by dotted lines a driveway leading to the defendant's garage, but she indicated that the garage doors long ago had been removed and the building used for storage.

11. The defendant also extended an invitation to those residents unable to park in the town parking lot at the ocean's edge to park on the locus. Her black labrador has also made the area his preserve; the defendant's forage has included firewood, beach plums and bayberries.

The burden is on the plaintiff in a complaint to register title to establish that she has a sufficient title for registration. If the plaintiff establishes that, then any party claiming title to a portion of the registration locus by adverse possession must go forward to prove his title by a preponderance of the evidence. If he does so, the registration complaint must be dismissed as to the disputed area, but title to no one else is registered in the proceeding. That is the result I have reached here.

That is the result I must reach here. The plaintiff's record title is sufficient for registration as to a four-sided parcel. While the boundaries would be difficult to place in the plaintiff's chain of title alone, deeds and plans of abutting owners establish the monumentation necessary to register title to the triangular portion of locus. However, there is no support in the record for the plaintiff's claim to the semi-parallelogram here in dispute. To the contrary the defendant has shown by a preponderance of the evidence that she has acquired title thereto by adverse possession. Since the mid '30's the owners of so called Lot 19 have used the premises north of a line connecting the drill hole in the stone bound at the end of a boundary line 105.30 feet in length with a bearing 03° 56' 27" W as shown on the plan to a similar monument at the end of a line bearing S 03° 07' 09" E 136.74 feet. It is apparent on the ground that the area in dispute has been used solely by the owners of the lot to the north and those claiming under her rather than the plaintiff. I further find and rule that the use by the defendant and her predecessors has been open, uninterrupted, notorious and adverse to all the world for over twenty years.

A decree may be entered registered the plaintiff's title to the remainder of the locus subject to the rights of all persons lawfully entitled in and to the traveled way as shown on said plan, also to the rights heretofore registered in Land Court Case No. 23506 and to the stipulations between the plaintiff and Ellen S. Curran, the plaintiff and George H. Bateman et al, the plaintiff and Henry Homer Sears et al, and the plaintiff and Everett R. Howe, et al, and any other matters set forth in the abstract of title and not in issue here.

Judgment accordingly.