Petitioners filed their Petition for Registration of 36.75 acres of land located off Old Kings Highway in Wellfleet, Massachusetts (Locus) on February 10, 1999 (the Petition). [Note 2] James H. Quirk, Jr. was appointed title examiner in April 1999 and filed his title report on August 28, 2006. Citation by publication was made in The Cape Codder newspaper, with a return date of March 5, 2007. [Note 3] On February 2, 2007, notices were sent to parties named in the Citation. Defendant Chellise L. Sexton (C. Sexton) filed her Answer on March 2, 2007. [Note 4] On March 5, 2007, Defendants Clarence S. Smith, Trustee of the Smith Family Realty Trust (the Smith Trust), the Town of Wellfleet (Wellfleet), and the United States of America (Department of the Interior Cape Cod National Seashore) (USA) filed their respective Answers. Irving B. Freeman (Freeman) and Priscilla Rostrom (Rostrom) filed appearances pro se on March 6, 2007 and March 7, 2007, respectively. Petitioners filed a Motion for Order and Entry on Default on April 3, 2008, requesting that defaults be entered against all persons who have not timely filed an answer in this matter, including Irving B. Freeman and Priscilla Rostrom, who have entered appearances but have failed to file answers in accordance with G. L. c. 185, § 41. On April 11, 2008, this court entered defaults against all parties who had not timely filed an answer, including Freeman and Rostrom (the Default). [Note 5] A joint case management memorandum (the Case Management Memorandum) was filed by Petitioners, the Smith Trust, USA, Wellfleet and C. Sexton on June 9, 2008, and a case management conference was held on June 13, 2008, at which a discovery deadline of February 28, 2009 was established. [Note 6], [Note 7] Wellfleet filed its Withdrawal of Answer and Objection on July 24, 2009. On September 24, 2009, the Sextons filed a motion for leave to file an amended answer and Petitioners filed an opposition on October 14, 2009. This court allowed the motion on October 19, 2009. On February 10, 2010, C. Sexton filed an Amended Answer, in which she alleged that, through research and discovery, she owns other parcels of property included within Locus. A pre-trial conference was held on May 24, 2010, and a supplemental pre-trial conference was held on July 29, 2010. In the Joint Pre-Trial Conference Memorandum, the Smith Trust and the USA agreed to withdraw their objections to the case contingent upon Petitioners prevailing against the Sextons claims. A site view was held on August 10, 2010. Trial was held at the Land Court in Boston on October 7 and 8, and November 22 and 23, 2010. Trial was limited solely to the issue of adverse possession. [Note 8]
Testimony was given by Petitioners witnesses Robert L. Paine (Paine, Jr.) (Petitioner), Sheila Paine (S. Paine) (Petitioner), Irene Paine (I. Paine) (Paine, Jr.s sister), Naomi Paine Wallace (Paine Wallace) (Paine, Jr.s sister), Paine, Sr. (Paine, Jr.s father), John Richards (Richards) (camper), Lynne Weygint (Weygint) (camper) and Robert Allan (Allan) (camper). Testimony was given by the Sextons witnesses Freeman (abutter), D. Sexton (Defendant), and Kevin Sexton (K. Sexton) (the Sextons son). Thirty-one exhibits were submitted, some in multiple counterparts.
On December 21, 2010, Petitioners filed their Motion in Limine to Exclude Certain Title Evidence of Respondents C. Sexton and D. Sexton, as Trustees of the Parcel 164 Nominee Trust, along with supporting memorandum and affidavit of Bernard T. Kilroy (Kilroy). On December 23, 2010, the Sextons filed their Motion in Limine to exclude Kilroys testimony. On December 28, 2010, the Sextons filed their opposition to Petitioners motion in limine, along with supporting memorandum. On December 29, 2010, Petitioners filed their opposition to the Sextons motion in limine to exclude Kilroys testimony. A hearing was held on December 30, 2010, and at that time these motions were taken under advisement. [Note 9], [Note 10]
On March 21, 2011, a Joint Pre-Trial Conference on Color of Title was held. At that time, this court determined that it would not take evidence related to title or color of title until Petitioners adverse possession claim had been decided. On June 24, 2011, the Sextons filed their Requests for Findings of Fact, Post-Trial Brief and Motion to Allow Introduction of Additional Plans/Photographs. In their post-trial brief, the Sextons requested that Mark Thaisz (Thaisz) be allowed to testify on adverse possession issues regarding the existence of campsites on Locus. On June 24, 2011, Petitioners filed their Proposed Findings of Fact, Post Trial Brief with Rulings of Law, supporting memoranda, and Opposition to Respondents Request to Reopen the Trial on the Issue of Adverse Possession to Take Additional Testimony. On July 13, 2011, Petitioners filed an opposition to the Sextons motion to allow the introduction of additional plans and photographs. On July 19, 2011, this court denied the Sextons request to allow Thaisz to testify and to introduce additional evidence.
Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. Locus is property shown as Lot 2 on a plan titled Plan of Land in Wellfleet, Mass. to be filed in the Land Court the Land Steward Trust & Irene M. Paine Petitioners, prepared by Schofield Brothers of N.E., Inc., dated October 30, 1998 (the Registration Plan). Locus consists of several parcels totaling approximately 36.75 acres of land, located between Old Kings Highway (previously known as Old County Road) on the west and the Cape Cod National Seashore (the Seashore) on the east. 2. The parcels that comprise Lot 2 on the Registration Plan each correspond to a lot on Sheets 23 and 24 of the Town of Wellfleet Assessors Atlas (the Assessors Atlas). The lot marked Irving B. Freeman 1938/40 corresponds to Lot 83 on the Assessors Atlas (Lot 83); however, as shown on the Registration Plan, Locus includes only the southern half of Lot 83 (Lot 83S) and does not include the northern half of Lot 83. The lot marked Claimed by Petitioners See 1424/707 Title also in Irving B. Freeman 1938/40 corresponds to Lot 82 on the Assessors Atlas (Lot 82); the lots marked 2349/46, 1415/94 and 2421/243 collectively correspond to Lot 81 on the Assessors Atlas (Lot 81); the lot marked Town of Wellfleet Claimed by Petitioners corresponds to Lot 81.1 on the Assessors Atlas (Lot 81.1); the lot marked 1540/252 corresponds to Lot 81.2 on the Assessors Atlas (Lot 81.2); the lot to the south of Lot 81.2 titled Claimed by Petitioners corresponds to Lot 80 on the Assessors Atlas (Lot 80); and the untitled lot to the south of Lot 80 corresponds to Lot 78.1 on the Assessors Atlas (Lot 78.1). [Note 11] Included in Locus is the parcel marked Smith Family Realty Trust, which runs perpendicular to the eastern boundary of the aforementioned lots and is shown on the Assessors Atlas as Lot 245 (the Smith Parcel). [Note 12] Also included in Locus are nine additional lots that encompass the area between the Smith Parcel and the Seashore shown on the Assessors Atlas as Lots 169, 170, 171, 172, 173, 174, 175, 176 and 178 (individually defined by lot number, e.g. Lot 169). Lot 169 has the same northern and southern boundaries as Lot 83 and, thus, it appears as if Lot 169 is an extension of Lot 83 that is bisected by the Smith Parcel. The same circumstances describe the positioning between Lots 82 and 170, Lots 81.1 and 174, Lots 81.2 and 175, Lots 80 and 176 and Lots 78.1 and 178. Lots 171, 172 and 173 collectively make up the extension of Lot 81. [Note 13]
3. The Sextons object to Petitioners registration of title to Locus by claiming title to Locus themselves as shown on a plan titled Study Sketch of Land in Wellfleet made for David Sexton & Chellise L. Sexton dated May 28, 2010 and prepared by Slade Associates, Inc. [Note 14] In their original Answer filed in 2007, the Sextons claimed title only to Lot 83. In their motion to file an amended answer filed on September 24, 2009 and their Amended Answer filed on February 10, 2010, the Sextons claimed ownership interests in Lots 81, 81.1, 81.2, 82 and 83. [Note 15] [Note 16]
4. In 1957, Paine, Sr. and his wife Cynthia Paine (C. Paine) began clearing land for a campground on part of Locus. In 1958 they began operating Paines Campground (the Campground), which has since operated on a seasonal basis from late May through September of each year. [Note 17] Between 1998 and 1999, Paine, Jr. took over the operation of the Campground from his parents.
5. Today, the Campground has approximately 150 campsites, of which 130 are used regularly. During an average summer week, there are approximately 100 to 150 campers on the Campground; on a weekend day in July or August, the height of the season, there are as many as 500 campers. In the 1970s and 1980s, the Campground routinely turned away campers because all campsites were occupied.
6. From 1958 until the mid-1970s, Paine, Sr., C. Paine and their children lived on the Campground in the summer and would return to Pepperell, Massachusetts and, later, Raymond, New Hampshire for the rest of the year. When living on the Campground, the Paines had several living arrangements. The family first lived in a large tent located near what is now Site 23. [Note 18] Beginning in 1964, the Paine children began sleeping in a converted school bus while Paine, Sr. and C. Paine stayed in a nearby tent, both of which were located in the general area of the Office (as hereinafter defined) and the Dwelling (as hereinafter defined). In the late 1960s, some of the family stayed in a green trailer near the Dwelling. Beginning in 1970, the Paines stayed in a mobile home that was placed where the Office currently stands and served as a year-round home (the Mobile Home). In 1975, the Paine family expanded a shed built the previous year into a dwelling (the Dwelling), which has since been occupied year-round. [Note 19], [Note 20]
7. The Campground initially had a small dirt parking lot off Old Kings Highway and a small office at the western entrance. In 1967, the parking lot was enlarged, seashells and ground-up concrete were added as the base for the parking lot (the Parking Lot) and a new office was built (the Office) nearby.
8. Since 1958, a main access road has run east from Old Kings Highway through the Campground to the Seashore (the Main Road). [Note 21] From 1958 to 1970, Paine Sr. created or improved other roadways, shown as pathways labeled dirt road on the 2010 Plan. Paine, Sr. later added clay, sand, filler, gravel and seashells to the roadways to stop cars from getting stuck.
9. In the late 1950s and early 1960s, the first campsites were built immediately inside the western gate (the Gate) and along the Main Road. [Note 22] Between 1965 and 1966, Paine, Sr. created the dirt road that runs south from the Main Road between Sites C5 and C6 and loops to the west toward Old Kings Highway and then north toward the Gate. Paine, Sr. also installed campsites along this roadway. [Note 23] In 1969, Paine, Sr. and C. Paine allowed college students to stay on the Campground in the summer in exchange for clearing campsites in the northeast corner of Locus on Lots 82 and 83. [Note 24] From the mid-1960s to the early 1970s, additional campsites were added to the north side of the Main Road and in the southeast corner of Locus. [Note 25]
10. A standard campsite consists of a cleared area for a tent and a picnic table as well as a fire ring. [Note 26] Some campsites share a picnic table and a fire ring, and occasionally the picnic tables are moved or taken in for repairs. Some campsites have parking while other lug-in sites require external parking. The condition of the campsites has not changed substantially over the years. Campers bring to the campsites their own tents, tarpaulins, hammocks, bicycles, kayaks and cars.
11. In 1967, a horse corral was added north of the Dwelling, extending easterly towards Sites 27 and 28 and northerly towards Site P3 (the Corral), all on Lot 82. [Note 27] Within a couple of years, a roadway was added to access the Corral. [Note 28] The Corral included electrical wire placed on insulators on trees and a small stall building and contained up to three horses at times. By 1981, the Corral was removed and replaced by additional campsites; some of the insulators still remain.
12. Few campsites are located in the southwest corner of Locus because the ground slopes downward. [Note 29] In addition to several campsites, this area has a public water supply well that services the Campground, a wetland, two dirt roads, a volleyball court, a pump house built in 1970, a drain and a wetland portion.
13. In the late 1950s, Paine, Sr. built a wooden toilet house near the Main Road across from what are currently Sites 29 and 30 and replaced it in 1967 by a cement toilet house. By 1970, a second toilet building was built across from what is now Site C11. The toilet houses received water from a water tank that sat behind what are now Sites 27 and 28. A second water tank was installed around 1967 near what is now Site C21.
14. In the early 1960s, Paine, Sr. placed railroad ties to serve as barricades for the roadways between Sites C66 and C64 and between Sites C64B and C64C.
15. In 1970, Paine, Sr. constructed a fence made of railroad ties and boards along Locus western boundary on Old Kings Highway (beginning at the point where Lots 81 and 82 meet Old Kings Highway), with an opening for the Gate and Parking Lot (the Railroad Tie Fence). In the mid-1990s, Petitioners replaced the Railroad Tie Fence with stockade fencing (the Stockade Fence). In 1999 a chain-link fence was added in the southwest corner, from the end of the Stockade Fence along the northern and eastern borders of Lot 1 as shown on the Registration Plan, to Ramas Way. In 2003, Petitioners extended the chain-link fence across much of Locus. The chain-link fencing runs across Locus entire southern boundary to the Seashore, up Locus entire eastern boundary to Lot 169 and across a small portion of Locus northern boundary. [Note 30]
16. In 1970, Paine, Sr. and some of his children installed iron pipes and strung wire between the pipes along what they believed to be the Campgrounds northern boundary with space to allow people to pass along the roadways that intersected with the northern boundary (the Iron Pipe Fence). A Plan titled Plan of Land in Wellfleet, MA belonging to Robert S. and Cynthia M. Paine dated February 28, 1992 and prepared by the Boston Land Survey Company, Inc. (the 1992 Plan), shows the Iron Pipe Fence beginning at the point where the shared boundary between Lots 82 and 83S meets Old Kings Highway. The 1992 Plan shows the Iron Pipe Fence running mostly across Lot 83S but occasionally on to Lot 82 until it ends at approximately the midpoint of Lot 83Ss eastern boundary. As shown on the 2010 Plan, many iron pipes remain on Locus today in the same position as they are depicted on the 1992 Plan. [Note 31] As Petitioners strung wire between iron pipes, Paine, Sr. installed No Trespassing signs along the Iron Pipe Fence and also on nearby trees with wire to prevent the signs from being taken. Newer No Trespassing signs have been put in place but older signs remain.
17. As shown on the 2010 Plan, the area of Lots 82 and 83S that lies south of the boundary line formed by the Iron Pipe Fence contains nearly two dozen campsites [Note 32] and several dirt roads and was the location of the Corral.
18. On February 19, 1970, John Gilbertson, on behalf of Paine, Sr. and C. Paine, wrote to Kenneth Van Buren and offered to pay $3,800 for the Freeman Property off of Old Kings Highway. [Note 33] On June 19, 1970, John Gilbertson wrote to Ella Freeman, a relative of Kenneth Van Buren, stating that he had just learned that Kenneth Van Buren had recently died and asking if the Real Estate adjoining Robert and Cynthia Paine in South Wellfleet, Massachusetts was still for sale and what the status of the title was. [Note 34]
19. Campers have always paid fees to stay on the Campground based on the number of people staying at each campsite. [Note 35] The Paines patrol the Campground to ensure that all campers have paid. Campers who have not paid are instructed to pay or leave. [Note 36] Paine, Jr., I. Paine, and Paine Wallace, testified that the Paine children were often responsible for monitoring the gates to observe whether cars had a pass or sticker indicating that they had already paid and registered and to approach campsites at which they suspected there might be unregistered patrons or campers that had snuck in. When the Paines come across campers who had not registered and paid, the campers are told to register and pay or leave the Campground.
20. Signs along Old Kings Highway and Route 6 have advertised the Campground since the 1960s. Petitioners have obtained outdoor advertising permits for constructing, installing and maintaining these signs since that time. Petitioners have printed advertisements in local and national newspapers. From 1960 through 1998, Petitioners produced printed brochures for the Campground to be distributed by companies and displayed at trade shows and events. They have since continued to advertise the Campground on the Internet.
21. Petitioners have paid taxes on property located on Old Kings Highway since the 1960s. The exact parcels on which taxes were paid are often unclear because many of the bills do not delineate lot numbers and the acreage of parcels on which taxes were paid has varied over time. Petitioners paid taxes on Lot 81.2 from 1994 to 1998 and from 2000 to 2009. Petitioners paid taxes on Lot 81 from 1989 to 1998, 2000 to 2004 and 2006 to 2009. Petitioners paid taxes on Lot 170 and Lot 172 from 2000 to 2009. Petitioners paid taxes on Lot 171 from 1995 to 1998 and 2000 to 2009. Petitioners also paid taxes on Lots 173 and 175 from 2002 to 2009. [Note 37]
22. The Town of Wellfleet Board of Health granted Petitioners yearly licenses to operate the Campground in 1960, 1970, 1972, 1974 through 1980 and 1982 through 1998. Petitioners obtained building permits in 1959, 1963, 1966, 1970 and 1974 for service buildings, toilet buildings, the Mobile Home and the storage shed that became the Dwelling.
23. Around 1964, Weygint began camping on the Campground for one or two weeks and has done so nearly every summer since then. Weygint has camped at Sites C7, C8, C9, C10 and C55. Allan started camping on the Campground in 1964. He first stayed at campsites by the gate, such as Sites 18 and 21 and later stayed at Sites C3, C4 and C7. Richards first stayed on the Campground in 1969 and cleared his own site, which is now Site C53. [Note 38] Weygint, Allan and Richards all testified that the Campground looks similar today as it did when they each first camped there and that they continued to return to the Campground because the Paines had maintained it so that it remained as natural and undisturbed as possible. [Note 39]
24. Since the Campground first opened, the Paines have performed maintenance on the Campground during the off-season, which lasts from October to April. They repair the toilet buildings and roadways, mark and cut dead trees, clear brush from campsites and maintain picnic tables and structures. Paine, Jr. testified that Petitioners have used the Smith Parcel and portion of Locus that abuts the Seashore for dumping brush and debris and storing equipment. Paine, Jr. also testified that the area bordering the Seashore was once an old railroad right of way that was dismantled in the early 1960s but is now used by all kinds of people for various things.
25. In the early 1970s, Freeman first visited Lots 82 and 83 with his mother and saw only a wooded lot when walking along Old Kings Highway for approximately thirty minutes. In the early 1980s, Freeman visited Lot 82 again and walked along the western boundary and drove down Duck Pond Road. [Note 40] On this trip, Freeman saw small dirt roads and wooded land to the south. In the early 1990s, Freeman visited Lots 82 and 83 after being told that benches had been placed on the property and Freeman observed that there were tables, tents and a shed on Lot 82. On May 20, 1992, Freemans attorney, Brian OConnell, sent a letter to Paine, Sr. stating,
Mr. Freeman has observed on his property a shed, certain recreational motor vehicles, and tents, which he understands have been placed upon his property by [Paine, Sr.], or on [Paine, Sr.s] behalf. Mr. Freeman hereby requests that [Paine, Sr.] remove from his realty all of this property and that [Paine, Sr.] cease forthwith any further use of his realty, unless [Paine, Sr.] secure[s] prior permission from him to do so. [Note 41]
26. D. Sexton and his wife have visited Lot 83 approximately twenty to twenty-five times since 1985 and would typically walk or drive along Duck Pond Road. D. Sexton did not observe any campsites or fences during these periodic visits.
27. In February 9, 1990, C. Sextons lawyer, Stephen Jones, sent a letter to Paine, Sr. stating It has come to our attention that there are tents belonging to you which are presently encroaching on Mrs. Sextons land. You are hereby requested to remove these tents . . . . [Note 42]
28. In 1992, D. Sexton filed in the Land Court a petition to register Lot 83 and an accompanying plan. [Note 43]
29. On March 2, 2001, Freeman filed a trespass action against Paine, Jr. and Paine, Sr. as trustee of the Land Steward Trust, for using Lot 82. [Note 44] The complaint states in part,
At various times [Paine, Jr. and Paine, Sr.], and their agents, servants, employees, guests and invitees, without legal right and without consent of [Freeman], have entered upon [Freemans] land and have made ways, have operated and parked vehicles on [Freemans] land have [sic] used it as a campground, and otherwise for their own convenience. [Freeman] has demanded of [Paine, Jr. and Paine, Sr.] on numerous occasions that [Paine, Jr. and Paine, Sr.], their agents, servants, employees, guests and invitees cease trespassing on [Freemans] land, but despite such demands, [Paine, Jr. and Paine, Sr.], their agents, servants, employees, guests and invitees have continued and threaten to continue the trespass.
Petitioners claim title to Locus based on record title, color of title, and adverse possession. The Sextons dispute Petitioners claim to Locus by claiming title to Locus themselves by record title. I shall examine each of these issues in turn.
A. Adverse Possession.
Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964). See G. L. c. 260, § 21. The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 846 (2004). The adverse possessors acts should demonstrate control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership. LaChance v. First Natl Bank & Trust Co., 301 Mass. 488 , 491 (1938). Seasonal uses may be used to establish adverse possession. See Kershaw v. Zecchini, 342 Mass. 318 , 320-21 (1961) Lebel v. Nelson, 29 Mass, App. Ct. 300, 302 (1990). Showing lack of consent from the true owner establishes non-permissive and adverse use. Totman v. Malloy, 431 Mass. 143 , 145 (2000). See also Ottavia v. Savarese, 338 Mass. 330 , 333-34 (1959). Exclusive use is established where it encompass[es] a disseisin of the record owner. Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993) (internal citation omitted). The adverse possessor must show use of the disputed area to the exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them. Id. An adverse possessors use made without attempted concealment establishes open and notorious use, Foot v. Bauman, 333 Mass. 214 , 218 (1955). The propertys true owner need not actually know of the adverse use, but the adverse use must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). See Sea Pines, 61 Mass. App. Ct. at 848.
The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put. LaChance, 301 Mass. at 490. When claiming adverse possession of wild or woodlands, the claimant generally must establish that the land has been enclosed or reduced to cultivation. Sea Pines, 61 Mass. App. Ct. at 848. See also Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992 , 993 (1984); Dow v. Dow, 243 Mass. 587 , 593 (1923). The enclosure or cultivation requirement for woodlands, however, is simply the application of the general rule that an adverse possessors use and occupancy of the land must place the true owner on notice of the adverse possessors occupation of the land under a claim of right; determining whether certain activities are sufficient to support an adverse possession claim is inherently fact-specific. Sea Pines, 61 Mass. App. Ct. at 848.
Petitioners argue that by operating the Campground since 1958 they have actually, openly, notoriously, exclusively and adversely used Locus for more than twenty years continuously. The Sextons argue that Petitioners fail to establish adverse possession over the vast majority of Locus. Namely, the Sextons contend that Petitioners have not actually used the wooded areas within Locus and that their use has not been open and notorious because Petitioners failed to fully enclose the Campground. Additionally, the Sextons argue that the Campgrounds seasonal operation does not constitute continuous use and that Petitioners did not exclusively use the Campground because there were often trespassers. Finally, the Sextons state that over one-hundred interested parties have not received proper notice of Petitioners claim.
Because Locus consists of several different parcels, I shall examine each parcel in turn to determine whether Petitioners have established their adverse possession claim to Locus.
1. Lots 80, 81, 81.1 and 81.2.
a. Actual Use.
To demonstrate actual use of Locus, Petitioners must have maintained dominion over Locus consistent with ownership of land of Locus character and intended use. LaChance, 301 Mass. at 490-91. Petitioners argue that Locus has been the location of a Campground where campers interested in spending time in a minimally developed and largely preserved environment may stay. The Sextons do not contest Petitioners actual use of permanent improvements, such as the Dwelling, Office, Parking Lot, and toilet houses; however, the Sextons argue that the campsites do not constitute actual use because the campsites consist only of a small plot of cleared land often with an easily moveable picnic table and fire ring.
In evaluating actual usage of land, courts must examine the totality of the adverse possessors activities on the land. See id.; Kershaw, 342 Mass. at 320-321 (1961). [Note 45] [F]ew, intermittent and equivocal activities are insufficient to support a claim of adverse possession. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). Petitioners presented unrebutted evidence that between 1958 and the mid-1970s, the Paines constructed the Parking Lot, the Dwelling, the Office, multiple toilet houses and water tanks, the Iron Pipe Fence and the fences along the northern and western boundaries, the Main Road and 150 campsites along dirt roads throughout Locus. The 2010 Plan clearly shows that the placement of the campsites, roads and structures spans across almost all of Locus, including the entirety of Lots 80, 81, 81.1 and 81.2. Additionally, Paine, Jr., Weygint, Richards and Allan all offered unrebutted testimony that the Campground looks the same today as it did in the 1960s.
The Sextons argue that Petitioners made no permanent improvements to the land because the picnic tables and fire rings are all movable objects, relying on language in Peck. In Peck, the Appeals Court acknowledged Bigelows activities on the property but cited his failure to make any permanent improvements or significant changes to the land as insufficient to establish actual use. Peck, 34 Mass. App. Ct. at 556. The Appeals Court, however, pointed out that even though Bigelows activities were insufficient to establish actual use, in other cases such activities sufficiently evidenced actual use where the activities were associated with others which together showed control and domination. Id. at 557. [Note 46]
Although the campsites themselves do not contain permanent structures, Petitioners have shown actual use of Locus because the campsites are permanent in the sense that Petitioners have cut down and removed trees to create and maintain the campsites. See Kershaw, 342 Mass. at 319-20. The picnic tables and fire rings may be movable objects, but are sufficient evidence of control and domination when combined with the permanent structures, roadways and signage created and maintained by Petitioners. Furthermore, when occupying the actual campsite, campers regularly bring a significant amount of camping equipment and vehicles. Even though the campsites are surrounded by wooded areas, Petitioners intended the Campground to serve as a minimally developed area for campers to stay and, thus, it is reasonable to conclude that the wooded areas surrounding the campsites have been used in conjunction with the campsites. Petitioners are not claiming title to an untouched woodland lot; rather, Petitioners have used Locus in its entirety and deliberately left woodland areas between campsites mostly untouched to provide campsites with privacy and separation and to preserve Locus natural qualities. [Note 47] In other words, Petitioners have incorporated the wooded areas into their use of Locus. The wooded areas have not been left uncultivated in the traditional sense, but have instead been preserved and maintained in their natural state to serve the specific purpose of attracting a certain market of campers to the Campground. Indeed, Weygint, Richards, and Allan testified that they continued to return to the Campground for over twenty years because it had been maintained to remain as natural as possible, providing further evidence that Locus has been used seasonally as a campground.
Along with the actual campsites, the record shows that Petitioners have methodically planned to continually expand the Campground over the course of approximately fifty years to show their dominion and control of Lots 80, 81, 81.1 and 81.2. The Main Road was built in 1958 and ran all the way to the Seashore from the Gate. The first campsites were built in the late 1950s and early 1960s close to the Gate and along the Main Road; however, between 1965 and 1966 Paine, Jr. constructed a road that looped south from the Main Road all the way back toward the Gate accompanied by over a dozen campsites. [Note 48] Various permanent structures were added, most of which remain today: in 1967, the Parking Lot, the Office, the Corral, a cement toilet house and a second water tank; in 1969 campsites in the northeast corner of locus on Lots 82 and 83S; [Note 49] in 1970, a second toilet building, the Railroad Tie Fence, the Iron Pipe Fence and a pump house; and in 1975, the Dwelling. From the mid-1960s to early 1970 additional campsites were added along the Main Road and southeast of the Main Road. [Note 50] The southwest portion of Locus has been used at least since 1970 (when the pump house was built) to supply the campground with water and contains a volleyball court in addition to the dirt road built between 1965 and 1966. Petitioners continue to assert dominion and control over Locus as they placed chain-link fencing around most of Locus in 1999 and 2003.
Therefore, based on unrebutted witness testimony and the 2010 Plan, Petitioners activities, when combined, have demonstrated dominion and control over Lots 80, 81, 81.1 and 81.2 As a result, I find that Petitioners have established actual use of Lots 80, 81, 81.1 and 81.2.
b. Open and Notorious Use.
Petitioners must establish that operating the Campground on Locus was sufficiently open and notorious that the true owner should have been aware of such use of Lots 80, 81, 81.1 and 81.2. The Sextons argument that Locus was not used openly and notoriously is limited to Lots 82 and 83. See infra. In fact, testimony by Freeman, D. Sexton and K. Sexton indicates that their visits and observations to Locus were limited to Lots 82 and 83 and that none of them ever went on to Lots 80, 81, 81.1 and 81.2.
Petitioners have never attempted to conceal their use of Locus and have openly promoted the Campground since its inception. Since the 1960s, Petitioners have openly advertised the Campground with signs along Old Kings Highway and Route 6 and have printed advertisements in local and national newspapers. From 1960 through 1998, Petitioners have also printed brochures for the Campground to be distributed at trade shows and events and Petitioners continue to advertise the Campground on the Internet. Moreover, the Railroad Tie Fence along the western boundaries of Lots 80, 81, 81.1 and 81.2 (i.e. Old Kings Highway) and the activity of campers arriving and leaving with tents, tarpaulins and clotheslines since the 1960s should have served as notice of the Campgrounds existence. In fact, Freeman and D. Sexton testified that they have both known of the Campground since at least the 1970s. Petitioners also have obtained licenses for operating the Campground since the early 1970s as well as building permits for the structures on Locus. Therefore, I find that Petitioners have openly and notoriously used Lots 80, 81, 81.1 and 81.2 in such a way that the true owner of the land should have known of their use.
c. Exclusive Use.
Petitioners must demonstrate that they excluded the record owner and all third parties from Locus to the extent that the owner would have excluded them. Peck, 34 Mass. App. Ct. at 557. Petitioners created gates at the main entry points to the Campground and erected barriers at other entryways to prevent cars from entering Locus. Moreover, since 1958, Petitioners have charged a fee and required parties to register before entering the Campground, monitored cars as they entered and patrolled the Campground daily to ensure there are no unregistered campers and to expel any such persons if necessary. The Sextons argue that Petitioners did not exercise exclusive control over Locus because unregistered campers were able to sneak onto the property. Even though some third parties attempted to enter the Campground without permission, the more significant fact is that Petitioners consistently expelled unregistered campers and trespassers to exercise their dominion over Locus. Additionally, the Railroad Tie Fence, later replaced by the Stockade Fence, has run along Old Kings Highway (the westerly border of Lots 80, 81, 81.1 and 81.2) since 1970 to exclude trespassers and unregistered campers from the Campground, and the Iron Pipe Fence with no trespassing signs along the northerly boundary was also created in 1970. [Note 51] More recently, chain-link fencing was erected to enclose the entire southern and eastern boundaries of the Campground, such that Locus is enclosed by the Stockade Fence on most of its western boundary, chain-link fencing on its southern and eastern boundaries and by what remains of the Iron Pipe Fence along the northerly boundary.
The Sextons argue that the Campground has been operated as a nature sanctuary with large areas of unimproved woodlands that must be fenced in or otherwise enclosed to constitute exclusive use. See Sea Pines, 61 Mass. App. Ct. at 848; Senn, 18 Mass App Ct. at 993; Dow, 243 Mass. at 593. Enclosure or cultivation of unimproved woodlands, however, is simply the application of the general rule that an adverse possessors use and occupancy of the land must place the true owner on notice of the adverse possessors occupation of the land under a claim of right; determining whether certain activities are sufficient to support an adverse possession claim is inherently fact-specific. Sea Pines, 61 Mass. App. Ct. at 848. Therefore, the enclosure requirement for wooded areas is simply intended to provide the true owner with sufficient notice of the adverse use to which the property is being used and the focus must be on Petitioners use of Locus as a whole as a campground and in monitoring Locus boundaries. Petitioners have already established that they excluded trespassers and unregistered guests from the Campground. As discussed, supra, Petitioners are not claiming title to untouched woodland lots; rather, Petitioners have used Locus in its entirety and deliberately left woodland areas between campsites mostly untouched and, thus, the wooded areas have been incorporated into Petitioners use of Locus. Moreover, the Railroad Tie Fence (and later the Stockade Fence) along Old Kings Highway was easily visible to users of the highway for over forty years. Even taking into consideration that Locus contains unimproved wooded areas, the Railroad Tie Fence combined with the notice provided by Petitioners activities on Locus discussed, supra, Petitioners have established their actual use of Lots 80, 81, 81.1 and 81.2 as part of the Campground and, thus, Petitioners have excluded the record owner and all third parties from Lots 80, 81, 81.1 and 81.2 to the extent that the owner would have excluded them. Therefore, I find that Petitioners have established exclusive use of Lots 80, 81, 81.1 and 81.2.
d. Adverse Use.
For Petitioners to establish that they have used Locus adversely or without permission from Locus true owner, Petitioners must show a lack of consent from the true owner. See Totman, 431 Mass. at 145; Ottavia, 338 Mass. 333 -34. The record contains no evidence that Petitioners have ever been given consent by anyone to use Lots 80, 81, 81.1 and 81.2 and the Sextons do not argue that Petitioners received permission from anyone to use these lots. Furthermore, based on the discussion, supra, regarding Petitioners open and notorious use of these lots, the true owner of these lots would have had more than sufficient notice that Petitioners were using these lots. Therefore, I find that Petitioners have established adverse use of Lots 80, 81, 81.1 and 81.2.
e. Continuous Use for Twenty Years.
The Sextons contend that Petitioners use of the land has not been continuous because the Campground operates seasonally; however, seasonal uses may establish adverse possession. Lebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990). See also Kershaw v. Zecchini, 343 Mass. 318 , 320-21 (1961). The Sextons do not dispute that the Campground has operated seasonally, which Paine, Jr. and other witness provided in unrebutted testimony. Furthermore, campers Weygint, Richards and Allan all testified that they had been returning every summer to the Campground for over twenty years.
Petitioners use of the Campground is not even limited to the summer months because throughout the off-season Petitioners perform maintenance work on Locus, including marking and cutting dead trees, cleaning campsites and repairing fire rings, picnic tables, and structures as needed. More importantly, as discussed, supra, regarding Petitioners actual use of Lots 80, 81, 81.1 and 81.2, Petitioners have methodically over time expanded the Campground with their activities that include building campsites and permanent structures. In fact, since 1958 there has never been a time in which Petitioners did not operate the Campground during the summer and perform maintenance during the off-season. Therefore, operating the Campground sufficiently qualifies as continuous use of Locus.
The Sextons point out that D. Sexton interrupted Petitioners adverse possession of Locus in 1992 when D. Sexton filed a petition to register land. Sandwich v. Quirk, 409 Mass. 380 , 383 (1991) ([T]he filing of a petition to register title to land immediately interrupts adverse possession of that land.); McMullen v. Porch, 286 Mass. 383 , 388-89 (1934) ([T]he adverse possession of the respondent was interrupted by the filing of the petition for registration of title . . . .). D. Sextons petition to register land, however, did not apply to the entirety of Locus, but rather only to Lot 83. The first time the Sextons asserted ownership interests in Lots 81, 81.1 and 81.2 was in their motion to amend their answer filed on September 24, 2009. Therefore, Petitioners must show that their use of Lots 81, 81.1 and 81.2 occurred for more than twenty years continuously prior to September 24, 2009. Neither the Sextons nor any other party has asserted an ownership interest in Lot 80 and, thus, Petitioners twenty year use is not limited by any date with regard to the adverse possession period for Lot 80. [Note 52]
As discussed, supra, Petitioners have satisfied all other elements of adverse possession regarding Lots 80, 81, 81.1 and 81.2. Petitioners may tack on the use of predecessors in title when establishing continuous use for at least twenty years. See G. L. c. 260, § 22. Therefore, Petitioners may include in their use of any part of Locus the period during which Paine, Sr. and C. Paine (Paine, Jr.s parents) operated the Campground.
Twenty years of continuous use would require Petitioners to have used Lots 80, 81, 81.1 and 81.2 since at least 1979; however, the record shows that the Campground has existed and operated in its current form on Locus since the early 1970s. By this time, as outlined, supra, by the discussion on actual use, most of the current campsites, the Railroad Tie Fence, the Iron Pipe Fence, the toilet houses, the Corral, the Office, the Main Road, most of the smaller dirt roads, and the Parking Lot existed. As Petitioners activities on Lots 80, 81, 81.1 and 81.2 have been ongoing since at least 1970, I find that Petitioners have used Lots 80, 81, 81.1 and 81.2 continuously in excess of a twenty-year period. As a result, I find that Petitioners have established title by adverse possession over Lots 80, 81, 81.1 and 81.2.
2. Lot 78.1.
Lot 78.1 forms the southerly boundary of Locus and chain-link fencing runs across the western and southern boundaries of such lot. [Note 53] Neither the Sextons nor any other party claims a property interest in Lot 78.1 and, thus, the record contains no evidence that would call into question Petitioners proffered evidence of adverse possession of Lot 78.1. As a result, the adverse possession period for Lot 78.1 has yet to be interrupted.
The same rationale for finding that Petitioners have proved the elements necessary to establish title by adverse of Lots 80, 81, 81.1 and 81.2 also applies to Lot 78.1. Similar to the aforementioned lots, Lot 78.1 also contains campsites with picnic tables and fire rings surrounded by wooded areas that have been minimally developed to preserve the natural environment. As Lot 78.1 is part of the Campground, Petitioners have openly and notoriously advertised it and do not appear to have received permission from anyone to use it. [Note 54]
As a result of the foregoing, I find that Petitioners have established title by adverse possession over the entirety of Lot 78.1.
3. Lots 82 and 83S.
The same rationale for finding that Petitioners have proved the elements necessary to establish title by adverse possession over Lots 80, 81, 81.1 and 81.2 also applies to most of Lot 82 and Lot 83S. As outlined below, Petitioners have not established adverse possession over the entirety of Lots 82 and 83S; rather they have established adverse possession only to the portions of Lot 82 and Lot 83S that lie south of the boundary line formed by the Iron Pipe Fence, which was created in 1970. As shown on the 2010 Plan, this area contains nearly two dozen campsites [Note 55] and several dirt roads and was the location of the Corral. Campsites currently on Lots 82 and 83S were created by at least 1969 and have existed in the same condition today as they did since that time, the Corral was built on Lot 82 in 1967 and the Iron Pipe Fence has run over Lots 82 and 83S since 1970. Furthermore, Richards offered unrebutted testimony that on his first visit to the Campground in 1969 he stayed on Site C53, which is located on Lot 83S. With respect to the portions of Lot 82 and Lot 83S that lie northerly of the Iron Pipe Fence, the 2010 Plan shows that the far western portions of these lots that border Old Kings Highway do not contain any campsites, clearings or other structures. [Note 56] The Sextons make various arguments against Petitioners adverse possession claim to Lots 82 and 83S; however, these arguments essentially apply only to the portions of these lots northerly of the Iron Pipe Fence.
First, the Sextons argue that Lot 82 and Lot 83S has never been fully enclosed; however, the Iron Pipe Fence that ran across Lots 82 and 83S was built in 1970 and clearly marked the Campgrounds northern border to exclude trespassers and mark Petitioners ownership. Petitioners have shown that their use of the enclosed portions of Lot 82 and Lot 83S has been exclusive because they used these areas as part of the Campground and, as discussed, supra, Petitioners regularly expelled trespassers and charged entry to the Campground.
As the enclosed portions of Lot 82 and Lot 83S are part of the Campground, Petitioners have openly and notoriously advertised them; however, the Sextons argue that testimony by Freeman, D. Sexton and Kevin Sexton, all of whom stated that prior to the early 1990s they did not observe any campsites on Lot 82 or Lot 83S, shows that Petitioners use of Lots 82 and 83S was not open and notorious. [Note 57] Freeman, however, acknowledged that he had known about the Campground since the 1970s and D. Sexton also acknowledged having known about the Campground. Freemans testimony indicated that he only walked on the portions of Lot 82 and Lot 83S near Old Kings Highway where no campsites currently exist according to the 2010 Plan and where no campsites appear ever to have existed. Additionally, D. Sexton and Kevin Sexton mostly observed Lots 82 and 83S by looking in on Locus from Old Kings Highway and Duck Pond Road (located on the northern half of Lot 83, which is not included in Locus) and also would not have seen the areas of Lots 82 and 83S that contain campsites. [Note 58]
The record also shows that Petitioners activities on the enclosed portions of Lot 82 and Lot 83S could be seen and were in fact brought to the attention of Freeman and D. Sexton. Kevin Sexton testified that when walking along the railroad corridor on the eastern edge of Locus, a gate and some campsites were visible. Freeman testified that he saw dirt roads to the south when walking along Duck Pond Road and both Freeman and D. Sexton testified that around 1991 and 1992 they each observed tables, tents, or clearings on Lots 82 and 83S. Moreover, in the early 1990s, Freeman and the Sextons sent letters to Paine, Sr. stating that they were aware that the operations of the Campground were occurring on Lots 82 and 83S and requesting that Paine, Sr. cease using their respective properties. Combined with the extensive testimony at trial that the Campground has existed in very similar conditions and been operated in the same manner since at least the early 1960s, it is reasonable to conclude that these campsites, tents, and tables existed on Lots 82 and Lot 83S since the 1970s. [Note 59]
As a result of the foregoing, Petitioners use of the portions of Lot 82 and Lot 83S that lie south of the boundary line formed by the Iron Pipe Fence was sufficiently open and notorious.
Third, the Sextons argue that Petitioners use of Lots 82 and 83S was not adverse, citing the letter written by Petitioners attorney to Kenneth Van Buren in 1970 offering to purchase the Freeman Property off of Old Kings Highway. The Sextons rely on Warren v. Bowdran, 156 Mass. 280 , 283-84, (1892) to argue that the Paines offer to purchase these lots was an admission by [them] that [they] had no title to the land, and that [they] claimed no lawful title, which shows that the Paines always considered themselves subject to the authority of the propertys true owners and, thus, that Petitioners possession was not adverse. Petitioners rely on Lebel to indicate other factors are involved. In Warren, the court stated that a proper jury instruction given by a lower court judge was that if the adverse possessor had some doubt about his title and would be willing to pay for the land to avoid litigation, it would not defeat an adverse possession claim; however, if the offer was made because the adverse possessor admitted to having no title to the land and claimed no lawful title to the land, it may show that his possession was not adverse. Warren, 156 Mass. at 284. A partys willingness to avoid litigation by offering to buy the disputed property does not defeat a claim of adverse possession. Lebel, 29 Mass. App. Ct. at 302. Here, there is no evidence that Petitioners were admitting that they lacked title to Lots 82 and 83S and or that they were not claiming lawful title. The evidence goes the other way.
Finally, the Sextons claim that Petitioners were reluctan[t] to change the land in any way or make any permanent improvements thereon; however, the record indicates the exact opposite, namely that by 1970 (when Petitioners attorney wrote to Kenneth Van Buren), the campsites on Lots 82 and 83S as well as the Corral and portions of the dirt roads were all in existence. Moreover, building the Iron Pipe Fence in 1970 would suggest that at the very most, Petitioners admitted that they had no title to the portions of Lots 82 and 83S that they had not used for campsites, i.e. the portions of Lots 82 and 83 that lay to the north of the Iron Pipe Fence.
The record contains no evidence that Petitioners ever received permission from anyone to use Lots 82 and 83S. As a result, Petitioners use of the portions of Lot 82 and Lot 83S that lie south of the boundary line formed by the Iron Pipe Fence was adverse.
The Sextons argue that Petitioners use of Lot 82 and Lot 83S did not meet the twenty year requirement, as they interrupted Petitioners adverse possession of Lot 83S in 1992 with D. Sextons petition to register land. As a result, Petitioners must show that their use of Lot 83S spanned at least twenty continuous years prior to 1992. The Sextons also argue that Petitioners adverse possession of Lot 82 was interrupted on March 2, 2001, when Freeman filed a trespass action against Petitioners for using Lot 82. As a result, Petitioners must show that their use of Lot 82 spanned at least twenty continuous years prior to March 2, 2001. [Note 60] Despite the Sextons arguments, the record shows that Petitioners use of Lots 82 and 83S dates back to at least 1969, which is in excess of the twenty-year period required for both lots outlined above.
As a result of the foregoing, I find that Petitioners have established title by adverse possession over the areas of the portions of Lot 82 and Lot 83S that lie south of the boundary line formed by the Iron Pipe Fence as shown on the plan attached as Exhibit A and the 1992 Plan.
4. The Smith Parcel, Lots 169 through 176 and Lot 178.
The Smith Parcel, Lots 169 through 176 and Lot 178 form the eastern portion of Locus. As Petitioners have used some portion of the Smith Parcel, Lots 169 through 176 and Lot 178 as part of the Campground, the rationale for finding that Petitioners have established title to these parcels would be the same as for the parcels discussed, supra. Petitioners, however, have not shown exclusive use of these parcels and have not shown exactly which areas of these parcels have been used. With regard to the Smith Parcel, Paine, Jr. testified that after the railroad was dismantled in the early 1960s, the land has been used by all kinds of people for various things, which indicates that the Petitioners have not used the Smith Parcel exclusively. Paine, Jr. testified that the land bordering the Seashore has been used for dumping brush and debris and storing equipment and the record shows that Petitioners have been assessed and paid taxes on many of the lots bordering the Seashore; however, neither written evidence nor Paine, Jr.s testimony describes or delineates the exact area of these lots that have been used as part of maintaining the Campground. Although fencing does extend over the boundaries of the Smith Parcel, Lots 169 through 176 and Lot 178, it was added only in 2003. As a result, I find that Petitioners have not established exclusive use or actual use of the Smith Parcel, Lots 169 through 176 and Lot 178 and, thus, have not established title by adverse possession to said parcels.
Furthermore, it is unclear whether any other party claims rights in these parcels because the Smith Trust and the USA withdrew their objections to this case contingent on Petitioners prevailing over the Sextons claims. Because Petitioners have not obtained title by adverse possession to all of Locus, Petitioners will need to reevaluate their agreements with the Smith Trust and the USA and the parties will need to discuss at a status conference how to proceed with this case.
5. Notice Requirements.
The Sextons allege that based on their claims of record title, over one hundred interested parties have not been noticed in the case and that this court cannot enter a judgment until all such parties have been noticed. The Sextons do not argue that Petitioners or the court failed to follow the notice requirements in registration proceedings under G. L. c. 185, §§ 28, 37 and 38. [Note 61] A title examiner was appointed and identified those people who may have a potential interest in Locus and citation by publication was made and notices were sent to parties named therein.
The Sextons have provided a list of names of persons who may have an interest in Locus; however, citation by publication was made according to the notice requirements for registration proceedings. No provision in G. L. c. 185 requires that a petitioner attempting to register land must locate all persons who may have an interest in the property. In any event, the Sextons list amounts to speculation because the Sextons provide no information about these individuals, their locations or their potential interests and provide no evidence of a diligent search to locate these individuals. See Snow v. E.L. Dauphinais, 13 Mass. App. Ct. 330 , 334 (1982) (rejecting defendants claim in registration case that a party with one-sixth interest had not received notice by registered mail because no diligent search was made for party, there was no indication of where the party resided and statutory requirements for notice, publication and service were met). As a result, I find that the statutory notice requirements have been satisfied.
As a result of the foregoing, as shown on Exhibit A, Petitioners have established adverse possession over Lots 78.1, 80, 81, 81.1, 81.2 and the portions of Lot 82 and Lot 83S that lie south of the boundary line formed by the Iron Pipe Fence. As shown on Exhibit A, Petitioners have not established adverse possession over the Smith Parcel, Lots 169 through 176, Lot 178 and the portions of Lot 82 and Lot 83S that lie northerly of the Iron Pipe Fence.
B. Record Title and Color of Title Claims.
The parties shall attend a status conference on July 11, 2012 at 11:00 AM to discuss how they wish to proceed in this case. [Note 62] In the event that Petitioners wish to go forward, the parties shall submit evidence of record title and color of title claims for the portions of Lots 82, 83S, 169 through 176, 178 and the Smith Parcel to which Petitioners have not obtained title by adverse possession. Based on these results, Petitioners will also need to reevaluate their agreements with the Smith Trust and the USA regarding the respective withdrawals of their objections.
Judgment shall enter after all issues have been resolved.
[Note 1] Robert S. Paine (Paine, Sr.) testified that the Land Steward Trust (the Land Trust) was named as such because of his role as a steward of the land, and that he considered the campground a nature sanctuary.
[Note 2] The Petition has been amended by motion several times. On October 4, 1999, Petitioners moved to amend the Petition to recognize several utility easements. Petitioners re-filed the motion on June 20, 2001 and the Court allowed it on July 18, 2011. On August 4, 2008, Petitioners filed a motion to amend the Petition to clarify that they were not claiming rights in Ramas Way, which the Court allowed on December 22, 2010. On September 16, 2008, Petitioners filed a motion to amend the Petition and the accompanying Plan of Registration. Petitioners sought to deny and eliminate the rights of all others to use all roads, ways, footpaths and cart paths depicted over Locus except for the portion of the Way to Duck Pond that traverses the northwest corner of Locus and to amend the plan of registration to more accurately reflect said right of way as it traverses Locus.
[Note 3] Citation by publication in The Cape Codder was made on February 2, 9, and 16, 2007.
[Note 4] In her Answer, C. Sexton claimed an interest in Lot 83 on Assessors Map 23 (known as 270 Old Kings Highway). Such property is now owned by David Sexton (D. Sexton) and C. Sexton as Trustees of the Parcel 164 Nominee Trust (the Nominee Trust), by deed dated December 21, 2007 from Irving B. Freeman. Albert Schulz filed a Notice of Appearance for C. Sexton on May 2, 2008. On April 27, 2010 this court allowed C. Sextons motion to add D. Sexton and C. Sexton (together, the Sextons), Trustees of the Nominee Trust, as Defendants.
[Note 5] Defendants Thomas and Janet Reinhart (the Reinharts) filed a Notice of Appearance through their attorney Bruce Gilmore, on June 23, 2008, together with a Motion to File Answer Late. The Reinharts objected to Petitioners claimed right to use Ramas Way. Petitioners motion to amend the Petition to clarify that they were not claiming rights in Ramas Way was filed on August 4, 2008 and allowed on December 22, 2010. This motion has never been acted on because the issue has become moot.
[Note 6] In the Case Management Memorandum, C. Sexton claimed that she owned a number of parcels other than Lot 83 that were impacted by the registration.
[Note 7] At a telephone status conference held on November 25, 2008, the discovery deadline was extended to April 30, 2009. At a status conference held on May 19, 2009, at the request of all parties, the discovery deadline was again extended to September 30, 2009.
[Note 8] Because the trial was limited to only adverse possession, title evidence was not included in the record. Therefore, the parties have not addressed the chain of title by which Petitioners came into possession of Locus.
[Note 9] The Sextons argue that Lot 2 actually consists of seventeen parcels and not nine parcels as argued by Petitioners (i.e. that some of those parcels should be broken into sub-parcels), but Petitioners say that this evidence is not relevant and should be disregarded. For the adverse possession component of this case, it makes no difference how many parcels there are because this adverse possession decision deals with all nine parcels and, thus, all the sub-parcels would be included.
[Note 10] The motions in limine have not been acted on, pending the next step in this case. See discussion, infra.
[Note 11] For simplicity and uniformity, the lot numbers on the Assessors Atlas will be used. The lot numbers on the current Assessors Atlas are different than the lot numbers on the earlier version of the Assessors Atlas dated November 2, 1964 that the parties sometimes referenced in their briefs. In the earlier version, Lot 50 corresponds to what is today Lot 83; Lot 51 corresponds to what is today Lot 82; Lots 52, 53, 54 and 55 correspond to what is today Lot 81; Lot 56 corresponds to what is todays Lot 80; and Lots 57 and 58 correspond to what would be today the area of Lot 78.1 and an adjacent lot that is the subject of another case, 99 REG 43286 (Lot 1).
[Note 12] Although the Assessors Atlas shows that the Smith Parcel actually extends further north and south than the northern and southern boundaries of Locus, Petitioners seek to register title only to the portion of the Smith Parcel that lies between the northern boundary of Lot 83 and the southern boundary of Lot 78.1.
[Note 13] It appears that the parties assume that the extension lots are simply part of their corresponding lots on the other side of the Smith Parcel even though the extension lots have been delineated on the Assessors Atlas as separate lots. For adverse possession purposes, this issue is not important.
[Note 14] Freeman previously owned Lot 82, having received it from his mother Ella Freeman. Freeman and the Sextons both claimed an interest in Lot 83, and in the early 1990s they reached an agreement whereby both parties paid half of the taxes on Lot 83. By deed dated December 21, 2007, Freeman conveyed Lot 82 and Freemans half interest in Lot 83 to the Sextons.
[Note 15] On October 13, 2009, the Sextons submitted supplemental answers to Petitioners interrogatories in which the Sextons included Lot 80 in the list of lots to which they claimed to hold a property interest; however, the Sextons never asserted an interest in Lot 80 in any pleadings.
[Note 16] In the Case Management Memorandum, the Sextons claimed record title to Lots 82 and 83 and Lots 169 and 170. In their motion to file an amended answer and their Amended Answer, however, the Sextons did not specifically claim record title to Lots 169, 170, 171, 172, 173, 174 or 175 (i.e. the extension portions of Lots 83, 82, 81, 81.1 and 81.2).
[Note 17] In 1968, Paine, Sr. retired from teaching and he and C. Paine began operating the Campground as their full-time jobs both during the season and in the off-season when they performed maintenance and other tasks.
[Note 18] All Sites referred to are campsites as they are shown on plan entitled Plan of Land in Wellfleet, MA prepared for Robert Paine, prepared by Schofield Brothers of Cape Cod and dated May 6, 2010 (the 2010 Plan).
[Note 19] The 2010 Plan shows the current location of the Dwelling as the area labeled DWELLING. While testifying, Paine Wallace drew on the 2010 Plan the approximate locations of where the school bus, green trailer and white trailer each stood.
[Note 20] I. Paine lived in the Dwelling beginning in 1975. A worker for the Paines named John Fowler then lived in the Dwelling, after which Paine, Sr. and C. Paine lived in the Dwelling.
[Note 21] The Main Road is shown on the 2010 Plan as the Dirt Road going east from the Parking Lot and the Gate (as hereinafter defined).
[Note 22] Sites 17 to 23 and C1 to C15, all on the southern side of the Main Road, were created by the mid-1960s. The Parking Lot, Office, school bus and Sites C31 C51, all on the northern side of the Main Road were on the Campground by the mid-to-late 1960s.
[Note 23] This includes Sites C6A, DJ, Z, A, WP, B, AA, BB, CC, D, G, F and B as shown on the 2010 Plan.
[Note 24] This northeast corner of Locus contains Sites C53, C52 (mislabeled on the 2010 Plan as a duplicate site C53), C56, C49 and C50.
[Note 25] The loop of sites from Site C14 to C14K to C14Y and the roadway between them were installed in the southeast corner.
[Note 26] A fire ring is an old tire or rim from a truck placed on the ground as a site for a fire.
[Note 27] When testifying, Paine Wallace drew a yellow circle on the 2010 Plan to depict the Corrals location.
[Note 28] Some people called this road Ponderosa.
[Note 29] This area is depicted with a cross-hatched circle on the 2010 Plan.
[Note 30] The chain-link fencing on Locus northern boundary runs from the point where Lot 169 meets the Seashore westerly across the northern boundaries of Lot 169 and the Smith Parcel and for a short portion of Lot 83s northern boundary. Paine Jr. testified that he stopped fencing Locus northern boundary because of objections from the owners of the Smith Parcel.
[Note 31] Although the 1992 Plan may contain some differences from the 2010 Plan, the 2010 Plan depicts iron pipes in positions that are consistent with the way the 1992 Plan marks the boundary of the Iron Pipe Fence.
[Note 32] These are Sites P3 through P9, C72, C70, C69, C68, C66, C64, C64A, C64B, C64C, C62, C61, C56, C52, C53 and C50.
[Note 33] It is unclear what interest Kenneth Van Buren had in this property or how he acquired any such interest.
[Note 34] There was no evidence of any response to this letter entered at trial.
[Note 35] Paine, Sr. and C. Paine would occasionally allow campers to stay in exchange for labor, see supra.
[Note 36] The Paines observe cars as they enter the Campground, stop cars that do not have a registration pass or sticker and inform drivers that they must register and pay to enter the Campground.
[Note 37] According to the Town of Wellfleet Assessors Database, Lots 169 and 178 have been assessed to the Town of Wellfleet since 2002. Lots 170 through 176 are assessed to Paine, Jr.
[Note 38] An error on the 2010 Plan shows two adjacent campsites numbered as C53. Richards stayed on the northern Site C53.
[Note 39] Richards testified that in 1969 there were sites along the Main Road, a cement toilet building, the Office, a trailer, school bus, well, pump house and approximately 100 campsites on the Campground.
[Note 40] As shown on the 2010 Plan, Duck Pond Road runs east from Old Kings Highway, through the northern half of Lot 83 (north of Locus recall that Locus encompasses only the southern half of Lot 83), then turns south and intersects with the northern boundary of Locus, then runs east until turning in a northeastern direction and again intersecting with the northern boundary of Locus as it proceeds towards Duck Pond, which is northeast of Locus.
[Note 41] Freeman is unaware of any response from Paine, Sr. regarding this letter.
[Note 42] Paine, Sr. appears never to have responded to this letter.
[Note 43] This is Land Court case 92 REG 42882. The docket for this case indicates no activity since the filing.
[Note 44] This is Land Court case 01 MISC 270045. The docket for this case indicates that the case has been stayed because Freemans claims would be pursued in the context of the present case.
[Note 45] See also Wiggin v. Kimball, 72 Mass. App. Ct. 1107 (2008) (Rule 1:28 Opinion).
[Note 46] Specifically, the court noted that the activities alleged by Bigelow (building a henhouse, discouraging trespassers and holding family picnics) were sufficient to establish actual use in other cases because the activities were coupled with activities showing dominion and control. See Collins v. Cabral, 348 Mass. 797 , 798 (1965) (in addition to being a site for picnics, disputed area was used to grow fruit and rhubarb harvested each year, was mowed and used as a play area for children, was the site for a septic tank and was filled, graded and seeded and used as part of a regularly maintained lawn); Lyon v. Parkinson, 330 Mass. 374 , 380 (1953) (in addition to discouraging trespassers, adverse possessor cleared land of stumps, brush and rocks, created a rock garden and a rip-rap wall to prevent erosion from a nearby lake, brought loam and fertilizer to make a lawn of two-thirds of disputed area and maintained garden and lawn every summer); LaChance, 301 Mass. at 490-91(in addition to building a hen coop, adverse possessor had removed old fence and filled in disputed area and erected a stone wall); Lebel, 29 Mass. App. Ct. at 301 (in addition to holding family picnics on disputed area, adverse possessor cleared brushed, maintained a lawn, maintained a compost pile, stored boats and parked cars, constructed and extended a wooden sea wall as well as other structures); Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979) (in addition to placing chicken coops on disputed area, adverse possessor used front portion for parking, back portion as a lawn behind which lay shrubs, trees and bushes and added fence to area).
[Note 47] Petitioners have not simply ignored Locus wooded portions, but have maintained them, for example, by removing dead trees as needed.
[Note 48] These sites include Sites C6A, DJ, Z, A, WP, B, AA, BB, CC, D, G, F and B as shown on the 2010 Plan.
[Note 49] As shown on the 2010 Plan, these sites include Sites C53, C52, C56, C49 and C50.
[Note 50] As shown on the 2010 Plan, these sites include Sites 17 through 23, Sites C1 through C15, Sites C31 through C51 and the loop of sites from Site C14 through C14K through C14Y.
[Note 51] There would be no need for Petitioners to fence in the southerly boundary of Lot 80 and the northerly boundary of Lot 81 because the Campground extends on to lots to the north and south, i.e. Lot 82 and Lot 78.1. The Iron Pipe Fence on Lots 82 and 83S provided similar notice of the use of Locus along its northerly boundary.
[Note 52] Although in a supplemental answer to Petitioners interrogatories the Sextons did claim to hold a property interest in Lot 80, the Sextons have not asserted such an interest in any pleadings.
[Note 53] Lot 78.1s eastern boundary is not fenced because it borders the Smith Parcel and Petitioners also claim the Smith Parcel as part of the Campground; however, chain-fencing runs along the eastern boundary of Lot 178, which would be the extension of Lot 78.1. See footnote 13.
[Note 54] The 2010 Plan indicates that there are some portions of Lot 78.1 that do not have campsites; however, the 2010 Plan depicts a dirt road on Lot 78.1 that goes southwest and ends at Lot 78.1s southern boundary, and a trail that extends toward the Lot 78.1s eastern boundary that ends in a small circle denoted BU. Moreover, Lot 78.1 is enclosed by fences dating to 1999 and 2003 on three sides (the fourth side is the interior of the Campground). It appears that no party, including the Sextons and abutters to Lot 78.1, claims any interest in Lot 78.1. As discussed, supra, in 2003 Petitioners enclosed Lot 78.1 and abutting lots in chain-link fencing to the exclusion of others and there is no evidence that any other party has used Lot 78.1 in the past twenty years.
[Note 55] These are Sites P3 through P9, C72, C70, C69, C68, C66, C64, C64A, C64B, C64C, C62, C61, C56, C52, C53 and C50.
[Note 56] The 2010 Plan depicts a path extending from the northern portion of Lot 83 down to Lot 83S and ending on Lot 82 as well as another path and dirt road on Lot 83S. There was no testimony or explanation as to the use of these paths or the dirt road as part of the Campground.
[Note 57] Freeman testified that in the early 1990s he observed a shed, tents, and tables over the property line of Lot 82; D. Sexton testified that several years ago he saw clearings in the northeast of Locus bordering the southeastern boundary of Lot 82, but was not sure if they crossed over into Lot 82, and that four years ago he noticed some cut trees and signs on Lot 82; Kevin Sexton testified that he observed clearings on Lot 82 five years ago. Freeman, D. Sexton, and Kevin Sexton testified that they had not noticed any clearings, signs, or tables on Lots 82 or 83S prior to these observations. As discussed, supra, the area north of the Iron Pipe Fence, where there are no campsites, is not contained in the portion of Locus that this court has determined that Petitioners have obtained by adverse possession.
[Note 58] See Wiggin v. Kimball, 72 Mass. App. Ct. 1107 (2008) (Rule 1:28 Decision) (partys testimony that he saw no evidence of land clearing or construction was weakened because in observing the property he never left his car, which was on a road skirting the propertys perimeter, and testified that his only recollection was that the he didnt remember any clearing at that point in time on the segment of property that he was interested in when that area was not an area that the other party had claimed they had cleared).
[Note 59] Richards offered unrebutted testimony that he stayed on Site C53 in 1969, which shows that this site and neighboring sites were indeed created by at least 1969.
[Note 60] An argument could be made that Petitioners adverse possession of Lot 82 was interrupted only in 2009 because the Sextons did not assert an interest in Lot 82 until September 24, 2009, in their motion to amend their complaint. In any event, whether Petitioners adverse possession of Lot 82 was interrupted in 2001 or 2009 makes no difference, as discussed, infra.
[Note 61] Under G. L. c. 185 § 28, petition to register land must state the names and addresses of the adjoining owners and occupants, if known; and if not known, it shall state what search has been made to find them. G. L. c. 185 § 37 requires that the court appoint a title examiner to investigate the petition, concluding with a certificate of his opinion upon title. G. L. c. 185 § 38 requires that the recorder shall cause notice of the filing of the [petition] to be published in a newspaper published in the district where any part of the land lies.
[Note 62] This is the same date and time that the parties are scheduled to attend a pre-trial conference in the case regarding the registration petition for Lot 1 (99 REG 43286).