SHERIFF'S MEADOW FOUNDATION, INC. vs. BENJAMIN W. RAMSEY and NISA M. COUNTER.

Plaintiff filed its Verified Complaint on August 9, 2011, pursuant to G. L. c. 185 and G. L. c. 231A, seeking a declaratory judgment relative to the ownership of a parcel of land located at 36 Blue Barque Road in Chilmark, Massachusetts (the “Disputed Parcel”), shown on a plan titled “Plan of Land In Chilmark, Mass. Prepared For Sheriff’s Meadow Foundation” dated October 1, 2011, and prepared by Schofield, Barbini & Hoehn Inc., (the “2011 Plan”), as Assessor’s Map 17, Parcel 65 and containing approximately 12.4 acres. [Note 1] The 2011 Plan depicts the Disputed Parcel as a backwards letter L, bounded by Blue Barque Road to the south, and Quenames Road to the east. To the west and north the 2011 Plan shows the Disputed Parcel abutted by five parcels (Owner Unknown Assessor’s Parcel 17-50, Robert & Rona Kiley Assessor’s Parcel 17-64, Paul Pettegrove Assessor’s Parcel 17-68, Thomas Herget, Trustee Assessor’s Parcel 17-51 and Bridget Montgomery & Michael Spangler Assessor’s Parcel 17-20). On the same day Plaintiff filed a motion for a temporary restraining order and a motion for lis pendens. A hearing on the motion for TRO was held ex-parte on August 9, 2011, and allowed (Scheier, J), restraining Defendants Benjamin W. Ramsey (“Ramsey”) and Nisa M. Counter (together, “Defendants”) from any cutting or construction activity on the Disputed Parcel. A hearing on the motion for preliminary injunction was held on August 18, 2011, and an Order was issued on August 19, 2011 (the “2011 Injunction”) allowing the motion for preliminary injunction in part, restraining Defendants “from any further cutting, clearing, burning, construction activity or testing on the Disputed Parcel,” but allowing Defendants to use the existing tent and parked trailers located on the Disputed Parcel for temporary recreational purposes. Defendants filed their Answer on September 22, 2011. A case management conference was held on October 6, 2011. A pre-trial conference was held on August 8, 2012. The trial scheduled for October 29 - 30, 2012 was postponed because of Hurricane Sandy. A site view and the first day of trial at the Edgartown Town Hall were held on April 25, 2013. The second day of trial at the Edgartown Town Hall was held on April 26, 2013. Plaintiff filed its post-trial memorandum on July 23, 2013. Defendants filed their post-trial brief on July 26, 2013, and at that time the matter was taken under advisement.

Testimony at trial was given for Plaintiff by Douglas Hoehn, a professional land surveyor (“Hoehn”) and Martin Lauria, an attorney (“Lauria”). Testimony for Defendants was given by Ramsey. There were thirty-five exhibits submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

A. Plaintiff ‘s Chain of Title

1. Zacchariah Mayhew conveyed a large tract of land in Chilmark, Massachusetts (which included the Disputed Parcel) to Jonathan Mayhew by deed dated November 23, 1805, and recorded with the Dukes County Registry of Deeds (the “Registry”) in Book 15, Page 130.

2. Jonathan Mayhew died on December 17, 1805, devising this property to his two sons, Jonathan Mayhew (“Jonathan”) and Gilbert Mayhew (“Gilbert”).

3. Thereafter Jonathan and Gilbert executed an instrument dated and acknowledged April 29, 1826, and recorded with the Registry in Book 22, Page 431, (the “1826 Agreement”) dividing the property along a line extending north to south (the “Old Line”), with Gilbert holding fee title to the lands lying west of the Old Line and Jonathan holding title to the lands to the east of the Old Line. The Disputed Parcel was bisected by the Old Line with Gilbert holding title to the western portion, and Jonathan the eastern portion. [Note 2]

4. Gilbert made a series of conveyances from his parcel to Calvin Adams, Harrison Mayhew and Moses Mayhew, thereby reducing his holdings. However, the majority of his lands to the west of the Old Line (including his interest in the Disputed Parcel) were conveyed to Samuel Hancock (“Samuel”) by deed dated April 15, 1828, and recorded with the Registry in Book 23, Page 170, (the “1828 Deed”).

5. Samuel also obtained title to the lands east of the Old Line from the heirs of Jonathan by deed dated January 10, 1837, and recorded with the Registry in Book 26, Page 182 (the “1837 Deed”), thus unifying the parcels into one singular, albeit smaller, tract again (which included all of the Disputed Parcel).

6. Samuel died intestate in 1849, leaving the tract to his three children, Samuel T. Hancock, Cassandra Adams and Cyrus Hancock. Cassandra Adams and Cyrus Hancock subsequently conveyed their holdings to Samuel T. Hancock.

7. Samuel T. Hancock died on February 17, 1866, and devised the tract to his two sons Freeman Hancock (“Freeman”) and Russell Hancock (“Russell”).

8. Freeman and Russell divided the land by instrument dated January 30, 1873 (the “1873 Agreement”), recorded with the Registry in Book 56, Page 163. While reference was made to the Old Line in the 1873 Agreement, a different scheme of division was used resulting in nine different parcels, including the Disputed Parcel. The Disputed Parcel is shown as Parcel VII on a plan prepared by Hoehn depicting the 1873 Agreement as nine color coded parcels (“Chalk A”).

9. As a part of the 1873 Agreement, the Disputed Parcel was conveyed to Freeman [Note 3]:

“Also all the south part of the wood lot to the west of the Quenames road including the orchard in the woods.”(“Parcel VII”). [Note 4]

10. The Disputed Parcel, among other parcels, was transferred through the laws of intestacy from Freeman to his son Dana Hancock in 1904. These parcels were then transferred through the laws of intestacy from Dana Hancock to his widow, Louisa Hancock in 1937. These parcels were then transferred through the laws of intestacy from Louisa Hancock to her daughter Priscilla Hancock (“Priscilla”) in 1940.

11. Priscilla, by deed dated November 23, 1962, and recorded with the Registry in Book 246, Page 585 (the “1962 Deed”), conveyed the Disputed Parcel to C. Russell Walton (“Walton”). The Disputed Parcel is described in the 1962 Deed as follows:

“[Parcel VII]: The premises described as the south part of the wood lot to the west of Quenames Road, including the orchard in the woods described in the partition agreement between Freeman and Russell Hancock recorded with Dukes County Deeds, Book 56, Page 163.”

12. Walton conveyed the Disputed Parcel to Plaintiff by deed dated April 25, 1973, and recorded with the Registry in Book 307, Page 349 (the “1973 Deed”).

A. Defendants’ Chain of Title

13. Herbert R. Hancock (“Herbert”) died on April 26, 2001. A parcel referred to as “36 Blue Barque Road, Chilmark, MA: the land located in Chilmark, Massachusetts, more particularly shown as Assessor’s Map 17, Parcel 65 on file for Fiscal Year 2001 in the Office of the Chilmark Board of Assessors,” which comprises the western three acres of the Disputed Parcel (the “Three Acres”), was included in the Dukes County Probate Inventory (the “Probate Inventory”) for Herbert, Probate No. 01-P-0072-EP-1 dated January 9, 2004. The value as of death is listed as $0. No further description of this property was provided. There is no evidence as to how Herbert obtained title to the Three Acres.

14. Wilma G. Hancock (“Wilma”), Herbert’s widow, purported to convey the Three Acres to Defendants by deed dated August 5, 2010, and recorded with the Registry in Book 1218, Page 577 (the “2010 Deed”). The legal description of the Three Acres pursuant to the 2010 Deed is as follows:

“Northeasterly by land now or formerly of Robert R. Kiley and Rona S. Kiley, Four Hundred Ninety-eight (498’ +/-) feet, more or less; Easterly by land now or formerly of Sheriff’s Meadow Foundation, Inc., Three Hundred Three (303’ +/-) Feet, more or less; Southwesterly by Blue Barque Road, Three Hundred Eighty-six (386’ +/-) Feet, more or less; and Westerly by land now or formerly Georgia Ellis Ireland et al, Four hundred Fifty-eight (458’ +/-) Feet, more or less.”

There is no deed, prior to the 2010 Deed, describing or separating the Three Acres from the Disputed Parcel.

15. At the time of the 2010 Deed, all land owned by Wilma (or Herbert) had already been conveyed away in the area.

a. Herbert conveyed Assessor’s Parcel 17-53 shown on the 2011 Plan (“Parcel II”) to Deborah Hancock by deed dated October 29, 1982, recorded in the Registry in Book 395 at Page 862.

b. Wilma conveyed Assessor’s Parcel 17-20 shown on the 2011 Plan (“Parcel III”) to Bridget Montgomery and Michael Spangler by deed dated December 5, 2003, recorded in the Registry in Book 981, at Page 0196.

c. Wilma conveyed Assessor’s Parcel 17-(21-1) shown on the 2011 Plan (“Parcel IV”) to George Rivera and Robin S. Rivera by deed dated October 21, 2004, recorded in the Registry in Book 1022, at Page 1089.

B. Expert Testimony

16. Hoehn, Plaintiff’s Surveyor, testified as an expert in the field of land surveying. Hoehn used both his knowledge of surveying and his experience construing deeds to create Chalk A, which illustrates land conveyed through the 1873 Agreement. The Disputed Parcel (Parcel VII) is one of two parcels that were described as wooded in the 1873 Agreement. As such, Hoehn concluded that the Disputed Parcel is the southern half of the larger wood lot (together with Parcel III, the “Wood Lot”). Because the 1873 Agreement does not provide a metes and bounds description of the various parcels, Hoehn determined their boundaries by reference to several deeds in the vicinity of the Disputed Parcel, as well as prior survey work. [Note 5] Starting at the intersection of Quenames and Quonsoo Roads, Hoehn proceeded southward by the courses and distances listed in the 1873 Agreement to find the line that divides the Wood Lot into two. Hoehn then plotted the boundaries of the Disputed Parcel using the various plans of the abutting parcels with property corner monumentation. A key monument relied upon by Hoehn in concluding that the course of the southern boundary of the Disputed Parcel follows Blue Barque Road was a 3-cornered Rock (the “3-Cornered Rock”). Hoehn concluded that this monument, at the edge of the woods abutting Blue Barque Road, is the same monument referred to in the 1873 Agreement as the “Stake and Stones.” [Note 6] Hoehn substantiated this conclusion by analyzing prior deeds, the 1826 Agreement, and the 1828 Deed, for references to the same monument. Specifically the 1826 Agreement stated the following:

“Beginning on the Northeasterly part thereof at a Stake & Stones standing in the woods on the line which separates said Land from Lands belonging to the heirs of Jonathan Mayhew late of said Chilmark deceased, from thence South one degrees West eighteen and one fourth rods to a Stake and stones standing on cleared Land, thence South eleven degrees West fifty and one fourth rods to a Stake and Stones standing in the middle of an old field.”

A similar description was given in the 1828 Deed to Samuel Hancock:

“I do hereby acknowledge, do give, grant, sell & convey unto the said Samuel his heirs and assigns forever the following tracts of Land, namely, one tract situated in said Chilmark at a place called Quenaimes and is thus bounded, beginning on the Northeasterly part thereof at a Stake & Stones standing in the woods on the line which separates said Land from Lands belonging to the heirs of Jonathan Mayhew late of said Chilmark deceased.”

The 3-Cornered Rock is depicted on several other plans of record, including the 1983 Plan. Hoehn also determined the course by analyzing the 1956 Plan. The 1956 Plan shows the area south of Blue Barque Road, with Blue Barque Road marked as the “traveled way.” This was helpful to establish the southern boundary of the parcel and the ownership of the parcels in the area. Hoehn noted that the 1873 Agreement’s conveyance of Parcel VI, which abuts the Disputed Parcel to the south, to Freeman places the boundary “north abreast of the dwelling house of Samuel Allen.” This indicated to Hoehn that the woods are also located near Samuel Allen’s property. Hoehn examined Plaintiff’s chain of title, and found that the description of the Disputed Parcel in the 1962 Deed is essentially the same description as contained in the 1873 Agreement. Hoehn also examined the 2010 Chilmark Assessor’s Map (the “2010 Map”) and concluded that it was incomplete. The map was intentionally left blank by the assessor in areas where the documents provided unclear bearings and distances. This incomplete map was made available to the public to allow individuals to provide further information on the boundaries. As a result, the fact that the Three Acres is depicted on the 2010 Map within the Disputed Parcel cannot be accepted as proof of its legal existence.

17. Lauria, an expert title examiner, testified regarding the boundaries of the Disputed Parcel, as well as Plaintiff’s chain of title. Lauria examined titles in the vicinity of the Disputed Parcel and determined that Freeman did not deed out any of the land that he received in the 1873 Agreement. He died intestate in 1904 and title to his property passed to his son Dana Hancock. Dana Hancock died intestate in 1937, leaving a widow, Louisa Hancock, and a daughter Priscilla. Louisa Hancock died intestate in 1940, and her property passed to Priscilla. Therefore Priscilla held whatever interest Freeman had at the time of his death. Lauria also suggested that the 1826 Agreement, read in conjunction with the 1828 Deed, and 1873 Agreement, indicates that the 3-Cornered Rock was standing on cleared land. The cleared land would be Parcels VI and II, abutting the Disputed Parcel to the south. This conclusion is consonant with Hoehn’s determination of the Disputed Parcel’s boundary. At the time of the 2010 Deed, all of the property in the area owned by Herbert at his death had been conveyed out by Wilma.

a. Defendants’ Use of Disputed Parcel

18. Defendants have been in possession of the Three Acres since 2010. A tenting permit was obtained in the summer of 2010 and a platform was constructed shortly thereafter. The 2011 Injunction circumscribed Defendants’ activity upon the Three Acres to using the tent and trailers parked on the property prior to the 2011 Injunction.

19. No enclosure was made around the Three Acres, and no structures were erected thereon until Defendants obtained a tenting permit.

20. Taxes were paid on assessor’s parcel 017-065-00, consisting of one acre within the Three Acres, by Herbert and his first wife Jean F. Hancock (“Jean”) from fiscal year 1982 until fiscal year 1984, for a total of $97.42, by Herbert from fiscal year 1985 until fiscal year 2004, for a total of $6,646.75, and by Wilma from fiscal year 2005 until fiscal year 2010, for a total of $6,129.37. Defendants paid fiscal year 2010’s taxes on behalf of Wilma. The total amount paid for real estate taxes by all parties in Defendants’ chain of title is $12,873.54. Plaintiff did not submit tax records into evidence. [Note 7]

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Plaintiff argues that it has fee title to the entire Disputed Parcel. Defendants argue that they have fee title in the Three Acres but concede fee title in the balance of the Disputed Parcel to Plaintiff. Defendants also argue adverse possession relative to the Three Acres. I shall examine each issue in turn.

A. Fee Simple Title

The first issue before the court is whether Plaintiff has title to the entire Disputed Parcel, a portion of which is claimed by Defendants as their Three Acres. “[P]laintiff has the burden of establishing its title and not simply by demonstrating the weaknesses or nonexistence of [D]efendants’ title. [P]laintiff's burden requires [P]laintiff not merely to demonstrate better title to the locus than [D]efendants possess, but requires [P]laintiff to prove sufficient title to succeed in its action.” Sheriff’s Meadow Found., Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987), quoting Butrick v. Tilton, 141 Mass. 93 , 96 (1886). The chain of title to the Disputed Parcel begins with Zacchariah Mayhew who conveyed a large tract of land in Chilmark, Massachusetts (which included the Disputed Parcel) to Jonathan Mayhew by deed dated November 23, 1805, and recorded with the Registry in Book 15, Page 130. Jonathan Mayhew died on December 17, 1805, devising this property to his two sons, Jonathan and Gilbert. Thereafter Jonathan and Gilbert executed the 1826 Agreement, dividing the tract along the Old Line with Gilbert holding fee title to the lands lying west of the Old Line and Jonathan holding title to the lands to the east of the Old Line. [Note 8] The Old Line ran through the middle of the Disputed Parcel. [Note 9] The Old Line was identified by Hoehn as running through a present day monument, the 3-Cornered Rock. [Note 10] Gilbert conveyed the majority of his lands to the west of the Old Line to Samuel in the 1828 Deed. Samuel also obtained title to the lands east of the Old Line from the heirs of Jonathan by the 1837 Deed, thus unifying the parcels into one singular, albeit smaller, tract again including the Disputed Parcel. Samuel died intestate in 1849, leaving the tract to his three children, Samuel T. Hancock, Cassandra Adams and Cyrus Hancock. Cassandra Adams and Cyrus Hancock subsequently conveyed their holdings to Samuel T. Hancock. Samuel T. Hancock died on February 17, 1866, and devised the tract to his two sons Freeman and Russell. Freeman and Russell subsequently divided the tract pursuant to the 1873 Agreement. While reference was made to the Old Line in the 1873 Agreement, a different scheme of division was used, resulting in nine different parcels, including the Disputed Parcel as one parcel (Parcel VII). The Disputed Parcel is described in the 1873 Agreement as “all the south part of the wood lot to the west of the Quenames road including the orchard in the woods.” Pursuant to the 1873 Agreement the Disputed Parcel, together with four other parcels were conveyed to Freeman. This land was eventually inherited from Freeman by Priscilla. [Note 11] Priscilla conveyed the Disputed Parcel to Walton by the 1962 Deed. At trial, Plaintiff’s expert Hoehn, a land surveyor, provided testimony regarding the 1962 Deed.

A: This is a deed from Priscilla Hancock to C. Russell Walton, and there are three parcels in it. The third one is? [Parcel VII].

Q: And is that essentially the same description as contained in the [1873 Agreement]?

A: Correct, that’s—yes, that’s true.

Q: Now how did you determine that [the 1862 Deed] contained the [Disputed Parcel]?

A: Well, it’s the identical description—you mean [the Disputed Parcel] is locus. That’s the identical description that’s in the [1873 Agreement].

1873 Agreement

“Also all the south part of the wood lot to the west of the Quenames road including the orchard in the woods.”

1962 Deed

“[Parcel VII]: The premises described as the south part of the wood lot to the west of Quenames Road, including the orchard in the woods described in [1873 Agreement]”

Defendants do not dispute the accuracy of Plaintiff’s chain of title. Instead Defendants’ argument rests upon a purported ambiguity in the 1873 Agreement’s description of the Disputed Parcel. Ramsey testified at trial as follows:

[W]e don’t expect that [the Disputed Parcel] was left to Russell. I’m not making a title argument in that way. And obviously there is no chain of title to Russell to [the Disputed Parcel]. But what I saw that there was some unclarity [sic] in Priscilla as to what she had been conveyed through the number of steps it had taken to get from Freeman down to Priscilla and the responsibility she had in conveying those properties. So in this unclarity [sic] and there’s sort of an asterisk at the bottom of [the 1962 Deed], I could see that [the Three Acres], this parcel that’s still undefined in the tax maps could certainly fall in that category.

In essence Defendants argue that it is unclear what “all the south part of the wood lot to the west of the Quenames road including the orchard in the woods,” means. As such, they argue, it is possible the Three Acres was either not included within the conveyance to Freeman per the 1873 Agreement, or within the conveyance to Walton per the 1962 Deed. The record before this court, however, is insufficient to support such a premise.

“When the description in a deed or devise is clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.” Panikowski v. Giroux, 272 Mass. 580 , 583 (1930), quoting Cook v. Babcock, 61 Mass. 526 , 528 (1851). “Rules of deed construction provide a hierarchy of priorities for interpreting descriptions in a deed. Descriptions that refer to monuments control over those that use courses and distances; descriptions that refer to courses and distances control over those that use area; and descriptions by area seldom are a controlling factor.” Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). “When presented with expert surveying and title testimony, a court must assess the opinions offered. The court must decide which surveyor and title expert it finds more credible, basing such assessment on the experts’ analyses, taking into account the other evidence presented, including the documentary evidence, particularly the deeds and plans that lend support and corroboration to each opinion.” Lombard v. Cook, 20 LCR 325 , 327 (2012). “Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.” Ellis v. Ashwood, 19 LCR 520 , 523 (2011), quoting Bacon v. Onset Bay Grove Ass'n., 241 Mass. 417 , 423 (1922).

“[O]ne who grants title to property to a second person can grant no more interest than what is owned.” Ellis, 19 LCR 520 at 523, quoting Curtis M. Brown, Walter G. Robillard, Donald A. Wilson, Brown's Boundary Control and Legal Principles § 3.1 at 33 (4th ed., 1995). On the issue of the boundary of the Disputed Parcel, there are two deeds requiring consideration, the 1873 Agreement and the 2010 Deed. By the very terms of the 1873 Agreement, Freeman and Russell “agreed to make division of all said tracts of land which lie to the north of the lower meadow fence as it now stands.” Furthermore, Russell conveyed to Freeman “all the south part of the wood lot.” If “all” is given its plain meaning, then upon execution of the 1873 Agreement, there were no lands left un-described and un-conveyed by the brothers. Furthermore there were no parts of the Wood Lot that were left out of this conveyance.

Wilma purported to convey a part of the Wood Lot as the Three Acres to Defendants by the 2010 Deed. The legal description of the Three Acres pursuant to the 2010 Deed is as follows:

Northeasterly by land now or formerly of Robert R. Kiley and Rona S. Kiley, Four Hundred Ninety-eight (498’ +/-) feet, more or less; Easterly by land now or formerly of Sheriff’s Meadow Foundation, Inc., Three Hundred Three (303’ +/-) Feet, more or less; Southwesterly by Blue Barque Road, Three Hundred Eighty-six (386’ +/-) Feet, more or less; and Westerly by land now or formerly Georgia Ellis Ireland et al, Four hundred Fifty-eight (458’ +/-) Feet, more or less.

There are no deeds prior to the 2010 Deed, describing or separating the Three Acres from the Disputed Parcel or any of the other parcels in the 1873 Agreement. Nor are there any plans or other documents of record corroborating its existence. In short, if the Three Acres exists, then it must exist as a part of, and not apart from, one of the nine parcels described within the 1873 Agreement. That is to say, the boundaries defined in the 1873 Agreement are static and as such, the Three Acres was deeded to either Freeman or Russell by the 1873 deed. It is the task of this court to determine which parcel the Three Acres is a part of, and who holds title to it.

The Three Acres is described in the 2010 Deed as being bounded by Blue Barque Road on its southern side. Thus, in order for the Three Acres to fall within the Disputed Parcel, the Disputed Parcel’s southern boundary must be at Blue Barque Road or further south. Pursuant to the established hierarchy of deed interpretation, monuments are controlling where possible. Per the 1873 Agreement, the southern boundary of the Disputed Parcel is shared with two other parcels, Parcel VI and Parcel II. These parcels, in turn, use a single monument to indicate the precise location of that boundary: the Stake and Stones. First, the Stake and Stones are referenced as the boundary of the abutting field conveyed to Russell in the 1873 Agreement, Parcel II. Specifically the conveyance is as follows:

Also the eastern part of the North Field, so called, the division line to commence at the southwest corner of Ann F. Hancock, thence westerly on a straight line with the south side of the said Ann F. Hancock’s land, twenty one and three fourths rods, to and old ridge: thence Northerly by said old ridge, fifty and one half rods, to a stake and stones standing by the edge of the woods; thence Easterly, by the edge of the woods on a straight line to land of Samuel L. Allen, near his dwelling house; thence Southerly by said Allen’s land and land of Ann F. Hancock to place of beginning. (Emphasis Added).

From this conveyance several things are clear. First, the parcel deeded to Russell is a field, as opposed to woods. Second, there is a monument, a stake and stones, separating the woods from the field. Third, the boundary between Russell’s field and the woods is a straight line. The Stake and Stones are also mentioned in the 1826 Agreement.

Beginning on the Northeasterly part thereof at a Stake & Stones standing in the woods on the line which separates said Land from Lands belonging to the heirs of Jonathan Mayhew late of said Chilmark deceased, from thence South one degrees West eighteen and one fourth rods to a Stake and stones standing on cleared Land, thence South eleven degrees West fifty and one fourth rods to a Stake and Stones standing in the middle of an old field.

The Stake and Stones are also mentioned in the 1828 Deed.

I do hereby acknowledge, do give, grant, sell & convey unto the said Samuel his heirs and assigns forever the following tracts of Land, namely, one tract situated in said Chilmark at a place called Quenaimes and is thus bounded, beginning on the Northeasterly part thereof at a Stake & Stones standing in the woods on the line which separates said Land from Lands belonging to the heirs of Jonathan Mayhew late of said Chilmark deceased.

From this conveyance it is clear there is a monument separating a field from the woods. It is also clear, given that this deed predates the 1873 Agreement, that this boundary line between the woods and the fields is well established. The woods are again referenced in the 1873 Agreement, this time as the northern boundary of Parcel VI conveyed to Freeman. [Note 12]

And I, the said Russell, do hereby set off, make over convey and confirm unto the said Freeman his heirs, executors, administrators, and assigns forever all that tract of land laying to the westward of the first two mentioned division lines, said tract of land extending from the lower meadow fence to the woods at the North abrest [sic] of the dwelling house of Samuel L. Allen. (Emphasis added).

It is Hoehn’s opinion that based on the documents of record, and field work, the Stake and Stones monument is synonymous with the 3-Cornered Rock that stands today at the edge of the woods. Specifically on cross-examination Hoehn testified with regards to the 1873 Agreement that “[Freeman and Russell] go westerly 21 ¾ rods to an old ridge, northerly by the ridge 15 ½ rods to a stake and stones by the edge of the woods, which is we think, we walked there, to the 3-cornered rock.”

From the foregoing it is clear that the woods making up the Disputed Parcel extended at least to the 3-Cornered Rock. The 3-Cornered Rock corresponds with modern day Blue Barque Road, as depicted on the 1956 Plan, and 1983 Plan. [Note 13] No woods existed south of the 3-Cornered Rock, which is to say that no woods existed south of Blue Barque Road. The Three Acres is itself woods, bounded by Blue Barque Road. Therefore, the Three Acres must necessarily be within the Disputed Parcel. [Note 14] No instrument of record was proffered by Defendants supporting a finding that the Three Acres was separated from the Disputed Parcel, or subsequently conveyed to Russell. Thus the Three Acres is owned by Plaintiff as a part of the Disputed Parcel.

Defendants argue that the southern boundary of the Wood Lot should be determined by reference to buildings on the property of another abutting parcel to the east, by pointing to the following language in the 1873 Agreement: “the woods at the North abrest [sic] of the dwelling house of Samuel L. Allen.” Defendants argue that if the woods are literally abreast of the structures on the abutting parcel they would lie further to the north. Defendants’ argument is problematic for several reasons. First, Defendants’ proposition ignores the rules of deed construction that give monuments hierarchy over other descriptions. A monument may be either natural or artificial, and “a call for natural or artificial monuments trumps a call for direction, distance or area,” Bernier v. Fredett, 20 LCR 363 (2012), quoting Curtis M. Brown, Walter G. Robillard, Donald A. Wilson, Brown's Boundary Control and Legal Principles, 324-325 (6TH ED. 2009). The 3-Cornered Rock, and not the various buildings that may or may not have been present at the time of the 1873 Agreement, controls. Second, even assuming ambiguity in the location of the Wood Lot and pushing its southern boundary further north beyond the Stake and Stones to be flush with said structures, Defendants could not prevail. Again, the 1873 Agreement conveyed all lands to either Freeman or Russell. Moving the boundary north would necessarily mean the Three Acres would be a part of Parcel VI. Pursuant to the 1873 Agreement, Freeman acquired Parcel VI, [Note 15] and in the 1956 Deed, Parcel VI was conveyed by Priscilla to Walton. (See documents titled “Plan of Land in Chilmark surveyed for Priscilla Hancock, dated August 1956” (the “1956 Plan”), and the 1956 Deed). Because Walton held title to Parcels VI and VII, a difference in the southern bound of the Disputed Parcel would not actually change the result for Defendants. [Note 16]

That the Three Acres is mentioned in the Probate Inventory of the late Herbert is also of no avail to Defendants. It is true that “[d]eeds may convey a good title which yet does not appear of record anywhere.” (citation omitted), Arnold v. Reed, 162 Mass. 438 , 440 (1894). However, as discussed, supra, Defendants failed to put forth any evidence to explain how title to the Three Acres came to be in the Probate Inventory, only Ramsey’s testimony that Herbert “felt he had an interest in there.” Defendants further admit that Priscilla, the owner of record of the Disputed Parcel, never conveyed any property to Herbert. The parcel described in the 2010 Deed originates for the first time in said deed. Pursuant to his investigation, Lauria was able to conclude the following:

Q: Do you have an understanding as to the basis of the description in that deed?

A: No, I don’t.

Q: And in your opinion does that deed convey title to the land described to the defendants?

A: No.

Q: And can you tell the court why not?

A: Well, Wilma Hancock is the grantor in that deed. Wilma Hancock had—at the time of this deed in 2010, Wilma Hancock had already conveyed out [Parcel III], which is the only other parcel there that Russell acquired. The deed under which she conveyed is [E]xhibit 29 to Bridget Montgomery and Michael; Spangler at Book 981, page 196. And that was, “The north part of the tract lying to the west and adjoining the Quenames Road; division line to being at the stake and stones in the west side of the Quenames Road, 60 rods.” So that’s a deed of what was in the division deed at Book 56/163 as [Parcel III]. So Russell did not acquire anything else where the deed at Book 33 purports to be. He had an easterly portion of the North Field, which is shown as [Parcel II]. With that, based on the bounds and the surveying, is south of Blue Barque Road. So Russell didn’t have anything left there that Wilma could convey out based on this deed at 1218, page 577.

Q: And Wilma never inherited any interest from Freeman Hancock?

A: Correct. Her chain of title only comes in from Russell.

The court is inclined to agree. When read in conjunction with other supporting documents, the boundaries of the Disputed Parcel are clearly set out in the 1873 Agreement. Plaintiff has proffered good credible evidence showing that the Three Acres is within the legal bounds of the Disputed Parcel, to which they hold clear record title, and that the Three Acres was never divided from the Disputed Parcel and conveyed to Defendants’ predecessor in interest Wilma, or Herbert. For the reasons discussed above, Plaintiff presents the persuasive and correct interpretation of the boundary, and chain of title, to the Disputed Parcel. I find and rule that Plaintiff is the record owner of the entire Disputed Parcel, including the Three Acres. [Note 17]

B. Adverse Possession

Defendants assert that if they are not the owners of record, they have established title to the Three Acres through adverse possession. It is well established in Massachusetts that “[t]itle by adverse possession can be acquired only by proof of non-permissive 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. If any of the elements remains unproven, the claimant cannot prevail. See Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The burden of proving acquisition of title through adverse possession is on the party claiming thereby. See Lawrence v. Concord, 439 Mass. 416 , 421 (2003). “A title gained by prescription would pass by deed, and for purposes of registration it cannot be distinguished from title by grant.” Keith v. Kennard, 222 Mass. 398 , 399 (1916), citing Butler v. Attorney General, 195 Mass. 79 (1907), First National Bank of Woburn v. Woburn, 192 Mass. 220 (1906).

i. Twenty Year Period

The requisite twenty year period is construed strictly in the Commonwealth. E.g., Hewitt v. Peterson, 253 Mass. 92 (1925) (19 years, 11 months and 5 days not sufficient). Where the claimant falls short, “[t]he statutorily-required adverse possession period of twenty years may be achieved by tacking on a predecessor-in-title's period of adverse possession, provided there is privity of estate between the adverse possessors.” See G.L.c. 260, § 22; Abbott v. Mars, 277 Mass. 122 , 124 (1931). There is sufficient privity between a decedent and his or her heirs or devises. See Frost v. Courtis, 172 Mass. 401 (1899). In such cases, the title acquired by disseisin passes by descent, deed, or devise. But if there is no such privity, upon the determination of the possession of each disseisor, the seisin of the true owner revives and is revested, and a new distinct disseisin is made by each successive disseisor.” Sawyer v. Kendall, 64 Mass. 241 , 244 - 245 (1852).

In the case at bar, Defendants may employ tacking to satisfy the twenty year requirement. Defendants obtained their color of title from Wilma by the 2010 Deed. Wilma’s title was received by devise from Herbert in 2001. Thus Defendants have established sufficient privity required for tacking. Defendants themselves had not made entry unto the Three Acres until 2010. However Ramsey’s testimony indicated that the Three Acres was used as a dump storage site and a source of firewood by Herbert, his predecessor in interest (through the color of title 2010 Deed), at least as far back as WWII. However, no evidence of precise dates of said use were provided, nor was there evidence of personal knowledge by Ramsey of such use. Ramsey also points to the remains of a car axle, piles of bottles and a sewing machine strewn throughout the Three Acres as circumstantial evidence of use by his predecessor in title. Again, Ramsey failed to provide evidence sufficient to support a finding that the refuse belonged to Herbert, was deposited there by him, or of the timing of such use. The time frame of 1945 (WWII) to 2010 appears speculative and infrequent at best. As such, I find that Defendants’ use of the Three Acres has not been for the full period of twenty years.

ii. Actual Use

“The party claiming adverse possession must establish that they hold ‘such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.’” Everett v. Tavares, 18 LCR 235 , 237 (2010), quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 491 (1938). “A judge must examine the nature of the occupancy in relation to the character of the land.” Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). “The use of the land must be continuous, as ‘acts of possession which are few, intermittent, and equivocal’ are not satisfactory to establish title by adverse possession.” Everett, 18 LCR 235 at 235, quoting Sea Pines Condo. III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). With regard to wooded lots the case law is evenly divided regarding the strength of evidence of cutting timber on the question of adverse possession. See e.g., Nordblom v. Moss, 351 Mass. 172 (1966) (adverse possession proven); contra Richmond Iron-Works v. Wadhams, 142 Mass. 569 (1886) (adverse possession not proven).

Ramsey’s testimony indicated that a 1-acre portion of the Three Acres was used as a dump, storage site and source of firewood by Herbert, his predecessor in interest, at least as far back as WWII. Furthermore Ramsey testified that his grandfather parked a tractor upon the Three Acres, and understood the Three Acres as being a part of Herbert’s working farm in the surrounding area. The Three Acres in question is a heavily wooded tract of land, suitable for the cultivation of firewood. Thus a portion of the use to which it was put appears appropriate. However no effort was made to enclose the area, it has always remained open and the cutting of timber and dumping of refuse thereon testified to appears sporadic at best. This brings the case closer to Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992 (1984) wherein the court held claimant’s evidence that an unenclosed wood lot had been used for twenty years as a source of timber for family use and sale to others was insufficient to establish title by adverse possession. See also Cowden v. Cutting, 339 Mass. 164 , 168 (1959); Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961). Furthermore, Defendants failed to put forward any evidence based on personal knowledge of Herbert’s use. The secondhand account on the record before this court of the various activities conducted upon a portion of the Disputed Parcel is insufficient to satisfy Defendants’ burden to establish actual use.

An adverse possessor may only obtain title to the area actually occupied by him. See Kennebeck Purchase v. Springer, 4 Mass. 416 , 417 (1808). “When a disseisor claims to be seised by his entry and occupation, his seisin cannot extend further than his actual exclusive occupation; for no further can the party seised be considered as ousted; for the acts of a wrong-doer must be construed strictly when he claims a benefit from his own wrong.” Kennebeck Purchase, 4 Mass. at 417. Pursuant to the description in Defendants’ deed, their parcel would contain roughly three acres of the Disputed Parcel. However Ramsey’s testimony indicates Herbert’s use of the Disputed Parcel was limited to one acre. As such, Defendants’ actual use, if sufficiently proved, would have proven adverse possession to an area smaller than that which is described within the 2010 Deed. Under the doctrine of adverse possession under color of title, where a claim of ownership is based on an instrument of title that does not validly pass title, “the activities relied upon to establish adverse possession reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant.” Norton v. West, 8 Mass. App. Ct. 348 , 351 (1979); see also Attorney Gen. v. Ellis, 198 Mass. 91 , 97-98 (1908). “A successful adverse possession claim under color of title requires (1) a successful adverse possession claim; and (2) proof that the claim of ownership is based on a document or writing.” Ronayne v. Baroni, 18 LCR 267 , 273 (2010), citing Long v. Wickett, 50 Mass. App. Ct. 380 , 382 n.3 (2000). However the doctrine of adverse possession under color of title is of no avail to Defendants absent live testimony, deposition or sworn affidavit from a single witness with personal knowledge of the predecessor in title’s usage of the Three Acres to support their overall claim. As such, I find that Defendants have not satisfied the actual use element of a claim for adverse possession of the Three Acres.

iii. Open and Notorious Use

In order for use to be open, it “must be without attempted concealment.” Everett, 18 LCR 235 , at 238, quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). “To be notorious, the 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.’” Id. In Kershaw v. Zecchini, 342 Mass. 318 (1961) the court held that “it was not necessary that [plaintiff] reside on the property ‘where other acts of dominion regularly exercised establish unbroken possession in fact for the required period.’” Kershaw, 342 Mass. 318 at 32. However “[i]t is generally held that a title by adverse possession cannot be shown to wild or woodland that has always been open and unenclosed.” Dow v. Down, 243 Mass. 587 , 593 (1923); see also Bates v. Norcross, 31 Mass. 224 (1833); Slater v. Jepherson, 60 Mass. 129 (1850); Parker v. Parker, 83 Mass. 245 (1861). At no time did Defendants, or Defendants’ predecessor in title, enclose the heavily wooded Three Acres. Defendants’ testimony also indicates that no dwelling or other indicia of ownership was erected upon the Three Acres until a tenting permit was obtained in summer or fall of 2010. Furthermore, Defendants’ testimony indicated that the activity on the premises was limited to storage, harvesting firewood and dumping refuse. Though it is Ramsey’s testimony that Herbert’s use resulted in a consensus within the neighborhood as to his ownership, these sporadic activities, conducted on a heavily wooded 3-acre parcel, surrounded by more woodland, would likely fail to put any record owner on notice.

The only activity that may have served to put the record owner on notice is that Herbert paid taxes on one acre of land, within the Disputed Parcel, referred to as assessor’s parcel 017-065-00. Courts have previously held that the payment of taxes evidences a claim of ownership. See Evangelista v. Mccafferty, 18 LCR 41 (2010); Bernard v. Nantucket Boys’ Club, Inc., 391 Mass. 823 (1984); Blanchard v. Lowell, 177 Mass. 501 (1901); Elwell v. Hinckley, 138 Mass. 225 (1885). However “where a person is not in actual occupation or possession, payment of taxes is not, in and of itself, evidence of adverse possession...Title to land cannot be acquired by taking and recording a deed from a person who has no title to it, and paying the taxes upon it.” Whitman v. Shaw, 162 Mass. 451 , 461 (1896). E.g, Duff v. Learey, 146 Mass. 533 (1888); see also Bernard v. Nantucket Boy’s Club, Inc., 391 Mass. 823 (1984); Enfield v. Woods, 212 Mass. 547 (1912); Amee v. Boston & Albany R.R., 212 Mass. 421 (1912). Here, the record indicates that taxes were paid on assessor’s parcel 017-065-00 by Herbert and Jean from fiscal year 1982 until fiscal year 1984, for a total of $97.42, by Herbert from fiscal year 1985 until fiscal year 2004, for a total of $6,646.75, and by Wilma from fiscal year 2005 until fiscal year 2010, for a total of $6,129.37. Defendants paid fiscal year 2010’s taxes on behalf of Wilma. The total amount paid by all parties in Defendants’ chain of title is $12,873.54. That Defendants’ predecessor in title paid taxes upon an acre of land within the Three Acres is informative, and certainly evidences Herbert’s personal belief that he held title to said land, but it is not evidence sufficient to satisfy Defendants’ burden to establish title through adverse possession. There is no evidence of this acre in the record, nor was it ever assessed as a one acre lot to provide a basis for why taxes ought to be paid. As such, I find that Defendants’ use of the Three Acres of the Disputed Parcel has not been open and notorious for any period of twenty years.

iv. Exclusive Use

“To establish exclusive use, the use of the Disputed Parcel must ‘encompass a ‘disseisen’ of the record owner’ and exclude the use of ‘not only the owner, but of all third persons to the extent that the owner would have excluded them.’ Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). Activities involving ‘enclosure or cultivation are evidence of exclusive possession.’” Labounty v. Vickers, 352 Mass. 337 , 349 (1967). Defendants presented no evidence that the Three Acres claimed by them was in any way marked, or enclosed, or that they excluded anyone from use of the Three Acres. On direct examination Ramsey testified as follows:

I’m talking to everybody that would have remembered this or was in that area. I’m talking to a—to Mr. McCarron. I’m talking to my neighbor, Carl Flanders, who—and what I’m learning is that this was—to Alan Porter. I’m learning that this was known as Herbert’s lot and that he gave permission to other people to use this lot, that he allowed them to cut wood on this lot, that he himself cut wood on this lot.

Nevertheless Ramsey’s testimony alone that these acts were said to have occurred are insufficient secondhand accounts that fail to establish exclusive use necessary for Defendants’ title through adverse possession. The activities testified to are equally in line with use of the woods by the general public as it is by Defendants’ predecessor in title alone. As such, I find that Defendants’ use of the Three Acres has not been exclusive for any period of twenty years.

v. Adverse Use

“The great majority of the cases establish convincingly that the alleged requirements of claim of title and of hostility of possession mean only that the possessor must use and enjoy the property continuously for the required period as the average owner would use it, without the consent of the true owner and therefore in actual hostility to him irrespective of the possessor's actual state of mind or intent.” Ottavia v. Savarese, 338 Mass. 330 , 333 (1959), citing Am. Law of Property, Section 15.4, pp. 776-777. “It is well established in Massachusetts that permissive use based on a mutual mistake as to the location of a boundary line will not defeat a claim of adverse possession.” Kendall, 413 Mass. 619 , at 622, citing Wood v. Quintin, 328 Mass. 118 , 119 (1951) (title to land acquired by adverse possession despite mutual mistake that a fence was located on the true boundary line).

Defendants presented no evidence of hostile use prior to 2010. With respect to Herbert’s proposed adverse use, Ramsey’s testimony suggested that Priscilla was a beneficiary of Herbert’s use by providing her with firewood taken from the Three Acres. It would appear that Priscilla knew that Herbert cut timber from the Three Acres that belonged to Priscilla, in part to provide for Priscilla’s own fueling needs, and as a result there simply cannot have been hostility. The presence of some uncertainty of the dimensions of the Disputed Parcel alone cannot serve as a basis to find adverse use. As such, I find that Defendants’ use of the Three Acres of the Disputed Parcel has not been adverse for any period of twenty years.

vi. Conclusion

As a result of the foregoing, I find that Defendants have not established title to the Three Acres by adverse possession.

Judgment to enter accordingly.