JOHN W. MELONE, as TRUSTEE of the PONAKIN VALE REALTY TRUST v. TOWN OF LANCASTER.

At issue in this case is ownership of an undeveloped nine acre parcel (Nine Acre Parcel) located in Lancaster. Plaintiff John W. Melone, Trustee of the Ponakin Vale Realty Trust (Plaintiff), claims the Nine Acre Parcel was among several parcels of land conveyed to his predecessors-in-title, James L. Woodward and Deborah M. Woodward, by a 1968 deed from Frank J. Bateman and Mary Bateman (Batemans). Alternatively, Plaintiff claims he has acquired title of the Nine Acre Parcel by adverse possession. Defendant Town of Lancaster (Defendant or Town) alleges the Batemans did not convey their interest in the Nine Acre Parcel to Plaintiff’s predecessor-in-title, but retained it, allowing Defendant to obtain title to the Nine Acre Parcel through a tax taking against the Batemans in 1983. Defendant also alleges the tax taking defeats Plaintiff’s alternative claim of adverse possession by interrupting the required twenty-year period of continuous adverse use.

On October 29, 1996, Plaintiff filed a complaint to remove a cloud on title pursuant to G. L. c. 240, §§ 6–10. After minimal discovery activity, the case remained unassigned to a judge and dormant until February 2014, when counsel for Plaintiff moved to substitute a new trustee as Plaintiff, at which time the court assigned to a judge and the case and it was set for a status conference. The parties followed up with serious settlement discussions. Despite diligent efforts, the parties were unable to reach agreement, and the case was set for trial. The court viewed the property in the presence of all parties’ counsel on September 11, 2015. Two days of trial took place on September 24 and October 16, 2015. On behalf of Plaintiff, the court heard testimony of Plaintiff John W. Melone; Debra Sanders, a principal assessor for the Town of Lancaster; and expert title witness Dennis E. Tully, Esq. On Defendant’s behalf, the court heard testimony of expert title witness Elisha W. Erb, Esq. One hundred thirty-three exhibits were entered in evidence and both parties filed post trial briefs. Based on the agreed statement of facts, the credible testimony, exhibits, stipulations, and other evidence entered at trial and the reasonable inferences drawn therefrom, informed by this court’s view of the property, this court finds the following material facts:

Subject Parcels [Note 1]

1. The following five parcels of land are referenced in this case:

a. The North Parcel, shown on Chalk A and numbered Parcel 13 on current Town of Lancaster Board of Assessors’ (Assessors) Map 19;

b. The South Parcel, shown on Chalk B and numbered Parcel 56 on the current Assessors’ Map 24;

c. The Access Parcel, shown on Chalk C and numbered Parcel 83 on the current Assessors’ Map 24;

d. The Nine Acre Parcel, shown on Chalk A and numbered Parcel 14 on the current Assessors’ Map 19; and

e. The Twenty-Two Acre Parcel, numbered Parcel 14 on the current Assessors’ Map 14.

2. The Twenty-Two Acre Parcel is the only parcel that is not contiguous to any other parcel in this case. It is located north of the Nashua River at a considerable distance from the other four parcels.

3. The Assessors’ map numbering system has been in effect since 1982.

a. Prior to 1982, the Assessors used a different system. Between 1967 and 1982, the parcels of land at issue in this action were shown on Assessors’ Map 58.

b. After a due and diligent search, the Assessors’ office was unable to locate Map 58 and produce it during discovery or at trial.

c. The Assessors’ office uses the terms “parcel” and “lot” interchangeably. Thus, there is no meaningful distinction between the terms “map and parcel” and “map and lot.”

4. On or around March 3, 2014, Defendant’s Open Space and Recreation Committee created a parcel protection list that includes the Nine Acre Parcel.

5. The Town currently classifies the Nine Acre Parcel as “Unprotected: Town Owned,” on a map of the Open Space and Recreation Committee titled, “Lancaster, MA: Map 8: 7- Year Action Plan Map.”

The Unrecorded Plan

6. A Plan titled “Plan of Land in Lancaster, Mass. Owned By: Frank J. Bateman December 8, 1959,” was prepared by MacCarthy Engineering Service, Inc. (MacCarthy Plan), but was not put on record when it was prepared.

7. The MacCarthy Plan was not recorded with the Worcester District Registry of Deeds in Plan Book 630, Plan 88 until December 26, 1989. [Note 2]

Chain of Title To The Nine Acre Parcel

8. Dennis E. Tully is a real estate attorney who has practiced in the Commonwealth since 1977 and has been a Land Court title examiner since 1981. Attorney Tully testified as an expert witness for Plaintiff. [Note 3] Attorney Tully’s examination commenced with a source deed dated March 7, 1955, conveying four tracts of land from Charles J. Marean and Edna H. Schumacher to James Facey and Bertha Facey, recorded in Book 3665, at Page 281 (Marean Deed) (see fact paragraph 33, infra).

9. Elisha W. Erb is a real estate attorney who has practiced in the Commonwealth for over fifty years. Attorney Erb testified as an expert witness for Defendant. Attorney Erb’s title examination starts with the earliest document found concerning the Nine Acre Parcel: a deed conveying the Nine Acre Parcel, among other parcels, from Lophar Sargent to Sewell Sargent, dated November 6, 1832, recorded in Book 290, at Page 499 (Sargent Deed). [Note 4]

10. The Sargent Deed describes the Nine Acre Parcel as follows:

“Also one other piece of land containing nine acres and thirty six rods near the House of Ebenezer Haven, it being the same land that Hannibal Laughton bought of Eliphalet Ballard bounded as follows, vis,

beginning at a stake and stones the East Southerly corner,

thence North 51° 30? West forty rods to a stake and stones,

thence North 14° West fourteen rods to a Chestnut stump,

thence North 3° 30? East twenty nine rods to a stake and stones,

thence South 66° East thirty rods to a stake and stones,

thence South 6° East forty seven rods to the first named bound of this piece.” [Note 5]

11. The above description in the Sargent Deed does not describe a fully enclosed parcel. Attorney Erb adjusted the courses using Computer-Aided Design (CAD) software to “close” the description.

12. Sewell Sargent conveyed the Nine Acre Parcel to Hannah S. Brooks by deed dated April 16, 1860, recorded in Book 634, at Page 104. The same description of the Nine Acre Parcel from the Sargent Deed, with several scrivener’s errors was used.

13. Attorney Erb was unable to locate a document transferring the Nine Acre Parcel from Hannah S. Brooks to the Inhabitants of the Town of Lancaster, but the next recorded conveyance of the Nine Acre Parcel took place in 1892, from the Inhabitants of the Town of Leominster to William Powers, by deed dated April 16, 1892, recorded in Book 1406, at Page 542 (Leominster Deed). The same description of the Nine Acre Parcel from the Sargent Deed was used, with several scrivener’s errors.

14. Ellen M. Powers, as guardian of Charles B. Powers and Katherine M. Powers, minor children of William Powers, deceased, conveyed a 1/6 interest in the Nine Acre Parcel to Fabius H. Arnold by deed dated November 10, 1914, recorded in Book 2074, at Page 343, using the description from the Leominster Deed that contained scrivener’s errors.

15. Ellen M. Powers, as widow of William Powers, and Edward H. Powers, William E. Powers, John L. Powers, Mary F. Powers, Ellen E. Powers, and Francis R. Powers, children of William Powers, conveyed the Nine Acre Parcel to Fabius H. Arnold by deed dated October 10, 1914, recorded in Book 2086, at Page 315.

16. Upon the death of Fabius H. Arnold, his real property passed to his widow, Avis. A. Arnold. The executrix of Mr. Avis’ estate conveyed the following interests in the Nine Acre Parcel, among other parcels, by deed dated September 24, 1924, recorded in Book 2349, at Page 281:

1/3 interest to S. Florette White;

1/3 interest to Estella A. Buckley;

1/6 interest to Charles W. Wood; and

1/6 interest to Eugena Wood Gaines, all as tenants-in-common.

17. Attorney Erb could not find deeds conveying the interests of Estella A. Buckley or Charles H. Woods.

18. Upon her death, S. Florette White’s estate was probated in 1925, and her real property passed to her husband, James E. White.

The North Parcel

19. The earliest instrument concerning the North Parcel is a mortgage, discharged on its margin, granted by Charlotte A. Wagner to Almon F. Nutting, dated November 29, 1870, recorded in Book 830, at Page 109, describing the North Parcel as follows:

“[A] certain farm with all the buildings thereon situated in the westerly part of said Lancaster containing fifty acres more or less bounded

southerly by land of James A. Arnold,

easterly by the Nashua River,

northerly by land of Charles L. Wilder and

westerly by land of Charles Fairbanks and Sewell Sargent.”

20. Almon F. Nutting and Ada E. Nutting conveyed the North Parcel to Morris Boland on April 19, 1873, by deed recorded in Book 897, at Page 278 (Nutting Deed), describing the North Parcel as follows:

“A certain farm situated in the westerly part of Lancaster lying northerly and adjoining the farm of James A. Arnold containing seventy five acres more or less, bounded as follows, vis:

Beginning at the southeasterly corner by the Nashua River and a corner of said Arnold’s land, thence [S]. 43° W. by said Arnold’s land one hundred and forty two rods and thirteen links to a stone between two oak trees, a corner of S. Sargent’s land; thence due North by said Sargent’s land thirty seven rods and four links; thence N. 69° [W] by said Sargent’s land [illegible] thence 9° E. by said Fairbank’s land fifty six rods, thence N. 14° W. by Fairbank’s land twenty four and a half rods; thence due East by Fairbank’s land forty rods and ten links; thence N. 18° W. fourteen rods; thence N. 59° W. ten rods; thence N. 12° 30? E. nine rods; thence N. 31° 30? E. fourteen rods; thence N. 22° 30? E. twelve rods and fourteen links to the Nashua River; thence down stream by said river angling as said stream runs to the bound first named.”

21. The Nutting Deed excepted two pieces of land located within the North Parcel, but the two parcels were subsequently conveyed to the then-owner of the North Parcel, reincorporating them into the parcel.

22. After Morris Boland died, his estate was probated with the Worcester County Probate Court in 1886, and the North Parcel passed to Minnie A. Fairbanks, Annie E. Lynch, Harry M. Doyle, Maurice H. Boland, John M. Doyle and Thomas L. Doyle. [Note 6]

23. Minnie A. Fairbanks, Annie E. Lynch, Harry M. Doyle, Maurice H. Boland, John M. Doyle and Thomas L. Doyle each conveyed their respective interests in the North Parcel by various deeds to S. Florette White in 1914.

24. Upon her death, S. Florette White’s estate was probated in 1925, and her real property passed to her husband, James E. White.

The South Parcel

25. A Warrant of Partition dated April 24, 1911, recorded in Book 1984, at Page 46, assigned the South Parcel to S. Florette White.

Common Ownership of the North, South and Nine-Acre Parcel

26. As of 1924, after the probate of the estate of Avis A. Arnold (see fact paragraph 16, supra), S. Florette White held the North Parcel, the South Parcel, and a 1/3 interest as a tenant in common in the Nine Acre Parcel.

27. Upon the death of S. Florette White and the probate of her estate in 1925, her real property (the North Parcel, the South Parcel and a 1/3 interest as tenant in common in the Nine Acre Parcel) passed to her husband, James E. White, according to a deed recorded in Book 2482, at Page 41 (White Probate Deed).

28. The other interests in the North Parcel were held in common with James E. White by Eugena W. Gaines and Charles H. Woods, each holding a 1/6 interest, and Estella A. Buckley, holding a 1/3 interest.

29. By deed dated November 4, 1927, recorded in Book 2483, at Page 41, James E. White conveyed to Eugena W. Gaines the North Parcel, the South Parcel, and an eight acre parcel of land near Oak Hill Pond. The description of the North Parcel was generally the same description used in the Nutting Deed (see fact paragraph 20, supra). This deed did not convey the 1/3 interest in the Nine Acre Parcel.

30. Attorney Erb was unable to locate a deed conveying James E. White’s 1/3 interest in the Nine Acre Parcel.

31. Sidney A. Burr and Maurice J. Levy, as Trustees under the will of Clara Eugena Gaines, conveyed to Charles J. Marean and Edna H. Schumacher by deed dated December 3, 1947, recorded in Book 3100, at Page 127, four separate parcels (Gaines Deed). This deed conveyed the North Parcel, the South Parcel, a 22 acre parcel (the Twenty-Two Acre Parcel described in fact paragraph 1, supra), and the Nine Acre Parcel.

a. The Nine Acre Parcel was described as follows in the Gaines Deed:

“[a] certain tract of land containing nine acres and thirty-six rods more or less, situated in said Lancaster and near the house of the late Ebenezer Haven. Being the premises described in deed of Ellen M. Powers, et [al.] to Favius (sic) H. Arnold dated October 10th, 1914, and recorded in Worcester District Deeds, Book 2086, Page 315. See also deed of Ellen M. Powers, guardian of Charles B. Powers and Katherine M. Powers to Fabius H. Arnold recorded in said Worcester District Registry of Deeds, Book 2074, Page 343.”

32. Clara Eugena Gaines owned a 1/6 interest as a tenant in common in the Nine Acre Parcel at the time of the above conveyance, although she may have acquired a greater interest through inheritance.

33. Charles J. Marean and Edna H. Schumacher conveyed to James Facey and Bertha Facey (the Faceys) by deed dated March 7, 1955, recorded in Book 3665, at Page 281 (Marean Deed), the same four parcels described in the Gaines Deed: the Twenty-Two Acre Parcel, the Nine Acre Parcel, the North Parcel and the South Parcel.

a. The Marean Deed describes the parcels as follows: the Twenty-Two Acre Parcel as “22 acres, more or less”, the Nine Acre Parcel contains “nine acres and thirty- six rods more or less,” the South Parcel contains “73 acres, more or less,” and the North Parcel contains “seventy-five acres more or less,” and also includes a “tract of about 2 ¼ acres.”

34. By deed dated February 4, 1959, recorded in Book 4003, at Page 545, the Faceys, conveyed to the Batemans the same four parcels described in the Gaines Deed. The Batemans at this point owned the North Parcel, the South Parcel, the Twenty-Two Acre Parcel and at least a 1/6 interest in the Nine Acre Parcel. [Note 7]

The Access Parcel

35. By deed dated April 2, 1964, recorded in Book 4453, at Page 501, Laura Shepard conveyed to The Batemans, as tenants by the entirety, a parcel of land on the northeast side of Ballard Hill Road that included a fifty-foot wide strip of land extending from Ballard Hill Road to the Nine Acre Parcel. The fifty-foot strip of land was subsequently subdivided into a separate parcel, as shown on a plan recorded in Plan Book 317, at Plan 119 (Access Parcel).

36. As a result of this conveyance, as of April 2, 1964, the Batemans owned the North Parcel, the South Parcel, the Access Parcel, the Twenty-Two Acre Parcel, and at least a 1/6 interest in the Nine Acre Parcel.

Conveyances to Plaintiff’s Predecessor-in-Title

37. By deed dated May 20, 1968, recorded in Book 4853, at Page 196 (Bateman Deed), the Batemans conveyed to James L. Woodward and Deborah M. Woodward the following three parcels of land: the South Parcel, the North Parcel, and the Access Parcel.

a. The Bateman Deed does not specifically reference the Nine Acre Parcel.

b. The Bateman Deed describes the South Parcel first, “[c]ontaining 73 acres of land, more or less.”

c. The second parcel described is the North Parcel, “[b]eing the same premises described in deed from Almon F. Nutting and Ada E. Nutting to Maurice Boland dated April 19, 1873, recorded with Worcester County Deeds, Book 897, Page 278,” and “[b]eing the first and second tracts described in deed of James E. White to Eugena W. Gaines dated November 4, 1927 and recorded with said Deeds, Book 2483, Page 41.”

d. The North Parcel is described as “containing seventy-five (75) acres, more or less.”

i. Although the Bateman Deed describes the North Parcel as containing “seventy-five (75) acres, more or less,” the actual dimensions of the North Parcel when combined with the Nine Acre Parcel more closely approximates seventy-five (75) acres.

e. The Bateman Deed further describes the parcels conveyed as “[b]eing part of the premises conveyed to us by James A. Facey, et ux, dated February 4, 1959 and recorded in said Deeds, Book 4003, Page 545” (underline added).

f. The Bateman Deed further describes the North and South Parcels as “[s]aid premises being shown as Lots 1 and 2 on a plan entitled ‘Plan of land in Lancaster, Mass., owned by: Bateman’ Survey by: MacCarthy Engineering Service, Inc., dated December 8, 1959” (referred to herein as MacCarthy Plan).

g. The Access Parcel is described as containing “according to said plan, 2.09 acres of land.”

38. The Bateman Deed includes the following reservations: “[r]eserving however to ourselves, our heirs and assigns, as appurtenant to our adjoining estate, a fifty (50) foot right of way for the purpose of passing and repassing by foot and vehicular traffic and for use for the same purpose as streets and ways are used in the Town of Lancaster, in and through the granted premises for a distance of five hundred (500) feet from Ballard Hill Road, as shown on said plan aforesaid. Together with all rights to pass and repass over the existing right of way from Ponakin Road.”

39. The MacCarthy Plan shows the North Parcel and the Nine Acre Parcel as a consolidated parcel, numbered Lot 2. The Nine Acre Parcel is not marked by separate boundary lines nor is it separately identified on the MacCarthy Plan. Together the North Parcel and the Nine Acre Parcel comprise seventy-five acres, more or less.

Tax Taking

40. The Town recorded an Instrument of Taking against the Nine Acre Parcel in Book 7684, at Page 105 on January 13, 1983, naming as assessed owners Frank J. Bateman and Mary Bateman.

a. The Instrument of Taking describes the Nine Acre Parcel as follows: “[a] parcel of land only, containing 9.20 [a]cres, more or less, on Lunenburg Road, Lancaster, MA as recorded in the [Registry], South District, Book 4003, Page 545, being part of said deed, and shown on the Assessors’ Map 19 and parcel 14.”

41. Notice of a Land Court petition to foreclose the tax lien, dated June 20, 1984, was recorded in Book 8462, at Page 222.

42. A Land Court decree foreclosing the right of redemption, dated December 9, 1984, was recorded in Book 11046, at Page 134.

Conveyance to Plaintiff

43. James L. Woodward and Deborah M. Woodward conveyed to Joseph Melone (Plaintiff’s father), by deed dated April 13, 1972, recorded in Book 5211, at Page 485, the same parcels conveyed to the Woodwards by the Bateman Deed (see fact paragraph 37, supra), using the descriptions from the Bateman Deed.

44. Joseph Melone then conveyed these parcels, using the same descriptions used in the Bateman Deed, to Joseph Melone and Maria Anna Melone, as Trustees of the Joseph and Maria Melone Trust, by deed dated June 24, 1974, recorded in Book 5532, at Page 130. [Note 8]

45. Joseph Melone, individually, granted a two-hundred foot wide power line easement to New England Power Company, by instrument dated August 20, 1974, recorded in Book 5774, at Page 54. Apparently to correct the erroneous grantor in the grant of easement, on February 21, 1975, Joseph Melone and Maria Anna Melone, as Trustees of the Joseph and Maria Melone Trust, granted a two-hundred foot wide power line easement to New England Power Company by instrument recorded in Book 5675, at Page 176.

46. Joseph Melone died on May 9, 1979.

47. A declaration of trust for the Ponakin Vale Realty Trust, Anthony J. Melone and Daniel G. Melone, as Trustees, dated December 15, 1989, was recorded on December 26, 1989 in Book 12540, at Page 125. The MacCarthy Plan was recorded on the same date.

48. Anthony J. Melone and Daniel G. Melone, as Trustees, conveyed to Anthony J. Melone and Daniel G. Melone, Trustees of the Ponakin Vale Realty Trust, by deed dated December 15, 1989, recorded in Book 12540, at Page 130, the same land conveyed in the Bateman Deed, using the same property descriptions.

49. Plaintiff John W. Melone became a trustee in 1999.

Assessors’ Maps

50. Debra A. Sanders is one of the principal assessors for the Town of Lancaster.

51. She testified the assessors’ office provides the tax collector’s office with a commitment setting forth the owners of particular pieces of real estate, its valuation, location, book and page reference, and acreage.

52. The assessors’ office was unable to produce copies of the assessors maps used prior to 1981, but was able to produce a copy of the Assessors’ map used in 1947.

a. The 1947 assessors’ map depicts the Nine Acre Parcel as Lot 7, being “9 Acres & 36 rods” and labeled with the name “Schumacher.”

53. In or around 1983, Mary Bateman, then known as Mary Gonthier, contacted the assessors’ office to inform the assessors she was billed for property she did not own, referring to the Nine Acre Parcel.

54. The assessors’ real estate valuation lists and the real estate tax commitments entered in evidence purport to establish the total acreage assessed to the Batemans and Melones at various times. [Note 9] However, the court finds the information contained within these exhibits is inconclusive, as the acreage amounts varied over time without adequate explanation in the record.

Plaintiff’s Use of the Nine Acre Parcel

55. John Melone purchased the property at issue in this case from Woodward in 1972 for use in the family’s gravel and road construction business, then called J. Melone & Sons.

56. At an undetermined point between 1973 and 1975, J. Melone & Sons placed two concrete blocks on either side of the dirt road on the Access Parcel with a chain strung between them. The concrete blocks, visible at the view, are located approximately where the Access Parcel abuts the Nine Acre Parcel. [Note 10] The blocks do not require significant maintenance.

57. In 1988, the Melone family installed an eighteen-inch culvert on the Nine Acre Parcel at the point where it connects to the Access Parcel. [Note 11]

58. In 1988, the Melone family used trucks and an excavator to extract earth from the northwest corner of the Nine Acre Parcel.

59. In or around 1987 and 1988, the Melone family hired a logging company to remove logs from the Nine Acre Parcel.

60. The Melone family plowed the Access Parcel, from Route 117 to the Nine Acre Parcel, in 1988.

61. From 1972 to 2014, Melone family members or their tenants occupied the house located on Lot 1 shown on the MacCarthy Plan.

62. The Melone family never erected fences or otherwise enclosed the Nine Acre Parcel.

* * * * *

I. The Effect Of The Reference To An Unrecorded Plan In The Bateman Deed

After various conveyances stretching back to 1832, Bateman eventually acquired ownership interests in the five parcels relevant to this action by 1964. The Batemans first acquired the North Parcel, the South Parcel, the Twenty-Two Acre Parcel and a one-sixth interest in the Nine Acre Parcel by deed from James Facey and Bertha Facey, dated February 4, 1959. Five years later, on April 2, 1964, they acquired the Access Parcel from Laura Shepard. The problem facing Plaintiff in the instant action arises from the Bateman’s subsequent conveyances of these parcels to Plaintiff’s predecessors-in-title, James L. Woodward and Deborah M. Woodward.

By deed dated May 20, 1968, recorded in Book 4853, at Page 196 (Bateman Deed), the Batemans conveyed to the Woodwards three parcels of land. The first parcel, described as”[c]ontaining 73 acres of land, more or less,” is the South Parcel. The second parcel, described as “[c]ontaining seventy-five (75) acres, more or less,” is the North Parcel. The first and second parcels are further described as “[b]eing the first and second tracts described in deed of James E. White to Eugena W. Gaines dated November 4, 1927 and recorded with said Deeds, Book 2482, Page 41.” The deed from James E. White to Eugena Gaines conveyed only the North and South Parcels, with the South Parcel being described first. It did not convey the Nine Acre Parcel. The Bateman Deed also conveyed a third parcel, containing 2.09 acres. This is the Access Parcel. The deed further describes the parcels conveyed as “[b]eing part of the premises conveyed to us by James A. Facey, et ux., dated February 4, 1959 and recorded in said Deeds, Book 4003, Page 545” (underline added). The Nine Acre Parcel is neither explicitly excluded from nor referenced in the Bateman Deed.

The Bateman Deed, however, does reference the MacCarthy Plan, [Note 12] and describes the premises being conveyed as Lots 1 and 2 on the MacCarthy Plan. Lot 2 is the North Parcel, and, as clearly shown on the MacCarthy Plan, the Nine Acre Parcel is included within the North Parcel, although the Nine Acre Parcel is not delineated or designated in any way. Although prepared in 1959, the MacCarthy Plan was not recorded until December 26, 1989, thirty years after the Bateman Deed was recorded.

G. L. c. 184, § 25 instructs:

“[n]o indefinite reference in a recorded instrument shall subject any person not an immediate party thereto to any interest in real estate, legal or equitable, nor put any such person on inquiry with respect to such interest, nor be a cloud on or otherwise adversely affect the title of any such person acquiring the real estate under such recorded instrument if he is not otherwise subject to it or on notice of it. An indefinite reference means . . . (4) any other reference to any interest in real estate, unless the instrument containing the reference either creates the interest referred to or specifies a recorded instrument by which the interest is created and the place in the public records where such instrument is recorded[.]”

Defendant asserts the MacCarthy Plan constitutes an indefinite reference because it was not recorded at the time of the deed’s recordation. Under the statute, an indefinite reference includes instruments that are not recorded in due course. Asian American Civic Ass’n v. Chinese Consol. Benev. Ass’n of New England, Inc., 43 Mass. App. Ct. 145 , 149 (1997). The MacCarthy Plan, although prepared for the Batemans on December 8, 1959, was not recorded until December 26, 1989. Defendant argues that, should the reference to the unrecorded MacCarthy Plan be deemed a sufficient property description conveying the land shown on the Plan, the depiction of Lot 2 on the MacCarthy Plan is inconsistent with the description of the North Parcel in the Bateman Deed. Lot 2 on the MacCarthy Plan constitutes both the North Parcel and the Nine Acre Parcel, whereas the description of the North Parcel in the Bateman Deed does not include the Nine Acre Parcel. Attorney Erb concluded that the Bateman Deed did not convey the Nine Acre Parcel to Woodward, but conveyed only the North Parcel, the South Parcel and the Access Parcel. Accordingly, he concluded, the Batemans retained their interest in the Nine Acre Parcel, such interest being at least a one-sixth tenancy in common interest.

The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances. Patterson v. Paul, 448 Mass. 658 , 665 (2007), citing Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). “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).

While the words of the deed remain the most important evidence of intention, they must be construed in light of the attendant circumstances to interpret an ambiguous meaning. Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006). Here, the attendant circumstances are: the MacCarthy Plan, prepared for the Batemans nine years prior to the Bateman Deed, was referenced in the Bateman Deed showing the Nine Acre Parcel as part of Lot 2, but the title references to Lot 2 in the deed refer to deeds that conveyed the North Parcel without the Nine Acre Parcel; the stone walls and fences depicted on the MacCarthy Plan suggest boundaries that include the Nine Acre Parcel as part of Lot 2; the Batemans reserved no access to the Nine Acre Parcel in the Bateman Deed, suggesting the Nine Acre Parcel was included in the conveyance, as retaining the Nine Acre Parcel without any reservation of access would leave the Batemans with a landlocked parcel; and, without also receiving the Nine Acre Parcel, the Woodwards purchased the Access Parcel without the parcel to which it provides access. While acreage is at the bottom of the hierarchy of principles of interpretation of deed descriptions, the court notes that the area of the North Parcel is described as approximately seventy-five acres, which equals the acreage of Lot 2, including the Nine Acre Parcel, as shown on the MacCarthy Plan. Without the inclusion of the Nine Acre Parcel, the North Parcel comprises approximately 65.9 acres.

Both expert witnesses ultimately agreed on the same chain of relevant deeds that resulted in the North Parcel, the South Parcel, the Twenty-Two Acre Parcel and (the interest in) the Nine Acre Parcel being conveyed to the Batemans. [Note 13] Based on the evidence presented, the court agrees with Plaintiff’s expert and finds that the Batemans intended to, and did, convey the Nine Acre Parcel to the Woodwards by the Bateman Deed on May 20, 1968, recorded in Book 4853, at Page 196, and interprets the deed as so doing based on the attendant circumstances and the language of the deed and the MacCarthy Plan, referenced therein.

II. Tax Taking

Defendant recorded an Instrument of Taking against the Nine Acre Parcel with the Worcester Registry of Deeds in Book 7684, at Page 105 on February 18, 1983, in the name of assessed owners Frank J. Bateman and Mary Bateman. Notice of a Land Court petition to foreclose the tax lien, dated June 20, 1984, was recorded in Book 8462, at Page 222, and a Land Court decree foreclosing the right of redemption, dated December 9, 1984, was recorded in Book 11046, at Page 134.

As found above by the court, the Nine Acre Parcel was conveyed to the Woodwards through the Bateman Deed in 1968, and was subsequently conveyed to Plaintiff’s father in 1972. Therefore, at the time of the tax taking in 1983, the Batemans held no interest in the Nine Acre Parcel, and notice should have been given to the trustees of the Joseph and Maria Melone Trust, record owner at the time. As a consequence, this court holds that the Town’s foreclosure of the Nine Acre Parcel was defective and insufficient to divest title from the Melone family’s trust. This court therefore determines that Plaintiff owns his interest in the Nine Acre Parcel free of any claims of the Town of Lancaster.

III. Plaintiff’s Alternative Claim of Adverse Possession Fails Because Plaintiff Did Not Establish Twenty Years Of Actual, Exclusive, Adverse, Open And Notorious Use Of The Nine Acre Parcel

Since this court has found Plaintiff has record title to the Nine Acre Parcel, it is not necessary to address Plaintiff’s alternative theory, but the court chooses to do so because the issue was fully tried. Plaintiff has asserted an alternative theory of adverse possession to establish title to the Nine Acre Parcel. In order to establish a claim of title by adverse possession, the party asserting such ownership must prove non-permissive use that is actual, open, notorious, exclusive and adverse for twenty years. Kendall v. Selvaggio, 413 Mass. 619 , 622 (1992); Ryan v. Stavros, 348 Mass. 251 , 262 (1964). The nature of the adverse use and occupancy of property must be sufficient so as to place the lawful owner on notice; with wild and unimproved land, such as in the instant case, a “more pronounced occupation” is needed. Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004). Cases suggest that with woodland parcels such as the Nine Acre Parcel, putative adverse possessors must establish that the land has been enclosed or reduced to cultivation. Sea Pines, 61 Mass. App. Ct. at 848 (2004); Senn v. Western Massachusetts Elec. Co., 18 Mass. App. Ct. 992 , 993 (1984); but see Paine v. Sexton, 88 Mass. App. Ct. 389 , 391 (2015) (finding a claimant’s extensive use of property as campground sufficient for adverse possession, despite the failure to enclose or cultivate the entire property). As the party claiming adverse possession, Plaintiff carries the burden of proof. Plaintiff claims he and his family or tenants have occupied a house shown on Lot 1 of the MacCarthy Plan and used the entire premises of Lots 1 and 2 on the MacCarthy Plan, including the Nine Acre Parcel, from 1972 until 2014. Plaintiff has failed to carry his burden. With respect to the Nine Acre Parcel, Plaintiff established only isolated incidents of clearing trees, extracting earth and plowing snow in the late 1980s, specifically 1987 through 1989. These isolated incidents are not sufficient to establish adverse possession, even under a claim based on color of title by virtue of Plaintiff’s chain of title.

Conclusion

Accordingly, this court finds that the Bateman Deed, dated May 20, 1968, recorded in Book 4853, at Page 196, conveyed the Nine Acre Parcel as part of Lot 2 shown on the MacCarthy Plan, to Plaintiff’s predecessors-in-title, James L. Woodward and Deborah M. Woodward. As a result of the Woodwards’ subsequent conveyance to John Melone in 1972, and his later conveyance to Joseph Melone and Maria Anna Melone, as Trustees of the Joseph and Maria Melone Trust, the Trustees held a one-sixth interest in the Nine Acre Parcel at the time of the tax taking and notice of the tax taking was incorrectly sent to the Batemans. Plaintiff now owns the Nine Acre Parcel free and clear of any claims of Defendant Town of Lancaster.

Judgment to issue accordingly.