In this case, Petitioner Robert L. Paine ("Paine") seeks to register the title to 1.544 acres of land located on Old King's Highway in Wellfleet ("Locus"), which is depicted as lot "1" on a plan of land dated October 30, 1998 prepared by Schofield Brothers of New England, Inc. ("Schofield Brothers"), filed with this court as Land Court Plan 43286-A (the "1998 Land Court Plan"). [Note 1] This case is related to, and was filed at the same time as, Paine v. Sexton (Land Court Case No. 99 REG 43287) (the "Campground Case"), which involves related parties and adjacent properties. [Note 2] Respondent Chellise L. Sexton ("Sexton") objects to such registration, as she likewise did in the Campground Case. Sexton also had previously filed her own Registration case (Case No. 92 REG 42882), but never pursued it.
This case was initially commenced on February 10, 1999 by the filing of a Petition for Registration. [Note 3] On May 12, 1999, the court (Trombly, Recorder) appointed James H. Quirk, Jr. (the "Title Examiner") as external title examiner for this case. The Title Examiner filed his title report on February 17, 2006. A citation for publication issued on May 1, 2008 with a return date of June 9, 2008. On May 29, 2008, Paine filed notice that publication was made in The Cape Codder on May 9, 16, and 23, 2008, and that notice of this case was sent to the Wellfleet Board of Selectmen, the Barnstable County Commissioner, and to all parties named in the citation. [Note 4]
On March 15, 2010, Sexton moved for permission to late-file an Answer in this case, which I allowed over Paine's objections. In her Answer, Sexton disputed the validity of Paine's chain of title and claimed that she held a recently-obtained 1/12 fractional interest in Locus. [Note 5] On June 14, 2011, this case was assigned to me. A status conference was held on July 14, 2011. On November 8, 2011, Paine moved to bifurcate the issues of adverse possession and record title (with the former to be adjudicated first), which I allowed on December 28, 2011 over Sexton's opposition. [Note 6]
On May 30, 2012, after a trial in the Campground Case, I issued a Decision, Paine v. Sexton, 20 LCR 292 (Mass. Land Ct. May 30, 2012) ("Campground Case Decision 1"), in which I held that the Trust had acquired title by adverse possession to a series of lots in the vicinity of Locus. [Note 7]. Thereafter, I directed the parties in the Campground Case to brief dispositive motions on the question of whether the Trust had also acquired title by adverse possession under a color of title theory over a series of additional adjacent lots as to which I had found, in Campground Case Decision 1, that the Trust had adduced insufficient evidence of actual, exclusive use.
On August 23, 2013, I issued a second Decision in the Campground Case, Paine v. Sexton, 21 LCR 481 (Mass. Land Ct. Aug. 23, 2013) ("Campground Case Decision 2"), finding that the Trust had established title by adverse possession under a color of title theory over two additional adjacent lots, as well as portions of two others. Also on August 23, 2013, I issued a Judgment in the Campground Case (the "Campground Case Judgment"), which set forth my findings and rulings from Campground Case Decisions 1 and 2. [Note 8]
On November 21, 2013, after several post-Judgment motions had been adjudicated, Sexton appealed Campground Case Decisions 1 and 2 and the Campground Case Judgment to the Appeals Court. On September 23, 2015, the Appeals Court affirmed Campground Case Decisions 1 and 2 and the Campground Case Judgment, and on December 22, 2015, the Supreme Judicial Court denied further appellate review. Paine v. Sexton, 88 Mass. App. Ct. 389 , rev. denied, 473 Mass. 1106 (2015). A Notice of Rescript was filed with this court on December 31, 2015, and the Campground Case was thereafter assigned to a Land Court internal title examiner for review. To date, a Decree of Registration has not yet issued in the Campground Case. [Note 9]
Following the resolution of the Campground Case, the parties in this case appeared for a status conference on April 21, 2016 to address how this case should be adjudicated and what effect the Campground Case would have on this one. Because they could not agree on how to proceed, the court directed the parties to file briefs addressing that question. At a further status conference held on May 12, 2016, this court directed the parties to brief dispositive motions on the limited issue of Paine's claim that this court's determination (in the Campground Case) that the Trust had acquired title by adverse possession to one of the lots at issue in that case was determinative of Paine's adverse possession claims to Locus in this one under the color of title theory of adverse possession.
Paine filed his Motion for Summary Judgment on July 12, 2016. [Note 10] Sexton filed an opposition brief to Paine's Motion for Summary Judgment on August 12, 2016. [Note 11] Paine filed a reply brief on August 22, 2016. [Note 12] Oral argument was held on September 7, 2016, after which the court took Paine's Motion for Summary Judgment under advisement. [Note 13]
Based upon the parties' briefs, as well as the court's prior findings of fact and rulings of law in the Campground Case, [Note 14] I FIND that the following material facts are not in dispute:
Physical Description of Locus
1. Locus is a four-sided lot abutting the property at issue in the Campground Case (the "Campground Property") to the north and east, Rama's Way (a private way that provides access to lots to the south) to the south, and Old's King's Highway (a public way) to the west. Locus was created by an October 20, 1998 approval not required ("ANR") plan entitled "Plan of Division of Land in Wellfleet, Mass. as prepared for Irene M. Paine", which was prepared by Schofield Brothers and was recorded in the Barnstable County Registry of Deeds (the "Registry") at Plan Book 545, Page 49 (the "1998 ANR Plan"). The 1998 ANR Plan depicts the land subdivided thereby as a long, narrow strip of land consisting of three lots running northeasterly from Old King's Highway to the Cape Cod National Seashore, intersected by a perpendicular strip of land labeled "Smith Family Realty Trust" (the "Smith Parcel"). [Note 15] Locus is labeled lot "1" on the 1998 ANR Plan and is described as 67,280 square feet (1.544 acres) in area. The portion of the property on the 1998 ANR Plan running from the easterly boundary of Locus to the westerly boundary of the Smith Parcel (defined below as Lot 78.1a) is labeled on said plan as lot "2", and the portion thereof east of the Smith Parcel (defined below as Lot 178a) is labeled lot "3". The 1998 ANR Plan indicates that the lots labeled "2" and "3" thereon were each designated as "Not a Buildable Lot".
2. The property subdivided by the 1998 ANR Plan is depicted on Sheets 203-21 and 204- 22 of the Town of Wellfleet Tax Assessor's Maps, dated November 2, 1964, revised through February 1988 (the "Assessor's Maps") as lots "57" and "58" (respectively, "Lot 57m" and "Lot 58m") [Note 16], which are depicted thereon as adjacent narrow strips of land running from Old King's Highway on the west to the Cape Cod National Seashore on the east. [Note 17]
3. Effective January 1, 1993, the Assessor's Maps were superseded and replaced by the Town of Wellfleet Assessor's Atlas, dated January 1, 1993, revised through March 31, 2010 (the "Assessor's Atlas"). Editions of the Assessor's Atlas issued prior to the 1998 ANR Plan depicted (on Sheet 23 thereof) the property subdivided by the 1998 ANR Plan (i.e., Lots 57m and 58m) as lot "78" (consisting of lots "1"--i.e., Locus--and "2" on the 1998 ANR Plan) ("Lot 78a") and lot "178" (lot "3" on the 1998 ANR Plan) ("Lot 178a"). [Note 18] [Note 19] Editions of the Assessor's Atlas issued subsequent to the subdivision of Lot 78a, the Assessor's Atlas identified Locus (i.e., lot "1" on the 1998 ANR Plan) as lot "78" and lot "2" on the 1998 ANR Plan as lot "78.1" ("Lot 78.1a"). [Note 20]
Relevant Title History to Locus Relative to Paine's Claim [Note 21]
4. By deed dated October 4, 1971, and recorded in the Registry at Book 1540, Page 252 (the "1971 Deed"), Bernice L. McKay purported to convey Lot 57m to Robert S. Paine and Cynthia M. Paine (who are Paine and Irene's parents) (the "Parents") in their individual capacities.
5. By deed dated May 30, 1978 and recorded in the Registry at Book 2770, Page 196, Cynthia Coye, Elizabeth Masulla, and Susan Gray purported to convey Lot 58m to Irene and Stephen J. Mahan (Irene's ex-husband) ("Mahan"). By deed dated August 23, 1978 and recorded in the Registry at Book 2770, Page 195, Dorothy P. David also purported to convey Lot 58m to Irene and Mahan. These deeds are together herein referred to as the "1978 Deeds". [Note 22] [Note 23]
6. By deed dated June 23, 1998 and recorded in the Registry at Book 11548, Page 223 (the "1998 Irene Deed"), Mahan purported to convey his interest in Lot 78a to Irene. [Note 24] [Note 25]
7. At the trial in the Campground Case, Irene testified that it had long been the intent of her family (for estate-planning purposes) to subdivide Lot 78a to create Locus as separate and distinct from the Campground Property, but that the family did not get around to doing so until the late 1990s. To that end, in or around late 1998, Irene's Parents created the Trust (see Declaration of Trust dated November 4, 1998 and recorded in the Registry at Book 11853, Page 156) and, together with Irene, retained Schofield Brothers to conduct a survey of the various properties owned (or claimed) by the Paine family, and to prepare the 1998 ANR Plan and the 1998 Land Court Plan.
8. By deed dated November 19, 1998 and recorded in the Registry at Book 11853, Page 173 (the "1998 Parents/Trust Deed") the Parents (as individuals) conveyed to themselves (in their capacity as trustees of the Trust) their interest in Lot 57m (in addition to their interest in four other lots). The 1998 Parents/Trust Deed describes Lot 57m by reference to the 1971 Deed.
9. By deed dated November 19, 1998 and recorded in the Registry at Book 11864, Page 220 (the "1998 Trust Deed"), Irene purported to convey Lots 78.1a and 178a to her Parents as trustees of the Trust, retaining Locus for herself. [Note 26]
10. Paine and Irene's mother, Cynthia, passed away in 1999. By trustee's certificate dated June 23, 1999 and recorded in the Registry at Book 12367, Page 314, Paine succeeded his late mother as co-trustee of the Trust.
11. By trustee's certificate dated February 5, 2004 and recorded in the Registry at Book 18196, Page 219, Sheila L. Paine ("Sheila") (Paine's wife) was appointed as co-trustee of the Trust. It is undisputed that Paine and Sheila are currently the sole co-trustees of the Trust. [Note 27]
12. By deed June 19, 2006 and recorded in the Registry at Book 21111, Page 79 (the "2006 Deed"), Irene purported to convey Locus to Paine in his individual capacity. [Note 28]
13. Sexton claims an interest in a portion of Locus pursuant to a deed from Donna Lee Weber dated March 8, 2010 and recorded in the Registry at Book 24416, Page 105. [Note 29]
Activities on Locus
14. In her testimony at the trial in the Campground Case, Irene testified that she had lived at the Campground Property seasonally since the 1950s when she was a child, and that she and her ex-husband (Mahan) were living there with their two children as of the 1970s. She stated that, during that period until 1978, camp sites operated by her family existed on Locus, and even farther south.
15. In 1978, Irene and Mahan purchased a single family house (the "House") that was located off-site, and retained contractors to build a foundation and move the House onto Locus. [Note 30] In 1979, they contracted for the House to be plumbed and wired for electricity. In 1980, they contracted for the renovation of the House (to add two chimneys and a new kitchen) and the construction of a well and septic system servicing the House. They moved into the House with their two children during the summer of 1981. At or around that time, an unpaved access drive (which is depicted on the 1998 ANR Plan) running from the House to Old King's Highway was created. [Note 31]
16. From 1982 to 1992, Irene lived at the House seasonally (from April to November), but she regularly visited Locus for recreation and maintenance purposes during the off season. [Note 32] In 1992, Irene moved back to the House full-time with one of her children. In 1998, Irene remarried, and her second husband, James Wolf, also moved into the House, where he and Irene lived together through 2001. From 2001 to 2006 (when she sold Locus to Paine), Irene used Locus as a full-time rental income property.
17. Based upon testimony in the Summary Judgment record and admitted into evidence in the Campground Case, it is clear that active campsites operated by the Paine family continued to exist on Locus (to the north and east of the House) even after Irene and her family began to reside at Locus (in or around 1981). However, it is not known precisely where those campgrounds were located or when they were removed. It is known that all such campsites were cleared and relocated onto the Campground Property by (or before) 1998. Shortly thereafter, in 1999, Paine and Irene arranged for the construction of a chain link fence on Locus's northerly and easterly boundaries, thus separating Locus from the Campground Property. In connection therewith, they also abandoned an eight foot wide path that had been located along the easterly boundary of Locus, and which ran north from Rama's Way to the Campground Property. [Note 33] [Note 34]
18. Since 1978, Paine and his predecessors in title have paid all property taxes for Locus, obtained and paid for all utilities services for Locus, and have held and obtained homeowner's insurance on the House.
Relevant Holdings from the Campground Case
19. In Campground Case Decisions 1 and 2 and the Campground Case Judgment, this court held, inter alia, that:
(a) "[The Trust has] established title by adverse possession over the entirety of [Lot 78.1a]". [Note 35]
(b) "[The Trust has] not established exclusive use or actual use of the [Smith Parcel] [or] . . . [Lot 178a] . . . , and, thus, [has] not established title by adverse possession to said parcels."
(c) "[Lot 78.1a] . . . and [Lot 178a] can be considered one lot for color of title purposes."
(d) "[The Trust] may rely on the Assessor's Maps to prove [its] color of title claims."
(e) "[The Trust has] obtained color of title to . . . [Lot 178a]."
In sum, the Campground Case Judgment adjudged that the Trust had acquired title to Lot 78.1a by adverse possession, as well as title to Lot 178a by adverse possession under a color of title theory. [Note 36]
Summary judgment is appropriate only where there are no genuine issues of material fact, and where the summary judgment record indicates that the moving party should be granted judgement as a matter of law. Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c). In so doing, the court is to consider the evidence presented and the inferences drawn therefrom in the light most favorable to the non-moving party. Curly Customs, Inc. v. Bank of Bos., N.A., 49 Mass. App. Ct. 197 , 198 (2000).
Paine, in his Motion for Summary Judgment, seeks a ruling that he has established title to Locus by adverse possession under the same color of title theory that this court found to support a finding of adverse possession over Lot 178a. His theory here is that, because Lots 78.1a, 178a, and Locus all previously comprised parts of Lots 57m and 58m (as to which Paine's predecessors in title held color of title deeds at the time of their acts of adverse possession), the acts of adverse possession of the portion of those lots now known as Lot 78.1a are sufficient to establish title by adverse possession over Locus under a color of title theory, just as they established such title to Lot 178a. Sexton disputes this claim, arguing that the facts of this case do not support the same finding of adverse possession over Locus as did the facts at issue in the Campground Case with respect to Lot 178a. He also argues that Paine was not the proper party to have brought the claims at issue, since he is named in this action in his personal capacity, not in his role as trustee of the Trust.
"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 also Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); G. L. c. 260, § 21 (twenty-year period of limitations on actions for the recovery of real property). The claimant can satisfy the twenty-year period by tacking her use onto that of her predecessor(s) in title, Ryan, 348, Mass. at 264, and also by acts of possession authorized to act on her behalf, such as agents or tenants, Lawrence v. Town of Concord, 439 Mass. 416 , 426 (2003). "The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession." Holmes v. Johnson, 324 Mass. 450 , 453 (1949).
In this context, the concept of color of title represents a particular subspecies of adverse possession claims, in which an adverse claimant carries out the usual acts of adverse possession under a defective claim of ownership (such as an of record deed that is ineffective to convey valid title). Long v. Wickett, 50 Mass. App. Ct. 380 , 393-94 (2000). Under this doctrine:
Color of title, in the context of an adverse possession claim, is an assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title. The advantage which a person may gain from that doctrine is that 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. For example, if the act of adverse possession were cultivating a half acre parcel of land, but the claimant held an invalid deed describing three acres, the claimant would have constructive possession of the three acres for the reason that it is the presumed intention of the grantee of the deed to assert such possession.
Norton v. West, 8 Mass. App. Ct. 348 , 350-51 (1970) (internal citations omitted); see also Campground Case Decision 2 at pp. 23-24. This principle applies only to a parcel on which an actual entry has been made; thus, an entry upon one parcel does not give constructive possession over any other parcel--even where multiple parcels are conveyed in the same deed. Dow v. Dow, 243 Mass. at 587, 591 (1923). It also applies only where the physical location of the parcel as to which the defective ownership claim pertains can be ascertained with reasonable certainty. Id. at 590.
Although the matter of preclusion was not briefed by the parties, it should be stated at the outset that my findings in the Campground Case are binding here on Sexton, who was also a defendant in that case. Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43 , 60 (2014) ("Offensive issue preclusion does not require mutuality of parties, so long as there is an identity of issues, a finding adverse to the party against whom it is being asserted, and a judgment by a court or tribunal of competent jurisdiction.'" (quoting Pierce v. Morrison Mahoney LLP, 452 Mass. 718 , 730 (2008))); see also Matter of Brauer, 452 Mass. 56 , 67 (2008) ("[T]he determination of the issues for which preclusion is sought must have been essential to the underlying judgment."); Bellerman, 470 Mass. at 60 ("Once a plaintiff establishes these initial requirements, the central inquiry becomes whether the defendant had a full and fair opportunity to litigate the issue in the first action." (quoting Pierce, 452 Mass. at 730)).
As discussed above, in the Campground Case Decision 2, I determined that Lots 57m and 58m (as described in the 1971 Deed and the 1978 Deeds, and shown on the Assessor's Maps) encompassed all of the land between the parallel northerly and southerly boundary lines shared by Locus, Lot 78.1a and Lot 178a (as shown on the Assessor's Atlas) from Old King's Highway on the west to the Cape Cod National Seashore on the east (less the Smith Parcel). Thus, it followed (and I so held) that the land comprising Lots 57m and 58m, as depicted on the Assessor's Maps, is today shown on the Assessor's Atlas as Locus, Lot 78.1a, a small portion of the Smith Parcel, [Note 37] and Lot 178a. [Note 38] Moreover, on the basis of these findings, together with my finding that "[The Trust had] established title by adverse possession over the entirety of [Lot 78.1a]", I thus ruled, in Campground Case Decision 2, that because the Trust adversely possessed Lot 78.1a under color of deeds for the entirety of Lots 57m and 58m, "[The Trust has] obtained color of title to . . . [Lot 178a]." There is no dispute that Sexton had a full and fair opportunity to litigate both the issue of adverse possession over Lot 78.1a and the application of the doctrine of color of title to Lot 178a. And, it cannot be said that Paine is a stranger to the Campground Case, as he was the active litigant in that case in his capacity as trustee of the Trust. Thus, I FIND that the findings in the Campground Case Judgment are binding on Sexton in this case to the same degree as in the Campground Case.
Accordingly, and based upon the reasoning underlying my findings regarding color of title to Lot 178a (see Campground Case Decision 2 at pp. 23-24), the same conclusion that I reached there now would appear necessarily to apply as to Locus; to wit: because I found adverse possession of Lot 78.1a under color of title to Lots 57m and 58m, such possession should be deemed to extend to the entirety of Lots 57m and 58m (less the Smith Parcel), including Locus.
Of course, color of title can support a claim of adverse possession only if there is no contrary evidence that would tend to defeat that claim. Here, Sexton urges me to conclude that a disparity between who held recorded deeds to the properties forming Locus and who actually used Locus should defeat Paine's claim of adverse possession under color of title. I disagree.
The undisputed evidence in the record clearly reflects that Irene and her husband, Mahan, in concert with the Parents, collaboratively occupied the properties in question while in possession of color of title deeds since at least 1978. At that time, Locus had not yet been carved out of the then- existing Lots 57m and 58m, and there was no physical boundary dividing the land apparently then owned by the Parents (Lot 57m) and that apparently owned by Irene and Mahan (Lot 58m). At or around that time, Irene, Mahan, and the Parents came to an understanding that Irene and Mahan would use the front portion of those lots (today Locus) for their family's residence, and that the remainder would continue to be used for campsites. Doing so afforded Irene and Mahan a certain level of privacy to raise their children, while also enabling them to remain near and participate in the business of the family's operating campground.
These practices continued from August of 1978 until November of 1998 (more than twenty years), when Lot 78a was officially subdivided (creating Locus, Lot 78.1a, and Lot 178a). At or around that time, a fence was constructed to separate Locus from the Campground Property, and Irene received a deed from Mahan purporting to grant her exclusive title over Locus. Irene continued in her use of Locus until 2006, when she sold it to Paine, who has continued to use it since then. It was not until March of 2010 that Sexton filed her objection to this case--almost forty years after the Parents had color of title to Lot 57m (including the northerly portion of Locus) and more than thirty years after Irene and Mahan had color of title to Lot 58m (including the southerly portion of Locus). Based upon these facts, the fact that Lot 57m (including the northerly portion of Locus) was technically owned by the Parents (rather than by Irene) does not operate to defeat Paine's adverse possession claims because it is obvious that Irene was permitted to occupy that portion of Locus on her Parents' behalf--just as her parents had occupied the southerly portion of Lot 78.1a on behalf of Irene and Mahan. This technical split in ownership did not defeat a finding of color of title as to Lot 178a (which I reached in the Campground Case Judgment, and which was then upheld twice on appeal); it likewise does not defeat the instant color of title claim as to Locus. [Note 39] [Note 40]
Sexton next argues that the actual conduct of Irene and Mahan, coupled with that of the Parents, defeats the adverse possession requirement of exclusive possession. This argument, too, is unavailing. Indeed, the very purpose of the doctrine of color of title is that Paine is not required to affirmatively demonstrate actual adverse use of Locus in order to establish adverse possession over it, because the acts sufficient to establish adverse possession over Lot 78.1a are deemed to apply constructively also to Locus. Norton, 8 Mass. App. Ct. at 350-51.
Sexton is correct to note that, in assessing adverse possession claims, there is no legal presumption that the use of property by and between family members is permissive as between themselves. Totman v. Malloy, 431 Mass. 143 , 146 (2000). [Note 41] Here, however, there is no need to rely on such a presumption, as the evidence in the record actually bears that out. For instance, the evidence indicates that Locus was used not just by Irene and Mahan, but also by the Parents for operating campgrounds, which existed on Locus until as late as 1998. Further, the affidavit testimony of Irene and her father clearly reflect a consensual, cooperative relationship under which it was understood that, despite who technically owned which sliver of adjacent land, each party was permitted to use "their" portion for their own particular use. That meant that, while Irene and Mahan technically held the deed to Lot 58m, she permitted her Parents to use the portion of that lot comprising the southerly portions of Lot 78.1a and Lot 178a. Conversely, while the Parents technically held the deed to the northerly portion of Locus, they permitted Irene and Mahan to use most of it for their House lot. These uses were clearly not adverse to each other, but were the consensual acts of family members who had reached an understanding as to how they would divvy up portions of this land that they believed they owned. [Note 42] As such, this conduct does not defeat the adverse possession requirement of exclusive use.
In conclusion, based upon the foregoing discussion, I FIND that Paine has acquired title to Locus by adverse possession under a color of title theory.
Even if, however, the court had not reached this conclusion, the limited factual record before this court strongly suggests that Paine would have a valid adverse possession claim even without resorting to the theory of color of title. As noted, it is known that campsites existed on Locus as of 1978, and perhaps as early as the 1950s. In 1978 and in years following, the House (and various improvements) was built on a portion of Locus, with the remainder continuing to be used for campsites. [Note 43] Irene and her family regularly used Locus (either themselves or for renters) until 2006, when they sold it to Paine, who has continued to use it without interruption. Even with this limited factual record, it thus appears that all of the elements of adverse possession could be met for Locus. [Note 44]
Sexton, for her part, did not come forward with (or, indeed, even acquire) her alleged interest in Locus (so as to effect an entry to interrupt Paine's adverse possession of Locus) until 2010, by which point (as with the Campground Property lots that Paine and his family adversely possessed) the period of limitations for asserting her title claims would have long since expired. See G.L. c. 260, § 21.
In sum, based upon these facts, it appears that the activities on Locus were as continuous, ongoing, and extensive as--if not more than--those performed on the remainder of the Campground Property, and thus would appear to give rise to a prima facie claim of adverse possession. However, while the facts strongly suggest this conclusion, I do not so rule, since that question was not presented in Paine's Motion for Summary Judgment.
Thus I come to Sexton's final claim--namely that, because Paine acquired Lot 78.1a (and Lot 178a) by adverse possession in his capacity as trustee of the Trust (not his individual capacity), he is not (in his individual capacity) the proper party to have asserted the instant color of title claims to Locus. It is unclear what Sexton seeks to gain by making this argument. Even if correct, at most it would mean that Paine would need to amend his pleadings to substitute himself in his capacity as trustee of the Trust as the Petitioner in this case. Perhaps he should--and leave for such an amendment would obviously be given, since it would not affect Sexton in any substantive way. [Note 45] However, for purposes of ruling on the merits of the Motion for Summary Judgment, this court is unconvinced that this technicality (to the extent it is an issue at all) needs to be resolved now.
Having so ruled on the Motion for Summary Judgment, this case will forthwith be transferred to the Land Court Title Examination Department forthwith for completion of that Department's review of this file and the issuance of a Decree of Registration.
A final Decree shall issue upon the completion of all outstanding matters in this case.
[Note 1] By assented-to motion filed on June 26, 2006 and allowed on February 15, 2008, Paine replaced his sister, Irene M. Paine ("Irene"), as the Petitioner in this case after he succeeded to Irene's interest in Locus in 2006.
[Note 2] Paine and his wife, Sheila, are Petitioners in the Campground Case in their capacities as trustees of the Land Steward Trust (the "Trust"). The properties at issue in the Campground Case are discussed below, and the land adjudged to be owned by the Trust is herein referred to as the Campground Property.
[Note 3] On October 7, 1999, Paine moved to amend the Petition to add a claim to remove an eight foot wide path shown on the 1998 Land Court Plan from the final decree plan in this case. That motion was not previously acted upon, but is hereby ALLOWED without objection.
[Note 4] Shortly after service, several parties filed objections to the registration of Locus, which objections were subsequently resolved and withdrawn. Specifically, on June 6, 2008, the Town of Wellfleet (the "Town") filed an objection to this case, which was later withdrawn on July 24, 2009 in connection with a settlement reached between the Town and Paine, whereby the Town agreed to withdraw its objections in both this case and the Campground Case in exchange for Paine's payment of certain back taxes.
On August 4, 2008, Paine moved to amend his Petition to withdraw his request that the certificate of title for Locus include rights to use an adjacent private way (Rama's Way). That request was allowed on August 7, 2008. As a result, on January 4, 2011, abutters Thomas and Janet Reinhart (who do not appear to have filed a formal objection) notified the court that they did not object to the registration of Locus.
[Note 5] More specifically, Sexton claimed that two 1856 deeds in Paine's chain of title described property other than Locus. She further claimed that she herself held a 1/12 fractional interest in the westerly portion of Locus (as well as an adjacent portion of the Campground Property) by virtue of an alternative chain of title tracing back to the grantee of an 1875 deed, from whose alleged heirs she obtained a release deed less than a week before filing her Answer. Subsequent to filing her Answer, Sexton recorded a number of additional deeds (from additional heirs of the grantee of the 1875 deed), and thus claimed additional fractional interests in Locus via the same alternative chain of title.
While she did not state as much in her Answer in this case, in the Campground Case, Sexton also claimed a separate interest in the easterly portion of Locus (as well as an adjacent portion of the Campground Property) via a different chain of title tracing back to the grantee of an 1836 deed, from whose alleged heirs Sexton obtained another release deed in 2010. Also of note, in the Campground Case, Sexton also alleged having obtained release deeds from two charitable organizations who, based on the Title Examiner's report, appear to represent two missing interest- holders in Paine's chain of record title. However, Sexton alleged that this claim applied to a different portion of the Campground Property. She did not set forth this title claim in her Answer in this case.
It should be noted that Sexton's claim of title was not addressed or adjudicated on the merits in the Campground Case, nor is it adjudicated in this Decision. The court makes note of it solely for purposes of context.
[Note 6] I also allowed bifurcation of these issues in the Campground Case. The reason for this approach was that the title issues (which were far more complex) would become moot if Paine could prove adverse possession.
[Note 7] Following the issuance of Campground Case Decision 1, the parties jointly requested that this case be stayed pending the resolution of the Campground Case, which I allowed on October 30, 2012.
[Note 8] My specific rulings as to which properties the Trust had acquired by adverse possession (and which it had not) are discussed in detail in the fact section below.
[Note 9] The Campground Case has been assigned to Land Court Title Examiner James Bothwell for issuance of a final Decree. This resolution is currently pending, awaiting the submission of an updated A-2 plan by the Trust.
[Note 10] Paine's motion was supported by a memorandum of law, a statement of material facts, and an appendix of nineteen exhibits, including an affidavit of registered land surveyor Robert J. Freeman ("Freeman") with Schofield Brothers, which included six additional exhibits. In his affidavit, Freeman outlines his opinion (based upon his review of the first five exhibits to his affidavit, which were also exhibits in the Campground Case) regarding the relationships between the various lots at issue in this case. The sixth exhibit to his affidavit is essentially a chalk describing how he reached that conclusion.
[Note 11] Sexton's opposition brief consisted of a memorandum of law, a response to Paine's statement of material facts, an appendix of five exhibits, and an affidavit of registered land surveyor Chester Nimitz Lay ("Lay") with Slade Associates, Inc. In his affidavit, which included four additional exhibits, Lay describes the area of the subject properties to which Sexton claims an interest. One of those exhibits is a sketch, prepared by Lay, depicting the lots in which Sexton has claimed various interests in both this case and in the Campground Case (the "Slade Sketch"). Lay's affidavit does not address in any way Paine's adverse possession (or color of title) claims presently at issue except insofar as it seeks to establish that Paine's chain of Title does not actually describe Locus.
[Note 12] Paine's reply brief consisted of a memorandum of law and a supplemental appendix of five additional exhibits.
[Note 13] Together with her opposition brief, Sexton also filed a motion to strike Freeman's affidavit, arguing that it had not been based on Freeman's own personal knowledge. Paine's opposition to this motion to strike (filed together with his reply brief) included a supplemental affidavit of Freeman attesting that his prior affidavit was based on his personal knowledge. Having reviewed Freeman's two affidavits, the court is satisfied that Freeman's statements are based on his personal knowledge, which he acquired based upon his review of relevant documents and his knowledge and familiarity with the properties at issue both in this case and in the Campground Case. Sexton's motion to strike is thus DENIED.
[Note 14] As discussed more fully below, my findings in the Campground Case are binding on the parties to this case.
[Note 15] In the Campground Case, Paine, as trustee of the Trust, claimed adverse possession over the Smith Parcel, which is a former railroad right of way running through the properties at issue. In Campground Case Decision 1, I held that the Trust had not demonstrated adverse possession of the Smith Parcel. The Trust thereafter withdrew its claim to the Smith Parcel after obtaining easement rights (see Registry at Book 26608, Page 301) therein from its record owner.
[Note 16] In order to differentiate the lots depicted on the Assessor's Maps from those shown on the Assessor's Atlas (defined below), I will append the notation "m" to the numbering of lots shown on the Assessor's Maps and the notation "a" to the numbering of lots shown on the Assessor's Atlas. For example, lot "57" on the Assessors' Map will be referred to as Lot 57m and lot "78.1" on the Assessor's Atlas will be referred to as Lot 78.1a.
[Note 17] This finding is based on Campground Case Decision 1, in which I held that "Lots 57[m] and 58[m] correspond to what would be today the area of [Lots 2 and 3 on the 1998 ANR Plan] and an adjacent lot that is the subject of another case, 99 REG 43286 [i.e., Locus]." The Smith Parcel is not shown or labeled on the Assessor's Maps.
[Note 18] Unlike the Assessor's Maps, the Assessor's Atlas does show the Smith Parcel, which it labels as lot "245".
[Note 19] The copies of the Assessor's Maps in the record contain handwritten notations that appear to cross-reference the lot numbers on the Assessor's Atlas with those on the Assessor's Maps. Thus, Lots 57m and 58m contain handwritten notations of "79" and "78", respectively. The first edition of the Assessor's Atlas dated January 1, 1993 (in evidence in the Campground Case) did not show Lot 78a as a single lot, but rather as two lots (labeled lots "79" and "78") that appear to correspond to Lots 57m and 58m. At some point among the nineteen occasions between 1993 and 2010 when the Assessor's Atlas was revised, the two lots "79" and "78" were merged into one lot--i.e., Lot 78a.
[Note 20] Locus, Lot 78.1a, and Lot 178a are also depicted on the 1998 Land Court Plan. As noted above, Locus, on said plan, is shown as lot "1". Lots 78.1a and 178a are not separately labeled on the 1998 Land Court Plan. They form part of the land sought to be registered in the Campground Case (which, collectively, is labeled lot "2" on said plan). As discussed below, in Campground Case Decision 1, I held that the Trust had adversely possessed Lot 78.1a. Later, in Campground Case Decision 2, I held that the Trust, by virtue of its adverse possession of Lot 78.1a while apparently holding title to lots encompassing both Lot 78.1a and Lot 178a, also acquired title to Lot 178a by adverse possession under the theory of color of title. Paine now urges me to apply the same theory to Locus as I applied to Lot 178a, since the same deeds under which the Trust apparently owned Lot 78.1a and Lot 178a also included Locus.
[Note 21] As noted above, I allowed the parties to adjudicate Paine's adverse possession claims prior to his record title claims, so the summary judgment record provides only the most recent title history to Locus (starting in 1971). As a review of the Title Examiner's abstract reveals, Paine's record title claims appear to be vastly more complex, and would involve a review of myriad deeds, probate records, and genealogical charts going back to before the Revolutionary War. Briefly put, the Title Examiner's opinion was that Paine's chain of title suffered from multiple missing fractional interests, and that his claim to registration of Locus would need to rely on his adverse possession claims. This opinion does not advance Sexton's title claims (as her title claim is not at issue in this registration action), nor does it benefit her opposition to Paine's claims.
[Note 22] The testimony at trial in the Campground Case established that the grantors of the 1978 Deeds and the 1971 Deed were distant relatives of Paine and Irene.
[Note 23] In his title report, the Title Examiner opined that the 1978 Deeds were effective to convey, at most, only a fractional interest in Lot 58m due to multiple missing heirs in the chain of title. In the Campground Case, Sexton alleged having received release deeds from two missing interest-holders, although she believed this title claim to apply to a different lot (which is shown on the Slade Sketch as lot "15"). Even if true, based on the Title Examiner's report, it would appear that at least an additional 1/6 interest in Lot 58m remains missing.
[Note 24] The 1998 Irene Deed, which makes reference to the 1978 Deeds as the source of Mahan's title, contains several notable irregularities. First, because the 1978 Deeds, at best, could have conveyed an interest only in Lot 58m (i.e., the southerly section of Lot 78a), it could not have conveyed any interest in the northerly section of Lot 78a (i.e., Lot 57m), which was then owned by the Parents pursuant to the 1971 Deed. Second, although the 1998 Irene Deed specifically identifies Lot 78a as the property conveyed thereby, its metes and bounds description (which tracks language in the 1971 Deed and the 1978 Deeds) purports to include Lot 178a as well, in that it states that the property conveyed extends easterly to the Cape Code National Seashore (excepting the relevant portion of the Smith Parcel), rather than stopping at western edge of the Smith Parcel.
[Note 25] Concurrently with the 1998 Irene Deed, Irene granted Mahan a mortgage secured by the same property purportedly conveyed by said deed (i.e., Lot 78a and 178a). See Registry at Book 11548, Page 235. In November of 1998, Mahan granted Irene a partial release of said mortgage (as to Lots 78.1a and 178a only, not as to Locus) by reference to said lots as they are depicted on the 1998 ANR Plan. See Registry at Book 11916, Page 209. Mahan granted Irene a release for the lien on Locus in July of 2003. See Registry at Book 17580, Page 44.
[Note 26] The irregularities in this conveyance are twofold. First, because the Parents, as trustees of the Trust (not Irene) already owned the portion of Lots 78.1a and 178a that was formerly part of Lot 57m, Irene's purported conveyance of this land was both ineffective and redundant. Second, because the Parents, as trustees of the Trust (not Irene) owned the portion of Locus that was formerly part of Lot 57m, Irene had no interest in said portion of Locus to retain.
[Note 27] There is nothing of record indicating when Paine's father ceased to be a trustee of the Trust.
[Note 28] Because, as noted above, Irene never had any fee title interest in the (northerly) portion of Locus that was previously part of Lot 57m, the 2006 Deed, at best, conveyed to Paine only Irene's interest in the (southerly) portion of Locus, which was previously part of Lot 58m. However, in his capacity as trustee of the Trust, Paine already held an apparent title interest in the portion of Locus that Irene was incapable of conveying. Thus, effective as of the recording of the 2006 Deed, Paine (either in his capacity as trustee or his individual capacity) held an apparent record title interest in the entirety of Locus.
[Note 29] As discussed above, Sexton claims that this 2010 deed granted her a 1/12 fee interest in a lot--shown as lot "6" on the Slade Sketch--composed of the westerly portion of Locus and an adjacent portion of the Campground Property. This claim derives from a different chain of title from Paine's. After filing her Answer, Sexton recorded several deeds purportedly granting additional fractional interests in the same lot. Paine argues that the property interests purportedly conveyed by these deeds pertain to a different lot, located to the northeast of the Campground Property.
As further noted above, in the Campground Case, Sexton also claimed an interest based upon a different chain of title in another lot--shown as lot "16" on the Slade Sketch--composed of the easterly portion of Locus and an adjacent portion of the Campground Property. Also, via yet another chain of title, Sexton allegedly obtained release deeds from what appear to be two missing interest-holders in Paine's chain of title to Lot 58m (and thus part of Locus), although she claimed this fee interest applied to a different part of the Campground Property--shown as lot "15" on the Slade Sketch.
None of these title issues was addressed in Campground Case Decisions 1 or 2.
[Note 30] As shown on the 1998 ANR Plan, the House is set back from Old King's Highway approximately one-third of the way back on Locus (west to east) and straddles the boundary between the former Lots 57m and 58m, with most of the structure located to the south of that line.
[Note 31] As shown on the 1998 ANR Plan, this driveway appears to run along the boundary line between the former Lots 57m and 58m. The 1998 ANR Plan also depicts a second driveway running from the House to Rama's Way to the south. However, it is unclear whether that driveway was ever actually laid out. Possibly it was discontinued in connection with Paine's withdrawal of his claim of rights in Rama's Way. See note 4, supra. In any event, even if it ever did exist on the ground, it is clear that it is no longer used, as a 2012 plan (submitted in a prior filing in this case by Sexton) indicates that various improvements have been made in that area of Locus. See note 33, infra.
[Note 32] Irene and Mahan divorced in 1984. It was not clear from her testimony whether their children lived with Irene when she was in occupancy of Locus after her divorce.
[Note 33] A 2012 plan prepared by Schofield Brothers (annexed to a prior filing in this case by Sexton) shows a stockade fence enclosing the southerly boundary of Locus. It is unclear when this fence was constructed. The same plan also shows a number of additional improvements to Locus, including multiple wood piles, a mail box, a retaining wall, a driveway (connecting to Old King's Highway), a parking area, a deck, several gardens, a fenced-in yard, a fenced-in equipment storage area, multiple sheds, and a chicken coop. It is unknown when or by whom any of these improvements were made.
[Note 34] Most of the activity on Locus appears to have been focused in the area of the House and its surrounding improvements. However, Paine also alleged that, after the campsites were removed from Locus, the area of Locus to the east of the House was used for foraging firewood and clearing of dead trees and brush. He also alleged that "No Trespassing" signs are posted throughout Locus, and that any trespassers found on Locus were asked to leave. These allegations (which were made by Paine in the parties' joint pre-trial memorandum in this case, filed on July 6, 2012, at which time this case appeared to be moving towards an eventual trial, and before the case was stayed pending the resolution of the Campground Case) are not agreed-to by Sexton, and thus will not factor into the court's reasoning.
[Note 35] This holding was based on my finding of more than twenty continuous years of actual, open and notorious, exclusive, and adverse use from the 1950s to 2009.
[Note 36] In addition to Lots 78.1a and 178a, I also found that the Trust had acquired title to Lots 80, 81.1 81.2, 81, 171S, 172S, and 173, as well as the portions of Lots 82 and 83S located south of the Iron Pipe Fence (as defined in Campground Case Decision 1)--all as depicted on the Assessor's Atlas. References herein to the Campground Property shall refer to this group of properties found to be owned by the Trust in the Campground Case. As to all other lots at issue in the Campground Case, either I found them not to be owned by the Trust, or the Trust withdrew all claims to them.
[Note 37] The relevant portion of the Smith Parcel would have also been part of Lots 57m and 58m, but the Trust withdrew its adverse possession claims to the Smith Parcel after contracting for easement rights in it. Thus, in the Campground Case, I made no determination that the Trust had acquired title to the portion of the Smith Parcel that had been located within Lots 57m and 58m.
[Note 38] This conclusion was not only warranted based on the record in the Campground Case, but is also supported here by the testimony of Freeman in his affidavit and the exhibits annexed thereto.
[Note 39] Sexton's citation of Macallister v. DeStefano, 18 Mass. App. Ct. 39 , 43 (1984), wherein the court held that "[a]pplication of the doctrine of color of title rests upon the deed to the claimants", does not undermine this conclusion. In Macallister, at issue was whether the description of property in a particular deed in a chain of title was sufficiently definite to give rise to a color of title claim. In that context, the court held that only the deed under which adverse possession was made (which contained the description of the property at issue) was relevant--not a prior deed in the chain of title containing an imprecise property description. Here, there is no dispute as to the definiteness of the property description at issue, as that issue was already decided in the Campground Case.
[Note 40] It could be argued that the case for applying the color of title theory is perhaps even stronger as to Locus (as to which there was extensive evidence of actual, adverse use) as it was for applying the theory to Lot 178a (as to which there was little evidence of any use).
[Note 41] Thus, one could adversely possess property owned of record by a member of her own family. This cuts both ways, however, because it means that Irene and Mahan could have adversely possessed the portion of Locus apparently owned of record by the Parents by their use thereof from 1978 to 1998--a possibility as to which neither party argued.
[Note 42] Likewise, in the Campground Case, the fact that other members of the Paine family (including Irene) lived on the Campground Property at various times did not serve to disrupt the requirement of exclusive use. There, as here, it was clear that the Paine family's acts of possession were intentionally permissive and cooperative as between each other.
[Note 43] As to any wooded portions of Locus, the same reasoning I applied in the Campground Case (i.e., that uncleared wooded areas were "used" insofar as they served as screening between developed areas) would apply equally here.
[Note 44] As noted, adverse possession requires "nonpermissive use which is  actual,  open [and] notorious,  exclusive and  adverse for twenty years." Ryan, 348 Mass. at 262. Satisfying the first element (actual use) requires demonstrating continuous (not intermittent) use "as the average owner would use it." Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157 (2011). The facts needed to meet the second element (open and notorious use) may "vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put." Ryan, 348 Mass. at 262 (quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938))."While the owner's actual knowledge of such use is not required, the use must be such that the owner should have known of it." Sea Pines, 61 Mass.App.Ct. at 847 (internal citations omitted). To meet the third element (exclusive use), the "use must encompass a disseisin' of the record owner . . . [and] all third persons to the extent that the owner would have excluded them." Peck v. Bigelow, 34 Mass. App. Ct. 551 , 557 (1993). To satisfy the fourth element (adverse, or non-permissive use), the claimant must show "lack of consent from the true owner." Totman, 431 Mass. at 145 (quotation omitted). Based upon the limited factual record before me, it appears that each of these elements could be satisfied, both with respect to the use of Locus for a campground (1950s to 1998) and for the House (August 1978 to November 1998).
[Note 45] Notably, Paine has offered to do so, and, indeed, has advised that he intends to deed Locus into the Trust--a copy of which deed, in unrecorded form, was annexed to his reply brief.