ROBERT A. BORAWSKI v. EDWARD J. GRALINSKI, JR. and DIANE GRALINSKI.

The central question in this case is whether Defendants have adversely possessed all, or a portion of a vacant, one acre parcel of land in Hadley Massachusetts. Plaintiff Robert A. Borawski filed a Complaint in this court on May 8, 2014, seeking to quiet title to said parcel in the face of adverse possession assertions made by Defendants Edward J. Gralinski, Jr. and Diane Gralinski. In response to Borawski's Complaint, the Defendants counterclaimed for adverse possession of the parcel. On July 19, 2016, the court denied the Defendants' Motion for Summary Judgment due to disputes of material fact and the Defendants' failure to marshal sufficient evidence to demonstrate that they had, as claimed, continuously cultivated a portion of the subject parcel for the statutory period required to establish title by adverse possession.

A trial was conducted on March 20, 2017. The Parties stipulated to fifteen statements of fact and to the admission of thirty-two (32) agreed exhibits. But only the Plaintiff testified. [Note 1] Following receipt of the trial transcripts and the Parties' respective proposed findings of fact and rulings of law, the court took the matter under advisement on May 1, 2017.

Now, as discussed below, I find and rule that the Defendants/Plaintiffs-in-Counterclaim have failed to demonstrate continuous adverse use of the subject parcel, or any portion thereof, for the statutory twenty year period. Further, I find that Plaintiff has failed to present facts sufficient to establish his record title to, and possession of, the subject parcel for purposes of obtaining an in rem judgment quieting title under G.L. c. 240, § 6.

FINDINGS OF FACT

Based on the pleadings, the Parties' statement of agreed facts, the admitted exhibits, and the trial testimony, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues:

1. Plaintiff Robert A. Borawski claims to be the record owner of a triangular-shaped parcel of land situated at the intersection of North Maple Street and Mount Warner Road in Hadley, Massachusetts, as shown on a survey plan prepared for him in 1992 (the "Subject Parcel"). The Defendants have stipulated to Plaintiff's record ownership of the Subject Parcel. [Note 2]

2. The 1992 survey plan of the Subject Parcel is entitled, "A Plan of Land in Hadley (Hampshire County) Massachusetts surveyed for Robert A. Borawski," dated February 11, 1992, and was recorded with the Hampshire Registry of Deeds ("Registry") in Plan Book 173, Page 19 on February 14, 1992 (the "1992 Survey Plan"). [Note 3]

3. The 1992 Survey Plan labels the entire southern boundary of the Subject Parcel with the words "approximate edge of cultivation from AR-Photo dated 10-13-39." The 1992 Survey Plan also identifies a portion of the Subject Parcel as "cultivated." The "cultivated" area is shown as extending more than halfway into the Subject Parcel from its southern boundary.

4. The 1992 Survey Plan identifies Stephen J. Gralinski, Edward J. Gralinski, Jane C. Gralinski, and Edward J. Gralinski, Jr. as current or former owners of the land abutting the southern boundary of the Subject Parcel (the "Gralinski Land").

5. Defendants Edward J. Gralinski, Jr. and Diane Gralinski claim to have once held interests in the Gralinski Land by deed dated July 22, 1977, and recorded in the Registry at Book 1966, Page 259. The Plaintiff does not dispute this claim.

6. On October 24, 2007, the Gralinskis recorded a plan entitled "Subdivision Approval Not Required Plan of Land in Hadley, Massachusetts prepared for Edward J. Gralinski, Jr.," dated February 6, 2007, in Plan Book 216, Page 123 (the "2007 ANR Plan").

7. The 2007 ANR Plan depicts the division of the Gralinski Land into four lots numbered 1 through 4.

8. As shown on the 2007 ANR Plan, the southern boundary of the Subject Parcel is also the northern boundary of Lot 2 and Lot 3. The 2007 ANR Plan labels the two end points of that shared boundary line as "A" and "B." [Note 4] The shared boundary line shown on the 2007 ANR Plan is the same boundary line shown on the 1992 Survey Plan.

9. By deed recorded with the Registry on June 16, 2008, in Book 9514, Page 351, the Gralinskis conveyed Lot 3 to Patrick A. Galvin. Lot 3 was subsequently conveyed by Galvin to Melba B. Jenson and David D. Jenson by deed recorded with the Registry on October 23, 2009, in Book 10000, Page 263.

10. By deed recorded with the Registry on July 23, 2009, in Book 9903, Page 182, the Gralinskis conveyed Lot 2 to Matthias Kaindl. Lot 2 was subsequently conveyed by Kaindl to Ronald William Hickie, Jr. and Kimberly L.H. Hickie by deed recorded with the Registry on December 17, 2010, in Book 10415, Page 271.

11. The Parties agree that, from 1992 to 2007, the Gralinskis cultivated and farmed the portion of the Subject Parcel which is identified as the "cultivated" area on the 1992 Survey Plan. The Parties also agree that, between 1992 and 2007, Plaintiff was aware of the Gralinskis' cultivation of the Subject Parcel but raised no objection.

12. At some point in 2009 or 2010, when residences were under construction on the lots formerly owned by the Gralinskis, Plaintiff visited the Subject Parcel and observed that the formerly cultivated area was then "fallow," and no longer being farmed.

13. When Plaintiff again visited the Subject Parcel in 2013 or 2014, he observed that the land was once again being plowed and planted. He learned that the farming was being done by Wally Czajkowki, who lives across the street from the Subject Parcel.

14. Plaintiff never objected to the farming he observed on the Subject Parcel until 2014.

15. In April, 2014, prior to filing this action, Plaintiff entered into a Boundary Line Agreement with the owners of Lot 2, and the owners of Lot 3, agreeing that the line between points "A" and "B" as shown on the 2007 ANR Plan is the boundary line between said Lots and the Subject Parcel. The Boundary Line Agreement was recorded with the Registry on May 2, 2014, in Book 11633, Page 97.

DISCUSSION

The Counterclaim for Adverse Possession

As the crux of the dispute between the Parties centers on the Defendants' claim to have adversely possessed the Subject Parcel, I begin with the Defendants' Counterclaim for adverse possession. "Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003) (internal quotation marks omitted). The burden of proof, carried by the claimant, extends to all elements. Id. To prevail, the adverse claimant must prove that each of these above elements continued uninterrupted for a period of at least twenty years. G.L. c. 260, §§ 21-22; see also Kendall v. Selvaggio, 413 Mass. 619 , 621 (1992).

Here, the Parties are in agreement that the Gralinski family openly cultivated and farmed a significant portion of the Subject Parcel between 1992 and 2007. However, there is no evidence or testimony that the farming activity continued once the Gralinski Land was divided into house lots and sold to third parties. On the basis of the evidence, therefore, the Gralinski family's farming activities on the Subject Parcel continued, uninterrupted for, at most sixteen (16) years – and thus at least four (4) years short of the twenty years required to establish title by adverse possession. Even if I were to infer that the resumed cultivation of the disputed area in 2013 or 2014 by Wally Czajkowki could be attributed to or "tacked" to the Gralinskis' earlier adverse use (which, on this sparse trial record, I cannot [Note 5]), the approximately six or seven year interruption in the continuity of the farming use prevents the accrual of title by adverse possession. See, e.g., Marshall v. Francis, 332 Mass. 282 , 287 (1955) (where adverse claimant moved to another state and only occasionally returned to the locus, "the interruption of possession" prevented acquisition of title). Accordingly, where the Gralinskis' adverse use of the Subject Parcel has been shown to have continued without interruption for, at most, sixteen years, the Defendants' claim of adverse possession fails. Judgment shall therefore enter declaring that the Defendants have not acquired the Subject Parcel from the Plaintiff by adverse possession.

Plaintiff's Count I Quiet Title Claim

Turning next to Plaintiff's action under G.L. c. 240, §§ 6-10 to quiet his title to the Subject Parcel, Plaintiff had the burden of establishing the sufficiency of his own title - not simply by demonstrating the weaknesses or nonexistence of the Defendants' title. Sheriff's Meadow Found., Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987). Plaintiff was thus required to provide affirmative proof of his record title to the Subject Parcel, including the instrument of record vesting Plaintiff with ownership in that Parcel. He did not do so.

Plaintiff relies exclusively on the 1984 deed to show his title to the Subject Parcel and, in particular, points to the second parcel described in that deed. But, while the 1984 deed describes the conveyance of land to Plaintiff – namely, that "certain other parcel" described, not by metes and bounds, but by reference to highways and owners of abutting land – the 1984 deed describes that parcel as being located in "Plainville" rather than in Hadley. Plaintiff offered no explanation for this obvious discrepancy.

Moreover, he proffered no evidence of a scrivener's error in the name of the Town such as by showing that (a) the highways reference in the 1984 deed are the same streets as now front along the Subject Parcel, or (b) that the owners of abutting land referenced in the 1984 deed in fact once owned land adjacent to the Subject Parcel. Plaintiff submitted no prior deeds or plans in his chain of title, and proffered no expert testimony from a title examiner or land surveyor confirming that the parcel described in the 1984 deed is, in fact, the Subject Parcel. Contrast, e.g., Doherty v. Ulrich, 54 Mass. App. Ct. 1108 , *1 (2002) (Rule 1:28 Decision) (noting that, in quiet title action, judge was warranted in crediting expert opinion of plaintiffs' engineer and land surveyor who "determined from information available to him, including deeds, plans, and the location of abutters' parcels, that the plaintiffs' chain of title, rather than that of the defendant, related to the locus in dispute"). For purposes of obtaining an in rem judgment under G.L. c. 240, §§ 6-10, the Defendants' stipulation that Plaintiff has record title to the Subject Parcel is simply not enough.

Accordingly, as Plaintiff failed to meet his burden of proof to establish his record title to the Subject Parcel, judgment must enter dismissing Count I of Plaintiff's Complaint.

Plaintiff's Count II Declaratory Judgment Claim

Finally, Count II of Plaintiff's Complaint seeks a "declaratory judgment" under G.L. c. 231A, but Count II does not articulate the precise nature of the controversy to be resolved through a declaratory judgment separate from the "cloud . . . cast upon plaintiff's title to [the Subject Parcel]." Also, the Complaint does not differentiate between the declaratory relief sought in Count II and the relief sought in Count I. [Note 6]

As discussed above, a G.L. c. 240, §§ 6-10 action to quiet title is an in rem action, which may only be brought by a person in possession with record title. Since Plaintiff here did not demonstrate his record title to the Subject Parcel, he is not entitled to relief under G.L. c. 240, §§ 6-10. Moreover, the Defendants have failed in their counterclaim for adverse possession of the Subject Parcel. But, to the extent that there remains any other dispute between the Parties concerning the ownership of the Subject Parcel, judgment will enter declaring that the Defendants have not acquired the Subject Parcel by adverse possession.

CONCLUSION

Based upon the foregoing, Defendants' Counterclaim for adverse possession will be dismissed, Plaintiff's Count I claim to quiet title will be dismissed, and a declaratory judgment will enter declaring that the Defendants have not acquired title to the Subject Parcel by adverse possession.