TL 10-140513

May 14, 2013


Foster, J.


On August 31, 2009, the Town of Lancaster (Town) took a 14.5 acre parcel of land for nonpayment of taxes. The property is assessed to “Owner Unknown.” In this action to foreclose the right of redemption, Steve Boucher, Central Mass. Sand & Gravel, LLC (CMSG), and Stephen A. Harper intervened as defendants and offered to redeem the property. The Town refused, and these defendants have now brought Defendants Steve Boucher, Central Mass. Sand & Gravel, LLC and Stephen A. Harper’s Motion for Summary Judgment (Summary Judgment Motion), seeking a judgment that they be allowed to redeem the property “by paying all taxes, interest and costs necessary to redeem in this action.” Because facts remain in dispute as to their right to redeem, the Summary Judgment Motion is DENIED.

Procedural Background

The Town filed its complaint on May 13, 2010 against defendant Owner Unknown. On June 1, 2010, Boucher, CMSG, and Harper filed the Motion of Steve Boucher, Central Mass. Sand & Gravel, LLC, and Stephen A. Harper to Intervene as Defendants (Motion to Intervene) and the Answer and Offer of Redemption of Defendants Steve Boucher, Central Mass. Sand & Gravel, LLC, and Stephen A. Harper (Answer). The Motion to Intervene was allowed on August 3, 2010, and the Answer was filed on August 13, 2010. Boucher, CMSG, and Harper filed the Summary Judgment Motion, their Statement of Material Facts, their Memorandum in Support, their Land Court Rule 4 Brief, and the Affidavits of Stephen A. Harper and Steve Boucher on August 30, 2012. The Town filed its Opposition to Motion for Summary Judgment and its Response to Statement of Facts on November 15, 2012, and Boucher, CMSG, and Harper filed their Reply Brief on November 28, 2012. Hearing on the Summary Judgment Motion was held on November 29, 2012, and the Court took the Summary Judgment Motion under advisement. This Order follows.

Factual Background

The following facts are undisputed.

The land that is the subject of this action is a parcel of approximately 14.5 acres in the Town, and is shown on the Town’s assessors records as Parcel Identifier: 14-13 (Property). Boucher is the owner of CMSG. Boucher acquired record title to the Property by a deed from Harrison P. Eddy, III, dated July 6, 2006 and recorded in the Worcester Registry of Deeds (registry) at Book 39709, Page 58 on September 1, 2006 (the Eddy Deed).

In August 2006, the Town’s Board of Assessors (assessors) sought permission from the Department of Revenue (DOR) to assess taxes on the Property to Owners Unknown, pursuant to G.L. c. 59, § 11. On August 14, 2006, DOR authorized the assessors to assess taxes on the Property to Owners Unknown.

Since August 2006, Boucher, CMSG, and Harper have repeatedly advised the Town of Boucher’s title to the Property and CMSG’s and Harper’s possession of the Property and have sought on numerous occasions to be assessed and to pay the taxes on the Property. The Town has repeatedly refused to accept tax payments on the Property from Boucher, CMSG, and Harper.

In September 2007, the Town issued CMSG a special permit to remove earth products from the Property.

On August 31, 2009, the Town’s collector of taxes took the Property for nonpayment of taxes.

In February 2010, the Town issued CMSG another special permit to remove earth products from the Property.


Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

The question that Boucher, CMSG, and Harper raise in their Summary Judgment Motion is whether any of them has the right to redeem the Property from the Town’s taking.

Any person claiming an interest, on or before the return day or within such further time as may on motion be allowed by the court, shall, if he desires to redeem, file an answer setting forth his right in the land, and an offer to redeem upon such terms as may be fixed by the court. Thereupon the court shall hear the parties, and may in any case in its discretion make a finding allowing the party to redeem, within a time fixed by the court, upon payment to the petitioner of an amount sufficient to cover the original sum, costs, interest at the time rate of sixteen per cent per annum and all subsequent taxes, cost and interest to which the petitioner may be entitled under sections sixty-one and sixty-two, together with the costs of the proceeding and such counsel fee as the court deems reasonable.

G.L. c. 60, § 68. Boucher, CMSG, and Harper have filed an answer and offered to redeem the Property. In their answer, they have set forth the interest or rights in the Property they claim to hold. The Town disputes that any of them has a sufficient interest in the Property and has refused their offer to redeem.

By this Summary Judgment Motion, Boucher, CMSG, and Harper are asking the court “in its discretion [to] make a finding allowing [them] to redeem.” Id. Given “the respect with which our society regards private ownership of property,” § 68 reflects “the long standing policy in this Commonwealth [that] favors allowing an owner to redeem property.” Town of Lynnfield v. Owners Unknown, 397 Mass. 470 , 473-474 (1986); Union Trust Co. v. Reed, 213 Mass. 199 , 201 (1912). This policy means that the Court’s “discretion contemplated by the Legislature in enacting the redemption provisions of c. 60 is not absolute, but is limited to determining a party’s ownership interest in the property and his or her financial capability to redeem, and to setting the terms of the redemption.” Town of Lynnfield, 397 Mass. at 475.

Thus, the Court is obliged to determine whether, on this record, Boucher, CMSG, and Harper have established that one of them has an ownership interest in the Property sufficient to give them the right to redeem. Town of Edgartown v. Goodrich, 13 LCR 604 , 605 (2005); see Town of Oak Bluffs v. Marston, 19 LCR 535 , 535-536 (2011); see Jenney v. Tilden, 270 Mass. 92 , 95 (1930) (court “shall hear the parties and may . . . make a finding allowing a party to redeem”). The interest in property entitling a party to redemption “includes all varieties of titles and rights. When given its plain and natural meaning it comprehends estates in fee, for life and for years, mortgages, liens, easements, attachments, and every kind of claim to land which can form the basis of a property right.” Union Trust Co., 213 Mass. at 201. A redeemable interest includes such rights as an undivided fractional interest, see Town of Lynnfield, 397 Mass. at 471; an interest in mill sites and appurtenant mill powers, see Crocker-McElwain Co. v. Assessors of Holyoke, 296 Mass. 338 , 350 (1937); and a judgment creditor lien, see Union Trust Co., 213 Mass. at 200.

Boucher, CMSG, and Harper assert three different interests in the Property that they claim are sufficient to support a finding that they are allowed to redeem. First, they allege that their possession of the Property, through CMSG’s gravel removal operations, is an interest entitling them to redemption. Mere possession is not a property interest sufficient to entitle a party to redemption. As described in Union Trust Co. and other cases, the interest entitling a party to redemption must be an actual property interest—a fee interest, a fractional interest, a recorded lien, an estate of years (i.e., a leasehold), or some other interest in the land. Union Trust Co., 213 Mass. at 201. CMSG’s right to remove gravel from the Property and carry it away is a license, and as a license, it “conveys no interest in land.” Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 55 (1938); Drake v. Wells, 11 Allen 141 , 142 (1865); Reed v. Merrifield, 10 Met. 155 , 158-159 (1845). CMSG’s license “merely excuses acts done by one on land in possession of another that without the license would be trespasses.” Baseball Publishing Co., 302 Mass. at 55. The September 2007 and July 2010 special permits to remove earth products issued to Boucher and CMSG by the Town do not convey any property interest to CMSG or in any way convert CMSG’s license into a right to redeem. [Note 1]

Second, Boucher, CMSG, and Harper state that they have title to the Property by adverse possession, and such title is sufficient to give them the right to redeem. Adverse possession can be the basis of title to real estate, and title by adverse possession does give the titleholder the right to redeem. The issue in this motion is whether Boucher, CMSG, and Harper have established that any of them acquired such title. “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. Concord, 439 Mass. 416 , 421 (2003), quoting from Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992). “The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. If any of the elements remains unproven or left in doubt, the claimant cannot prevail.” Sea Pines Condominium III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004), citing Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968) and Holmes v. Johnson, 324 Mass. 450 , 453 (1949).

The only evidence Boucher, CMSG, and Harper present to support their assertion that any of them has acquired title to the Property by adverse possession is the Affidavit of Stephen A. Harper. In his affidavit, Harper states: “My relatives and I began clearing trees from the Locus prior to 1992 and began conducting farming activities on the Locus in 1998.” He goes on to state: “My farming activities on the Locus continued from 1998 until September of 2007, at which time [CMSG], pursuant to a permit issued by the town, began removing gravel from the Locus.” Finally, he states: “Since 1992 and through today, [CMSG], defendant Steve Boucher, myself and my family members had have exclusive, continuous and uninterrupted possession of the Locus.” These statements are insufficient to serve as evidence to support all the elements of adverse possession. Affidavits in support of a summary judgment motion must set forth averments to specific facts. First Nat’l Bank of Boston v. Ibarra, 47 Mass. App. Ct. 660 , 663 (1999) (affidavits in the materials could not be fairly read as proof due to lack of specificity). “Vague and general allegations of expected proof are wholly inadequate,” O’Brion, Russell and Co. v. LeMay, 370 Mass. 243 , 245 (1976), and “generalized statements…devoid of specific details” are insufficient. Haverty v. Commissioner of Corr., 437 Mass. 737 , 754 (2002). Harper’s general statement about farming activities and his bare assertion that Boucher, CMSG, and he have met the elements of adverse possession fail to set forth with sufficient particularity the facts that would support a finding of title to the Property by adverse possession. Finally, Boucher, CMSG, and Harper point to the 2006 Eddy Deed as showing that Boucher holds record title to the Property. The mere fact that Boucher holds a deed purporting to convey some title in the Property is not sufficient to show that he holds an interest in the Property entitling him to redeem. A “grantor cannot convey more than he possesses.” Perotti v. Krajewski, No. 10 MISC 439697 (KCL), slip op. at 2 (Mass. Land Ct. May 8, 2013), citing C.M. Brown, et al., Brown’s Boundary Control and Legal Principles § 3.1, at 33 (4th ed.). Therefore, Boucher must establish that the grantor of the Eddy Deed, Harrison P. Eddy III, had some ownership interest in the Property to convey. Town of Oak Bluffs, 19 LCR at 535; Town of Edgartown, 13 LCR at 605.

Boucher has not submitted any further title evidence with the Summary Judgment Motion, but does refer to the title examiner’s reports that were submitted as part of this proceeding. The reports do not include copies of any relevant instruments. According to the title examiner’s reports, the last known record title holder of the Property is one Samuel Jones, who took title by a series of deeds recorded beginning in 1813. According to the reports, Jones died on July 11, 1845. The reports set forth a series of summaries of the probates of Jones’s heirs. Among the heirs listed in these reports is Harrison Eddy, III. In a 1923 probate of the estate of Mary Buttrick, Jones’s granddaughter, he is described as Buttrick’s grandson. Whether this is the same Harrison Eddy who 83 years later conveyed his interest to Boucher in the Eddy Deed cannot be determined from this record. The reports also state that Harrison P. Eddy, III is referred to in the will of Henry A. MacGowan. MacGowan is not referred to in any other entry in the reports, although Marjorie MacGowan is. Finally, the reports also indicate that Boucher was conveyed interests in the Property by a deed from Paul E. Anderson, dated October 1, 2010, and a deed from David A. Anderson, dated October 20, 2010, both of which were recorded in the registry at Book 46564, Pages 19 and 23, respectively, on October 29, 2010. Nothing in the reports indicates, however, how the Andersons derived their alleged interests in the Property.

Assuming for the purposes of this motion that the examiner’s reports constitute evidence, summary judgment must be denied. There is nothing conclusive in the reports demonstrating the title of Eddy or the Andersons. For the court to conclude from those reports that Eddy and the Andersons held interests in the Property that they conveyed to Boucher requires the drawing of inferences in Boucher’s favor, which is not permitted on a motion for summary judgment. Willitts, 411 Mass. at 203. More evidence is required before it can be found that Boucher has demonstrated that the persons who conveyed title in the Property to him actually held interests in the Property that they could convey. [Note 2]


For the foregoing reasons, the Summary Judgment Motion is DENIED. The parties are ORDERED to appear for a status conference on May 23, 2013 at 11:30 a.m. to discuss the next steps in this case.


By the Court (Foster, J.)


[Note 1] Boucher, CMSG, and Harper cite several cases for the proposition that a person in possession has the right to redeem. Kerslake v. Cummings, 180 Mass. 65 (1901); Southworth v. Edmands, 152 Mass. 203 (1890). These cases concern whether taxes may be assessed to persons in possession. See Kerslake, 180 Mass. at 67; Southworth, 152 Mass. at 206. Pursuant to G.L. c. 59, § 11, “whenever the commissioner deems it proper he may, in writing, authorize the assessment of taxes upon real estate to the person who is possession thereof.” Id. Chapter 59, § 11’s grant of authority to assess taxes to a person in possession provides no guidance as to when a person has the right to redeem under G.L. c. 60, § 68.

[Note 2] Boucher, CMSG, and Harper’s reference to “color of title” in the context of the Eddy Deed is misplaced. Color of title is a concept applicable to claims for adverse possession, under which a person holding a deed that does not pass valid title may still claim that the activities relied on for an adverse possession claim “reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant.” Norton v. West, 8 Mass. App. Ct. 348 , 350-351 (1979).