ROBERT L. PAINE and SHEILA L. PAINE, as Trustees of THE LAND STEWARD TRUST, [Note 1] v. UNITED STATES OF AMERICA (DEPARTMENT OF THE INTERIOR--CAPE COD NATIONAL SEASHORE), CHELLISE L. SEXTON, CLARENCE S. SMITH, as Trustees of THE SMITH FAMILY REALTY TRUST, and the TOWN OF WELLFLEET.

Petitioners filed their Petition for Registration (the “Petition”) of 36.75 acres of land located off Old Kings Highway (the “Highway”) in Wellfleet, Massachusetts (“Locus”) on February 10, 1999. [Note 2] James H. Quirk, Jr. was appointed title examiner in April 1999 and filed his title report on August 28, 2006. Citation by publication was made in The Cape Codder newspaper, with a return date of March 5, 2007. [Note 3] On February 2, 2007, notices were sent to parties named in the Citation. Defendant Chellise L. Sexton (“C. Sexton”) filed her Answer on March 2, 2007. [Note 4] On March 5, 2007, Defendants Clarence S. Smith, Trustee of the Smith Family Realty Trust (the “Smith Trust”), the Town of Wellfleet (“Wellfleet”), and the United States of America (Department of the Interior – Cape Cod National Seashore) (“USA”) filed their respective Answers. Irving B. Freeman (“Irving Freeman”) and Priscilla Rostrom (“Rostrom”) filed appearances pro se on March 6, 2007 and March 7, 2007, respectively. Petitioners filed a Motion for Order and Entry on Default on April 3, 2008, requesting that defaults be entered “against all persons who have not timely filed an answer in this matter, including Irving B. Freeman and Priscilla Rostrom, who have entered appearances but have failed to file answers in accordance with G. L. c. 185, § 41.” On April 11, 2008, this court entered defaults against all parties who had not timely filed an answer, including Irving Freeman and Rostrom (the “Default”). [Note 5] A joint case management memorandum (the “Case Management Memorandum”) was filed by Petitioners, the Smith Trust, USA, Wellfleet and C. Sexton on June 9, 2008, and a case management conference was held on June 13, 2008, at which a discovery deadline of February 28, 2009 was established. [Note 6], [Note 7] Wellfleet filed its Withdrawal of Answer and Objection on July 24, 2009. On September 24, 2009, C. Sexton filed a Motion For Leave To File An Amended Answer and Petitioners filed an opposition on October 14, 2009. This court allowed C. Sexton’s Motion on October 19, 2009. On February 10, 2010, C. Sexton filed an Amended Answer (the “Amended Answer”), in which she alleged, through research and discovery, that C. Sexton held fractional fee interests in portions of Locus and that C. Sexton and David Sexton (“D. Sexton”), as Trustees of the Parcel 164 Nominee Trust (the “Trust”) held certain other one hundred per cent (100%) fee and fractional fee interests in other portions of Locus (see infra, Fact 3). On April 29, 2010 this court ALLOWED C. Sexton’s Motion to add C. Sexton and D. Sexton as Trustees of the Trust as additional Defendants. The interests of C. Sexton, individually, and the Trust are aligned and this court shall refer to C. Sexton and the Trust, together, as the “Sextons.” A pre-trial conference was held on May 24, 2010, and a supplemental pre-trial conference was held on July 29, 2010. In the Joint Pre-Trial Conference Memorandum (the “Pre-Trial Memo”), the Smith Trust and the USA agreed to withdraw their objections to the case contingent upon Petitioners prevailing against the Sextons’ claims. In the Pre-Trial Memo, the Sextons described in detail their specific claims of record title to certain portions of Locus. A site view was held on August 10, 2010. Trial was held at the Land Court in Boston on October 7 and 8, and November 22 and 23, 2010. Trial was limited solely to the issue of adverse possession. [Note 8]

On December 21, 2010, Petitioners filed their Motion in Limine to Exclude Certain Title Evidence of Respondents C. Sexton and D. Sexton, as Trustees of the Parcel 164 Nominee Trust, along with supporting memorandum and affidavit of Bernard T. Kilroy (“Kilroy”). On December 23, 2010, the Sextons filed their Motion in Limine to exclude Kilroy’s testimony. On December 28, 2010, the Sextons filed their Opposition to Petitioners’ Motion in Limine, along with supporting memorandum. On December 29, 2010, Petitioners filed their Opposition to the Sexton’s Motion in Limine to exclude Kilroy’s testimony. A hearing was held on December 30, 2010, and at that time these motions were taken under advisement. [Note 9] Based on the discussion relative to the issue of ouster, infra, I find that it is unnecessary to rule on any claims of record title. As such, these motions are irrelevant to the outcome of this Decision.

On March 21, 2011, a Joint Pre-Trial Conference on Color of Title was held. At that time, this court determined that it would not take evidence related to title or color of title until Petitioners’ adverse possession claim had been decided. On June 24, 2011, the Sextons filed their Requests for Findings of Fact, Post-Trial Brief and Motion to Allow Introduction of Additional Plans/Photographs. In their post-trial brief, the Sextons requested that Mark Thaisz (“Thaisz”) be allowed to testify on adverse possession issues regarding the existence of campsites on Locus. On June 24, 2011, Petitioners filed their Proposed Findings of Fact, Post Trial Brief with Rulings of Law, supporting memoranda, and Opposition to Respondents’ Request to Reopen the Trial on the Issue of Adverse Possession to Take Additional Testimony. On July 13, 2011, Petitioners filed an opposition to the Sextons’ motion to allow the introduction of additional plans and photographs. On July 19, 2011, this court denied the Sextons’ request to allow Thaisz to testify and to introduce additional evidence.

I issued a decision (“Decision 1”) on May 30, 2012, finding that Petitioners had established adverse possession over Lots 78.1, 80, 81, 81.1, 81.2 and the portions of Lot 82 and Lot 83S that lie south of the boundary line formed by the Iron Pipe Fence. [Note 10] I found that Petitioners had not established adverse possession over the Smith Parcel, Lots 169 through 176, Lot 178 and the portions of Lot 82 and Lot 83S that lie to the north of the Iron Pipe Fence; [Note 11] consequently Petitioners would have to reevaluate their agreements with the Smith Trust and the USA. I also found that the statutory notice requirements for serving all interested parties had been satisfied.

On July 2, 2012, the Sextons filed a Motion for Leave to File Further Amended Answer and Motion to Try Record Title. At a status conference held on July 11, 2012, Petitioners represented to this court that they did not intend to pursue their record title claim. On August 24, 2012, the Sextons filed an Amended Motion for Leave to File a Further Amended Answer. On August 29, 2012, Petitioners filed their Motion for Summary Judgment with respect to color of title, together with supporting memorandum, Statement of Material Facts, and Affidavit of Jean L. R. Kampas. On the same day the USA filed their Stipulation and Withdrawal. By Order dated September 27, 2012 (the “Order”), this court DENIED Sexton’s Motions for Leave to File Further Amended Answer and Sexton’s Motion to Try Record Title; this court ALLOWED Petitioners’ Motion to Amend Petition and Petitioners’ Plan to delete the Smith Parcel [Note 12]/ [Note 13], ALLOWED Petitioners’ Motion for Clarification of Decision Line to determine the northerly boundary of Locus, and ALLOWED Petitioners’ Motion to Sever and Dismiss to remove from the Petition any portion of Lot 83S lying to the north of the Revised Northern Boundary (defined, infra). [Note 14] With respect to the Motion for Clarification of Decision Line, this court ruled that the Iron Pipe Fence which formed the northern boundary of Locus (the “Revised Northern Boundary”) shall reflect the location of the iron pipes as shown on the 1992 Plan rather than the 2012 Plan proposed by Petitioners. [Note 15] In other words, the Revised Northern Boundary is the line formed by the iron pipes as they are shown on the 1992 Plan. This court ALLOWED in part Petitioners’ Motion to Clarify Decision with respect to Issue of Ouster, stating that it would rule on the ouster issue based on arguments that were made in the parties’ post trial briefs and arguments made in the summary judgment briefs. On November 13, 2012, the Sextons filed their Motion for Summary Judgment and Opposition to Petitioners’ Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and Affidavits of Chester Lay (the “Lay Affidavit”) and Mark L. Thaisz (the “Thaisz Affidavit”). Petitioners filed their Opposition to the Sextons’ Motion for Summary Judgment on December 7, 2012, together with Affidavit of Robert J. Freeman (“Freeman” and the “Freeman Affidavit”). On January 17, 2013, the Sextons filed their Motion to Strike portions of the Freeman Affidavit. Petitioners filed their Opposition to the Motion to Strike on January 23, 2013, together with Supplemental Affidavit of Robert J. Freeman (the “Supplemental Affidavit”). The Sextons filed their Emergency Motion to Strike the Supplemental Affidavit on January 24, 2013. A hearing was held on all motions on January 24, 2013, and all motions were taken under advisement.

I find the following material facts are not in dispute [Note 16]:

1. Locus is property shown as Lot 2 on a plan titled “Plan of Land in Wellfleet, Mass. to be filed in the Land Court – the Land Steward Trust & Irene M. Paine Petitioners,” prepared by Schofield Brothers of N.E., Inc., dated October 30, 1998 (the “Registration Plan”). Locus consists of several parcels totaling approximately 36.75 acres of land, located between Old Kings Highway (previously known as Old County Road), i.e. the Highway, on the west and the Cape Cod National Seashore (the “Seashore”) on the east. Locus is shown as Lots 50-58 on Town of Wellfleet Assessors’ Maps Sheets 203-21 and 204-22, dated November 2, 1964, revised through February 1988 (the “Assessors’ Maps”).

2. The parcels that comprise Lot 2 on the Registration Plan each correspond to a lot on Sheets 23 and 24 of the Town of Wellfleet Assessors’ Atlas dated January 1, 1993, revised through March 31, 2010 (the “Assessors’ Atlas”). The lot marked on the Registration Plan as “Irving B. Freeman 1938/40” corresponds to Lot 83 on the Assessors’ Atlas (“Lot 83”); however, as shown on the Registration Plan, Locus includes only the southern half of Lot 83 (“Lot 83S”) and does not include the northern half of Lot 83. The lot marked on the Registration Plan as “Claimed by Petitioners See 1424/707 Title also in Irving B. Freeman 1938/40” corresponds to Lot 82 on the Assessors’ Atlas (“Lot 82”); the lots marked on the Registration Plan as “2349/46,” “1415/94” and “2421/243” collectively correspond to Lot 81 on the Assessors’ Atlas (“Lot 81”); the lot marked on the Registration Plan as “Town of Wellfleet – Claimed by Petitioners” corresponds to Lot 81.1 on the Assessors’ Atlas (“Lot 81.1”); the lot marked on the Registration Plan as “1540/252” corresponds to Lot 81.2 on the Assessors’ Atlas (“Lot 81.2”); the lot to the south of Lot 81.2 marked on the Registration Plan as “Claimed by Petitioners” corresponds to Lot 80 on the Assessors’ Atlas (“Lot 80”); and the untitled lot on the Registration Plan to the south of Lot 80 corresponds to Lot 78.1 on the Assessors’ Atlas (“Lot 78.1”). [Note 17] Included in Locus is the parcel marked “Smith Family Realty Trust,” claimed by Petitioners, which runs perpendicular to the eastern boundary of the aforementioned lots and is shown on the Assessors’ Atlas as Lot 245 (the “Smith Parcel”). [Note 18] Also included in Locus are nine additional “Extension Lots,” which lie between the Smith Parcel and the Seashore and are shown on the Assessors’ Atlas as a portion of Lot 169, and Lots 170, 171, 172, 173, 174, 175, the far westerly portion of Lot 176, and Lot 178 (individually defined by lot number, e.g. “Lot 169”). Lot 169 has the same northern and southern boundaries as Lot 83 and, as a result, Petitioners contend that Lot 169 is an extension of Lot 83. The same circumstances describe the positioning between Lots 82 and 170, Lots 81.1 and 174, Lots 81.2 and 175, Lots 80 and a portion of 176, and Lots 78.1 and 178. Lots 171, 172 and 173 collectively make up the “extension” of Lot 81.

3. The Sextons object to the Petition and they claim title to certain portions of Locus themselves. The Sextons claim that Locus consists of seventeen parcels as shown on a plan titled “Study Sketch of Land in Wellfleet made for David Sexton & Chellise L. Sexton” dated May 28, 2010 and prepared by Slade Associates, Inc. (the “Sextons’ Plan”). [Note 19] The Amended Answer, which was filed on February 10, 2010 (prior to the creation of the Sextons’ Plan), claimed ownership interests as follows: the Trust owns the entire fee interest in “the real property located at 270 Old King’s Highway, Wellfleet, Massachusetts,” which is Lot 83 and Lot 169 by extension; the Trust owns the entire fee interest in the portion of Locus delineated on the Registration Plan as “Claimed by Petitioners See 1424/707 Title also in Iriving B. Freeman 1938/40,” which corresponds to Lot 82 and Lot 170 by extension; C. Sexton owns a fractional fee interest in the portion of Locus shown on the Registration Plan as “Town of Wellfleet - Claimed by Petitioners,” which corresponds to Lot 81.1. and Lot 174 by extension; C. Sexton owns a fractional fee interest in the portion of Locus shown on the Registration Plan as “2421/243,” which corresponds to a portion of Lot 81 and Lot 172 by extension; C. Sexton owns a fractional fee interest in the portion of Locus shown on the Registration Plan as “1540/252,” which corresponds to Lot 81.2 and Lot 175 by extension; and C. Sexton owns a fractional fee interest in the portion of Locus shown on the Registration Plan as “2349/46,” which corresponds to a portion of Lot 81 and no extension lot. The Amended Answer did not allege that Petitioners and C. Sexton were co-tenants in those parcels in which C. Sexton claimed to own a fractional interest. The Amended Answer did not allege that either C. Sexton or the Trust had an ownership interest in the portion of Locus delineated on the Registration Plan as “1415/94,” which corresponds to a Portion of Lot 81 and Lot 171 and Lot 173 by extension; Lot 80 and Extension Lot 176; and Lot 78.1 and Extension Lot 178. In the Pre-Trial Memo, the Sextons [Note 20] claimed an ownership interest in other portions of Locus that they did not claim in the Amended Answer. Specifically, the Pre-Trial Memo asserts an ownership interest in Lot 80, Extension Lot 176, and Lot 78.1. The Pre-Trial Memo also alleged for the first time that Petitioners own a fractional interest, together with the Sextons, in Lot 81.2 and Extension Lot 175 as well as Lot 176 (which is the extension of Lot 80). [Note 21] The Pre-Trial Memo claimed that the Sextons are co-tenants with various other persons with respect to their other claims of fractional ownership to portions of Locus.

4. By deed dated September 7, 1968, and recorded with the Registry in Book 1424, Page 707 (the “1968 Deed”), Ruby H. Freeman conveyed land in Wellfleet to Robert S. Paine and Cynthia M. Paine. The 1968 Deed does not give a metes and bounds description [Note 22], and states “[f]or orientation, reference is made to the Atlas of Town of Wellfleet, sheet 204-22 on which the above-described land appears designated as LOT 51.” Petitioners claim that Lot 51 corresponds with Lot 82 and the extension Lot 170 on the Registration Plan. [Note 23]

5. By deed dated May 11, 1976, and recorded with the Registry at Book 2349, Page 46 (the “May 1976 Deed”), Ethel M. Paine conveyed two parcels, one of which was described as “[t]he land shown as Lots 45 and 52 [3.9 acres] on the Wellfleet Assessors Map No. 204-22” to Robert S. Paine. Petitioners claim that Lot 52 corresponds with a portion of Lot 81 and all of extension Lot 171 on the Registration Plan.

6. By deed dated December 8, 1958, and recorded with the Registry at Book 1026, Page 544 (the “1958 Deed”), Ethel M. Paine conveyed two parcels located in Wellfleet to Robert S. Paine by a metes and bounds description. [Note 24] The 1958 Deed states, “[s]aid parcels are shown as land of Florence S. Robie et ali, on Sheet VIII of the Assessors’ Survey Map of the Town of Wellfleet, and include the land lying Westerly of said parcels not shown on that particular map.” Petitioners claim that such parcels are Lot 53 and Lot 55 on the Assessors’ Atlas. Petitioners claim that Lot 53 and Lot 55 correspond to a portion of Lot 81 and parts of the extension Lots 172 and 174.

7. By deed dated October 22, 1976, and recorded with the Registry in Book 2421, Page 243 (the “October 1976 Deed”), Clayton K. Bishop conveyed “[t]he land known as Lot 54 on the Wellfleet, Mass. Assessors’ Sheets, Sheet #204-22" to Robert S. and Cynthia Paine. The October 1976 Deed states that “[e]xcepted from this piece of land is the section conveyed to the Cape Cod National Seashore . . . [and] the piece sold to the Cape Cod Railroad Company.” Petitioners claim that Lot 54 corresponds to a portion of Lot 81 and the extension Lot 173.

8. By deed dated October 4, 1971, and recorded with the Registry in Book 1540, Page 252 (the “1971 Deed”), Bernice L. McKay conveyed land in Wellfleet to Robert S. Paine and Cynthia M. Paine. There is a legal description which states the Seashore as the easterly boundary and Old King’s Highway as the westerly boundary. The 1971 Deed states “[c]ontaining 2.6 acres, more or less. For orientation, reference is made to the Town of Wellfleet Assessors’ Maps No. 204-22, on which the above-described land appears designated as Lot 57.” The Assessors’ Maps states that Lot 57 contains 2.6 acres. Petitioners claim that Lot 57 corresponds with the northerly portion of Lot 78.1 and the northerly portion of the extension Lot 178.

9. By deed dated May 30, 1978 and recorded with the Registry at Book 2770, Page 196, Cynthia Coye, Elizabeth Masulla and Susan Gray conveyed “the land in South Wellfleet, Barnstable County, Massachusetts located on Old King’s Highway and known as Lot 58 on the town map” to Stephen J. Mahan and Irene M.Mahan. [Note 25] By deed dated August 23, 1978, and recorded with the Registry at Book 2770, Page 195, Dorothy P. David conveyed Lot 58 to Stephen J. Mahan and Irene M. Mahan (the two deeds together, the “1978 Deeds”). Petitioners claim that Lot 58 corresponds with the southerly portion of Lot 78.1 and the southerly portion of the extension Lot 178.

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I. Motion to Strike the Freeman Affidavit and the Supplemental Affidavit:

The Sextons have moved to strike a portion of the Freeman Affidavit. The Sextons have also filed an Emergency Motion to Strike the Supplemental Affidavit. First, with respect to the Supplemental Affidavit, Land Court Rule 4 states in relevant part: “Reply... affidavits and other materials in support of the reply (if any) must be served on the parties and filed with the court no later than ten (10) days prior to the date the court first set for hearing...” The Supplemental Affidavit was filed on January 23, 2013, one day before the Summary Judgment hearing in this case. The Supplemental Affidavit was no doubt a document in support of Petitioners’ reply to the Sexton’s Cross-Motion for Summary Judgment because it supplemented the Freeman Affidavit, which was filed together with Petitioners’ Reply. Petitioners were obligated to submit all documents that pertained to their reply no later than ten days prior to the Summary Judgment hearing date, which was January 24, 2013. As such, I find that the Sextons’ Emergency Motion to Strike the Supplemental Affidavit is ALLOWED.

With respect to the Motion to Strike the Freeman Affidavit, the Sextons move to strike the last sentence in paragraph 8 of said Affidavit, which states:

The [Assessors’ Atlas] used the same aerial photograph from [the Assessors’ Maps] as the base layer; just the overlay of lots and lot numbers changed from year to year.”

The Sextons moved to strike this statement on the grounds that Freeman has no personal knowledge of whether the Assessors’ Maps and the Assessors’ Atlas utilized the same aerial photograph. Having stricken the Supplemental Affidavit which sought to clarify the Freeman Affidavit, this court must review the Freeman Affidavit in a vacuum and with no further explanation that may be provided in the Supplemental Affidavit. It does not appear that Freeman is competent to make the statement in the last sentence of Paragraph 8 of the Freeman Affidavit. Freeman did not attest that he assisted in preparing or creating either the Assessors’ Maps or the Assessors’ Atlas. It appears that Freeman has no personal knowledge that the same base photograph was used to create both the Assessors’ Maps and the Assessors’ Atlas. It may be Freeman’s ultimate opinion that the base photograph is the same, but such opinion will not be treated by this court as an absolute fact. Petitioners’ Motion for Summary Judgment requires this court to analyze the similarity between the Assessors’ Maps and the Assessors’ Atlas. This court must make its own determination as to whether the Assessors’ documents are sufficiently similar so that Petitioners can prove their color of title claim. Based on the foregoing, I find that, to the extent that it is an allegation of fact, the last sentence of Paragraph 8 of the Freeman Affidavit shall be stricken.

The Sextons also move to strike Paragraph 18 of the Freeman Affidavit which states: The lots on the 1964 Assessors’ Maps can be located on the ground. They can be located in relation to the physical features that appear on the aerial photograph and which also appear on the ground today, as depicted on the recent [2012 Plan.] A surveyor could run a traverse, survey the physical features that show on the aerial photograph, and plot those out at a comparable scale. In this manner, the lots on the 1964 Assessors’ Maps can be located on the ground.

The Sextons move to strike this statement on the grounds that Freeman has no personal knowledge and such a statement is a conclusion rather than a fact. Freeman is a professional land surveyor with over fifteen years of experience and this court takes notice of his experience and credentials. As stated, supra, Freeman can offer an opinion as to whether the lots as shown on the Assessors’ Maps can be located on the ground. This is Freeman’s opinion based on his expertise and the court does not have to accept it as fact. The court will use its discretion in this regard. Based on the foregoing, Paragraph 16 of the Freeman Affidavit shall not be stricken.

As such, the Motion to Strike the Freeman Affidavit is ALLOWED IN PART AND DENIED IN PART.

II. Color of Title

Petitioners have obtained title by adverse possession to Lots 78.1, 80, 81, 81.1, 81.2 and the portions of Lot 82 and Lot 83S that lie south of the Revised Northern Boundary. In this Summary Judgment Motion, Petitioners seek to prove their color of title claims relative to the portion of Lot 82 to the north of the Revised Northern Boundary, Lots 170, 171, 172, 173, 174, and 178. In their Motion for Summary Judgment, Petitioners waived any right to claim ownership by color of title to Lot 169, Lot 175, and Lot 176. [Note 26] Petitioners’ color of title claim is based on deeds to several parcels of land to be interpreted in conjunction with the Assessors’ Atlas and the Assessors’ Maps. Color of title is described in Long v. Wickett, 50 Mass. App. Ct. 380 (2000) as a combination of adverse possession claims and claim of ownership based on a written document. See also Norton v. West, 8 Mass. App. Ct. 348 (1970). In effect, if a claimant can establish acts of adverse possession in a portion of a parcel of land, and can show a questionable deed for the full acreage of the parcel, the claimant would have constructive possession of the remaining acreage “for the reason that it is the presumed intention of the grantee of the deed to assert such possession.” Id. at 350-51.

The Sextons challenge Petitioners’ color of title claim on several fronts. First, the Sextons argue that the Extension Lots are separate lots from the Campground Lots. The Sextons contend that Petitioners cannot establish color of title over the Extension Lots because Petitioners have not established adverse possession over any portion of the Extension Lots. Second, and most vociferously, the Sextons contend that the lots described in the several deeds into Petitioners cannot be placed on the ground, which the Sextons contend is a pre-requisite to proving a color of title claim. In this regard, the Sextons contend that the deeds relied on by Petitioners refer to the Assessors’ Maps, which the Sextons claim are not accurate. The Sextons also argue that there are no survey plans to tie the Assessors’ Maps into descriptions located on the ground with any degree of certitude or definitiveness. Petitioners contend that the deeds sufficiently describe Locus as required under color of title jurisprudence.

A. Extension Lots as Separate Parcels:

The first issue to be addressed is whether each of the Extension Lots, together with the respective adjacent Campground Lots, can be considered as one lot for color of title purposes. On the Assessors’ Maps, the Extension Lots are shown with the same north and south boundaries as the Campground Lots, with the Smith Parcel (shown on the Assessors’ Maps as New York New Haven & Hartford Railroad) separating them. The Assessors’ Maps, which are referenced in each deed that supports the color of title claim, do not show separate parcel numbers for the Extension Lots. [Note 27]

As discussed, infra, Petitioners can establish color of title under the following deeds: the May 1976 Deed, the October 1976 Deed, the 1971 Deed, and the 1978 Deeds. The May 1976 Deed states that the grantor conveyed, inter alia, Lot 52. Lot 52 certainly appears on the Assessors’ Maps to include the corresponding extension lot to the east of the Smith Parcel, primarily because there is no separate parcel number. The October 1976 Deed states that excepted from the land conveyed in said instrument (Lot 54) is the piece of land sold to the “Cape Cod Railroad Company” (i.e. the Smith Parcel) and a piece of land sold to the Seashore. The corresponding extension lot to Lot 54 lies directly between the two portions excepted in the conveyance. Therefore, it would appear that the October 1976 Deed intended to convey the extension lot corresponding to Lot 54 as part of Lot 54. In this regard, Lot 54 and the corresponding Extension Lot were included within the same description rather than described as two separate parcels. Next, the 1971 Deed and the 1978 Deeds refer to Lot 57 and Lot 58, respectively, running between the Highway on the west and the Seashore on the east. This description necessarily includes the corresponding Extension Lots, which lie directly to the west of the Seashore. As a result, the various relevant title instruments, i.e. the May 1976 Deed, the October 1976 Deed, the 1971 Deed, and the 1978 Deeds indicate that the Extension Lots and their corresponding Campground Lots are considered to be one lot, even if said lot is physically bisected by the Smith Parcel. As described, supra, a number of the relevant deeds described the easterly boundary of the various parcels as the Seashore. The Smith Parcel was simply excluded as land conveyed in the certain deeds. The Smith Parcel did not serve to bifurcate and separate land as described as one lot into two separate parcels. Based on the foregoing, I find that the Campground Lots and the corresponding Extension Lots can be considered one lot for color of title purposes, as discussed, infra.

B. Applicable Law and Relevant Deeds:

“Application of the doctrine of color of title rests upon the deed to the claimants.” Macallister v. DeStefano, 18 Mass. App. Ct. 39 , 43 (1983). “[W]here a person enters upon a parcel of land under a color of title and actually occupies a part of the premises described in the deed, his possession is not considered as limited to that part so actually occupied but gives him constructive possession of the entire parcel.” Norton v. West, 8 Mass. App. Ct. 348 , 351 (1979). It is clear that the success of Petitioners’ color of title claim rests upon the deeds into Petitioners. The Sextons claim that the descriptions in the several deeds into Petitioners are insufficient as a matter of law to establish the color of title boundaries claimed by Petitioners. In this regard, the Sextons contend that the Assessors’ Maps relied upon by Petitioners are inherently unreliable and any reference to the Assessors’ Maps is not sufficient to prove color of title. The Sextons seem to contend that Petitioners must be able to locate on the ground the exact boundaries of the land they claim by color of title. [Note 28] Petitioners dispute this requirement, citing Larson v. Dillenschneider, 235 Mass. 56 , 57 (1920) which, with respect to the issue of whether a parcel of land was sufficiently described for registration, stated

An Assessors’ plan, which shows the particular lot in connection with all neighboring lands, affords a definite and accurate description. It is easily found. It is open to public inspection at reasonable times under rational limitations. G. L. c. 35, § 17. As a practical matter it affords quite as certain and accessible information to anybody in interest as does a plan in the registry of deeds. Reference to such a plan reaches the main end sought by advertisement in tax sales, which is to enable the owner and prospective bidders to locate the land to be sold with substantial certainty.

Petitioners also cite Boulton v. Armeson, 1988 WL 1107835 (Mass. Land Ct. Mar. 11, 1988), which noted that, with respect to a color of title deed description, that “while the description in the deeds in the chain of title is sketchy and perhaps inaccurate in describing the granted premises as sedge land, it generally fit the area of locus.” That court also noted that “the description lacks a boundary...but [such description infirmities] are characteristic of Cape Cod titles.” Id. It seems clear from the language in Larson, supra, that an Assessors’ map can be relied upon as a sufficient deed description. This may hold especially true for parcels on Cape Cod. See Boulton, supra; Macallister, supra (disparity in acreage descriptions is “not so unusual in Cape description”). The Sextons do not cite any case that requires a color of title deed to have a metes and bounds survey description. As a result, I find that Petitioners may rely on the Assessors’ Maps to prove their color of title claims.

The next issue is whether the Assessors’ Maps and the Assessors’ Atlas correspond in the particular manner as argued by Petitioners.

1. The 1968 Deed.

Petitioners argue that the 1968 Deed conveyed Lot 51 as shown on the Assessors’ Maps to Petitioners’ predecessor. Indeed, the 1968 Deed states that “the above-described land appears designated as LOT 51.” Petitioners contend that Lot 51 on the Assessors’ Maps corresponds to Lot 82 and, by extension, Lot 170 as both parcels are shown on the Assessors’ Atlas. The Sextons challenge this designation of lots, through the Lay Affidavit, as having no definitiveness. Petitioners rely on a footnote in Decision 1, in which this court stated that Lot 52 corresponds to the northerly portion of Lot 81. As discussed, supra, in Decision 1 this court did not make any formal findings relative to the designation of certain lots on the Assessors’ Maps as they correspond to certain lots on the Assessors’ Atlas. As such, this court is not bound by any prior determination. This determination applies to all of the deed analysis, infra.

Indeed, after thorough analysis by this court, it does not appear that Lot 51 on the Assessors’ Maps corresponds to Lot 82 and Lot 170 on the Assessors’ Atlas. On the Assessors’ Maps, the distance from the northern boundary of Rama’s Way to the southern and northern boundaries of Lot 51 measures as approximately 587.5 feet and 700 feet, respectively. On the Assessors’ Atlas, the southern boundary of Lot 82 measures to be approximately 700 feet to the north of Rama’s Way. As such, it appears that Lot 51, as shown on the Assessors’ Maps, lies to the south of Lot 82 and Lot 170. Therefore, Lot 51 actually corresponds to the northerly portion of Lot 81 and Lot 171 rather than Lot 82 and Lot 170 on the Assessors’ Atlas.

Second, the boundary description in the 1968 Deed states that Lot 51 is bounded on the east by the Smith Parcel. As such, even though Lot 51 appears to correspond to the northern portion of Lot 171, it does not appear that the 1968 Deed intended to convey that portion of Lot 171 because the easterly boundary of the land conveyed in the 1968 Deed was the Smith Parcel. Accordingly, Lot 51 cannot include the northern portion of Lot 171, which lies to the east of the Smith Parcel.

And most important, the Corrective Deed states that the parcel conveyed in the 1968 Deed was Lot 3 on a different sheet on the Assessors’ Maps instead of Lot 51 as shown on sheets 22 and 23. The Lot 3 referenced in the Corrective Deed does not correlate to either Lot 82 or Lot 170.

As a result of the foregoing, I find that Petitioners cannot prove color of title to the portion of Lot 82 that lies to the north of the Revised Northern Boundary and Lot 170 under the 1968 Deed. [Note 29]

2. The May 1976 Deed.

The May 1976 Deed referenced the parcel conveyed as Lot 52 on the Assessors’ Maps. Petitioners contend that Lot 52 on the Assessors’ Maps corresponds to a portion of Lot 81 and, by extension, Lot 171 on the Assessors’ Atlas. Although it appears that Lot 52 does correspond to a portion of Lot 81, it does not appear that the related extension lot is all of Lot 171.

On the Assessors’ Maps, the distance from the northern boundary of Rama’s Way to the southern and northern boundaries of Lot 52 measures as 487.5 feet and 575 feet, respectively. The southern boundary of Lot 171 is located approximately 487.5 feet to the north of the northern boundary of Rama’s Way (as said way would be extended); the same distance as the southern boundary of Lot 52 on the Assessors’ Maps. At a distance of 575 feet to the north of Rama’s Way (i.e. the northern boundary of Lot 52), lies an approximate midpoint of Lot 171. As a result, it appears that Lot 52 as shown on the Assessors’ Maps includes the southerly half of Lot 171 (“Lot 171S”) as well as a portion of Lot 81 (although that is not at issue for color of title purposes). [Note 30] As clearly articulated in Larson, an Assessors’ map can provide an accurate description for land registration purposes. Based on the foregoing, I find that Petitioners have established color of title to Lot 171S under the May 1976 Deed.

3. The 1958 Deed.

The 1958 Deed references two parcels in Wellfleet shown as land of Florence S. Robie (the “Robie Lots”) on Sheet VIII of the Assessors’ Maps. Sheet VIII shows a number of lots east of the Smith Parcel, but which are far greater in size than Lots 170-178. Although Sheet VIII only shows property to the east of the Smith Parcel, the deed states that it includes “the land lying Westerly of said parcels not shown on that particular map.” However, Sheet VIII does not show any land to the west of the Smith Parcel which corresponds to any corresponding extension lots as shown to the east of the Smith Parcel. Petitioners claim that the two lots referenced in the 1958 Deed are Lots 53 and 55 on the Assessors’ Maps. However, there is no correlation between the land referenced in the 1958 Deed (land east of the Smith Parcel) and Lots 53 and 55 on the Assessors’ Maps (land west of the Smith Parcel). First, there is nothing to tie these two lots into Lots 53 and 55, or to Lots 172 and 174 as extension lots. Lot 53 on the Assessors’ Maps contains 2.7 acres and Lot 55 on the Assessors’ Maps contains 2.4 acres. Sheet VIII shows the two lots as 6.2 acres and 3.0 acres, respectively. There is nothing on the Assessors’ Maps that shows any lots on the land to the east of the Smith Parcel to correlate with land to the west of the Smith Parcel. Moreover, the land that separates Lot 53 and Lot 55 (Lot 54) contains 5.7 acres, whereas the land that separates the two Robie lots on Sheet VIII is 9.7 acres. In addition, the westerly boundary of the two lots as described in the 1958 Deed are substantially different - one of the lots has a westerly boundary near the Smith Parcel, whereas the other lot has a westerly boundary of King’s Highway. Finally, as discussed, supra, even if the Robie Lots could be tied to Lots 53 and 55, the portion of the lots shown on Sheet VIII are far larger than the corresponding Lots 172 and 174. As a result, I find that there is no basis for Petitioners’ color of title claim with respect to Lot 172 and Lot 174 under the 1958 Deed. [Note 31]/ [Note 32]

4. The October 1976 Deed.

The October 1976 Deed describes the land conveyed as Lot 54 on the Assessors’ Maps. Petitioners claim that Lot 54 corresponds with a portion of Lot 81 and, by extension, Lot 173. On the Assessors’ Maps, the distance from the northern boundary of Rama’s Way to the southern and northern boundaries of Lot 54 measures as 287.5 feet and 437.5 feet, respectively (a difference on 150 feet). Correspondingly on the Assessors’ Atlas, the southern boundary of Lot 81, and by extension, the southern boundary of Lot 173 measures a distance of approximately 287.5 feet (the same as the southern boundary of Lot 54). A distance of 437.5 feet from the bottom of Rama’s Way (and 150 feet from the southern boundary of Lot 173) is a point located approximately 100 feet to the north of the boundary between Lot 172 and Lot 173 as shown on the Assessors’ Atlas. Lot 172 measures approximately 150 feet from north to south. [Note 33] Based on the foregoing, I find that Petitioners can establish color of title to Lot 173 and the southern 100 feet of Lot 172 (“Lot 172S”) under the October 1976 Deed.

5. The 1971 Deed.

The 1971 Deed describes the land conveyed as Lot 57 on the Assessors’ Maps. Petitioners argue that this deed corresponds to the northerly portion of Lot 78.1 and, by extension, the northern portion of Lot 178. The 1971 Deed contains a legal description of the parcel with the easterly boundary as the Seashore and the westerly boundary as Old King’s Highway. The legal description comports with Petitioners’ contention that the deed encompasses Lot 57 and the northerly portion of Lot 78.1, and by extension, the northerly portion of Lot 178. Indeed, on the Assessors’ Maps, the distance from the northern boundary of Rama’s Way to the southern boundaries of Lot 57 and Lot 178 measure an equal distance of approximately 150 feet. The southern boundary of Lot 57 and the midpoint of Lot 178 are both approximately seventy-five feet to the north of the northern boundary of Rama’s Way. As such, I find that Petitioners can establish color of title to the northern half of Lot 178 (“Lot 178N”) under the 1971 Deed.

6. The 1978 Deeds.

The 1978 Deeds describe the land conveyed as Lot 58 on the Assessors’ Maps. Petitioners argue that this deed pertains to the southerly portion of Lot 78.1 and by extension, the southerly portion of Lot 178. The 1978 Deeds contain a legal description of the parcel with the easterly boundary as the Seashore and the westerly boundary as Old King’s Highway. The legal description comports with Petitioners’ contention that the 1978 Deeds encompass Lot 58 and the southerly portion of Lot 78.1, and by extension the southerly portion of Lot 178. The distance from the northern boundary of Rama’s Way measures a distance of 75 feet to the northern boundary of Lot 58, as well as to the midpoint of Lot 78.1, and by extension, the midpoint of Lot 178. As such, I find that Petitioners can establish color of title to the southern half of Lot 178 (“Lot 178S” and, together with Lot 178N, Lot 178) under the 1978 Deeds.

As a result of the foregoing, I find that Petitioners have obtained color of title to Lots 171S, 172S, 173 and 178. Petitioners have not established color of tile over the portion of Lot 82 to the north of the Revised Northern Boundary, Lot 170, the northern half of Lot 171 (“Lot 171N”), the northern fifty feet of Lot 172 (“Lot 172N”), and Lot 174.

III. Ouster

The Sextons argue that Petitioners cannot succeed in their adverse possession argument because Petitioners and the Sextons may be co-tenants in certain portions of Locus (if title to Locus was litigated) and, as a result, Petitioners must show that they have ousted the Sextons in order to achieve title by adverse possession.

The concept of ouster is described in Allen v. Batchelder, 17 Mass. App. Ct. 453 , 456 (1984), where the court stated “sole possession by one tenant in common is not in itself adverse to the interest of a nonpossessory cotenant; it could be consistent with the right of the cotenant.” See Bellis v. Bellis, 122 Mass. 414 , 415 (1877), where the Supreme Judicial Court stated that “an ouster, or some act which the law deems equivalent to an ouster, is necessary to constitute a disseizin of his co-tenants by a tenant in common.” “Acts of ownership are not, in tenancies in common, necessarily acts of disseizin. It depends upon the intent with which they are done, and their notoriety.” Parker v. Proprietors of Locks and Canals on Merrimack River, 44 Mass. (3 Metcalf) 91, 101, 3 Metc. 91 (1841). In lieu of a definitive act of ouster, a constructive ouster can occur when “a long exclusive and uninterrupted possession by one, without any possession, or claim for profits by the other, is evidence from which a [factfinder] may and ought to infer an actual ouster. There need be no turning out of the shoulders' to manifest a decisive intent to occupy to the exclusion of the absent cotenant.” Allen, supra, at 456 (internal citations omitted). Precedent suggests that the claimant must exclusively possess the property for a period greater than the usual adverse possession twenty years; cases holding that an ouster existed had periods of exclusive possession ranging from thirty to ninety years. See id. at 45657. A co-tenant’s knowledge of disseizen, or lack thereof, is irrelevant to the inquiry as to whether there has been a constructive ouster. See id. at 457.

This court is compelled to raise the issue of the Sextons’ inadequate pleadings with respect to the issue of any co-tenancy with Petitioners. As stated in Allen, supra, the issue of ouster arises between co-tenants. Petitioners have long maintained that this is not an ouster case while the Sextons have alleged that Petitioners must prove an ouster. In the Amended Answer, C. Sexton claimed to be the owner of “a fractional interest” in certain portions of Locus (see, supra). Although C. Sexton claimed to own a fractional interest in portions of Locus, she never alleged in the Amended Answer that she was a co-tenant with Petitioners. This court is also mindful that the Amended Answer was filed nearly three years after C. Sexton filed her first Answer. In those intervening three years it was incumbent upon C. Sexton and her counsel to do the necessary title work to determine with whom C. Sexton alleged she was a co-tenant. Instead, C. Sexton waited to file the Pre-Trial Memo to clarify her position as to her co-tenants. The Pre-Trial Memo is not a pleading and therefore cannot be a basis for arguing that C. Sexton and Petitioners are co-tenants. As such, I find that it is unnecessary to address the issue of ouster because C. Sexton’s mere allegation that she is a fractional owner of portions of Locus does not constitute an allegation that she and Petitioners are co-tenants. Notwithstanding the foregoing, this court shall indulge the parties’ request to comment on the issue of ouster. [Note 34]

The Sextons claim they and Petitioners they are co-tenants with respect to a portion of Lot 81.2, Lot 175, and Lot 176. [Note 35] There are several issues that must be resolved relative to the issue of ouster. First, the Sextons argue that a full analysis of record title must be completed before this court can make any determination relative to ouster. This court disagrees. Ouster is based on very similar concepts to adverse possession. Indeed, as noted, supra, constructive ouster involves “[a] long, exclusive and uninterrupted possession by one, without any possession or claim for profits by the other.” Allen. There is a presumption that “actual proof of the ouster has become lost by lapse of time.” Id. If Petitioners can establish ouster over a parcel of land based on its long standing adverse use against a co-tenant, then the record title is not relevant.

Next, in their Amended Answer the Sextons did not claim an ownership interest in Lot 176. The first time the Sextons made any written claim of ownership to Lot 176 was in their answers to interrogatories and then in the Pre-Trial Conference Memo. In their Motion for Leave to Further Amend the Answer, which was DENIED by this court, the Sextons attempted to correct the deficiency in the Amended Answer relative to Lot 176. Specifically, the Further Amended Answer stated that C. Sexton “is the owner of a fractional fee interest in that portion of [Locus] delineated as ‘Claimed by Petitioners’ which parcel is located immediately to the south of the parcel delineated ‘1540/252.’” This description refers to Lot 80 and Lot 176 by extension. The Sextons, however, had waived any claim of fractional ownership in Lot 176 by failing to assert this claim in their Amended Answer. Based on the foregoing, it appears that the issue of ouster with respect to Lot 176 is not adequately before this court because the Sextons never made a claim of ownership to Lot 176 in their Amended Answer. [Note 36]

The Sextons also allege that they are co-owners with Petitioners with respect to a portion of Lot 81.2 and all of Lot 175. As noted, supra, Petitioners did not prove adverse possession to Lot 175 and they did not argue color of title to Lot 175. As such Petitioners cannot establish color of title or ouster with respect to Lot 175.

The Sextons claim a fractional ownership interest in Lot 81.2 but only alleged a co-tenancy with Petitioners in the Pre-Trial Memo (as noted, supra). The evidence at trial (as discussed in Decision 1) indicated that 150 campsites spread throughout Lots 80, 81, 81.1, and 81.2 have existed in essentially the same manner since no later than 1970. Although the campsites consist of cleared areas, Petitioners also sufficiently demonstrated that they have maintained the wooded areas on said lots by cutting trees and using the wooded areas in conjunction with the cleared campsites. Moreover, the wooded areas were left in a natural state as part of the essence of the campground. Petitioners used Lot 81.2 openly, notoriously, adversely, and continuously from 1970 through the present. Prior to filing their Answer in this case, neither the Sextons nor their predecessors have ever made a claim of ownership or to profits relative to Lot 81.2. Based on the foregoing, it appears that Petitioners’ adverse possession of Lot 81.2 for a period of approximately thirty-nine years, constitutes an ouster of the Sextons (if the issue of ouster had been properly presented to this court).

Judgment to enter accordingly.