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. A Decision of today’s date has been issued (“Decision 2”). In accordance with Decision 1 and Decision 2 it is hereby:

ORDERED and ADJUDGED that Petitioners have established actual use of Lot 80 (“Lot 80”), Lot 81 (“Lot 81”), Lot 81.1 (“Lot 81.1”) and Lot 81.2 (“Lot 81.2”) as these lots are depicted on a 1993 Town of Wellfleet Assessors’ Atlas, dated January 1, 1993, revised through March 31, 2010 (the “Assessors’ Atlas”)

ORDERED and ADJUDGED that Petitioners have openly and notoriously used Lots 80, 81, 81.1 and 81.2 in such a way that the true owner of the land should have known of their use.

ORDERED and ADJUDGED that Petitioners have established exclusive use of Lots 80, 81, 81.1 and 81.2.

ORDERED and ADJUDGED that Petitioners have established adverse use of Lots 80, 81, 81.1 and 81.2.

ORDERED and ADJUDGED that Petitioners' have used Lots 80, 81, 81.1 and 81.2 continuously in excess of a twentyyear period.

ORDERED and ADJUDGED that Petitioners have established title by adverse possession over Lots 80, 81, 81.1 and 81.2.

ORDERED and ADJUDGED that Petitioners have established title by adverse possession over the entirety of Lot 78.1 (“Lot 78.1”) as shown on the Assessors’ Atlas.

ORDERED and ADJUDGED that Petitioners have established title by adverse possession over the areas of the portions of Lot 82 (“Lot 82”) and Lot 83S (“Lot 83S”), as these lots are shown on the Assessors’ Atlas, that lie south of the boundary set by a fence (the “Iron Pipe Fence”) as shown on the plan attached to Decision 1 as Exhibit A and on plan titled “Plan of Land in Wellfleet, MA belonging to Robert S. And Cynthia M. Paine” dated February 28, 1992 and prepared by the Boston Land Survey Company, Inc. (the “1992 Plan”). [Note 16]

ORDERED and ADJUDGED that Petitioners have not established exclusive use or actual use of the parcel depicted on the Assessors’ Atlas as Lot 145 (the “Smith Parcel”), Lots 169 through 176 and Lot 178 (individually defined by lot number, e.g. “Lot 169,” and collectively defined as the “Extension Lots”), as they are all shown on the Assessors’ Atlas, and, thus, have not established title by adverse possession to said parcels.

ORDERED and ADJUDGED that the statutory notice requirements have been satisfied.

ORDERED and ADJUDGED the Sextons’ Emergency Motion to Strike the Supplemental Affidavit is ALLOWED.

ORDERED and ADJUDGED that, to the extent that it is an allegation of fact, the last sentence of Paragraph 8 of the Freeman Affidavit shall be stricken.

ORDERED and ADJUDGED that Lots 83S, 82, 81, 81.1, 81.2, 80 and 78.1 (the “Campground Lots”) and the corresponding Extension Lots can be considered one lot for color of title purposes.

ORDERED and ADJUDGED that Petitioners may rely on Town of Wellfleet Assessors’ Maps Sheets 203-21 and 204-22, dated November 2, 1964, revised through February 1988 (the “Assessors’ Maps”) to prove their color of title claims.

ORDERED and ADJUDGED 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 a deed dated September 7, 1968, and recorded with the Registry in Book 1424, Page 707.

ORDERED and ADJUDGED that Petitioners have established color of title to the southern half of Lot 171 (“Lot 171S”) under a deed dated May 11, 1976, and recorded with the Registry in Book 2349, Page 46.

ORDERED and ADJUDGED that there is no basis for Petitioners’ color of title claim with respect to Lot 172 and Lot 174 under a deed dated December 8, 1958, and recorded with the Registry at Book 1026, Page 544. [Note 17]

ORDERED and ADJUDGED that Petitioners can establish color of title to Lot 173 and the southern 100 feet of Lot 172 (“Lot 172S”) under a deed dated October 22, 1976, and recorded with the Registry in Book 2421, Page 243.

ORDERED and ADJUDGED that Petitioners can establish color of title to the northern half of Lot 178 (“Lot 178N”) under a deed dated October 4, 1971, and recorded with the Registry in Book 1540, Page 252.

ORDERED and ADJUDGED that petitioners can establish color of title to the southern half of Lot 178 (“Lot 178S” and, together with Lot 178N, Lot 178) under a deed dated May 30, 1978 and recorded with the Registry at Book 2770, Page 196 and deed dated August 23, 1978, and recorded with the Registry at Book 2770, Page 195.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED 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.