Paine v. Sexton

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14-P-14 Appeals Court
ROBERT L. PAINE, trustee1 & another2 vs. CHELLISE L. SEXTON3 &
another.4
No. 14-P-14.
Suffolk. April 2, 2015. - September 23, 2015.
Present: Milkey, Brown, & Massing, JJ.
Land Court, Registration proceedings. Real Property, Registered
land, Adverse possession, Record title, Deed. Adverse
Possession and Prescription. Deed, Description. Practice,
Civil, Summary judgment, Motion to amend.
Civil action commenced in the Land Court Department on
February 10, 1999.
The case was heard by Alexander H. Sands, III, J., and
motions for summary judgment were heard by him.
Albert J. Schulz for the defendants.
Sarah Turano-Flores for the plaintiffs.
1
Of the Land Steward Trust.
2
Sheila L. Paine, trustee of the Land Steward Trust.
3
Individually and as trustee of Parcel 164 Nominee Trust.
4
David Sexton, trustee of Parcel 164 Nominee Trust.
2
BROWN, J. This case causes us to examine a novel treatment
of the law of adverse possession and presents difficult concerns
with a color of title claim as well. On review we conclude the
judge's resolution of both issues in favor of the plaintiffs is
sustainable, and the well-crafted arguments of the defendants do
not persuade us otherwise. Accordingly, we affirm the judgment
entered by the Land Court judge.
The plaintiffs seek to register approximately thirty-six
acres of predominately woodland located in Wellfleet. In their
petition for registration, they asserted claims based on record
title and adverse possession.5 For their claims of adverse
possession, they assert nonpermissive use of portions of the
property for more than twenty years in a manner that was actual,
open, notorious, exclusive, and adverse. See Kendall v.
Selvaggio, 413 Mass. 619, 621-622 (1992). In addition, based on
deeds purporting to convey title to them, they claim adverse
possession under color of title to portions of the locus where
they cannot show actual use. See Norton v. West, 8 Mass. App.
Ct. 348, 350-351 (1979). In response, the defendants contend
that the plaintiffs cannot establish their claim of adverse
possession of any portion of the wooded parcels because they
5
The plaintiffs have abandoned their claims of record title
to the parcels in dispute in this appeal, relying instead
exclusively on their claims of adverse possession.
3
have not enclosed them or reduced them to cultivation, see Senn
v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 993 (1984),
and in any event the deeds under which they claim color of title
are inadequate in description to support such a claim.
The case proceeded in the Land Court in two stages. The
adverse possession claim was tried first and the judge concluded
that the plaintiffs' use of portions of the property was
sufficient to support a claim of adverse possession.
Thereafter, the parties submitted summary judgment motions on
the color of title issue. Again, the plaintiffs prevailed. We
address the two issues in turn.
Adverse possession. The plaintiffs or their predecessors
(plaintiff Robert L. Paine's parents) have operated a commercial
campground on the locus since approximately 1958. To that end,
they have created roadways and cleared campsites while still
maintaining the natural environment. They have placed picnic
tables, fire rings, and campsite numbers on the campsites
seasonally and have built a house, erected two toilet facilities
and an office building, enlarged parking areas, and created a
volleyball pit, a paddock, and play areas. They constructed a
wall of railroad ties along the road frontage, and fencing
comprised of iron pipes and wires, from which they hung "no
trespassing" signs, around much of the campground. However, the
fencing and walls did not enclose the entirety of the
4
campground. The plaintiffs controlled entry to the locus --
charging an amount per person -- and ousted those who did not
pay. The plaintiffs also advertised the campground with signage
along the highway, and in newspaper advertisements and brochures
distributed in local stores. In addition, they have paid taxes
on the property since the 1960s; however, it is unclear exactly
which parcels the plaintiffs paid taxes on because many of the
bills do not delineate lot numbers and acreage. The campground
is operated seasonally and houses approximately 500 individuals
during the summer weekends and fewer individuals during the
weeks. Individuals bring their own tents and campers.
Despite the plaintiffs' extensive use of portions of the
property, however, they have not enclosed it entirely with
fencing, or reduced it to cultivation. Indeed, as the
defendants observe, the plaintiffs maintained areas between
individual campsites in a predominantly natural state, for
privacy and to preserve the wooded condition of the area.
Accordingly, the defendants contend, the plaintiffs have not
satisfied the strict rule applicable to a claim of adverse
possession of wild or woodland. See Cowden v. Cutting, 339
Mass. 164, 168 (1959); Senn v. Western Mass. Elec. Co., supra.
"The strict rule applicable to wild or woodlands is, however,
but an application of the general rule to the circumstances
presented by wild or uncultivated lands. That is to say, the
5
nature of the occupancy and use must be such as to place the
lawful owner on notice that another person is in occupancy of
the land, under an apparent claim of right; in the circumstances
of wild and unimproved land, a more pronounced occupation is
needed to achieve that purpose." Sea Pines Condominium II Assn.
v. Steffens, 61 Mass. App. Ct. 838, 848 (2004).6 "[T]he
determination whether a set of activities is sufficient to
support a claim of adverse possession is inherently fact-
specific." Ibid. See LaChance v. First Natl. Bank & Trust Co.,
301 Mass. 488, 490 (1938).
In the circumstances of the present case, in which the
plaintiffs operated the locus as a commercial campground
advertised as such, improved the site by clearing campsites and
constructing roadways, toilet buildings, and an office, and
restricted access to paying customers, we are satisfied that the
judge was correct in his assessment that the plaintiffs' use was
sufficient to place the record owners on notice that the
plaintiffs occupied the locus under a claim of right.7 See
Kershaw v. Zecchini, 342 Mass. 318, 321 (1961).
6
We note as well that seasonal use may be adequate to
establish adverse possession. See Kershaw v. Zecchini, 342
Mass. 318, 321 (1961); Lebel v. Nelson, 29 Mass. App. Ct. 300,
302 (1990).
7
In this regard, we note that the judge took a view of the
site during the camping season and was thus able to observe
6
Color of title. Pursuant to the doctrine of color of
title, "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." Long v. Wickett, 50 Mass. App. Ct. 380, 382 n.3
(2000), quoting from Norton v. West, 8 Mass. App. Ct. at 351.
"The entry is deemed to be coextensive with the grant upon the
ground that it is the intention of the grantee to assert such
possession." Macallister v. DeStefano, 18 Mass. App. Ct. 39, 42
(1984), quoting from Dow v. Dow, 243 Mass. 587, 590 (1923).
Most of the deeds relied on by the plaintiffs to support their
color of title claim refer, in order to help locate the lots, to
lot numbers on assessors' maps originally created in 1964.8
To support their claim of color of title, the plaintiffs
rely on seven deeds, each recorded with the Barnstable County
registry of deeds. Each of the seven deeds includes reference
to the assessors' maps of the town of Wellfleet for assistance
in locating the parcel conveyed. In their challenge to the
plaintiffs' claim, the defendants contend that the assessors'
maps provide inadequate description of the lots to support a
firsthand the extent to which the defendants were placed on
notice of the adverse use.
8
The maps were revised periodically between 1964 and 1993,
but for simplicity we refer to them as assessors' maps.
7
claim of color of title. The defendants' argument is flawed in
several respects.
Most of the deeds relied on by the plaintiffs contain metes
and bounds descriptions in addition to their reference to the
assessors' maps. Some of those descriptions are stated by metes
and bounds, while others are stated by reference to abutting
parcels. Such descriptions are typical of those validly used to
describe and convey property, and we see no reason why a
supplemental reference to the assessors' maps should derogate
from the validity of the more detailed description contained in
the deeds. In any event,
"[a]n assessor's 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. . . . 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."
Larsen v. Dillenschneider, 235 Mass. 56, 57 (1920).
The defendants also contend that the judge impermissibly
engaged in fact finding to resolve disputed questions of fact,
rejecting their expert's affidavit asserting that the parcels
cannot be located on the ground based on the deed descriptions
with any degree of certainty. We disagree. In his decision on
the color of title issue and judgment, the judge did not
determine the precise boundaries of the parcels based on the
8
deed descriptions.9 Instead, he reviewed the deed descriptions
to determine which parcels they described in general terms,
compared the plaintiffs' campground use to the parcels described
in the deeds, and entered a judgment declaring that the
plaintiffs' claim of adverse possession extended to the
boundaries of the parcels described in the deeds under which
they held an apparent (though possibly flawed) record title,
under the doctrine of color of title. The judge was entitled to
reject, as matter of law, the defendants' expert's assertion
that the deed descriptions cannot possibly be located on the
ground in any circumstances. See Hicks v. Brox Indus., Inc., 47
Mass. App. Ct. 103, 107 (1999) (on summary judgment judge
properly rejected expert's opinion as invalid and unreliable).
Other issues. We discern no abuse of discretion in the
judge's denial of the defendants' motion to file a second
amended answer, in which they sought leave to supplement their
claims of title to portions of the disputed property with
fractional interests they had acquired.10 However, the
defendants did not file their motion to file a second amended
9
Such a determination, and resolution of any conflicts that
may arise with abutting property owners, remain for further
proceedings in the Land Court before a decree of registration
may issue.
10
Based on their fractional interests, the defendants
sought to argue that the plaintiffs were required to satisfy the
more stringent requirements for ouster of a cotenant. See Allen
v. Batchelder, 17 Mass. App. Ct. 453, 455-456 (1984).
9
answer until two years after the trial on the adverse possession
claim, and the judge did not abuse his discretion rejecting it
on grounds of timeliness.
Finally, in the exercise of our discretion we decline the
plaintiffs' request for appellate attorney's fees. Though we
agree with the plaintiffs that the defendants' appeal is without
merit, it is not frivolous.
Judgment affirmed.