Cerel v. Town of Framingham

• Decision Date: 06 February 1961
• Parties: Martin CEREL, Trustee, v. TOWN OF FRAMINGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 840

171 N.E.2d 840

342 Mass. 17

Martin CEREL, Trustee, v. TOWN OF FRAMINGHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 9, 1960.

Decided Feb. 6, 1961.

Alden S. Seltzer, Town Counsel, Framingham, for respondent.

James D. St. Clair, Boston (Abraham T. Handverger, West Medford, with him), for petitioner.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.

SPALDING, Justice.

This is a petition for registration of title to a parcel of land (hereinafter called the locus) in Natick. The respondent claimed ownership in the locus by adverse possession. The decision of the judge, which included findings of fact, ordered the fee of the locus to be registered in the name of the petitioner 'free of any rights of the respondent.' The respondent appealed. G.L. c. 185, § 15; c. 231, §§ 96, 142. An appeal from the Land Court brings before this court only questions of law apparent upon the record. Findings of fact cannot be revised. ¹ Holmes v. Barrett, 269 Mass. 497, 499, 169 N.E. 509. Sheehan Const. Co. v. Dudley, 299 Mass. 48, 49, 12 N.E.2d 180. The question is whether the ultimate order or determination is correct in law upon the facts found by the judge in his decision. See Harrington v. Anderson, 316 Mass. 187, 192, 55 N.E.2d 30.

The respondent was empowered by St.1887, c. 403, to take, by purchase or otherwise, in the towns of Framingham and Natick or either of them, lands, rights of way or easements necessary for the establishment of a sewage disposal system. A particular area, in which this taking could be made, was designated. Section 2 provided that nothing could be done under the act until the proposed location had been approved by the State board of health. Section 3 provided that in the case of any taking under the act, other than by purchase, the 'said town shall file and cause to be recorded in the registry of deeds for the county and district in which said lands, water rights, or other real estate lie, a description of the same as certain as is required in a common conveyance of land * * *.' Section 10 required the approval of the voters of the respondent, which was duly given on February 20, 1888.

The findings of facts made by the judge include the following. In 1888 the respondent took certain land in Natick as authorized by St.1887, c. 403. Within a year or two, it began laying out filter beds on the area taken, but extended them outside of the authorized area (and the land that had been taken) into the locus. 'From then until 1936 the * * * locus * * * was substantially covered by two filter beds cared for by the sewer department of the * * * [respondent] with the assistance of the highway division. During this period the only use of the locus was maintaining these filter beds. There was never any indication on the ground which would show the * * * 'division line." Several times land was taken from the locus for the relocation and improvement of adjacent highways. Thus it now is reduced to about one third of the original area. In 1936 the use of the locus for filter beds was abandoned. '[T]he area was leveled off by eliminating the banks around them and from then on nothing was done on [the] locus except incidental cleaning up which was done more as a public service than [as] specific acts of possession.' In 1950 the selectmen of the respondent by lease allowed a third party to maintain a sign on the locus.

'[T]he locus was clearly excluded from the * * * [1887] enabling act area and there has never been any formal or legal taking of a fee or easement in the locus attempted under said act or otherwise * * *.' The acts of the respondent with respect to the locus were in direct violation of the 1887 act in maintaining sewage beds over the divison line, thus putting them in another water basin. The State board of health did not approve this action and could not have done so. Although 'from 1889 to 1936 certain employees of the respondent * * * used the locus by continuous and exclusive maintenance of filter beds for sewage' (an activity 'discernible to all and * * * [interfering] with the use of the owner of record'), 'there never has been any corporate action by the * * * [respondent] to take the locus by adverse possession and to disseize the owner.' Nor was there 'any authority for its employees to do so'; nor any 'ratification or general occupation by * * * [its] citizens.' The judge concluded that the respondent had 'not supported its burden of proof as to any adverse use.'

There was no error.

The sole question is whether the judge on the basis of the foregoing facts could have properly concluded that the respondent acquired no rights in the locus by adverse possession. That a town may acquire title to real property within its limits by adverse possession is well established. Inhabitants of Milton v. First Congregational Church in Milton, 10 Pick. 447, 452. City of Boston v. Richardson, 105 Mass. 351, 371-372. Murphy v. Commonwealth, 187 Mass. 361, 366-375, 73 N.E. 524. Attorney General v. Ellis, 198 Mass. 91, 98, 84 N.E. 430, 15 L.R.A.,N.S., 1120. Enfield v. Woods, 212 Mass. 547, 554, 99 N.E. 331. See Loring v. Brackett, 3 Pick. 403, 412-413; Gordon v. City of Taunton, 126 Mass. 349, 351-352; Deerfield v. Connecticut River R. R., 144 Mass. 325, 334-336, 11 N.E. 105; Proprietors of Jeffries Neck Pasture v. Inhabitants of Ipswich, 153 Mass. 42, 45-46, 26 N.E. 239. Whether a town may acquire land in a similar manner outside its territorial limits has not been decided. A city or town may purchase land in another town for municipal purposes. City...