Cowden v. Cutting

• Decision Date: 06 May 1959
• Citation: Cowden v. Cutting, 158 N.E.2d 324, 339 Mass. 164 (Mass. 1959)
• Parties: J. Fleet COWDEN, Trustee, v. Roger CUTTING and others.
• Court: Supreme Judicial Court of Massachusetts

Page 324

158 N.E.2d 324

339 Mass. 164

J. Fleet COWDEN, Trustee, v. Roger CUTTING and others.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1958.

Decided May 6, 1959.

J. Fleet Cowden, South Sudbury (Orrin P. Rosenberg, Boston, with him), for petitioner.

Edward T. Simoneau, Boston, for respondent.

Matilda M. O'Rourke, pro se.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The defendant Matilda M. O'Rourke has appealed from the final decree of the Land Court in a suit to remove a cloud on title under the provisions of G.L. c. 185, § 1(k), and c. 240, §§ 6-10. The judge made full and extensive voluntary findings and the evidence is reported. We are to decide the case according to our judgment of the facts, accepting the findings below unless we determine that they are plainly wrong. Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27. Carroll v. Markey, 321 Mass. 87, 87-88, 71 N.E.2d 756. Skil Corp. v. Barnet, 337 Mass. 485, 488, 150 N.E.2d 551, 553 ('giving due weight to the judge's findings'). This being a suit in equity such as may be brought in the Supreme Judicial Court or the Superior Court as well as the Land Court, the rule stated for a decision in statutory Land Court proceedings (Mahoney v. Wilson, 260 Mass. 412, 414, 157 N.E. 592, 593) that the Land Court 'decision will not be disturbed unless unsupported by evidence' does not apply.

The locus is a strip of unenclosed woodland in Sudbury lying in the northwest corner of Old Lancaster Road and Peakham Road.

The plaintiff's title is shown in three deeds delivered and recorded in 1953. The alleged cloud arose in a deed from Albert P. Willis to Lucius P. Bent dated March 26, 1904, which conveyed two parcels other than the locus and whatever was encompassed in the following generality: 'and meaning hereby to convey all my rights, title and interest of any and all real estate situated in said Sudbury, acquired by me as one of the three heirs of the late Charles P. Willis.'

The original six named defendants were described as the sole parties known to the plaintiff whose interests derive from Lucius P. Bent and there was notice by publication to all others claiming under him. A guardian ad litem and the named defendants assented to a final decree for the plaintiff and such was entered. Thereafter a petition by O'Rourke to vacate the decree was allowed; O'Rourke was made a defendant; and the issues raised by her answer were tried. O'Rourke (hereinafter the defendant) contends that the plaintiff has no title because long before the deeds to the plaintiff the title held by the then owners of the locus was conveyed away in partition proceedings, and because of allegations in the bill of complaint, that the plaintiff does not have possession, and that the defendant has title by adverse possession.

1. The defendant's lack of interest in the title, and in the proceedings to quiet it, is established by the conclusion of the judge, if it is right, that '[t]he acts done by the defendant and her predecessors in title * * * were insufficient to establish title by disseisin.' We are unable to rule that this conclusion, so far as it is of fact, is wrong. In its aspect as a ruling it is correct. The judge heard and saw the witnesses and was in a position to judge the weight and credibility to be given to the testimony of each. The defendant is the owner of land adjacent to the locus on the west inclusive of a pond, the easterly shore of which is at or near the common boundary. It was conveyed by the guardian of the minor children of Charles P. Willis to Johnston Lumber Company on December 18, 1897. Willis's widow had previously conveyed her rights. By mesne conveyances, title to this adjacent land came to the defendant's father in 1924. He conveyed it to the defendant on June 7, 1943. The defendant later conveyed to one Bacon and thereafter, by mesne conveyances and foreclosure of a mortgage, title came back to the estate of the defendant's father and was inherited by the defendant. In each of these deeds, including that to the defendant, the description of the property begins 'on the North side of said road at the pond at land of heirs of Charles P. Willis, new or formerly' or with similar words.

The judge found that the 'locus was never fenced in so as to give the appearance of being conveyed with the adjoining land,' and it was never cultivated. There are detailed findings in respect of the subsequent use of the land. The Johnston Lumber Company erected bunkhouses on the locus which stood for several years while its mill was operating. The mill burned about fifty years ago. The company used a small part of the land for storing barrels. The company put in a road alongside the pond and used it for hauling barrels and logs. The next two owners of the defendant's adjacent land had some firewood cut off the locus in each year of their ownership (1903 to 1923). The next owner of the adjacent land had several thousand feet of lumber cut from the locus and sold. The defendant's father erected a cottage on the adjacent land at the edge of the pond. He brought in building materials and furnishings across a road on the locus. At some time or other he put gravel on this way and removed some tree roots on or near the way. He put up 'no trespassing' signs. He cleared off some of the underbrush and cut some firewood but not for sale. The father for years lived in the cottage in the summer and visited it weekends during the rest of the year. He put up a mail box at the corner of Lancaster and Peakham roads. Following the hurricanes he caused broken tree tops to be removed and about 30,000 feet of fallen trees taken out as a precaution. Bacon rebuilt the road from Peakham Road northerly beside the pond to the cottage. He attempted to sell a portion of the locus and the buyer started to build, but stopped after a foundation or cellar was built as both Bacon and the buyer learned that they did not have record title. The defendant in 1951 or 1952 knew she did not have record title. The defendant erected 'no trespassing' signs. In the early part of 1954, she had a survey made. The locus had been used by the public as a means of access to the pond shore for picnic grounds and to the pond and surrounding area for fishing and hunting. This was prior to the ownership of the defendant's father. The evidence showed that the road across the locus was regularly used for access. There was testimony of some other use such as that a fence was at one time erected along a side of the locus and that the defendant rode and walked through the locus. There was testimony that '[i]t was generally known in the community' that the locus was the property of the defendant's father. The evidence indicates that taxes were not paid on the locus for many years.

The judge concluded, 'I find on all the evidence that the locus was open and unenclosed woodland * * * that the acts of possession were few, intermittent, and equivocal.' Many of the acts done were consistent with the assertion only of an easement of passage.

It is well established that acts such at those found by the judge or shown by the evidence do not require a conclusion of disseisin of wild or would land not fenced or reduced to possession by cultivation. Bates v. Norcross, 14 Pick, 224, 228. Coburn v. Hollis, 3 Metc. 125, 128-129. Slater v. Jepherson, 6 Cush, 129, 131-132. Cook v. Babcock, 11 Cush. 206, 210. Parker v. Parker, 1 Allen 245, 247. Morrison v. Chapin, 97 Mass. 72, 76. Morris v. Callanan, 10k Mass. 129, 133. McDonough v. Everett, 237 Mass. 378, 383-384, 129 N.E. 681. Dow v. Dow, 243 Mass. 587, 593, 137 N.E. 746, 748 ('It is generally held that a title by adverse possession cannot be shown to wild or woodland that has always been open and unenclosed'). Bates v. Town of Cohasset, 280 Mass. 142, 153, 182 N.E. 284. Compare Keith v. Kennard, 222 Mass. 398, 110 N.E. 1030, L.R.A.1916D, 3, and Phipps v. Crowell, 224 Mass. 342, 112 N.E. 648, where fences were built across the necks of promontories, serving to enclose them; LaChance v. First Nat. Bank & Trust Co., 301 Mass. 488, 17 N.E.2d 685.

We do not find it necessary to consider whether the defendant is able to 'tack' the predecessor titles (see Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028, and 184 Mass. 283, 68 N.E. 237) or the effect of the evidence of insanity of Adeline M. Willis, one of the three owners in common by inheritance from Charles P. Willis throughout the period of claimed adverse possession. See Edson v. Munsell, 10 Allen 557.

2. The parties have fully argued other issues and we decide them. The first of these is the effect of the partition proceedings. We rule that those proceedings did not transfer the locus out of the plaintiff's chain of title.

A petition for partition was filed February 26, 1904, by two daughters of Charles P. Willis, deceased. It prayed that partition 'may be made of all the real estate' of Charles P. Willis lying in the Commonwealth, and that the commissioner 'be ordered to make sale and conveyance of said real estate at public auction for cash.' The decree so directed. The commissioner filed an affidavit that he had given notice and had 'made sale and conveyance of the lands therein described' to Lucius P. Bent. The notice read that the commissioner would make 'sale of all the real estate of Charles P. Willis deceased.' There followed in the notice a description of two tracts which did not include the locus, one of them lying in the northeast corner of the two roads and the other lying south of Peakham Road. The commissioner's deed dated April 25, 1904, did not include the locus. There is no evidence of the reason for the omission. The Probate Court entered a decree on the commissioner's report and account 'that the same be accepted and the partition confirmed and established.' One third of the proceeds of the partition proceedings were paid to Lucius...