Inhabitants of Nantucket v. Mitchell

• Decision Date: 25 March 1930
• Parties: INHABITANTS OF NANTUCKET v. MITCHELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 62

170 N.E. 807

INHABITANTS OF NANTUCKET

v.MITCHELL.

Supreme Judicial Court of Massachusetts, Bristol.

March 25, 1930.

Exceptions from Land Court, Bristol County; C. T. Davis, Judge.

Petition by the Inhabitants of Nantucket to register title to a strip of land, opposed by Mary K. Mitchell. Decree for petitioner registering title, and respondent brings exceptions.

Exceptions overruled.

J. M. Swift, of Boston, and A. P. Curran, of Jamaica Plain, for petitioner.

N. B. Vanderhoof, of Boston, for respondent.

RUGG, C. J.

This is a petition to register title to a strip of land in that part of the petitioning town known as Sciasconset. The petitioner claims title ultimately through one Flagg and immediately under deed from the proprietors of the common and undivided lands of the Island of Nantucket, hereafter called proprietors, subject to trusts therein declared. In 1873 Flagg owned a large tract of land including a part, if not the whole, of the locus. So far as concerns the present controversy, it was (as found by the trial judge) bounded easterly by a line substantially at the foot of a high bank or bluff, between which and the Atlantic Ocean at mean high water is an expanse of beach upland owned by the proprietors. Flagg had plans made dividing his tract into lots, the easterly line of which was at a reasonably safe distance westerly of the edge of the bluff. A foot path ran along the top of the bluff. By deed dated September 1, 1892, Flagg conveyed to Mrs. Mitchell, hereafter called the respondent, a tract composed of three of the most easterly tier of his lots bounded easterly by a foot path along the bank. By deed dated September 21, 1892, Flagg conveyed to the proprietors the tract of land (with exceptions not here material) lying between the easterly boundary lines of the most easterly tier of said lots, being in part the easterly boundary of the respondent's tract, on the west, and the beach upland belonging to the proprietors, on the east, the strip so conveyed to be held by the proprietors in trust for the purpose of a way or foot path along the bank and for no other purposes, with authority to convey said tract to the petitioner for the same purposes. By instrument dated the following day, Flagg gave to the respondent a quitclaim deed of all his interest in the land lying eastward of and between the extension of the northern and southern lines of the tract theretofore conveyed by him to her with the condition that all of the land lying between the east line of the tract previously conveyed to her and the edge of the bank be kept open for the purpose of a way or foot path along the bank, and reciting further: ‘This deed being subject to my deed of September 21, 1892, conveying the same premises to the Proprietors * * * in trust for uses and purposes therein specified.’ All these deeds were recorded in the order of their respective dates. The trial judge states: ‘Flagg conveyed many, if not all, of his front lots in a similar way. Just what interest he thought he had, or was conveying by the quitclaim deeds, does not appear. The respondent and other purchasers obviously thought they were acquiring some interest in the bank or bluff, subject to the foot path. The respondent Mitchell in 1922 filed a petition for registration of title to her land, claiming easterly to the ocean. In that case, as in other cases out of this same tract, I ruled that title to the strip between the easterly line of the tier of lots on the west, and the line at the foot of the bank on the east, passed to the Proprietors under said deed of September 21st, and not to the respondent under her deed of September 22nd.’

Other relevant facts found by the trial judge are these: ‘The respondent built a house on her lots to the west of the foot path, and in 1893 secured the edge of the bank from crumbling by a sort of bulkhead of boards, filled in between her house and the edge of the bank with soil, and made the space into a lawn, leaving a well defined foot path over it as a part of the continuous foot path from Sankaty Head Lighthouse southerly along the top of the bluff; planted rose bushes and broom on the face of the bluff, both for ornamentation and to secure it from washing; built a flight of about one hundred steps down the bluff from in front of her house; built two bath-houses, each containing three compartments, at the foot of the bluff, but to the west of the boundary line of the strip conveyed to the Proprietors in 1892; and a few years later erected on said strip at the foot of the bluff a small engine house used in connection with a gas plant for her house. For a period of over twenty years she has cut the lawn, cared for the bushes, replaced the soil and maintained said structures on said strip. She has occupied her property each year from June to October. She claims title acquired by adverse possession to the portion of the strip conveyed to the Town in 1925 between her northerly and southerly boundary lines extended. I find that she has acted as above stated under a claim of right, and she supposed, until the decision in her registration case in 1926, that she owned some interest in said strip. The Sankaty Path is in constant use, and is a matter of importance to all lot owners along the bluff. It is a well defined path, but, owing to inroads, by the sea, needs care and repair. It is in good condition in front of the respondent's house, and her lawn has in no way interfered with the path. There has been nothing in her care of the bluff that has been in any way adverse to the rights of the Proprietors, or of the Town as their successor in title, nor in any of the said acts of the respondent has there been anything adverse to the purpose of the trust under which title to the strip of land has been held, namely, the maintenance of the path. That portions of it have been used by the respondent for access to the beach and for bathing purposes, or for the housing of her gas engine for lighting her summer residence, has not been inconsistent with a reasonable inference of permission on the part of the Proprietors. The Proprietors are the original body of land owners, holding as tenants in common and incorporated for purposes of management and division of the common lands. They are one of the last remaining bodies of Proprietors in the Commonwealth, and have little land remaining undivided. They peculiarly represent the common interests of the land owners as a collective body. They have no particular means, however, of protecting or carrying out the trust established by the Flagg deed of September 21st, and that deed expressly provided for their transferring the title, together with the trust as to this strip of bluff on which is located the path, to the town. That they should permit an owner of lots abutting on the path to adorn and care for the adjoining strip of bluff and beach upland at its foot, and to use it in any way beneficial to the house lots and in no way detrimental to the Proprietors for the maintenance of the path, seems to me reasonable and natural. There is a...