Kershaw v. Zecchini

• Decision Date: 30 March 1961
• Citation: 173 N.E.2d 624,342 Mass. 318
• Parties: James H. KERSHAW et al. v. John ZECCHINI et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 624

173 N.E.2d 624

342 Mass. 318

James H. KERSHAW et al. v. John ZECCHINI et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 4, 1961.

Decided March 30, 1961.

Norman M. Goldberg, Boston, for plaintiffs.

Walter C. Tomlinson, Lawrence, for defendant.

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

SPALDING, Justice.

This bill in equity is brought in the Land Court to obtain a declaratory decree establishing title to a parcel of real estate, hereinafter called the locus. See G.L. c. 231A, § 1. From a decree adjudging that the defendant Zecchini (hereinafter called the defendant) was the owner of the locus, the plaintiffs appealed.

The judge made extensive findings which he designated as the 'material facts.' The evidence is not reported. There appears to be no statutory provision applicable to the Land Court analogous to G.L. c. 214, § 23, or G.L. c. 215, § 11, under which a party in the Supreme Judicial, Superior, or Probate Court may obtain, as of right, a report of the material facts. Were this case in one of these courts, the report of the judge, although voluntary, would be treated as the equivalent of a statutory report of the material facts. See Jose v. Lyman, 316 Mass. 271, 277, 55 N.E.2d 433, 154 A.L.R. 190. In such circumstances, where the evidence is not reported, the only question is 'whether, solely on the findings reported by the judge, * * * the decree was rightly entered.' Wiley v. Fuller, 310 Mass. 597, 599, 39 N.E.2d 418, 421. We assume, without deciding, that the findings here are to be treated similarly. So treated, we are of opinion that they are sufficient to support the decree. ¹

The locus is lot 33 on a 'Plan of Land Belonging to Mrs. Eleanor Fairbrother, Andover, Mass.' dated September, 1911. The area of the locus is 4,943.8 square feet. The plaintiffs claim through a chain of title commencing with a deed from Eleanor Hamel (the former Eleanor Fairbrother) to The C. & H. Co. dated and recorded December 1, 1931. The defendant claims under a chain of title commencing with a deed from Edgar M. Earley and Eleanor Earley (the former Eleanor Fairbrother) to Elbridge J. Fairbrother. This deed was dated September 18, 1915, but was not recorded until June 4, 1936. It is plain from the foregoing facts that the plaintiffs have a superior record title, and no contention is made to the contrary. ² The defendant's claim of ownership is based on adverse possession.

The locus was conveyed to the defendant's predecessor in interest, one Oscar Andresen, by a deed dated June 4, 1936, and recorded the same day. Andresen and his wife were circus performers who, between periods of employment, lived with the defendant and his wife in a house located diagonally across the road from the locus. After his purchase, Andresen and the defendant went onto the locus, which had previously been unimproved land, and cleared the brush and cut down trees. Thereafter, Andresen put bound pipes in at the corners of the lot and kept it clear. The land was assessed to him for taxes from 1937 to 1942. From 1936 until 1943 Andresen and the defendant exercised and practised stunts on the lot when they were in town. In consideration for payment of several years of back taxes on the land, Andresen conveyed the locus to the defendant in 1943. Thereupon the defendant erected a wall, removed the stones, and built the house which is now on the land.

The plaintiffs filed their bill on May 9, 1958. It is conceded that the defendant's actions since 1943 were such as to constitute adverse possession. The only question is whether Andresen's conduct was of such a nature that the 1936-1943 period can be tacked onto the 1943-1958 period to form the twenty years necessary for acquisition of title by adverse possession. See Wishart v. McKnight, 178 Mass. 356, 59 N.E. 1028; Id., 184 Mass. 283, 68 N.E. 237; Luce v. Parsons, 192 Mass. 8, 77 N.E. 1032; Am.Law of Property, § 15.10.

The judge found 'on all the evidence that the defendant * * * Zecchini * * * and his predecessors in title under a claim of right have exercised dominion over the locus openly and notoriously and continuously for a period of more than twenty years.' On the basis of the material facts expressly found, the judge could properly have concluded that the defendant acquired title by adverse possession. For title to be acquired in this manner, the claimant must prove that the 'nonpermissive use * * * [was] actual, open, notorious, exclusive and adverse.' Ottavia v. Savarese, 338 Mass. 330, 333, 155 N.E.2d 432, 435. Whether, in a particular case, these elements are sufficiently shown is essentially a question of fact. This is because '[t]he nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.' LaChance v. First Nat. Bank & Trust Co., 301 Mass. 488, 490, 17 N.E.2d 685, 686. The locus was unimproved land. Andresen put in boundary marks, kept the land clear of brush, and continuously used the area for his exercises and stunts. It cannot be said as matter of law that these acts could not properly be the basis of a finding of disseisin.

The plaintiffs, however, argue that acts similar to those performed by Andresen are insufficient as matter of law to constitute adverse possession. We are mindful of the strict rule prevailing in this Commonwealth as to what acts constitute a disseisin in the case of wild or woodland. See Cowden v....