Norton v. West

• Decision Date: 13 September 1979
• Citation: 8 Mass.App.Ct. 348,394 N.E.2d 1125
• Parties: S. Bailey NORTON, Jr., et al., 1 trustees, v. Robert E. WEST et al. 2 (and a companion case 3 ).
• Court: Appeals Court of Massachusetts

Page 1125

394 N.E.2d 1125

8 Mass.App.Ct. 348

S. Bailey NORTON, Jr., et al., ¹ trustees, v. Robert E. WEST et al. ² (and a companion case³).

Appeals Court of Massachusetts, Suffolk.

Argued June 13, 1979.

Decided Sept. 13, 1979.

Reginald L. Marden, Andover, for defendants.

Chester M. Howe, Boston, for plaintiffs.

Before GOODMAN, GREANEY and KASS, JJ.

KASS, Justice.

In their trustee capacity, S. Bailey Norton, Jr., Drusilla N. Parks and Floyd C. Norton (petitioners) petitioned the Land Court to confirm their title to 51.54 acres of vacant land (the locus) in Edgartown. In reaction, Robert E. West, Dorothy M. West, Arthur Gazaille and Martha Gazaille (respondents) filed a complaint in Superior Court to establish their title to the same piece of land, relying mainly on a claim of adverse possession, although also making a claim under color of title. On the petitioners' motion, the respondents' action was transferred to the Land Court, and the cases were tried together.

Trial consumed eight days, two of them in Edgartown. The evidence included a view of the locus, a Land Court examiner's title abstract, a survey, plans, and testimony from persons conversant with the locus and its use. From the evidence received, the judge made detailed findings of fact and conclusions of law. The judge found that: (1) record title was in the petitioners; and (2) the respondents had failed to establish adverse possession to the locus, particularly because their activities on the land in question "were occasional and intermittent and were either a spillover from those conducted on the West homestead (which is situated adjacent to the locus) or were . . . not done under a claim of right. Many of these were not open and notorious . . . ." Moreover, the judge found that no significant activities of the respondents began until after 1955, and since the filing of the confirmation case in 1975 stopped the running of any adverse possession, the respondents fell short of the twenty years required to attain title by adverse possession. Shoer v. Daffe, 337 Mass. 420, 423-424, 149 N.E.2d 625 (1958). Ryan v. Stavros, 348 Mass. 251, 262, 203 N.E.2d 85 (1964). Shaw v. Solari, --- Mass.App. ---, --- ^A, 392 N.E.2d 853 (1979).

Although the judge concluded that the respondents could neither bar the confirmation of the petitioners' title nor prevail on their adverse possession claim, she found that the respondents had established an easement by prescription to use the way across the locus in a general north to south direction from their property on the southwesterly side of Proprietors Road to a point on Meeting House Road across from the Reynolds homestead. The determination of that easement is the subject of a cross appeal.

We affirm the decision ⁴ and judgment of the Land Court.

Of the seven issues identified by the respondents for review, five dealt with the Land Court judge's findings of fact. In reviewing findings of the Land Court in a confirmation proceeding, those findings must stand if warranted on any view of the evidence and all reasonable inferences therefrom. Lyon v. Parkinson, 330 Mass. 374, 375, 113 N.E.2d 861 (1953). Otis Power Co. v. Wolin, 340 Mass. 391, 395-396, 164 N.E.2d 306 (1960). See G.L. c. 185, § 15. This is an even narrower standard of review than the "clearly erroneous" test of Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), under which a finding by a trial court "will not be deemed 'clearly erroneous' unless the reviewing court on the entire evidence is left with the firm conviction that a mistake has been committed." New England Canteen Service, Inc. v. Ashley, 372 Mass. 671, --- ^B, 363 N.E.2d 526, 529 (1977). Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, --- - --- ^C, 360 N.E.2d 1051 (1977). Sanguinetti v. Nantucket Constr. Co., Inc., 5 Mass.App. 227, --- ^D, 361 N.E.2d 954 (1977). We have examined the evidence with care, and under either criterion the judge's findings of fact are amply supported.

The respondents argue that the Land Court judge erred as a matter of law in ruling that the respondents did not have the benefit of the doctrine of color of title prior to 1959. Color of title, in the context of an adverse possession claim, is an assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title. See Attorney General v. Ellis, 198 Mass. 91, 97-98, 84 N.E. 430 (1908). The advantage which a person may gain from that doctrine is that 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. Dow v. Dow, 243 Mass. 587, 590, 137 N.E. 746 (1923). For example, if the act of adverse possession were cultivating a half acre parcel of land, but the claimant held an invalid deed describing three acres, the claimant would have constructive possession of the three acres for the reason that it is the presumed intention of the grantee of the deed to assert such possession. In this case, an invalid deed to a fractional interest in the locus had been delivered to a predecessor in title of the respondents. The respondents did not record a deed affecting the locus until 1959, and in the absence of other evidence, the judge found the date of delivery to be the date of recording, and that the respondents' color of title began at that time. But, the respondents say, citing G.L. c. 260, § 22, ⁵ they may tack on the activities of their predecessor in title. The respondents' proposition does not lead them anywhere, however, because of the judge's finding that their predecessor in title never entered upon the premises to exercise his claim of ownership and her finding that the respondents' own activities were too sporadic and insubstantial to achieve adverse possession.

In the course of attacking the findings below, ...