Snow v. E. L. Dauphinais, Inc.

• Citation: 432 N.E.2d 730,13 Mass.App.Ct. 330
• Parties: Arthur P. SNOW et al. 1 v. E. L. DAUPHINAIS, INC. (and a companion case 2 ).
• Decision Date: 19 March 1982
• Court: Appeals Court of Massachusetts

Page 730

432 N.E.2d 730

13 Mass.App.Ct. 330

Arthur P. SNOW et al. ¹ v. E. L. DAUPHINAIS, INC. (and a companion case ²).

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 9, 1981.

Decided March 19, 1982.

Leon M. Fox, Framingham, for Arthur P. Snow and another.

Jonathan H. Seder, Worcester (Saul A. Seder, Worcester, with him), for E. L. Dauphinais, Inc.

Before GREANEY, ROSE and PERRETTA, JJ.

PERRETTA, Justice.

The Snows (Arthur and Joseph) petitioned the Land Court to register and to confirm their title to a certain parcel of land situated in Grafton. E. L. Dauphinais, Inc. (Dauphinais), filed a complaint in the Superior Court to establish its title to portions of the same land which it claimed by adverse possession and under color of title. The complaint was transferred to the Land Court, and the cases were combined for trial. G.L. c. 212, § 26A. The judge found that Dauphinais had encroached upon the Snows' land in ten locations, only three of which it could rightfully claim by adverse possession. We conclude that Dauphinais established its right to title for only one of those locations, and we reverse the decision.

Arthur and Joseph derived title to the disputed land in the following manner. By a duly recorded deed dated June 11, 1894, one Ashley Rice conveyed the land to Arthur and Joseph's father, George, who died intestate in 1937. He was survived by his wife, Clara, and their three children, Arthur, Joseph and Cecile, as well as by a daughter of a prior marriage, Estelle M. Rivard. Cecile and Clara died intestate in 1942 and 1949 respectively. At the time of these proceedings Estelle was of parts unknown.

Dauphinais's interest in the land dates back to 1933, when George Snow and Alfred J. Dauphinais entered into an agreement whereby George allowed Alfred to excavate sand and gravel from a twenty-six acre parcel of his land. After Alfred's death, the excavation operations were carried on by his sons, one of whom is Emile, a principal officer in the respondent corporation. In order to truck the sand and gravel out to open road, Emile, in 1933, built a right of way leading from the pit site, over the Snows' land to the south, and out to Worcester Street. The twenty-six acre parcel was conveyed to Emile in 1936 by a duly recorded deed from George. The land to which Arthur and Joseph seek to register title bounds the Dauphinais's twenty-six acre parcel on its easterly and southerly sides. Dauphinais claims ownership of ten sites on the land, four located on the easterly side and six on the southerly. ³

The judge concluded that Dauphinais had established ownership by adverse possession of three of the ten locations, and these cross-appeals ensued.

1. Standard of Review.

Both Dauphinais and the Snows attack the judge's factual findings adverse to them. Dauphinais alleges that as matter of law the evidence does not warrant the findings; the Snows state that the findings are clearly erroneous.

Subsequent to the briefing and argument of these cross-appeals, the Massachusetts Rules of Civil Procedure were amended, 385 Mass. (1982), to extend their coverage to proceedings in the Land Court, effective January 1, 1982. The amended rules however, are not applicable to these appeals. See Seibolt v. County of Middlesex, 366 Mass. 411, 412 & n. 2, 319 N.E.2d 448 (1974). Cf. Mass.R.Civ.P. 1A, subpars. 7 & 8, 365 Mass. 732 (1974). Thus, as to this case, challenges to the judge's factual findings will not prevail if the findings are "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)." Norton v. West, 8 Mass.App. 348, --- - ---, Mass.App.Ct.Adv.Sh. (1979) 1827, 1829-1830, 394 N.E.2d 1125.

2. Fraud by the Snows.

In reliance on State St. Bank & Trust Co. v. Beale, 353 Mass. 103, 227 N.E.2d 924 (1967), and Kozdras v. Land/Vest Properties, Inc., --- Mass. ---, Mass.Adv.Sh. (1980) 2409, 413 N.E.2d 1105, Dauphinais argues that the judge should have acted, sua sponte, to dismiss the Snows' action because of misstatements and omissions of material facts in and from their petition. Specifically, Dauphinais points to the Snows' failure to disclose Estelle Rivard's one-sixth interest in the land and to acknowledge Dauphinais's right of way and use of the land.

The argument is without substance. The alleged misstatements and omissions of fact neither lulled Dauphinais into inaction nor, in view of the consolidated action, caused the judge to act without full knowledge of the true state of affairs. Contrast State St. Bank & Trust Co. v. Beale, 353 Mass. at 104, 227 N.E.2d 924; Kozdras v. Land/Vest Properties, Inc., --- Mass. at --- - ---, Mass.Adv.Sh. (1980) at 2413-2414, 413 N.E.2d 1105. Everyone was extended a full opportunity to be heard on all the issues raised by the respective claims. See Lyon v. Parkinson, 330 Mass. at 375-376, 113 N.E.2d 861.

3. Absence of a Necessary Party.

Dauphinais also claims that the Snows' action should be dismissed because of the absence of Estelle Rivard, whose one-sixth interest was discovered by the Land Court examiner and listed in his opinion filed pursuant to G.L. c. 185, § 37, as in effect prior to St.1977, c. 151, § 1.

The judge found that Estelle, who had married but remained childless, left Worcester in 1931, "never to return or to make contact with her family." She is listed in the probate of George Snow's estate "as an heir at law of unknown residence," and the title examiner listed her residence as "unknown." The judge specifically found, and he was warranted in so doing, that "(n)othing in the case indicates where Estelle Rivard resided."

Dauphinais argues that the proceedings are tainted by the fact that no diligent search was ever made for Estelle. Dauphinais would include within the meaning of a diligent search resort to State and local census reports, Social Security assistance and military service records, missing persons services, and vital statistics bureaus. ⁴ In short, Dauphinais's claim proceeds on conjecture, and we need not consider it. The statutory requirements for notice, publication, and service were satisfied. See G.L. c. 185, §§ 38 (as in effect prior to St.1977, c. 151, § 2) & 39. Cf. G.L. c. 223, § 33, repealed by St.1973, c. 1114, § 91; Mass.R.Civ.P. 4(d)(1), 365 Mass. 734 (1974), and 4(i), as amended, 385 Mass. --- (1982).

Moreover, the judge found that Dauphinais's claim was not through or dependent upon Estelle, whose interest had been adversely possessed by her cotenants, Clara, Arthur, and Joseph Snow. Commencing in 1937, Arthur and Joseph, with Clara until her death, used the land and apportioned the profits derived therefrom among themselves. Clara and Joseph, and Joseph after Clara's death, lived on the land and paid the real estate taxes yearly. The judge properly concluded on the evidence that Estelle had been ousted by her cotenants. Nickerson v. Nickerson, 235 Mass. 348, 352, 126 N.E. 834 (1920), and authorities therein cited. Burby, Real Property § 100 (3d ed. 1965).

4. Dauphinais's use of the Land.

The parties identified by number ten sites on a plan of the land used by Dauphinais and in dispute. This plan is appended to the judge's decision in which he makes reference to each location as numbered. ⁵

While Dauphinais made a claim to title by deed, it offered no deed or other writing in the nature of a conveyance signed by the Snows granting any land in addition to that which had been conveyed to Emile in 1936. The judge correctly determined that Dauphinais's claim to the land was by adverse possession which "can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251, 262, 203 N.E.2d 85 (1964).

a. Locations 1, 2, 3, 4, 7, 9, and 10. In addition to the evidence presented by the parties, the judge took a view. While he found definite evidence of use by Dauphinais at these sites, ⁶ there was no clear indication of the duration of any use. Although at location 10, it was "apparent" that signs, other than the three year old sign then at the site, had been located in the area, there was nothing to show when that use began. From the remains of a shack on location 9, the judge found that "it is obvious that it has not been used for a long time." Within the limited scope of our review, we have found nothing in the admitted pleadings, exhibits, and testimony, including those portions of each that Dauphinais specifically urged us to consider, which would persuade us that the judge's conclusion as to the insufficiency of the evidence on the element of the duration of the use was unwarranted.

b. Locations 5 and 6. Here the judge found evidence of open, notorious, and hostile use by Dauphinais, commencing in 1956. The Snows filed their petition on March 5, 1975, some nineteen years later. A citation was issued on September 23, 1977, Dauphinais received notice of the petition by registered mail on October 14, 1977, and special notice was posted on the land on October 19, 1977. The judge concluded that the continuity of Dauphinais's use of the land had not been interrupted by the filing of the petition because Dauphinais, who was under no duty to check docket entries daily, did not receive notice of the petition until after the prescriptive period had run.

The judge erred as matter of law. In McMullen v. Porch, 286 Mass. 383, 388, 190 N.E. 835 (1934), the court noted that in cases dealing with writs of entry, adverse possession was interrupted as of the date of the writ, provided that the plaintiff ultimately prevailed, and it concluded: "There seems to be no sound reason for a distinction between a writ of entry and a petition to...