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14-P-14 Appeals Court

ROBERT L. PAINE, trustee1 & another2 vs. CHELLISE L. SEXTON3 & 

another.4

No. 14-P-14.

Suffolk. April 2, 2015. - September 23, 2015.

Present: Milkey, Brown, & Massing, JJ.

Land Court, Registration proceedings. Real Property, Registered 

land, Adverse possession, Record title, Deed. Adverse 

Possession and Prescription. Deed, Description. Practice, 

Civil, Summary judgment, Motion to amend.

Civil action commenced in the Land Court Department on 

February 10, 1999. 

The case was heard by Alexander H. Sands, III, J., and 

motions for summary judgment were heard by him.

Albert J. Schulz for the defendants.

Sarah Turano-Flores for the plaintiffs.

 

1 Of the Land Steward Trust.

2 Sheila L. Paine, trustee of the Land Steward Trust.

3 Individually and as trustee of Parcel 164 Nominee Trust.

4 David Sexton, trustee of Parcel 164 Nominee Trust.
2

BROWN, J. This case causes us to examine a novel treatment 

of the law of adverse possession and presents difficult concerns 

with a color of title claim as well. On review we conclude the 

judge's resolution of both issues in favor of the plaintiffs is 

sustainable, and the well-crafted arguments of the defendants do

not persuade us otherwise. Accordingly, we affirm the judgment

entered by the Land Court judge.

The plaintiffs seek to register approximately thirty-six

acres of predominately woodland located in Wellfleet. In their 

petition for registration, they asserted claims based on record 

title and adverse possession.5 For their claims of adverse 

possession, they assert nonpermissive use of portions of the 

property for more than twenty years in a manner that was actual, 

open, notorious, exclusive, and adverse. See Kendall v. 

Selvaggio, 413 Mass. 619, 621-622 (1992). In addition, based on 

deeds purporting to convey title to them, they claim adverse 

possession under color of title to portions of the locus where 

they cannot show actual use. See Norton v. West, 8 Mass. App. 

Ct. 348, 350-351 (1979). In response, the defendants contend 

that the plaintiffs cannot establish their claim of adverse 

possession of any portion of the wooded parcels because they 

 

5 The plaintiffs have abandoned their claims of record title 

to the parcels in dispute in this appeal, relying instead 

exclusively on their claims of adverse possession.
3

have not enclosed them or reduced them to cultivation, see Senn

v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992, 993 (1984), 

and in any event the deeds under which they claim color of title 

are inadequate in description to support such a claim.

The case proceeded in the Land Court in two stages. The 

adverse possession claim was tried first and the judge concluded 

that the plaintiffs' use of portions of the property was 

sufficient to support a claim of adverse possession. 

Thereafter, the parties submitted summary judgment motions on 

the color of title issue. Again, the plaintiffs prevailed. We 

address the two issues in turn.

Adverse possession. The plaintiffs or their predecessors 

(plaintiff Robert L. Paine's parents) have operated a commercial 

campground on the locus since approximately 1958. To that end, 

they have created roadways and cleared campsites while still 

maintaining the natural environment. They have placed picnic 

tables, fire rings, and campsite numbers on the campsites 

seasonally and have built a house, erected two toilet facilities

and an office building, enlarged parking areas, and created a 

volleyball pit, a paddock, and play areas. They constructed a 

wall of railroad ties along the road frontage, and fencing 

comprised of iron pipes and wires, from which they hung "no 

trespassing" signs, around much of the campground. However, the 

fencing and walls did not enclose the entirety of the 
4

campground. The plaintiffs controlled entry to the locus --

charging an amount per person -- and ousted those who did not 

pay. The plaintiffs also advertised the campground with signage 

along the highway, and in newspaper advertisements and brochures 

distributed in local stores. In addition, they have paid taxes 

on the property since the 1960s; however, it is unclear exactly 

which parcels the plaintiffs paid taxes on because many of the 

bills do not delineate lot numbers and acreage. The campground 

is operated seasonally and houses approximately 500 individuals

during the summer weekends and fewer individuals during the 

weeks. Individuals bring their own tents and campers.

Despite the plaintiffs' extensive use of portions of the 

property, however, they have not enclosed it entirely with 

fencing, or reduced it to cultivation. Indeed, as the 

defendants observe, the plaintiffs maintained areas between 

individual campsites in a predominantly natural state, for 

privacy and to preserve the wooded condition of the area. 

Accordingly, the defendants contend, the plaintiffs have not 

satisfied the strict rule applicable to a claim of adverse 

possession of wild or woodland. See Cowden v. Cutting, 339 

Mass. 164, 168 (1959); Senn v. Western Mass. Elec. Co., supra. 

"The strict rule applicable to wild or woodlands is, however, 

but an application of the general rule to the circumstances 

presented by wild or uncultivated lands. That is to say, the 
5

nature of the occupancy and use must be such as to place the 

lawful owner on notice that another person is in occupancy of 

the land, under an apparent claim of right; in the circumstances 

of wild and unimproved land, a more pronounced occupation is

needed to achieve that purpose." Sea Pines Condominium II Assn. 

v. Steffens, 61 Mass. App. Ct. 838, 848 (2004).6 "[T]he 

determination whether a set of activities is sufficient to 

support a claim of adverse possession is inherently factspecific." Ibid. See LaChance v. First Natl. Bank & Trust Co., 

301 Mass. 488, 490 (1938).

In the circumstances of the present case, in which the 

plaintiffs operated the locus as a commercial campground 

advertised as such, improved the site by clearing campsites and 

constructing roadways, toilet buildings, and an office, and 

restricted access to paying customers, we are satisfied that the 

judge was correct in his assessment that the plaintiffs' use was 

sufficient to place the record owners on notice that the 

plaintiffs occupied the locus under a claim of right.7 See 

Kershaw v. Zecchini, 342 Mass. 318, 321 (1961).

 

6 We note as well that seasonal use may be adequate to 

establish adverse possession. See Kershaw v. Zecchini, 342 

Mass. 318, 321 (1961); Lebel v. Nelson, 29 Mass. App. Ct. 300, 

302 (1990).

7 In this regard, we note that the judge took a view of the 

site during the camping season and was thus able to observe 
6

Color of title. Pursuant to the doctrine of color of 

title, "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." Long v. Wickett, 50 Mass. App. Ct. 380, 382 n.3 

(2000), quoting from Norton v. West, 8 Mass. App. Ct. at 351. 

"The entry is deemed to be coextensive with the grant upon the 

ground that it is the intention of the grantee to assert such 

possession." Macallister v. DeStefano, 18 Mass. App. Ct. 39, 42 

(1984), quoting from Dow v. Dow, 243 Mass. 587, 590 (1923). 

Most of the deeds relied on by the plaintiffs to support their 

color of title claim refer, in order to help locate the lots, to 

lot numbers on assessors' maps originally created in 1964.

8

To support their claim of color of title, the plaintiffs 

rely on seven deeds, each recorded with the Barnstable County 

registry of deeds. Each of the seven deeds includes reference 

to the assessors' maps of the town of Wellfleet for assistance 

in locating the parcel conveyed. In their challenge to the 

plaintiffs' claim, the defendants contend that the assessors'

maps provide inadequate description of the lots to support a 

 

firsthand the extent to which the defendants were placed on 

notice of the adverse use.

8 The maps were revised periodically between 1964 and 1993, 

but for simplicity we refer to them as assessors' maps.
7

claim of color of title. The defendants' argument is flawed in 

several respects.

Most of the deeds relied on by the plaintiffs contain metes 

and bounds descriptions in addition to their reference to the 

assessors' maps. Some of those descriptions are stated by metes 

and bounds, while others are stated by reference to abutting 

parcels. Such descriptions are typical of those validly used to 

describe and convey property, and we see no reason why a 

supplemental reference to the assessors' maps should derogate 

from the validity of the more detailed description contained in 

the deeds. In any event, 

"[a]n assessor's plan, which shows the particular lot in 

connection with all neighboring lands, affords a definite 

and accurate description. It is easily found. It is open 

to public inspection at reasonable times under rational 

limitations. . . . As a practical matter it affords quite 

as certain and accessible information to anybody in 

interest as does a plan in the registry of deeds."

Larsen v. Dillenschneider, 235 Mass. 56, 57 (1920).

The defendants also contend that the judge impermissibly 

engaged in fact finding to resolve disputed questions of fact, 

rejecting their expert's affidavit asserting that the parcels 

cannot be located on the ground based on the deed descriptions 

with any degree of certainty. We disagree. In his decision on 

the color of title issue and judgment, the judge did not 

determine the precise boundaries of the parcels based on the 
8

deed descriptions.9 Instead, he reviewed the deed descriptions 

to determine which parcels they described in general terms, 

compared the plaintiffs' campground use to the parcels described 

in the deeds, and entered a judgment declaring that the 

plaintiffs' claim of adverse possession extended to the 

boundaries of the parcels described in the deeds under which 

they held an apparent (though possibly flawed) record title, 

under the doctrine of color of title. The judge was entitled to 

reject, as matter of law, the defendants' expert's assertion 

that the deed descriptions cannot possibly be located on the 

ground in any circumstances. See Hicks v. Brox Indus., Inc., 47 

Mass. App. Ct. 103, 107 (1999) (on summary judgment judge 

properly rejected expert's opinion as invalid and unreliable). 

Other issues. We discern no abuse of discretion in the 

judge's denial of the defendants' motion to file a second 

amended answer, in which they sought leave to supplement their 

claims of title to portions of the disputed property with 

fractional interests they had acquired.10 However, the 

defendants did not file their motion to file a second amended

 

9 Such a determination, and resolution of any conflicts that 

may arise with abutting property owners, remain for further 

proceedings in the Land Court before a decree of registration 

may issue.

10 Based on their fractional interests, the defendants

sought to argue that the plaintiffs were required to satisfy the 

more stringent requirements for ouster of a cotenant. See Allen

v. Batchelder, 17 Mass. App. Ct. 453, 455-456 (1984).
9

answer until two years after the trial on the adverse possession 

claim, and the judge did not abuse his discretion rejecting it 

on grounds of timeliness.

Finally, in the exercise of our discretion we decline the 

plaintiffs' request for appellate attorney's fees. Though we 

agree with the plaintiffs that the defendants' appeal is without 

merit, it is not frivolous.

Judgment affirmed.