Following a two day trial, Hon. Robert Foster of
the Land Court recently rejected an abutter’s claim to the portion of a
Falmouth
family’s lot where they plan to build an addition to their seasonal
cottage. The Court found that the presumption of land ownership to low water,
derived by the Colonial Ordinances, did not apply. The Court invoked the
doctrine of adverse possession by color of title to find for the Falmouth
family on an alternative claim.
The case is Nancy Evans, Trustee of the NWW-2 Realty Trust v.
Michael J. Jackson, Jr. and Jane L. Jackson, Trustees of the Jackpot Trust, 13
MISC 478683 (RBF), June 15, 2016. The decision implicates
historic law in a modern context, waterfront legal principles, and invoked a
rare form of adverse possession called adverse possession by color of title.
The area in dispute was once part of a tidal pond
on Chapoquoit
Island filled in the late 1920’s as part of a dredging project in
nearby West Falmouth Harbor. The abutter, plaintiff trustee Nancy Evans,
asserted that she owned an approximately 5,300 square foot portion of the family’s
Jackpot Trust land.
Evans claimed through the language in her deed
and other deeds referenced by her deed. She tried to rely on the presumption of
law derived from the Colonial Ordinance of 1641 – 1647 that when waterfront
property is conveyed, the flats – the area between the low water and high water
marks – are conveyed along with the uplands.
Evans’ family had owned her lot (as well as two
abutting properties) since 1930 but had never disputed the property boundary
with the Trust. Evans commenced her Land Court claim in 2014 shortly learning
of the Trust’s plans for an addition to its cottage. The 1890 plan of lots for
Chapoquoit Island in that area of Falmouth showed two ponds, an area called Chapoquoit
Harbor, and Buzzards Bay. Roughly parallel to a majority of the shorelines of
these waterbodies was a feature noted as “edge of bank”, including along Evans’
property.
Evans alleged that her residential lot was larger,
including the disputed area, because deeds to her property described the
boundary with the Jackpot Trust land and one formerly filled pond as being “by
the edge of the bank” as per the 1890 plan.
The Trust denied Evans’ allegations and filed two
counterclaims: that its deed gave it ownership of the disputed area, and, even
if it did not, it had gained title through the doctrine of adverse possession.
Following a view and trial with testimony from
two title experts, two professional land surveyors, and five other witnesses,
Judge Foster ruled in favor of the Jackpot Trust on both theories. Evans did
not testify. In the wording of Evans’ deed, earlier deeds to her property,
other deeds by the original developers of the area, and persuasive testimony of
the defendant’s title expert, Judge Foster found that there was no intention to
include in the conveyance of Evans’ property the area beyond edge of bank down
to the low water mark of the filled tidal pond.
These facts were sufficient to successfully rebut
the presumption derived from the Colonial Ordinance of 1641-1647 that the tidal
flats are conveyed with the uplands of coastal property.
Although he did not need to (because he ruled the
Trust owned the disputed area through record title), Judge Foster also
considered the Trust’s second counterclaim of title to the disputed area by
adverse possession.
Based on the testimony of a trustee and
beneficiary of the Trust, his brother, two neighbors, and a former regular
summer renter of the property, Judge Foster ruled that the Trust and its
predecessors in title exercised actual, open, notorious, exclusive, and adverse
possession of the disputed area for a period of well over 20 years, thus
gaining title to it.
Interestingly, Judge Foster went on to rule that
the Trust gained title to those portions of its property outside of the
disputed area through the doctrine of adverse possession under “claim of title”
or “color of title”. This rarely-invoked doctrine serves to overcome the issue
in adverse possession law that one can gain title only to the area of land that
is actually occupied.
Under this “color of title” doctrine, a possessor
of land asserts ownership based on a deed or other land conveyance instrument
that purports to convey title to the entirety of a parcel, even if it does not
because of a defect in title. This doctrine grants the possessor constructive
possession to the entire parcel described in the document, even if the
possessor did not occupy all parts of the land.
Here, deeds to the Trust contained a metes and
bounds description of the land as shown on a recorded 1958 Approval Not
Required plan. Evans never challenged those land descriptions. Judge Foster
found persuasive that the Trust and its predecessors had paid taxes on its land
and that the Town Assessors maps show boundaries that include the disputed area
on the Trust land.
The
unsuccessful plaintiff Evans did not appeal Judge Foster’s Land Court decision.
A member of the Association’s environmental law
section, Nate Stevens practices with the Boston firm of McGregor & Legere,
P.C. He
represents clients with environmental issues including permitting, development,
contamination, transactions, conservation, real estate restrictions,
underground tanks, water supply, water pollution, subdivision control,
tidelands licensing, Boston and state zoning, coastal and inland wetlands,
stormwater, air pollution, and energy facility siting. Nathaniel can be contacted by email at nstevens@mcgregorlaw.com
