Opinion
No. 98-6002.
November 6, 2000.
DECISION
Pursuant to G.L.c. 231A, Patrick J. Farino (plaintiff) commenced this action in the Land Court Department on January 8, 1998, by filing a complaint containing two counts against the Mayor of the City of Woburn (defendant or Mayor). In Count I, plaintiff seeks an order requiring defendant to execute a deed conveying to plaintiff title to certain property located at 0 Kensington Avenue, Woburn (locus). Plaintiff contends in Count II that he is entitled to a judgment that he owns locus by adverse possession. Defendant answered the complaint on February 4, 1998.
The action was entered in the Land Court as Miscellaneous Case No. 244788.
Due to the subject matter of Count I, the Land Court wrote to the Chief Justice for Administration and Management (CJAM) on December 2, 1998, seeking an order for interdepartmental assignment. The following day the CJAM issued Order of Transfer and Assignment o the instant action to the Middlesex County Superior Court Department (transfer order). Pursuant to the transfer order, was assigned to sit in the Superior Court Department for the purpose of hearing and determining or otherwise supervising the disposition of the case at bar.
A trial was held in Boston on June 7, 1999. A sworn stenographer recorded and transcribed the proceedings. The following witnesses testified at trial: plaintiff; Frank Hawkes, a resident living near locus; Robert M. Dever (Dever); and Walter L. Carter, Jr. (Carter), a former neighborhood resident. During the trial, the parties introduced into evidence thirty-two exhibits, some with multiple parts. By leave of court, the parties supplemented the record by submitting exhibits thirty-three through thirty-seven following the end of the trial. All thirty-seven exhibits and one chalk are incorporated herein for the purposes of appeal. I took a view of locus on August 16, 1999, in the presence of counsel.
I find and rule as follows:
1. Plaintiff, a former resident of Woburn, currently resides in Florida.
2. Dever is the Mayor of the City of Woburn (City) and its chief executive officer.
3. Locus consists of approximately 14,450 square feet of land on Kensington Avenue and North Maple Street and is described as lots 18-22 inclusive, Block 6, on a plan recorded with Middlesex Southern District Registry of Deeds (registry) in plan book 59, at plan 1. At present, locus consists principally of an overgrown field along with some brush and trees. One end of locus is swampy with a brook running through it. An elevated railroad bed borders locus along the rear of lots 18-22. Locus is not adjacent to any other land now or formerly owned by plaintiff
Unless otherwise noted, all recording references are to this particular registry.
4. Plaintiff was born in Woburn in the year 1921. As a child, plaintiff lived approximately 300 yards from locus where his father, Gabriel Farino, cultivated vegetables. At age seven or eight, plaintiff began accompanying his father to locus. Plaintiff would assist his father picking vegetables and selling the produce in the neighborhood, Plaintiff's family grew vegetables on locus until plaintiff entered the military service in 1940.
5. On August 30, 1934, the Woburn Collector of Taxes (collector) recorded a deed. in registry book 5856, at page 194, conveying locus to the City for nonpayment of real estate taxes assessed to Francisco Manzo and Rose Manzo (Manzos) for the year 1932 (1934 taking). The City disclaimed and released the 1934 taking by an instrument recorded on December 31, 1947, in book 7236, at page 137.
6. The Manzos were friends with plaintiffs family.
7. Chapter II, Section 7.3. of Revised Ordinances of 1934 (1934 Ordinances), in pertinent part, stated:
"The Mayor is authorized, in his discretion, from time to time to sell or cause to be sold at public auction or private sale, any . . . land [acquired and held by the City under the provisions of G.L.c. 60] at such price and upon such terms as he may deem proper . . . and sign, seal, acknowledge and deliver in the name and behalf of the city, all proper deeds. . . ."
8. Commencing in 1945, plaintiff purchased from the City a number of parcels of undeveloped land which the City had acquired through tax foreclosures (tax titles).
Exhibits twenty through twenty-nine pertain to purchases by plaintiff between 1945 and 1949.
9. In purchasing tax titles from the City, plaintiff would visit the office of the City Solicitor (solicitor) and inquire about the availability of such properties. Upon identifying the tax titles in which he was interested, plaintiff would make the appropriate payment to the solicitor. After the execution of the deeds by the Mayor, the solicitor would arrange for the recording of those instruments with the registry.
10. Gabriel Farino died in 1951. In the course of settling his father's estate, plaintiff learned that Gabriel Farino did not hold title to locus.
11. On December 11, 1952, the collector recorded an Instrument of Taking for lots 19-22, identified as containing 11,200 square feet of land on Kensington Avenue and North Maple Street (lots 19-22), for the failure of the Manzos to pay the real estate taxes for the year 1950 (1952 taking). The 1952 taking was recorded in book 8007, at page 73. On June 14, 1955, the Woburn Treasurer (treasurer) recorded an Affidavit to Foreclose Tax Title of Low Value (low value affidavit) in book 8493, at page 1., listing lots 19-22 among the parcels taken by the City. By recording the low value affidavit, the treasurer conveyed locus to the City.
Locus consists of lots 19-22 as well as lot 18. For reasons not revealed by the record, lot 18 was not part of the 1952 taking.
Defendant claims that the treasurer did not convey locus to the City until August 11, 1955. A later recorded affidavit (exhibit 8 containing one page) does not, however, list locus among the parcels of land conveyed by the treasurer to the City. The low value affidavit (exhibit 34) was recorded on June 14, 1955, and lists locus as parcel 65. According to exhibit 34, locus was taken by the city on October 14, 1952, by an instrument recorded in book 8007, at page 73. The discrepancy between the dates of June 14, 1955, and August 11, 1955, however, does not affect the outcome of this decision.
12. In February 1956, the Woburn City Council (Council) passed an ordinance which, inter alia, amended certain sections of the 1934 Ordinances (1956 amendments). As revised by the 1956 amendments, Section 3 of Chapter II read as follows:
"The Mayor after being authorized by majority vote of the City Council may execute on behalf of the City all conveyances, leases and other instruments to be executed by the City; this provision shall not be construed to prevent any officer from executing any conveyance, lease or other instrument in performing the duties required of him by the General Laws or by any special act of the General Court of the Commonwealth."
The 1956 amendments also struck Chapter II, Section 7.3. of the 1934 Ordinances in its entirety and inserted in its place the following new section:
"The Mayor, after being authorized by majority vote of the City Council, may from time to time, sell or cause to be sold at public auction or private sale, any . . . land [acquired and held by the City under the provisions of G.L.c. 60] at such price and upon such terms as may be so authorized . . . and, after being so authorized, may sign, seal, acknowledge and deliver in the name and behalf of the city, all proper deeds. . . ."
13. The Mayor approved the 1956 amendment on March 1, 1956.
The 1956 amendment later appeared as Section 5(c) of the Revised Ordinances of 1966 (1966 Ordinances). The analogous section of the 1989 Woburn Municipal Code to Section 5(c) of the 1966 Ordinances is not in evidence.
14. Plaintiff was a member of the United States Army from 1940 until 1965. From 1955 to 1957, plaintiff served in Korea. In 1957, plaintiff returned to the United States and was assigned work at an Army base in Boston. While stationed in Boston, plaintiff lived in Woburn. Thereafter, the Army assigned plaintiff to serve at facilities in New Jersey and Washington State until the end of his enlistment. In between the New Jersey and Washington State assignments, plaintiff spent a couple of years at an Army recruiting station in Boston.
Plaintiff testified that he was stationed at the Boston Army base "for a few years."
In Count I, plaintiff alleges the Mayor did not return the August 1997 order to the
15. At some point in the 1970's, plaintiff posted a "No Trespassing" sign on locus. The sign lasted a few days before it was torn down. While it was in place, plaintiff took pictures of the sign but not replace it alter it was destroyed.
16. Over the years, plaintiff allowed some neighbors to trim grass on locus, Locus had the appearance of a field and was not mowed. Plaintiff did not enclose locus with a fence. When, living in Woburn, plaintiff would drive frequently past locus to inspect the land and to check for unauthorized dumping.
17. In 1983, plaintiff changed his residence to Florida.
18. In 1996, one of plaintiff's sons asked plaintiff if he could move a house onto locus.
19. Being unable to locate a deed to locus, plaintiff's son approached Edward S. Robertson (Robertson), the then solicitor, about the matter.
20. On June 13, 1996, Robertson communicated to the Council concerning plaintiff's claim of title to locus.
21. At its meeting of August 19, 1997, the Council entered into the record a letter from plaintiff dated July 22, 1997. regarding his claim to locus. The Council then voted unanimously to "send a communication to the City Solicitor to execute a deed for the property on Kensington Avenue" (August 1997 order). According to the records of its meeting, the Council presented the August 1997 order to the Mayor on August 22, 1997.
22. The Mayor did not sign the August 1997 order or return it to the Council within ten days with his objections.
23. Section 2-10 of the 1989 Woburn Municipal Code (1989 Code) provides:
"The Mayor after being authorized by majority vote of the City Council may execute on behalf of the City all conveyances, leases and other instruments to be executed by the City. This provisions shall not be construed to prevent any officer from executing any conveyance, lease or other instrument in performing the duties required of him by the General Laws or by any special act of the General Court of the Commonwealth."
24. Since 1970, the City has assessed plaintiff for the real estate taxes owed on locus. For fiscal year 1998, locus had an assessed value of $72,000.00. The total amount of taxes due for that fiscal year was $840.24. Plaintiff has paid all taxes assessed to him on locus since 1970.
Plaintiff contends he has received tax bills for locus since he purchased locus. Claiming the City tax records date back only to 1970, plaintiff maintains he is unable to prove when he first received a tax bill for locus.
Council within ten days of presentment and thus must execute a deed conveying locus to plaintiff. For authority, plaintiff relies upon section 25 of St. 1897, c. 172, An Act to Revise the Charter of the City of Woburn. Although not stating the jurisdiction for his claim, plaintiff appears to be seeking specific performance of the August 1997 order.
In pertinent part, St. 1897, c. 172, § 25, reads: "Every Ordinance, Order or Resolution of the City Council . . . shall be presented to the Mayor, as hereinbefore provided. If he approves thereof he shall signify his approval by signing the same, but if not he shall return the same with his objections to the City Council. . . . If such Ordinance, Order [or] Resolution . . . shall not be returned within ten days after it shall have been so presented to the Mayor the same shall have the same effect as if approved."
Count I fails for two principal reasons. First, the August 1997 order directed the solicitor to execute a deed for locus. In addition to the Mayor, Section 2-10 of the 1989 Code provides that an officer of the City may execute "any conveyance" pursuant to "performing the duties required of him by the General Laws or by any special act of the General Court of the Commonwealth." There is no evidence that the solicitor is an officer of the City who has any statutory duties to execute a deed, The August 1997 order directing the solicitor to execute a deed to locus is a nullity.
It is possible that the Council intended the solicitor to "draft" or "prepare" a deed, rather than to "execute."
Second, the Mayor, once authorized by the Council to act, still may exercise discretion whether to execute a deed. The language of Section 2-10 of the 1989 Code is "may" and not "shall." Considering the facts pertaining to locus, the Mayor testified that he disagrees that a deed to plaintiff is an appropriate action for him. to take. As the Chief Executive Officer, the Mayor must decide whether certain acts are in the best interest of the City. Where no agreement existed between the Mayor and plaintiff to convey locus, specific performance cannot lie. See Al's Lunch, Inc. v. City of Revere, 324 Mass. 472, 475 (1949).
I note that similar language was employed in the 1956 amendment where the Mayor "may" sell land acquired and held by the City under the provisions of G.L.c. 60. As noted previously, the parties have not indicated whether the 1989 Code contains the analog to the 1956 amendment.
Under Count II, plaintiff contends that he is entitled to a declaration of title to locus by adverse possession. "A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of twenty years," Totman v. Malloy, 431 Mass. 143, 145 (2000). "If any of these elements is left in doubt, the claimant cannot prevail." Mendonca v. Cities Service Oil Co., 354 Mass. 323, 326 (1968). "Attention should be centered on [plaintiff's] activities on the land, in distinction to his belief or state of mind about the matter." Peck v. Bigelow, 34 Mass. App. Ct. 551, 552, further appellate review denied, 416 Mass. 1102 (1993). Plaintiff's evidence concerning his activities on locus fails to adequately establish all of the required elements to support a finding of adverse possession.
I begin my analysis of this claim with the recognition that "the nature and extent of occupancy required to establish a right by adverse possession [varies] 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 National Bk. Trust Co., 301 Mass. 488, 490 (1938). The appropriate inquiry is whether "the adverse possession, considering the nature, situation, and use of the land has been exclusive and continuous."Bowen v. Guild, 130 Mass. 121, 124 (1880).
In the instant action, locus is a vacant parcel of land on which pass, brush, and trees grow wild. In order to prove title to such land by adverse possession, one must fence or cultivate the area being claimed.See Cowden v. Cutting, 339 Mass. 164, 168 (1959). See also Dow v. Dow, 243 Mass. 587, 593 (1923) (holding "a title by adverse possession cannot be shown to wild or woodland that has always been open and enclosed.")
Plaintiff contends that his father cultivated locus for vegetable gardens over a number of years. While testifying that he was aware of such use as early as 1928 or 1929, plaintiff failed to establish a period of prescriptive activities for twenty continuous years. When asked for the period of time his family cultivated locus, plaintiff testified the activity continued "[a]ll my young life until 1941 . . .," thereby establishing a time span of roughly twelve or thirteen years. Following 1941, plaintiff has offered no evidence concerning any use of locus until after 1970. Therefore, any adverse possession claim predicated upon the cultivation of locus prior to 1941 fails due to an absence of proof of twenty continuous years of use.
In addition to failing to establish the required period of adverse use, plaintiff testified concerning the cultivation activities without any specificity as to the portions of locus so used. At no time did plaintiff suggest that the entire area of locus was under cultivation. One without color of title gains title only to the area actually occupied. See Proprietors of Kennebeck, Purchase v. Springer, 4 Mass. 416, 417-418 (1808).
While unable to recall precisely the date he contacted the then solicitor about purchasing locus, plaintiff maintains it was after 1951. As opposed to other parcels he purchased from the City, plaintiff has no evidence concerning when or for what price he purchased locus.
The City received title to locus no earlier than June 14, 1955. As of February 1956, the ordinances had changed requiring authorization from the Council prior to the Mayor executing a deed.
For the reasons stated above, plaintiff may not rely upon the activities on locus prior to 1941 to support his adverse possession claim. Without a deed establishing his title to locus, plaintiff must prove each of the elements of adverse possession for some twenty year period after the date of his purported purchase.
From the time of his purported acquisition, plaintiff testified locus has remained a parcel of undeveloped land. During that period of time, plaintiff has offered no evidence that he has either fenced or reduced locus to cultivation. See Cowden, 339 Mass. at 168.
Plaintiff has failed to demonstrate any dominion and control over locus sufficient to establish the element of exclusivity. See Peck, 34 Mass. App. Ct. at 557. Contrary to the testimony of plaintiff, Carter testified that he and other children never received permission to play on locus, nor were they asked to leave the premises. Carter also testified as to never seeing the "No Trespassing" sign plaintiff claimed was in place on locus for a few days.
As for his actual use of locus, plaintiff testified that "[t]here was nothing to mow, It was like a field, you know." Even without considering fencing or cultivation, plaintiff did not make any significant changes to or upon locus similar to those which are usually and. ordinarily associated with ownership. Id. at 556. Plaintiff would occasionally drive past locus to check for any accumulation f trash and gave one of the neighbors permission to trim some grass because of a mosquito problem. These activities fall far short of those required to meet the requirement of actual use.
Even assuming plaintiff has demonstrated actual, open, exclusive, and nonpermissive use on locus (which he has not), I do not find that plaintiff's use occurred on a continuous basis for twenty years. Courts in this Commonwealth have established that one need not be on the land continually. See Kershaw v. Zecchini, 342 Mass. 318, 321 (1961); Keith v. Kennard, 222 Mass. 398, 400 (1916). Nevertheless, plaintiff's own testimony confirms that his use was merely casual and occasional. See McDonough v. Everett, 237 Mass. 378, 384 (1921); Parker v. Parker, 1, Allen 245, 247 (1861). The sole activity plaintiff has undertaken concerning locus in excess of twenty years has been the payment of real estate taxes.
Defendant admits in his post-trial memorandum that there has been "the mistaken assessment of taxes to [plaintiff] in violation of M.G.L.A. Chapter 59, Section 11."
The rule is often stated that payment of real estate taxes is not by itself sufficient evidence of adverse possession, but it is one of the factors to consider. See Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823, 826 (1984); Blanchard v. Lowell, 177 Mass. 501, 505-506 (1901); Whitman v. Shaw, 166 Mass. 451, 461 (1896). In the instant action, plaintiffs' tax argument constitutes the principal, if not exclusive, basis of his adverse possession claim. In reality, I find no other factors to consider in conjunction with the fact that plaintiff has paid taxes on locus since at least 1970.
For the reasons stated above, I find and rule that plaintiff has failed to meet his burden of proof under Count II. Consequently, I do not reach defendant's argument that, based upon G.L.c. 60, § 77, and c. 260, § 31, locus is not subject to an adverse possession action.
Judgment to enter accordingly.
__________________________________ Leon J. Lombardi Justice
Dated: November 6, 2000