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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 fact-

specific."   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.
