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Paine, et al. v. Sexton, et al. (Lawyers Weekly No. 11-149-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-14                                         Appeals Court   ROBERT L. PAINE, trustee[1] & another[2]  vs.  CHELLISE L. SEXTON[3] & 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.     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 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 […]

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Posted by Massachusetts Legal Resources - September 23, 2015 at 8:28 pm

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