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.
(Mr. Stevens and Mr. O’Neill of our firm represented the successful defendant Jackpot Trust)
