219 Mass. 157 | Mass. | 1914
This is a petition filed in the Land Court to register the title to certain lands lying between the Second and Third Cliffs in Scituate, and extending in a long strip of upland beach between the sea and the two parcels known as the “Thomas Jenkins Marsh” and the “Coleman Jenkins Meadow.” The respondents Brown and Supple, owners of the “Thomas Jenkins Marsh,” accepted the decision of the Land Court. The exceptions of the respondents Curran (hereinafter referred to as the respondents) involve only the southerly part of the land described in the petition, namely, a portion lying in front of the old “Coleman Jenkins Meadow,” now owned by Patrick Curran, one of the respondents. The record title to the beach in controversy is in the petitioner.
In order to constitute a disseisin of the true owner it was essential, among other elements, that the possession of the respondents should be adverse and exclusive. As above appears, the finding of the Land Court was that the Curran occupation did not differ from that of their neighbors; in other words, that it was clearly permissive; and that no claim to hostile occupation, as of right, ever was brought home to the owners of the record title before 1901.
The finding of the judge of the Land Court that the possession of the respondents was not adverse is consistent with and strengthened by the subsidiary findings. In the beginning their occupation clearly was permissive, and the nature of the possession, for only five months of] the year, was not such that the owner must be presumed to know that it was adverse to his title. Proprietors of Kennebeck Purchase v. Springer, 4 Mass. 416. Nor does it appear that their use of a portion of the uncultivated upland beach for moss beds was exclusive in the sense necessary to establish a title by disseisin. Even if we disregard the presence of summer cottages, the possession apparently was no better defined than that disclosed in Litchfield v. Ferguson, 141 Mass. 97, where sea weed was taken from an open beach, or in cases like Parker v. Parker, 1 Allen, 245, where wood was cut from unenclosed wild land. And see White v. Shippee, 216 Mass. 23.
As the respondents failed to establish a possession that was adverse and exclusive, it is unnecessary to determine whether an occupation only from May to September of each year was
Exceptions overruled.
By Davis, J.
The petition for registration of title was filed on May 6, 1911.