Nature of the Case
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Facts
By a holographic will dated August 27, 1941, Mary J. Burke left her home and real estate, to her daughter, Helen E. Burke Boyer: 'never to be sold. After she goes, I wish to have my home go to my adopted daughter Harriet Burke Frazier. If no children survive said Harriet Burke Frazier, I wish to have my home with land thereon [sic] go to the town [Concord] to be used as they [sic] see fit and proceeds from same to be used for better education of some deserving children.' Mary died in 1942, and her will was allowed on September 14, 1942. On November 30, 1964, Helen E. Burke Boyer conveyed her life interest in the locus to Harriet Burke Frazier by a deed with quitclaim covenants. Harriet Burke Frazier had married Joseph Frazier on December 5, 1937. On May 18, 1965, Harriet Burke Frazier died, survived by Joseph Frazier, but without issue. Joseph Frazier then rented the locus for a period of years while he lived at another site in Concord where he and his late wife had run a small store. Uncontradicted affidavits filed in support of Lawrence's (P) motion for summary judgment indicate that Frazier occupied the locus from as early as 1966, and certainly from the mid-1970s until his death. Neighbors and friends visited Frazier at his home at the locus, joined him for drinks, sat with him or saw him on his porch, and watched him gardening. One affiant, the executrix of Frazier's estate, reported that Frazier was 'aware that the property at 1586 Main Street did not belong to him. [He was] nervous that the town would find out that he did not own the property and kick him out.' On April 28, 1997, after Frazier's death, a lawyer for his estate contacted the town to bring the town's potential interest in the locus to its attention, and to inform D that Lawrence, to whom Frazier devised the locus, was asserting that Frazier had acquired title to the locus by adverse possession. D then took locus by eminent domain and awarded P no damages. P sued D. P contends that Frazier satisfied all of the elements of adverse possession and that the doctrine does not protect parties who are ignorant of their interest. The town argues that, because it did not know that it owned the locus, it could not defend its title, and in these circumstances, it would be inequitable to allow Frazier to acquire title by adverse possession. On cross-motions for summary judgment a Superior Court judge concluded that P failed to establish title to the locus through Frazier's adverse possession because 'Frazier's possession could not have been notorious or adverse where the town did not have notice of its ownership' of the locus. The Appeals Court affirmed. It too determined that the occupation was 'not open and notorious' because the town had no knowledge that it owned the property.
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