THE HUNTER FARM, INC. v. COURTLAND LIPPINCOTT

Plaintiff, The Hunter Farm, Inc. (Hunter) commenced this case on March 29, 2006, seeking to enjoin defendant Courtland Lippincott (Lippincott) from trespassing on a parcel of real property in New Braintree and seeking also damages for trespass to land. [Note 1] However, the issue before the court in this action, as has been presented by both parties, is the location of the boundary lines between parties’ properties.

Trial was held and completed on January 23, 2009. At trial, Lippincott filed a Motion for Leave to File Answer and Counterclaim Late, which was allowed (Trombly, J.) and the Answer and Counterclaim filed. The Counterclaim seeks declaratory judgment, pursuant to G.L. c. 231A, § 1, as to the location of the boundary lines. At trial, the parties moved jointly to dismiss the Complaint with prejudice in order to proceed solely on the issue of the location of the boundary lines. The court allowed the motion. Stenographer, Laurie Jordan was sworn to take the testimony. Testifying were Donald Para and Peter Adams for defendant and Thomas Fancy, John Hunter, and Nancy Burke for plaintiff. Exhibits 1-23 (including 17A) were admitted into evidence and Defendant’s Chalk was marked for identification. This is the matter presently before the court. After reviewing the record before the court, I find the following facts:

1. Lippincott and Hunter are the owners of abutting parcels of real property located North of Moore Road in New Braintree.

2. Hunter’s parcel (Hunter Property) abuts Lippincott’s parcel (Lippincott Property) to the West and North.

3. Donald Para is a registered land surveyor in the Commonwealth. Mr. Para was commissioned by Lippincott to survey the Lippincott Property. On January 8, 2001, Mr. Para drafted a plan titled “Plan of Land in New Braintree, MA, Surveyed for Owner, Cortland S. Lippincott, Scale 1” = 60 feet dated January 11, 2001 prepared by Donald A. Para Land Surveyor, Incorporated” (Para Plan). The Para Plan is recorded at the Worcester District Registry of Deeds in Plan Book 779, Plan 59. A copy of the Para Plan is attached.

4. The locations of the boundaries of the portion of the Lippincott Property East of Igoe Road as depicted in the Para Plan are not disputed in this action.

5. The locations of the boundaries of the Lippincott Property West of Igoe Road (Disputed Portion) are disputed by the parties.

6. Both parties’ claim of ownership to the Disputed Portion derive from a deed from Abraham Hunter to John Hunter dated April 11, 1771, and recorded with the Worcester District Registry of Deeds in Book 65, Page 230 (1771 Deed).

7. The 1771 Deed conveyed a parcel of property comprising the Lippincott Property, including the Disputed Portion, and other lands to the South of Moore Road. The deed describes the northern and western boundaries of the Lippincott Property as follows:

Beginning at the northeast corner at a heape [sic] of stones running West 6 degrees N. 18 degrees sixty seven rods (1105.5 feet) to a stake and stones thence south 23 Degrees West on my own land forty eight rods (792 feet) to a stake and stones by a town road ….

8. The deeds that follow the 1771 Deed hold the same northern and western boundaries of the Lippincott Property.

9. By deed dated January 28, 1815, Abraham Hunter, Jr. conveyed to David Wilcox, a parcel comprising the Lippincott Property including the Disputed Property (1815 Deed). The 1815 Deed describes the northern and western boundaries of the Lippincott Property as follows:

[at] a town road, then N. 19 degrees E. crossing said road by said Hunters Land forty six and a half rods (767.25 feet) to a heap of stones, then E. 3 degrees S. still by said Hunters Land sixty eight rods (1122 feet) to … a heap of stones by Calvin Hunter land ….

10. By deed dated March 23, 1832, Jonathan Wilcox and Stephen Wilcox divided and conveyed separately to Gideon Delano, the portion of the parcel south of Moore Road as well as a house lot north of Moore Road. The deed describes the northern boundary of this parcel as eighty rods and twenty three links along the southern side of the town road.

11. By deed dated November 24, 1834, Jonathan Wilcox conveyed to Stephen Wilcox the now independent northern portion of the parcel: the Lippincott Property. The deed describes the property as follows:

Beginning at the northeast corner at a heap of stones by Lorenzo Converse land thence S. 5 degrees W. 26 ½ rods to a town road, thence West by said road about 50 rods to a stake and stones thence N. 19 degrees E. 46 ½ rods to a stake and stones thence E. 5 degrees S. 68 rods to the first mentioned bound containing fourteen acres more or less.

12. The description of the parcel in the 1834 Deed does not form a complete perimeter; in surveying parlance, it does not “close.”

13. Subsequent deeds in the title describe the Lippincott Property without bearing or dimension, employing only bounds and abutter calls.

14. Subsequent deeds in the title do not use this fifty-rod dimension to describe the southern boundary of the Lippincott Property.

15. Subsequent deeds in the title describe the southern boundary of the Lippincott Property as running along Moore Road.

16. A stone wall lies to the west of Igoe Road near the intersection with Moore Road, approximately fifty rods from the southeast corner of the Lippincott Property along Moore Road.

17. The current deed of the Lippincott Property to Lippincott, dated May 28, 1999 (1999 Deed), describes the property as follows:

Commencing at a point on the highway a few rods East of the School House in District #4 at a point of conjunction of land now or formerly of John P. Hunter running a little East of North of the land of said Hunter to a stake and stones;

Thence Easterly by land of said Hunter to land now or formerly of Horatio Moore designated by a stake and stones;

Thence Southerly by land of the said Moore to the aforesaid highway;

Thence Westerly by the said highway to a small house lot of said Hunter;

Thence around the said house lot to the said highway;

Thence by said highway to the first mentioned point, containing about ten (10) acres, more or less.

18. This Lippincott Property has been described in the same or similar manner consistently since an 1891 deed.

19. There are no deeds or other title documents in the title to the Hunter Property which describe the common boundaries sufficient to locate them on the ground.

20. The Para Plan depicts the northern boundary of the Lippincott Property as between two piles of stones found on the ground and running South 77 degrees, 21’ 23” East for a distance of 1120.95 feet.

21. The Para Plan depicts the western boundary of the Lippincott Property as between a pile of stones and the end of a stone wall running along the southern side of Moore Road found on the ground and running North 29 degrees, 27’ 08” East for a distance of 712.30 feet.

22. The Para Plan ignores the fifty-rod dimension of the 1834 Deed and continues the southern boundary of the Lippincott Property along Moore Road to close the perimeter.

23. The Para Plan depicts the Lippincott Property as containing 15.743 acres.

24. By deed dated January 1957, Mr. Pezanelli conveyed a 1.29 acre portion of the Lippincott Property to the Town of New Braintree in order to allow it to widen Igoe Road.

25. Prior to this conveyance, a 1943 deed described the Lippincott Property as containing ten acres, “more or less.”

26. The 1999 Deed followed the 1957 conveyance and describes the property as comprising ten acres, “more or less.” The deed makes no mention of the prior conveyance of the 1.29 acre portion for the widening of Igoe Road.

***

In the instant case, Lippincott seeks a determination of whether the Para Plan correctly delineates the common boundary lines between the Lippincott Property and the Hunter Property. “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (and cases cited); Doody v. Spurr, 315 Mass. 129 , 133 (1943) (and cases cited). In the instant case, the 1999 Deed employs a running description of the Lippincott Property locating it by monuments and not by any bearings or distances. Specifically the Lippincott Property is described as bounded by the Hunter property on the West and North and the “highway” on the South, as well as by a stake and stones at the northeast corner and another at the northwest corner. The property is described as containing ten acres, “more or less.” There are no deeds or other title documents in the title to the Hunter Property, which describe the common boundaries sufficient to locate them on the ground and, therefore, the use of the Hunter Property as a monument in the description of the Lippincott Property is of no use in locating the Lippincott Property.

Based on the 1999 Deed and the Lippincott Property’s record title, Donald Para, a registered land surveyor in the Commonwealth, surveyed the area and located a pile of stones where he believed the northeast corner of the Lippincott Property is located and a pile of stones where he believed the northwest corner is located. Mr. Para also located a stone wall intersecting Moore Road where he believed the southwest corner of the property is located. Based on these monuments, Mr. Para drafted the Para Plan and calculated the total acreage of the Lippincott Property to be 15.743 acres. This acreage is within reasonable proximity of the estimation by the 1999 Deed. In general, the phrase “more or less” qualifies a figure so that the quantity may not be strictly applied. Cabot v. Winsor, 83 Mass. 546 , 550 (1861); Nat’l Wholesale Grocery Co. v. Mann, 251 Mass. 238 , 249 (1925); Safford v. Lowell, 255 Mass. 220 (1926); Noble v. Googins, 99 Mass. 231 , 235 (1868) (The use of the phrase “more or less” in a deed is evidence that quantity the phrase describes is not an essential element in the transaction). Moreover, in deciphering a deed description, in general, monuments have priority over courses and bearings, which have priority over distances and area. Ryan v. Stavros, 348 Mass. 251 , 203 (1964); Daviau v. Betourney, 325 Mass. 1 (1949); Morse v. Kelley, 305 Mass. 504 (1940); see Melvin v. Proprietors of Locks & Canals, 46 Mass. 15 (1842) (Area is comparatively unimportant in the construction of a deed, although it is entitled to some weight). Therefore, the Para Plan is not immediately disqualified as a reasonable interpretation of the 1999 Deed.

In drafting the plan, Mr. Para researched the title to the Lippincott and Hunter Properties and uncovered other more detailed descriptions of the boundaries. The northern boundary of the Disputed Property was formed by the 1771 Deed, which describes it as “[b]eginning at the northeast corner at a heape [sic] of stones running west … sixty seven rods (1105.5 feet) to a stake and stones.” The deeds that follow the 1771 Deed hold the same northern and western boundaries of the Lippincott Property. The 1815 Deed describes this boundary similarly: beginning at “a heap of stones, then E[ast] … sixty eight rods (1122 feet) to … the northeast corner at a heap of stones.” Upon surveying the Lippincott Property, Mr. Para discovered two piles of stones, where he believed the northeastern and northwestern corners of the property to be located. The Para Plan depicts the northern boundary as being located between these two bounds and running South 77 degrees, 21’ 23” East for a distance of 1120.95 feet. The northern boundary of the Para Plan is within a few degrees and a few inches of the northern boundary described almost two-hundred years ago. The piles of stones marking the northeastern and northwestern bounds of the line are, therefore, convincing evidence of the accuracy of this line.

Similarly, the western boundary of the Disputed Property was formed by the 1771 Deed, which describes it as beginning at “a stake and stones thence south 23 degrees West … forty eight rods (792 feet) to a stake and stones by a town road.” The deeds that follow the 1771 Deed hold the same northern and western boundaries of the Lippincott Property. The 1815 Deed describes this boundary similarly: beginning at “a town road, then N. 19 degrees E. …forty six and a half rods (767.25 feet) to a heap of stones.” Mr. Para also discovered a stone wall running along the southern side of Moore Road and ending where he believed the southwestern corner of the Lippincott Property to be located. The Para Plan depicts the western boundary as being located between the pile of stones and the end of this stone wall and running North 29 degrees, 27’ 08” East for a distance of 712.30 feet. The western boundary of the Para Plan is approximate to the western boundary described in the 1815 and earlier deeds.

Hunter contests the accuracy of the southern boundary as depicted in the Para Plan. Specifically, Hunter points to the 1834 Deed, which describes the southern boundary as beginning at the southeast corner at “a town road, thence West by said road about 50 rods (825 feet) to a stake and stones.” The description of the parcel in the 1834 Deed does not form a complete perimeter. The reason for this is that the description maintains the same western, northern, and eastern courses of the Lippincott Property, but the fifty-rod course is not sufficient to close the distance between the southeastern and southwestern corners, as described. The distance between these corners as described is approximately 1353 feet or 82 rods. The fifty-rod course falls short of this distance by approximately 528 feet. In drafting the Para Plan, Mr. Para discounted this fifty-rod description as an error. Instead Mr. Para placed emphasis on the fact that the 1834 Deed held the same northern and western courses that had been described since 1777. Lippincott argues that the course was either unintentionally added or that it is the result of a transcription or typographical error, intended to read 80 rather than 50 rods—the number “8” being of similar shape to “5.” Lippincott continues that if the 1834 Deed intended to convey only a portion of the Lippincott Property, it would have shortened the northerly course or altered the bearing of the westerly course in order to describe a closed perimeter.

Hunter disagrees, countering that the error, then, could be the northerly or westerly course, and therefore, the fifty-rod course must stand. As evidence of this, Hunter points to a monument located approximately fifty rods from the southeast corner of the Lippincott Property. Thomas Fancy, a registered land surveyor in the Commonwealth, discovered a stone wall West of Igoe Road upon surveying the property. Hunter appears to argue that the westerly course, as described in the 1834 Deed, inadvertently gave an easterly bearing, rather than a westerly bearing. If the course read “N. 19 degrees W.” rather than “N. 19 degrees E.,” the western boundary sufficiently approximates a 46 ½-rod boundary as otherwise described in the deed, the stone wall could be construed as the monument locating the southwest corner of the Lippincott Property, and the description would form a complete perimeter.

In fact, the error could be in any of the courses. Even the easterly course could contain the error. However, I credit Mr. Para’s testimony. The 1834 Deed is the only instance in which the fifty-rod dimension appears in the title history. The northern boundary depicted in the Para Plan locates the piles of stones described in the early deeds and define a line that is within a few inches of the dimensions described. This line is, in all probability, correct. While Mr. Para does not have the same luck in discovering the pile of stones described to locate the southwestern corner of the property, he does find a stone wall, the end of which bounds a line to the pile of stones at the northwest corner that approximates the boundary described in the early deeds. The Para Plan depicts a lot comprising 15.743 acres of land, a figure close to the 14 acres described in the 1834 deed. In addition, Mr. Fancy concedes that Mr. Para’s opinion as to the boundaries of the Lippincott Property is a reasonable one. I conclude, therefore, that the Para Plan properly includes the Disputed Portion within the Lippincott Property. Accordingly, I rule that the Para Plan correctly delineates the common boundary lines between the Lippincott Property and the Hunter Property.

Hunter argues that further evidencing the validity of the fifty-rod dimension is the fact that the acreage of this shortened parcel is approximately 8 acres, a figure closer to the 10 acres described in the deed as compared to the Para Plan’s 15.743 acres. However, as previously discussed, this 10 acre figure as stated in the most recent deeds is consistently qualified with the phrase “more or less,” and, therefore, is of little persuasive value.

Lastly, Lippincott’s Counterclaim seeks a determination only as to whether the Para Plan correctly delineates the boundary line between the parties’ properties. For this reason, the easterly course of the Para Plan has not been the subject of much contention. Hunter has called into question why the boundary consists of two courses, where the title reflects only one. Apparently, Mr. Para found a plan in the title to the property abutting the Lippincott Property to the East, which described two courses and chose to draw his plan to conform to this more contemporary evidence. However, this issue is not before the court, and I make no determination on it.

CONCLUSION

For the foregoing reasons, this court concludes that the Para Plan correctly delineates the common boundary lines between the Lippincott Property and the Hunter Property. Mr. Para discovered monuments in locations similar to those identified in the title of the property and which form substantially the same bearings and distances described in those documents.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: August 17, 2009