GEORGE MELVILLE BAKER v. GRACE M. MAZZILLI, TRUSTEE of FRMGMM NOMINEE TRUST, et al., [Note 1]

In this registration case Plaintiff George Melville Baker seeks to register title to a parcel of land known as and numbered 111 Meadow Street in Carver. Plaintiff initiated this action on March 21, 1997, by filing a complaint for registration along with an accompanying plan. On April 9, 2008, the Commonwealth of Massachusetts filed its Answer and Objection, which was subsequently withdrawn on November 20, 2008. [Note 2]

On May 18, 2009, this court took an extensive view of the registration parcel in the presence of counsel, the parties, and their surveyors, and a two-day trial was held on May 18 and 19, 2008. At trial this court heard the expert testimony of James H. Bothwell, Esq., a title attorney, and Denis Seguin, a registered land surveyor, both proffered by Plaintiff. Plaintiff George Baker and his sister, Lucy Rice, also testified during Plaintiff’s case-in-chief. Defendant proffered the expert testimony of Jeffrey B. Shorey, a registered land surveyor. Donna M. Nelson also testified as a fact witness. Ninety-six exhibits, including several photographs, and a stipulation of facts were entered in evidence. Both parties filed post-trial briefs on July 23, 2009.

Based on all the evidence and reasonable inferences drawn therefrom, as well as observations from the view, this court finds the following material facts:

1. Plaintiff George Melville Baker resides at 111 Meadow Street in Carver.

2. Defendant Trustee of the FRMGMM Nominee Trust is the owner of property which abuts 111 Meadow Street (Mazzilli Property).

3. 111 Meadow Street is bounded on the east and northeast by the Mazzilli Property, on the north by the Weweantic River, on the west and south by land of Ward R. Hannula, and on the southeast by Meadow Street, a public way in the Town of Carver.

4. 111 Meadow Street consists of approximately 22.1 acres as shown on the October 29, 1999 revised registration plan filed by Plaintiff (Baker Property).

5. Defendant claims record ownership of a 5.16 acre portion of the Baker Property (Disputed Area).

6. Plaintiff derives title to the Baker Property through a chain of title beginning in 1767 with the Estate of Nathaniel Atwood, as established by trial exhibits 1 through 32, and 34 (Baker Chain of Title). [Note 3]

7. The Trustee derives title to the Mazzilli Property through a chain of title beginning with a deed into Cephas Shaw dated October 26, 1883 (Cephas Shaw Deed), as established by trial exhibits 54 through 64 (Mazzilli Chain of Title).

Summary History and Division of the Baker Property and the Mazzilli Property [Note 4]

8. The Estate of Nathaniel Atwood is the original source of title to the Baker Property and to a twelve foot strip of land that is part of the Mazzilli Property. In 1767, the property in the Nathaniel Atwood estate was divided among his widow, Abigail Atwood, and his children.

9. Abigail Atwood received one-third of the property (Widow’s Third), which was divided among her children upon her death in 1782. The property constituting the Widow’s Third was bordered along its easterly boundary, north of Meadow Street, by land of Barnabas Atwood. Through the settlement of Abigail Atwood’s estate, her Widow’s Third was divided into six portions, all of which eventually came to be owned by Samuel Atwood, son of Nathaniel and Abigail.

10. In 1897, Mabel S. Cassidy became the owner of the property east of the Baker Property by deed dated August 21, 1897, recorded with the Plymouth Country Registry of Deeds in Book 744, at Page 259. Mabel S. Cassidy’s predecessor-in-interest was her father, Cephas Shaw, who owned under the Cephas Shaw Deed. The land acquired through the Cephas Shaw Deed is bounded and described as follows:

beginning by the brook or stream near or below said Holmes Mills on the westerly side of the road leading across the dam of said Mills, thence southerly and westerly by said road until it comes to the land formerly owned and occupied by the late Ebenezer Atwood, deceased, as his homestead farm, thence from a stake and stones standing by said road near the dwelling house of said Atwood north one degree east thirty eight rods, thence north one and a half degrees west forty rods and six links to a ditch, thence by said ditch to aforesaid brook or stream thence easterly up stream by said brook until it comes to the place of beginning.

11. Portions of the Nathaniel Atwood Estate were also set-off directly to Samuel Atwood, Abigail Shurtleff, and Stephen Atwood, all children of Nathaniel and Abigail (Children’s Parcels). Samuel Atwood came to acquire all of the Children’s Parcels, as well as the meadows north of the Children’s Parcels and south of the Weweantic River. These three parcels, together with the Widow’s Third and the meadows, formed a homestead and farm (Atwood Farm), which was later vested in Frank E. Barrows by deed dated September 3, 1920, recorded with said Deeds in Book 1360, at Page 217 (Barrows Deed).

12. The Atwood Farm totaled 44.5 poles (734.25 feet) in width at its northerly bound by the meadow. According to the property descriptions contained in the inventory of the Estate of Nathaniel Atwood, the Widow’s Third was 20.5 poles wide and each of the Children’s Parcels was eight (8) poles in width. [Note 5]

13. The Barrows Deed describes the Atwood Farm as bounded, “Northerly by the Weweantit [sic] River, Easterly by land of Mabel S. Cassidy and land of Wilfred A. Tillson, Southerly by land formerly of Nathan Ryder, and Westerly by land of Catherine Holmes Thomas.” The Barrows Deed makes no reference to either the distance across or the area of the Atwood Farm.

14. In 1924, Frank E. Barrows conveyed the rear of the Atwood Farm (Rear Parcel) to Jesse A. Holmes by deed dated September 12, 1924, recorded with said Deeds in Book 1479, at Page 81 (Jesse Holmes Deed). The Jesse Holmes Deed recites the distance across the Rear Parcel as being about 38 rods across from its Southeasterly to Northwesterly boundary and is more particularly described as

[b]eginning at a corner on the Westerly side of Meadow St. being the Southwesterly corner of said Atwood place; thence by an old Woods Road Westerly about 9 rods to a corner on the Southerly side of said road; thence Northwesterly in line of land of Catherine Holmes Thomas to the Weweantit [sic] River thence Northerly upstream by said Weweantit [sic] River to the land of Mabel S. Cassidy; thence South Easterly in line of said Cassidy land to a corner; thence from the last mentioned corner which is on the Easterly side of said Atwood property, Westerly about 38 rods directly across to a corner on the Westerly side this corner being 1 rod from the line of land of Catherine Holmes Thomas; thence running in a Southerly direction 1 rod from and in a parallel line with said Thomas line to a corner on the Northerly side of the aforementioned Woods Road; thence Easterly about 9 rods to a corner at Meadow Street, said corner being 1 rod Northerly from the point of beginning.

15. In 1925, Frank E. Barrows conveyed the front of the Atwood Farm (Front Parcel) to Emma Pentakainen by deed dated July 11, 1925, recorded with said Deeds in Book 1487, at Page 302 (Emma Pentakainen Deed). The Front Parcel is more particularly bounded and described as “[n]ortherly by land of Jesse A. Holmes [the Rear Parcel], Easterly by land of Mabel S. Cassidy and land of Wilfred A. Tillson, Southerly by land formerly of Nathan Ryder and Westerly by land of Jesse A. Holmes [the Rear Parcel]. . . .”

16. In 1927, Jesse A. Holmes conveyed the southwesterly portion of the Rear Parcel (Present Rear Parcel) to Paul Pentakainen by deed dated December 15, 1927, recorded with said Deeds in Book 1544, at Page 416 (Paul Pentakainen Deed).

17. In 1927, Emma Pentakainen conveyed to Jesse A. Holmes (Easement Deed) a 12-foot strip of land extending to and from Meadow Street on the northeasterly boundary of the Front Parcel to allow Holmes to gain access to his remaining land to the north of the Present Rear Parcel (Holmes Parcel). The Easement Deed reserved for Emma Pentakainen, her heirs, and assigns “the right as formerly to use any portion of the driveway leading from the said Meadow Street to [her] dwelling, that may lie with-in the premises conveyed.” This reservation indicates that the driveway located within the Front Parcel at the time of the Easement Deed provided access to and from Meadow Street.

18. In 1928, Emma Pentakainen conveyed the Front Parcel, excepting the 12-foot strip of land, to Paul Pentakainen by deed dated August 4, 1928, recorded with said Deeds in Book 1558, at Page 167. This conveyance reunited the Front Parcel and the Present Rear Parcel of the Baker Property as one parcel in the ownership of Paul Pentakainen.

19. In 1955, the Holmes Parcel and the 12-foot strip of land described it the Easement Deed were conveyed to Etta M. Bisbee by deed dated June 2, 1955, recorded with said Deeds in Book 2425, at Page 377. Etta M. Bisbee is the predecessor-in-title to all three parcels eventually conveyed to the Mazzillis.

20. In 1954, the Estate of Paul Pentakainen conveyed the Front Parcel and Present Rear Parcel of the Baker Property to Ralph Peltola by deed dated July 26, 1954, recorded with said Deeds in Book 2354, at Page 247.

21. In 1967, Petola conveyed the Front Parcel and Present Rear Parcel of the Baker Property to Bernard J. Paduch by deed dated November 24, 1967, recorded with said Deeds in Book 3410, at Page 237.

22. In 1971, Paduch acquired an abutting parcel from Oliver Harju by deed dated July 28, 1971, recorded with said Deeds in Book 3693, at Page 377 (Fifth Parcel).

23. In 1976, Bernard J. Paduch conveyed all his land to the Farm Home Administration (FHA) in satisfaction of debts. [Note 6]

24. In 1977, the FHA conveyed to Roger and Linda Randall all of the land conveyed to it by Bernard J. Paduch. [Note 7] Subsequently, Linda and Roger Randall conveyed the portion of the Fifth Parcel that was located south of Meadow Street to Mikelis V. and Brigita E. Veidis by deed dated November 25, 1977, recorded with said Deeds in Book 4369, at Page 175.

25. In 1979, the Randalls conveyed the Baker Property to Gladys B. Baker and George Melville Baker as joint tenants by deed dated July 16, 1979, recorded with said Deeds in Book 4689, at Page 37. The deed references a compiled plan recorded with said Deeds in Book 20, at Page 1127. Gladys Baker died September 22, 1983, at which time George Melville Baker became the sole owner of the Baker Property. [Note 8]

26. On October 31, 1958, William E. Bisbee conveyed to Grace M. Mazzilli (1) the property described in the Cephas Shaw Deed, (2) the Holmes Parcel, and (3) the 12-foot strip of land described in the Easement Deed. [Note 9] In 2003, Grace M. Mazzilli conveyed the Mazzilli Property to Frank R. Mazzilli and Grace M. Mazzilli as Trustees of the FRMGMM Nominee Trust. [Note 10]

Road Layout and Relocation of Meadow Street

27. In 1792 the Town of Carver voted to accept the laying out of a road thirty (30) feet in width “as it is now trod” from the head of the lane southerly by the house of Samuel Atwood and Nathaniel Atwood (1792 Layout). The use of the phrase “as it is now trod” indicates that the road was already in existence and use at the time of the 1792 Layout.

28. In 1827, upon petition of the Selectmen of Carver, the Commissioners of Highways straightened the road by way of a layout across the field of Samuel Atwood. The layout is described as

[b]eginning at the fence at the north end of the road lately made near the dwelling house of Joshua Atwood; thence north thirty six and one half degrees east thirty four rods to the old road, and thru [sic] the land of Samuel Atwood the whole distance . . . And the old road leading from the same two points in a circuitous manner we do here by discontinue.

Location of the Common Boundary

29. The boundaries of the Disputed Area result from a difference of opinion between Plaintiff’s and Defendant’s surveyors regarding the location of the southeasterly corner of the Baker Property, where it abuts the Mazzilli Property. The plan prepared by Plaintiff’s surveyor (Baker Plan) depicts this common boundary point as an existing stone bound inscribed with the initials “C. S.” (Stone Bound). The plan prepared by Defendant’s surveyor (Mazzilli Plan) depicts this point as an iron rod set by Defendant’s surveyor along Meadow Street (Iron Rod). The Iron Rod lies 221.80 feet southwest of the Stone Bound.

30. The difference in the common boundary point at Meadow Street accounts for all the differences between the Baker Plan and the Mazzilli Plan and, consequently, defines the boundaries of the Disputed Area.

31. Neither the Baker Chain of Title nor the Mazzilli Chain of Title contains a monument call for a stone bound at the boundary between the two properties. Both chains of title refer to a “stake and stones” monument along Meadow Street separating the two properties.

32. Historically, it is common for a “stake and stones” marker to be replaced by a more durable monument, such as the Stone Bound located on the boundary line between the Baker Property and the Mazzilli Property.

33. The Stone Bound represents the beginning point of the boundary line between the Baker Property and the Mazzilli Property. This conclusion is supported by four independent sources established at trial: (1) the Cephas Shaw Deed, (2) the width of the Baker Property as described in the inventory of the Estate of Nathaniel Atwood, (3) the original layout and relocation of Meadow Street, and (4) the understanding and acceptance of the Stone Bound as a boundary marker by the predecessors-in-interest to the Baker Property and the Mazzilli Property, as well as by Grace Mazzilli. See footnote 19 and accompanying text.

34. The distance of the second northerly course of the Mazzilli Property should be forty (40) rods and six (6) links (663.96 feet) ending at a ditch as stated in the Cephas Shaw Deed. The Baker Plan shows this course exactly but the Mazzilli Plan shows this course as approximately 292 feet longer than the course called for in the Cephas Shaw Deed. This discrepancy is due to Mr. Shorey’s placement of the Iron Rod on the Mazzilli Plan. [Note 11]

35. According to the division of the Estate of Nathaniel Atwood, the width of the Baker Property is 44.5 poles, or 734.25 feet. The Baker Plan shows the width across the Baker Property as 735.29 feet.

36. The Stone Bound was commonly understood by both Plaintiff’s and Defendant’s predecessors-in-interest to be the common boundary of the Baker Property and the Mazzilli Property.

* * * * * *

Pursuant to G. L. c. 185, § 26, registration is available to persons who can show good title in fee simple to land. Registration will not be allowed where a plaintiff fails to demonstrate such title to “the lands described in the petition.” Crowley v. Adams, 226 Mass. 582 , 585 (1917). In the instant case, Plaintiff desires to register his title to a large parcel of land that includes the Disputed Area, as shown on the registration plan. The Trustee challenges Plaintiff’s complaint by asserting a competing title claim to the Disputed Area. Both parties agree the title chains in evidence indicate a common boundary between lands of Plaintiff and Defendant that serves as a boundary of the land Plaintiff is attempting to register. The only issue presently contested by the parties, and the only one developed at trial, is the location of that common boundary. After trial, this court finds and rules that Plaintiff has met his burden of proof as to his title through the expert testimony at trial of Attorney Bothwell and Mr. Seguin. [Note 12]

Both parties proffered the expert testimony of registered land surveyors to establish the location of the original common boundary between the parties’ properties. Mr. Seguin placed the beginning point of the common boundary of the two parcels at the Stone Bound. [Note 13] Mr. Shorey, Defendant’s surveyor, placed the beginning point at the Iron Rod, which is approximately 221.80 feet southwest of the Stone Bound. [Note 14] This difference of opinion accounts for all the differences between the two surveys and, consequently, accounts for the entirety of the Disputed Area. For the reasons set forth below, this court adopts the reasoning of Plaintiff’s surveyor, Dennis Seguin, and finds that the beginning point of the common boundary between the Baker Property and the Mazzilli Property is the Stone Bound. [Note 15]

Adjoining land referenced in the description of a deed is a monument, “even though there is no visible evidence of such line upon the land.” M.E. & D.D. Park, Real Estate Law § 249 (2d ed. 1981); see also Temple v. Benson, 213 Mass. 128 , 132 (1912). In fixing such a line, the true boundary line of the adjoining owner governs. See Crosby v. Parker, 4 Mass. 110 (1808). “Any competent evidence may be considered in determining the true boundary line between adjoining owners.” Holmes v. Barrett, 269 Mass. 497 (1929). The conclusion that the Stone Bound represents the beginning point of the common boundary between the Baker Property and the Mazzilli Property is supported by four independent sources: (1) the width of the Baker Property as described in the inventory of the Estate of Nathaniel Atwood, (2) the Cephas Shaw Deed, (3) the original layout and relocation of Meadow Street, and (4) the understanding and acceptance of the owners of the Baker Property and the Mazzilli Property. [Note 16]

The Estate of Nathaniel Atwood

The width of the Baker Property as stated in the inventory of the Estate of Nathaniel Atwood is 44.5 poles, or 734.25 feet, wide, measuring east to west. The Baker Plan shows the width across the Baker Property as 735.29 feet across measuring east to west. While the Mazzilli Plan does not show the Baker Property, and therefore does not offer any opinion as to the width of the Baker Property, Mr. Shorey did not contradict the measurements of the Baker Plan and conceded that after having reviewed Plaintiff’s instruments and plans dating back to 1767, he agreed that the Baker Plan correctly showed the location and width of the Baker Property. Indeed, if the Mazzilli Plan did show the width of the Baker Property it would be impossible for the Mazzilli Plan to match the width of the Baker Property as stated in the inventory of the Estate of Nathaniel Atwood with the same degree of certainty as shown in the Baker Plan. This is so because, given the Mazzilli Plan’s location of the common boundary, the distance across the Baker Property as it would have been shown on the Mazzilli Plan would have been significantly less than 44.5 poles, or 724.25 feet wide. Therefore, the inventory of the Estate of Nathaniel Atwood lends support to the Baker Plan’s designation of the Stone Bound as the beginning point of the common boundary between the Baker Property and the Mazzilli Property.

The Cephas Shaw Deed

Both surveyors hold the first northerly course in the Cephas Shaw Deed of 38 rods, or 627 feet, from Meadow Street. However, the second northerly course stated in the Cephas Shaw Deed, 40 rods and 6 links (or 663.96 feet) to a ditch, is where the surveyors part company. While the Baker Plan holds the second northerly course exactly, the Mazzilli Plan measures the second northerly course to be approximately 956 feet to the ditch. This discrepancy is a result of the placement of the Iron Rod approximately 221.80 feet southwest of the Stone Bound. The erroneous placement of the Iron Rod accounts for the Mazzilli Plan’s increase in the distance of the second northerly course. Testimony from both surveyors at trial showed that the Baker Plan was a closer fit to the courses described in the Cephas Shaw Deed. Additionally, testimony further showed that the 292 foot difference in the second northerly course as shown on the Mazzilli Plan is a significant differential in a line only intended to be approximately 664 feet long. Consequently, the Cephas Shaw Deed supports Plaintiff’s depiction of the registration parcel as shown on the Baker Plan.

The 1792 Layout and Relocation of Meadow Street [Note 17]

The frontage along Meadow Street shown on the Baker Plan is accurate given the original layout and subsequent relocation of Meadow Street. The evidence at trial established that in 1792, the Town of Carver Selectmen voted to accept the laying out of a road thirty (30) feet in width “at it is now trod” from the head of the lane southerly by the house of Samuel Atwood and Nathaniel Atwood. Subsequently, in 1827, upon petition of the Carver Selectmen, the Commissioners of Highways straightened the road by way of a layout across the field of Samuel Atwood. The layout is described as

[b]eginning at the fence at the north end of the road lately made near the dwelling house of Joshua Atwood; thence north thirty six and one half degrees east thirty four rods to the old road, and thru [sic] the land of Samuel Atwood the whole distance . . . And the old road leading from the same two points in a circuitous manner we do here by discontinue.

As set forth in the Title Report of James H. Bothwell (trial exhibit 8) and the Baker Chain of Title (trial exhibits 1-32 and 34), in 1782, upon the death of Abigail Atwood, the first share of the Widow’s Third was conveyed to Kerzia Williams (First Share) and was described as “bounded at the southwesterly corner of the homestead thence due east nine rods to a stake by the cartway thence northerly by said cartway twenty nine rods to a stake and stones then to go a west point across said homestead to the land of Samuel Atwood then southerly by said Samuel’s land to the bounds first mentioned.” The second share of the Widow’s Third was conveyed to Abigail Shurtleff (Second Share) and was described as being “bounded beginning at the northeasterly corner of the [F]irst [S]hare it being a stake and stones near the cartway thence northerly by said cartway thirteen poles to a stake and stones thence west across the homestead to the land of the aforementioned Samuel Atwood then southerly by said Samuel’s land until it comes to the [F]irst [S]hare, then by the [F]irst [S]hare to the bound first mentioned.”

The description of the First Share and the Second Share as running “by the cartway” locates the northeast end point of the 1827 relocation at the “old road,” described as “the road” in the Widow’s Third and “cartway” in the First Share and the Second Share. The northeast point of the roadway relocation is also the northeast bound of the First Share where the cartway changes direction at a stake and stones to run westerly to the land of Samuel Atwood. From that same northeasterly point, the northeast corner of the Second Share can be located and determined to be 20.5 poles in width, pursuant to the assignment of the Widow’s Third as contained in the Estate of Nathaniel Atwood.

Finally, from this northeast point the frontage of the Baker Property along Meadow Street appears to be approximately 47 rods, or 775.5 feet, across. With the exception of the 12-foot strip of land deeded to Jesse A. Holmes by Emma Pentakainen, and the frontage added pursuant to a 1941 boundary agreement, the frontage of the Baker Property along Meadow Street has remained unchanged since the 1827 roadway relocation. [Note 18] The Baker Plan accurately reflects the frontage of the Baker Property along Meadow Street.

The Understanding of the owners of the Baker Property and Mazzilli Property

The testimony at trial showed that the understanding of the predecessors-in-interest to both the Baker Property and the Mazzilli Property was that the beginning point of the common boundary between the properties was the Stone Bound. Plaintiff testified that prior to purchasing the Baker Property he and his sister, Lucy Rice, met with Grace Mazzilli at her home and she told them that the boundary between the Baker Property and the Mazzilli Property “was the [Stone Bound] along Meadow Street and that it extended to the river near the big Holly tree.” [Note 19] Lucy Rice further testified that she had learned through a conversation with Gus Penti that the circle of stones held by Defendant’s surveyor as the “stake and stones” called for in the Cephas Shaw Deed was actually the site of fencing used by the Pentakainen family to create a hog pen and cow pasture. Plaintiff and Ms. Rice also testified as to the location of the original Pentakainen driveway, which began at the Stone Bound and formed a half-circle on the Baker Property before ending back at Meadow Street. If this court were to credit the common boundary as shown on the Mazzilli Plan, the Pentakainen driveway would not have begun nor have been fully located on the Pentakainen land. [Note 20]

Therefore, for the reasons set forth herein, this court finds that Plaintiff has met his burden to establish that he has title proper for registration to the land shown on the Baker Plan as against Defendant and all persons.

Judgment to issue accordingly subject to title matters not here in issue. [Note 21]