WILLIAM B. MIKESELL vs. DOROTHY M. BENNETT and THAD C. DANIELSON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., WMC MORTGAGE CORPORATION, and COUNTRYWIDE HOME LOANS, INC.

Plaintiff filed his unverified Complaint on April 22, 2008, seeking: (1) a declaratory judgment for adverse possession pursuant to G. L. c. 231A, § 1 relative to the ownership of a four-foot wide parcel of land (the “Disputed Area”) between property owned by Plaintiff located at 4 Orne Street, Marblehead, Massachusetts (“Plaintiff Property”) and property owned by Defendants Dorothy M. Bennett and Thad C. Danielson (“Bennett/Danielson”) located at 2 Orne Street, Marblehead (“Defendant Property”); and (2) to require Bennett/Danielson to try title pursuant to G. L. c. 240, § 1. [Note 1], [Note 2] Bennett/Danielson filed their Answer on June 6, 2008. The Mortgagees filed their Answer and Counterclaim on June 19, 2009, seeking a declaratory judgment pursuant to G. L. c. 231A, quiet title pursuant to G. L. c. 240, § 6, and try title pursuant to G. L. c. 240, §1, relative to the Disputed Area.

Plaintiff filed his Motion for Summary Judgment on February 23, 2009, together with supporting memorandum and proposed Stipulation of Facts. On March 10, 2009, Bennett/Danielson filed their Opposition. [Note 3] The Mortgagees filed their Opposition on July 23, 2009. A summary judgment hearing was held on July 27, 2009, at which time the motion was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plaintiff and Janice B. Mikesell purchased Plaintiff Property by deed dated July 2, 1975, and recorded with the Essex South District Registry of Deeds (the “Registry”) at Book 6162, Page 748. [Note 4] Plaintiff Property consists of approximately 3,700 to 3,800 square feet and contains a multi-family dwelling and a shed. The legal description as referenced in Plaintiff’s deed states as follows:

EASTERLY and SOUTHEASTERLY by Orne Street;

SOUTHWESTERLY by land formerly of Russell and later of Freeto, Day and Doliber;

NORTHWESTERLY by the Selman Lot, so-called, or a ditch separating the premises from said Selman Lot; and

NORTHEASTERLY or NORTHERLY by land of Lindsey and by land belonging to the NORTHEASTERLY half of said dwelling; said NORTHEASTERLY line runs beginning at a point on Orne Street, which is in range with a line forming the center line of the front door; thence running NORTHWESTERLY by said NORTHEASTERLY side of said house belonging to Peachey and through the center of the house and continuing NORTHWESTERLY by said land of Peachey to said land of Lindsey and said Selman Lot.

2. Bennett/Danielson purchased Defendant Property by deed dated March 25, 2002, and recorded with the Registry at Book 18523, Page 415. Plaintiff Property and Defendant Property abut. The legal description as referenced in the deed states as follows:

SOUTHEASTERLY by Orne Street;

NORTHEASTERLY by land of Doliber, this boundary line is parallel with the Northeasterly side of the dwelling house and four (4) feet distant therefrom;

NORTHWESTERLY by land now or formerly of Doliber and by land now or formerly of Torrey, being parallel with and four (4) feet distant from the Northwesterly side of the dwelling house on the granted premises; and

SOUTHWESTERLY by High Street and land and rocks and a common way leadin (sic) from said Torrey house to High Street or however otherwise said premsies (sic) are bounded or described.

3. Jacob A. Webber was a prior owner of Defendant Property. By deed dated March 27, 1942 (the “1942 Deed”), Grace M. Hume, executrix of the Will of Jacob A. Webber, deeded Defendant Property to Charles J. Carlson (“Carlson”). The legal description stated as follows:

Southeasterly by said Easterly termination of High Street, formerly called Back Street; Southwesterly by land and rocks and common way leading from the house formerly of Ezekiel Russell, deceased; Northwesterly by common land and land formerly of Ezekiel Russell, deceased, which is four feet distant from the back of the dwelling house on the premises; and Northeasterly by land formerly of John Doliber, deceased. . . . Being the same premises conveyed to Jacob A. Webber . . . .

The following day Carlson gave a mortgage on Defendant Property to Marblehead Savings Bank (the “1942 Mortgage”), with a legal description as follows:

Southeasterly by Orne Street; Northeasterly by land of Doliber; this line is a line parallel with the Northeasterly side of the dwelling and four (4) feet back therefrom; Northwesterly by land formerly of Doliber and by land now of Torrey; said land of Torrey being parallel with and four (4) feet distant from the Northwesterly side of the dwelling on the granted premises; Southwesterly by High Street and land and rocks leading from the said Torrey house to said High Street. Being the same premises, though otherwise described, conveyed to me by deed of Grace M. Hume . . . .

4. The earliest deed in the summary judgment record of Defendant Property is a conveyance from William R. Ashby to Mary Russell dated June 17, 1834 (the “1834 Deed”) and recorded with the Registry at Book 276, Page 230. This deed has a legal description as follows:

Southeasterly by the street or highway, northeasterly by land and rocks of John Doliber and extends from said street four feet from the back of said house to land of said Doliber, northwesterly by said Doliber’s land which is four feet from the back of said house, then southwesterly by land and rocks and common way leading from Ezekiel Russell’s house to the street, . . .

5. Mary Russell conveyed Defendant Property to Ezekiel Russell by deed dated May 2, 1870 (the “1870 Deed”), and recorded with the Registry at Book 796, Page 37. [Note 5] The legal description of Defendant Property is as follows:

Southeasterly by said easterly termination of Back street; southwesterly by land and rocks and common way leading from the house of Ezekiel Russell, the grantee of this deed, to said street; northwesterly by land formerly of heirs of John Doliber, deceased, which is four feet distant from the back of the dwelling house of the premises, and northeasterly also by land and rocks formerly of heirs of Doliber, deceased, and there extends from the rear bounds of the premises to said street, or however otherwise said estate may be butted, bounded or described, and being the same estate which I purchased of William Russell Ashby on the 17th of June, 1834, . . .

6. Ezekiel Russell conveyed Defendant Property to Sarah E. Freeto by deed dated July 22, 1887 (the “1887 Deed”), and recorded with the Registry at Book 1201, Page 344. The legal description of Defendant Property is as follows:

bounded southeasterly by said easterly termination of Back street, southwesterly by land and rocks and common way leading from the house, formerly of Ezekiel Russell deceased, northwesterly by common land and land formerly of said Ezekiel Russell, deceased, which is four feet distant from the back of the dwelling house on the premises, and northeasterly by land formerly of John Doliber, deceased. Being the same premises which I purchased of Mary Russell by deed recorded with Essex Deeds South District Book 796 leaf 37, . . .

7. Kane Land Surveyors (“Kane”) prepared the following three plans for Plaintiff of Plaintiff Property and Defendant Property: (1) “Plan of Land at 4 Orne Street Marblehead, Ma Land of William B. & Janice B. Mikesell” dated July 21, 2003 (the “2003 Plan”), showing the northeasterly boundary line between Plaintiff Property and Defendant Property as four feet from the building on Defendant Property; [Note 6] (2) “Plot Plan 4 Orne Street Marblehead, MA Land of William & Janice Mikesell” dated July 26, 2006 (the “2006 Plan”), showing the northeasterly boundary line between Plaintiff Property and Defendant Property as four feet from the building on Defendant Property; and (3) “Plan of Land 4 Orne Street Marblehead, MA Land of William B. Mikesell” dated September 11, 2007 (the “2007 Plan”), showing the northeasterly boundary line between Plaintiff Property and Defendant Property as between six inches to one foot from the building on Defendant Property.

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This case involves a boundary dispute between neighbors; the parties disagree as to the location of Defendant Property’s northeastern boundary. Plaintiff advocates for the boundary location as shown on the 2007 Plan and argues that the legal description of Defendant Property as stated in Defendant Property’s chain of title from 1834 to 1942 validates his claim. Plaintiff also asserts that the intent of the parties is clear from the location of various retaining walls which run along the purported boundary line. Bennett/Danielson argue for the boundary as shown on the 2003 Plan and the 2006 Plan, reasoning that Defendant Property’s chain of title (beginning with the legal description of the 1834 Deed) controls, and that there was no change to the legal description in the 1942 Mortgage. [Note 7]

The earliest deed in the Bennett/Danielson chain of title (the 1834 Deed) states the disputed northeast boundary of Defendant Property as “Northeasterly by land and rocks of John Doliber and extends from [Orne Street] four feet from the back of said house to land of said Doliber.” The undisputed northwest boundary is stated as “Northwesterly by said Doliber’s land which is four feet from the back of said house.” Plaintiff argues that the northeast boundary in the 1834 Deed is ambiguous because it references the “back” of the dwelling and such boundary is actually along the “side” of the building. However, when viewed in context of the full legal description of the 1834 Deed, Defendant Property’s northeastern boundary line is not ambiguous. As two of the four calls (the northeasterly and northwesterly) reference that the boundary line is four feet from the dwelling, whether they are described as a “back” or “side” boundary is not dispositive. It is illogical to consider two dimensions running along a single side of the dwelling.

Moreover, the subsequent deed in Defendant Property’s chain of title (the 1870 Deed) does not conflict with the 1834 Deed description. Rather, the 1870 Deed states as the northeast boundary “northeasterly, also, by land and rocks formerly of heirs of Doliber, deceased, and there extends from the rear bounds of the premises to said street . . . and being the same estate which I purchased of William Russell Ashley . . .” [Note 8] The 1870 Deed clearly intends to convey the same premises as the 1834 Deed, and the 1887 Deed conveys the same property as described in the 1834 Deed and the 1870 Deed. The 1942 Deed is also consistent with the earlier deeds and states that it is the same property as conveyed to the grantor; the 1942 Mortgage adds, but does not change, the language from the 1834 Deed. The 1942 Mortgage states Defendant Property’s northeastern boundary as: “[n]ortheasterly by land of Doliber; this line is a line parallel with the Northeasterly side of the dwelling and four (4) feet back therefrom; . . .” and that the property is “the same premises, though otherwise described, conveyed to me by [the 1942 Deed].” While the exact wording of the legal description (but not the boundary description) of the northeasterly boundary of Defendant Property has varied from deed to deed in the earlier deeds, the 1834 Deed and the 1942 Mortgage and all deeds since 1942 have used the same language as shown on the 2003 Plan and the 2006 Plan. [Note 9]

Finally, canons of deed construction “provide a hierarchy of priorities for interpreting descriptions in a deed.” Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Where there is a discrepancy, “[d]escriptions that refer to monuments control over those that use courses and distances; . . .” Id. [Note 10] In this instance, the 1834 Deed refers to monuments (the “land and rocks” which are “four feet from the back of said house”). The retaining walls argued by Plaintiff as a monument are never mentioned in any of the deeds. Moreover, Plaintiff does not provide any facts to support its argument of the retaining walls showing intent of the parties.

The Mortgagees argue that there are material facts at issue and therefore summary judgment is not appropriate. What the Mortgagees refer to as disputed facts, however, are not disputed facts, but rather the central issue in this case. The Mortgagees dispute is really with the interpretation of the legal description of the northeast boundary of Defendant Property. There is no dispute as to what the deeds state, and this court is able to make an analysis based on the deeds in the summary judgment record.

As a result of the foregoing, I find that the northeasterly boundary of Defendant Property is (consistent with the 1942 Mortgage and all deeds following) as follows: “Northeasterly by land of Doliber, this boundary line is parallel with the Northeasterly side of the dwelling house and four (4) feet distant therefrom.”

In light of the above, I DENY Plaintiff’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: February 26, 2010