DRACUT WATER SUPPLY DISTRICT vs. PAUL M. PARADISE and JACQUELINE PARADISE, and ALBERT J. GAGNON, JR.

Plaintiff filed its unverified Complaint To Determine Boundary on March 20, 2007, alleging, pursuant to G. L. c. 185, § 1, a boundary dispute between Plaintiff and Defendants Paul M. Paradise and Jacqueline Paradise (the “Paradises”). [Note 1] A case management conference was held on May 8, 2007. The Paradises filed an Answer to Plaintiff’s Amended Complaint on November 4, 2008. On April 2, 2009, Plaintiff filed its Motion for Summary Judgment on the Request for Declaratory Relief, relative to the use of the ROW, as hereinafter defined, by Gagnon, Jr., together with supporting brief and Affidavit of Gary W. McCarthy. On the same day, Plaintiff filed its Motion for Summary Judgment on the Request for Boundary Demarcation, together with supporting memorandum and Affidavits of Gary W. McCarthy (second) and James D. Aho. The Paradises filed their Opposition and Cross-Motion to the summary judgment motion for boundary demarcation on May 6, 2009, together with supporting memorandum and Affidavit of Jeffrey S. Rider. On May 13, 2009, Plaintiff filed its Opposition to Cross-Motion relative to boundary demarcation, together with supporting memorandum and Affidavit of James D. Aho (second). A hearing was held on all motions on November 4, 2009, and all motions were taken under advisement. [Note 2], [Note 3]

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. By deed dated May 20, 1856 (the “1856 Deed”), and recorded with the Middlesex North District Registry of Deeds (the “Registry”) at Book 4, Page 416, on May 21, 1856, James M. Coburn conveyed to John Coburn four tracts of land located along the so-called Old Meadow Road (what is now Hildreth Street). [Note 4] One of these parcels (the Third Parcel, as defined infra) contained approximately three acres and included the following description:

Beginning at the South[easternly] corner at my own land at a stake and stones by [Old Meadow Road] thence Northerly by said road nine rods and fifteen links [approximately 158.40 feet] to Thomas [] Coburns land at the corner of the wall thence westerly by said Thomas [] and John Coburns land and by the wall to my own land thence South 24 3/4 west by my own land nine rods and fifteen links to a stake and stones thence South 35° East forty five rods and fourteen links [approximately 751.74 feet] by my own land to the Bound first mentioned. [Note 5]

The “stake and stones” referred to in the 1856 Deed by the so-called Old Meadow Road (now Hildreth Street) no longer exists. The wall referenced in the 1856 Deed that serves as the northerly boundary still exists. The wall referenced as the western boundary in the 1856 Deed also still exists, but such wall no longer creates a corner.

2. By Order of Taking dated July 30, 1941 (the “1941 Taking”), and recorded with the Registry at Book 965, Page 437, on August 14, 1941, Plaintiff took approximately forty-two acres of land owned by Stella M. Coburn, B. Melba Coburn, and Delmont H. Coburn (as the heirs of Rockwood D. Coburn) described, in part, as follows:

Beginning at the most easterly corner thereof as Hildreth Street and at the southerly corner of land formerly of James M. Coburn, now supposed of the Federal Land Bank, and thence running by said Hildreth Street southwesterly twenty-five feet to a stake in the wall on the westerly line of said Street; thence north 50° west by a line parallel with and twenty-five (25) feet distant from the southwesterly line of said Federal Land Bank land five hundred (500) feet to a stake; thence north 51° west six hundred twenty-two and 5/10 (622.5) feet to a stake; . . . thence south 35° west by [land formerly of James M. Coburn, now of the Heirs of Rockwood D. Coburn] one hundred sixty-seven (167) feet to a corner of the wall; thence south 50° east by said last named land seven hundred sixty-nine (769) feet to the point of beginning.

3. By deed dated August 15, 1941 (the “1941 Deed”), and recorded with the Registry at Book 966, Page 18, on August 18, 1941, Stella M. Coburn, B. Melba Coburn and Delmont H. Coburn (as the heirs of Rockwood D. Coburn) conveyed to Plaintiff a twenty-five foot wide strip of land in Dracut, Massachusetts, running westerly from Hildreth Street approximately 769 feet (the “ROW”). Specifically, this deed conveyed land with the following description:

Beginning at the most easterly corner thereof at said Hildreth Street and at the southerly corner of land formerly of James M. Coburn, now supposed of the Federal Land Bank, and thence running by said Hildreth Street southwesterly twenty-five (25) feet to a stake in the wall on the westerly line of said Street; thence north 50° west by a line parallel with and twenty-five (25) feet distant from the southwesterly line of said Federal Land Bank land five hundred (500) feet; thence north 51° west two hundred sixty-nine (269) feet; thence northerly twenty five (25) feet, more or less, to a corner at the end of the wall marking the southerly boundary line of said Federal Land Bank Land; thence south 50° east by the wall and said Federal Land Bank land seven hundred sixty-nine (769) feet, more or less, to the point of beginning.

4. By deed dated January 23, 1943 (the “1943 Deed”), and recorded with the Registry at Book 988, Page 110, the same grantors deeded to Plaintiff a larger parcel of land in Dracut which included the ROW already deeded (and taken) in 1941, as well as additional land to the west of the ROW (“Plaintiff Property”). Such deed description stated, in relevant part:

Beginning at the most easterly corner thereof at said Hildreth Street and at the southerly corner of land formerly of James M. Coburn, now supposed of the Federal Land Bank, and thence running by said Hildreth Street southwesterly twenty-five feet to a stake in the wall on the westerly line of said Street; thence north 50° west by a line parallel with and twenty-five (25) feet distant from the southwesterly line of said Federal Land Bank land five hundred (500) feet to a stake; thence north 51° west six hundred twenty-two and 5/10 (622.5) feet to a stake; . . . thence south 35° west by [Federal Land Bank land] one hundred sixty-seven (167) feet to a corner of the wall; thence south 50° east by said last named land seven hundred sixty-nine (769) feet to the point of beginning.

5. By deed dated December 31, 1943, and recorded on May 11, 1944, with the Registry at Book 1005, Page 501, the Federal Farm Mortgage Corporation sold three parcels of land in Dracut to Albert J. Gagnon and Corinne Gagnon (the “A. Gagnons”). One of these parcels fronted on Hildreth Street adjacent to and north of the ROW (the “Third Parcel”). The Third Parcel contained the following description:

Beginning at the southeasterly corner of the premises at land formerly of James M. Coburn, now or formerly of R. D. Coburn, at a stake and stones by said road; thence northerly by said road nine (9) rods and fifteen (15) links to a lane at the corner of the wall; thence westerly by said lane by the wall by land now or formerly of John Coburn to a corner of the wall at land now or formerly of R. D. Coburn; thence southerly 24 3/4° west by said land now or formerly of R. D. Coburn (9) rods and fifteen (15) links to a stake and stones at the corner; thence southerly 35° east by said land now or formerly of R. D. Coburn forty-five (45) rods fourteen (14) links to the bound first mentioned. Be all said measurements more or less.

6. By deed (the “Pare Deed”) dated October 14, 1963, and recorded with the Registry at Book 1622, Page 207, on October 15, 1963, the A. Gagnons conveyed a portion of the Third Parcel (the “Paradise Property”) to Leo J. Pare, Jr. and Doris J. Pare. The Pare Deed conveyed the Paradise Property with the following description:

Northerly, along the Westerly side of said Hildreth Street, One Hundred and Fifty Nine (159) feet, thence

Northwesterly, along property, now or formerly owned by Steve Neofotistos Three Hundred and Eighty Two (382) feet, thence

Southerly, along land now owned by Albert J. Gagnon and Corinne Gagnon, Two Hundred and Thirty Eight (238) feet, thence

Easterly, along the said private road, owned by the Dracut Water Supply District, to the point of beginning, Three Hundred and Seventy Six (376) feet. [Note 6], [Note 7]

7. By deed dated February 26, 1964, and recorded with the Registry at Book 1638, Page 386, the A. Gagnons deeded approximately one-half of the Third Parcel (the “Gagnon Property”) to Robert J. Gagnon and Rose M. Gagnon (the “R. Gagnons”). The Gagnon Property has no frontage on Hildreth Street. By deed dated February 25, 1966, and recorded with the Registry on March 1, 1966, at Book 1740, Page 416, the R. Gagnons deeded the Gagnon Property to the A. Gagnons.

8. By a Certificate of Vote of Plaintiff dated June 25, 1968 (the “1968 Vote”), Plaintiff voted to grant to the R. Gagnons, and their heirs and assigns and tenants “who shall also be responsible for its upkeep,” use of the ROW. The 1968 Vote stated that

Said passageway is to be in common with the Dracut Water Supply District and its successors and assigns and said passageway is to be used by social and business invitee of the herein grantees, their heirs and assigns, members of their family and the general public having to do business with the said grantees, their heirs and assigns. The herein right granted shall remain in force and effect until surrendered and extinguished by the herein grantees, their heirs and assigns by a writing given to the Dracut Water Supply District, its successors and assigns, and recorded with Middlesex North District Registry of Deeds, and notice of the intention of the grantees, their heirs and assigns, to surrender and extinguish this right in writing to any mortgagee of the herein grantees, their heirs and assigns, at least ten days before said surrender or extinguishment of the easement. [Note 8]

Neither the 1968 Vote nor the deed and plan attached to the 1968 Vote was ever executed or recorded. The Gagnon family has never paid for the upkeep of the ROW. [Note 9]

9. A subdivision plan (the “1977 Subdivision Plan”) titled “Subdivision Plan of Land Dracut, Mass.” dated May 16, 1977, and prepared by Andrew E. Szemplinski shows a subdivision north of, and abutting, the Third Parcel. On the 1977 Subdivision Plan, the northerly boundary of the Paradise Property is in the same location as shown on the Rider Plan, as hereinafter defined. The 1977 Subdivision Plan is recorded with the Registry at Plan Book 127, Plan 32.

10. A subdivision plan (the “1979 Subdivision Plan”) titled “Plan of Land New Boston Village” dated June 11, 1979, and prepared by Gabor Szava-Kovats, shows a subdivision to the south of, and abutting, the ROW. The 1979 Subdivision Plan shows a subdivision road titled Village Drive. The 1979 Subdivision Plan is recorded with the Registry at Plan Book 130, Page 1.

11. By deed dated December 1, 1989, and recorded with the Registry at Book 5261, Page 135, the A. Gagnons conveyed the Gagnon Property to Gagnon, Jr.

12. By deed dated September 8, 2004, and recorded with the Registry at Book 17827, Page 211, Cecile Lacourse deeded the Paradise Property to the Paradises. This deed recites the easterly boundary of the Paradise Property as “Northerly along the westerly side of said Hildreth Street one hundred fifty-nine and (159) feet.” The deed omits the northerly boundary of the property. [Note 10]

13. James D. Aho (“Aho”) of Aho Surveying prepared a survey plan for Plaintiff (the “Aho Plan”) dated July 25, 2006, and recorded with the Registry at Plan Book 222, Page 50. The Aho Plan shows a twenty-five foot right-of-way running from Hildreth Street to Plaintiff Property, but does not show the boundaries of the Paradise Property.

14. Jeffrey S. Rider (“Rider”) of Holmberg & Howe prepared a survey plan for the Paradises (the “Rider Plan”) dated October 20, 2006. The Rider Plan shows the full boundaries of the ROW, the Paradise Property, and the Gagnon Property, and shows the boundary line between the Paradise Property and the ROW to be approximately 12.23 feet south of the comparable boundary line shown on the Aho Plan. The Rider Plan shows two iron rods 27.48 feet apart in the location of the ROW intersection with Hildreth Street. The Rider Plan shows a stone wall at the northerly boundary of the Paradise Property and the Gagnon Property and at the westerly boundary of the Gagnon Property. The Rider Plan also shows an isolated portion of a stone wall (approximately 160 feet long) along a portion of the northerly boundary of the ROW, as such boundary is shown on the Aho Plan.

15. As shown on the Rider Plan, the existing paved portion of the ROW is within the ROW as described by the Aho Plan but is partially outside of the ROW as described by the Rider Plan.

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Plaintiff has filed two summary judgment motions. The first is a Request for Boundary Demarcation between the ROW and the Paradise Property. [Note 11] The second is a Request for Declaratory Relief, seeking a resolution of the use of the ROW by Gagnon, Jr. This court shall address each issue in turn. Plaintiff’s Boundary Dispute with the Paradises.

As both Aho and Rider agree as to the locations of the northwest, southwest, and northeast corners of the Third Parcel, the boundary dispute between Plaintiff and the Paradises hinges upon the location of the southeastern corner of the Paradise Property. Both Aho and Rider also agree that the ROW is twenty-five feet wide. [Note 12] Plaintiff argues that the boundary between the Paradise Property and the ROW is the line as shown on the Aho Plan, whereas the Paradises claim that the boundary between the Paradise Property and the ROW is the line as shown on the Rider Plan. The two respective lines are 12.23 feet apart along Hildreth Street. Both parties acknowledge that there is no plan of record (prior to the Aho Plan and the Rider Plan) showing the ROW.

Plaintiff argues that its boundary determination is consistent with the 1979 Subdivision Plan and asserts that the Pare Deed cites the ROW as a monument, as follows: “Easterly, along the said private road, owned by the Dracut Water Supply District, to the point of beginning, Three Hundred and Seventy Six (376) feet.” [Note 13] In the alternative, Plaintiff claims that the Pare Deed did not convey all of the Third Parcel to the Paradises, thus, title to the sliver of land that is the difference between the Aho Plan and the Rider Plan is not held by the Paradises. [Note 14] The Paradises assert that their boundary determination as shown on the Rider Plan is not ambiguous and that it is consistent with all deed descriptions which show the easterly boundary of the Paradise Property as 158.40 feet (9 rods, 15 links), commencing with the 1856 Deed. In addition, the Paradises argue that the northerly boundary of the Paradise Property as shown on the Rider Plan is consistent with the northerly boundary shown on the 1977 Subdivision Plan.

In its argument, Plaintiff places great weight on the concept that the ROW is a monument, claiming that where measurements of boundary distances are ambiguous, then monuments prevail. This court is unconvinced by Plaintiff’s reliance on the ROW, as shown on the 1979 Subdivision Plan, as a monument upon which the Paradise Property’s southeastern corner may be based. In interpreting deeds, deed references to monuments supercede descriptions by courses and distances. Ryan v. Stavros, 348 Mass. 251 , 258-59 (1964). The rationale for relying on a monument is that a monument is a relatively fixed position on the ground (such as a tree, wall, or building). Even so, it is clear that abutter boundaries can be a monument. Id. However, such principal is founded on the assumption that those monuments are “certain or capable of being made certain, . . .” Id. As it is clear from the issues in this case, citing the Pare Deed’s reference to the ROW as a monument has little value in determining the southeast corner boundary of the Paradise Property, as the precise dimensions of the ROW are not fixed in the Pare Deed. [Note 15]

However, the summary judgment record does include a monument upon which this court can rely that is consistent with the principles of deed interpretation stated in Ryan. The stone wall that serves as the northerly boundary of the Paradise Property, which is a boundary that is agreed to by all parties, is a monument capable of being made certain. Almost every deed in the summary judgment record shows the easterly boundary of the Paradise Property as 158.40 feet along Hildreth Street from such stone wall. The deed of the Third Parcel into the A. Gagnons states the easterly boundary of the Paradise Property as “9 rods, 15 links,” which the parties agree is approximately 158.40 feet. This is also consistent with the 1856 Deed. The deed from the A. Gagnons to the Pares states the easterly boundary as “One Hundred and Fifty Nine (159) feet.” They are essentially the same dimension and consistent with the Pare Deed’s notation that all of the measurements contained in the description “being more or less, . . .” In sum, the length of the eastern boundary of the Paradise Property as shown on the Rider Plan is consistent with references to all deeds in the chain of title. [Note 16] As noted, supra, Aho does not address the easterly boundary of the Paradise Property in his analysis. All of the above confirms that the still-existing stone wall which is the northerly boundary of the Paradise Property should be considered the monument with a certain location. [Note 17]

As a result of the foregoing, I find that the boundary between the ROW and the Paradise Property is as shown on the Rider Plan.

Gagnon, Jr.’s Use of the ROW.

In its second motion for summary judgment, Plaintiff argues that the 1968 Vote which granted use of the ROW to the Gagnon family was null and void because it reflected a vote of Plaintiff to grant to the R. Gagnons the use of the ROW at a time when the R. Gagnons did not own the Gagnon Property. Plaintiff also asserts that a condition of the grant of the ROW, had it been effective, was that the R. Gagnons were to be responsible for the upkeep of the ROW, which never happened. Gagnon, Jr. did not file an opposition to Plaintiff’s summary judgment motion. He did, however, appear for the oral argument and argued his position. The substance of Gagnon Jr.’s oral claim is that the 1968 Vote stated that it was to be used “by social and business invitee of the herein grantees, their heirs and assigns, members of their family and the general public having to do business with the said grantee,” and thus the intent of Plaintiff to grant the ROW to the Gagnon family was clear. He also points out that the R. Gagnons had owned the Gagnon Property two years prior to the 1968 Vote, thus causing the confusion as to ownership. [Note 18]

The summary judgment record indicates that at the time of the 1968 Vote (June 25, 1968), the R. Gagnons did not own the Gagnon Property. Rather, they received title to the Gagnon Property by deed dated February 26, 1964 and sold it to the A. Gagnons by deed dated February 25, 1966, two years before the 1968 Vote. The R. Gagnons never took title to the Gagnon Property after the 1968 Vote. Moreover, neither the 1968 Vote nor the deed and attached plan reflecting the 1968 Vote was ever executed or recorded with the Registry. As a result of the foregoing, I find that the 1968 Vote was not a valid transfer of rights in the ROW to Gagnon, Jr.

Conclusion.

As a result of the foregoing, I DENY Plaintiff’s Motion for Summary Judgment on the Boundary Dispute and ALLOW the Paradises’ Cross-Motion for Summary Judgment on the Boundary Dispute. I ALLOW Plaintiff’s Motion for Summary Judgment for Declaratory Relief relative to Gagnon, Jr.’s use of the ROW.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: May 20, 2010