Plaintiff initiated this action on July 27, 2007, seeking a declaration regarding the location of a common boundary between Plaintiff Langilles and Defendants Frenches respective properties. In addition, Plaintiffs complaint alleges trespass by Mr. and Mrs. French and seeks restoration of a fence removed by Defendants. Defendants filed their answer on August 23, 2007. [Note 1] A one-day trial was held on December 14, 2009. At trial this court heard the expert testimony of Todd Chapman, a licensed surveyor, whose testimony was proffered by Plaintiff, and Joseph A. Marrier, a licensed surveyor, testifying for Defendants. Plaintiff also testified. Based on all the evidence and reasonable inferences drawn therefrom this court finds the following material facts:
1. Plaintiff owns and resides at 1673 Fall River Avenue in Seekonk (Plaintiffs Property). [Note 2]
2. Defendants Theresa S. French and George R. French, II own and reside at 1685 Fall River Avenue in Seekonk (Defendants Property). [Note 3] Defendants Property directly abuts Plaintiffs Property. [Note 4]
3. Plaintiffs Property is bounded on the northeast by Fall River Avenue, a public way. Defendants Property is landlocked and is benefited by a ten foot right of way to Fall River Avenue over property abutting the parties properties (Front Lot). [Note 5]
4. Plaintiffs Property is shown as Lot 18 on Exhibit 1, Map of Land in Seekonk, Massachusetts, Surveyed for Robert Langille by Caputo and Wick LTD., November 9, 1999 (Plaintiffs Plan). Plaintiffs Property is comprised of 1) a portion of Lot A on Exhibit 22, a plan entitled Survey for E. B. Evans, in Seekonk, Mass. By J. A. Latham, April, 1909 (Latham Plan) and 2) a 4,705 square foot parcel (Acquired Parcel) shown on Exhibit 33, a plan entitled Plan of Survey for Abraham, Barry B., Gerald L., and Eric M. Zeltzer, situated in Seekonk Mass., Prepared by Stanley Engineering, Inc., March, 1985 (Stanley Plan).
5. All parties to this action agreed that the point of beginning of the original boundary line (Original Boundary Line) between Plaintiffs Property and the Front Lot is a point on Fall River Avenue, which was marked on the Stanley Plan at trial by Mr. Marrier (Point of Beginning).
6. The Original Boundary Line runs from the Point of Beginning to a property corner near an iron pipe found by Caputo and Wick and shown on Plaintiffs Plan (End Point). The End Point was marked on Exhibit 5, which is a portion of Plaintiffs Plan, at trial by Mr. Chapman. The End Point is approximately 776.5 feet from the Point of Beginning. The common boundary line between Plaintiffs Property and Defendants Property begins at a point about 182 feet southwesterly from the Point of Beginning on the Original Boundary Line then runs in a southwesterly direction along the Original Boundary Line for a distance of 154 feet, as shown on Decision Sketch (Common Boundary Line).
7. On December 6, 2005, the Seekonk Board of Appeals (Board) granted Plaintiffs application for a special permit to build a greenhouse on Plaintiffs Property (Special Permit).
8. The Special Permit requires that Plaintiff build a fence at least six feet in height. . . adjacent to [Defendants Property] as a screening where the property lines are open to each other.
9. Sometime after the issuance of the Special Permit, Plaintiff constructed the required fence on Plaintiffs Property in a location that was approximately six (6) inches from Defendants Property, as depicted on Plaintiffs Plan.
10. Sometime after the fence was constructed, Defendants caused the fence to be removed, believing that it had been constructed on their property. Plaintiff has not reconstructed the fence.
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Both parties proffered the expert testimony of registered land surveyors to establish the location of the common boundary between the parties properties. Both surveyors agree that the Original Boundary Line begins at the Point of Beginning at Fall River Avenue. However, the two surveyors disagree on where the line runs from the Point of Beginning. In addition to their testimony, there are numerous deeds and plans in evidence. Any competent evidence may be considered in determining the true boundary line between adjoining owners. Holmes v. Barrett, 269 Mass. 497 (1929). For the reasons set forth below, this court finds that the Common Boundary Line is not located precisely consistent with either surveyors conclusion, but is located as shown on the Decision Sketch, attached hereto.
As a preliminary matter, this court finds that in order to locate the Common Boundary Line, this court must first locate the Original Boundary Line. In so doing, this court finds that the Original Boundary Line runs from the Point of Beginning to the End Point in a straight line. Based on the plans submitted by both Plaintiff and Defendants, this court finds that the Common Boundary Line begins at a point about 182 feet southwesterly from the Point of Beginning on the Original Boundary Line then runs in a southwesterly direction along the Original Boundary Line for a distance of 154 feet.
In 1985, Stanley Engineering, Inc., prepared the Stanley Plan pursuant to a conveyance between Plaintiffs predecessor-in-title and the then owner of the Front Lot. [Note 6] This conveyance changed the common boundary line between Plaintiffs Property and the Front Lot, but did not affect the boundary line between Plaintiffs Property and Defendants Property. However, the Stanley Plan incorrectly depicts the then existing common boundary between Plaintiffs Property and the Front Lot as being a straight line running from the Point of Beginning and forming an angle with Fall River Avenue not called for in the deeds (Stanley Line). [Note 7] The correct boundary line (defined in this decision as the Original Boundary Line) runs from the Point of Beginning to the End Point and forms a different angle at Fall River Avenue.
In 1989, E. Otis Dyer prepared a plan of Plaintiffs Property entitled, Land Owned by Gerald L. Zeltzer, et al in Seekonk, Massachusetts, which was introduced as Exhibit 13 (Dyer Plan). The Dyer Plan also shows the Stanley Line as being the original common boundary between Plaintiffs Property and the Front Lot. Plaintiffs surveyor testified that the Dyer Plan acquiesced to the Stanley Plan by depicting the Stanley Line due to the fact that the Stanley Plan was on record prior to the creation of the Dyer Plan. While this court agrees that it appears that Dyer acquiesced to the Stanley Line, the fact that he did so does not support Defendants position that the Stanley Line was part of the Original Boundary Line.
The Stanley Line accounts for the differences between Plaintiffs Plan and the plan submitted by Defendants entitled, Plan of Land in Seekonk, MA., Prepared for George R. and Theresa S. French, prepared by Joseph A. Marrier and admitted in evidence as Exhibit 6 (Defendants Plan). Both Plaintiffs Plan and Defendants Plan hold the Stanley Line, however, Plaintiffs Plan then shows the Original Boundary Line turning an angle and running to the End Point, while Defendants Plan simply shows the Stanley Line running in a straight line back to an iron pipe which is different from the iron pipe near the End Point. Defendants surveyor testified that any angle shown in the Original Boundary Line had to be in error because the deeds call for a straight line. Plaintiffs surveyor shows the Original Boundary Line turning at the southerly termination of the Stanley Line and running in a straight line back to the End Point. This court finds that neither surveyor depicted the correct boundary line between the parties properties.
The parties agree that the Stanley Line would control the boundary line between Plaintiffs Property and the Front Lot. [Note 8] The parties also agree that the Original Boundary Line terminates at the End Point. Therefore, this court determines that in order to honor the Stanley Line and also determine the Common Boundary Line, a theoretical corner must be placed at the southerly termination of the Stanley Line. At this point, the boundary line turns about a ninety degree angle to run in an easterly direction to meet up with the Original Boundary Line (Common Boundary Line Beginning Point). The court finds and rules that the Common Boundary Line begins at the Common Boundary Line Beginning Point and runs along the Original Boundary Line for a distance of 154 feet. See Decision Sketch. [Note 9]
In accordance with this decision, Plaintiff has sixty days to file with the court and serve upon Defendants a survey plan depicting the Common Boundary Line as determined by this court. At that time, final judgment will enter, incorporating the survey plan.
Plaintiffs Trespass Claim
The evidence established that at some point after Plaintiff erected a fence on what he believed to be his boundary line, Defendants caused the fence to be removed. Defendants do not dispute this fact, but argue that the removal was proper because the fence was located on Defendants Property. This court has now determined the Common Boundary Line and finds that Plaintiffs fence was properly erected on Plaintiffs Property. Therefore, Defendants removal of the fence constituted a trespass onto Plaintiffs Property.
Plaintiff may erect another comparable fence in accordance with the Special Permit, and the cost of doing so shall be borne by Defendants. Plaintiff shall within 60 days submit an itemized estimate of the cost of replacing the fence and that amount shall be incorporated in the judgment, to be paid by Defendants.
Karyn F. Scheier
Dated: May 25, 2010
[Note 1] Defendant MERS, Inc., filed an answer on October 18, 2007, but did not participate in the trial.
[Note 2] By deed dated November 9, 1999, recorded with the Bristol County North Registry of Deeds in Book 8560, at Page 14.
[Note 3] By deed dated May 2, 2003, recorded with said Deeds in Book 12038, at Page 63
[Note 4] A sketch plan attached hereto depicts the parties properties and points referenced in this decision.
[Note 5] Defendants right of way over the Front Lot is not here in issue and not shown on the Decision Sketch.
[Note 6] This court notes that no deed evidencing this conveyance was introduced at trial, although it is reflected on the Stanley Plan.
[Note 7] This error is of no consequence due to the acquisition of the Acquired Parcel by Plaintiffs predecessor-in-title. The Acquired Parcel changed the boundary line of Plaintiffs Property such that both the correct boundary line and the incorrect line shown on the Stanley Plan were (and are) within the boundary of Plaintiffs Property.
[Note 8] As noted in footnote 5, the Stanley Line is no longer the actual boundary of the Front Lot due to the conveyance of the Acquired Parcel to Plaintiffs predecessor-in-title.
[Note 9] From that point, the Original Boundary Line runs in a straight line back to the End Point, as called for in the deeds. This court notes that the only parties to this action are Plaintiffs and Defendants. Nothing found by the court herein affects those not parties to the action.