REGAN McCARTHY v. ROBERT McDERMOTT, ELLEN McDERMOTT and MAKHAIL ZAKIN

Introduction

Plaintiff Regan McCarthy and defendants Robert McDermott, Ellen McDermott and Makhail Zakin own abutting properties in Truro (hereafter the “McCarthy parcel” and the “McDermott/Zakin parcel”) with a common boundary line between them (McCarthy’s western boundary; McDermott/Zakim’s east). This case was brought to determine the location of that line.

An eleven-day trial was held before me, jury-waived, and a view was taken. Based upon the evidence admitted in connection with the trial, the parties’ statement of agreed facts, my observations at the view, my assessment of the credibility, weight, and inferences to be drawn in light of that evidence and view, and as more fully explained below, I find and rule that the boundary between the parties’ properties is the line between points 8 and 9 as shown on the attached Decision Sketch A. [Note 1] Even though Sketch A shows other points and other lines, only the location of the common boundary between the McCarthy and McDermott/Zakin parcels is at issue in this lawsuit, and only that boundary is adjudicated.

Facts and Analysis

Applicable Legal Principles

The location of a disputed boundary line is a question of fact to be determined on all the evidence. Hurlbert Rogers Machinery Co. v. Boston & Maine Railroad, 235 Mass. 402 , 403 (1920). When deed construction is part of that analysis, the law provides:

…a hierarchy of priorities for interpreting descriptions in a deed. Descriptions that refer to monuments control over those that use courses and distances; descriptions that refer to courses and distances control over those that use area; and descriptions by area seldom are a controlling factor. Moreover, when abutter calls are used to describe property, the land of an adjoining property owner is considered to be a monument.

Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004) (internal citations omitted). Monuments, when verifiable, are thus the most significant evidence to be considered.

Other principles also provide guidance. In general, property descriptions in prior deeds in a deed chain take precedence over inconsistent descriptions of the same land in later deeds, for the simple reason that a grantor cannot convey more than he possesses. [Note 2] See C.M. Brown, et al., Brown’s Boundary Control and Legal Principles (4th Ed.), John Wiley & Sons, Inc., New York (1995) (hereafter, “Brown’s Boundary Control”) § 2.6 at 32 (“No surveyor or court has authority to alter or modify a boundary line once it is created. It can only be interpreted from the evidence of where that boundary is located”), § 3.1 at 33 (“one who grants title to property to a second person can grant no more interest than what is owned”). In situations of doubt or ambiguity, however, subsequent conduct (most notably, lines of occupation) and later deeds are sometimes helpful in resolving that uncertainty since property owners’ descriptions and actions may be indicative of the originally intended grant, and those of their successors may mirror and follow them. See generally Bacon v. Onset Bay Grove Ass’n., 241 Mass. 417 , 423 (1922) (“Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.”) (internal citations and quotations omitted); Abbott v. Walker, 204 Mass. 71 , 73 (1910) (prior owner’s statements in disparagement or limitation of title admissible against those claiming under him); LaBounty v. Vickers, 352 Mass. 337 , 345 (1967) (where easement location not precisely defined, location and use of easement by owner of dominant estate, acquiesced in by owner of servient estate, deemed indicative of intent); Fulgenitti v. Cariddi, 292 Mass. 321 , 325 (1935) (“Acts of adjoining owners showing the practical construction placed by them upon conveyances affecting their properties are often of great weight”); Brown’s Boundary Control § 11.22 at 273 (“When there is certainty in the location of the boundaries of a parcel of land and when several surveyors would all locate the property in precisely the same place, improvements such as buildings and fences are usually treated as encroachments; but if the survey lines are uncertain from lack of control of known fixed monuments and several surveyors might place the lines in different places, the fences and improvements are probably better evidence of the original lines of the original parties”).

Deeds of abutting properties may describe a common boundary line differently (e.g. giving it a different length, or referencing different monuments), creating ambiguity. But that ambiguity does not preclude the court’s ability to determine the location of that line, placing it wherever the totality of the evidence indicates. Indeed, differing descriptions of the same physical line are so frequently encountered that surveyors have terms to describe the gaps such differences create — hiatus, defined as “an opening; a gap, a space [;] [a] gap between two deeds”; and gore, defined as “a small triangular piece of land often thought of as an omitted area or area of confusion[;] [a] special type of hiatus.” See Brown’s Boundary Control at 387, 388. For that matter, even boundary descriptions of the same property need not be identical throughout that property’s chain of title for the court definitively to locate those lines. The law recognizes that descriptions sometimes vary — often due to differences in measurements taken at different times by different persons (who may or may not have been professional surveyors) using different tools or methods — and allows the court, after considering all the evidence, to resolve them. See Paull, 62 Mass. App. Ct. at 682, n. 16; Brown’s Boundary Control § 2.6 at 32.

Lastly, the law does not require absolute certainty of proof to determine a boundary line. The standard, as in all civil cases, is “by a preponderance of the evidence,” i.e. more probably true than not. See M. Brodin and M. Avery, Handbook of Massachusetts Evidence (8th Ed.), § 3.3.2(a) at 67 (Wolters Kluwer 2007).

All of these principles are important in this case since neither of the parties’ surveys produced perfect results, i.e. precisely located and exactly matched boundaries for each of the parcels reviewed, consistent over time. [Note 3] Both changed over time as the surveyors obtained further information and refined their analyses. The defendants’ survey, done by Chester Lay, even differs in several respects from his own previous surveys in the same geographic area, again because he now had further information. Neither party’s survey gives completely satisfactory locations for all of the parcels addressed, [Note 4] and there were occasions when the evidence lead me to different findings and conclusions than either party’s surveyor. In reaching my conclusions, I evaluated these competing surveys, their choices, findings, imperfections, their explanations of those imperfections, and whether or not those explanations were persuasive, in light of the totality of the evidence. Fortunately, this case did not call for the adjudication of any boundary other than the line between the parties’ properties. On that boundary, for the reasons stated below, there is sufficient certainty for a judgment of its location to enter.

The Parties’ Competing Surveys

The parties’ contentions were presented primarily through the testimony of their respective surveyors, Craig Field (of BSC Group) for McCarthy and Chester Lay (of Slade Associates) for McDermott/Zakin. Their differing conclusions regarding the location of the common boundary line — derived from their differing conclusions regarding (a) the boundaries of abutting and nearby parcels, which they used either as monuments or measurement reference points, (b) the meaning and reliability of currently-existing stakes, stones, posts, and other purported boundary markers, and (c) the proper judgment calls to make when called-for boundary markers no longer exist and their former locations must be calculated — are reflected on Decision Sketch A (illustrating key points of Mr. Lay’s testimony) and Decision Sketch B (illustrating key points of Mr. Field’s).

Certain facts are agreed.

First, the parties agree that the McCarthy parcel and the McDermott/Zakin parcel do not share a common source of title. Ms. McCarthy’s title derives from the 1911 deed from the heirs of Joseph Morris to James Morris (the “1911 Morris deed”). [Note 5] The McDermott/Zakin title derives from the 1838 deed from Jeremiah Paine to Benjamin Small (the “1838 Benjamin Small deed”). [Note 6]

Second, they agree that their properties directly abut each other with a common boundary line between them (the line in question). This line is the eastern boundary of the McDermott/Zakin parcel and the western boundary of McCarthy’s.

Third, they agree that their common boundary line is part of the eastern boundary of the parcel described in the 1838 Benjamin Small deed, and part of the western boundary of the relevant parcel described in the 1911 Morris deed. [Note 7]

Fourth, they agree that these are straight lines. See Decision Sketches A and B, the property descriptions in the Small and Morris deeds (neither of which calls for any angles along that boundary line), and Statement of Agreed Facts at 4, ¶8. See also Brown’s Boundary Control § 6.13 at 111 (“A line in a description is assumed to be the shortest horizontal distance between the points called for unless the contrary is indicated by the writings.”).

Fifth, they agree that the southeastern bound of the relevant parcel in the 1911 Morris deed is at point 1 on Decision Sketch A and point 1 on Decision Sketch B (the same physical location), monumented on the ground by an iron pipe in stones. [Note 8] Both parties agree that this iron pipe in stones has been accurately placed.

Sixth, they agree on the northern boundaries of both the McCarthy and the McDermott/Zakin parcels — the well-monumented boundary line of the Cape Cod National Seashore. This is important in the context of this case only because it sets the northern point of the boundary line at issue (i.e. the northern point of the parties’ common boundary will be along this line, although the parties disagree precisely where). No other bound or placement of a bound relevant to this case is in any way dependent on the location of the National Seashore boundary.

Seventh, they agree that the “county road” or “old county road” as referenced in relevant source deeds is the same, and in relevant part in the same location, as the current Old King’s Highway.

Eighth, they agree that this road is the western boundary of the McDermott/Zakin parcel.

Ninth, they agree on the physical location of the now-abandoned Proprietor’s Road in the section between points 2 and 3 on Decision Sketch A (evidenced by wheel marks).

Tenth, they agree on the “found” locations of various iron pipes, concrete markers, stones, cut stones, and stone piles. With the single exception noted above, however, they disagree on the accuracy of their placement. [Note 9]

Aside from these points of concurrence, the parties’ surveyors agree on little else. Much of this is due to a fundamental difference in approach. As discussed in more detail below, Mr. Lay began with the working hypothesis that the bulk of the currently-existing iron pipes, stones, concrete posts and other markers are accurately-placed boundary monuments, and that lines of occupation and property descriptions in subsequent deeds were generally reliable. Mr. Field began with the working hypothesis that an 1848 U.S. Coast Survey, [Note 10] as he digitized and enlarged it, accurately indicates the location of the houses, fences and roads it depicts as they existed in 1848, and that property descriptions in at least some of the subsequent deeds on which Mr. Lay relies are so suspect that they should be given little (if any) weight. [Note 11] These different hypotheses lead to significantly different boundary results (compare Decision Sketches A & B, overlaid on Decision Sketch C) and thus cannot both be correct. I thus weighed each in light of the totality of the evidence and the legal principles set forth above.

The 1911 Morris Deed [Note 12]

As noted above, both parties agree that their common border is the western boundary of one of the parcels described in the 1911 Morris deed [Note 13] (hereafter, the “Morris property”) and a portion of the eastern boundary of the property described in the 1838 Benjamin Small deed (the “Small property”) (i.e. the two parcels directly abut at this line). The analysis thus begins with those two deeds.

The relevant parcel in the 1911 Morris deed is described as follows:

Beginning at the northwest corner of said land at a stake and stone on the north side of the proprietor’s road; thence southerly in range formerly of the late Benjamin Small twenty-seven rods [Note 14] to a stake and stone; thence easterly in the range of land of heirs of Doane Rich, formerly, now owned by John Oliver, to a stake and stone in range of land formerly owned by the late Benjamin S. Kelley; thence northerly in said Kelley’s range to a stone on the north side of the proprietor’s road; thence westerly thirty rods in said Kelley’s range to the bound first mentioned—reserving the right of proprietors to the way up and down the hollow; being the same premises conveyed to the above[-]named Joseph Morris by Amelia R. Ryder and Samuel Dyer by deed dated March 2, 1905.

Deed, Heirs of Joseph Morris and Louisa Morris to James Morris (Sept. 7, 1911), Barnstable County Registry of Deeds Book 314, Page 45 (Trial Ex. 21).

There are currently no “stake and stones” on the north side of the now-overgrown Proprietor’s Road [Note 15] (the calls for the northeast and northwest corners of the 1911 Morris deed parcel), nor at the southwest corner of the parcel. There is, however, an iron pipe in stones on the south side of the Proprietor’s Road to the northwest, and an iron pipe in stones to the southeast. [Note 16] The parties agree that the iron pipe in stones to the southeast accurately marks the southeast corner of the parcel, even though the marker is an iron pipe in stones rather than a stake. They disagree, however, on the meaning and accuracy of the location of the iron pipe in stones at the northwest. It cannot be the northwest corner of the Morris property since it is on the south side of the Proprietor’s Road rather than the north. Mr. Field gives it no significance at all. But if, as Mr. Lay contends, it marks the northeast corner of the abutting Small property (see discussion below), the northwest corner of the Morris property is in a straight line just on the other side of the Proprietor’s Road. [Note 17]

In sum, by itself, the description of the Morris property does not definitively locate the common boundary line in a way that can be reproduced today. It does, however, do two things. First, since the stake in stones at the southeast corner was replaced in the same location with an iron pipe, it is reasonable to conclude that other stakes were likely replaced in their same locations with iron pipes as well. [Note 18] Second, the deed description’s two points of surviving detail (the agreed location of the parcel’s southeast corner and the thirty rod distance across its northern boundary on the northern side of the Proprietor’s Road), plus whatever can be learned from other deeds, [Note 19] provide information against which other properties’ boundary descriptions can be referenced. The analysis thus turns to the 1838 Benjamin Small deed.

The 1838 Benjamin Small Deed

The property description in the 1838 Benjamin Small deed is as follows:

One dwelling house, workshop and land adjoining the same, together with the outhouses and fence on the same, situated in said Truro in or near Hinckley’s hollow, so called, and the land is bounded as follows: [1] Beginning eight feet East of the wall at a stake & stone, [2] thence Easterly eleven and [one] half rods by the land of Jedediah Higgins, [3] thence Southerly five rods and five feet by the land of the heirs of Elkanah Paine deceased, [4] thence Easterly by said heirs sixteen [and] one half rods to a stake & stone by the road, [Note 20] [5] thence Southerly twenty six rods to the lands of Doane Rich at a stake & stone, [6] thence Westerly by said D. Rich lands twelve rods to the County road, [7] thence Northerly by said County road thirty six rods and ten feet to the first mentioned bound, containing three acres and sixty nine rods, be it more or less, together with a privilege in the well near by said premises.

Deed, Jeremiah Paine to Benjamin Small (Apr. 2, 1838), Barnstable County Registry of Deeds Book 41, page 180 (Trial Ex. 2).

Mr. Lay found an iron pipe in stones at the location marked as point 6 on Decision Sketch A, approximately eight feet east of brick rubble which he interpreted as the remains of an old well. He was convinced that this was the beginning point of the first call, with the former wooden stake replaced by an iron pipe. That this iron pipe in stones was, in fact, in the same location as the “stake and stone” called for in the deed is corroborated by four other facts: (a) it is approximately eight feet from brick rubble (which I agree is the remains of an old well) and the 1838 reference to “wall” likely meant the wall of the well, [Note 21] (b) the pipe and stones are along the edge of the “county road” (the monument called for as the westerly boundary of the Small property), (c) the field notes of an earlier surveyor, Wilfred Slade, reflect that he found an old post at this same location in 1950, [Note 22] and (d) no other stakes, pipes, stones or stone mounds were found anywhere in the relevant area. Further corroboration of the accuracy of this location is found in a monument related to another deed (Samuel Dyer, Administrator of the Estate of Benjamin Small, to Hannah Small, Book 169, Page 75 (Aug. 23, 1879) (Trial Ex. 5) (the “1879 Dyer property”)), which references the same point as being “fifty rods [north] across the Old County Road” from the 1879 Dyer property’s southwestern corner. [Note 23] There is a marker labeled “Land Court Bound” 816.56 feet in that direction from point 6 (50 rods is 825 feet), i.e. right where it should be (eight feet is well within the range of allowable difference) if (as I conclude it does) the iron pipe in stones at point 6 accurately marks the northwestern corner of the 1838 Benjamin Small and 1879 Dyer properties.

There is another iron pipe in stones at point 3 on Decision Sketch A. Mr. Lay was convinced that this was the end point of the fourth call and the beginning point of the fifth. This conclusion is corroborated by four facts. First, it is the only marker in stones in the relevant area and, as noted in connection with the first call, it is likely that the wooden stake described in the 1838 Benjamin Small deed was replaced, in the same location, with an iron pipe. Second, it is on the Proprietor’s Road as the fourth call describes (“to a stake and stone by the road”). Third, it is approximately forty-four rods from the boundary line of the Ball Estate — the distance called for in the deed of a neighboring property whose boundaries tie into this one. [Note 24] Fourth, the iron pipe in stones at point 3 is consistent with the first, second and third calls in the deed, as follows.

As previously noted, the end point of the second call (Lay’s point 4, see Decision Sketch A) is clearly the same as the point described in the 1879 Dyer property deed and also in the 1909 deed from the Estate of Hannah Small to the Inhabitants of the Town of Truro (Book 298, Page 203 (May 15, 1909) [Trial Ex. 20]) as being “eight rods [from] the Old County Road.” That eight rod measurement intersects with the third call (sixteen and one-half rods, here measured backwards from the iron pipe in stones at point 3) at Lay’s point 4. Measuring approximately five rods five feet northward from point 4 [Note 25] and approximately eleven and one-half rods east of point 6 (i.e. swinging the arc of lines that length, and then seeing where they touch each other) [Note 26] locates the end point of the first call at Lay’s point 5. All of this works both mathematically and logically (it puts point 4 on the edge of the Proprietor’s Road — a logical boundary — and makes the northern boundary of the parcel roughly parallel to the edge of the Proprietor’s Road). Moreover, whether points 4 and 5 are precisely accurate is not material [Note 27] since their role in this case is simply as validation that the pipe in stones at Slade’s point 3 is in the same location as the stake in stones described in the 1838 Benjamin Small deed. As explained more fully below, the important points are 3 and 6 (both monumented on the ground with iron pipes in stones) since they are the ones from which point 7 and the critical point 8 are derived. Point 7 is simply thirty-six rods, ten feet along the Old County Road from point 6 (the distance measurement contained in the 1838 Benjamin Small deed), and point 8 is the intersecting point of a line twenty-six rods south from point 3 and twelve rods east of point 7 (i.e. the point at which the arcs of lines that distance touch). A straight line connecting points 3 and 8 crosses the Cape Cod National Seashore boundary at point 9. Thus, the common boundary between the McDermott/Zakin and McCarthy properties is the line between Decision Sketch A’s points 8 and 9.

Mr. Field (for plaintiff McCarthy) challenges this analysis based primarily on a single but (if true) not insignificant point. The 1838 Benjamin Small deed reflects a “dwelling house, workshop…outhouses and fence” on the property, the 1879 commissioners’ report (Trial Ex. 136) describes the property as containing “the house lot on which the house now stands and all the outbuildings,” the 1879 Dyer property deed describes its “nub” portion as containing “a Dwelling house and outbuildings thereon formerly the homestead of Benjamin Small (deceased),” and an 1848 U.S. Coast Survey (Trial Ex. 80), as digitized and enlarged by Mr. Field, places what appears to be that “dwelling house” at a location bisected by Mr. Lay’s northern boundary line, putting approximately two-thirds of that house on the northern abutter’s land. See Decision Sketch A. Such a significant encroachment of a main dwelling house onto another person’s property seems unlikely, and leads to two possibilities (1) Mr. Lay’s boundary locations are incorrect, or (2) the 1848 Coast Survey’s location of the house, as digitized and placed by Mr. Field, is incorrect.

The factors in favor of Mr. Lay’s locations are as follows. First, as noted above, Mr. Lay’s boundaries match up to “found” monumentation (the two “iron pipe in stones”) and, as previously discussed, make sense both mathematically and logically. Second, it is unlikely that the 1848 surveyors, focusing on natural features (the coastline and topography of the land), intended their locations of individual houses and fences to be anything more than approximate, and certainly not accurate as to each and every building indicated. The scale at which the survey was drawn (1/10,000) makes the houses mere specks on the plan, [Note 28] and it would be truly astonishing if the surveyors spent the public’s time and money on a precise survey and location of each and every private dwelling depicted, particularly when the size, nature, location and permanence of those dwellings was changeable at any time their private owners chose. Third, the 1848 survey has obvious distortions; aligning it with certain features (fence lines, roads) puts it out of alignment with others (other fence lines, roads). This is likely due to the scope of the survey. It covered a large geographic area. The woods and hills required the surveyors to set up numerous traverses, the accuracy of which was limited by the technology of the time. Putting them together was the equivalent of assembling a jigsaw puzzle. It is thus not surprising that distortions occurred, particularly in the relatively unimportant (for purposes of a coastal survey) interior areas. Fourth, Mr. Field’s digitization and enlargement of the 1848 survey appears to have produced further distortions. The most obvious is the mislocation of the Proprietor’s Road which the parties agree is in one location (see Decision Sketches A, B & C — “Proprietor’s Road, Surveyed Location [Wheel Marks]”), but which Mr. Field’s digitization and enlargement of the 1848 survey places in quite another (see Decision Sketches B & C — “Compiled Location of Proprietor’s Road [1848 Plan] [Aligned to the Dyer and Kelley Dwellings]”). Thus, it is far more likely that the Benjamin Small house was closer to the Proprietor’s Road than Mr. Field’s depiction and, accordingly, well within the property lines as Mr. Lay determined. [Note 29]

Cutting against this are several factors. First, if aligned in a particular way, the 1848 U.S. Coast Survey gives remarkably close approximations of the locations of other buildings in the immediate vicinity, among them the former Kelley house (“Cozy Nook”) and a fence line to the north. [Note 30] Second, there is an area containing debris near the “compiled” location of the Small house (the location Lay’s line bisects) which might be the remains of the cellar of that house (McCarthy’s contention) or simply an unrelated rubbish heap (McDermott/Zakim’s assertion). Third, a 1925 deed conveying what is described as “the Hannah Small homestead” (Snow to Hansen, Book 395, Page 212, Trial Ex. 28) quite clearly includes land four rods north of Mr. Lay’s northern boundary line (points 5 to 6 on Decision Sketch A), and does not reference any stake, iron pipe, stones or other marker of any kind — an odd omission if such a marker (e.g. a stake in stones or iron pipe in stones at point 6) existed on the ground at any time prior to the conveyance.

Despite this, having reviewed all the evidence, I conclude that Lay’s boundary lines in this area are sufficiently correct to verify the accuracy (as monuments) of the iron pipes in stones at Points 3 and 6 on Decision Sketch A — the points critical to determination of the McCarthy-McDermott/Zakin common boundary line. They use existing monumentation and lines of occupation (Mr. Field’s do not) and produce a logical whole. They match to descriptions of adjoining properties with only minor differences. The reference to an unrecorded deed in the “Hannah Small homestead” conveyance (Trial Ex. 28) suggests that there may have been other unrecorded deeds in the area (Mr. Lay’s explanation as to why the “Hannah Small homestead” deed extends four rods north of his boundary for the 1838 Benjamin Small property — in his opinion, the result of an unrecorded deed from the northerly abutter to Ms. Small, perhaps to make the deed descriptions match existing areas of occupation). [Note 31] I am not persuaded that the debris found in this “additional” area was once a house cellar, and find it far more likely that the 1848 U.S. Coastal Survey’s location of the Small house as compiled by Mr. Field is off by a few feet.

In short, I am persuaded that Mr. Lay’s location of the boundary line in question is the correct one [Note 32] and Mr. Field’s is not. Mr. Field’s reliance on the accuracy of the 1848 U.S. Coast Survey is misplaced. His assertion that a holly tree, currently only one inch in diameter, accurately marks the northeastern boundary of the 1838 Small property lacks credibility. And his rejection of the accuracy of numerous existing markers (particularly those marking the western edge of the Ball Estate) and many historic lines of occupation (most notably the Ball Estate line) undermines his assertions even further. See Decision Sketch B. Some of Mr. Lay’s parcel locations may have their problems, but those problems do not call into question the accuracy of the locations of the iron pipes in stones at points 3 and 6 on Decision Sketch A (i.e., that they accurately mark those corners of the 1838 Benjamin Small property), the calculations of points 7 and 8 using 3 and 6, and thus the location of the boundary line in question. [Note 33] That line, a straight one, begins at point 8 on Decision Sketch A (Point 40134 on Trial Ex. 113A) and ends at point 9 (Point 40121 on Trial Ex. 113A). Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 2 August 2010