CHARLES M. BAILEY and MAURA F. BAILEY v. CHRISTINE BONANNO and BUSINESS LENDERS, LLC

This action commenced on July 11, 2003 in the Superior Court for the County of Essex with the filing of a verified complaint. On September 23, 2003, a judge of that court transferred the case to the Land Court Department, where it was received on September 29, 2003. The verified complaint requests a determination of the boundary line between the property (“Bailey Property”) of the plaintiff, Charles M. Bailey and the property (“Bonanno Property”) of the defendant, Christine Bonanno (“Bonanno”). Bonanno, by counterclaim, requested a declaration of the boundary line, and pleaded, in the alternative, claims of title by adverse possession. Bonanno filed a third-party complaint against Maura Bailey, who owns 462 Boxford Road as tenant by the entirety with Charles M. Bailey (collectively, “the Baileys”). [Note 1] Defendant Business Lenders, LLC, (“Business Lenders”) intervened on June 30, 2008.

On June 9, 2008, in the presence of counsel for the Baileys, the court conducted a view of the Bailey Property and the Bonanno Property. Despite notice, Bonanno did not appear for the view. This case came on for trial before the Land Court (Piper, J.) on June 30, 2008. A court reporter, Karen Smith, was sworn to transcribe the testimony and proceedings. Counsel for plaintiffs, and counsel for then-prospective intervenor Business Lenders appeared for trial. Defendant Bonanno, despite notice, did not appear and upon motion of the defendants, was defaulted pursuant to Mass. R. Civ. P. 55(a) for failure to appear for trial. Business Lenders moved that the trial be continued, and its motion was denied, the court, instead, granting leave to Business Lenders to move to reopen the trial record within two weeks of the conclusion of the day’s trial. Plaintiffs then proceeded to present their case, calling two witnesses, plaintiff Charles M. Bailey, and Michael Sergi, PLS, a professional land surveyor, who gave opinion testimony. Plaintiffs introduced into evidence twenty exhibits. At the close of the taking of evidence, the court postponed closing arguments and instructed counsel to await the receipt of transcript, and then to file and serve within thirty days, proposed findings of fact and rulings of law, and posttrial memoranda, at which point the court would either schedule closing arguments or take the case under advisement.

On July 30, 2009, Business Lenders advised the court that it would not move to reopen the trial record. On August 29, 2008, the plaintiffs filed a Request for Findings of Fact and Rulings of Law. The court now has decided the case, and issues its findings and rulings, and directs entry judgment.

Based on all the evidence, including the testimony and exhibits introduced at trial, and the reasonable inferences to be drawn therefrom, I find the following facts and rule as follows:

The Baileys are the owners of the 1.1 acre parcel of land with the buildings thereon situated at 462 Boxford Road, in Haverhill, Essex County, Massachusetts, which is more particularly described in the deed (“Bailey Deed”) dated November 30, 1993 and recorded with the Essex County (South District) Registry of Deeds (“Registry”) at Book 12276, Page 457.

Bonanno is the owner of a parcel of land, measuring 16.781 acres, more or less, with the buildings thereon situated at 480 Boxford Road, Haverhill, Essex County, Massachusetts which is more particularly described in the deed dated October 21, 1997 and recorded with the Registry at Book 14383, Page 48. Bonanno resides at 480 Boxford Road. The Bonanno property abuts the Bailey Property and is situated immediately to the northwest of the Baileys’ premises. A dispute has existed between the current owners and prior owners of these two parcels as to the boundary lines between the properties, since at least 1981. The dispute centers on two engineering plans, drawn in May and July of 1973, which are in conflict with the description contained in the Baileys’ chain of title.

The 1973 plans show the length of the common boundary line to be 336.69 feet. Two deeds in the chain of title to the Bonanno Property describe the common sideline boundary with the Bailey Property as measuring 375 feet in length.

The total land area in dispute measures approximately 10,800 square feet and is shown as the “Disputed Area” on a certain Exhibit Plan prepared for Charles M. and Maura F. Bailey by Christiansen & Sergi Professional Engineers Land Survey, dated June 1, 2006, and included in the trial record as Exhibit 17 (“Sergi Plan”“Exhibit Plan” or “Exhibit 17”). The Disputed Area includes a rectangular parcel of land to the rear of the Bailey Property and a narrow triangular piece of property that runs along the southerly boundary of the Bailey Property.

Michael Sergi, who was retained by the Baileys, performed a boundary survey of the Bailey Property. Sergi created a plan, the one in evidence as Exhibit 17, which depicts the boundaries of the Bailey Property.

Based on Sergi’s uncontradicted testimony about his surveying work, which included a review of the various deeds and plans in the recorded chain of title to the Bailey and the Bonanno properties and also in the chain of title to a parcel of land owned by the Baileys’ immediate abutter to the north, Geraldine Branca, as well as locating various monuments (including iron pipes and rods), and holding and measuring distances and courses on the ground, the court finds that the Sergi Plan, which is Exhibit 17, depicts the correct boundaries of the Bailey Property.

Sergi was able to locate two three-quarter-inch iron pipes in his field work which all previous surveys had accepted as the beginning and end points to the easterly boundary line of the Branca property. The 504.01 foot distance measured by Sergi in the field, as the length of the easterly boundary line for the Branca property, corresponded within an acceptable limit to the 504.24 foot distance called for that bound, in an 1860 deed in the chain of title to the Branca property.

Once having located the Branca property, Sergi located the boundary line between the Branca and Bailey properties, and was able to establish the bounds of the Bailey Property. In locating the boundary lines of the Bailey Property, Sergi was able to hold, exactly, three of the four calls for both distance and direction in the original deed creating the Bailey lot. As to the fourth call, the southerly boundary line to the Bailey property, the reference in the 1896 confirmatory deed (Exhibit 4), to a course of north 74 and one-half degrees west for a distance of 416 feet, was within an acceptable tolerance to the course and distance actually calculated by Sergi in his field work and shown on his Exhibit Plan as N74º 30’ 18” W and 416.10 feet.

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A dispute involving a common boundary line involves a question of fact to be determined on all the evidence. Hurlbert Rogers Machinery Co. v. Boston & Maine Railroad, 235 Mass. 402 , 403 (1920). The location shown for the common boundary line on the June 1, 2006 Exhibit Plan prepared by Michael Sergi, and admitted into the trial record as Exhibit 17, is the correct location of the common boundary line in accordance with the intent of the parties’ common grantor as evidenced by the metes and bounds description in the 1887 and 1898 deeds which created the Bailey lot. On the evidence presented, applying the governing law, I find and rule that the boundary line between the parties’ holdings, is as shown on the Exhibit 17 plan, that the Disputed Area’s title is, as among the parties to this lawsuit, held by the plaintiffs Charles M. and Maura F. Bailey, and is held by them free of any interest of the defendant Christine Bonanno and her lender, Business Lenders, LLC. Defendant Bonanno having failed, despite notice, to appear at trial, to have put in any evidence, and having been defaulted, her claims of title by adverse possession (or based on any other theory in derogation of the record title and based on use) necessarily fail as well; there is nothing in the evidence which would in any manner support such a claim, in any event. Consistent with these findings, I will direct entry of a judgment establishing the Exhibit Plan as the correct depiction of the disputed boundary, and declaring the Baileys’ title to the Disputed Area.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: January 15, 2010