MICHELLE L. MANWARE and DENNIS A. MURPHY, as tenants by the entirety v. WILLIAM J. FLYNN, JR. and

The Plaintiffs, Michelle Manware and Dennis Murphy (“Murphy”), reside at 290 High Street, Duxbury, Massachusetts. The Defendants, William and Madeleine Flynn (“Flynn”), reside at 280 High Street, Duxbury, Massachusetts, and abut Murphy’s property. On December 17, 2009, Murphy filed a complaint alleging four counts: (1) to quiet title pursuant to G. L. c. 240, §§ 6-10; (2) non-permissive removal of trees, wood or underwood from Murphy’s property pursuant to G. L. c. 242, § 7; (3) non-permissive removal of trees, shrubs, vines or fruit from Murphy’s orchard, nursery or garden pursuant to G. L. c. 266, § 115; and (4) common law trespass. Despite these allegations, the impetus of Murphy’s complaint is quieting title to his property by determining the boundary between the parties’ respective properties.

Murphy purchased 290 High Street (“Lot A”) September 28, 2001 from the estate of Andrew W. Pollock, Jr. (“Pollock”), the prior owner. TR. 72, 74. Flynn purchased 280 High Street (“Lot B”) on March 30, 2000. TR, 154. Sometime around 2005 or 2006, Flynn began to notice that someone, presumably Murphy, had been dumping yard waste on what Flynn believed to be his property. TR, 156-57. In 2007, Flynn spoke with Murphy about a compost pile that went, what Flynn believed to be, ten yards onto Flynn’s property. TR, 157-58. Murphy apologized and offered to help pay for the clean up, payment which Flynn never received. Id. After several more incidents of yard waste intruding on what Flynn believed to be his property, Flynn hired a surveyor to mark the boundary between Lots A and B with stakes. See TR, 159.

By 2009, after attempts to work out the placement of the yard waste between the two parties had not reached a resolution, Flynn hired a fencing contractor to put up a fence on the location where Flynn believed the property boundary lay. See TR, 168. The next direct contact Flynn had with Murphy about the boundary dispute was his receipt of the complaint underlying this action on December 23, 2009. TR, 170.

A one day trial was held on March 15, 2011, at the Land Court in Boston. [Note 1] The court heard testimony from five witnesses: the Plaintiff, Dennis Murphy, Murphy’s expert surveyor, Michael McGrath (“McGrath”), Attorney Martin Loria (“Loria”), the Defendant, William Flynn, and Flynn’s expert surveyor, Joseph E. Webby, Jr. (“Webby”). There were thirty-seven (37) exhibits entered into evidence, some of which contained several sub-parts. The testimony was reported. A view of both Lot A and B was held on April 21, 2011, with attorneys for both parties, as well as both parties themselves, present. Following the filing of the trial transcript, the parties filed their post-trial briefs on May 2, 2011.

FINDINGS OF FACT

On all testimony, exhibits and other evidence properly introduced at trial or otherwise before it, my observations at the view, and the inferences reasonably drawn therefrom, this court finds as follows:

1. Pollock, as tenant by the entirety with his wife, acquired two parcels of property bordering Taylor Street and High Street in Duxbury, Massachusetts, by deed on September 10, 1959. See Exhibit 3. On September 3, 1965, Pollock, again as a tenant by the entirety with his wife, acquired a third parcel of property adjacent to their other two parcels by deed. See Exhibit 4. This 1965 deed references an unrecorded January 8, 1965 plan, which could not be found by either party. Id.; TR., 69. The 1965 deed specifically states the parcel to be conveyed to Pollock “is shown on a certain, ‘Plan of Land in Duxbury, Mass., . . . said plan being dated January 8, 1965 and prepared by Robert B. Delano . . . .” See Exhibit 4.

2. Lots A and B currently owned by Murphy and Flynn, therefore, initially consisted of three separate lots that were brought under common ownership by Pollock with his 1959 and 1965 purchases. See Exhibit 3, 4.

3. Pollock had a second plan done by Robert B. Delano on May 8, 1968, which depicts concrete bounds at the northeast and southeast corners of Pollock’s land. See Exhibit 12. The northwest corner of Pollock’s property in the plan is obscured by a defect in the copying process. This plan was not filed with the Town of Duxbury (“Town”), or recorded, but was available from Flynn’s expert witness Webby, who was given the plan when Pollock hired him to conduct soil testing in 1999. TR., 113-14. Surveyors for both parties discovered concrete bounds at the northeast, southeast and northwest corners of Pollock’s property. See TR., 122; Exhibit 17D-F.

4. William Rainey prepared a plan for Pollock, dated November 21, 1994, that divided Pollock’s property into what is now known as Lots A and B. See Exhibit 1. The plan was endorsed by the Duxbury Planning Board, as not requiring subdivision approval, on November 29, 1994, and recorded on March 17, 1995 (“ANR Plan”). See id.; Exhibit 13. The ANR Plan was recorded at the Plymouth County Registry of Deeds in Plan Book 37 Plan 727. The ANR Plan identified all three concrete bounds later discovered by the parties, at the northeast, southeast and northwest corners, as bounding Pollock’s land. Id. A copy of the endorsed ANR Plan is attached to this decision as Exhibit A.

5. The ANR Plan included references to concrete bounds at the northeast, southeast and northwest corners of the outer perimeter of Pollocks land (which is comprised of Lots A and B). See Exhibit 1. In addition, there was a surveyed tie, with distance and bearing, to a granite Town Marker to identify the fourth corner of Pollock’s property. Id. Using these markers, the outer boundaries of the combined Lots A and B were shown to be consistent with the ANR Plan. See TR., 48.

6. Pollock conveyed Lot B by deed on April 7, 1995, which described the land being conveyed as “[a] certain parcel of land . . . being shown as Lot B on [the ANR Plan].”. See Exhibit 11. A specific reference to the land “being shown as Lot B” appears in each of the conveyances up to, and including, the original conveyance to Flynn on March 29, 2000. See Exhibit 7, 27.

7. The description of the parcel of land conveyed by deed to Flynn on March 29, 2000, is consistent with Lot B as depicted in the ANR Plan, (Exhibit 7), as does the September 18, 2002 deed from Flynn to the Madeleine L Flynn Trust, and the October 17, 2002 deed from the Madeleine L. Flynn Trust to William J. Flynn, Jr. and Madeleine L. Flynn as tenants by the entirety. Id.

8. After Pollock’s death on September 27, 2000, the executor of his estate sold Lot A to Murphy on September 28, 2001. See Exhibit 2. The deed to Lot A, as well as the deed to Lot B, identified the parcel sold to Murphy as “being the same parcel shown as LOT A on [the ANR Plan].” Id.; Exhibit 11.

9. The description of the parcel conveyed to Murphy by deed on September 28, 2001, is consistent with the Lot A as depicted in the ANR Plan. See Exhibit 2.

DISCUSSION

This court has jurisdiction over this matter pursuant to G. L. c. 185, § 1(k), which provides that the court has jurisdiction over “[a]ll cases and matters cognizable under the general principals of equity jurisprudence where any right, title or interest in land is involved . . . .” Specifically, this matter is brought before the court under G. L. c. 240, § 6 to establish the common boundary between Murphy and Flynn’s lots. [Note 2] When a deed incorporates a plan of reference, however, that plan may be used to determine the rights conveyed, based on the intent of the parties, and considering the entire situation at the time of the conveyance. See Goldstein v. Beal, 317 Mass. 750 , 755 (1945). When interpreting deeds “their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998).

Loria testified as an expert witness on behalf of Flynn. He is an attorney who has more than thirty years of experience examining titles in Massachusetts. After being retained by Flynn, Loria and one of his in-house title examiners undertook a title examination of Lots A and B. See TR., 105-06. Loria’s title examination revealed that the three parcels of property purchased by Pollock, by way of the 1959 and 1965 deeds, were combined to make up the property as shown in the ANR Plan. [Note 3] See TR., 106; Exhibit 4-5. Loria further testified that there was no defect in the title acquired by Pollock in 1959 and 1965, nor was there a defect in the chain of title in Murphy or Flynn’s ownership of Lots A and B, respectively. See TR., 107.

The court believes that based on the testimony of both parties’ expert surveyors, McGrath and Webby, the ANR Plan is a valid survey. That is to say that McGrath and Webby were able to confirm all material distances and bearings of the ANR Plan, including the boundary between Lots A and B, which is the subject of this litigation. [Note 4] See TR., 48, 126. The accuracy of the ANR Plan, as testified to by three different experts (including McGrath, Murphy’s own expert), directly contradicts Murphy’s argument to the opposite. The deeds conveying Lots A and B from Pollock to Murphy and Flynn (and his predecessors), all contain materially the same metes and bounds descriptions of the parcels. See Exhibit 2, 7.

Further evidence of Pollock’s intent to create Lots A and B as shown and bounded in the ANR Plan can be seen in the chain of title for both Murphy and Flynn’s property. Lot B, currently owned by Flynn, has been transferred by deed six times. Id. In each of these deeds the ANR Plan is referenced to identify the parcel being sold, and in addition the parcel being sold was described conforming with the distances and bearings of Lot B as shown in the ANR Plan. Id. Similarly, the deed conveying Lot A, currently owned by Murphy, references the ANR Plan for purposes of identifying the parcel of property being sold. See Exhibit 2. The deed then goes on to describe the parcel being sold consistent with Lot A as shown in the ANR Plan. Id. The deeds conveying title to Lots A and B are further evidence the Pollock intended to make the lots conform to the ANR Plan. Whether the Planning Board was correct in its endorsement of the ANR Plan, therefore, is immaterial because the plan is mathematically sound and serves to show Pollock’s intent. [Note 5]

The ANR Plan was shown by the testimony of two expert surveyors to be a competent survey. The testimony of an expert title examiner confirmed that the outer boundaries of the property shown in the ANR Plan conformed to the property purchased by Pollock in 1959 and 1965. Murphy is correct in his argument that the ANR Plan did not create any substantive property, but the ANR Plan is evidence of Pollock’s intent. [Note 6] The ANR Plan itself, created for Pollock, and the deeds conveying Lots A and B, all show Pollock’s intent to divide his property into those lots as consistent with their depiction in the ANR Plan. It was not the ANR Plan itself which created the boundary line; the ANR Plan merely shows where Pollock intended the line to be when he initially sold Lot B in 1995. The court, therefore, believes the boundary between Murphy’s property (Lot A) and Flynn’s property (Lot B) is consistent with the ANR Plan as shown in Exhibit A attached hereto.

As to the remaining three counts alleged in Murphy’s complaint, the court notes that both parties have failed to discuss these counts in their briefs. With this in mind, and given that there was a legitimate boundary dispute between the parties at the time, leading to this litigation, the court cannot agree that Murphy has sustained his burden of proof on these counts. They are therefore deemed to have been waived.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: May 20, 2011

Exhibit A