This case, commenced on October 16, 2002 by plaintiff Joseph G. Bergeron, Jr., (Bergeron), against defendant Raymond J. Andrews, Jr., (Andrews), asks the Land Court for a declaratory judgment pursuant to G.L. c. 231A. The complaint seeks judicial determination of the location of common boundaries between Bergerons and Andrews abutting parcels of land, located in Fitchburg, Massachusetts. To resolve this long-standing controversy, the court needs to parse the meaning of land conveyances dating back to the eighteenth century, made before the establishment of the nation.
The parties dispute the location of two boundaries on Bergerons property, the eastern boundary, which is the western boundary of Andrews property, and the southern boundary. Although the course of the southern line is agreed upon, the length of the line is disputed and cannot be made certain until the location of the eastern boundary is fixed. Thus, resolution of this case first requires the determination of the location of the eastern boundary of Bergerons property, as a result of which the terminus of the intersecting southern boundary then will be set.
On October 16, 2002 Bergeron filed a complaint for declaratory judgment pursuant to G.L. c. 231A in response to a notice earlier filed and recorded by Andrews at the Worcester North Registry of Deeds in Book 1386, Page 459. The notice (the outgrowth of a long disagreement among these neighbors chronicled below) declared that there was a controversy regarding the location of the common boundary between Andrews and Bergerons parcels of land. After service of the complaint on Andrews, he filed an answer and counterclaim on February 18, 2003; the counterclaim alleged a trespass, and presented an opposing claim for declaratory relief. Bergeron, on March 7, 2003, filed his answer to Andrews counterclaim.
As a result of the sudden death of Bergerons counsel, Stephen Campobasso, a Motion to Stay, filed on February 10, 2005, was granted February 15, 2005, allowing the proceedings to be stayed for forty-five days. Peter Campobasso, Bergerons successor counsel, filed a notice of appearance along with a Motion to Amend Complaint on July 13, 2006. This motion went unopposed, and was allowed on July 14, 2006. The amended complaint, filed July 14, 2006, added, in addition to the request for declaratory relief noted in the original complaint, a petition to try title and a complaint to quiet title. Andrews filed an answer to the amended complaint on October 10, 2006. Bergerons answer to Andrews counterclaim was received by the court on October 23, 2006.
Several attempts by the counsel and the court to bring the parties to consensual resolution failed. The case proceeded towards trial.
On October 9, 2009, in the presence of counsel and others I took a view of the disputed boundary and the adjoining properties of the plaintiff, defendant and other abutting land. The trial took place in Boston on October 23, 2009. At trial court reporter Pamela St. Amand was sworn to transcribe the testimony and proceedings. The following individuals testified, both surveying experts: Mark Kevin Wheeler for Bergeron and James Eugene Rheault for Andrews. The exhibits in evidence, which include a wealth of agreed record title instruments and plans, are as set forth in the trial transcripts. Bergeron and Andrews also filed a Stipulation for Amended Pleadings at the time of trial on October 23, 2009 in which Bergeron withdrew his petition to try title and his complaint to quiet title while Andrews withdrew his claim for trespass. This left the request for declaratory relief as the only issue for the court to try.
At the conclusion of the taking of evidence I suspended the trial to hear closing arguments, with the benefit of posttrial briefing. Plaintiffs Post Trial Memorandum and Findings of Fact and Rulings of Law were filed on December 21, 2009 while Defendants Post-Trial Memorandum was filed on December 22, 2009 and his Findings of Fact and Rulings of Law were filed on December 31, 2009. Trial reconvened for closing arguments on March 19, 2010, after which I took the case under advisement.
On all the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument of the Plaintiffs, I now decide the case, and make the following findings of fact and rulings of law.
For the reasons given below, I find and rule that the eastern boundary of Bergerons property is the boundary as depicted on the plan introduced into evidence and described later in this decision as Ross Plan. The southern boundary of Bergerons property travels the same course as stipulated by the parties, and extends from its origin at the iron pipe located at Gibson Road a distance of roughly eight hundred and fourteen feet, also as depicted on the Ross Plan. Before judgment is to be entered, the parties will be afforded an opportunity to submit to the court a recordable plan, in accordance with the customs and practices of the surveying profession, and providing particular dimensions along the line demarcated on the Ross Plan as the eastern boundary of Bergerons Parcel.
THE BACKGROUND OF THE BOUNDARY DISPUTE
Joseph G. Bergeron, Jr. owns a parcel of land (Bergerons Parcel) located at 55 Gibson Road, Fitchburg, Worcester County, Massachusetts. The Bergeron Parcel is bordered to the north by land owned by the Richard L. Waaramaa Family Trust, to the east by land owned by Andrews, to the south by land owned by Veikko F. and Pirkko Liisa Salonen, and to the west by Gibson Road. The Bergeron Parcel is depicted on a plan of land prepared by David E. Ross & Associates titled Plan of Land in Fitchburg, Mass. Prepared for Joseph G. Bergeron, Jr. and dated April 2007 (Ross Plan). Andrews also submitted a plan showing Bergerons Parcel. This plan, prepared by Whitman & Bingham Associates, titled Plan of Land in Fitchburg, Mass. Prepared for Raymond J. Jr., & Marian C. Andrews, and dated September 25, 2009 (Whitman & Bingham Plan), comprises two sheets depicting Bergerons Parcel, the disputed boundary, and portions of Andrews parcel.
Bergeron and his then wife acquired title to the Bergeron Parcel by a deed from American Employers Insurance Company to Joseph G. Bergeron Jr. and Jodi Bergeron, dated August 8, 1984 and recorded at the Worcester North Registry of Deeds in Book 1364, Page 88. In connection with the couples divorce, there was a deed from Joseph G. Bergeron, Jr. and Jodi Bergeron to Joseph G. Bergeron, Jr., dated October 31, 1988 recorded at the Worcester North Registry of Deeds in Book 1764, Page 52.
Raymond J. Andrews, Jr. and Maryann C. Andrews own parcels of land located to the west of Pearl Hill Road, Fitchburg, Worcester County, Massachusetts (Andrews Parcel). Andrews Parcel is not depicted by metes and bounds on the plans submitted by Bergeron and Andrews, although one can infer the location of Andrews Parcel from the plans and the deed descriptions. Although the exact location of the eastern boundary to Bergerons Parcel is in dispute, it is clear that Andrews Parcel abuts this eastern boundary and is located to the east of Bergerons Parcel. A description of Andrews Parcel is also incorporated by reference in a deed from Herbert W. Andrews to Sarah E. Worster, dated August 17, 1893, and recorded in the Worcester North Registry of Deeds, Book 67, Page 85. This deed from Herbert W. Andrews to Sarah E. Worster describes the Andrews Parcel as containing thirty acres of land located on the westerly side of Pearl Hill Road and the easterly side of High Rock Branch Road. The Andrews Parcel is described in the deed as follows:
Beginning at the southeasterly corner thereof at said Pearl Hill Road and at land on A. V. Jones; thence westerly by said Jones land to said High Rock Branch Road; thence following the line of last named road in a northerly direction and bounding thereon to land of the Heirs of Freeborn Lawrence; thence easterly by last named land and land of Leander Gibson to a corner of said Gibsons land; thence northerly by said Gibsons land to land belonging to the widow of Tom Gibson; thence easterly by last named land to said Pearl Hill Road; thence southerly by last named road to land formerly of Jeremiah K. Gibson now of Stillman Hay; thence westerly and then southerly following the line of said Haynes land to said Pearl Hill Road; thence in a southerly direction on last named road to the point of beginning.
Raymond Andrews, Jr. and Maryann Andrews acquired title to the Andrews Parcel by a deed from Raymond J. Andrews, Jr. to Raymond J. Andrews, Jr. and Maryann C. Andrews, dated December 8, 1974 and recorded at the Worcester North Registry of Deeds, Book 1139, Page 492.
The common boundary in dispute is the eastern boundary of Bergerons Parcel which is also the western boundary of Andrews Parcel. The parties square off on where this boundary ought be set by the court. This boundary is located on the Ross Plan labeled as 828± As the ledge of Rocks Run. On the Whitman & Bingham Plan the disputed boundary is labeled as N29°53'54"E 746.86' (CALC) on both sheets one and two.
On July 27, 1984 Bergeron applied for a Building Permit from the City of Fitchburg to construct a single family home on his property. Along with this initial application for a building permit, Bergeron submitted a sketch of the plot plan for the new home showing the home less than fifty feet from the rear lot line, which was not in conformity with the required rear yard setback of fifty feet. Besides violating the rear yard setback, this plot plan was not prepared by a registered land surveyor and was therefore unacceptable for this purpose. Bergeron was notified of this fact by the municipality, and advised that the plot plan could not be submitted because it needed to be prepared by a registered land surveyor. Bergeron then submitted a second plot plan which showed the residence seventy feet from the rear property line, but the plot plan again was not prepared by a registered land surveyor. This time, however, the Building Inspector allowed construction to start, with the permit being issued on the condition that Bergeron submit a plan prepared by a registered land surveyor. On November 2, 1984 Bergeron submitted a plan of land titled, Sketch of Land Prepared for Joseph Bergeron, Fitchburg, MA, dated November 2, 1984 and completed by land surveyor Brian M. Szoc (Szoc Plan). After submitting the Szoc Plan, Bergerons building permit was revoked by the Fitchburg Superintendent of Public Buildings. He wrote a letter dated November 6, 1984 in which he noted that while initially the building application was approved and construction was allowed to begin, according to the recently submitted Szoc Plan the house and the accessory building would not conform to the rear yard setback.
Bergeron then hired William R. Bingham & Associates to conduct a survey of his property. Bergeron submitted to the Building Inspector a previous plan done for a Joseph R. Madonia, as it showed the same parcel of land as Bergerons Parcel. This plan was identified as having been prepared by William R. Bingham & Associates and showed the house and accessory building as satisfying the rear yard setback. The plan is titled, Subdivision Sketches of Land in Fitchburg, Mass. Made For Joseph R. Madonia and dated January 29, 1971. Bergeron also submitted a second plan, titled Building Permit Plan Land in Fitchburg, Mass. Owned by Joseph G. & Jodi Bergeron, and dated December 21, 1984, showing thirty feet from the house to the edge of the cliff, but sixty feet from the house to the property line. On the basis of these plans, Bergerons building permit was reinstated on December 11, 1984. Bergeron then began construction on his property. (However, William R. Bingham & Associates later, on May 4, 1987, sent a letter to the Building Commissioner stating that Bingham & Associates did not prepare the plan titled, Subdivision Sketches of Land in Fitchburg, Mass. Made For Joseph R. Madonia, dated January 29, 1971, and submitted by Bergeron.)
On January 2, 1985 Andrews, through his attorney, corresponded with the Building Inspector for the City of Fitchburg stating there was a conflict between Andrews deed and Bergerons deed regarding the location of a common boundary and that this boundary line was in dispute. Subsequently, on March 8, 1985 Andrews recorded a Notice (Notice) at the Worcester North Registry of Deeds in Book 1386, Page 459 stating that there was a controversy between the parties regarding the location of their common boundary. The Notice was dated March 4, 1985.
At some point thereafter, although the exact time period is unknown, construction stopped on the Bergeron property for over six months, causing the building permit to lapse. The building permit could not be reinstated until Bergeron submitted a certified plan by a registered surveyor showing that the house and accessory building conformed to the rear yard setback. Bergeron was notified of this through a letter dated September 5, 1986 from the Building Commissioner. Bergeron appealed this decision to the Fitchburg Zoning Board of Appeals on October 14, 1986. While Bergerons appeal was under review, Bergeron resumed construction on his property and received a cease and desist order from the Building Commissioner requesting him to stop construction on his house. Bergeron personally was served with a copy of the cease and desist order on February 24, 1987. Having failed to stop construction on his house, the City of Fitchburg, on March 27, 1987, filed a complaint against Bergeron in the Housing Court in Worcester, Massachusetts alleging that Bergeron had no building permit which would allow him to continue construction on his home. [Note 1]
On May 20, 1987 the Fitchburg Zoning Board of Appeals (Board) denied Bergerons appeal, finding that the petitioners knew or should have known [from the numerous surveys conducted, one of which showed that the deed description did not close, that] there were questions concerning the rear yard boundary that required the evaluation of a registered surveyor and compliance with the rear boundary prior to continuation with the work. The Board found that Bergeron created the hardship on his property and therefore did not satisfy the requirements for a variance. The Board also found that Bergerons building application had expired on April 11, 1985 and an extension in writing was never granted.
After several years of dispute, Bergeron applied for and received a second building permit from the Building Inspector on September 14, 1987 to complete the construction of the single family dwelling, which had commenced in 1984. Upon completion of construction Bergeron obtained a certificate of occupancy on November 30, 1988. Bergeron then filed this complaint on October 16, 2002, after discovering that Andrews had recorded the Notice with the Registry in 1985, announcing the existence of controversy concerning the common boundary between Bergerons Parcel and Andrews Parcel.
THE BOUNDARY DISPUTE
I. The Eastern Boundary of Bergerons Parcel Is as Depicted on the Ross Plan.
Bergerons Parcel traces its title back to a larger parcel of land partitioned in 1769 to John Putnam, Gentleman. The partition instrument, dated June 15, 1769, is recorded in the Worcester North Registry in Book 61, Page 133. This is the seminal instrument on which resolution of much of the controversy turns. The original parcel of land was 84 acres with what later comes down as Bergerons Property comprising 11.65 acres of the original property. Although Bergerons Parcel is only a portion of the original partition land, the eastern boundary of Bergerons Parcel today, the boundary line in dispute in this litigation, dates to this first division of land in the area, and the currently disputed line is a section of the original eastern boundary established at the time of the first partition of the land. The 1769 partition describes the eastern boundary of the John Putnam, Gentleman parcel as from a stake and stones by the road or highway from thence northerly to a [indecipherable] standing at the southerly end of the ledge of rocks and so as the ledge of rocks runs about ninety four poles till it comes halfway across the said land from the south side of the said land to the North side of said land to a stake and stones.
The Andrews Parcel, which abuts the eastern boundary of Bergerons Parcel, also traces its title back to the same 1769 partition as the Bergeron property. As with Bergerons property, the western boundary of Andrews property now at issue in this case is a boundary that dates to the original partition of this land. The description in the 1769 partition of the western boundary of what now is the Andrews property, that deeded to John Putnam, Jr., mentions the same ledge of rocks as mentioned in the conveyance to John Putnam, Gentleman. The partition states, Thence runs southerly as the ledge of rocks runs about 125 poles till it comes to the southerly side of said land to a stake and stones. The common boundary between Bergerons and Andrews properties is denoted by a natural monument, the ledge of rocks. The parties, however, dispute the meaning of the reference to, and the exact location of, the ledge of rocks. [Note 2]
Bergeron turns to well-accepted canons for the interpretation of deeds. He argues that by following the hierarchy of priorities for establishing boundaries, the ledge of rocks is the boundary line. In the hierarchy of priorities, monuments control over courses and distances and courses and distances control over statements of area. Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Statements of area are of low preference, and are rarely used as a controlling factor. Id. Bergeron argues that the ledge of rocks should be the eastern boundary of Bergerons Parcel because the 1769 partition describes the boundary by reference to a natural monument that can be located on the ground; the Ross Plan depicts, at least after a fashion, the location of the ledge of rocks.
Andrews, however, argues that the ledge of rocks should not be the controlling monument. Andrews states that the exact location of the ledge of rock cannot be determined because a ledge is both a surface and subsurface structure that includes both a ledge cliff and a ledge shelf. This, Andrews argues, gives the ledge dimension, a width (in other words), so that the ledge possesses both an eastern and a western boundary, and therefore cannot be located as a line on the ground, marking the division of two holdings. Given this view, Andrews would have the court dismiss the ledge of rocks as the boundary line. Instead, Andrews argues for a straight line between the stipulated northeastern corner of Bergerons Parcel and the southeastern corner of Bergerons property, a line which Andrews locates by metes and bounds. The crux of Andrews position is that metes and bounds descriptions should be used in determining Bergerons property boundaries, and a straight line ought be settled upon by the court, because the exact location of the ledge of rocks cannot be determined.
Based on this reasoning, Andrews argues that the southern boundary of Bergerons Property should be established with a length of 620 feet off the iron pipe at Gibson Road; the parties agree this marker is the starting point for this line. This distance is included in Bergerons deed, as well as the deed to Bergerons abutters to the South, and can be traced to a survey performed by C. E. Davis in 1926. Andrews then argues that a straight line should be drawn between the southeastern corner, established in this way, and the agreed northeastern corner of Bergerons property. This straight line, Andrews contends, should become the eastern boundary.
The decision in this case revolves on the interpretation of the call as the ledge of rocks runs in the 1769 partition instrument. The general and paramount principle governing the interpretation of deeds is to give effect to the intent of the parties. See Morse v. Chase, 305 Mass. 504 , 507 (1940). The intent of the parties can be determined from the words of the deeds interpreted in light of all the facts known to the parties at the time the deed was executed. See e.g., Ellis v. Wingate, 338 Mass. 481 (1959). When monuments are part of the description, parol evidence is perfectly competent to fix, identify, or locate any boundary or local object or mark called for by the deed. White v. Bliss, 8 Cush. 510 ( 62 Mass. 510 ), 512 (1851). Generally, monuments control over courses and distances and courses and distances control over statements of area. Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Statements of area are rarely used as a controlling factor as monuments, courses, and distances are found to be more representative of the intent of the parties. Id.; Morse, 305 Mass. at 507. If the location of the monument, however, cannot be established by evidence, the measurements and other provisions of the deed will control. See Wilson v. Hildreth, 118 Mass. 578 , 582 (1875). These rules of construction, however, are not to be followed if the result produced will be inconsistent with the intent of the parties. Morse, 305 Mass. at 507.
This decision is particularly difficult because of the passage of time from the controlling division of the land, and the absence of evidence contemporaneous with those seminal conveyances. Beyond the words used in the recorded instrument, there is no indication in the evidence as to what the parties to the 1769 partition meant by as the ledge of rocks runs, nor is there any indication as to what the topography and terrain of this area was like when the land was partitioned. I did have the chance on the view I took to perambulate a good bit of the area where the line in question runs. It is steep, hilly, partially to (in places) heavily vegetated, and, by outward appearances, largely untouched by human hands, evidently still in its raw condition. There are abundant outcroppings of rock and apparent ledge arrayed across many parts of the likeliest areas where the original division line was set. There certainly could have been a change in the terrain of the land over the past two hundred years, and it may be that, owing to erosion, movement of earth, growth or retraction of brush and trees, and other physical changes possible over more than two centuries, what was in 1769 an obvious and sharp line of ledge has become obscured, or that a new line may have become more prominent. I have no pictures, plans, or physical description from the relevant time to which I can turn for guidance. I can only decide this case on the evidence before me, and it is really not much more than the words of the conveyance itself. Because I must base my decision on what is in the record, in determining where the line ought to go based on the recorded instruments, I consider which of the two positions advocated for by the parties better fits the evidence I have. I find more persuasive and convincing the position set forth by Bergeron, which would have me follow the apparent line of ledge coursing through the vicinity of the original partition division now in dispute, and I reject Andrews straight line approach.
The intent of the parties when partitioning this land in 1769 was to create a boundary that followed the ledge of rocks. Had the parties intended to create a straight line they would have done so. This is evident from the 1769 partition itself. In all of the other boundary descriptions the parties either used references to land of another or distances. Nowhere else is a natural monument described as the course for a boundary line.
Notably, however, in describing the eastern boundary of what would later become part of Bergerons property and the western boundary of what would later become part of Andrews property, the parties strayed from their practice elsewhere of describing boundaries with either references to land of another or to distances. In this particular instance, the parties specifically chose to use a natural geological monument as the course of the line, describing the course as as the ledge of rocks runs. This is a deliberately chosen description which imparts intention that something less unbending than a straight line mark the property boundary. If the parties had not intended the boundary to follow the course of the ledge of rocks, the parties could have said as much, as they did throughout the rest of the partition. For instance, the parties could have described the boundary as thence northerly about 95 poles till it comes halfway across said land from the south side of said land to the north side of said land to a stake and stones, essentially drawing a straight line from the southern boundary at the stake and stones to the northern boundary of Peter Norse. The parties, however, did not do this and instead purposefully inserted as the ledge of rocks runs. By creating a line that follows the path of the ledge, it was the intent of the parties to have a somewhat more meandering line, not an entirely straight line.
Additionally, our cases dictate that as the ledge of rocks runs is the controlling course. The only authority I have under our decisional law to draw a straight line between two points is when there are two monuments located apart on the ground with no described course in between, or when the boundary is set so it runs by the line of the land of another. Clark v. Burt, 4 Cush. 396 ( 58 Mass. 396 ), 399 (1849) (when there are two termini and no monuments explaining the course of the line connecting them, it is a straight line between the two termini, but when there are monuments that explain the course of the line the straight line yields to the referenced monuments); Allen v. Kingsbury, 16 Pick. 235 ( 33 Mass. 235 ) (1834) (when a boundary line is described as running from one monument to another it is a straight line unless otherwise described differently). When a deed states, thence bounded by land of A.B. the land of A.B. controls the course of the line, but if the deed states, by the line of the heirs of A.B. it is an imaginary line that cannot be controlling and requires a straight line. Clark v. Burt, 4 Cush. 396 ( 58 Mass. 396 ), 399 (1849); Crafts v. Hibbard, 4 Met. 438 ( 45 Mass. 438 ) (1842) (imaginary line is one that cannot be fixed or made certain).
Here, however, the monument is not described as by land of another, nor does the monument lack a descriptive course between two located monuments. On the contrary, the 1769 partition states that this course commences from a given monument, standing at the southerly end of the ledge of rocks and so as the ledge of rocks runs, to another set monument, a stake and stones. This describes the course of the line as it is to run between two termini. Even though it may be difficult to determine the exact location of the ledge of rock with full precision, there is no lawful basis to disregard this clearly intended monumentation.
Part of the dispute as to the location of the ledge of rocks stems from the fact that both Wheeler and Rheault testified that the ledge does not begin until five hundred to six hundred feet south of the stake and stones on brow of Pearl Hill, and continues south of Bergerons southern boundary line for another one hundred to two hundred feet. Andrews expert also suggests that there is another ledge of rock to the south of Bergerons property, located on the Whitman & Bingham Plan and labeled ledge of rocks running north/south, which could be the ledge of rocks described in the 1769 partition. The partition, referencing Andrews Parcel, as deeded to John Putnam, Jr., states in pertinent part,:
North by land set off to said Small about one hundred and sixty poles to a stake and stones on the brow of Pearl Hill above mentioned and then runs southerly as the ledge of rocks runs about one hundred twenty-five poles till it comes to the southerly side of said land to a stake and stones.
In reference to Bergerons parcel, deeded to John Putnam, Gentleman, the partition states in pertinent part:
Beginning at a white pine stump at the southwest corner of said land from thence running East 29' South one hundred and seventy eight poles by common land to a stake and stones by the road or highway from thence northerly to a [indecipherable] standing at the southerly end of the ledge of rocks and so as the ledge of rocks runs about ninety four poles till it comes halfway across the said land from the South side of said land to the North side of said land to a stake and stones.
It is undisputed that the ledge of rocks located on the ground in both surveys submitted by the parties does not exactly correspond with the partitions description. Undoubtedly, the current topography of the land will not yield a perfect match to the descriptions created in the 1769 partition, because of erosion, other natural occurrences, and other intervening changes in the appearance of the land. Even if the lands topography has not significantly changed over the past two hundred and fifty years, we cannot know with complete certainty what the terrain was like in 1769, when the land was partitioned. However, while I acknowledge that the ledge of rock as depicted on the two survey plans submitted by the parties well may not match exactly the line intended by partitions descriptions, I am obliged to do the best I can to set that line given the evidence I have. I find that the ledge of rock bordering Bergerons eastern boundary and depicted on the Ross Plan is the same ledge of rock as described in the 1769 partition.
A. Determining the Location of the Ledge
Bergerons depiction of the course of the ledge of rocks, as illustrated on the Ross Plan, is based on Wheelers definition of ledge and brow of Pearl Hill. Wheeler states that he interprets ledge of rock to mean a horizontal shelf-like projection, as in the side of a cliff or on a mountain, over a steep or precipice. Brow is defined by Wheeler as the edge of a steep place. Quoting from Websters Dictionary and Oxfords Dictionary respectively, Wheeler states that brow is defined as [t]he projection, upper part or margin of a steep place, the highest margin of the height as viewed in profile, a steel hill or slope and as [t]he projection, edge of a cliff or hill; standing over a precipice or steep. According to Wheeler, brow, however, is not always synonymous with the top of a hill or ledge. [Note 3] In this case, Wheeler does not consider brow of Pearl Hill or brow of the ledge of rocks to correlate to the top of either Pearl Hill or the ledge.
Andrews surveyor, Rheault, however, disagrees with Wheelers definition of ledge and brow. Rheault testified that as he walked the property he was unable to determine the exact location of as the ledge of rocks runs. Rheault believes that there is a width to the ledge depicted by the most easterly portion of the ledge, which Rheault defines as the bottom of the ledge, and the most westerly portion of the ledge, which Rheault defines as the Gibson Road limit of the ledge. This gives the ledge both a surface and subsurface, Rheault argues, and because the natural monument has a width, the exact location of as the ledge of rocks runs cannot be determined. Therefore, Rheault argues, distances should be used in determining the boundaries of Bergerons property. According to the hierarchy of priorities, when monuments cannot be located, measurements and other provisions of the deed will control. See Wilson v. Hildreth, 118 Mass. 578 , 582 (1875); see also Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004).
I am persuaded by Bergerons surveors definition of ledge and brow. I find it is unlikely the parties to the partition meant ledge of rocks as including both the surface and subsurface structure. The point of describing a boundary as as the ledge of rocks runs is to create a visible, discernable monument. Intending the ledge to have an appreciable width would contradict this purpose, which was to establish a line of division between ownerships, using a natural feature of the land to monument, with a reasonable degree of specificity, a certain and permanent point where the property holdings divided.
B. Location of the Stake and Stones By Road or Highway
Based on the testimony of the witnesses and the exhibits submitted by the parties, I can determine the location of the stake and stones by the road or highway, described in the 1769 partition. Wheeler testifies that, in reviewing earlier surveyors field work in this area, his company located a pile of stones with an iron pipe by the High Rock Branch Extension. Located 25.7 feet westerly from there, Wheeler stated there is a second pile of stones. Wheelers testimony can be tied into the Whitman & Bingham Plan submitted by Andrews. On this plan there is located in the southern portion of the plan, in the vicinity of the High Rock Branch Extension, marked cart path, and the southern point of the eastern boundary of a parcel owned by Kenneth M. and Maryann M. Andrews Nominee Trust, a measured line running east to west, marking part of the southern boundary of the property owned by the trust. It has, on the plan, a distance indicated of approximately 25 feet (22.5 feet by calc) and is adjacent to the High Rock Branch Extension, but there are no marked stakes or stones on the Whitman & Bingham Plan. [Note 4] Using the depiction on the Whitman & Bingham Plan, and interpreting it aided by the testimony from Wheeler, it is clear that the two sets of stakes and stones testified to by Wheeler correspond to the eastern and western end points on the line which he measured at 25.7 feet, because both are located by High Rock Branch Extension and are approximately 22 to 25 feet apart, as the Whitman & Bingham Plan shows it. It is a fair inference, which I draw, that one of these piles of stones to which Wheeler refers, placed by predecessor surveyor(s), including perhaps Davis, is in the location of the original monument employed in the 1769 partition, the stake and stones by the road or highway.
When this evidence is considered in light of exhibit 71-3, an explanatory sketch prepared by Wheeler to depict in schematic form the physical relationships of the parcels established by the descriptions in the early land divisions, it seems most logical to conclude that the easternmost of these two stone pile monuments testified to by Wheeler marks the location of the stake and stones by the road or highway mentioned in the 1769 partition. The southwestern portion of the 71-3 sketch depicts two pillars of stones, one by a road. This area corresponds to the area depicted on the southern end of the Whitman & Bingham plan and testified to by Wheeler. The note on the 71-3 sketch states that the easternmost pillar of stones is the stake and stones identified as being by a road or highway in book 61-133 (3), which is a reference to the relevant part of the 1769 partitions description.
Considering all of the testimony and evidence before me, I come to the finding that the location of the stake and stones by the road or highway, as described in the 1769 partition, is located on the Whitman & Bingham Plan at the easternmost point of the line marked 25 feet by deed. This is the southeast corner of the land shown on that plan as the Kenneth M. and Maryann M. Andrews Nominee Trust property.
Knowing that this is the location of the 1769 stake and stones by the road or highway monument helps position, to some degree, the starting point from which our disputed line, the as the ledge of rocks runs course, takes off at its southern beginning. The partition description proceeds from the stake and stones by the road or highway in a northerly direction for an undescribed distance to a monument of some sort standing at the southerly end of the ledge of rocks. The parties are unable to agree on the wording of the description for what the monument is that was in 1769 standing at the southern end of the ledge of rocks. The reference likely is to a tree of some sort; the handwriting looks to be to a tree marked, but it truly is far from legible. If that point was monumented in 1769 by a marked tree, it probably no longer exists. And because the northerly run from the stake and stone by the road or highway to the now indeterminate monument marking the southern end of the ledge lacks any indicated distance in the 1769 partition, this course is of only limited utility in fixing the starting point of the run of ledge of rocks about which the parties in the current litigation disagree. But a line extending roughly northerly from the southeastern corner of the Kenneth M. and Maryann M. Andrews Nominee Trust property puts us right on track for a direct intersection with the most prominently placed ledge present today, that shown as the location of the disputed boundary line on the Ross Plan. I find there is a substantial consistency between the eastern boundary of Bergerons property as depicted on the Ross Plan, and the 1769 partition description.
I find and rule that the eastern boundary of Bergerons property is the boundary as depicted on the Ross Plan. As for the southern boundary of Bergerons property, it travels the same course as stipulated by the parties, and as shown on the Ross Plan, extending (to meet the eastern Bergeron boundary) at a point roughly eight hundred and fourteen feet from the iron pipe at the sideline of Gibson Road, also as depicted on the Ross Plan.
Before judgment enters, I wish to afford the parties the opportunity to confer on the form which the courts judgment should take, so as best to settle, of record, the disputed boundaries determined by my decision. I will direct entry of a judgment which fixes those boundaries as they appear on the Ross Plan, unless, in response to a proper request, I receive a proposal to prepare promptly for the court a more detailed plan, entirely consistent with the Ross Plan, to include more specific measurements at more compact intervals along the ledge of rocks, and possibly also showing setoffs from that measured line to the nearest improvements, which lie above the ledge of rocks on the Bergeron Parcel. If the parties decline this opportunity, then judgment will enter which simply employs the Ross Plan to describe the adjudicated line.
I request counsel to confer, and, within thirty days, to submit to the court a joint written report setting out the parties joint or several view(s) on this question. If the parties agree that no new plan will be prepared, they are to submit one or two versions of what form the judgment ought to take. If there is a request for a new plan to be prepared, then the parties ought to advise the court in a comprehensive way about how they would have the plan prepared--who will do the work and who will bear its expense, and how long it will take to finish and submit. I will respond to the report with appropriate instructions, without further hearing unless otherwise indicated.
This litigation merits a final word about the commitment with which it has been waged. The underlying dispute between these two men extends back more than a quarter century. The court on multiple occasions explored the possibility of settlement, to no avail. By the parties stipulation, the question they have left to the court for decision is the location on the ground of a property boundary set in 1769.
When I say on the ground I do not do justice to what the evidence and the extensive view I took reveal about the character of the land through which this contested property line runs. It is very steep, unimproved (and likely unimprovable) land riddled with abundant large rocks, veins of ledge, some trees, dense brush in places, and poison ivy throughout. The view I took was challenging because of the terrain and the at times impenetrable growth on the side of this sharp incline. The fight here is about whether the line should be positioned somewhat up or somewhat down on the side of this daunting hill. It is hard to imagine how the area in dispute would by itself have any utility to anyone, except for the significance of the lines location to the zoning compliance issues generated by Bergerons determination to build his house close to the edge of his property. Given the size of his lot, he likely chose this position for his house to maximize the impressive view it would garner. Andrews parcel also is very large, and his own residence is nowhere near the disputed area. His victory in this case would have given him title a bit further up the side of the rocky hill, and some possible ammunition in challenging Bergerons houses zoning status, a matter in no manner before this court, and into which I determinedly will not go.
When the parties to the 1769 partition divvied up the land, these eighteenth century farmers and landowners would not have had the slightest use for the part of it that now is in dispute. Its steepness, rocky character, and general inhospitability to cultivation or other productive use would have been obvious. It may well be that they chose the area they did for the boundary between the new lots they created just because the area was of no value and of no possible concern to them. These family members would have considered the current twenty first-century dispute--about who owns a bit more or a bit less up or down the side of a steep and useless hillside--astounding.
Gordon H. Piper
Dated: July 19, 2011.
[Note 1] The docket number for the complaint filed by Roland Caron as Building Commissioner of the City of Fitchburg in the Worcester Housing Court is 87-CV-0118.
[Note 2] The parties are for all practical purposes focused on this one pivotal issue. Despite the long chains of title which have come down to the plaintiff and defendant, they do not appear to disagree that it is the meaning of the 1769 partition instrument, to the extent it establishes the common boundary between their two holdings, which the court must settle to end their dispute. That is the basis on which they have tried this case to the court. They are in apparent accord about the location of their other corners, and the lines connecting them, save only for the eastern boundary of Bergerons Parcel, and the resultant adjustment to the length of the agreed course of his southern line.
[Note 3] Wheeler also considers crest of a hill or ledge to be similar to the top of a hill or ledge. He testified that [the crest of the hill] would be more the top of . . . [the] hill before it starts to gradually slope down to a pile of stones on the edge of the cliff.
[Note 4] The Ross Plan does not extend to the area surrounding this stake and stones referenced in the 1769 partition.