MISC 09-401674

January 26, 2011


Long, J.



The parties to this case are neighbors in Pepperell who cannot agree on the boundary line between their properties. The plaintiffs are Peter and Catherine Ouellette who live at 44 Wheeler Street, and the defendant is John McInerney who lives at 46 Wheeler Street and whose land borders the Ouellettes’ on two sides — roughly speaking, its east and south. [Note 1] A trial was held before me, jury-waived. The Ouellettes were represented by counsel. Mr. McInerney represented himself, pro se. The Ouellettes had a survey performed and their surveyor (David Aho) testified at trial. Mr. McInerney relied on an old survey and his expert witness (who neither visited nor surveyed the properties himself) simply testified to his interpretation of that older one.

Both the Ouellette and McInerney properties were once part of a larger parcel owned by Duane McDuffee, from whom the critical property descriptions originated. As more fully set forth below, based on those descriptions and the markers found at the site, my assessment of the credibility, weight and inferences to be drawn from the evidence (particularly the meaning, location, and accuracy of those markers as the called-for monuments ) and the usual interpretative hierarchies employed to resolve inconsistencies, I find and rule that the boundary lines at issue (the ones between the parties’ properties, and only those lines) [Note 2] are as set forth in the Patriot Land Surveying LLC plan (Trial Ex. 1) (the “Patriot Land plan”).

Facts and Analysis

The location of a disputed boundary line is a question of fact to be determined “on all the evidence, including the various surveys and plans, and the actual occupation and use[s] by the parties…” Hurlbert Rogers Machinery Co. v. Boston & Maine Railroad, 235 Mass. 402 , 403 (1920). Where, as here, deed construction is a 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.

Pauli 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 3] 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 (“[O]ne 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”).

The Ouellette parcel, created by Mr. McDuffee out of his original large parcel in a June 30, 1953 conveyance, has had a consistent deed description from that time to this through all intervening conveyances. [Note 4] Rectangular in shape, with each of its boundaries a straight line, [Note 5] it is described as starting at a “stake and stones” on Wheeler Street, running 200’ east to an iron pipe, thence 100’ north from that point to another iron pipe, then 200’ west to a third iron pipe on Wheeler Street, and finally 100’ south along Wheeler Street to close at the “stake and stones” at the beginning. It is undisputed that it was formerly surrounded (on all but the Wheeler Street side) by Mr. McDuffee’s other property [Note 6] and now, after subsequent divisions and conveyances of the McDuffee land, is bounded to the east and south by what has become Mr. McInerney’s.

Neither of the Wheeler Street monuments called for in the Ouellette parcel deeds has survived (the “stake and stones” at the southwest corner and the “iron pipe” at the northwest), although a 1985 survey claimed to find two iron bars in approximately the correct places. Trial Ex. 2 (Thomas F. Moran, Inc., Plan of Lots, Land of Bruce Wetherbee, Milton & Catherine Wetherbee, and Cornerstone Realty Trust (Apr. 16, 1985), hereafter referenced as the “Moran plan”). The correct location of these two front corners, however, is not in serious dispute. Mr. McDuffee created two lots in 1953 — the Ouellette parcel with 100’ along Wheeler Street and what was then the Riley parcel with 390’ on Wheeler Street to its south. [Note 7] Measuring 390’ north along Wheeler Street from the southern edge of the Riley parcel gives the Ouellettes’ southwest corner, and 100’ along Wheeler Street past that point gives the northwest corner, both in the locations indicated on the Patriot Land plan. The Moran plan places those corners in substantially those same places. [Note 8] I adopt the locations shown on the Patriot Land plan since it is the most recent and, having heard the testimony of the surveyor who created it, I am persuaded that it is the more accurate of the two.

The real controversy between the parties concerns the proper location of the Ouellettes’ back corners — those at the southeast and northeast. The deeds say that they are each 200’ from their corresponding front corners (the southwest and northwest) and 100’ from each other (i.e., a rectangle), with both marked by iron pipes. There are two iron bars at almost exactly the correct 200’ distance eastward from the road (202.36’ and 201.12’ respectively) and almost exactly the correct 100’ distance from each other (96.42’). [Note 9] See Trial Exs. 1 & 2. The Ouellettes say that these bars accurately locate the back corners. Mr. McInerney says that they do not and contends that the corners are as shown on the Moran Plan. Who is right?

The Moran plan, insofar as it purports to locate the boundaries of the Ouellette parcel, relies chiefly, and apparently solely, [Note 10] on the precision of the measurement of the length of the back boundary line in the Riley parcel deed — a deed which pre-dates the creation of the Ouellette parcel by six months and thus, in Mr. McInerney’s words, merits “senior rights.” [Note 11] Defendant’s Post-Hearing Memo at 4. That deed measures the back boundary of the Riley parcel as 390’, the same length as its front measurement which the parties agree sets the southwest corner of the Ouellette lot on Wheeler Street. See discussion above. Using that 390’ length puts the Ouellettes’ southeast and northeast corners 17’ further north than the locations of the iron bars.

As noted above, when both monuments and distances are described in a deed, monuments control. Pauli, 62 Mass. App. Ct. at 680. Both the Riley and Ouellette (then Nazarro) deeds describe the relevant corners as marked with iron pipes. If the existing iron bars are either the same as those described in the deeds or located in the same places, the matter is settled; the Patriot Land survey is correct and the Moran plan is wrong with respect to the relevant boundary lines. The ultimate question can thus be simply put. Does the 17’ difference destroy the credibility of the iron bars’ locations, or do the facts that those bars exist, have no appearance of having ever been disturbed, and there are no other iron bars in the relevant areas, establish their reliability? Does the existing line of occupation, particularly the location of the driveway on the Ouellette property (which otherwise would be partly on the abutting lot), give further corroboration to the accuracy of the iron bars’ placement? Having heard all the evidence, having examined photographs of the iron bars and listened to the testimony regarding their physical and undisturbed state, [Note 12] having noted the approximate alignment of the two “Ouellette” bars with a bar at the stone wall marking the southern edge of the Riley parcel (presumably marking the southwest corner of that parcel since it is approximately 200’ from the road), [Note 13] having noted the placement of the “Ouellette” bars almost exactly 200 feet from the roadway and nearly 100’ from each other (96.42’, a minor difference explainable by the woodland nature and topography of the site which can lead to survey variation), and in light of the fact that there are no other iron bars, pipes or markers of any kind anywhere near the relevant areas, I find and rule that the iron bars at the back of the Ouellette lot accurately mark the northeast and southeast corners of that lot and that the iron bars set by Mr. Aho in connection with the Patriot Land survey accurately marks the lot’s northwest and southwest corners. [Note 14]


For the foregoing reasons, I find and rule that the boundary lines between the Ouellette and McInerney properties are the lines as shown on the Patriot Land plan (Trial Ex. 1).

Now that the boundary line issues have been resolved, the parties’ trespass and damage claims remain for resolution. See Notice of Docket Entry (Jul. 15, 2009). The parties shall promptly contact the session clerk, Mr. Scott Smith, to inform him if they wish to pursue those claims. If not, judgment shall enter. If so, a status conference shall be set to discuss and determine what further discovery, if any, is necessary to address those claims and what events and schedule are appropriate to set for their resolution.


Keith C. Long, Justice

Dated: 26 January 2011


[Note 1] Whenever this Decision refers to a direction — north, east, south, west, northeast, northwest, southeast or southwest — it does so on the basis (not entirely accurate, but generally so) that Wheeler Street runs north and south, with the Ouellette and McInerney properties on the east side of the street.

[Note 2] The Ouellettes have a neighbor on the northern side of their property who was not a party to this case. My rulings thus cannot, and do not, bind that neighbor nor adjudicate the location of that boundary line.

[Note 3] An exception to this is when the grantor later acquires the additional property and the doctrine of estoppel by deed comes into play. “Estoppel by deed occurs when…a grantor conveys property by deed which, unknown to the grantee, the grantor does not own at the time of the conveyance, but which the grantor later acquires. In such a case, the grantor (and anyone claiming under him) is estopped from asserting against the grantee a claim of title to the property conveyed.” Zayka v. Giambro, 32 Mass. App. Ct. 748 , 751 (1992) (internal citations omitted). There are also instances where the totality of the evidence shows that the earlier description was erroneous and the later ones correct.

[Note 4] I call it the Ouellette parcel for ease of reference since they are its current owners and because its deed description and boundaries have remained constant from its original conveyance from Mr. McDuffee to Angelo and Mary Nazzaro (Jun. 30, 1953) through its many transfers since. For the particulars of these transfers see Post-Hearing Memorandum of the Plaintiffs, Peter Ouellette and Catherine Ouellette at 4-10 (Feb. 16, 2010) (hereafter, “Plaintiffs’ Post-Hearing Memo”).

[Note 5] See 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”).

[Note 6] For a brief few months the land immediately to the south of the Ouellette parcel was owned by Roland and Ruth Riley, who acquired it from Mr. McDuffee in March 1953 and then deeded it back to him in November of that same year. The reasons for this transfer back and forth are not explained in the record.

[Note 7] That 390’ went to the southernmost point on Wheeler Street of the original McDuffee parcel, to “a corner of land now or formerly of John Desmarais, Jr.” Deed, Duane McDuffee to Roland Riley and Ruth Riley (Mar. 21, 1953) (“the Riley parcel”). See Plaintiffs’ Post-Hearing Memo at 6-7. There is a stone wall at that boundary. See discussion below.

[Note 8] Mr. McInerney contends that the Moran plan accurately places the boundaries of the Ouellette lot, shown on that plan as the property of its then-owners Kenneth & Roxanne Peroni. [Post-Hearing] Arguments of John Christopher McInerney at 13 (Jan. 13, 2010) (“Defendant’s Post-Hearing Memo”).

[Note 9] The minor difference between the 202.36’/201.12’ measurements and 200’ is likely due to changes to the edge of Wheeler Street (or, perhaps more accurately, to the edge as maintained) over time — changes that would also explain the current absence of the iron bars (and, before them, the “stake and stones”) that previously were set where the lot sidelines met the road. The minor difference between the 96.42’ measurement and 100’ is likely due to survey variations attributable to the nature of the topography (woodlands and hills). As noted above, verified monuments control over distance descriptions in a deed. Pauli, 62 Mass. App. Ct. at 680.

[Note 10] There was no testimony from the surveyor who created the Moran plan (Earle Soper), only from another member of the T.F. Moran firm (Hans-Georg Mertsch) whose testimony was based solely on his reading of the various deeds and his interpretation of the Moran plan in light of those deeds. Mr. Mertsch had no personal knowledge of the site (he neither visited nor surveyed it himself) and no personal knowledge of the creation of the Moran plan. Importantly, Mr. Mertsch had no personal knowledge of why Mr. Soper chose to disregard the two iron bars he found at the back of the Ouellette parcel, both of which are noted on the Moran plan. See Trial Ex. 2. Perhaps just as importantly, Mr. Mertsch also had no knowledge of what bias may have crept into the Moran plan arising from its need to lay out a conforming and topographically practicable subdivision for its clients to market. See id.

[Note 11] Technically this locates only the southeast corner of the Ouellette parcel, leaving the northeast corner to be derived by drawing a line 100’ from the southeast corner and seeing where it intersects with a 200’ line from the streetside northwest corner (the measurements set forth in the Ouellette parcel deeds).

[Note 12] The fact that none of the bars is identical in shape with any of the others is not significant. They are each iron bars of the type used by surveyors, who likely used the materials they had at hand.

[Note 13] The alignment is not precisely exact (i.e. the three iron bars are not on a straight line with each other) (see Trial Ex. 1) because Wheeler Street (from which the 200’ depth of both the Ouellette and Riley parcels is measured) is slightly curved (see Trial Ex. 2).

[Note 14] I reject Mr. McInerney’s contention that the Moran plan in any way binds or estops the Ouellettes’ ability to challenge the external boundary lines it depicts. First, it is merely an ANR plan by a predecessor in title to Mr. McInerney , not a court order or judgment. Second, there was no evidence that the Ouellettes’ predecessors were ever notified of its creation or recording or were given any opportunity to comment upon or challenge its contents. Significantly, none of the subsequent deeds for the Ouellette parcel either adopts it or even acknowledges its existence. Third, that plan, in and of itself, can neither establish nor change the legal boundaries between the landowner who created it and the neighboring properties. It can only establish the internal boundaries of the property it divided.