GUARANTEED BUILDERS AND DEVELOPERS, INC. vs. MICHAEL NELSON [Note 1]

Plaintiff filed its unverified complaint on January 15, 2009, pursuant to the provisions of G. L. c. 240, § 1-5, seeking to quiet title to property located on Shore Road, Douglas, Massachusetts (the “Disputed Parcel”). [Note 2] [Note 3] A case management conference was held on June 19, 2009. On July 17, 2009, Defendant filed his Answer to the Amended Complaint.

Defendant filed his Motion for Summary Judgment on July 29, 2011, together with supporting memorandum, Statement of Undisputed Material Facts, Opinion as to Title, and Affidavit of Ernest J. Lalumiere. On August 30, 2011, Plaintiff filed its Opposition to summary judgment motion, together with supporting memorandum and Appendix containing Affidavits of Louis Tusino, Tracy Sharkey and Paul J. Coutu. Defendant filed his Supplemental Response on September 12, 2011, together with Motion to Strike the Affidavit of Louis C. Tusino. A hearing was held on all motions on September 21, 2011, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. By deed dated October 23, 1985 (the “1985 Deed”) and recorded with the Worcester County Registry of Deeds (the “Registry”) at Book 9023, Page 277, Wallum Lake Terrace, Inc. (“Wallum”) conveyed to Eleanor T. Lalumiere and Lucille Lalumiere (“Eleanor/Lucille”) property called a “buffer zone” located on Shore Road in Douglas, Massachusetts (the “Deeded Parcel”), as shown on “Plan of Property of Wallum Lake Terrace Shore Road, Douglas, Massachusetts” dated January 8, 1965 and prepared by Cullinan Engineering Co., Inc. (the “1965 Plan”). [Note 4] The 1965 Plan was recorded with the Registry at Plan Book 287, Plan 12. The description of the Deeded Parcel was as follows:

That buffer zone, so-called, as shown on [the 1965 Plan], as follows:

Starting at the Rhode Island/Massachusetts boundary, as shown on said plan, and running northerly along the easterly side of Shore Road, as shown on said plan, one thousand sixty-three and 70/100 (1,463.70) feet, more or less, to a granite bound. Said buffer zone being ten (10) feet wide. Containing approximately 14, 637 square feet, more or less.

2. By confirmatory deed dated April 24, 1986 (the “1986 Deed”), and recorded with the Registry at Book 9388, Page 248, Wallum conveyed to Eleanor/Lucille the same property included in the 1985 Deed, with a correction of one of the bounds as “one thousand four hundred sixty-three and 70/10 (1,463.70) feet, more or less, to a granite bound.” [Note 5]

3. By deed dated April 20, 1988, and recorded with the Registry at Book 11298, Page 226 (the “1988 Deed”), Eleanor/Lucille conveyed to Michael E. Nelson and Jean M. Nelson property located on Shore Road in Douglas, Massachusetts, as shown on “Plan of Land in Douglas, Mass. Surveyed for Michael E. & Jean M. Nelson” dated March 4, 1988 and prepared by Andrews Survey & Engineering, Inc. (the “1988 Plan”). The 1988 Plan was recorded with the Registry at Plan Book 596, Plan 104. The description of the property was as follows:

BEGINNING at a point in the Massachusetts-Rhode Island boundary line, which point is 101.76 feet S74 09'06"E from a drill hole in a State Line Bound, and at a point in the easterly line of Shore Road, as shown on said plan;

THENCE 1,458.69 feet along the easterly line of Shore Road which is a curve having a radius of 2,834.93, according to said plan, to a point in the southwesterly corner of land, now or formerly, of Richard E. & Karen A. Cadotte;

THENCE S 70 50'00" E along the said Cadotte property, a distance of 5.35 feet to a drill hole in a R.R. Bound; THENCE S 70 50'00" E 8.41 feet along said Cadotte property to a corner;

THENCE 1,458.02 feet in a southwesterly direction by a curve which has a radius of 2,821.43 feet by land, now or formerly of one Gerald Dyer, to a point in the said Massachusetts-Rhode Island boundary line;

THENCE N 74 09'06" W 13.97 feet along said state boundary line to the point of beginning.

CONTAINING 19,688.40 square feet, more or less, according to said plan of land.

4. By affidavit dated September 22, 1989, executed by Lalumiere (President of Wallum) and Wallum, and recorded with the Registry at Book 12415, Page 328 (the “Wallum Affidavit”), reference was made to several deeds of even date to Plaintiff which conveyed all property owned by either Lalumiere or Wallum and shown on several designated plans (including the 1965 Plan). [Note 6] In its Complaint, Plaintiff claims to own land as shown on “Map of Land Showing Detail of Land Along Shore Road Douglas, MA” dated November 21, 2008, and prepared by Lunar Mapping Unlimited (the “2008 Plan”).

*******************************

Defendant filed a Motion to Strike the Affidavit of Louis C. Tusino (“Tusino”) on the basis of hearsay. The affidavit contains statements made to Tusino, as well as speculation of Tusino’s understanding (rather than facts) and as a result I shall strike the affidavit.

The central issue in this case is the ownership of the Disputed Parcel. Plaintiff argues that it owns the Disputed Parcel as a result of the 1985 Deed and deeds accompanying the Wallum Affidavit. Defendant argues that he owns the Disputed Parcel as a result of the 1988 Deed.

When Wallum conveyed the Deeded Parcel to Eleanor/Lucille in 1985 (modified by the confirmatory deed in 1986), the property ran between two monuments, the Rhode Island/Massachusetts boundary at the southerly end, and a granite bound at the northerly end. [Note 7] There was also a length given of 1,463.70 feet, a width of ten feet, an acreage of 14,637 square feet, and a radius of the length for both eastern and western boundary (2834.93 and 2821.43). [Note 8] [Note 9] When Eleanor/Lucille deeded to Defendant in 1988, the property also ran between the same two monuments, the Rhode Island/Massachusetts boundary at the southerly end, and a railroad bound at the northerly end. [Note 10] In the 1988 Deed, there were also two boundary lengths given of 1458.69 feet and 1458.02 feet, a boundary width of 13.97 feet at the southerly end, a boundary width of 13.76 feet at the northerly end, an acreage of 19,688.40 square feet, and the same radius for the two lengths as in the 1985 Deed. A comparison of the 1985 Deed and the 1988 Deed indicates that the length of the Deeded Parcel is almost identical, the radius of the two boundaries are identical, and both properties run, north to south, between two monuments. The major discrepancies between the two deeds are the width and acreage of the two properties. The 1985 Deed states that the Deeded Parcel has a width of ten feet. The 1988 Deed states that the Deeded Parcel has a width of 13.76 feet/13.97 feet. [Note 11]

Defendant argues that the 1965 Plan (showing a width of the Deeded Parcel of 13.50 feet, based on the stated radius) controls over the language in the 1985 Deed (which states a width of ten feet), and cites Walker v. Boynton, 120 Mass. 349 (1876) in this regard. Case law indicates that monuments prevail over distances; that the land of an adjoining proprietor may be a monument; that the location of a monument which is in dispute may be established by extrinsic evidence; and that any competent evidence may be considered in determining the true boundary line between adjoining owners. See Holmes v. Barrett, 269 Mass. 497 (1929). Although Plaintiff argues that the length of the Deeded Parcel is in dispute, such does not appear to be the case because, as a result of the 1985 Deed, the 1986 Deed, and the 1988 Deed, such distance (the easterly and westerly boundaries) is controlled by two monuments (the state line and a granite bound/railroad bound). The westerly boundary is also not in dispute, as it is controlled by a monument (Shore Road). The easterly boundary is the boundary in dispute because of the alleged difference in width of the Deeded Parcel. The 1985 Deed describes the Deeded Parcel as ten feet wide, and gives a square footage of the Deeded Parcel based on a ten foot wide parcel, but does not give an easterly boundary description. However, the 1985 Deed references the Deeded Parcel as the “buffer zone” as shown on the 1965 Plan; the 1965 Plan shows nothing labeled as a buffer zone, but it does show the Deeded Parcel bounded by property owned by Dyer, Shore Road, the state boundary, and a granite bound. The best extrinsic evidence to be used regarding the ambiguity in the deed description in the 1985 Deed is the plan referenced in the 1985 Deed. See Walker, 120 Mass. at 351 (“[t]he descriptions in the deeds must be read in connection with the plan, which, by reference, is made a part of them.”) The 1965 Plan shows the Deeded Parcel as 13.5 feet wide (by looking at the radius distances). To have deeded less than the parcel shown on the 1965 Plan would have required a subdivision plan to show the easterly boundary if different from the easterly boundary shown on the 1965 Plan. Moreover, the 1985 Deed recites that the granted premises was the buffer zone “as shown on [the 1965 Plan]”, and the 1965 Plan shows only a 13.5 foot wide parcel as the buffer zone, not a ten foot wide parcel.

As a result of the foregoing, it appears that the 1985 Deed and the 1988 Deed conveyed the Deeded Parcel, with a width of approximately 13.5 feet, shown on both the 1965 Plan and the 1988 Plan. Consequently, I find that the 1988 Deed conveyed the Deeded Parcel as shown on both the 1965 Plan and the 1988 Plan to Defendant, and the Disputed Parcel (as a part of the Deeded Parcel) also contains property with a width of approximately 13.5 feet. As a result, Wallum did not retain any of the Deeded Parcel to convey to Plaintiff. Based on the foregoing, I ALLOW Defendant’s Motion for Summary Judgment. [Note 12]

Judgment to enter accordingly.