REG 38207

April 14, 1976

Plymouth, ss.

Sullivan, J.


The petitioners, Pasquale Ferrante and Maria F. Ferrante of Hanson, in the County of Plymouth, seek to register their title to a parcel of land on the easterly side of Pleasant street in said Hanson, as shown on a plan entitled "Plan of Land in Hanson, Massachusetts" dated December 28, 1973 by Perkins Engineering, Inc. filed in the Land Court as 38207[A].

The respondents, Thomas J. Pepe and Jean E. Pepe, dispute the petitioners' ownership of a strip of land measuring approximately 16.5 feet in width running along the southerly portion of the parcel sought to be registered. There is encompassed within the disputed area a gravel driveway leading to the home of the respondents and the underground waterpipe serving the respondents' home. There also is a two foot high board fence, apparently the property of the respondents, which is located somewhat northerly of the disputed area. Whether the petitioners have borne the burden of establishing their title to this strip is the only issue.

The trial was held at the Land Court on December 12, 1974, February 11, 1975 and October 22, 1975. On each of such dates a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein by reference for the purpose of any appeal. The Court also took a view of the premises on November 6, 1975. The principal difference between the parties is whether in constructing Sandy Lane, a private way which is shown on the filed plan, the developer built the way in part on land of the petitioners. The respondents contend that the developer did so encroach by 16.5 feet and that when the petitioners' surveyor prepared the filed plan, the starting point for measuring the petitioners' frontage on the ground began at the intersection of the southerly line of Sandy Lane, as it then existed on the ground, with Pleasant street. The respondents argued that this had the result of locating the petitionersÂ’ premises 16.5 feet southerly of its true location.

The respondents' contention in essence is that the predecessors in title of the developer had title to a parcel of land on Pleasant Street with a frontage of only 100 feet and that the conveyance out by United Cape Cod Cranberry Co. to Earl N. Hammond, Jr. et ux, by deed dated July 12, 1951 and recorded in the Plymouth County Registry of Deeds, Book 2165, page 360 (Abstract, first supplement, Sheet 25) of a parcel with a frontage of 75.69 feet left only 24.31 feet rather than the 40.54 feet which the developer claimed and which became Sandy Lane (see Abstract, first supplement, Sheets 26 and 27 and Exhibit No. 7). The petitioners' case is based on a claimed error in the stated frontage of 100 feet, as given in a deed from Maude G. Gorham to Isaac Bourne (predecessor in title of said United Cape Cod Cranberry Co.) dated March 6, 1946 and duly recorded in Book 1909, page 25 (Abstract, first supplement, Sheet 22). The Land Court examiner testified that Maude G. Gorham had acquired from Henry G. Brewster by deed dated January 28, 1938 and duly recorded with Plymouth Deeds in Book 1741, page 358 several parcels of land, each separately described (Abstract, first supplement, Sheet 20). One of the parcels described in this deed was a strip of land one rod wide (i. e. 16.5 feet) running out to Pleasant Street. The seventh parcel in said deed had a frontage of 100 feet on Pleasant Street and this deed, he therefore concluded, conveyed to Maude G. Gorham a total frontage in the two parcels combined of 116.5 feet.

Maude G. Gorham then conveyed to Isaac Bourne by the deed hereinbefore mentioned a parcel of 38.5 acres on the westerly side of Monponsett Street and the easterly side of Pleasant Street. The deed combined the descriptions set forth in the earlier records into an overall description of the parcel, but it incorrectly stated the frontage thereby conveyed as 100 feet rather than 116.5 feet, if she, in fact, intended to convey all the premises owned by her on Pleasant Street.

In addition to testimony by the examiner as to the record title to the petitioners' premises and his brief examination of the records relating to property of the abutters, the employee of the company which prepared the filed plan testified as to the procedure which had been followed and the situation on the ground as well as the results of a limited search in the office of the County Commissioners and the Registry of Deeds.

There also was testimony by Mr. and Mrs. Ferrante, Henry A. Kane, Robert J. Sullivan and Paul J. Sullivan, former owners or occupants of the Ferrante premises, Ernest Luongo, a neighbor, the respondent, Thomas J. Pepe, and his father and predecessor in title, Paolo Pepe.

The parties testified as to a pipe which one of the petitioners' predecessors in title allegedly had pointed out to Mr. Paolo Pepe as being the boundary line and which he, in turn, had shown to Mr. Ferrante. Mr. Ferrante apparently accepted this, and he placed a smaller pipe within the first. The pipe was situated northerly of the Pepe driveway; if it in fact marks the line, title to the disputed 16.5 foot strip may not be registered.

Mr. Kane testified, however, that he had always understood the southerly boundary line to be located approximately where it was placed by the surveyor. He was able to fix its location by its relationship to a tree which he had struck in an auto accident.

Mr. Robert J. Sullivan and his son testified as to baseball games which the large Sullivan family and friends had conducted on the field in question and which encompasses the area in dispute.

Mr. Luongo, on the other hand, testified that a prior owner of the Pepe property had maintained a barbed wire fence on the northerly side of the driveway.

There was general testimony as to a cow which the Pepes had owned in years past grazing in the strip and a garden which had been maintained in the general area. The present driveway and water pipe, admittedly, were not installed until 1963 and have not been maintained for a sufficient length of time to constitute adverse possession. There also was reliance by the respondents on testimony that prior to the construction of Sandy Lane there were hedges along the Pleasant Street frontage of the petitioners' property and bushes and trees along the dirt road leading into the cranberry bog, all of which disappeared after the blacktop of Sandy Lane was laid.

The burden of establishing a title proper for registration rests on the petitioners. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). They have borne this burden.

The Court concurs in the opinion expressed by the Land Court examiner in which he concluded that the petitioners' northerly abutter had sufficient frontage for the 40.54 foot wide layout of Sandy Lane as appears on Exhibit No. 7. Maude G. Gorham had acquired title to several parcels of land, two of which had individual frontages on Pleasant Street of 100 feet and 16.5 feet by said deed from Henry G. Brewster. There were no intervening conveyances by Ms. Gorham, and it is apparent from the wording of her subsequent conveyance to Isaac Bourne that she intended to convey the entire premises acquired from Mr. Brewster together with other land not concerned in the present controversy. This construction fulfills the presumed intent of the parties by placing emphasis on both the language contained in the deed and the circumstances surrounding the conveyance. Brackett v. Pitcher, 296 Mass. 295 , 297 (1936). In combining several parcels for descriptive purposes, it seems clear that the draftsman made an error by giving the frontage in the latter deed as only 100 feet when the deeds into the grantor had a total frontage of 116.5 feet. The draftsman, however, did bound the premises by lands of Hood and Kane (the latter being a predecessor in title of the petitioners) and land of an abutter is a monument which controls distances. Percival v. Chase, 182 Mass. 371 , 377-378 (1903). When this interpretation is accepted, the total frontage in the deed to Hammond and that remaining from Sandy Lane equalled 116.5 feet.

The Court's decision is buttressed by a taking by the County Commissioners for the layout of Pleasant Street in 1891 (Abstract, first supplement, Sheet 28). The description runs by land of Ms. Gorham's predecessors by three courses totalling 116.5 feet, by land of the petitioners' predecessors by three courses totalling 116.5 feet which is basically the same as that shown on the filed plan (226.39 feet) and by land of the respondents' predecessors 461.5 feet. The plan which was prepared for Mr. Pepe's father in 1963 gives the total Pepe frontage as 478.37 feet. This is 16.5 feet more than is stated in the County Commissioners' taking which appears to be the first time that the respondents' frontage appears of record, all the early deeds in the Pepe chain of title being silent as to it. No plan was filed with the taking, but a sketch of it was found in the office of the petitioners' surveyor, since this firm does the County engineering. This sketch is Exhibit No. 5. If the record distances from the northwesterly corner of the Hammond property to the County bound marked on the filed plan are added together they come within hundredths of a foot of those given on the plan of Pleasant Street as laid out by the County Commissioners in 1958 (Abstract, first supplement, Sheet 29); similarly the distances from said bound when added to the respondents' 1891 frontage are nearly identical to that given on the 1958 plan.

It is clear that there was a stone bound at the northwesterly corner of the original one rod (16.5 feet) strip which eventually became the southeasterly half of Sandy Lane with the bound approximately in its center before the road was constructed. The Ferrante property was located 16.5 feet southerly of this bound; it is therefore difficult to understand why the surveyor, now deceased, who prepared the Pepe subdivision plan placed the 16.5 feet strip within the Ferrante premises. It may well be that in his professional judgment ancient descriptions in the deeds in the respondents' chain of title tied into monuments on the ground to reach this result. But the origin of the monuments which were noted by the Court at the view and their significance remain unexplained.

The evidence of adverse possession is not persuasive. It has not been established to the Court's satisfaction that the acts upon which the respondents rely occurred within the narrow strip here in question or that they had continued for a period of at least twenty years. It is true that where there is some question as to the location of a boundary, the line adopted by the parties may be construed as the actual boundary. Ryan v. Stavros, 348 Mass. 251 , 260 (l964). It is obvious in the present case, however, that Mr. Ferrante was mistaken as to the record location of the line, and there seems no reason to penalize him for a misunderstanding which would have been inconsequential were it not for a mistake made by Mr. Pepe's surveyor in laying out the subdivision of the Pepe premises.

The respondents also emphasized the removal of the hedges, bushes, and trees between the petitioners' house and the old way leading into the cranberry bog in the rear. There was no direct evidence as to who removed this growth and for what purpose. Even if we assume that this was done to facilitate the layout of Sandy Lane, a conclusion which is speculative at best, it is entirely possible that the growth encroached on the one rod strip. Regardless of these possibilities, the petitioners' house appears to be located the same distance from the southerly line of Sandy Lane on the filed plan as it was on the 1958 Pleasant Street layout. Since the construction of the street was not commenced until after 1958, although the conveyancing was done before, it is difficult for me to adopt the respondentsÂ’ argument that the developer encroached.

On all the evidence I find and rule that the deed from Henry G. Brewster to Maude G. Gorham dated January 18, 1938 and recorded in Book 1741, page 358, conveyed 116.5 feet of frontage on Pleasant Street; that the same amount of frontage was conveyed by Maude G. Gorham to Isaac Bourne by deed dated March 6, 1946 and recorded in Book 1909, page 25, even though the frontage was misstated in said deed as 100 feet; that United Cape Cod Cranberry Co. had sufficient frontage on Pleasant Street after its conveyance to Hammond for the layout of a street 40.54 feet wide; that the land of the petitioners is correctly shown on the filed plan; that the petitioners have not lost record title to the 16.5 foot area in dispute by reason of adverse possession, estoppel, laches or otherwise; and that the petitioners have borne the burden of proving that their title to the premises is entitled to be registered subject to such other matters as are shown by the Abstract and are not in issue here.

Decree accordingly.