REG 38377

January 5, 1976

Essex, ss.

Randall, J.


Alfred J. Guillette and Irene N. Guillette brought this petition pursuant to the provisions of G. L. (Ter. Ed.) c. 185, Sec. 1, as amended, to register and confirm their title to a parcel of land (hereinafter "locus") located in Merrimac, in the County of Essex, as described in said petition and as shown on a plan filed herewith.

Respondents Guilio S. Proia, Dorothy L. Proia and Pentucket Five Cents Savings Bank filed answers which alleged a claim of ownership in fee to a portion of the locus which the petitioners seek to register.

The case was assigned for trial on October 14, 1975 at which time a stenographer was sworn to record and transcribe the testimony. Five exhibits were introduced into evidence at the trial and are incorporated herein for the purpose of any appeal. All book and page references contained herein are to documents recorded in Essex County Registry of Deeds, South District, unless otherwise noted.

The sole issue before the Court is the location of the south line of petitioners' land and the north boundary line of respondents' land.

Petitioners took title to the parcel in question under a deed from Carl L. Lacerte et ux dated July 1, 1969, recorded in Book 5619, page 208 (Exhibit 4) which parcel of land was described as "Lot 2 on plan of 'Subdivision Plan of Land, Merrimac, Mass.' dated October 18, 1956, Dana F. Perkins & Sons, Inc. Surveyors" (Exhibit 5) and then further described:

"Easterly by Emery street, 100 feet;

Southerly by Lot 1 on said plan, 120 feet;

Westerly by parts of Lots 16 and 15 on said plan, 100 feet; and

Northerly by Lot 3, 120 feet."

Thus, Lot 2 on this subdivision plan (Exhibit 5) borders Lot 1 to its south. Lot 1 is shown on Exhibit 5 as being bordered easterly by Emery Street 68.61 feet and thence southeasterly by the intersection of Emery Street and Merrimac Street East by a curve with a radius of 25 feet and a distance of 33.37 feet.

Petitioners' File Plan No.38377[A] (Exhibit 1) shows that the easterly boundary of the respondents' property runs by Emery Street a distance of 63.87 feet. This distance would have been 65.30 feet except for a taking for the widening of Emery Street on June 16, 1971 recorded in Book 5774, page 711 and shown on Sheets 44 and 45 of the title abstract (Exhibit 2). Thus, before the taking, there was a difference of 3.31 feet between the easterly line of respondents land as shown on Exhibit 5 and the respondents' land on petitioners' file plan (Exhibit 1).

Respondents acquired title to lot 1 over nine years before petitioners took title to Lot 2. Respondents' title comes from a deed of M and J Construction Company dated May 11, 1959 recorded in Book 4559, page 38 (Exhibit 3) to respondents which described their lot as follows:

"Being shown as Lot #1 corner of Emery Street and Merrimac Street East, on Plan entitled "Subdivision Plan of Land in Merrimac, Mass." dated October 18, 1956. Dana F. Perkins and Sons, Inc. surveyors, as Plan 899 of 1956 recorded with Essex South District Registry of Deeds, Plan Book 4328, page 1 and bounded and described as follows:

Lot 1

Easterly by Emery Street, 68.61 feet;

Southerly by a curved line forming the junction of Emery Street and Merrimac Street East, 33.37 feet;

Southerly by Merrimac Street East, 107.03 feet;

Westerly by Lot #17 and part of Lot #16, 113.85 feet;

Northerly by Lot #2, as shown on said Plan, 120 feet.

Containing 11,930 square feet of land, more or less according to said plan."

At the trial, the only witness for the petitioners was Willard F. Perkins, a Registered Land Surveyor whose office prepared both the original subdivision plan and the petitioners' file plan (Exhibits 5 and 1). He testified that the dimension "Easterly by Emery Street, 68.61 feet" contained in both the respondents' deed and the subdivision plan (Exhibits 3 and 5) was incorrect since the calculations used to determine the dimension were based on an incorrect tangent of 16.39 feet rather than the correct tangent of 19.70 feet. The Emery street boundary of Lot 1 was 85 feet from the intersection of the corner of Merrimac Street East and Emery Street north to the corner of Lot 2. The incorrect tangent of 16.39 feet was deducted from this 85 foot distance, leaving a computed distance of 68.61 feet used on the plan, Exhibit 5. The correct tangent of 19.70 feet should have been deducted from the 85 foot distance, as it was on the file plan, Exhibit 1, leaving a distance of 65.30 feet before the taking. After the taking, this distance was 63.87 feet, as shown on the File Plan, Exhibit 1. Mathematically, closure of Lot 1 would be impossible with the figures used on the subdivision plan, Exhibit 5.

In sum Perkins' testimony constitutes an admission that his office made an error in the original plan, Exhibit 5, which they have now corrected in petitioners' file plan, Exhibit 1.

The only other testimony before the Court was by the respondent, Guilio S. Proia, who stated that other than the grant of an easement for the widening of Emery Street, he had made no other conveyances of any portion of the land. Thus, the respondents' claim that they are entitled to the full 68.61 feet as described in their deed or, taking into account the taking for the widening of Emery Street, 65.24 feet. The Court does not agree with this claim.

It is generally true that the first deed out of a common grantor will be followed with regard to descriptions rather than later deeds which contain conflicting descriptions. See 11 C.J.S. Boundaries Sec. 60 at p.632. If such a principle were to be followed in this case then the description of the other sixty-six (66) lots in the subdivision, including Lot 2, might be incorrect. However, the testimony establishes and the Court so finds that an error was made in computing the distances of the easterly and southeasterly lines of Lot 1 and accordingly the wrong distances were placed on the subdivision plan and in the deed to that parcel. Therefore, the Court rules that the distances contained in such instruments must be corrected so as to conform with the proper calculations.

General principles of real estate law establish that in construction of deeds, where the land conveyed is described by courses and distances and also by monuments which are certain, the monuments are to control and that measurements must yield if they fail to correspond. Clearly, Lot 1 is in the same position on the ground that it has always been in relation to Lot 2 and the other lots in the subdivision plan. It is, in fact, a well settled principle of law in the Commonwealth that land of an adjoining land owner may be considered as a monument. Percival v. Chase, 182 Mass. 371 , 377-78 (1903); George v. Wood, 89 Mass. 14 ( 7 Allen 14 ), 16 (1863); Flagg v. Thurston, 30 Mass. 145 ( 13 Pick. 145 ), 150 (1832). Lot 2 is, in this case, to be considered a monument and therefore controls the bounds of Lot 1, rather than the measured distances in the deed and on the subdivision plan which the Court has found to be in error. Daviau v. Betourney, 325 Mass. 1 , 2 (1949); Holmes v. Barrett, 269 Mass. 497 , 499-500 (1929).

Therefore, the Court finds that the easterly boundary of Lot 1 on Emery Street is properly delineated on the petitioners' file plan (Exhibit 1) as 63.87 feet (after the taking easement) and not the 68.31 feet as described in the respondents' deed and the subdivision plan referred to therein (Exhibits 3 and 5). Accordingly, the Court rules that the petitioners are entitled to a decree of registration to the parcel as described in their petition and as shown on the file plan, subject to such other matters as are disclosed by the examiner's abstract which are not in issue here. In view of this ruling of the Court and since the respondents have maintained a wire fence on the parcel to be registered, it would appear that the respondents should be given a reasonable time to remove the same.

Decree accordingly.