MISC 79160

December 6, 1977

Essex, ss.

Sullivan, J.


The plaintiffs, James G. Nikas and Sermo Nikas, and the defendants, William P. Alexopoulos and Tina K. Alexopoulos, own adjoining parcels of land on Candlewood Road in Ipswich in the County of Essex. Each acquired title from Ruth T. Tillson, the plaintiffs by deed dated August 27, 1963 and recorded with Essex South District Deeds, Book 5097, Page 325 (Exhibit No. 1) and the defendants by deed dated November 2, 1973 and recorded with said Deeds, Book 6030, Page 188 (Exhibit No. 2). Recorded with each deed was a plan of the premises thereby conveyed; such plans form a part of Exhibits Nos. 1 and 2. The original plan, accompanying the deed to the plaintiffs, was dated August, 1963 and was prepared by Kenneth W. Richardson. The plan which accompanied the deed to the defendants was dated August 13, 1973 and was prepared by Essex Survey Service Inc. After the conveyance to the defendants, a dispute arose between the parties as to the correct location of the southerly boundary of the plaintiffs' land and the northerly boundary of the defendants' land. The latter caused a metal stock fence to be erected on what they claimed to be the boundary line between the parties. The plaintiffs, in turn, claim that the fence encroaches on their land a distance of 4.30 feet at the street line. The fence then runs at an angle to the property line, until at its westerly end it is entirely on the defendants' property. There is no dispute about the correct placement of the southwesterly corner of the plaintiffs' land (and the northwester1y corner of the defendants' land).

The plaintiffs' abutter on the north, Candlewood Golf Course, is not a party to this suit, and accordingly is not bound by anything decided herein. Neither party introduced any evidence as to the Golf Course's title or the description used in its chain of its southerly line. We, therefore, decide the case based on the posture in which it has been presented. The Richardson plan shows a stone wall as comprising the entire northerly boundary of the plaintiffs' land. In fact, the wall now stops some distance westerly of Candlewood Road, and there is some indication in the evidence that this also was the case even when the earlier plan was prepared in 1963. It therefore becomes crucial to establish the point of intersection of this line with that of the street in order to fix the common boundary.

A trial was held at the Land Court on October 7, 1977 at which a stenographer was sworn to record the testimony. All exhibits introduced in evidence are incorporated herein for the purpose of any appeal. The afternoon prior to the trial a view was taken by the Court in the presence of counsel.

Since the common owner first conveyed a parcel of land to the plaintiffs and thereafter conveyed an adjoining piece to the defendants in the description of which the plaintiffs' land is a monument, it is necessary to establish the location on the ground of the parcel first conveyed out by Mrs. Tillson. And, to fix the southerly line of the latter, the initial step is to find the northerly line on the ground.

The principal witness for the plaintiffs was Robert W. Smith, a registered professional engineer and land surveyor, who prepared the plan introduced as Exhibit No. 7. Mr. Smith attempted to reproduce the Richardson plan on the ground. ,In order to. determine the northerly line of the plaintiffs' land, Mr. Smith testified that he set a random traverse in the field to connect the field data which, in turn, was tied into a field or control traverse. From the latter, offsets were shot to the stone wall and its center' line determined. The witness also picked up from the Candlewood Road traverse, the remains of a wall running parallel with and on the westerly side of the Road. He continued this line southerly and found the drill hole which appears on the Richardson plan as the southeasterly property corner of the common owner. Mr. Smith then mathematically determined the point of intersection of the Candlewood Road sideline and the center of the northerly stone wall which marks the northerly boundary of the plaintiffs' land. After next setting the distances given in the Nikas deed on these two lines, i.e. the stone wall and Candlewood Road, he held the other two deed distances and fixed the southwest corner mathematically. The southeasterly corner, as so computed, was approximately the same distance from the drill hole as shown on the Richardson plan. As determined by the defendants' surveying firm, however, this point was approximately six feet to the north. The Essex Survey Service plan accordingly gave the common owner additional Candlewood Road frontage of this amount. The only possible conclusion would seem to be that this firm placed the northeasterly corner of the Nikas land too far northeasterly by a like amount. Mr. Frank C. Hancock, the defendants' witness who testified as to the work done 'by' Essex Survey Service in preparing the Alexopoulos plan for record and later in staking the lot, described a procedure similar to that employed by Mr. Smith but using fewer offsets to locate the northerly line. The results of the work of the two surveyors should have placed the common boundary in the sarne location, but they did not. On all the evidence, therefore, I find and rule that the land of the plaintiff and, more particularly its southerly line, are as shown on the Smith plan (Exhibit No. 7) and that the defendants' fence encroaches as shown thereon. This conclusion is in accordance with visual evidence. A northerly line displaced six feet to the north of the stake set by the plaintiffs' surveyor would encompass land which clearly appears to the eye to form a part of the golf course.

I therefore find and rule on all the evidence that the common boundary is as shown on the plan dated November 12, 1975 by Robert W. Smith (Exhibit No. 7) and order that the defendants, their servants and agents are forthwith to remove their fence, plantings and other property from land of the plaintiffs and are enjoined from thereafter entering on land of the plaintiffs.

In their petition the plaintiffs prayed that the court determine the common boundary line, order the defendants "to remove themselves and their property from the plaintiffs' property" and award damages for said trespass. The encroachment of the fence is a continuing trespass for which the plaintiffs are entitled to damages, if they are reasonably ascertainable from the evidence. Dalton v. Demos Brothers General Contractors, Inc., 334 Mass. 377 , 378 (1956). The correct measure thereof would be the loss in rental value of the property while the injury continues. Fenton v. Quaboag Country Club, Inc., 353 Mass. 534 , 539 (1968); Chesarone v. Pinewood Builders, Inc., 345 Mass. 236 , 241-42 (1962). There was no evidence from which this might be computed since testimony at the trial was based on sale price, not rental value. The plaintiffs also seek damages for injury to a cherry tree which Mr. Nikas planted, alleging that it was wantonly cut by the defendants. It is impossible to tell from the testimony just how close the tree in question was to the sideline of Candlewood Road and thus it cannot be determined precisely from the record on whose land it stands. Even if we assume that it is on land which the Court has held to be that of the plaintiffs, "the measure of damages is the difference in the fair market value of the injured property before and after the injury." McMahon v. Krumrine, 353 Mass. 511 , 513 (1968). There was insufficient evidence introduced as to this upon Which to base a finding of damages.

Decree accordingly.