REG 35776

May 19, 1978

Barnstable, ss.

Randall, J.



These two cases were brought in the Land Court, one by petition of Buhl K. Bassett and Margaret E. Rodin (hereinafter Bassett), and the other by petition of Joseph R. Crimmins, Trustee of R. D. Trust (hereinafter Crimmins). Each of the two petitioners sought to register and confirm title to certain abutting parcels of land located in Yarmouth, Barnstable County, Massachusetts, pursuant to the provisions of G. L. c. 185, §1.

Bassett's petition was filed on August 23, 1968 and originally sought registration of a 24 acre parcel of land running between Higgins-Crowell Road and South Seas Mill Road in Yarmouth in accordance with file plan 35776A1. The petition was amended and a new file plan No. 35776A2 was filed at the time of the trial seeking registration of 20.8 acres instead of the 24 acres, all in the same general area as stated above.

Answers to the Bassett petition were filed by John Tracy Wiggin and Joseph R. Crimmins, Trustee of R.D. Trust. Both of these respondents claimed that a part of his land was included within the parcel these petitioners sought to register. On December 24, 1973, respondent Crimmins moved to be allowed to answer late, and to consolidate this case for trial with Registration Case No. 38167 filed by him. On December 28, 1973, that motion was allowed. (Sullivan, J.). On August 24, 1974, petitioner Bassett moved that the consolidation be vacated, and on November 4, 1974, Judge Sullivan allowed that motion also. At the same time she allowed the petitioners' "Motion to Strike Objections of John Tracy Wiggin". Thus, Joseph R. Crimmins, Trustee, was left as the sole respondent. [Note 1]

Petitioner Crimmins, Trustee, filed a registration petition in Case No. 38167 and seeks registration of a certain parcel of land, running between Higgins-Crowell Road and South Seas Mill Road bordering land of Bassett to the south and containing 16.31 acres, more or less, as shown on his file plan.

On December 16, 1974, John Tracy Wiggin filed an answer objecting to the Crimmins' petition, alleging that he in fact is the owner of a part of the land sought to be registered. By leave of Court Bassett joined as a respondent in this case on March 24, 1975, although he did not file an answer.

On December 27, 1974, petitioner Crimmins as Trustee (again) moved to consolidate the two cases (#35776 and #38167) for hearing; on January 2, 1975, that motion was allowed. (Sullivan, J.). Trial of these two consolidated cases lasted twelve days; hearings were held on February 19, 1975, February 25, 1975, March 24, 1975, March 25, 1975, July 6, 1976, July 7, 1976, July 8, 1976, July 22, 1976, July 27, 1976, July 28, 1976, February 15, 1977 and February 16, 1977. Each time a stenographer was duly sworn to record and transcribe the proceedings. Six exhibits were introduced into evidence on behalf of Bassett; 118 were introduced on behalf of Wiggin. All are incorporated herein for the purpose of any appeal. Also a view of the loci was taken on April 1, 1977, with counsel and all parties present. Briefs were finally received by the Court from all parties on July 7, 1977.

The parties agree that the burden of proof is with the petitioner in each Land Court case. Hopkins v. Holcombe, 308 Mass. 54 (1941); Hughes v. Williams, 229 Mass. 467 (1918).

The locus in the Bassett Case No. 35776 is southerly of the locus in the Crimmins Case No. 38167. Crimmins objects to the registration of the Bassett piece only if the owners of land to the north of the Crimmins piece, one Wiggin, et al, succeed in pushing the location of the Crimmins piece to the south so as to overlap the Bassett piece. Respondent Wiggin claims only against the Crimmins piece claiming that the southerly boundary of his land comes into the land claimed by Crimmins.

The Court has been aided immeasureably by the excellent briefs filed in these cases, particularly those filed by George L. Wainwright, attorney for respondent Wiggin, and by Frank Shealey, attorney for respondent Wiggin. In addition, the testimony of Richard J. Wainwright as a title examiner for petitioner Bassett, and of respondent Wiggin, as to his title research, was learned, extensive and enlightening. As have the examiners, the Court has been handicapped throughout its consideration of this case by the lack of adequate descriptions of the early conveyances of this land - woodland at the time of the third division in 1714 and woodland now. The descriptions are not well monumented except insofar as land that is described as being bounded by "land of" another is moumentation and except insofar as frequent mention is made of what was South Sea Mill Road and the less frequent mention of Higgins-Crowell Road. [Note 2]

John T. Wiggin in his extensive testimony traced the ownership of the 19th, 20th, 21st and 22nd lots of the third division from the division in 1714 as well as that of some periphery lots, called the "square lots", of the second division. Richard Wainwright, testifying on behalf of Bassett, very largely agreed with Mr. Wiggin's conclusions as to the 19th, 20th, 21st and 22nd lots. Petitioner Bassett claims his title comes from the 20th lot but does not necessarily include the whole of the 20th lot. He admits that his northerly boundary may be south of the division line between the 19th and 20th lots. Petitioner Crimmins claims the southerly line of his locus bounds Bassett's northerly line, wherever it is. Still to the north of the Crimmins land is that claimed by respondent Wiggin.

The Court has found no completely satisfactory way of reconstructing the 19th and 20th lots. Petitioner Bassett in his brief suggests that since the distance between the southerly line of the 20th lot and the northerly line of the 19th lot is 300 feet more on the ground than the rodded distance described in the proprietor's deeds or a difference of 11%, if all measurements are corrected by 11% the parcel will fall into place. In other words, this novel solution would be laid to an error of 11% in the measure used in the laying out of these lots. The Court understands that in some areas a rod might not always have been 16.5 feet in distance but has no actual evidence that this was the case here. The Court has knowledge that in some parts of Maine and New Hampshire, particularly in the hilly sections, it was a usual practice to deduct or add one rod every chain (a chain being 4 rods) as necessary to account for variations depending upon the fluctuation in the terrain being measured. Inasmuch as the terrain here is generally level, however, and there is no evidence that such a surveying practice was carried on in this manner on Cape Cod, the Court reluctantly dismisses this method of explaining the reconstruction of the lots.

There is agreement as to the general area involved. All the parties herein agree that the northerly line of the general area is the northerly line of the 19th and 22nd lots of the third division; this is also the headline of the second division lots and is shown on the Newell B. Snow plan, Exhibit No. 3, among others. The second boundary that has been agreed upon by all the parties is the line dividing the 20th lot on the north from the 21st lot and the "blade" of the 22nd lot to the south. This line is marked at various places by concrete bounds at stones found and at its easterly extremity at the southeasterly corner of the 22nd lot by a marble bound. The third and easterly boundary of the land in contention is marked by Higgins-Crowell Road as now laid out in part and in part by the discontinued portion of Higgins-Crowell Road, formerly known as "Abels" Way. The fourth or westerly line is the road shown variously as "South Sea Mill Road", "0ld Mill Road", and "the road leading to Eleazer Bakers" among others. It is likewise shown on the Newell Snow plan (Bassett, Exhibit No. 3) and on the file plans in both cases, among others.

In spite of the apparent agreement of the parties as to the general area of the claimed parcels the Court still has had to face two major problems in the resolution of this case - the specific locations of the loci in the generally agreed upon location and the chains of title of the two petitioners. It has spent many, many hours trying to fit the various lots together in the manner of solving a jigsaw puzzle; it has also tried to sort out the various title chains to the 19th, 20th, 21st and 22nd lots of the third division of the Town of Yarmouth from the time it was made in 1714 to the present.

The Court found the testimony of the various engineers confusing and unenlightening. It finds itself reluctantly disagreeing with the opinion of Mr. Newell B. Snow, an elderly engineer of many years' experience and for whom the Court has great respect. Mr. Snow was called by petitioner Crimmins and drew a plan upon which the other two engineers, who appeared for the petitioners, depended. This plan was entitled "Plan Showing Proprietors Third Division Lots in Vicinity of Higgins-Crowell Road, Yarmouth. Scale 1" = 80', January 3, 1975, Newell B. Snow R. L. S. Buzzards Bay, Mass." (Exhibit No. 3) It showed the parcel claimed by petitioner Crimmins outlined in red on Exhibit No. 3. The Crimmins lot itself was shown on a separate plan found on page 43 of the abstract in Case No. 38167 entitled "Plan of Northerly Lot on Higgins-Crowell Road in Yarmouth. Scale 1" = 80', September 10, 1963. Newell B. Snow RLS". The Snow plan, Exhibit No. 3, besides showing the Crimmins parcel, shows various parcels claimed to be in the 19th, 20th and 22nd lots of the third division. The Bassett parcel was shown by Mr. Snow on Exhibit No. 3 and again on the plan shown on page 43 of the abstract in Registration Case No. 38167 as bounding the Crimmins parcel to the south. Wiggin claims land to the north of the Crimmins parcel as well as a part of the Crimmins parcel itself. The division of the lots between the land claimed by Bassett to the south, Crimmins in the middle, and Wiggin to the north as determined by Mr. Snow depends in the final analysis upon the finding that a very controversial pile of stones found at the northeast corner and an equally controversial pile of bricks found at the northwest corner of the parcel claimed by Crimmins were in fact bounds.

Mr. Snow testified that at the westerly line of Higgins-Crowell Road there were three or four stones that he thought looked like they had been put around a stake although there was no stake there then. Further these stones were sort of overgrown with shrubs or brush. (Volume I, Page 67-68). He determined that this pile of stones was the northeast bound of the Crimmins parcel and ran a traverse line westerly to South Sea Mill Road, presently a mere path impassable by automobiles. He then searched on South Sea Mill Road for a bound and north of the intersection of the traverse line and South Sea Mill Road he found a pile of bricks interspersed with pottery chards. Mr. Snow decided that these bricks must be the northwest bound of the Crimmins parcel. He then drew a line between the stones on the northeast and the bricks on the northwest to form what he considered to be the northeasterly line thereof.

Further testimony was that Mr. Snow measured south down South Sea Mill Road from the pile of bricks for the westerly line of the Crimmins lot. Then he measured south down Higgins-Crowell Road as laid out in 1964 until it intersected with the Old Higgins-Crowell Roadway abandoned when the new road was constructed and then followed the latter for the easterly line. He measured far enough so that when he drew a line west from the Old Higgins-Crowell location line to South Sea Mill Road, roughly parallel to the division line between the 19th and 20th lots of the third division, an area of 16.31 acres was encompassed.

Crimmins' title chain is derived from a deed of Joyce Taylor to James Ellis dated June 3, 1886, recorded in Book 172, Page 184 (Exhibit No. 1, sheet 3) which recites that the property described therein was that set off to Sarah S. Hallett, one of seven children of Alexander Baxter to whom the southerly portion of the 19th lot was set off. It is noteworthy that this deed of Taylor to Ellis contained no description other than a bounding one and was said to contain 17 acres more or less. The title then came down through probates to Freeman M. Baxter et al who conveyed it by deed dated November 23, 1970 and recorded in Book 1491, Page 625 (Exhibit No. 1, sheet 38) to Crimmins.

This deed from Freeman M. Baxter was the very first deed to describe the parcel by metes and bounds, following the courses set out on the plan of Newell B. Snow appearing on Sheet 43 of the Abstract in Land Court Case No. 38167. The parcel was said to contain 16.31 acres.

Mr. Snow testified that all he had to go on when he drew this plan were the descriptions in the deed from Taylor to Ellis (Exhibit No. 1, sheet 3) and any other descriptions he might have found in the various deeds of abuttors. A thorough search by the Court through all the exhibits and the abstracts in both cases did not unearth any more useful description than that set forth in this deed from Taylor to Ellis. Thus, Mr. Snow had to construct this parcel from this description and from what he found on the ground. The deed description was of no help and all he had to go on on the ground were the stones on the west side of Higgins-Crowell Road and the bricks some few feet east of South Sea Mill Road. From this he determined that the stones and the bricks marked the northeast and northwest corners respectively of the Crimmins parcel and then plotted a lot with 16.31 acres in it. The size of the lot was determined entirely on where he placed the southerly line and there was no explanation for the placing of this southerly line. It if had been placed a few feet to the south of where it was placed the area might have been made to more nearly approximate the 17 acres called for. It is also noteworthy that this line was not placed on the division line between the 19th and 20th lots of the third division.

The division line between the 19th and 20th lots of the third division was placed by Mr. Snow on Exhibit No. 3 about 230 feet to the north of where he placed the Crimmins southerly line. Evidently, Mr. Snow (and the other engineers) missed an ancient split stone bound, pointed out by Thomas Kelley, an engineer called by Mr. Wiggin, at the time of the view. This ancient split stone bound was some 20 feet to the east of South Sea Mill Road and about 120 feet north of the Crimmins' southerly line. At the time of his testimony on February 19 and 25, 1975 Mr. Snow evidently learned of this ancient split stone for he revised what was introduced into evidence as Exhibit No. 3. The Court itself in considering this matter discovered an apparent discrepancy between Exhibit No. 3 and a plan never introduced into evidence but given to the Court supposedly as a copy of Exhibit No. 3. On close examination it appeared that this supposed copy of Exhibit No. 3 had on it the notation "Revised March 10, 1975 to show bound set to mark Proprietors' lines". This revised plan shows the ancient split stone bound. It also shows it as marking the division line between the 19th and 20th lots which line shown on both plans by dashed lines has been moved in the revised plan some 120 feet to the south of where it was found on Exhibit No. 3. The southerly line of the Crimmins lot was not moved, however. This discrepancy in the Snow plans was called to the attention of the attorneys in this case at a conference called by the Court upon discovering the additional plan with the papers in the case.

Mr. Snow did not draw the Crimmins file plan, this being drawn by an engineer, Everett Hale Hinckley. Mr. Hinckley testified that what he did in effect was to accept the lines as set out by Newell Snow in Exhibit No. 3 and on page 43 of the Abstract in Land Court Case No. 38167. He then subdivided the parcel and checked the bounds but made no independent search of surrounding parcels, relying instead on the Snow plan. Therefore, the file plan as submitted by petitioner Crimmins depends wholly upon the lot as depicted by Newell Snow and this in turn depends upon our acceptance of the pile of stones exactly on the westerly line of Higgins-Crowell Road as being the northeast boundary and the pile of bricks just off South Sea Mill Road as being the northwest boundary of the Crimmins parcel.

The pile of stones claimed to be the northeast boundary of the Crimmins parcel looks very much like other stones along the side of Higgins-Crowell Road, scattered at random evidently when the road was built. The pile of stones is not shown as a bound on the lay-out plan of Higgins-Crowell Road (Exhibit No. 116B). The concrete bound was put in by Mr. Snow and it is found to be exactly on the edge of Higgins-Crowell Road as laid out. There was conflicting testimony from Mr. Kelley as to whether this pile of stones was a bound or not.

The testimony as to the pile of bricks being a bound is not very convincing either. According to the testimony of Mr. Newton and Mr. Kelley, witnesses for respondent Wiggin, and indeed of Mr. Snow himself, bricks of this type were not often used as bounds in this area. There was additional testimony from Mr. Newton who searched old dumps for antique bottles that he had in the past searched this area. There were pottery chards found amongst the bricks and seen on the view. A concrete bound put in by Mr. Snow is now in the midst of the pile of bricks. The pile itself does not appear to be in any particular order which one might expect particularly in the marking of a corner bound.

Thus, neither the pile of stones located exactly on the line of Higgins-Crowell Road as laid out in 1954 nor the pile of bricks at the northwest corner are very convincing bounds upon which to base the division of large tracts of land. The Court remains unconvinced that these bounds mark the northerly line of the Crimmins lot and finds that the petitioner Crimmins has not sustained his burden of proving the northerly line of the locus claimed by him.

On May 16, 1978 a motion was heard to reopen the hearing in the Bassett Case No. 35776 to admit a deed from Crimmins to Bassett conveying all Crimmins' right title and interest to the locus shown on the Bassett file plan. Respondent Crimmins did not object. Wiggin was a respondent in the Crimmins case, Land Court Case No. 35776 so could not object, although his attorney was present at the hearing of this motion. Prior to the allowance of this motion on the same date and the introduction of this deed (Bassett, Exhibit No. 7), the Court had been prepared to find that since the northerly line of the Crimmins parcel failed, of necessity the placing of the Bassett parcel would likewise fail. Bassett’s engineer, Robert Eldridge, testified that he looked at the available deeds, consulted Mr. Snow and determined that the northerly line of the Bassett property was where Mr. Snow had determined the southerly line of the Crimmins parcel to be. Thus, until the recent deed (Bassett, Exhibit No. 7), the Bassett parcel's location hinged upon our acceptance of the pile of stones as being the northeasterly bound and the pile of bricks being the northwesterly bound of the Crimmins parcel.

Even if the Court were to concede for the moment that a parcel claimed by Wiggin (Wiggin, Exhibit No. 2), described in the deed from Louis Drew to Andrew, Ezekiel and Jonathan Hallett, dated September 6, 1815 and recorded in Yarmouth, Book 1, Page 345, juts into the Crimmins parcel it would not come so far as to reach the southerly line of the Crimmins parcel and the northerly line of the Bassett parcel as shown on the file plans in the two cases. The Court is convinced that Crimmins owns land to the north of this line and that he may have owned land to the south of it but has not been convinced as to its location. With the deed from Crimmins to Bassett of any land he may own to the south of this line any difficulty the Court has as to the line itself is resolved. Thus the Court finds that the northerly line of the Bassett parcel is as shown on the file plan in Land Court Case No. 35776.

In addition to the question of the location of the parcels there is the further difficulty of tracing the title to the various parcels. The parcel set forth in the paragraph above (the Louis Drew to Andrew, Ezekiel and Jonathan Hallett parcel - Wiggin, Exhibit No. 2) recited as containing 11 1/2 acres, more or less proves particularly troublesome. This parcel, from which Wiggin claims title in part, is described as being 24 1/2 rods east and west and 76 rods north and south. Mr. Wiggin locates this parcel as being the middle one-third of the 19th lot of the third division, which would put it to the west or astride Higgins-Crowell Road. Mr. Wainwright believes it to be east of this road. If it is as Mr. Wiggin believes it to be, it may well jut south into the lot claimed by Crimmins. The lot can also be located well to the east of Higgins-Crowell Road so far as reference made to abuttors therein is concerned. At any rate this is a key deed and the Court is unconvinced as to its location.

Alexander Baxter on his death in 1870 owned part of Lot 19, Lot 20 and Lot 21 of the third division, among other parcels. These lots were divided among Alexander's seven children on his death. Three of the children had Lot 21 to the south set off to them, the most southerly being set off to Sylvester Baxter, the middle portion to Ira Baxter and the northernmost portion to Martha Baxter. These parcels are not involved in this litigation in any way. Only the parcels contained in Lot 19 and Lot 20 seem to be in issue. The northernmost parcel of Lot 19 went to John Baxter and is now claimed at least in part by Mr. Wiggin. The southernmost parcel of Lot 19 went to Alexander Baxter's daughter, Sarah Hallett.

It is from the Sarah Hallett parcel that petitioner Crimmins' title stems. The title comes down from Sarah Hallett without difficulty to Crimmins so that title wise the parcel could be registered except for the difficulty in locating the parcel precisely. The placement of the northerly line is unclear and uncertain and may well be affected by the Drew to Andrew, Ezekiel and Jonathan Hallett deed (Wiggin, Exhibit No. 2).

The title to the Bassett parcel presents problems but on the whole the Court believes they are solvable. Of the shares of the seven children of Alexander Baxter we have up to now accounted for five - namely those of John Baxter and Sarah Hallett in Lot 19 to the north and those of Sylvester Baxter, Ira Baxter and Martha Baxter in Lot 21 to the south. This leaves the interests of the two remaining children of Alexander Baxter to be placed. The Court finds that the southernmost portion of Lot 20 was set out to Alexander Baxter's daughter, Maria Lothrop. This Maria Lothrop lot was bounded on the south by the lot set out to another daughter, Martha Baxter, this being the most northerly of the three parcels in Lot 21. This can be seen by examining the deed of Martha's only son, George L. Thacher (Exhibit No. 111) after her death. He conveyed a parcel of land to James Ellis and Joyce Taylor, by a deed dated November 18, 1885 recorded in Book 172, page 186 (Exhibit No. 112) describing the parcel as being bound "on the northerly side by land of Maria Lothrop's heirs woodland." The southern boundary of this Martha Baxter parcel is recited as being bound "on the south by Woodland of Ira Baxter's heirs." We know that Ira Baxter's heirs parcel was the middle parcel of Lot 21 and thus this Martha Baxter parcel must be the most northerly parcel of Lot 21. The Maria Lothrop parcel is thus placed as the southernmost part of Lot 20 and title can then be traced to the Scudder-Taylor Oil Co. on the west and formerly to the A.D. Makepeace Company, Land Court Case No. 32595, now of the Town of Yarmouth on the east.

The only parcel left to be placed of the parcels set off to the children of Alexander Baxter is the seventh to his son Allen. By the process of elimination only the northern part of Lot 20 remains. The Allen Baxter parcel is described in the deed of George L. Thacher and Edward Chase to Frank D. Hallett, dated March 19, 1892, and recorded in Book 222, Page 110 (Abstract 35776, Sheet 2). There the parcel is bounded easterly by the "(so-called) Higgins-Crowell Turnpike; Southerly by woodland of Lot Hallett (formerly called the Thacher Lot) and woodland (supposed) of Sylvester B. Lothrop; Westerly by the so-called, old 'Mill Way' or Road; and Northerly by woodland supposed to be held by Heirs of Nelson Baxter and woodland of James Ellis." A second paragraph to the description in this deed contains the following measurements:

"Said Lot measures about 34 rods on the first named East side; 74 rods on the fourth or North side; 26 rods on the third or West side; and 80 odd rods on the second named or south Side, and contains 14 acres, more or less. (These measurements are not accurate)."

The last sentence in the description quoted above is certainly correct, as admittedly this description leaves a lot to be desired. The parcel only roughly fits the area shown on the Bassett file plan, being the northerly portion of Lot 20. The southerly line is recited as being 80 rods which translates to 1272 feet in length and as shown on the Bassett file plan measures to 1320 feet. The northerly line is recited as being 74 rods in length and measures 1024 feet - a considerable difference. The southerly line though is longer than the northerly line which corresponds to the physical layout of the area as Higgins-Crowell Road and South Sea Mill Road tend to converge as they go north. The Court is satisfied that there is no other place for this lot and finds that this is indeed the location of this Allen Baxter parcel. Title to it then comes down without incident to petitioner Bassett.

Thus, to recapitulate, the Court finds that petitioner Crimmins has not sustained the burden of proving that he has a good registerable title to the parcel shown on the file plan. The Court does find, however, that with the acquisition by the petitioner Bassett of all of petitioner Crimmins' title to the land as shown on the Bassett file plan, the locus as shown thereon is sufficiently located and the title chain from Alexander Baxter's heirs is sufficiently clear for registration of the Bassett parcel.

Consequently, the Court orders that the petition of Crimmins for registration be dismissed. Further, the Court rules that the title to the parcel shown on petitioner Bassett and Rodins' file plan be registered and confirmed subject to such other matters as are disclosed by the examiner's abstract which are not in issue herein.

Judgment accordingly.


[Note 1] The Court notes that the Town of Yarmouth also filed two answers in this case, one on May 19, 1969, and a second on January 28, 1975, claiming certain easements. On September 21, 1973, and February 13, 1975, stipulations were filed relating, respectively, to these easements. The Town did not then participate further in the proceedings thereafter.

[Note 2] See page 6 herein for other names for these ways.