NORMAN A. GRAY, et ux v. KARL D. CLEMMEY and CAROLE A. CLEMMEY.

Petitioners seek to register certain land located on Route 140, South Main Street, shown on the file plan 38175A2. Respondents filed an answer contesting certain claims of the petitioners.

A hearing was held on January 5, 1978 at which five witnesses testified and seven exhibits were introduced. Two more exhibits were introduced into evidence by agreement of the parties at the view taken on May 30, 1978 with the parties and their attorneys present. All exhibits are incorporated by reference herein for the purpose of any appeal.

Three matters are in contention. The first concerns the boundaries of a narrow strip of land which juts northerly to the Rumford River; the second concerns a right of way in the public to travel through parallel stone walls located along parts of the boundary of locus to reach the so called "Great Woods" to the west of locus; and the third, a right of way over the northeast portion of the locus through the parallel wells mentioned above to land now owned by respondents Clemmey.

1. The northerly jut to the Rumford River

Petitioners' land is immediately south of the respondents' land. A narrow strip of land, the boundaries of which are in contention, juts northerly from the northeasterly corner of the petitioners' land as it borders Route 140, South Main street, into the respondents' land and to the Rumford River. Route 140 runs generally in a north-south direction, although it did not always do so, having been moved to the west over the years. The Rumford River flows generally from the northwest to southeast. Route 140 crosses the Rumford River by bridge near the terminus of the jutting strip.

Petitioners claim title to this strip of land through a deed from Walter M. Leonard to Andrew Clapp dated August 15, 1904 and recorded in Book 601, page 101, Bristol County Northern District Land Records. (Exhibit No.9). The purpose of this strip was to afford Mr. Clapp access to the river to water his cows. (Tr. 45, 62). The description of the "narrow jut" in this one deed in petitioners' chain of titIe which contains a metes and bounds description is as follows:

beginning at a point in the division line between said Clapp and said Leonard fifty (50) feet Westerly from the Embankment of the Mansfield and Norton Street Railroad; thence by land of Grantor North 17 3/4° East by the wall as the wall now stands two hundred forty two and four tenths (242 4/10) feet to a corner; thence South 71 1/2° East ninteen (19) feet to an iron pipe driven in the River near the bridge, thence downstream twenty-three and three tenths (23 3/10) feet to the Westerly corner of the South abutment of said bridge; thence Westerly by the wing wall twenty-three and one half (23 1/2) feet to the end of said wall; thence Southerly by the Embankment two hundred sixteen and seven tenths (216 7/10) feet to land of Grantee; thence by land of Grantee westerly fifty (50) feet to the first mentioned corner....

This deed description refers to a bridge, wing wall and an abutment of the bridge. Whether the bridge, wing wall and abutment relied upon by the petitioners' surveyor, Mr. Maloon, in drawing the A2 file plan are in the same location now as in 1904, the date of the Leonard-Clapp deed, was controverted at trial. The Court concludes that they are and so finds.

Mr. Maloon, petitioners' surveyor, apparently was not aware of Exhibit No.8, the Department of Public Work's plan introduced into evidence at the view, when he made his survey for the distances and monuments set forth in the file plan herein, Exhibit 2.

He commenced, in accordance with the deed description as set forth above, at a point where two stone walls come together, one of which runs westerly along the northerly boundary of locus and the other of which runs northerly along the western side of the narrow strip now being considered. (Tr. 7). He set a drill hole at the intersection of the two walls and then measured northerly along the wall to its end some 243.81 feet where he found an iron pipe. While the deed description calls for a distance of 242.4 by the wall and does not explicitly state that the entire length of the wall is to be traversed nor mention the iron pipe, in View of the small discrepancy between the actual length of the wall and the deed description, 1.41 feet, and the circumstance that the wall ends abruptly, the Court finds the westerly bound of this jutting strip to the river to be shown on the A2 file plan. This stone wall is shown on Sheet 2 of Exhibit 8 and scales to approximately the same length as the deed description above. It is also shown clearly on Exhibit 4, the 1933 State Highway Layout, (and partially on Exhibit 3, the 1928 State Highway Layout) as the southeasterly line of land shown as of Anthony and Annie Wichland and again scaling almost exactly to the 243.81 feet called for in the Leonard-Clapp deed.

For the next course the deed then gives a bearing of south 71 1/2° East 19 feet to and iron pipe driven in the river. Mr. Maloon was unable to find this pipe but it measured 19 feet from the iron pipe at the end of the stone wall in accordance with the deed bearing to a point in the river. (Tr. 12, 29; see Exhibit No.5). There is a broken line shown on both Exhibit No. 4 and Exhibit No. 8 extending southeasterly into the river which scales to some 19 feet and corresponds to the line shown on the file plan. The Court finds the second course to be as shown on the A2 file plan.

Mr. Maloon did not adhere to the next two calls in the deed in drawing the file plan. Instead of measuring 23.3 feet downstream to the westerly corner of the south abutment and then westerly by the wing wall, he measured from the point in the river (where the iron pipe should have been) south 15.32 feet to the westerly end of the wing wall and then east 15.99 feet along the wing wall to the edge of Route 140. (Tr. 30). Mr. Maloon did not clearly indicate why he departed from the deed description in these last two calls, except to note that he had spoken with Land Court Engineers. (Tr. 39).

The distance from the point in the river, shown on both the file plan and on Exhibit Nos. 3, 4 and 8, to the westerly corner of the south abutment of the bridge scales to approximately 23 feet. This corresponds almost exactly to the distance stated in the deed. Exhibit 3 in fact shows a dotted line from the point in the river to the westerly corner of the south abutment of the bridge. Thus, there is little question that the file plan is incorrect. The line should run from the point in the river 23.3 feet to the westerly corner of the south abutment and the Court so finds.

Having found that this third course ends at the westerly corner of the south abutment of the bridge, the fourth course falls into place. According to the deed, this course runs westerly 23 1/2 feet to the end of the wing wall. This wing wall is shown on the file plan and on Exhibit Nos. 3, 4 and 8. The course shown on the file plan is the reverse of what is called for in the deed and is clearly wrong. The Court finds that this fourth course runs 23 1/2 feet westerly from the westerly corner of the south abutment of the bridge along the wing wall to its end.

The next course called for in the deed is southerly by the embankment 216 7/10 feet to land of grantee. Exhibits 4 and 8 show a broken line presumably marking the westerly line of land of Anthony and Annie Wichland running almost from the end of the wing wall southerly and ending at a point which is on the line of the easterly extension of the stone wall marking the petitioners' claimed northerly boundary shown on the file plan. This extension line connects the stone wall shown on the file plan and also shown on Exhibits 4 and 8. Further, this terminal point scales almost exactly to the 216 7/10 feet. In addition this point scales 50 feet easterly from the point of beginning as called for in the deed, as shown on Exhibits 4 and 8. Thus the Court finds that the fifth course and the sixth course are 216 7/10 feet and 50 feet respectively as described above.

The 50 foot southerly line of the jut described in the deed makes no difference in the present case as the petitioner owns the land to the south. However, the southeasterly line of 216 7/10 feet is not as shown on the file plan. This line does not run along South Main Street, Route 140, but rather runs slightly to the west of it. The file plan shows Massachusetts Highway Bounds marking South Main street and placed in accordance with the layout shown on Exhibit 4. But upon looking at Exhibit 4 it will be seen that the southeasterly corner of the so-called jut is some 3 feet to the west of the street line and the northeasterly corner some 15 feet to the west thereof. Thus the Court finds that the file plan is incorrect and that petitioners' land does not extend to the line of South Main Street.

Since petitioners' engineer, by not following the third and fourth courses in the deed, claimed less land in his registration petition than he was entitled to in the river area, there is no difficulty in the Court's granting registration to the northerly area thus claimed on the file plan. A small triangular parcel has been eliminated. Respondents have no cause for complaint of this omission. The petitioners' plan claims land to the line of South Main street, Route 140; the Court has found that the land so claimed includes more than was owned by petitioners along this easterly line. Only the portion shown on Exhibits 3, 4 and 8 west of the broken line may be registered and not the portion bounded on the west by the broken line and on the east by the street.

Respondents' basic contention with respect to this jutting strip is that it does not run to the river but terminates somewhat short thereof. As the Leonard-Clapp deed specifically mentions the river, respondents' argument must fail. The respondents argue the river was wider in 1904 than it is today. Be that as it may, it is clear that the course running nineteen feet from the stone wall to the iron pipe terminates in the river. See Exhibit No. 5 The Court observed on its view that the river is within a few feet of the end of the stone wall. Thus, the Court is convinced that the jutting strip runs into the Rumford River and so finds.

2. Public right of way to reach the Great Woods.

Parallel to the wall along the northern boundary of locus as shown on the 38175A2 file plan is another wall approximately eight to ten feet to the south. While the second wall does not run the entire 1384.43 feet parallel to the northern boundary, it does cover a large portion of it interrupted by intermittent gaps. Today there is growth consisting of trees of considerable dimension, vines and brush between the two walls, and the area is not passable by vehicle or on foot. In 1961 when petitioner walked the land with one of the former owners, Ruth Clapp, the area was not passable, being blocked by smaller trees, then approximately three or four inches in diameter, between the walls. (Tr. 63). These are much larger today.

Testimony as to use by the public of the passageway between these walls was as follows:

Patricia Lestan, a witness, lived on the property north of that now owned by respondents Clemmey as a child. From about 1949 to 1953 she travelled on horseback between the stone walls.

In the middle 1940's when Mr. Clemmey, now 38, was growing up, he, his friends and people in the neighborhood travelled through the parallel walls on foot, horsebacK and with pony carts to gain access to the Great Woods which are located to the west of locus. Alernatively, he would go over land formerly of Harrar, now owned by respondents, to reach the Great Woods. (Tr. 81). The area between the walls then was passable. Mr. Clapp, the then owner of locus, gave respondent permission to use the passageway on horseback but forbid respondent and his friends to drive cars through. (Tr. 84). Respondent last travelled between the two stone walls about 20 years ago. He at that time stopped using that passageway because the property was posted "no trespassing." (Tr. 70). Thereafter respondent and others used another path for access to the Great Woods. (Tr. 70).

In the 1920's and earlier, Mr. Prescott, born in 1900, and his friends also frequently travelled through the passage to reach the Great Woods. At that time he lived about a mile from locus. Mr. Clapp, the then ovmer of locus, did not object to this use by Mr. Prescott and his friends. Also in the 1920's the passageway was used by Mr. Clapp and Mr. Leonard, the owner to the north, to drive their cows through.

The Court concludes the use of the passage between the stone walls testified to by the witnesses was permissive, not adverse, as evidenced by the facts that Mr. Clapp controlled the mode of usage and that use ceased upon the posting of the property.

3. Respondent's appurtenant right of way over a portion of locus and through the walled passage.

Mr. Walter W. Leonard, a predecessor in title to respondent, used to drive his cows to pasture through the passage between the parallel walls during the early 1920's. (Tr. 93). This same Mr. Leonard was the grantor of the narrow strip of land now in contention to Mr. Clapp. Respondents argue that the deeding out of this narrow strip of land cut off Mr. Leonard's access to his land, yet Mr. Leonard continued to use the passageway with his cows. Respondent hypothesizes that at the time Mr. Leonard deeded the narrow strip to Mr. Clapp, Mr. Clapp granted Mr. Leonard a right of way through the stone passageway. However, this later deed was not recorded and is now lost. The Court is unconvinced.

The court does not perceive that Mr. Leonard's access to his land was in fact cut off by the deeding out of the northerly jut. Formerly there was a bridge across the Rumford River northerly of the present bridge that accommodates Route 140. The Court saw the remains of the abutments of this bridge on the view. The location of this bridge is shown on exhibits 4 and 8. This bridge would have provided access to Mr. Leonard's pasture land without crossing Mr. Clapp's land.

There is a well worn, clearly defined path leading to the Great Woods which the Court followed on its view. This path commences on the east side of locus somewhat southerly of the jutting strip, proceeds in a northwesterly direction crossing into respondents' land and then continues westerly to the Great Woods roughly parallel to the stone wall marking the northern boundary of locus. This path shows traces of once being a three rut track indicating travel by horse and buggy, the outer ruts being formed by the wheels and the middle by the horse.

Though there was testimony Mr. Leonard with his cows used this path followed by the Court on its view, the evidence is not sufficient to indicate this use was adverse or that it was continuous for twenty years. Mr. Leonard's family stopped farming around 1924 though Mr. Leonard himself may have continued until 1930. (Tr. 101). However, the evidence does not indicate the years Mr. Leonard or his family had cows which utilized the path to the pasture. It would be conjecture to assume from the fact that Mr. Leonard was a farmer of some sort that he was a dairy farmer throughout a length of time necessary to acquire an easement by prescription. Hence, the Court concludes the respondents have not sustained their burden of proving an appurtenant easement by prescription.

The petitioners are entitled to a decree of registration in accordance with this decision and subject to such other matters as are disclosed by the examiner's abstract which are not in issue herein.

Decree accordingly.