This is a petition to register and confirm title to a parcel of land, hereinafter referred to as locus, located on the southerly side of Setucket Road in Brewster, Massachusetts.
An answer was filed by the Town of Brewster claiming that Red Top Road shown on the petitioners' file plan is a way to which the public has a right of access. The petitioners and the Town of Brewster agreed upon a stipulation which was exhibited to the Court and which the parties have agreed to enter upon the completion of this case. (Tr. 1-6).
The Attorney General filed an appearance for the Commonwealth but no answer. He has entered into a stipulation with the petitioner to be filed in the case to protect any rights which the public may have in Upper Mill Pond, a great pond, abutting locus to the south. The petitioners agreed that they have no objection to this claim. (Tr. 1-5).
Respondents William R. Carr and James M. Gage filed an answer disputing petitioners' claim of ownership to a parcel of land along the westerly boundary of locus as shown on the file plan.
The area in contention is the southwesterly portion of locus. The three key deeds in tracing petitioners' title to the disputed portion of locus are first a deed from John M. Curtis to Ralph N. and Blanche L. Doble, exhibit no. 4, second a deed from Harry W. Clark et al to John M. Curtis, exhibit no. 6, and third a deed from Anguish McCloud to Isiah Clark et al, exhibit no. 8.
The deed from Curtis to Doble, dated September 16, 1955 and recorded in Barnstable Registry of Deeds, Book 922, page 24 describes the granted premises as bounded, in material part,
On the South and West by land now or formerly of Nathan Black; and
On the West by land now or formerly belonging to the Heirs or Devisees of David Sears and by land now or formerly belonging to George Cash.
The land "now or formerly of Nathan Black" is shown on exhibit 1, the petitioners' file plan, as land of Charles E. and Lura Shaffner Teeter registered in Land Court case number 33327A. The land "now or formerly belonging to the Heirs or Devisees of David Sears" is basically triangular in shape and located northerly of the land in case number 33327A. The Sears land is bounded on the south by case no. 33327A, on the east by locus and on the third side by the center line of a cart road which runs in a northeasterly and then northerly direction to Setucket Road terminating opposite Red Top Road, hereafter referred to as the Red Top cart Road. The land "now or formerly belonging to George Cash" is bounded on the east by the center line of the same cart road and on the north by Setucket Road.
The Clark-Curtis deed is dated September 26, 1930 and is recorded in Barnstable Registry of Deeds, Book 477, page 530. (Exhibit No. 6). The land conveyed by this deed is bounded in material part as follows:
Northerly by said South Dennis Road about seventy-five (75) paces; Easterly by land of the said John D. Curtis described in two deeds....; Southerly by land formerly supposed to belong to Jeremiah Walker, but now of Nathan Black about seventy-five (75) paces; Westerly partly by land belonging to the heirs or devisees of David Sears, and partly by land now or formerly belonging to George Cash or his wife.
Mr. Halnon, the petitioners' surveyor, after researching the Cash deed, determined that the above described 75 paces by South Dennis Road runs between the center of the Red Top Cart Road along Setucket Road to an old rusted fence post set through an old cement block 193.7 feet away and the Court so finds. Mr. Halnon testified that seventy-five paces is equivalent to 180 to 210 feet, depending upon the size of the individual making the paces and whether or not he exaggerates his step. Thus the 193.7 foot distance along Setucket Road is consistent with the deed description. In any event, this northern boundary is not disputed by respondent. From the above described fence post on the east an old wire fence runs in a southerly direction. The petitioners' surveyor was not certain whether or not the eastern boundary of the land described in the Clark-Curtis deed follows the fence line because sometimes fences were laid along the path of least resistence rather than precisely along the property line. The southern boundary, by land of Black, has already been referred to as that land registered in Land Court case no. 33327A. This southern boundary is 204.74 feet in length, again consistent with the 75 paces called for in the above deed. The western boundaries, by land of Black, Sears, Cash, have already been located in con- nection with the Curtis-Doble deed.
The Clark-Curtis deed states that the above described conveyed land contains "by estimation, about eight (8) acres of land, be the same more or less." If the eastern boundary does follow the fence line the area enclosed and conveyed is less than 8 acres. (Tr. 23).
The Clark-Curtis deed, exhibit no. 6, further recites
"The above described land was originally or formerly owned by our great-grandfather Isaiah Clark; afterwards by our grandfather Willaim (sic) Clark of said Brewster, who died testate in said Brewster about the year 1888; and we, the within grantors, are the sole owners of the within granted premises."
Petitioners' exhibit no. 8, a deed recorded in Brewster, Book 1, page 430, dated April 20, 1813 from Anguish McCloud to Abraham Winslow, Joseph Winslow and Isaiah Clark grants a "piece of cleared land containing eight acres be the same more or less - bounded on the north by the County Road - on the East by William Robbins - on the South by Benjamin Walker - on the West by Benjamin Walker and others." Benjamin Walker is a prior owner of the Black land (Tr. 1-24) already located as Land Court case no. 33327A.
Thus, recapitulating, the most western portion of locus as shown on the file plan can be traced from the 1813 deed to Isaiah Clark et al (Exhibit No. 8) to John Curtis (Exhibit No. 6) then to petitioners. (Exhibit Nos. 4, 5).
Further evidence of the location of the parcels described in exhibits 4, 5, 6, 8 comes from a 1929 Barnstable County Commissioners' plan showing the layout of Setucket Road. (Exhibit No. 9). This plan shows the intersection of Red Top Road and the Red Top Cart Path, which forms part of the western boundary of locus, with Setucket Road and notes the ownership of various parcels. To the east of the Red Top Cart Path the heirs of William Clark are written. This is consistent with the statement quoted above in exhibit no. 6, the Clark-Curtis deed dated September 26, 1930. There is also a fence line symbol in approximately the same location as on petitioners' file plan. To the west of Red Top Cart Path is listed Elizabeth Cash, possibly the wife of George Cash.
In 1970 the respondents purchased "all my right title and interest in and to certain parcels of land in Brewster (West) Barnstable County, Massachusetts which I have acquired or inherited as an heir of David Sears, formerly of Dennis" from Clair Hall by deed dated April 29, 1970 recorded in Book 1470, page 930. Turned over to them at this time were some documents, including deeds, that had not been recorded. One such was a deed from Nathaniel Winslow, Abraham Winslow and Isaac Winslow to David Sears dated May 1, 1841 and recorded in Barnstable Registry of Deeds, Book 1501, page 524 on March 3, 1971 conveying
"a certain piece of Woodland or brushland, situated in said Brewster and bounded as follows, to wit, beginning at the cross Roads, so called, from thence running Northeasterly by said road to land of Abraham Winslow, deceased, John Dillingham, deceased, thence east Southerly by a blind cart road to Anguish McCloud's range, then Southerly to this road and by said road to the first mentioned bound, containing three acres be the same more or less."
The area the respondents believe is encompassed by this deed description is shown on Chalk A. The crossroads would be the intersection of the Red Top Cart Road and Slough Road. The bounds then proceed northeasterly along the Red Top Cart Road to the Blind Cart Road. The respondents identify the Blind cart Road as the continuation of a cart road which starts at Setucket Road west of Red Top Road and runs southeasterly to the Red Top Cart road. Respondents hypothesize that this cart road continued across Red Top Cart Road towards the old wire fence. The Court, on the View, looked for evidence of the continuation of this cart road and found little, if any indication. The respondents argue the bound then continues southerly to the Slough Road and westerly along the Slough Road to the point of beginning forming a large triangular piece of land. Respondents admitted that the land encompassed by the bounds respondents identify is a lot more than the three acres (Tr. 1-75) called for in the deed and the Court so finds.
Thus, on the one hand, this Sears deed calls for much more than three acres, whereas the Clark-Curtis deed calls for 8 acres that can be readily placed. The Court is convinced that the Clark-Curtis parcel is where placed on the file plan and so finds.
Respondents also claim rights of way across locus to land located at some distance southeasterly of locus abutting a pond. The location of these alleged rights of way was not specified with any precision. As evidence of these rights of way respondents submitted two unrecorded ancient documents purporting to be memorandums of rights of way across locus. Respondent Carr obtained these documents from Leon Hall, a grandson of David Sears, who had kept the personal papers of Sears in a safe in the Hall Oil Company in Dennis, Massachusetts. The first is dated July 30, 1840 and is signed by Nathan Dillingham. It states:
In consideration of One dollars and other values, paid by David Sears liberty is granted to David his heirs and assigns, to pass and repass on the land, where it will do the least damage by interfering with grain now owned by me and conveyed to me by deed from Jeremiah Newcomb dated April 14, 1835 and recorded in the 8th book folio 158.
The Court has no evidence before it where the land referred to in this document is located. It is pure guess work to claim it is within locus. The second unrecorded document dated September 24, 1846 is signed by Alexander Robbins and states:
In Consideration of two Dollars paid By David Sears I Sell & Convey unto Said Sears to his heirs & Assigns For Ever the privilege of Passing and Repassing Curing & Drying peat on A Certain piece of land Adjoining his peat Swamp Said Land Lying West & Southerly of Said Swamp the Above is to Be Entered on the Deed of Said Land As witness My hand the Above Swamp Lies Between James Hopkins pond & the Mill pond.
Again, there is no evidence to place the way within the locus or with any degree of specificity anywhere else and thus the Court need not reach the question of abandonment.
The petitioners are entitled to a decree of registration in conformity with the findings of this decision, subject only to such other matters not in issue herein as are disclosed by the abstract of title.