EDGAR W. FRANCIS, III and KAREN L. FRANCIS vs. MARGARET C. TONER and UNITED STATES OF AMERICA.

By petition filed in this Court on November 3, 1975, Edgar W. Francis, III and Karen L. Francis, the petitioners, seek to register their title pursuant to the provisions of G. L. c. 185, § 1(a) to approximately 3.98 acres of land situated on Highland Road and Coast Guard Road [Note 1] In Truro in the County of Barnstable. The premises are shown on a plan entitled "Plan of Land in (North) Truro To Be Filed in the Land Court EDGAR W. FRANCIS III ET UX, Petitioner," dated July, 1975, by Wilfred G. Slade filed with the papers in this case as Plan No. 39015A (Exhibit No. 1). The southwesterly line of the petitioners' premises as shown on said plan bisects the home of the respondent Margaret C. Toner. Dr. Toner answered claiming that the petitioners were attempting to register their title to a portion of her land. The United States of America, also an abutter, without submitting to the jurisdiction of this Court, filed a representation of interest, but in due course withdrew its appearance, answer and representation of interest.

A trial was had at the Land Court on December 20, 1977, at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. All recording references are to the Barnstable County Registry of Deeds unless otherwise noted.

The only issue in the case is whether the petitioners' rear or northerly line is one hundred (100) feet in length as called for by the deeds in their chain of title or one hundred fifty-four and 55/100 (154.55) feet as shown on the filed plan. The length of the northerly line in turn governs the angle and placement of the common boundary line.

On all the evidence I find and rule as follows:

1. The petitioners acquired title to their premises on Highland Road and Highland Coast Guard Road from Ray T. Reed and wife by deed dated November 4, 1971, and duly recorded in Book 1591, Page 307 (Abstract, Sheet 29, Exhibit No. 8). Mr. and Mrs. Reed in turn had acquired title from George L. Hemond and Helen H. Hemond in four conveyances: one dated August 9, 1957 and recorded on August 13, 1957 in Book 980, Page 359 (Abstract, Sheet 17, Exhibit No. 4) with which we are primarily concerned, a second dated August 30, 1957 and recorded in Book 983, Page 3 (Abstract, Sheet 23, Exhibit No. 5), a third dated September 6, 1958 and recorded in Book 1014, Page 459 (Abstract, Sheet 24, Exhibit No. 6) and the final dated August 6, 1960 and recorded in Book 1086, Page 40 (Abstract, Sheet 25, Exhibit No. 7).

2. Shortly after the first Hemond-Reed conveyance, Mr. and Mrs. Hemond, by deed dated August 20, 1957 but not recorded until the following November 7 in Book 988, Page 282 (Abstract, Sheet 21, Exhibit No. 9), conveyed to Howard M. Thrailkill and Edith M. Thrailkill a parcel of land adjoining the locus and therein bounded and described as follows:

the land in that part of said Truro called North Truro and bounded and described as follows:- Commencing at a stake at the Southeast corner thereof by a Town Way known as Highland Road and by land of Ray T. Reed et ux.; thence Westerly by said Highland Road two hundred (200) feet to a stake by other land of these grantors; thence Northeasterly by other land of these grantors five hundred fifty (550) feet, more or less, to a stake by land of Varzen and land of Reed; thence Southerly by land of Reed, five hundred fifty (550) feet, more or less, to the point of beginning. Being triangular in shape and containing one and one-half (1 1/2) acres, more or less. Being a portion of land conveyed by Matilda A. Small to George L. Hemond et ux. by deed dated June 30, 1955 and recorded Barnstable County Registry of Deeds Book 912 Page 537.

3. Mr. and Mrs. Thrailkill thereafter conveyed the triangular piece described in paragraph 2 to the respondent Toner by deed dated October 21, 1971 and recorded in Book 1577, Page 57 (Exhibit No. 25). The description followed that in the deed to the Thrailkills.

4. The first Hemond-Reed deed described the premises thereby conveyed as follows:

the land in that part of said Truro called North Truro and bounded and described as follows:-

Commencing at a stake at the Southwest corner thereof by a Town Way known as Highland Road; thence Northerly by other land of these grantors, five hundred fifty (550) feet, more or less, to a stake by land of Varzen; thence Easterly by land of Varzen, one hundred (100) feet, more or less, to a stake by land of Alexander; thence Southerly by land of Alexander, two hundred (200) feet, more or less, to a stake at Alexander's Southwest corner; thence Easterly still by land of Alexander, one hundred (100) feet, more or less, to a stake by other land of these grantors; thence Southerly by other land of these grantors, four hundred (400) feet, more or less, to a stake by said Highland Road; thence Westerly by said Highland Road, two hundred (200) feet to the point of beginning.

Containing two and one-half (2 1/2) acres, more or less.

5. George L. Hemond and Helen H. Hemond had acquired title to a large tract of land at the northwesterly junction of Highland Road and Coast Guard Road from Matilda A. Small by deed dated June 30, 1955 and recorded in Book 912, Page 537 (Abstract, Sheet 15, Exhibit No. 3), land of the petitioners and of the respondent Toner comprising a portion of the second parcel described therein.

6. The Hemonds conveyed all of said second parcel to nine grantees by a series of transactions represented by the deeds comprising Exhibits Nos. 4 to 7, 9, 14 and 16 to 23. The aggregate back lines of the granted premises were fifty-four and 55/100 (54.55) feet less than the actual northwesterly line of the Hemond second parcel as measured on the ground. The frontage on Highland Road also was understated in the deeds out, but only by about seven (7) feet. The conveyances have been reconstructed by Schofield Brothers, Inc. and are shown on a plan entitled "Plan of Land in Truro, Mass. as Surveyed and Prepared for Estate of Helen H. Hemond" dated June, 1974 and recorded on July 30, 1974 in Plan Book 286, Page 72 (Abstract, Sheet 33, Exhibit No. 26). In preparing this plan the surveyors prorated the overage in the rear lines and added a proportionate amount to each of the parcels westerly of that of the respondent Toner so that the distances as shown on Exhibit No. 26 exceed those of record.

7. The first deed conveyed out by the Hemonds was that of the most easterly parcel with frontage on Coast Guard Road described in the deed from George L. Hemond and wife to Victor E. Alexander and wife dated May 8, 1957 and recorded in Book 973, Page 202 (Exhibit No. 14). [Note 2] The critical part of the description was the northerly course which ran "Easterly by land of said Varzen four hundred seventy five (475) feet, more or less, to the cement bound at the point of beginning."

8. The description in the first Hemond-Reed deed referred to "a stake by land of Varzen" at the northwesterly end of the course which runs northerly by other land of the grantors (now of the respondent Toner) five hundred fifty (550) feet, more or less. The description then runs "Easterly by land of Varzen, one hundred (100) feet, more or less, to a stake by land of Alexander." William N. Rogers, who at the time of the survey was party chief in the field for Wilfred G. Slade, the Registered Land Surveyor who prepared the filed plan, testified that Mr. Slade and the male petitioner pointed out to him a large stake "sticking a considerable amount out of the ground" with a pipe next to it at the northwesterly corner of the premises as now shown on the filed plan. Mr. Francis testified that at the time of his purchase there were two stakes at the back line as well as one on Highland Road, and that all three were weathered and appeared to be of the same age. James E. Schofield, a Registered Land Surveyor, testified that when he walked the back line in 1965 to prepare an estimate of the cost of a survey for David R. Walker, an eventual successor in title to Mrs. Alexander, he found the concrete bound which appears to mark the division between lands now or formerly of Francis J. Alves, et al., and land now or formerly of Varzen and is shown on Exhibit No. 26 and Exhibit No. 13 but no stakes or iron pipes. In 1973 when he was working on Exhibit No. 26, he found a concrete bound, stake and iron pipe at the westerly end of the line fifty-four and 69/100 (54.69) feet in length shown on the filed plan and a concrete bound but no stake or pipes at the end of the next course shown on the filed plan ninety-nine and 86/100 (99.86) feet in length.

9. The respondent Toner's house was built by George L. Hemond after his conveyance to the Thrailkills, Mr. Hemond being a contractor as well as a developer if indeed his activities fell into the latter category (Exhibit No. 10). Construction did not commence until 1959 as not only the building permit but also the assessors' records (Exhibit No. 11) indicate. Therefore, in light of this and the filing of this case in 1975, Dr. Toner cannot claim the right to maintain her home in its present location through adverse possession, and she does not press this aspect of her answer.

10. In 1972 there was recorded in Plan Book 262, Page 78 by or on behalf of the plaintiff a plan showing the disputed lines substantially as they appear on the filed plan (Exhibit No. 12). The discrepancy between the record title and the petitioners' claim led to these registration proceedings.

The petitioners would have this Court run the southwesterly boundary of his property througn his neighbor's house for no apparent reason other than that the Hemonds in their conveyances to his predecessors-in-title overtated the area which was being conveyed. To reach this result the petitioners argue that the plain words of the deeds should be disregarded and that, since there at one time were found two stakes placed by parties unknown at a time unknown ninety-nine and 86/100 (99.86) feet apart, the deed calling for a distance of about one hundred (100) feet, the southwesterly one should be assumed to mark the northwesterly end of the common boundary between land of Francis and land of Toner. This admittedly leaves a gap of fifty-four and 69/100 (54.69) feet between the concrete bound shown on the filed plan and land formerly of Alexander and of Walker, and now of Andrews. This, the petitioners argue, should be theirs although the expert testimony was all to the effect that "more or less" normally would not encompass a distance as great as fifty feet.

The burden of proving their title is on the petitioners. In order to register title to the premises shown on the filed plan they must establish that the southwesterly boundary and the northwesterly boundary at land of the United States of America are correctly shown thereon. This they have not done, for they have not established that the stakes found by Messrs. Francis and Slade were those referred to in the first Hemond-Reed deed, and I so hold. Even if the petitioners had proven to my satisfaction which they did not, that Hemond had caused the stakes to be placed on the premises one hundred feet apart, as called for by the deed, but about fifty-five feet southwesterly of the Alexander's land, this clearly would appear to have been an error on his part. Admittedly the usual rule is that monuments control distances, but this rule like every other has its exceptions and must yield to the intent of the parties. Temple v. Benson, 213 Mass. 128 , 132 (1912); Murdock v. Chapman, 9 Gray 156 , 158 (1857); Davis v. Rainsford, 17 Tyng. 207, 210-11 (1821). As was said in Holmes v. Barrett, 269 Mass. 497 (1929), at page 500: "[a]n exception to the rule that courses and distances must yield to monuments would exist in case a strict adherence to monuments would lead to a construction plainly inconsistent with the intention of the parties as expressed by all the terms of the grant." This follows the usual rule that deeds are to be construed so as to give effect to the intent of the parties thereto. Gray v. Handy, 349 Mass. 438 , 440 (1965); Walker v. Sanderson, 348 Mass. 409 , 412 (1965); Morehardt v. Dearborn, 313 Mass. 40 , 46-47 (1943); Bass River Savings Bank v. Nickerson, 303 Mass. 332 , 334-35 (1939); Ovans v. Castrucci, 267 Mass. 600 , 606 (1929); Erickson v. Ames, 264 Mass. 436 , 444-45 (1928). A latent ambiguity exists where the application of a description "to the face of the earth" creates uncertainty. Hirsch v. Fisher, 278 Mass. 492 , 495 (1932); cf. LaCouture v. Renaud, 325 Mass. 33 , 36-37 (1949). Thus, where more than one point could be the boundary referred to in a deed, extrinsic evidence is admissible to show what boundary the language of the deed was intended to describe and "to resolve the uncertainty created by the use of the words 'more or less' in the description as to the distance" between points. Ryan v. Stavros, 348 Mass. 251 , 259-60 (1964). Land of an adjoining owner also is a monument, Temple v. Benson, supra at 132; Gayette v. Keenan, 196 Mass. 416 , 421 (1907), and in this case the land of Alexander would be such a monument. If we disregard the easterly stake in favor of the more permanent adjoining owner and adhere to the westerly stake as a monument, the petitioners receive a windfall, one-third more back frontage than is specified in the deed to their predecessors. This clearly could not have been what the original parties intended. It is very hard to believe that Mr. Hemond, who was one of the grantors in both the Reed and the Thrailkill deeds, would have immediately commenced construction of a house encroaching on the Reed premises. This is the conclusion which is reached if the theory of the filed plan is accepted. On all the evidence I find and rule that the southwesterly line of the premises runs from the southwesterly corner of the premises at the point on Highland Road shown on the filed plan northwesterly to a point at land of the United States of America one hundred (100) feet southwesterly of the drill hole in the concrete bound at land of Andrews, formerly Walker; that the petition is to be dismissed as to so much of the land shown on the filed plan as lies southwesterly of the southwesterly line of the premises as herein determined; that the respondent has not, by prescription or otherwise, acquired any right to use so much of the dirt drive shown on the filed plan as lies northeasterly of said southwesterly line and that a decree may be entered registering the petitioners' title to the land lying northeasterly of said line subject to such rights to maintain the cesspool and water spigot shown on said plan as may exist at the date of the decree if in fact the southwesterly line when relocated by the petitioners' surveyor reveals any encroachment and to such other matters as may be revealed by the abstract and are not in issue. These include the necessity of furnishing the Court with copies of the takings of Coast Guard Road and Highland Road as public ways together with a copy of any plan of the former. The surveyor also must update the filed plan, and the Land Court Examiner should file a supplemental report running the title to date from the time of his original report to the Court. In addition, the authority of the party who accepted service on behalf of the abutter, Warren C. Nelson, has not been shown. Since there is a possible overlap between land of the petitioners as shown on the filed plan and of Mr. Nelson as set forth in his deed, the Court must be certain service on him is good. Special notice also is ordered to New Bedford Gas & Edison Light Company and New England Telephone and Telegraph Company relative to the wires shown on the filed plan.

The proper allocation of the overage in the back line of the lots acquired from the Hemonds cannot be determined in this proceeding where all the interested parties are not before the Court. Whatever adjustment, therefore, may be seemly cannot now be established. When the question is presented, there are two theories of apportionment from which the Court may select. The remnant rule provides that when there are successive conveyances by metes and bounds description or by definite quantities, the surplus will enure to the last grantee, if the intent to deed rather than retain the balance of the tract is demonstrated. 3 A. Casner, American Law of Property § 12.123, at 450-51 (1974); accord, 1 Patton on Land Titles § 158, at 420-25 (1957). Alternatively, the apportionment rule, covers subdivisions, and provides that where there is a subdivision of an entire tract into lots and there are simultaneous or successive transfers, the excess will be prorated among each lot thus expanding the descriptions used in making the subdivision. In other words, when "variances are found between the line running from one permanent or known monument to another and that line is as it appears on the plat, the excess ... is apportioned between the intervening tracts on the basis of their respective frontages on the line. This ... rule ... rests upon the premise that any mistake in the platted length of the line occurred from an imperfect measurement of the entire line or total frontage rather than in the frontage of any particular lot or lots." Casner, supra at 451-52; Lincoln v. Edgecomb, 28 Maine (15 Shepley) 275, 279-80 (1848); Booth v. Clark, 59 Wash. 229, 231 (1910); Patton, supra at 420-22.

There seems to be only one Massachusetts case in this area. The Court in Bloch v. Pfaff, 101 Mass. 535 (1869), held that the rule of apportionment "is only to be availed of when the land is conveyed by reference to a plan, or there is some declaration in the deed indicating a purpose to divide the land according to some definite proportion, and when also there is no other guide to determine the locations of the respective lots." Otherwise an excess will go to the last grantee. Id. at 538-39. This would seem still to be the correct reasoning to apply should the problem be presented.

Decree accordingly.