In 1898 one Clara L. Sias acquired title to a sixty acre tract in the towns of Sherborn and Holliston, both in Middlesex County by deed of Percy F. Leland dated April 9, 1898 and recorded in Book 2647, Page 191 [Note 1] (Abstract, sheet 3). Approximately three and one-half years later she conveyed a portion of this land to Sophia A. Smith by deed dated December 12, 1901 and recorded in Book 2936, Page 154 (Exhibit No. 3; Abstract, sheet 8). It is from this conveyance that the present controversy belatedly stems. Jean E. Leek, successor in title to the land retained by Clara L. Sias, when she conveyed to Sophia A. Smith, now seeks to register her title to a parcel of land lying between portions of her land and that of the respondents, Bernard F. Trum and Mary M. Trum, [Note 2] as to which there is no dispute. The language of the Sias-Smith deed is of crucial importance in placing the disputed boundary. The descriptive portion thereof reads as follows:
"a certain lot of land situate in said Sherborn and in Holliston in said County, bounded and described as follows, to wit: Beginning at the southeasterly corner of the premises at an oak tree at land of said Clara L. Sias on the road leading from Sherborn to Holliston, thence running westerly on said road to land of one Tibbetts; thence northerly on land of said Tibbetts to the County Road; thence easterly on said County Road to an oak tree; thence southeasterly by land of one Hapgood to a fence at land of said Clara L. Sias; thence southerly on land of said Sias as the fence stands to a corner in the fence; thence westerly as the fence stands to a corner; thence southerly on land of said Sias to the oak tree the point of beginning (emphasis supplied)."
Clara L. Sias retained title to the remainder of the land she had acquired from Leland, and it was not conveyed out until after her death. Simultaneously with the conveyance to Smith, however, she did mortgage her remaining land to Natick Five Cents Savings Bank by instrument dated December 12, 1901 and recorded in Book 2936, Page 152, just before the deed out (Abstract, sheet 7). This description read as follows:
"A certain lot of land situate in Sherborn on the road from Sherborn to Holliston, bounded and described: on the east by a town road measuring 77 rods; on the south by the road leading from Sherborn to Holliston this day deeded to Sophia A. Smith; thence northerly by said Smith land to a corner of the fence; thence easterly and northerly by Smith land and easterly by land formerly of one Howard to the town road first mentioned."
A comparison of the deed and mortgage makes evident that the description in the former is somewhat more meticulous with references to at least two fences, to two corners and to an oak tree as monuments. The mortgage on the other hand refers just once to a fence as a monument.
The deeds in the petitioner's chain of title (Abstract, sheets 13 and 22) are basically the same as the mortgage so far as the description is concerned. Two differences, however, are found in an estimate for the first time of the area of the premises, about 35 acres, mentioned in the deed from Reade M. Sias, et al to H. Cholmondeley Thornton, et ux, dated June 12, 1947 and recorded in Book 7163, Page 94 (Abstract, sheet 13) where the description also contains a recitation that the land is in both Sherborn and Holliston. This latter recital unaccountably was dropped from the deed to the petitioner and her late husband wherein the premises are described as being in Sherborn only, without reference to Holliston. [Note 3]
The first plan of land of either the petitioner or the respondents which counselor the Land Court Examiner has been able to locate is entitled "Compiled Plan of Land in Sherborn-Mass. and Holliston-Mass." dated May 25, 1948 by Roland Uhlin, recorded as Plan No. 622 of 1948 in Book 7291, Page 557 (Exhibit No. 5). Land of the respondents is a portion of Parcel B as shown thereon. The triangle at the northerly corner thereof was not part of the land conveyed by Leland to Sias, the northerly line of which is shown by a dashed line. The surveyor ran the line which the Court now is locating from a stone bound which appears to be at land now or formerly of Hapgood in a straight line southerly to a stone wall. The 1948 plan then followed the stone wall as the division line between lands formerly of Sias and Smith westerly to an old fence line and then southerly again to a white oak tree on Whitney Street in Holliston. Chronologically, the next plan is also of land of the respondents; it is entitled "Plan of Land in Sherborn & Holliston, Mass.", dated August 20, 1958, was prepared by William F. Drake, and recorded as Plan Number 1463 of 1958 in Book 4264, Page 401. [Note 4] (Exhibit No. 14). This plan was drafted by the surveyor at the time of a conveyance to the respondents by the then owner, Richard L. Trum, a brother of the male respondent, [Note 5] upon the basis of information furnished by the client without reference to the 1948 plan. The 1958 Plan shows the stone bounds which appeared on the earlier plan as well, but it runs the line southerly to a concrete bound before running westerly and then southerly, in part by a stone wall, to the town line marker rather than to the white oak tree. Finally, two plans of the petitioner's land were prepared. The first, entitled "Plan of Land in Sherborn & Holliston, Mass. Property of Jean E. Leek", was dated October 13, 1962, revised: January 26, 1976, is by Schofield Brothers and was recorded as Plan Number 376 of 1976 at the end of Record Book 12967 (Abstract, sheet 31). This plan essentially adopts the division line shown on the Uhlin 1948 plan. The second Schofield plan bearing a later date than the original date of the other Schofield plan but recorded prior thereto as Plan Number 35 of 1975 in Record Book 12749, Page 325, shows a subdivision of the Leek premises on Western Avenue (Abstract, sheet 29). The Drake plan labels the property abutting on the east as Leek, the Schofield plans the property abutting on the west as Trum. If the plans are compared, however, it is obvious that the lines do not agree and that between the properties shown thereon there is a no man's land claimed by neither party. The Sherborn assessors called this to the attention of the parties, and this case followed. [Note 6]
A trial was held at the Land Court on November 10 and 14, 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. A view was taken by the Court in the presence of counsel on May 3, 1978.
The only answer in the case was filed by the respondents in which they alleged that the petitioner was claiming land conveyed to them by Exhibit No. 6. This is only partially so, for as noted above, there is an area between the recorded plans of the two properties which neither party heretofore has claimed, [Note 7] and which the petitioner now seeks to register. The petitioner also is attempting to register a portion of the land shown as the respondents' on the Drake 1958 plan and as the respondents' predecessor's on the 1948 plan. The filed plan prepared by Schofield Brothers admittedly is not consistent with the earlier Schofield plans in defining the boundary between lands of Leek and Trum.
In determining the location of the petitioner's westerly boundary line, the 1901 deed and mortgage are critical since, together, they show the land Sias intended to convey and to retain. Although, on paper, the descriptions seem clear, a problem arises when the deed descriptions are applied to external objects. The fences which marked the position of the boundary line between land conveyed and land retained by Sias have disappeared through the passage of time, although the oak tree on the road leading from Sherborn to Holliston remains. Moreover, while land of an adjoining proprietor is a monument, Holmes v. Barrett, 269 Mass. 497 , 500 (1929); Van Ness v. Boinay, 214 Mass. 340 , 342 (1913); Percival v. Chase, 182 Mass. 371 , 377-78 (1903), which may be invaluable in locating a disputed parcel, a reference to retained or granted land as a monument is of little use when the grantor's land is being divided without benefit of a plan or other extrinsic evidence or monuments which would serve to locate the new line.
The resolution of the dispute between Mrs. Leek and Dr. and Mrs. Trum depends upon the correct placement of the northerly and westerly line of the premises. As to this the petitioner has the burden of proof. In this proceeding the Court determines only whether the petitioner has borne this burden, and if the burden has not been sustained, then the petition must be dismissed. If one solution is as likely as another and neither has been established with certainty, the same result must follow. A decision adverse to the petitioner is not a determination that title is in a third party. See Foss v. Atkins, 201 Mass. 158 , 162-63 (1909). The case rests on the proper construction of the deeds in the light of the physical evidence on the ground and the conduct of the parties in interpreting any ambiguity. Adverse possession is not a factor, for there has been little, if any, use made of the disputed area, which is swampy in nature.
On all the evidence I find and rule as follows: that the southerly end of the boundary line between land of the petitioner and the respondents is at the white oak tree on Whitney Street as shown on the filed plan and the 1948 plan; that an old fence formerly ended there as appears both from the 1948 plan and a photograph thereof (Exhibit No. 9[G]) in which twisted barbed wire is shown; that there is a blaze on this tree marking it as the white oak intended as the monument when the deed was drafted; that this was apparent to the Court at the view; that the old fence ran northerly from Whitney Street approximately as shown on the 1948 plan until it or an extension of the fence line reached the drill hole in the stone wall shown on the filed plan on the line with a bearing N 05º23'50"E and also shown on the 1958 plan with a bearing of S 7º44'20"W; that it is impossible to establish the remainder of the boundary line between land of the parties; that the 1948 plan prepared for the conveyance to the respondents' predecessor and the 1962 plan (Exhibit No. 5) prepared for the petitioner show the boundary line in approximately the same location; that the 1958 plan (Exhibit No. 14) prepared for the male respondent's brother and the filed plan use several of the same courses but in other instances diverge; that William F. Drake, the surveyor who prepared the 1958 plan, testified that based upon the evidence on the ground and the language of the deeds he could accept either the 1948-1962 line or the line on the filed plan (except for the bulge therein) as correct; that the land is marshy and of little intrinsic value; that the location of the boundary line accordingly was historically of no consequence to the owners from time to time; that it is impossible to rule with any certainty as to where the draftsman of the Sias-Smith deed intended the line to lie; and that the petition is to be dismissed.
The respondents have requested certain findings of fact and conclusions of law. Findings of fact one to seven, eight, ten and eleven are granted, and nine and twelve denied. "Conclusions of Law" 2 and 4 are granted, and the others denied. The respondents also filed nine requests for rulings of which I grant one, two, six, seven and nine and deny the others.
[Note 1] All recording references are to the Middlesex (South District) Registry of Deeds unless otherwise noted.
[Note 2] In fact, record title to most of the area in dispute, if not in the petitioner, may be in Richard L. Trum, the respondents' predecessor in title (see Exhibit Nos. 4 and 6) and not in the respondents. However, it seems to be agreed that by deed dated September 23, 1958 and recorded in Book 9264, Page 401, Richard L. Trum intended to convey all the land he owned in this area to the respondents, and the Court has dealt with the case on this basis as between the petitioner and the respondents.
[Note 3] This deed ran from H. Cholmondeley Thornton et ux to Jacques Leek et ux, was dated February 27, 1958 and recorded in Book 9108, Page 183.
[Note 4] The number of the Record Book as it appears in the attestation by the Register of Deeds is obviously a typographical error.
[Note 5] This deed is dated September 23, 1958 and recorded in Book 9264, Page 401 (Exhibit No. 6).
[Note 6] A color coded sketch is attached as Appendix A on which are indicated the boundary lines as shown on the several plans of the area.
[Note 7] However, the respondents' predecessor did claim some of the land in the gap as the 1948 plan indicates.