CONF 39482

August 29, 1978

Plymouth, ss.

Sullivan, J.


For nearly thirty years the petitioner, Marie Campbell, of the Brighton District of Boston in the County of Suffolk, and the respondent, Marguerite McKenna, of the Dorchester District of said Boston, have owned adjoining summer homes on West Monponsett Lake in Halifax in the County of Plymouth. The petitioner's ownership preceded that of the respondent, for her brother-in-law took title to the major portion of the premises in 1924 (Abstract, s. 13) and it passed to the petitioner by devise in 1938 (Abstract, s. 16-17). A dispute having arisen as to "the common boundary line between land of the parties, this confirmation proceeding was brought in order to define its location. This is the only issue in the case. A trial was held at the Land Court on May 25, 1978 at which a stenographer was sworn to record the testimony. Any 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 June 15, 1978.

On all the evidence I find and rule as follows: the petitioner owns of record Lot 6 and portions of Lot 498 and the former layout of Dwight Street as shown on a plan entitled "Plan-A-No. 25- Monponsett Lake and Land Co., in Hanson and Halifax, Plymouth Co. Mass." filed July 17, 1888 with Plymouth Deeds, Plan Book 1, Page 25; the respondent owns of record Lots 7 and 8 on said plan; the plan filed by the petitioner in this proceeding runs the common boundary line between the parties 3.70 feet northwesterly of and parallel to the northwesterly wall of the Campbell house; Exhibit No. 8 prepared for the respondent places this line inches northwesterly of the petitioner's house at its southwesterly corner and 6.24 feet distant therefrom at the northwesterly corner; an earlier 1955 plan (Exhibit No. 6) showed the southwest corner of the house encroaching on the respondent's land; the filed plan was prepared by Hayward-Boynton & Williams, Inc.; in its possession is the field notebook of a former member of the firm Which locates the petitioner's house in 1897 as being 3.70 feet from the property line; both surveyors who testified in the case recognized the difficulty of fixing lines in this area, but that each weighted an old survey heavily as an aid in doing so; the petitioner's house was raised in 1938 so that a cellar might be installed beneath it and a bathroom was added, but the location of the house itself has not changed over the years; there is a growth of lilies parallel to the northwesterly wall of the Campbell house which were planted many years ago by the petitioner and weeded by the respondent; in recent years the petitioner's husband and son have placed rocks adjacent to the lilies to aid drainage; a decorative fence which formerly had an archway for roses (apparently destroyed in the 1978 blizzard) runs from the McKenna property to aobut a foot from the Campbell house; a path leads through the arch and down to the lake and is adorned with flowers on each side; a second fence runs from one house to the other closer to the water and at the beach there is a small wall where Mrs. McKenna formerly had a rock garden; the Campbell electric meter is on this side of the petitioner's house and the meter reader has had to cross the area in performance of his duties for some indeterminate time; painting of and repairs to the Campbell house on this side of the property have been carried on over the years; the respondent appears to have provoked the initial confrontation some years ago and counsel have been unable to settle the location of the boundary amicably. This led to the trial.

As early as 1897 the disputed boundary line was placed in the location for which the petitioner contends, and the house has been maintained in the same location for more than eighty years. Accord- ingly, this would seem to be an appropriate case for application of the rule of Thacker v. Guardenier, 7 Met. 484 (1844). In Thacker, suit was brought to recover a parcel of land approximately twenty- seven inches wide and nineteen feet long. The parties each owned land adjoining the strip, but neither the admeasurements nor the monuments, referred to in the deed descriptions, had settled the location of the dividing line. One party established that in 1816 a shed had stood on his side of the property and its eaves had extended over the land in controversy. The other litigant claimed that he had occupied the disputed strip. The court held:

that in the absence of proof, under the documentary title, fixing the boundary between the parties by monuments, admeasurement, or otherwise, the title of either will be inferred from occupation; and in that respect, the prior actual occupation will be proof of prior and better title. But the question recurs, what shall be deemed proof of possession and occupation? Upon this point, we are of opinion that if a person builds a house, near the line of his land, with eaves, it ought to be far enough from the line of his land to allow for eaves-droppings on his own land, and that the presumption is, in the absence of proof, that he does so. If then he erects a building with eaves, it will be regarded as making some use of the land under the eaves, and as such, an occupation thereof; and if this is prior to any cultivation or other actual use of the adjacent land, it is a prior occupation. If the owner of the adjacent land afterwards cultivates the land quite up to the line of the building, and under its eaves, it cannot be regarded as a disturbance or interruption of the possession already taken by the owner of the building, because it is not inconsistent with the only use which he has had occasion to make, and has been actually making, of the land, by his eaves.

So, on the other hand, if a conterminous proprietor encloses land up to what he claims to be his line, or cultivates or otherwise uses the land up to such line, and afterwards the adjacent proprietor erects a building, with his wall on said line, and eaves extending over such line, the actual enclosure, cultivation, or other use, will be deemed an actual possession and occupation of the soil, prior in time, and the subsequent erection of eaves overhanging it, though it may become evidence of an easement, and, in a certain technical sense, a disturbance of the possession, would have no tendency to show, that such prior possession had not been taken by the owner of the soil. It therefore follows, that as the title depends upon prior possession and occupancy, the owner of the building, with his eaves, or the adjacent owner of the soil enclosed, will be deemed to have the prior possession, and the elder title, as the one or the other first took possession in either of the modes indicated. This rule, as before stated, applies only where the line is left doubtful by the evidence of title, and where neither party can claim under any higher title than possession.

Id. at 485-86. According to Thacker, then, if the Campbells were first in time as appears from all the evidence, they would have paramount title.

There is nothing in this case to require a different result. The fences upon which the respondent relies so heavily appear to be ornamental only and in no sense to serve as a monument marking a boundary line. As was said in Ryan v. Stavros, 348 Mass. 251 (1964) at 260-61:

The doctrine of acquiescence as established in cases concerning boundary disputes provides merely that, where a description in a deed is of doubtful or ambiguous import, extrinsic evidence is admissible to show the construction given to the deed by the parties and their predecessors in title as manifested by their acts. [citations omitted]. But these acts must amount to acquiescence in a line or fence or other indicium as a boundary. Mere acquiescence in the existence of a fence or line as a barrier or for some other purpose is not enough to establish a boundary.... Absent indications of how the parties and their predecessors in title regarded the line..., acquiescence can hardly be inferred.

The activities of the respondent and her family within the 3.70 strip in question have not been such as to entitle them to title by adverse possession. See Mendonca v. Cities Service Oil Co., 354 Mass. 323 (1968); Holmes v. Johnson, 324 Mass. 450 (1949). The respondent's other activities, taken as a whole, are not of such compelling weight as to lead to the conclusion that she has acquired title by adverse possession. Ironically, the line as fixed by the respondent's surveyor would place the boundary closer to the respondent's house at the street line although right on the line at the corner of the house closest to the lake and land of the respondent. Whether initially correct or not, the placement of the petitioner's house on the ground impels the conclusion that the lot line then was thought to be as the old field notes indicated. There is no reason now to revise this conclusion.

A decree is to be entered confirming the petitioner's title to the premises shown on the filed plan as of 10 A.M. on May 23, 1977 subject to such matters as may appear from the abstract and are not in issue here.

Decree accordingly.