STEPHEN O. BARTLETT v. TOWN OF DENNIS, ANTONINA GARINO, ROMOLO GARINO, JOHN P. DAIGNEAULT, FRANCIS L. DAIGNEAULT, RONALD W. GUENARD, LEO D. CHIPPOLA, MARGARET R. CHIPPOLA, ARTHUR E. ROUNDS, CAROLE A. ROUNDS, MANSFIELD CREDIT UNION, LYDIA WALSINGHAM and DONALD R. BERMAN, Co-executor, Respondents.

On September 6, 1966 the petitioner, Stephen O. Bartlett, filed a petition with this Court to register his title pursuant to G.L. c. 185, §l(A) to four parcels of land in Dennis in the County of Barnstable situated on or off Dr. Bottero Road. The land is shown on a plan entitled "Plan of Land in Dennis, Mass. to be filed in the Land Court" dated March 1957 to May 1966 by Schofield Brothers (the "filed plan") (Exhibit No. 1). The petitioner recently filed a motion to be allowed to sever his petition and go to final decree on parcels 2 and 4 on the filed plan and to dismiss the petition as to the balance. The motion was allowed on August 9, 1979. [Note 1] There remain in the case only parcels 2 and 4 on the filed plan, his title to which he seeks to register. In the years intervening since the petition was filed much of parcel 4 has eroded from the action of the Atlantic Ocean which on the day of the view, November 17, 1978, had nearly reached Dr. Bottero Road. It has been said that only the riprap installed by the Town of Dennis and added to the filed plan when it was updated prevented the complete destruction of the houses on parcel 2 during the blizzard of February 6, 1978. Exhibits 5, 16 and 17 show the locus on the following day.

The respondent Guenard claims ownership of the most westerly of the houses on the locus which appears on the right of the last mentioned exhibits. Respondents Chippola and Rounds claim the other house on which respondent Mansfield Credit Union holds a first mortgage. The estate on behalf of which respondent Donald R. Berman, Co-executor, appeared claims title to a parcel in the northeast corner of parcel 2, and the Town of Dennis alleges that it owns parcel 4. The other respondents claim to own portions of the land claimed by the petitioner but without locating their land definitively.

A trial was held in Orleans in the County of Barnstable on November 16 and 17, 1978. A view was taken by the Court in the presence of counsel on the latter date, and the trial then was concluded in Boston on December 5, 1978. A stenographer was appointed on each day of the trial to record the testimony. Each exhibit introduced into evidence is incorporated herein for the purpose of any appeal.

The case for the petitioner rests principally on the testimony of Winford L. Schofield and David A. Schofield, registered land surveyors and experts in their field, and Dean Howerton, Esquire, a member of the bar and the Land Court Examiner. The petitioner also testified, but since he left the Cape area in 1941 and has been without Massachusetts (other than for brief visits to his family and residence in Boston from 1949 to 1950) since 1944, first as a student at dental school, then as an officer in the navy until his retirement and now as a professor at the College of Dental Medicine in Charleston, South Carolina, his personal knowledge of the locus admittedly is slight.

The abstract prepared by Mr. Howerton (Exhibit No. 2) contains four deeds, among others, on which the witnesses for the petitioner relied in attempting to locate his land. The earliest of these was a deed dated March 10, 1852 and recorded in Book 61, Page 214 (Sheet 6, Exhibit No. 14) to effect a private partition between Peter Hall, on the one part and Aaron Crowell and Elnathan Crowell on the other. It is through the latter parties that the petitioner claims. The parcel set off to them was described as follows:

Aaron and Elnathan Crowell have the Northern part and are bounded on the South by the before described Peter Halls meadow; on the West by Isaac Halls meadow and beach to the sea.

North by the sea and on the East by Uriah Howes Saltwork grounds to the first mentioned bounds.

After the conveyance out of a twenty foot strip by deed dated March 11, 1852 and recorded in Book 62, Page 1 (Abstract, Sheet 7), Aron [Note 2] Crowell conveyed a parcel of salt meadow to Elnathan Crowell by deed dated May 19, 1869 and not recorded until March 29, 1929 in Book 463, Page 453 (Abstract, Sheet 8, Exhibit No. 9). The descrip- tion was as follows:

a certain lot of salt meadow lying in Dennis aforesaid at a place called Fox Hill-bounded as follows to wit: beginning at Frederick Halls range at the beach - Sets thence South-Easterly in said range as the bounds now are to a Stake & Stone in the range of the heirs of Peter Hall - thence in said range North-easterly to a stake & Stone in Aron Crowells range - thence North-Westerly to the beach

This was followed in execution, but preceded in recording, by a deed from Elnathan Crowell to Josiah Crowell et al dated April 18, 1875 and recorded on February 6, 1912 in Book 311, Page 484. [Note 3] (Abstract, Sheet 9, Exhibit No. 11). The latter deed employed the following description:

A certain lot of marsh and beach land in Dennis near black flats so called, bounded

North East side by land of Aron Crowell (a similar lot) South East side by other land of Elnathan Crowell South West side by land of Frederick Hall Northwest side by the beach

Some years later this parcel was conveyed by the daughters of Josiah Crowell and the niece of Eurial Crowell to the petitioner's father by deed dated March 30, 1929 and recorded in Book 463, Page 491 (Abstract, Sheet 15, Exhibit No.8). His father then conveyed two parcels in Dennis to the petitioner by deed dated November 1, 1941 and recorded in Book 586, Page 203 (Abstract, Sheet 16, Exhibit No. 7); locus is the first of the parcels described in the deed. An argument is made that the deed is voidable since the grantee was then a minor and its purpose was to shield the assets of the peti- tioner's father from creditors, and secondly, that there are other members of the Bartlett family now entitled to an interest therein if such were its purpose. This argument is not one that the respon dents have standing to raise; moreover, any such argument, if seriously raised by one with standing, would appear to be barred by the statute of limitations.

It should be noted also that the respondents raise a question as to delivery of the two deeds mentioned above which were not recorded until many years after their execution. This formerly was a common practice in certain areas of Cape Cod, and the late recording may signify nothing more than a desire by the grantee to avoid payment of real estate taxes. G.L. c. 183, §5 does not preclude a showing that a deed was delivered prior to recording. It merely provides that under circumstances therein specified recording is evidence of delivery in favor of a purchaser for value and without notice.

There are, however, at least two fundamental problems which I have with the petitioner's title. The primary difficulty is the proper location on the ground of the land described in the deeds in the chain of title in view of the indefiniteness of the description. There seems little doubt that the land claimed by the petitioner is in this general area of Dennis, but to be certain that it as precisely where placed by the surveyors is a source of difficulty. A facet of this problem is the characterization in the deeds of this land as containing only one acre; yet parcels 1, 2 and 4, as shown on the filed plan, contain 8.415 acres, there was testimony that there had been substantial erosion since the dates of the early deeds, and that the parcels belonging to Albert W. Niemi which have a common back title contained substantial acreage. While precise computations of area frequently are lacking in early deeds of Cape Cod land, it is difficult to so expand one acre in a contested case. Witnesses for the petitioner testified that it was a common Cape practice to figure the area in terms of the salient feature of the parcel such as upland or a cranberry bog, but no supporting evidence of this opinion was furnished.

I am also unable to agree that Exhibit No. 13, a grant of a right of way from Cyrenius Hall et al to Edwin Crowell et al dated May 10, 1876 and recorded in Book 131, Page 22 is more than that and also constitutes a boundary line agreement or partition affecting land of the respondents Guenard, Chippola and Rounds. The instrument does recite that "and right of way shall lie and remain upon the line of division of the lands as owned by us the said Cyrenius Hall and Geo. B. Howes," but this seems no more than an attempt to locate the easement. This conclusion is reinforced by the fact that the grantees are not parties to the instrument. Moreover, the parcel originally claimed by the respondents Guenard, Chippola, Rounds, and Town of Dennis was described in the deeds comprising its chain of title (Exhibit No. 10) as a three sided lot. The earliest deed ran from Frederick Hall to Edwin Crowell et al dated November 11, 1875 and recorded in Book 129, Page 339 and characterized the premises thereby conveyed as "a three sided lot, containing about one and one half acre be the same more or less." Exhibit No. 3 is a plan entitled "Plan of Land in Dennis, Mass. claimed by Dominico & Theresa Avallone" dated August 18, 1955 by Kelly & Sweetser and recorded in Plan Book 123, Page 145; lots l and 2, together with Comfort Road (now Dr. Bottero Road), are supposed to depict said three sided lots and I so find. I further find that the monument marked "C. B. fnd (top broken)" on the filed plan is the same cement bound shown at the southerly point of lot 1 on Exhibit No. 3.

The petitioner bears the burden of proving that his title is proper for registration. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). After he has attempted to make out his case, it is for the respondents to come forward with evidence to rebut it. In the present proceeding the petitioner has failed to prove he owns so much of parcels 2, 4 and Dr. Bottero Road as lie within the triangle shown on Exhibit No. 3. However, the names of the abutters as given in the petitioner's chain of title and that of these respondents dovetail reasonably well, and I therefore would place land of the petitioner as adjoining that of Guenard, Chippola, Rounds and the Town of Dennis. There are other respondents who claim to own areas within locus, but they presented no evidence as to the deeds on which their claims are based nor even where they believe their land to be located. They therefore did not convincingly defeat the petitioner's claim to so much of parcels 2 and 4 as lies without the triangle shown on the 1955 plan. On all the evidence I find and rule that the petitioner has borne his burden of proof as to this portion of the locus and his title thereto may be registered.

A motion to sever and dismiss so much of the premises as comprise lots 1 and 3 on the filed plan already has been allowed by the Court. The Court now orders the petition also dismissed as to that part of parcel 2 which lies northwesterly of a line running from said Cement Bound N 36° 19' 10"W to the point of intersection with the northwesterly line of parcel 4. All of the latter parcel also is to be dismissed other than the triangle lying easterly of said line and northwesterly of Dr. Bottero Road.

Decree accordingly.