WALTER C. MARTIN, LOIS E. MARTIN v. KAZYS KAVULSKIS, ELIZABETH KAVULSKIS.

Lois E. Martin has been an owner of record of land in Lunenberg in the County of Worcester shown as Lots 43, 44 and 60 on an unrecorded plan (Chalk A) entitled "Plan of Land Owned by G. N. Proctor Whalom Lake," together with a strip thirty feet wide adjoining Lots 43 and 44 and bounding westerly on Kimball Street, since 1930, first as a joint tenant with her mother, and after her mother's death in 1931, solely until it was transferred to herself and her husband. (See abstract, s. 11, 12 and 13). In 1948 she conveyed the premises to her husband, Walter, and herself as tenants by the entirety through a straw (abstract, s. 14 and 15). A dispute with new neighbors as to the location of the common boundary line led Mr. and Mrs. Martin to file this petition on December 19, 1977 to register their title to said lots and the adjoining strip. The neighbor-respondents, Kazys Kavulskis and his wife, Elizabeth, [Note 1] owned land adjoining that of the petitioners and shown as Lots 45, 46, 62 and 63 on Chalk A. The registration proceedings were preceded by a Superior Court complaint in which the present respondents, as plaintiffs, sought a determination as to their title and the rights of the parties; they also sought to restrain alleged trespasses by the present petitioners (defendants in the Superior Court). In the action in the other department the master's report was recommitted by the Superior Court until a final decree was entered in this registration case. The respondents sought a determination from the Land Court Department that the pendency of the Superior Court case deprived the Land Court of its jurisdiction; however, this department alone has jurisdiction to register title and to bind the land in rem. The respondents' motion to dismiss for lack of jurisdiction therefore was denied.

A trial was held in Boston in the County of Suffolk on May 14 and 15, 1979. 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 on May 11, 1979 in the presence of counsel and prior to the trial. At the view the Court observed the fences which follow the southerly, easterly and southerly boundaries of land of the petitioners and observed the concrete bound and granite marker on which the petitioners and the respondents respectively rely.

There is only one matter at issue between the parties: the correct location of the most southerly line of the premises to which the petitioners seek to register their title. The line in question runs between Lot 44 on the north and Lot 45 on the south. Its location is governed in part by the placement of Lot 61, shown as land of Gene L. Testa on the filed plan. The draftsman of the deeds in the chain of title to the predecessors in title of the parties and of Testa ran each line at right angles to that just before it so that all of the angles theoretically are 90°.

On all the evidence I find and rule as follows: the respondents Kavulskis acquired title to their land shown in part on the filed plan by deed from Arthur J. Eskola, dated May 23, 1966 and recorded with Worcester Northern District Registry of Deeds (to which all recording references herein refer) Book 990, Page 178; by then Mrs. Martin's family already had owned their premises for approximately thirty-six years; the petitioners tried and were unsuccessful at this time in locating the bound at the southeasterly corner of Lot 44; accordingly they engaged Alden S. Marble & Associates to set a concrete bound at this corner; William S. Bingham, whose office prepared the filed plan, worked for Mr. Marble and was chief of the survey party which did the 1966 fieldwork; the bound was set at Point A on the filed plan and was found by the surveyor when the filed plan was prepared in 1977; Point A is two feet from the most northerly point of the easterly wing of the respondents' house; a southerly line fixed by running it from the stone bound at Kimball Street to Point A would pass only two inches from the most northerly point of the westerly part of the respondents' house; the respondents located a granite bound buried beneath the surface at a point to which they were directed by the former owner of the Testa premises, now deceased, John Greenleaf; this location is shown on the filed plan as "F.D. Stone with D.H."; the latter is .95 feet northerly and 2.59 feet easterly of Point A claimed by the petitioners to be the common corner of Lots 44, 45 and 61; the male petitioner and his family repaired the old fence marking the line in 1969; the fence inadvertently was replaced closer to their home than it had been previously; the respondents' daughters, their friends and dog had been able to circle the house completely when playing in the yard; and it is no longer possible to do so.

The petitioners argue that the structure of the respondents' home has been changed with its gradual evolution from a summer camp as evidenced by the enclosure of the front porch and the incorporation of a shed into the building. The respondents deny that they have made any structural changes during their ownership which would bring the building closer to the common line. It is unclear from the testimony, partly due to language difficulties, what improvements have been made to the Kavulskis home and when. Having seen the property, however, the Court is convinced that there have been no changes to the house during the respondents' ownership which would have led to the decrease in distance between it and the boundary line. Rather I find that the petitioners unintentionally replaced the fence closer to the house than it had previously been after they had removed it for repairs.

The petitioners also question the competency of Mr. Greenleaf who allegedly had been committed to a state hospital. If in fact the decedent had been so confined, it does not militate against his ability to locate the bound; it is only one factor for the trier of facts to weigh.

I further find that Point A for purposes of this decision is not shown on either Exhibit 4, the filed plan, nor on Exhibit 12, a plan entitled "Plan of Land of Kazys & Elizabeth Kavulskis, Lunenberg, Mass.," recorded in Plan Book 194, Page 21; but is instead a point .95 feet northerly of the Point A established by Mr. Bingham. I cannot place it easterly thereof although I believe the monument found by the respondents to be the original marker, because the triangle of land which then would inure to the petitioners was not claimed by them in the petition and would take land recognized by them as land of Testa. By moving Point A .95 feet northerly passage around the corner of the respondents' house closest thereto will be possible. The line, as fixed herein, still will be only inches northerly of the respondents' house at the other point where it approaches the house so the distances dealt with herein are miniscule.

The burden of proving his title is on the petitioner in a registration proceeding. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). The only difficulty which the petitioners have with their title is at Point A, and as to this I cannot find that they have borne their burden. Given a contested proceeding, the location of respondents' house, the steep incline from Kimball Street to the area in question, the fence repairs and the existence of two monuments I find and rule that the petitioners cannot prevail as to the location of their southeasterly corner at Point A but that the said corner is as hereinbefore described. I do find that title may be registered to the remainder of said premises subject to such matters as may be shown by the abstract and are not in issue here and subject also to any encroachment which may exist as of the date of this decision from an overhang of the eaves of the Kavulskis house and which may be maintained (but not enlarged) so long as said house stands. The petition to register so much of said premises as lies southerly of a line running from the stone bound on Kimball Street at the southwesterly corner of the locus easterly to a point .95 feet from Point A on a course with a bearing of N 11° 32' 35" W is hereby dismissed.

The petitioners have asked that the Court make certain findings of fact and rulings of law. Requests 1 to 6, 8, 9 and 11 to 13 are hereby granted, and the other requests and rulings of law are denied. The respondents' requests 1 to 4, 7, 10, 11, 14, 19, 20 and 25 are granted; and the other requests and rulings of law are denied. In the case of both petitioners and respondents their requests either do not fit the facts I have found or propound abstract statements of the law not supported by the evidence.

Decree accordingly.