MASS. AUDUBON SOCIETY vs. MITCHELL G. WATRAS, MARY WATRAS, JULIA M. WATRAS, WILLIAM WATRAS and SOPHIE DONOR.

This petition was brought by the Massachusetts Audubon Society, Inc. for the registration of four parcels of land located in the so-called "Ox Bow" area of the Connecticut River in the City of Northampton, and in the Town of Easthampton, Massachusetts under the provisions of G. L. c. 185, §1, all as shown on the filed plan. Various objections were filed and disposed of except for two. The first was an answer filed by the Commonwealth of Massachusetts which resulted in a stipulation being entered into between the petitioner and the Commonwealth to the effect "that in the decree of registration the land of the petitioner in Northampton and Easthampton shown as bounded in part by the Mill River, Manhan River, and Connecticut River, be subjected to any rights the public may have therein as described therein." The second was an answer filed by Mitchell G. Watras pro se, for himself and on behalf of Mary Watras, Julia M. Watras, Tessie Watras, William Watras, and Sophie Donor, objecting to the registration of the premises as described contending that the claimed easterly boundary of parcel one is incorrect.

Trial was held on December 12, 1978 at which a stenographer was sworn to take and record the testimony and three witnesses testified for the petitioner. Mitchell G. Watras appeared without counsel and testified for himself. There were 4 exhibits entered into evidence, all of which are incorporated for reference herein for the purpose of any appeal.

On October 31, 1979 a view was taken by the Court. At the view one Judith Hubley of the Audubon Society, Mitchell G. Watras, his wife and son as well as an Assistant Clerk of the Land Court, Deborah Patterson, were present.

The question at issue is the location of the southeasterly boundary of parcel 1, as shown on Sheet 1 of the filed plan and on the sketch plan attached hereto as Appendix A. [Note 1] The burden of proof is on the petitioner. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941).

The view taken by the Court showed that the southeasterly line claimed by petitioner from the northeasterly corner of Lot 1 as shown on Appendix A at Pychon Meadow [Note 2] Road ran in a general southwesterly and southerly direction to the northeasterly point of Lot 10 on Appendix A, following the line of occupation. The land to the southeast of this line consists of flat cultivated fields laid out in strips as shown on Appendix A. The land to the west is wild land to the Mill River Diversion Channel and the swamp land on the west side thereof so far as could be observed at the view. This line of occupation is well to the east of the Mill River Diversion Channel which runs in an arc as shown on the sketch plan.

The filed plan contains an outline of the perimeter of the "bed of the old river", which also marks the perimeter of the swamp marked in orange on Appendix A attached hereto. The filed plan also contains a line marked "2800' Along centerline of Swamp" which is marked in green on Appendix A. The "centerline of the swamp" is used as synonymous with the Old Bed of the Connecticut River in various deeds - (See Exhibit 2, Sheet 13, the Preece deed). The Court concludes that this green line marks the center line of the "old river" and so finds. The Court further finds that deeds which bound by the "old river", the "old river bed", the "old river place", and the swamp are bound by the "center line" of the old river. See Boston v. Richardson, 13 Allen 146 (1866) and MacDonald v. Morrill, 154 Mass. 270 (1891).

In addition the filed plan shows the Mill River Diversion Channel constructed between 1939 and 1941 as a result of the flood conditions in 1938 and earlier on the Connecticut River. The takings for this were made against persons unknown. However, the City of Northampton later acquired deeds to certain parcels from persons whom it believed to be the owners. Among the deeds acquired by the City were four from Mitchell Watras. (Exhibit 3, Supplemental Abstract, sheets 14, 41, 47 and 51). This would indicate that at the time of the construction of the channel and thereafter persons felt that Mitchell Watras had a claim to some of the land taken.

The petitioner traces its title to the area northwest of the parcels numbered 1 to 10 on Apppendix A to a deed of the so-called "swamp lot" from a Leroy S. Coombs to Hazel Turner, dated January 2, 1934 and recorded in Book 893, Page 61. [Note 3] This deed follows a "Plan of Swamp Lot near Pychon Meadow, Northampton, Mass. belonging to Martha G. Coombs, Northampton, Mass. Dec. 3933 E. K. Atkins MGR." How the said Leroy S. Coombs obtained title to the "swamp lot" prior to 1934 is not known. By mesne conveyances this swamp lot, containing 92 acres more or less, came down to the petitioner by deed of Zechariah Chafee, Jr. and Bess Searle Chafee, dated January 11, 1944 and recorded in Book 979, Page 414. The area described is roughly the perimeter of the swamp.

Presumably to buttress its title to this portion of the swamp, petitioner obtained two other deeds. The first was from James L. Allen et ux dated June 24, 1970 and recorded in Book 1574, Page 702, which conveyed a parcel of land west and north of parcel 10 as showm on Appendix A, bounded northerly by land of petitioner which formerly belonged to Alfred A. Preece. The second deed to petitioner was that of Alfred A. Preece dated April 8, 1947 and recorded in Book 1016, Page 13, and is to the parcel shown on Appendix A. The interesting aspect of these two deeds is their southeasterly bound. In the Allen deed the southeasterly line followed the "center line of the swamp or Old Bed of the Connecticut River and along other land" of the petitioner. In the Preece deed the southeasterly bound was recited as "by the bed of the 'Old River'." Thus it would appear that the sole basis of petitioner's title to the area east of the center line of the swamp or old bed of the river at least when it borders the numbered lots on Appendix A depends upon the deed from Coombs in 1934, being Sheet 4 of the Abstract, Exhibit 2.

Respondent Mitchell Watras [Note 4] vigorously disputes the claim of the petitioner to the ownership of land east of the bed of the old river, at least insofar as it involves lots 3, 5, 6, 7, 8 and 9 to which he or members of his family claim ownership.

Lot 3 as shown on Appendix A was conveyed by Queenie B. Koeber, Executor under the will of George E. Koeber, to Mitchell G. Watras by deed dated October 26, 1944, recorded in Book 996, Page 111 being parcel number 1 therein. (Exhibit 4, see Sheet 18). This deed bounds lot 3 on the west by the "0ld River Place." Apparently lot 3 was owned by Ralph H. and Leroy E. Clapp who gave a mortgage on it to the Northampton Institution for Savings on September 5, 1924, recorded in Book 807, Page 523. It then passed through a foreclosure by entry on May 21, 1935 and then through George E. Koeber and his estate to respondent Watras. The land was described in all instruments as "west by the 'Old River Place'." It should be noted that the portion of Lot 3 taken by the City of Northampton for the Mill River Diversion Channel was deeded also to the City by George E. Koeber on January 2, 1942. (See Sheet 14, Exhibit 4). Thus it would appear that the city recognized that lot 3 extended across the diversion channel and was bordered on its west by the "Old River Place."

Lot 7, as shown on Appendix A, was acquired by Mitchell Watras by deed of Edward E. Braman, dated October 4, 1940, recorded in Book 954, Page 93. The descriptions bound it "northerly by Great Swamp or the bed of the Old River." The taking for the Diversion Channel was made against owners unknown on May 16, 1940, recorded in Book 949, Page 489. Mitchell Watras conveyed a parcel of it the next year to the City of Northampton for the Diversion Channel. The description in this deed in Book 957, Page 290 bounds the parcel on the southeast and on the northwest by land of Watras, formerly Braman, showing that this parcel was on both sides of the channel. This parcel is clearly bounded by the bed of the Old River which the Court has found to be as shown by the green line on Appendix A.

Parcel 8 has a description that goes back at least to 1916 when it was bounded "west in the bed of the 'Old River'" in a deed from Willard to Thomas Poudrier et ux dated June 23, 1916 and recorded in Book 722, Page 469. (Exhibit 3, Sheet 43). There was a deed out to the City of Northampton in connection with the Diversion Channel given by one Modest Poudrier (Thomas had died), dated August 29, 1941, recorded in Book 961, Page 228, in which the land conveyed to the City for the Diversion Channel was bounded on the northwest by land of Poudrier rather than by the bed of the Old River as stated in the original deed. This would indicate that Poudrier owned land west of the Diversion Channel. Parcel 8 was conveyed to Mitchell Watras by deed dated October 4, 1943, recorded in Book 977, Page 175, and bounded the parcel on the west by the "Bed of the 'Old River'."

Likewise, parcel 9 is bounded west on the bed of the Old River in a deed from John G. Healey to George E. Koeber (Kober), dated October 28, 1933, recorded in Book 893, Page 73. Again there was a deed to the City of Northampton in connection with the Mill River Diversion Channel (Exhibit 3, Sheet 51). This parcel was conveyed to Mitchell Watras, Jr. by deed dated October 26, 1964, recorded in Book 996, Page 111, bounding it westerly by the bed of the old river.

Thus, so far as parcels 3, 7, 8 and 9 are concerned there is positive evidence of their extension to the bed of the Old River shown by the green line on Appendix A. There is less positive evidence as to parcel 5, apparently owned by the heirs of William Watras and parcel 6 which may well be owned by Mary Watras et al. The description in the deeds are unclear but do not appear to extend as far west as the Old River bed. By the same token they may. It would appear probable that these strips of land extended as far as those on both sides to the Old River. There is no evidence to refute this except for the deed to petitioner of the great swamp. (Exhibit 2, Sheet 4).

The area of Lot 10 southeasterly of Meadow Road is owned by respondent, but there is no evidence of the ownership as to that part of Lot 10 northwest of Meadow Road. It seems probable that Lot 10 extended to the Old River bed a s it is a strip comparable in every way to the other strips as shown on Appendix A. Again, the petitioner has introduced no evidence to the contrary except for the said "swamp lot" deed. (Exhibit 2, Sheet 4)

Petitioner obtained Lot 1 as shown on Appendix A by deed from the Connecticut Watershed Council, Inc. dated April 29, 1974 and recorded in Book 1772, Page 199 which described it as bounded on the east by land of the Trustees of Smith College and on the west "by the Old River bed or swamp." There is no back title to this lot in the two abstracts and this will have to be remedied before registration can issue as to this lot. However, there is evidence of ownership south of the bed of the river other than that of the swamp lot deed. (Exhibit 2, Sheet 4). It can be seen from this very deed in petitioner's chain of title that Lot 1 originally went to the "Old River bed." The petitioner has chosen to register the parcel only as far south as the "line of occupation" when perhaps it could have included the area bounded by Pychon Meadow Road. The Court finds that the southeasterly line of locus as it forms the northwesterly line of Lot 1 on Appendix A is as shown on the petitioner's file plan, subject to further proof of title.

Lot 2 is next to be considered. From the abstracts, Exhibits 2 and 3, the title to this parcel is uncertain. It seems probable that Lot 2 extended to the Old River Bed and without compelling proof to the contrary, which does not exist here, the Court so finds. The Court finds that the locus is bounded westerly at this point by a line being an extension of the northeasterly line of Lot 2 shown on Appendix A northwesterly to the end of the line marking the bed of the Old River shown in green. The southerly line of locus is the green line marking the Old River bed as it forms the northerly boundary of Lot 2.

This leaves for consideration Lot 4, supposedly owned by one Kenneth L. Beals, the son and heir of Darwin L. and Eleanor M. Beals. It depends for its description on a deed dated July 27, 1920, recorded in Book 760, Page 64 from John E. Sullivan to Frederick W. Beals. It bounds the lot northwesterly by the "Old River Bed." See Exhibit 3, Sheet 20. Again, the only rebuttal is the swamp lot deed, Exhibit 2, Sheet 4.

The Court finds and rules that the easterly line of locus as it bounds Lot 2 - 10 follows the bed of the Old River shown on the filed plan and on Appendix A in green. The northerly line is an extension of the northerly line of lot 2 extended northwesterly in the same course to the old river bed, shown in green; the southerly line is an extension of the westerly line of Lot 10 in the same course northwesterly to the Old River Bed as it intersects the green line shown on Appendix A.

Therefore, the Court finds and rules that petitioner is entitled to a decree registering title to parcels 2, 3 and 4 as shown on the filed plan and to parcel 1 as shown thereon modified as set forth above with such area claimed to the east of the old river bed between it and the numbered lots as shown on Appendix A to be severed and dismissed from the petition, subject to the rights of the Commonwealth as set forth in the stipulation filed herein and to such other matters as may be disclosed in the examiner's abstract of title not here in issue, and to further title proof as to that portion of parcel 1 on the filed plan consisting of Lot 1 as shown on Appendix A extended from its northwesterly line northwesterly to the bed of the old river.

Decree accordingly.

exhibit 1