RALPH L. KELLEY vs. TOWN OF DENNIS, COMMONWEALTH OF MASSACHUSETTS, VIRGINIA B. THOMPSON, et al [Note 1]

Petitioner filed this petition for registration of a parcel of land located off Lower County Road in Dennis, Massachusetts (hereinafter locus) as shown on the filed plan, under the provisions of G. L. c. 185, § l on January 5, 1977. Prior to the filing of the registration petition the Town of Dennis had brought a complaint in equity being No. 33882 Superior Court of Barnstable County seeking to quiet title to this same parcel claimed by it. That action brought against Ralph L. Kelley, the petitioner in the registration case, and Thomas M. Good, was trans­ ferred to the Land Court on motion of the Town of Dennis to be tried with the registration case. The two cases were heard together and are herein consolidated for the purpose of this opinion.

The Commonwealth of Massachusetts filed an appearance in the registration case but later withdrew. Virginia B. Thompson respondent in the registration case and petitioner Kelley therein submitted a stipulation agreeing that "the petitioner may have registration as prayed for provided any decree in registration shall not grant any appurtenant rights or other rights over Rhyspah Road, Melora Road or Miramar Avenue as shown on the plans in Land Court Case 11503." Thomas M . Good answered, in Miscellaneous Case 96761 claiming an easement by grant and alternatively, by adverse possession over the locus but took no further part in the proceedings.

Trial was held on December 19, 1979 at which a stenographer was sworn to take and transcribe the testimony. Four witnesses testified including the Land Court Examiner, two registered land surveyors and an engineer for the Department of Public Works. Ten exhibits were entered into evidence which are incorporated herein for the purpose of any appeal.

The sole issue is the location of the locus.

Upon all of the evidence the Court finds the facts to be as follows:

1. At his death, intestate, in 1874 (Barnstable Probate No. 6449) one Nathan Fisk owned the locus, having acquired it by deed from Allan Small dated January 14, 1868, recorded in Book 95, Page 145 at the Barnstable County Registry of Deeds. [Note 2] (Ex. 2, Abstract Sh. 12, 14). The deed describes the locus as

"Beginning at the Northwest corner in the range of Samuel Chase, deceased, Meadow and woodland thence sets Easterly in the Chase range about sixteen rods to a stake standing on an old fence bottom about 12 rods to a stake in Isaac Baker, deceased, range thence sets westerly as trees are marked to Joshua Wixon's meadow thence westerly to the first mentioned bounds and said piece; contains one acre and thirty-two rods be the same more or less."

2. Through mesne conveyances from the heirs of Nathan Fisk one Arnold Booth acquired title to the locus and in turn conveyed to petitioner "all my right, title and interest in the property which I have received from the heirs of Nathan Fisk." by deed dated February 27, 1951, recorded in Book 779, Page 417. (Ex. 2, Abstract Sh. 81.) To buttress his title petitioner obtained deeds from the following heirs of Nathan Fisk: Gladys Sowell, June 22, 1951, Book 785, Page 359; Katherine M. Kendrick, June 2, 1951, Book 785, Page 360; Barbara Clark Darling, March 31, 1952, Book 809, Page 581; Ann Darling, April 3, 1952, Book 809, Page 582; Susan B. Snow, April 21, 1952, Book 809, Page 583; Mabell Swett Smith and Gladys S. Sowell, September 2, 1952, Book 827, Page 597. (See Ex. 2, Abstract Sheets 82-87). The respondent Town admits that the petitioner's chain of title is good.

3. Bounding the locus on the north is a registered parcel of land shown on decree plan 20646A and B. A deed (Exhibit 3) dated December 15, 1862 included in the title abstract in Land Court Case No. 20646 of which the Court takes judicial notice indicates that it was then owned by the heirs of Samuel Chase. The description of petitioner's parcel (paragraph 1 herein) recites that it is bounded on the north in the range of Samuel Chase. Thus, locus would seem to clearly be bounded on the north by land registered in Land Court Case No. 20646.

4. Abutting the locus on the east is a parcel of registered land shown on Land Court decree plan 11503A (Ex. 4). The westerly bound of this registered parcel is shown to be an old ridge or fence bottom. The description of the locus as set forth in paragraph 1 herein recites that its easterly line runs from a stake at an old fence bottom about 16 rods. Again, it would appear that the locus is bounded on the east by the parcel registered in Land Court Case No. 11503.

5. The locus is abutted on the south by land now of Thomas Good. The land court examiner testified that he had run back the Good title to a deed of John Baker to Isaac Baker, dated January 22, 1800 recorded in Dennis records Book 3, Page 168 and in Barnstable Registry of Deeds Book 53, Page 283. (Exhibit 5). In paragraph 1 herein the locus is described as being bounded on the south in Isaac Baker's range. This agrees with the Thomas Good chain of title and places the southerly line of locus.

6. The locus is abutted on the west according to the description in paragraph 1 by the Joshua Wixon meadow. The Thomas Good parcel to the south of locus was likewise bounded on its west by the Joshua Wixon meadow. (Exhibit 5). Thus we know that this meadow was located to the west of the Good parcel and presumably of the locus as well.

7. The Town of Dennis owns the parcel of land bordering the locus to its west between it and the Swan Pond River in what used to be Joshua Wixon's meadow and also a second parcel to the south, both of which were apparently taken by the Town. These parcels are marsh or meadow land subject in part at least to tidal waters.

8. The respondent Town of Dennis acquired title to a parcel of land it claims to be locus by a deed from Robert W. Quealey et ux dated November 16, 1972. (Exhibit 2, Abstract Sheet 97). The Town's chain of title goes back only to a deed from Alvin S. Taylor to John Canfield and Perry C. Taylor dated September 6, 1946 and recorded in Book 654, Page 436, (Exhibit 7) the examiner being unable to trace the title any further back. The parcel was described as follows:

A certain piece of brush and woodland on the East side of Swan Pond River near the sea and bounded:

On the North by land now or formerly of one Canfield;

On the East by an old ditch in land now or formerly of one Adams;

On the South by land of owners unknown; and

On the West by land of Sylvanus Sears

Containing one acre more or less.

It may be seen from this description that this parcel does not fit the location of the parcel between the registered land in Land Court Case 20646 on the north and the Good parcel to the south, bounded as the latter is by Land Court Case No. 22530 to its south. Likewise, it does not mention a "fence bottom" as called for in Land Court Case No. 11503 which borders locus to the east. There was testimony and the Court finds that the fence bottom is as shown on Exhibit 4 and is as located by Judge Cotton in Land Court Case No. 22530. In addition the land described recites that it is bounded on the west by land of Sylvanus Sears. The evidence shows that the locus is bounded on the west by meadow land and there is no indication that the Sears land was such.

9. Petitioner Kelley granted to Thomas M. Good, July 14, 1972, Book 1779, Page 148, an easement thirty feet wide running north to south over the locus and in turn Thomas M. Good granted to petitioner Kelley on December 26, 1972, Book 1779, Page 149 an easement thirty feet wide running north to south over his land to the south of the locus, all as shown on sheet 2 of the filed plan. (Exhibit 2, Abstract Sheet 90) (See also Exhibit 2, Abstract Sheets 88, 89 and 90)

The Court finds and rules that locus is sitated as shown on the filed plan submitted by the petitioner Kelley. The location of the parcel claimed by the Town of Dennis is unknown to the Court as it was to the Land Court examiner.

The Court rules that petitioner is entitled to a decree of registration of title to the locus as shown on the filed plan including an easement appurtenant thereto granted to petitioner by Thomas M. Good and subject to an easement granted by petitioner to Thomas M. Good as set forth in paragraph 8 herein and subject to the stipulation between petitioner and Virginia B. Thompson as herein recited and to such other matters as may be disclosed in the examiner's report not here in issue. Decree accordingly.

In addition, the Court orders that Miscellaneous Case No. 96761 brought by the Town of Dennis be dismissed. Judgment accordingly.