MISC 91899

January 2, 1980

Nantucket, ss.

Sullivan, J.


This is a complaint in the nature of a writ of entry in which the plaintiffs, Nantucket Land Council Defense Fund, Inc., a Massachusetts non-profit corporation, and Paul A. Bennett, of Nantucket in the County of Nantucket seek a declaration from this Court that they are the owners of 592 and 1/6 sheeps commons in Share 21 of the North Pasture set-off in said Nantucket and an order granting them immediate possession. The original defendants, Shawkemo Hills Island Trust, John B. McElderry, Trustee, Elizabeth B. Twyeffort, Kate B. Perry, Joan Chapin Hutton, Clifford E. Barbour, Jr., Dorothy Drake Barbour, Roy K. Barrett, Inc. and ACK Corporation claim to own parcels of land situated within said Share 21.

A trial was held in Nantucket on June 12 and 13, 1979 and was concluded in Boston on July 5, 1979. A stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The controversy between the parties is centered on the proper interpretation of a deed from Richard E. Burgess and David W. Burgess to Lawrence F. Mooney dated July 23, 1888 and recorded in the Nantucket County Registry of Deeds [Note 1], Book 72, Page 379. (Plaintiffs' Exhibit No. 21). The complete description in this deed reads as follows:

all those tracts of land with the buildings thereon standing situated at Shimmo in said Nantucket and known under the general name of the "Clisby Farm" being the same conveyed to us by Wm. Clisby. See Nantucket Deeds Lib. 60 fol. 282; also all those tracts of land with the buildings thereon standing situated in said Nantucket known under the general name of the "Shaw Farm." See deed to us from Harvey B. Leete. Lib. 65 fol. 169. Also all those tracts of land conveyed to us by deeds of Paul W. Clisby, recorded with Nantucket Deeds Lib. 60 fol. 495 and Lib. 62 fol. 166, and more fully described in said deeds.

The Burgesses had earlier acquired from William Clisby by deed dated January 21, 1869 and recorded in Book 60, Page 282 (Plaintiffs' Exhibit No. 3) what was described therein as the Seth Clisby Farm "... which I bought of the administrators of the estate of the said Seth Clisby, as will appear by their deed to me dated January 27, 1849 and recorded on page 133 of the 48th Book of Records, containing as therein described about 30 acres of enclosed land and 10 acres of unenclosed land." Significantly this deed from William Clisby also specifically conveyed certain sheeps commons in Share 21 [Note 2] of the North Pasture, the ownership of which is determinative of this case. Reference was made in the granting clauses to four hundred forty-four and 2/3 sheeps commons in Share 21, North Pasture, acquired by deed of George Easton dated March 16, 1860 and recorded in Book 55, Page 304 and one hundred thirty-five and 1/2 sheeps commons in said Share 21 conveyed by the heirs of David Coffin by deed dated February 21, 1860 and recorded in Book 55, Page 305. History reveals that large tracts of land on the island were held in common ownership by the Proprietors of the Common and Undivided Lands of the Island of Nantucket for the purpose of sheep grazing. There apparently were 19,440 acres owned in common so a number of sheep equal to the number of acres could be grazed by those entitled; in addition, each sheeps common also suggested ownership of 1/19440 of the common lands. In 1813 the Supreme Judicial Court held that partition was an appropriate remedy to clear title as the interests in the common lands had become fragmented. The present case is concerned with the North Pasture and specifically with Share 21 thereof. In it there were 636 and 2/3 sheeps commons, and as noted above, the holders thereof were entitled to graze one sheep for each common owned. See Mitchell v. Starbuck, 10 Mass. 5 (1813); Folger v. Mitchell, 3 Pick. 396 (1826); and Hardy v. Jaeckle, Mass. (1976) [Note 3]. In any event the parties do not dispute the fact that in 1869 William Clisby specifically conveyed to Richard E. and David W. Burgess a total of 580 and 1/6 sheeps commons in Share 21 of the North Pasture. The crux of the case is whether these sheeps commons then passed from the Burgesses to Lawrence F. Mooney by the above-mentioned deed (Plaintiffs' Exhibit No. 1) in which they are not specifically referred to by the grantors but in which the "Clisby Farm" is conveyed and is described "as the same conveyed to us by Wm. Clisby" with an appropriate title reference. The reference is to the deed in which the sheeps commons were transferred. A plausible argument can be made for the position of both the plaintiffs and the defendants, but the case for the position of the defendants is much stronger.

It has long been held in this Commonwealth that conveyance of a property simply referred to as the "farm" or as some particular person's farm conveys all the lands which make up the farm even though there is no specific description of each parcel. Auburn Congregational Church v. Walker, 124 Mass. 69 , 72 (1878); Hastings v. Hastings, 110 Mass. 280 , 288 (1872); Melvin v. Proprietors of Locks and Canals, 46 Mass. (5 Metc.) 15, 31 (1842). This has been held to be true even where there was a conveyance of "a certain parcel of real estate ... known as the Aaron Aldrich farm ... as bounded in a deed from Luther and Betsey Cragin to J. M. Aldrich ...," and the deed referred to included several parcels of land separately described, none of which was designated as the Aaron Aldrich farm. Aldrich v. Aldrich, 135 Mass. 153 (1883).

The evidence in the case last cited established that Aaron Aldrich had owned six of the seven parcels described in the Cragin deed. Three of the parcels made up the home farm; three other parcels, about a mile away from the home farm, were pasture land and also were known as part of the farm. The seventh parcel of land, never owned by Aaron Aldrich, was known as the Thompson land and was located about a mile from the home farm and a half mile from the pasture land.

In construing the deed the court stated that it should be read as

'certain land known as the Aaron Aldrich farm, and bounded as in a deed' ....

... There is nothing to indicate, in the deed referred to, that one or more of the parcels were known or intended as the Aaron Aldrich farm. If extraneous evidence should show that a part of the lands bounded in the deed would answer that description, it would be a question whether the parties intended only the lands coming within that designation, or all the lands described in the deed - whether they meant 'so much of the land described in the deed as is known as the Aaron Aldrich farm' or 'the land known as the Aaron Aldrich farm, being the lands described in the deed.'

The Aldrich court turned to the conduct of the parties and determined that the Thompson lot passed, even though it had never belonged to Aaron Aldrich and moreover, was not acquired solely through the Cragin deed.

In the present case the defendants' expert, Mark Titlebaum, Esquire, was of the opinion that the difference in phraseology between the phrase "Seth Clisby farm" and "Clisby farm" was significant and that the latter encompassed all the land used in conjunction with what had come to be known as the Clisby farm. Mr. Titlebaum's view is in accordance with the result reached in the Aldrich case. Contrariwise, Henry D. Winslow, Esquire, an equally renowned conveyancer, was of the opinion that the rule as set forth above was inapplicable since the parties in this case have agreed that the sheeps commons were not contiguous to the farm. In the Aldrich case, however, said parcel known as the Thompson land was held to be included within the conveyance despite the lack of contiguity and therefore is authority for the application of the same principle here. Mr. Winslow testified only as a rebuttal witness and commented on certain deeds which had been submitted to him for his opinion whereas Mr. Titlebaum and his associate spent multitudinous hours examing applicable records relating to locus.

That two eminent title examiners could reach such conflicting opinions as to the state of title clearly indicates the lack of clarity in the description of the land conveyed to Mooney by the Burgesses. It is well settled that an ambiguity in title may be resolved by reviewing the interpretation given the documents by the parties thereto, as evidenced by their conduct.Oldfield v. Smith, 304 Mass. 590 , 600 (1939); Amory v. Amherst College, 229 Mass. 374 , 384-85 (1918); Morrison v. Holder, 214 Mass. 366 , 369 (1913); Blais v. Claire, 207 Mass. 67 , 69 (1910). Following this approach it appears that the construction advanced by the defendants follows with one exception the pattern established by the original parties to the deed in question and their successors in interest.

In reviewing the title history of locus it appears that after the conveyance to Lawrence F. Mooney by the Burgesses, Mr. Mooney conveyed to Richard E. Burgess by deed dated May 31, 1890 and recorded in Book 74, Page 184 (Defendants' Exhibit No. 23) "all the land in share number 21 of the north pasture lying eastward of the west fence of the tract known as the 'Coffin Macy Lot' now held and occupied by said grantee." The description bounded the granted premises on the west by "the aforesaid fence, as the fence now stands, separating it from the other land of mine in said share 21." As a title reference the release deed stated "the land hereby released is a part of the land conveyed to me in a deed from D.W. and R. E. Burgess recorded in Book 72, Page 379." This deed makes it clear that so far as Richard E. Burgess was concerned, as revealed by his acceptance of a deed with such language as to the title reference and description, Lawrence F. Mooney had acquired the title to share number 21 of the north pasture by a conveyance from Richard and David. The plaintiffs argue that this language does not affect their claim of title since after the conveyance to Mr. Mooney and prior to Mooney's deed to Richard the two Burgesses had an informal partition in which they divided their remaining lands with Richard taking none of Share 21. This exchange is evidenced by a deed dated October 17, 1888 and recorded in Book 72, Page 538 from David W. Burgess to Richard E. Burgess (Plaintiffs' Exhibit No. 4) which includes "a portion of land in the North Pasture Shares which were conveyed to us by Deed of Paul W. Clisby and William Clisby." It is significant, however, that the principal property conveyed by this deed is David's one-half interest in the Coffin Macy Lot which in turn is referred to in the Mooney-Burgess deed. About two months after David's deed to Richard the latter executed a release deed dated December 15, 1888 and recorded in Book 73, Page 37, to the former of "those lands lying ... in share number nineteen and twenty­one of the division of North Pasture ... conveyed to us ... by deed of William Clisby. Recorded in Nantucket Deeds, Book 60, Page 282" (Plaintiffs' Exhibit No. 5). This deed alone of all the instruments reviewed does not fit the pattern of conveyances and can be explained only by a misrecollection of their previous transactions on the part of Richard and David or ignorance of the records on the part of the scrivener.

The conduct of the parties after the above-mentioned deeds supports the defendants' claim of title. From 1889 when the Burgesses exchanged deeds between themselves until 1978, there has been a dearth of record references to Share 21 in the plaintiffs' chain of title, a fact which is of significance. See Melvin v. Proprietors of Locks & Canals, supra; Stone v. Clark, 42 Mass. (1 Mete.) 378, 381 (1840). In the latter year an inventory (Plaintiffs' Exhibit No. 13) wasfiled in the Estate of Paul H. Bennett, late of said Nantucket, Nantucket Probate No. 4605 in which the schedule of real estate listed an "93.1 Percent interest in a certain tract of land in Nantucket, Mass. shown on Proprietors Plan Book 2, Page 51." It is apparent that the inventory was prepared after the complaint was filed in this case, for the value is given as dependent on the decision in "Land Court #91899." The plaintiff Paul A. Bennett is administrator of this estate. He also is president of the corporate plaintiff and conveyed to it by deed dated July 12, 1978 and recorded in Book 166, Page 18, twenty-five per cent of his interest in Share 21. Based on the chain of title after the Burgess-Mooney deed and the absence in the Burgess chain of any reference to the Share 21 sheeps commons until recently, I find and rule that the deed in Book 73, Page 37 is an aberration which cannot be explained and that the prior deed to Lawrence F. Mooney conveyed all the sheeps commons owned by the Burgesses in said Share 21 as part of the Clisby farm.

This conclusion is reinforced by the fact that those parties engaged in Nantucket real estate transactions in the early years of this century assumed that Lawrence F. Mooney and his successors owned the land to the west of the fence referred to in the 1890 deed to Richard. Land Court plans in Case Numbers 5388 (Defendants' Exhibit No. 11), 12268 (Defendants' Exhibit No. 12), 13364 (Defendants' Exhibit No. 13) and 14311 (Defendants' Exhibit No. 14) show Mr. Mooney as an abutter. More recently the defendant Barbour appears on several plans as an abutter to the properties bing registered (Defendants' Exhibits Nos. 15 and 16). Such references are not evidence that in fact the person named owns the land abutting the premises to be registered, but it is at least indicative that the surveyor who prepared the plan and investigated the ownership of the abutting lands had reached the conclusion that the Mooneys were the owners. Presumably also they were the parties notified of the registration proceedings. Perhaps more convincing is an agreement between four parties claiming to own real estate in the North Pasture dated November 24, 1930 and recorded in Book 105, Page 513, which included mutual releases of interests in shares numbered 6, 19, 19a, 20, 20a and 21; the agreement recognized Lawrence F. Mooney as the owner of all land in Shares 9a and 21 outside of that in certain specified Land Court cases (Defendants' Exhibit No. 24). The Town of Nantucket also made a taking to eliminate a curve in Polpis Road and the land in question was conveyed to the Inhabitants of the Town of Nantucket by Lawrence F. Mooney by warranty deed dated December 3, 1930 and recorded in Book 105, Page 495 (Defendants' Exhibit No. 21). The plan of the lands taken is Defendants' Exhibit No. 22. Thereafter Lawrence F. Mooney conveyed his right, title and interest in Share 21 to his sons Lawrence F. Mooney, Jr. and Robert C. Mooney by deed dated September 24, 1931 and recorded in Book 106, Page 210 (Defendants' Exhibit No. 15), and the latter conveyed his interest to Robert F. Mooney by deed dated February 16, 1953 and recorded in Book 114, Page 157 (Defendants' Exhibit No. 17) similarly describing the granted premises. The heirs of Lawrence F. Mooney, Jr. and Robert F. Mooney personally in turn conveyed the same premises to Clifford E. Barbour, Jr. et al (Defendants' Exhibit No . 18) by deed dated June 23, 1956 and recorded in Book 116, Page 425. The plaintiffs do not dispute that the defendants are those entitled to record ownership if the plaintiffs are not.

In addition to the interests in the sheeps commons heretofore discussed David W. Burgess also acquired twelve sheeps commons in Share 21 (as well as other interests in various other shares) by deed of Henry Coffin dated May 9, 1884 and recorded in Book 69, Page 94 (Defendants' Exhibit No. 2). I find and rule that these were treated by Mr. Burgess in the same manner as his other interests in Share 21 and that they passed to Lawrence F. Mooney. There is only one other such share in the plaintiffs' chain of title, and it is not referred to until 1909 in a petition for a license to sell the real estate of David W . Burgess (Plaintiffs' Exhibit No. 7).

Plaintiffs' Exhibit No. 8, a deed from Walter H. Burgess, as Administrator of the estate of David W. Burgess, to himself pursuant to a license of court, conveyed in paragraph Second "one sheep commons of all the common and undivided land on the island of Nantucket." Two title references are given, but it has not been shown that by these instruments David W. Burgess in fact had acquired a sheeps common in Share 21 which was not conveyed out in his lifetime. Even if he had, a strong argument can be made that such interest was too infinitesimal to support this action. The burden is on the plaintiffs who seek to obtain possession of land under the defendants' control to prove that they have title to at least an undivided fractional interest therein. On all the evidence I find and rule that the plaintiffs have not borne this burden.

In the posture of the case which I have taken I do not reach the question of adverse possession on which the defendants also base their title.

It follows that the complaint must be dismissed.

Judgment accordingly.


[Note 0] The parties against whose name an asterisk appears were added as parties defendant on the motion of the defendants. None of them took an active part in the proceedings.

[Note 1] Unless otherwise required by the context, all recording references herein are to said Registry of Deeds.

[Note 2] The deed also conveyed sheeps commons in Shares 19 and 19A of the North Pasture, but this is clearly not locus.

[Note 3] Mass. Adv. Sh. (1976) 2886, 2889-2890.