ANDREW HEALY and MONICA HEALY vs. MARY RIDGE and MARGARET RIDGE.

Andrew and Monica Healy, husband and wife, of Newton in the County of Middlesex seek to have this Court determine the boundary line between their property at 41 Wildwood Avenue and that of the defendant, Mary Ridge, at 33 Wildwood Avenue which adjoins the plaintiffs' land on the north. The other defendant, Margaret Ridge, is the daughter of Mary Ridge.

A trial was held at the Land Court on September 18, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The plaintiffs acquired title to their home from Alice I. Cox by deed dated September 29, 1977 and recorded with Middlesex South District Deeds, Book 13298, Page 475 (Exhibit No. 1) conveying Lot 60 and one-half of Lot 59 on a plan entitled "Plan of Land in West Newton, Mass., belonging to Geo. D. Cox, Jr.," by William Bradford (the "Plan"), recorded in Plan Book 62, Plan 34 (see Exhibits Nos. 8 and 8-A). All recording references herein are to the Middlesex South District Registry of Deeds.

2. Mary Ridge acquired title to her home with her husband, John J. Ridge, as tenants by the entirety, from Michael J. Herlihy et al by deed dated August 24, 1942 and recorded in Book 6642, Page 244 (Exhibit No. 10) covering Lots 61 and 62 on the Plan, and she is the surviving joint owner.

3. An application for a building permit for the Healy house was granted on October 23, 1936. The sketch which appears thereon gives the set-back of the house to be ten feet ten inches from the northerly sideline and seven feet six inches from the southerly line. The record is silent as to the number of existing houses situated on Wildwood Avenue in 1936 although the decree plan in Land Court Registration Case No. 9895A shows two buildings on lots on the opposite side of the street in 1923. There may well have been others both in 1923 and 1936. [Note 1]

4. After the plaintiffs took title, they had the property surveyed to establish their boundaries and arranged for an installation of a driveway on the side of the house closest to the Ridge premises. A disagreement then arose as to the location of the common boundary line between the plaintiffs and defendants, and two further attempts were made to establish it, each with a different surveyor or technician and each with a different result.

5. There are two cases registering title to lots on Wildwood Avenue, Case No. 9895 already referred to, and Case No. 25296 on the same side of Wildwood Avenue as the locus. On the Plan the northerly boundaries of the lots comprising the registered land, as extended, appear to meet, but on the registration plans the northerly boundary of the premises first registered is 2.21 feet northerly of that in Case No. 25296. It is apparent that there is a difference of 2.21 feet between the decree plans in the two cases. No evidence was offered to explain the reason for this.

6. The plaintiffs initially engaged Edward Quinn, a City of Newton employee to fix the common boundary line for them. Mr. Quinn and his two-man crew tied into the earlier of the registration cases as well as Registration Case No. 16200 covering land on Kensington Street situated to the west of locus and at its junction with Wildwood Avenue. The results of this survey appear on Exhibit No. 3 and Exhibit No. 9, the latter being a print of the relevant assessors' plan. Exhibit No. 3 bears the seal of Alfred Gargaro, a Registered Land Surveyor, although the extent of his participation is unclear.

7. Everett M. Brooks Co. then prepared a survey for the defendants dated May 31, 1978 (Exhibit No. 12). Charles D. Thompson of said firm testified that the survey commenced at the southwesterly intersection of Wildwood Avenue and Watertown Street at a drillhole in the sidewalk, that a concrete bound was found 109.31 feet northerly of the drillhole as shown on Land Court decree plan 29296A, and that then the record distance as shown on the plan of 400 feet from the concrete bound was measured and the boundary line set. The results of this procedure showed the plaintiffs' driveway to encroach on the Ridge property 2 feet 2 inches. This latter figure essentially is the difference between the two Land Court plans.

8. Finally a survey was done by Miller & Nylander perpetuated on a worksheet dated November 8, 1978. (Exhibit No. 13). Counsel had anticipated that the cost of the survey would be borne equally, and it ultimately was. This work product showed not only record distances, but lines of occupation as well.

9. Exhibit No. 13 shows that the surveyor found a stake and nail approximately 2.31 feet north of where this firm placed the southeasterly corner of the plaintiffs' property at the line of Wildwood Avenue at land of an abutter not involved in this litigation. Exhibit No. 13 located the disputed line as being 7.85 feet from the northeasterly corner of the Healy house with the driveway encroaching at that point about 1.7 feet. The distance from the house to the lot adjoining locus on the south is given as 10.34 feet.

10. The setbacks as they appear on Exhibit No. 13 are essentially the reverse of those which appear on the application for a building permit for the plaintiffs' home. The northerly boundary is approximately 2.21 feet closer to the record line, and the southerly boundary is about the same distance further from the house as built.

11. While there is no direct evidence now available to support this conclusion, it seems apparent that the plaintiffs' house was located on their land by tying in their lot with Land Court Case No. 9895. Whether the difference already found between the two Land Court plans stems from the method of locating a drillhole in Watertown Street, difficulty in establishing the line of said street, an excess of two more feet on the ground than the draftsman of the Plan anticipated, an error in siting of a house in the neighborhood, a change in the street line at the northerly intersection of Wildwood Avenue with Kensington Street or a combination of these factors cannot be determined on the present record. Nonetheless it seems that one or a combination of these factors is responsible for the difficulty in locating the line.

12. Exhibit No. 5 is a photograph of a chain link fence which Miss Alice Cox, the plaintiffs' predecessor, had erected about 12 to 14 years ago and which replaced an existing "chicken wire" fence. The post marking the end of the fence appears to be in line with the driveway as shown on Exhibit No. 4. The land of the defendant, Mary Ridge, has had fill added, and it consequently is slightly higher than that of the plaintiffs. The exhibits illustrate this and show what appears to be a retaining wall. A witness testified that he had cut the Cox lawn (now covered by the driveway) to a distance from the house in line with the fence pole.

13. Exhibit No. 11, a snapshot taken some years ago, shows a flower bed and trees which the defendants claim were located on their land, but it is impossible to place the boundary accurately from this photograph.

14. Exhibit No. 13 shows a hedge and wire fence between Mrs. Ridge's land and that of her neighbor to the north. There was no testimony as to whom these belonged. It is significant, however, that they are the same distance northerly from the northerly line of Mrs. Ridge as shown on the Plan as the driveway encroaches on her southerly line.

15. The title reference in Exhibit No. 10, the deed from the heirs of Jeremiah Herlihy to Mr. and Mrs. Ridge gives as one source of title a deed to Mr. Herlihy from William J. Hannan dated August 4, 1911 and recorded in Book 4397, Page 567. Hannan appears to have developed much of the area about 1911, but the record is silent as to when the Ridge house was built. [Note 2] Hannan appears to have been a common grantor to both the plaintiffs and the defendant, but evidence as to when he conveyed out to the plaintiffs' predecessors-in-title was not introduced.

There seems little question that the present problem originated in one of two ways although it is possible that other factors already discussed may have played a role. Either the length of the frontage of Wildwood Avenue on the ground was in fact 2.21 feet greater than the sum of the distances shown on the Plan or the street line of Watertown Street was computed differently by the two surveyors who prepared the filed plans in Cases Nos. 9895 and 25296. At the time the earlier plan was prepared, William J. Hannan, the common grantor, owned the land abutting that of the petitioner, and he did not object to the location of the premises. Indeed the position of the house on his adjoining lot as shown on the decree plan indicates that he must have proceeded on the same assumption as to location as the petitioner. It always is difficult to determine which Land Court plan should be followed in the rare instance where there may be inconsistencies. It should be remembered that in fixing the boundaries of the petitioner in a registration case the Court is ruling only on the particular locus for which registration is sought so differences in the decrees in unrelated cases are possible although unusual. Circumstances surrounding such a variation may differ, and accordingly it seems preferable not to enunciate at this time an inviolate rule. To further the intention of the parties must be the controlling consideration in attempting to resolve ambiguities. Hill v. Taylor, 296 Mass. 107 (1936); Abbott v. Frazier, 240 Mass. 586 (1922). Insofar as conduct is evidence of that intent, see Oldfield v. Smith, 304 Mass. 590 , 600 (1939); Morrison v. Holder, 214 Mass. 366 , 369 (1913), it seems clear that in the present case reliance should be placed on the earlier of the two plans, for it was the only one extant when the plaintiffs' house was built, and it is my conclusion that it was used in siting their house on the lot. I have assumed that Mrs. Ridge's house predated both registration plans, but its location must have been taken into account in 1936 when the building permit for the Healy house was issued. The boundaries of the plaintiffs' property at 41 Wildwood Avenue were fixed in 1936, and recognition of them by the parties since that time serves to determine their present location. If these are wrong as a matter of record and it is by no means clear that they are, then the plaintiffs' case, while not resting on adverse possession in its strictest sense, is grounded in principles similar thereto. For that reason I deny the defendants' motion made in open court for a directed verdict on this issue.

I therefore find and rule that the common boundary line between the premises now known as and numbered 41 and 33 Wildwood Avenue in said Newton commences at a point sixty feet northerly on Wildwood Avenue from a stake and nail shown on both Exhibits No. 3 and No. 13 and thence runs westerly eighty feet, the boundary line forming an angle of 90 degrees with the line of the public way. I further order that the defendants, their agents, servants and employees are not to interfere with the use by the plaintiffs of the land southerly of said line.

Judgment accordingly.