LEO F. GALLAGHER, Trustee of Leo F. Gallagher Trust vs. KARL METZ, ALBERT A. METZ, COLMAN M. THACHER, COMMONWEALTH OF MASSACHUSETTS, and COMMONWEALTH ELECTRIC COMPANY.

Charles M. Gallagher and Mildred J. Gallagher, Trustees of the Gallagher Family Trust, filed a petition with this Court to register their title pursuant to the provisions of G. L. c. 185, §l (a) to a parcel of vacant land situated on Cliff Pond Road in Brewster in the County of Barnstable, adjacent in part to the town line between Brewster and Orleans. The premises claimed by the petitioners are shown on a plan entitled "Plan of Land in Brewster, Massachusetts" (the "Plan") by Ernest W. Branch, Inc., filed with the Court. [Note 1] (Exhibit No. 1).

By deed dated July 30, 1975 and recorded on August 23, 1977 with the Barnstable County Registry of Deeds Book 2568, Page 297 (Abstract s. 34) the original petitioners conveyed the premises to the substituted petitioner, Leo F. Gallagher, Trustee of the Leo F. Gallagher Declaration of Trust under a Declaration of Trust dated February 23, 1959 and recorded with said Deeds, Book 1072, Page 20 (Abstract s. 21). Unless the context otherwise requires all recording references herein are to the Barnstable County Registry of Deeds.

An answer was filed by Karl Metz and Albert A. Metz who claimed to own all or a portion of the premises as well as adjoining land marked "Nicholas Family Trust" on the plan. An answer also was filed by Colman M. Thacher in which he claimed ownership of a portion of the premises as well as adjoining land. At the trial, however, Mr. Thacher's position was restated to include only a claim to be shown as an abutter in place of the Nichols Family Trust. Since the title to land of abutters is not adjudicated in a registration proceeding brought by a third party, the Court will not determine in this case whether Karl and Albert A. Metz on the one hand or Colman M. Thacher, on the other has the better title to the land marked "Nichols Family Trust" adjacent to locus. Rather the decree plan will carry a note as to the respective claimants thereof. New Bedford Gas and Edison Light Company, now Commonwealth Electric Company, also answered; its position was recognized by the petitioner entering into a stipulation with it which disposed of its objections. The Commonwealth of Massachusetts also appeared and answered but subsequently withdrew.

A trial was held at the Land Court on January 28, 1981 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The substituted petitioner's title as set out in the abstract (Exhibit No. 5) derives from David Snow to whom Israel Rogersconveyed an approximately six acre parcel of woodland in 1846 (Abstract s. 6). The deed describes the land as being in Orleans, rather than Brewster, but the Examiner concluded based on a local history that in fact the land was in Brewster, its owners residents of Orleans. Title, as claimed by the petitioners, devolved through the David Stone chain as more fully appears in the abstract. In 1970, Howard N. Snow et al granted an easement to Cape and Vineyard Electric Company (a predecessor to New Bedford Gas and Edison Light Company and the present Commonwealth Electric Company), by instrument dated November 10, 1970 and recorded in Book 1490, Page 992 (Abstract s. 32). This was followed by a deed from the same Snow grantors to Barbara J. Fregeau, dated April 8, 1971 and recorded in Book 1506, Page 28 (Abstract s. 18). Fregeau, said to be a nominee of the utility, then conveyed the premises to the substituted petitioner (Abstract s. 19) who in turn conveyed them to the original petitioners (Abstract s. 24). The inter-family transfers apparently ended with a reconveyance in 1975 as stated above (Abstract s. 34) from Charles, et al, Trustees to Leo F., as trustee.

Karl and Albert A. Metz contest the substituted petitioner's title by relying on a different chain of title and by locating the David Snow land farther to the northwest but adjoining the land to which they claim title. Their chain, as presented to the Court, rests on a deed from Elizabeth N. Patterson et al, Trustees of the Nichols Family Trust to Iver N. Johnson et ux dated September 22, 1958 and recorded in Book 1021, Page 48 (Exhibit No. 6) and a deed from Iver N. Johnson et ux to Albert A. Metz et al, dated March 28, 1961 and recorded in Book 1117, Page 173 (Exhibit No. 7). The description in Exhibit No. 6 locates the premises in Orleans and bounds "On the west by land now or formerly of the heirs of David Snow". It describes the premises conveyed as being in Orleans. The Metz deed apparently is the first instrument in which deeds in this chain describe the premises as being partly in Orleans and partly in Brewster. This description also bounds by "land now or formerly of David Snow, 1116.45 feet." Finally, it refers to a plan entitled "Plan of Land in Orleans and Brewster, Massachusetts , belonging to Iver N. Johnson, Scale 1 inch = 60 feet, October 1958". While the deed recites that said plan was recorded in the Barnstable County Registry of Deeds, in fact, it was not. A print was introduced at the trial and marked Chalk C. It was prepared by Schofield Brothers, Civil Engineers and Land Surveyors, who also prepared an earlier plan dated March, 1956 (Chalk A), which shows land of the Nichols Trust, respondent Metz's predecessor, crossing the town line and extending from Orleans into Brewster. Schofield Brothers recently also prepared a sketch (Chalk D) for respondent Thacher which is consistent with the earlier plans in this regard. A plan of land for the Town of Orleans Watershed as made for the Orleans Board of Water Commissioners dated July, 1962 by Arthur L. Sparrow Co. (Exhibit No. 2) follows the Schofield line of the Metz property. The Metz land as shown on the Schofield plans would overlap locus as it appears on the Plan. Whether a difference between true and magnetic north might account in part for the overlap was not argued by counsel.

Robert S. Booth, Jr., the registered land surveyor whose firm prepared the Plan, testified that in making his field survey, he had relied on deeds in the petitioner's chain of title, the heaps of stones found on the ground and shown on the Plan which he considered monuments, the Mid-Cape taking (Abstract s. 30, 31) and the easement to Cape and Vineyard Electric Company (Abstract s. 32).

It is very difficult to locate present owners and property lines in the area adjacent to the Mid-Cape Highway in Brewster where the land generally remains undeveloped. For this reason, conveyancers familiar with Cape Cod titles rely on the work done for, and by the Commonwealth of Massachusetts when Route 6, the Mid-Cape Highway, was laid out. Introduced as Exhibit No. 4 was a plan entitled "Plan Showing Lines and Ownerships in Town of Brewster in Vicinity of Proposed Mid-Cape Highway", on which locus appears as Parcel 114. There also appears on the plan a brief title history of each parcel which concludes as to Parcel 114, that the heirs of Frank W. Snow were the owners. A portion of the Department of Public Works plan appears at sheet 36 of the abstract and of the chain of title at sheet 37. Approximately 39 square feet of locus was taken by the Commonwealth from "parties unknown" (formerly the heirs of Frank W. Snow) for the layout of the state highway (Abstract s. 30). The devolution of the title from the heirs of Frank Snow to the substituted petitioner is traced in the abstract and outlined herein.

The current Assessors' plan for the Town of Brewster adopts the Plan. A previous Assessors' plan in the file in the Land Court showed the lines as laid out by Schofield.

It is the difference in the bearing in the easterly line of locus and the southwesterly line of the Metz land which leads to the overlap here. Without any testimony from members of the Schofield or Sparrow firms, however, to explain the conclusions which they reached, the Court adopts the substituted petitioner's position which follows the Department of Public Works worksheet and plan and that of the Utility Company as evidenced by the plan entitled "New Bedford Gas and Edison Light Company Right of Way for Orleans-Chatham Electric Transmission Lines" (Exhibit No. 8). The work done on behalf of the Commonwealth in locating parcels along the highway and the owners thereof has been recognized by those dealing with land in the vicinity of Route 6 as being accurate and the best source of information as to titles in the undeveloped areas. Of course, proof may always be submitted to contradict the conclusions set forth in Exhibit No. 4, but absent testimony by respondent's surveyors to support the conclusions shown on other plans in evidence, the Court finds that the substituted petitioner's position should prevail. This conclusion is buttressed by the fact that, as discussed above, one of the substituted petitioner's predecessors in title was recognized as a prior owner, both by the Commonwealth and the utility company, and locus appeared on the relevant plans as it does in the Plan. Moreover, the westerly line of locus has been established from the monuments shown on the Plan to the Court's satisfaction in the location shown on the Plan. All parties agree this line is roughly parallel with the easterly line of locus; accordingly, the Court declines to accept the configuration propounded by the respondents.

As herein before pointed out, the plan and the abstract were not up-dated before the trial and this must be done before any further action is taken in the case. The Court also suggests that Frank H. Thompson, an abutter had died at the time of citation, and that the names of his executors, trustees or devisees, as the case may be, should be furnished the Court so that a special order of notice may be ordered unless a waiver of notice by those entitled is provided. Town of Orleans and David Rich, abutters, also have not been served, and special notice to the Tovm will be ordered by the Court and also to Mr. Rich (or his heirs, legal representatives or devisees) when his address is provided. Evidence as to whether Cliff Pond Road is a public way or a private way also must be furnished.

A decree may be entered registering the title of the substituted petitioner to the land shown on the Plan subject to the foregoing matters, to an easement f rom Howard N. Snow et al to Cape and Vineyard Electric Company (now Commonwealth Electric Company) dated November 10, 1970 and duly recorded in Book 1490 Page 992, and to such other matters as appear in the abstract and are not in issue here.

Decree accordingly.