HAROLD K. DILLMAN and SUSAN L. DILLMAN vs. ROBERT W. HARDING and DOROTHY E. HARDING.

The plaintiffs seek to register a parcel of land (hereinafter locus) on Crest Street, Concord, Massachusetts as shown on a plan filed with the complaint and introduced into evidence as Exhibit 13. This area is outlined in blue on Appendix A [Note 1] attached hereto. The southwesterly boundary is the area in contention, as defendants claim ownership of an area measuring 7.60 feet at the rear and 7.10 feet at the street line. The defendants claimed an easement over the driveway and garage located in part on locus, but this claim was not pushed at the time of trial and is not further considered herein.

A trial was held on October 14, 1981. A stenographer was sworn to record and transcribe the testimony in the case. Three witnesses testified and 14 exhibits were introduced into evidence and together with an agreed statement of facts filed by the parties, are incorporated herein for the purpose of any appeal.

The Court finds the following facts:

1. By deed dated October 12, 1889 and recorded on November 6, 1889 in Book 1940, Page 64 [Note 2] Edwin M. Wheeler conveyed to Harvey Wheeler a parcel of land in Concord, Massachusetts containing approximately 24 and 1/1000 acres. (Exhibit 1)

2. On November 16, 1889 recorded in Plan Book 61, Plan 9, Harvey Wheeler recorded a plan of land entitled "Plan of Lands and Building Lots near Concord Junction, Mass. owned by Harvey Wheeler, Concord, Mass. Scale 100 feet to one inch, October, 1889" depicting twenty-eight lots. (Exhibit 2) This plan showed a subdivided portion of the land deeded from Edwin M. Wheeler to Harvey Wheeler. (see paragraph 1 hereof)

3. By deed not in evidence but set forth in the agreed statement of facts, dated November 15, 1889, recorded in Book 1943, Page 151, Harvey Wheeler conveyed to George E. Wolcott Lots 8, 9, and 10 on the plan in Plan Book 61, Page 9. (Paragraph 2 above)

4. By deed dated March 1, 1893, and recorded in Book 2186, Page 500 (Exhibit 3) Harvey Wheeler conveyed Lots 11, 12 and 13 to George E.Wolcott. (See Appendix A)

5. On June 2, 1893, a plan of land entitled "Plan of Lands and Building Lots near Concord Junction, Mass. owned by Harvey Wheeler, Concord, Mass. Scale 100 Feet to one inch, April 1893" was recorded in Plan Book 81, Plan 11. (Exhibit 4) This plan encompasses an additional area to that shown on the plan, Exhibt 2, and contains a different measurement for the northwesterly line of Lot 11, this being shown to be 5/10 of a foot shorter than as shown on the plan, Exhibit 2.

6. By deed dated July 9, 1906 and recorded in Book 3242, Page 579 Harvey Wheeler conveyed Lot 14 on the plan, Exhibit 4, with a frontage of 151.1 feet on Crest Street and a rear line of 91.1 feet to Catherine G. O'Reilly, shown in green on Appendix A. (Exhibit 5)

7. By deed dated May 11, 1908 and recorded in Book 3369, Page 53, George E. Wolcott conveyed the northerly part of Lot 13, as shown on Appendix A in brown having frontage of 70 feet on Crest Street and a rear line of 65 feet to Patrick and Catherine O'Reilly. (Exhibit 6)

8. By deed dated November 8, 1915 and recorded in Book 4013, Page 336, George E. Wolcott conveyed a parcel of land purportedly part of Lot 11 to August Kukanis. [Note 3] (Exhibit 7) The description of this land in the deed commences as "Beginning at a stone bound on said Crest Street said bound being about 397 feet from Old Bridge Road." The lot had a frontage of 75 feet on Crest Street and 75 feet in the rear.

9. By deed dated April 30, 1919 and recorded in Book 4254, Page 577 George E. Wolcott conveyed part of Lots 11 and 13 and all of Lot 12 with a frontage of 176 feet more or less on Crest Street to Patrick Reilly. (Exhibit 8) The rear line ran from other land of the then grantee Patrick Reilly, being the southerly portion of Lot 13 shown on Appendix A in brown, 125 feet more or less to land of Krukanos. This parcel is shown in red on Exhibit 8.

10. On July 21, 1925 Patrick Reilly died intestate leaving a widow and eleven children (Exhibit 9). The children and the husband of a deceased daughter, who died childless, joined together and deeded the area including locus to the widow Catherine Reilly by deed dated January 31, 1928, recorded in Book 5264, Page 90 (Sheet 12 of abstract) and deed of James W. Doyle, Administrator of the Estate of Elizabeth J. Doyle, dated May 31, 1928 recorded June 23, 1928.

11. Catherine G. Reilly died testate on February 7, 1930, leaving no husband and ten children. Her son John E. Reilly was appointed executor (See Abstract, Page 15, and. 15A). The will devised:

"my house and land situate at 1 Crest Street, Concord Junction, Massachusetts. . .and the double parcel of land situate on Crest Street between the strip of land conveyed by me to the said John E. Reilly and land of Krukanis, being the double parcel used by my late husband as a garden", to my son John E. Reilly but if he died without issue to daughter Margaret A. Reilly and Lucy C. Reilly.

12. On December 29, 1957, John E. Reilly died testate, leaving a last will and testament in which he devised and bequeathed all of his property to his sister Mary A. Hall, whom he also nominated to be his executrix. (See Abstract, Sheet 16 and 17)

13. By deed dated May 18, 1958 and recorded May 29, 1958 in Book 9377, Page 442, the said executrix Mary A. Hall, by license of the Middlesex Probate Court conveyed:

"the land in Concord being shown as part of Lot 11, all of Lot 12 and part of Lot 13 on Plan No. 9, Plan Book No. 61, recorded at Middlesex South District Registry of Deeds, bounded and described as follows:

A certain parcel of land situated in said Concord being shown on a plan entitled "Land of Estate of John E. Reilly, of Concord, Massachusetts," dated August 20, 1958, Alexander C. Peters, Reg. Prof. Engineer, duly recorded with Middlesex (So. Dist.) Deeds, and bounded: beginning on the Westerly side of Crest Street at land marked Area .400+/- acres; thence running in a general Southwesterly direction by Crest Street 159.30 feet to a stake and nail as shown on said plan; thence continuing 23.80 feet to another stake and nail to land now or formerly of Robert W. Harding; thence turning and running in a northwesterly direction by land now or formerly of Robert W. Harding and being Lot 11 on said plan, through a garage to a corner 130.52 feet to a stake and nail at land now or formerly of Grace Ryan; thence turning and running by land of Ryan in a northeasterly direction 16.20 feet to a stone bound at land of George Pageau; thence continuing in a northeasterly direction by land of George Pageau 90.70 feet to an iron pin in concrete; thence continuing by land now or formerly of David R. King and Althea King in a northeasterly direction 25.70 feet to a stake and nail at land area marked .400 acres more or less; thence turning and running in an easterly direction by lot marked .400+/- acres, 119.28 feet to a stake and nail at the point of beginning on Crest Street. Said parcel contains according to said plan, .444 acres more or less."

to Everett M. Dillman. (Exhibit 10) It would appear and the Court finds that the date of this deed is incorrectly given as May 18, 1958 whereas it should have been May 18, 1959. The deed recites that the land conveyed is in accordance with a plan of Alexander C. Peters, (Exhibit 11 and the model for Appendix A), which was dated August 20, 1958 and the license to sell authorizing the deed was dated September 17, 1958.

14. The parties have stipulated and agreed and the Court finds that as of the date of the above sale Mary A. Hall as Executrix owned Lot 14 with a frontage of 151.1 feet on Crest Street. In addition, she owned the northerly portion of Lot 13 measuring 70 feet on Crest Street - Exhibit 6. She also owned the balance of Lot l3, all of Lot 12 and a part of Lot 11 with a frontage of 176 feet on Crest Street for which she obtained the license to sell. The total frontage of the three parcels was 397.1 feet, more or less.

15. The parties have stipulated and the Court finds that the rear line of Lot 14 was 91.1 feet, that the rear line of the northerly portion of Lot 13 - Exhibit 6 - was 65 feet and the rear line of the remainder of Lot 13, all of Lot 12 and a portion of Lot 11 was 125 feet more or less, a total of 281.1 feet, more or less. The Court notes that on the file plan and the "Peters" plan Exhibit 11, the rear line of Lot 13 is shown as 66 feet. The Court accepts the measurement most favorable to the plaintiffs as set forth on the plan, namely 66 feet. The license to sell sets forth the rear line distance in three segments, one of 16.20 feet, one of 90.70 feet and one of 25.70 feet.

16. On July 10, 1974, recorded in Book 12667, Page 692, Everett M. Dillman conveyed the premises described in his deed from Mary A. Hall, Executrix under the Will of John E. Reilly, (paragraph 12 herein) to the plaintiffs Harold K. and Susan L. Dillman. (Exhibit 12)

17. The parties further stipulated and the Court finds that the Peters plan, so-called, Exhibit 11, and the progenitor of Appendix A, uses 183.1 feet as the Crest Street frontage of part of Lot 11, all of Lot 12 and part of Lot 13. It uses the rear line distances of 16.20', 90.70' and 25.70', a total of 132.60' for the same lots.

18. The parties stipulated and the Court finds that the so-called Peters plan, Exhibit 11, and the file plan show the same dimensions of locus, part of Lot 11, all of Lot 12 and part of Lot 13, and that the southwesterly line of locus passes through defendants' garage and part of its driveway. Defendants' shed shown on the file plan and not on Exhibit l appears to be completely on the area claimed by plaintiffs and has been added to Appendix A in its approximate location by the Court.

The question to be decided herein is the location of the southwesterly line of locus. Plaintiffs claim it is as represented on the file plan, on Exhibit 11, and on Appendix A in blue running through defendant's garage and including most of a shed owned by defendant. Defendant claims the southeast point of the line at Crest Street is some 7.10' northeast and the northwest point in the rear some 7.60' northeast of the line claimed by plaintiffs.

On the death of Patrick Reilly in 1925 he owned the parcel shown on Appendix A in red consisting of Part of Lot 11, all of Lot 12 and Part of Lot 13. (See paragraph 9 herein) These lots had a frontage on Crest Street of 176 feet and a rear line of 125 feet, both more or less. In addition he owned ''Part of Lot 13" shown on Appendix A with a frontage on Crest Street of 70 feet and a rear line of 66 feet. (See paragraph 7 herein). His interest eventually went to his widow Catherine so that when she died on February 7, 1930 (See paragraph 11 herein) she owned part of Lot 11, all of Lot 12 and all of Lot 13, together with Lot 14 which she had acquired herself. (See paragraph 6 herein).

Catherine devised the area shown in red on Appendix A acquired by her through her family from her husband Patrick namely "Part of Lot 11, all of Lot 12 and Part of Lot 13" to her son John E. Reilly. (See paragraph 11 herein) The said John in turn left it to his sister Mary A. Hall, also his executrix, who obtained a license to sell from the Middlesex Probate Court. (See paragraph 13 herein) She, as devisee, held a total of 176 feet more or less frontage on Crest Street, and a rear line of 125 feet. The description set forth in her petition for a license to sell as well as her deed to plaintiffs' predecessor in title, Everett M. Dillman - see paragraph 13 herein -describes the parcel shown in blue on Appendix A with a frontage on Crest Street of 159.30 plus 23.80, totaling 183.10 feet, some 7.10 feet more than deeded in to her predecessor. The rear line in the above license and deed was set forth as being in three segments of 16.20, 90.70, and 25.70 feet, some 7.60 feet more than was deeded in to her predecessor. Granted that the deed in to her predecessor in title - see paragraph 9 herein - set these distances as 176 feet and 125 feet "more or less", the "more or less" would still not explain such a large discrepancy of distance. The inescapable conclusion to be drawn is that too much land was included in the Mary A. Hall license and deed.

This conclusion is bolstered by examining the deed to Krukanis. (See paragraph 8 herein) This Krukanis deed begins at a stone bound which was not found, about 397 feet from Old Bridge Road. Measuring from the junction of Old Bridge Road also known as the Road to Nine Acres at the northeast corner of Lot 14 at Lot 1 397 feet brings one to a point some 16.60 feet westerly of the southwesterly corner of Lot 12, at a point marked A on Appendix A. This point in turn is some 7.20 feet to the east of the point marking the southwesterly corner of the area marked Area .444 Acres + on Appendix A shown in blue. Note that the 397 feet is measured from the junction of the roads and not from the stone bound shown on Appendix A which is some 5.74 feet westerly of the junction. Note also that taking the measurements from the deeds the distance is 397.1 feet. Point A is placed at the point most favorable to the plaintiffs, 7.20 feet northeasterly of the southeast corner of Lot 11 as shown on the file plan, and Appendix A. The Court finds and rules that this is the southwesterly bound of the land sought to be registered by the plaintiffs.

The rear line of the lot marked Area .444 on Appendix A is shown as being 132.60 feet in length. The deed in to Patrick Reilly sets forth the length of this line as being 125 feet in length. Measuring 125 feet southwesterly along the rear line from the area marked Area = 400 + Acres on Appendix A brings us to a point 7.60 feet northeast of the point claimed by the plaintiffs herein and marked B on Appendix A. The Court finds and rules that this is the southwesterly bound of the land sought to be registered by the plaintiffs.

The Court finds and rules that the southwesterly line of the locus sought to be registered is as shown on Appendix A as the line AB; that the area southwesterly of this line AB be severed and dismissed and that the title to the remainder of the locus be registered and confirmed subject of course to such other matters disclosed by the examiner's abstract not here in issue.

Judgment accordingly.

exhibit 1