MASON I. LAPPIN and SHIRLEY LAPPIN vs. AARON BROWN a/k/a LEON BROWN, and PAULA M. BROWN.

Plaintiffs brought this action under G. L. c. 231A, §1 and 185, §1 for a declaratory judgment to determine their southeasterly line abutting defendants northwesterly line in Malden, Middlesex County, Massachusetts. In addition, plaintiffs claim damages for trespass, for removal of a wire fence and fill, for consequential damages, and for costs and attorneys fees.

The defendants deny the allegations of the plaintiffs and by way of counterclaim allege that the plaintiffs have erected a fence and have trespassed on their land, demanding that plaintiffs be ordered to remove the fence, pay damages in the amount of $7,500 and interest and attorneys fees.

After transfer of the case to the Superior Court for a jury trial claimed by defendants and a subsequent retransfer to the Land Court when the jury claim was waived and after many conferences among the parties and their attorneys including views taken on two occasions by Judge Sullivan and Judge Fenton of the Land Court, negotiations for settlement broke down and the case came on for trial on November 24 and 25, 1981. Defendants Brown had been represented by various counsel but at the trial chose to proceed without counsel. A stenographer was sworn and recorded and transcribed the testimony of five witnesses. Twenty-five exhibits were introduced into evidence and are incorporated herein in the event of an appeal.

It is hard to imagine a conflict over an area much smaller than involved here - some 80 square feet at most - or one incurring more bitter feelings between neighbors.

The Court finds and rules as follows:

l. Defendants got title to Lot 7 on "Plan and Profile of Corey Road (formerly Oak View Road) Malden, Massachusetts, November 15, 1954, S. Slater - M.A. McNall Surveyors", Plan Number 2120, recorded with the South Registry District of Middlesex County [Note 1] in Book 8385, Page 72, (Exhibit 14) [Note 2], by deed of Samuel Ellis Reinherz dated April 17, 1957 and recorded in Book 8935, Page 119. (Exhibit 15). Defendants' northwesterly line is described therein as being ''by land of Irving and Beatrice Newman, Richard A. and Clara E. Shufro and by Lot 6 as shown on said plan, 123.8 feet, more or less". The exact location of this line dividing defendants' Lot 7 from plaintiffs' Lot 6 is the principal matter in issue.

2. Plaintiffs got title to "Lot 6 on Plan and Profile of Corey Road (formerly Oak View Road) Malden, Massachusetts, November 15, 1954, S. Slater - M.A. McNall Surveyors," by deed of Ray Everett Umlah et ux, dated January 9, 1959 and recorded in Book 9304, Page 40. (Exhibit 13) In this deed plaintiffs' southeasterly line is described as being ''by Lot 7 as shown on said plan 87.5 feet; (sic) more or less;" and their southwesterly line as being "by land of Richard A. and Clara E. Shufro as shown on said plan 116.32 feet." See Appendix A.

3. Defendants moved into the house on Lot 7 in approximately 1961 and have lived there continuously to the present. Plaintiffs have occupied a home built by them on Lot 6 from its construction in the early 1960's to the present.

4. Sometime in 1962 plaintiffs erected a stockade fence running south from the Southeast corner of Lot 6 marked as Pt. A on Appendix B [Note 3], a little over half way to Corey Road to Pt. B at which point the stockade fence angles at almost a right angle and runs west about 6 feet. Prior to this defendants had erected a stockade fence from Pt. C to Pt. D. Point D is located in a grassed in area beyond the parties' lot line before reaching the paving on Corey Road all as shown on the sketch plan, Appendix B.

5. At the same time in 1962 plaintiff did some landscaping, planting at least three trees that are now sizeable alongside the fence as well as some shrubs, again as shown on Appendix B.

6. The plaintiffs' shrubs have grown over the stockade fence erected by the defendant in the northerly portion of the lot from Corey Road and have interfered with the defendant in his use of this part of his yard. Defendant on July 18, 1977 complained about the encroachment and requested the plaintiff to trim or remove the shrubs. This marks the beginning of the controversy between the parties.

7. Plaintiffs caused a survey to be made by one John Bordon who was seen putting in a stake at the point marked "E" on Appendix B by the defendant Aaron Brown. The latter was informed that this stake marked the southeast corner of Lot 6 on the line with Lot 7. Some time later, defendant Brown saw John Bordon surveying once more and again putting in a stake at Point E. These presumably are the monuments found at Point E on Appendix B.

8. Still another survey was caused to be made by the plaintiffs, this time by Somerville Engineering, Inc. who determined that the "property corner" marking the southeast corner of Lot 6 was covered by a wooden fence post marked "A" on Appendix B.

9. Defendants entered a complaint with the Board of Registration of Engineers with respect to the work of the original surveyors, Slater and McNall, who drafted the subdivision plan used in the conveyance of both plaintiffs' and defendants' lots, Exhibit 14, from which Appendix A is taken, and to the work of Somerville Engineering, Inc., the drafters of plaintiffs' plan, Exhibit 20, from which Appendix B is taken. The Board of Registration after two hearings dismissed defendants' complaints.

10. Mr. Crucioli was hired by the defendants as their surveyor and he placed the point marking the southeasterly corner of Lot 6 and the property line of Lot 7 at Point E as shown on Appendix B. He in turn drafted a plan for defendants which was introduced into evidence as Exhibit 24.

11. On two occasions, first in November, 1978 and then in October, 1980, defendants erected a chicken wire fence running from Point E on Appendix B northerly to a point on plaintiffs' stockade fence that runs at almost right angles to the line at the "ell" as shown on Appendix B. This fence was attached to the westerly side of the trees planted by the plaintiffs. Also, defendants posted on the westerly side of plaintiffs' stockade fence a "No Trespassing" sign.

12. Plaintiffs' stockade fence has deteriorated. This deterioration was claimed by plaintiffs to be due to defendants piling dirt against it on defendants' side of the line. The Court finds that the fence deteriorated through age only.

The key question to be determined is the location of the boundary line between Lot 6 and Lot 7.

Both plaintiffs' and defendants' deeds to Lot 6 and 7 respectively make reference to the Slater-McNall subdivision plan, Exhibit 14, dated November 15, 1954. It is impossible to place other than the front bounds on Corey Road on the ground from the information contained on this subdivision plan, as no bearings or angles are given thereon. The principal bounds in question in this case are the southeast and the northeast corner bounds of Lot 6 as shown on Appendix B.

Two surveyors testified, one for the plaintiffs and one for the defendants, and they attacked the problem differently. The plaintiffs' surveyor tied in Lot 6 with bounds and lots on Hawthorne Street to the south and west of Lot 6. The defendants' surveyor tied it in with a bound on Woodland Road located to the south and east. This results in a discrepancy of 1.8 feet at the southeast bound of Lot 6 as shown on Appendix B, according to defendants' surveyor's testimony.

The plaintiffs' surveyor was able to set the front northeast bounds of Lot 6 on Corey Street from the street bearings found on Appendix A, Exhibit 14. This is shown as Point F on Appendix B. The defendants' engineer using the same information places this bound some .93 of a foot to the east of Point D on Appendix B at a point marked G thereon. In other words, defendants Browns' surveyor claims the Browns own .93 feet less on Corey Road than the plaintiffs' surveyor.

The Court has reviewed the complicated testimony of both surveyors carefully and has studied the various plans that both haveused extensively in their work. These are shown as Exhibits 16, 17, 18 and 19. In addition, each surveyor submitted a plan of his own, the plaintiffs' being Exhibit 20 and the defendants' a plan of Lot 7, being Exhibit 24. Which is correct may well depend upon where a start is made. The extent of the contention between the parties to the location of the northeast bound of Lot 6 at Corey Road is .93 of a foot (about 10 inches) and to the location of the southeast bound 1.8 feet (about 21.6 inches).

In reaching its decision, the Court gives weight to the opinion of plaintiffs' surveyor that the "priority" between a plus or minus boundary line on a plan as against a given certain distance is that the plus or minus line must yield thereto. In addition, the Court was impressed with the weight this surveyor gave to conveyances made to abutters prior to the drawing of Exhibit 14, Appendix A.

From Exhibit 18, being the decree plan in Land Court Case 21561, the plaintiffs' surveyor was able to ascertain the angulation he needed to locate the lots shown on the plan, Exhibit 17. In particular he located lot 8, shown as being of Irving and Beatrice Newman and lot 7, shown as being of Richard A. and Clara E. Shufro on the plan Exhibit 17, entitled "Plan of Building Lots in Malden, belonging to Charles W. Newcomb. A.F. Sargent Surveyor & C.E., April l4, 1924 Scale 50 ft.= 1 in." This plan was drawn in 1924 and the Newcomb and Shufro lots conveyed out shortly thereafter. The southerly line of plaintiffs' lot 6 borders Shufro's northerly line and measures 116.32 feet as shown on both Appendix A, Exhibit 14, and the Sargent Plan, Exhibit 17 above. The Shufro lot and the Newcomb lot in part border defendants' lot 7 on its southwesternmost side for 36.30 feet, again as shown on Appendix A, Exhibit 14, and also as shown on defendants' plan, Exhibit 24. These distances are not shown as plus or minus and were used in setting the southeasterly bound of the plaintiffs' Lot 6 at Point A on Appendix B. Plaintiffs' southeasterly line between Points A and F is shown on Appendix B as being 88.03 feet. This same line is shown on Appendix A, Exhibit 14, and on the deed in to plaintiffs, Exhibit 13, as being 87.5 feet more or less. If the distance on any line should vary, this, of course, is the one that should give way. The distances given on the lines to Lot 7 of Exhibit 14 and the older plans are held.

The defendants' surveyor places the southwesterly bound of the plaintiffs' Lot 6 at a point some 1.8 feet to the west of Point A at a point marked E on Appendix B. He likewise places the northeast bound of plaintiffs' Lot 6 at a point .93 feet east of Point F on Appendix B at a point marked G. The easterly line of the plaintiffs' Lot 6 is set by him to run from Point E to Point G. The result of this would be to place about 7/8ths of the defendants' stockade fence on plaintiffs' land and 7/8ths of the plaintiffs' stockade fence on the defendants' land.

Defendants' surveyor arrived at the conclusion shown on his plan, Exhibit 24, by measuring in to the area from the south and east, rather than as plaintiffs' surveyor from the south and west. He tied in to a stone bound found on the southeasterly line of Woodland Road as shown on Exhibit 18. From this stone bound he established his southerly and westerly line of defendants' Lot 7. This was done without showing any angulation at the crucial corner points. The southerly rear line of defendants' Lot 7 is shown on Appendix A, Exhibit 14, as being 188.0+/- in length. Defendants' surveyor puts it at 188.67 feet. He placed that segment of the southwesterly line of defendants' Lot 7 bordering land of Shufro and Newman as shown on Appendix A, Exhibit 14, at 36.30 feet. The crucial northerly segment of this southwesterly line of defendants' Lot 7 is shown as being 87.50 feet exactly, although on Appendix A, Exhibit 14, it is the one line of all involved in the delineation of plaintiffs' Lot 6 shown as plus or minus.

Thus, the Court has to choose between the opinion of the two surveyors as to the line in question. The Court is of the opinion that the plaintiffs' surveyor has tied in the line AF with the lots of abutters Shufro and Newman. These lots can be found on the ground. The Court thus finds that the southeasterly point of plaintiffs' Lot 6 is as set forth on Appendix B at Point A. The Court likewise is of the opinion that the northeasterly corner of plaintiffs' lot is as shown by the plaintiffs' surveyor at Point F on Appendix B, determined as it was by plaintiffs' surveyor from angulation found on the subdivision plan, Exhibit 14, and tied in as it is with the other plans used by him, particularly Exhibit 17.

The Court finds and rules that the southeasterly line of plaintiffs' Lot 6 is the line A-F as shown on Appendix B; and that both plaintiffs' stockade fence and defendants' stockade fence are located on their respective parcels. The Court finds and rules that the center of the fence post marking the southwest corner of plaintiffs' land at the point marked A on Appendix B is exactly on the line so that the fence post extends onto defendants' land by half its width. The plaintiffs are ordered to move this fence post the few inches necessary to insure that it is wholly on land of the plaintiffs within sixty days from final judgment. Defendants' fence post at Point C on Appendix B would appear to be .05 of an inch over the line - an amount almost impossible to measure and one that the Court finds of no consequence here.

The Court finds and rules that defendants' chicken wire fence was erected on plaintiffs' land on two occasions and was maintained there for some uncertain period on each occasion. The fence has now been removed. The plaintiffs have bushes that overgrow defendants' stockade fence and extend over defendants' land and the plaintiffs are ordered to trim these bushes within sixty days from final judgment and to keep them trimmed. No damages have been shown by either party as a result of this fence and the bushes, and the Court thus finds damages for neither.

The defendants' counterclaim is ordered dismissed.

The Court does not find, as requested by the plaintiffs in their brief, that "all or substantially all of the claims made by (the defendants herein)...were wholly insubstantial, frivolous and not advanced in good faith" under the provisions of General Laws, chapter 231, Section 61. The Court therefore does not award counsel fees, costs and expenses to the plaintiffs.

Plaintiffs filed twenty-two requests for "Findings of Fact". The Court grants numbers 1, 2, 3, 4, 5, 6, 9, 11, 12, 14, 17, 18, 19, and 20 and denies numbers 7, 8, 10, 13, 15, 16, 21 and 22.

Plaintiffs filed fifteen requests for "Rulings of Law". The Court grants numbers 1, 2, 3, 4, 5, 6, 11, 12, and 15 and denies numbers 7, 8, 9, 10, 13, and 14.

Defendants filed eight requests for findings of fact and the Court grants numbers 1 (except that the deed is dated April 17, 1957 rather than April 25, 1957 as set forth by the defendants); 3, 4, and 7 and denies numbers 2, 5, 6 and 8. Defendants filed a three page "Ruling of Law" which the Court denies.

Judgment accordingly.

exhibit 1

exhibit 2