On June 25, 1984 Irene Saxonis brought this petition pursuant to the provisions of G.L. c. 185, §1 to register and confirm title to a certain parcel of land in Salem, Essex County, Massachusetts. Said parcel ("locus") is shown on a plan entitled "Plan of Land in Salem, Massachusetts, dated March 16, 1981, filed with the Court as Land Court Plan No. 41568A ("plan"). On December 23, 1985, the respondents James and Joan E. Perakis filed an objection to the petition in which they claimed ownership to a 643± square foot section of the locus being a portion of the property shown on a plan entitled "Land of James and Joan E. Perakis, 25 Butler Street, Salem, Mass. dated August 1967" (Exhibit 7) ("Perakis plan"). Also on December 23, 1985, the respondents John J. and Patricia A. Butler filed an objection to the petition for registration in which they claimed ownership to a portion of the locus as described in a deed from Frances G. McGrath dated October 17, 1961, recorded in the Essex South Registry of Deeds at Book 4831, Page 222. [Note 1]
A trial was held on December 1, 1987 and a stenographer was sworn to record and transcribe the testimony. Seven witnesses testified and eleven exhibits were admitted into evidence, all of which are incorporated herein for purpose of any appeal. Both the petitioner and the respondents Perakis filed post-trial memoranda.
On all the evidence, I find as follows:
1. The petitioner acquired record title to locus in 1956 upon the death of her husband. The petitioner's husband's family had held record title since 1929.
2. Land Court Examiner Myron Cohen, Esq. filed a Certificate of Opinion in his Abstract (Exhibit 2) concluding "that the petitioner has "a good title as alleged and proper for registration."
3. The respondents Perakis acquired record title to their property at 25 Butler Street, Salem by deed dated May 24, 1962, recorded in Book 4921, Page 315.
4. The "disputed area" claimed by the respondents Perakis is approximately 643 square feet and is that area shown as being on the easterly side of a six foot high stockade fence on Land Court Plan No. 41568A.
5. On June 25, 1984, the petitioner filed a petition in this Court to register title including the disputed area.
6. Since moving into the 25 Butler Street property in 1962, James and Joan E. Perakis and their six children have used the disputed area as part of their backyard. During this period, they have maintained the area, removed trees, erected a retaining wall and maintained a garden and the fence on this parcel. They have also used the disputed area for entertaining company.
7. Prior to 1969, a shed extended through the fence straddling the line dividing the petitioner's property and the disputed property. There is no evidence as to who constructed the shed, what it was originally used for or when it was constructed. In 1969, the respondents Perakis, after notifying the petitioner, removed the portion of the shed on the disputed area.
8. Beginning with an 1847 deed and allowing for an 1852 widening of Butler Street, the description of the Perakis' property is consistent with the lot shown on the Perakis plan. The discrepancy alleged by the petitioner arises from reliance on an 1892 plan which is not in the Perakis chain of title.
9. The respondent John J. Butler appeared pro se, testified and cross-examined the petitioner. He offered no evidence disputing the boundary between his property and that of the petitioner.
In consideration of the foregoing, I find and rule that the petitioner does not have title proper for registration in the disputed area and accordingly that a decree be entered registering and confirming the title of the petitioner to the locus as shown on Land Court Plan No. 41568A excluding therefrom the area shown on said plan as bounded easterly by land of James and Joan E. Perakis, sixty-nine and 44/100 feet; southerly by land of John J. and Patricia A. Butler, nine and 27/100 feet; westerly by land of the petitioner along a line lying westerly of the westerly face of the stockade fence; and northerly by land of Albert J., Jr. and Barbara Ann Robinson, nine and 45/100 feet and containing approximately six hundred and forty-three square feet. As to said disputed area, the petition is dismissed. The petitioner is to file an amended plan to determine and sever said parcel. Such plan is also to show the remains of the "half shed" on the petitioner's property if applicable.
Such decree to be subject to such other matters as may appear in the title abstract and are not here in issue.
[Note 1] All instruments referenced herein are recorded at this registry.