MISC 127701

June 22, 1989

Barnstable, ss.



A dispute has arisen between the plaintiffs, Frank C. Bess and Carol M. Bess, and the defendants, Ross Allan Vander Pyl and Jeanie May Vander Pyl, as to the westerly lot line of the plaintiffs' property where it abuts the back or easterly lot line of land of the defendants. The plaintiffs' home is now known as and numbered 1 Canary Street in Sandwich, in the County of Barnstable, and that of the defendants is now known as and numbered 12 State Street in said Sandwich. The uncertainty as to the location of the particular boundary line which affects other properties in the neighborhood apparently has existed for over thirty years, but so far as appears, no litigation previously has resulted from the dispute. The matter culminated in this action, however, when the plaintiffs sought to have a fence erected on the line located by their surveyor which was roughly four feet more westerly than the existing fence. Being unable to resolve the dispute amicably, the plaintiffs brought this action pursuant to the provisions of G.L. c. 237, s. 1 to obtain possession of the premises in dispute and the rents and profits thereof. The defendants answered denying that the line as described by the plaintiffs was correct and seeking by counterclaim to have this Court determine that they held title to the disputed area and that the plaintiffs have no claim thereto.

A trial was held at the Land Court on February 6 and February 28, 1989 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial plaintiff Frank C. Bess, his surveyor, John R. Ellis of the firm of Ellis & Thulin, Inc., Richard P. Sullivan, whose family rented the premises now owned by the defendants many years ago, Edward E. Kelly, the defendants' surveyor, Robert H. Ellis, a neighbor, and the defendant, Ross Vander Pyl, all testified. Thirty-five exhibits, of which several consisted of multiple title instruments or photographs, were introduced into evidence. Two chalks were also presented to the Court to assist in the determination of the location of the disputed boundary line.

On all the evidence I find and rule as follows:

1. The plaintiffs obtained title to the principal portion of their property by deed from Walter P. Maloney, et ux, by deed dated May 13, 1960 and recorded with Barnstable Deeds (to which all title references herein refer) in Book 1077, Page 126 (Exhibit No. 1). This deed bounds southerly by Canary Street 153 feet. The deed refers to the premises as being shown on a plan entitled "Plan of Land in Sandwich on Canary Street, Scale 1" = 20', August 10, 1956, E. L. Dwyer, Sandwich, Mass." Said plan is one of those on whose accuracy the dispute centers and is Exhibit No. 10.

2. Mr. and Mrs. Bess thereafter acquired an additional parcel adjoining their previous acquisition on the north by deed from Elizabeth McArdle dated September 30, 1964 and duly recorded in Book 1275, Page 213 (Exhibit No. 2). This deed bounds westerly by land of Mary T. Dingley 37.84 feet (said Dingley being a predecessor in title of the defendants); and the deed referred to in paragraph 1 hereof bounds westerly as shown on the Dwyer plan 67 feet.

3. The defendants acquired title to their land at 12 State Street in said Sandwich from David H. Calhoun by deed dated April 22, 1971 and duly recorded in Book 1508, Page 165 (Exhibit No. 23E). This deed runs easterly 132 feet to what is now land of the plaintiffs, turns and proceeds north 9° 41' 47 1/2" and then turns and runs westerly for 148 feet to State Street. It seems apparent that the distance of 132 feet is an error since the angle of neither the street line nor that constituting the common boundaries with the plaintiffs has a bearing sufficient to account for the 16 foot divergence.

4. The immediate problem stems from the disagreement between the surveyors engaged by the plaintiffs and defendants. They in turn base their work on earlier plans prepared in the case of the plaintiffs by E. L. Dwyer in 1956 and in the case of the defendants by Newell B. Snow in 1960 on which Snow shows the bounds set by Dwyer in a position more westerly than the line as placed by Snow. In 1987, Mr. Ellis prepared a plan for a third party whose land lies northwesterly of the area currently in dispute, and it appears that the placement of the boundary line at that time adopted in the plan he prepared for the plaintiffs has caused the present controversy. Work done by Dwyer and Snow was preceded by a survey by Allan S. Beale who prepared a plan entitled "Plan of Land in Sandwich as Claimed by the Estate of George T. McLaughlin" originally dated March 1932 and revised five times thereafter, most recently in October 1948, and recorded in Plan Book 205, Page 9. On the Beale plan, the line in dispute is shown as "Bounded By The Fence" (Exhibit No. 8). Mr. Kelley has prepared a composite plan dated January 16, 1989 which shows the variations between the three lines (Exhibit No. 19) and there also is a composite plan entitled "Frank Bess, et ux" prepared by Mr. Ellis on which he shows his line, that of Beale and that of Kelley, the divergences each from the other, and the fence which generally follows the Kelley line, but in places lies more easterly.

5. The error which has led to the present difficulty in fixing boundaries may stem to the Beale plan. Both it and the Dwyer plan show the back line of the State Street lots with the bearing of S 2° 45' E and the easterly line of a conveyance by Maloney to McLaughlin with an easterly line of about the same bearing, whereas it is apparent to the naked eye that lines in question are not parallel, but will meet when extended a sufficient distance in a northerly direction.

6. The earliest of the plans shows a fence. The fence may well have fallen into disrepair, for Bess reconstructed the fence in 1964 not intentionally along the boundary line, but as a safety measure to keep his children in the yard. Thereafter, the Vander Pyls planted a privet hedge on the westerly side of the fence. The area also was plagued by a growth of bamboo-like stalks which had overrun the back portion of the Vander Pyl property in view of the wetness of the area.

7. There was testimony from two disinterested persons that there was a fence between the rear line of the houses fronting on State Street and the property now owned by the plaintiffs on Canary Street as early as the 1930's and continuing at least into the 1950's. Prior to World War II, cattle grazed on what is now the land of the plaintiffs, but during the war the land became overgrown. The fences were put up by the property owners on Canary Street to protect their land from the cattle, not by the owners of the land on which the cattle grazed.

8. Over the years the fence needed to be shored up, and Mr. Bess, with the permission of Mr. Vander Pyl, entered upon the Vander Pyl land to add split posts to make the fence more secure. So far as appears, there has been no controversy between the plaintiffs and the defendants as to the actual location of the boundary line upon the ground until the plaintiffs' ill-fated attempt to have a fence erected. Apparently, however, as is shown by the controversy regarding the appropriate location of the property lines of the northwesterly abutter to the defendants' property there have been uncertainties over the years.

The proper reconciliation of the lines of the various properties in the Canary Street/State Street neighborhood is not without difficulty. It appears that a mistake in some of the earlier computations may be partly responsible for the error; it is also apparent that the Dwyer plan does not close. Some of the difficulties may stem from the location of Canary Street on the ground; perhaps resulted from the direction the surveyors traversed on Canary Street. What is clear, however, is that the parties have long adopted as their boundary line that which is shown on the Kelley plan and which most nearly approximates the line of occupation. It is possible to argue, of course, that the setting of the Dwyer stakes which indeed appear as well on the Snow plan, might be said to constitute a claim that the true location of the line is marked by such stakes. However, it is more probable and I so find and rule that the parties have adopted as the location of their boundary the line which now is found upon the ground, is largely marked by fences, and is shown on Exhibit No. 19. This line most nearly approximates the occupation of the premises by the parties and accordingly I find and rule that it is the true boundary line between the lands of Bess to the east and Vander Pyl to the west.

Judgment accordingly.