CHARLOTTE L. SARJEANT vs. DAVID P. MERKEL, JEAN ANN MERKEL, WALTER S. PIENKOS and MARGARET A. PIENKOS.

By complaint filed with this Court on December 17, 1985, Charlotte L. Sarjeant ("Sarjeant" or "Plaintiff") seeks to register title to a certain parcel of land ("Locus"), pursuant to G.L. c. 185, §1. Locus is located on Peach Orchard Road in Burlington and is shown on a plan entitled "Plan of Land in Burlington, Mass." dated September 26, 1985, filed with the Court as Land Court Plan No. 41863-A ("Land Court Plan" or "Plan").

The matter was referred to a Land Court Title Examiner who reported, on June 3, 1986, that the Plaintiff holds "a good title as alleged, and proper for registration" (See Exhibit No. 27). Thereafter, on September 18 and 22 of 1986, respectively, the Defendants Pienkos and Merkel (at times referred to collectively as "Defendants") filed objections to the Plaintiff's complaint.

The Defendants Pienkos filed a motion for summary judgment which was denied by order of this Court on August 7, 1987. The matter proceeded to trial on August 17 and October 26 of 1988, at which times the proceedings were electronically tape-recorded and thereafter transcribed. Ten witnesses offered testimony and forty-eight exhibits were admitted into evidence. All exhibits are incorporated herein by reference for purposes of any appeal. The Court viewed Locus in the presence of counsel immediately following the last day of trial.

On all of the evidence, I find as follows:

1. As shown on Land Court Plan No. 41863-A, Locus is comprised of two contiguous parcels, totalling approximately 42,600 square feet in area. The first parcel, identified thereupon as Lot No. 1, is unimproved land consisting of approximately 21,432 square feet and containing about 110.81 feet of frontage on Peach Orchard Road. The second parcel, on which the Plaintiff presently resides, is improved with a house and garage. It appears on the Land Court Plan as Lot No. 2 containing approximately 21,170 square feet and about 110.59 feet of frontage on Peach Orchard Road.

2. By deed from John H. Mooney, Augustus N. Berthiaume and R. Esther Berthiaume, dated July 18, 1951, recorded at Book 7772, Page 358 in the Middlesex South District Registry of Deeds [Note 1] (Exhibit No. 11), Thomas Sarjeant and Charlotte Sarjeant, as husband and wife, [Note 2] acquired title to two parcels of land on Peach Orchard Road in Burlington. As described therein, the first parcel is identifiable as follows:

The land with the buildings thereon, in said Burlington on Peach Orchard Road, bounded and described as follows:

SOUTHEASTERLY by Peach Orchard Road, ninety-five (95) feet;

SOUTHWESTERLY by the second parcel herein described, two hundred and thirty-three (233) feet;

NORTHWESTERLY by other land of the grantors, seventy (70) feet;

NORTHEASTERLY by land now or formerly of Douglas P. Forbes, two hundred and thirty-three (233) feet;

Containing 20,000 square feet of land.

The second parcel is described in the deed as follows:

The land in said Burlington on Peach Orchard Road bounded and described as follows:

SOUTHEASTERLY by Peach Orchard Road, ninety-five (95) feet;

SOUTHWESTERLY by other land of the grantors, two hundred and thirty-three (233) feet;

NORTHWESTERLY by other land of the grantors, seventy (70) feet;

NORTHEASTERLY by the first parcel above-described, two hundred and thirty-three (233) feet;

Containing 20,000 square feet of land.

The first parcel is shown as Lot No. 10 on a plan entitled "Plot Plan of Land in Burlington, Mass." dated July 7, 1951, recorded with the aforesaid deed at Book 7772, Page 358. The second parcel is shown as Lot No. 11 on a plan entitled "Plot Plan of Land in Burlington, Mass." dated July 7, 1951, also recorded with the aforesaid deed at Book 7772, Page 358.

3. On December 9, 1955, the Defendants Pienkos acquired title to property located on the westerly side of Locus. This conveyance is evidenced by a deed from Paul E. Blake and Mary Eileen Blake, recorded at Book 8630, Page 1 (Exhibit No. 17). As described therein, said property is bounded and described as follows:

SOUTHEASTERLY by Peach Orchard Road, one hundred (100) feet;

SOUTHWESTERLY and WESTERLY by land now or formerly of Mooney . . . four hundred and two (402) feet; and

NORTHEASTERLY by land now or formerly of Mooney . . . and now or formerly of Sarjeant, three hundred and eighty-eight (388) feet.

Containing approximately 27,000 square feet of land. . .

The Pienkoses herein challenge the westerly boundary of Locus and accordingly, the amount of frontage asserted by the Plaintiff for registration as well.

4. The Defendants Merkel acquired title to property situated northwesterly of Locus by deed from John H. Dalness and Carlyn M. Dalness, dated June 8, 1981, recorded at Book 14312, Page 46 (Exhibit No. 48). The Merkels herein assert that they have acquired title to the northwesterly portion of Locus under the doctrine of adverse possession. Said claim is premised primarily on the existence of a wooden post fence, along what the Merkels contend is the northwesterly boundary of Locus, for a period in excess of twenty years. Land Court Plan No. 41863A, however, fails to depict any such structure along the northwesterly boundary of Locus. Further, testimony introduced at trial runs contrary to the Merkels' position insofar as it reveals that said wooden post fence is located northerly of Locus and hence beyond the area proposed for registration.

5. In 1952, the Sarjeants constructed a dwelling and garage on Lot No. 2 of Locus and moved into such residence upon the completion of construction. The area surrounding the Sarjeant residence was graded and landscaped around this time as well.

6. In November of 1955, the Pienkoses constructed a house on the lot abutting the westerly side of Locus. A lawn was planted and the area landscaped in 1956. Between 1956 and 1957, the Pienkoses planted several weigela bushes along a portion of what they believed to be their easterly property line. This boundary line was then designated by wooden stakes and an iron pipe, said pipe lying in the northerly line of Peach Orchard Road. The Pienkoses mowed the lawn and landscaped and maintained this area to the west of said easterly boundary line from this time to at least 1979 (See Finding No. 8). The rear portion of the Pienkoses' property along said property line, however, has not been so maintained.

The aforesaid iron pipe and at least one weigela bush were visible on the ground at the time of the view. Although neither this particular iron pipe nor the remaining weigela bush are depicted on the Land Court Plan, the view of Locus revealed that said pipe and bush are located to the right of a maple tree which the Pienkoses planted in line with a pre-existing oak tree.

7. In the early 1960's, the Sarjeants purchased fill for purposes of filling in and leveling off Lot No. 1. Thereafter, in about 1966, the Sarjeants graded the area fronting along a portion of Lot No. 1 and planted grass there. From approximately 1966 to 1983 or 1984, the Sarjeants have treated this area as an extension of their lawn on Lot No. 2 by mowing and maintaining such area up to the aforesaid iron pipe.

8. Following the death of Thomas Sarjeant in October of 1978, the Plaintiff began looking into the possibility of selling Lot No. 1. The Plaintiff had a survey of her property performed in 1979, the results of which are depicted on a subdivision plan entitled "Plan of Land in Burlington, Mass.", dated July 17, 1979, recorded at the end of Book 13797 (Exhibit No. 41) ("1979 Subdivision Plan"). In conjunction with this survey, wooden stakes were placed along the westerly boundary of Lot No. 1, approximately eight (8) to ten (10) feet easterly of the Pienkoses' driveway, thereby interrupting any subsequent adverse use of this ten (10) foot strip of land by the Pienkoses.

9. In 1983 or 1984., a purchase and sales agreement relevant to Lot No. 1 was executed between the Plaintiff and one Mr. Travis. Pursuant to said agreement, Mr. Travis excavated Lot No. 1 for purposes of installing a foundation. This excavation work resulted in the destruction of most of the grass which the Sarjeants had planted along the front portion of Lot No. 1.

In consideration of the foregoing, I find that, with the exception of matters which may be contained in the abstract and which are not material hereto, and subject to the limitations and exceptions set forth below, the Plaintiff holds registerable title to Locus. Inasmuch as I have found that neither Land Court Plan No. 41863-A nor testimony offered at trial is sufficient to support the claim of the Defendants Merkel, see Shaw v. Solari, 8 Mass. App. Ct. 151 , 157 (1979), their objection is hereby dismissed.

The Defendants Pienkos challenge the proposed registration of the westerly boundary of Locus. Specifically, they contend that based on an interpretation and construction of pertinent deeds and plans, as well as on the theory of adverse possession, said boundary should be located some thirty (30) to forty (40) feet easterly of its proposed location. For the Pienkoses to prevail on their adverse possession claim, they must prove that for twenty years, without interruption, they and/or their predecessors in title have used the disputed area in a manner which was actual, open, notorious, exclusive and adverse. Boston Seaman's Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1979); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961). A failure on the part of the Pienkoses to prove any one of these requisite elements of adverse possession will preclude a finding on their behalf. Gadreault v. Hillman, 317 Mass. 657 , 661 (1945). The purpose behind these various requirements is to put the true owner on notice of the hostile activity of the possession, so that he may be afforded an opportunity to take steps towards vindicating his rights by legal action. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Dow v. Dow, 243 Mass. 587 , 593 (1923). On all of the evidence, I find and rule that the Plaintiff holds record title to Locus, but from at least 1956 to 1979, the Pienkoses actually, openly, continuously, exclusively and notoriously used and maintained that parcel of land lying at the southwesterly corner of Locus, bounded and described as follows:

Beginning at the iron pipe as observed in the northerly line of Peach Orchard Road, thence running N 32°26'26"W one hundred and fifty (150) feet to a point, thence westerly through the stake and nail, as shown on Land Court Plan No. 41863-A, being just easterly of the westerly side line of Locus as shown on said Plan, to said side line, thence southeasterly by said side line to Peach Orchard Road, thence easterly along Peach Orchard Road to the point of beginning.

Accordingly, the Plaintiff's petition must be and hereby is dismissed as to such parcel. The Plaintiff is hereby given ninety (90) days from the date of the entry of a final judgment herein, after all appeals have been resolved to file an amended Land Court Plan consistent herewith.

The parties have submitted requests for findings of fact and rulings of law, all of which I have considered. Certain of these findings and rulings are incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings and rulings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.