NORMAND P. MAYNARD and PATRICIA A. MAYNARD vs. LLOYD C. WEARE.

By petition dated July 16, 1986, Normand P. and Patricia A. Maynard ("Plaintiffs") seek to register and confirm title to a certain parcel of land owned by them, located at 45 Cottage Street in the Elmwood section of East Bridgewater, Massachusetts ("Locus"). As shown on Land Court Plan No. 41964A, dated July 12, 1985 ("Land Court Plan"), Locus contains 17,313 square feet of land with 80 feet of frontage on Cottage Street.

The matter was referred to a Land Court Title Examiner ("Title Examiner") on July 21, 1986. Thereafter, on April 5, 1988, the Title Examiner filed an abstract of title to Locus, wherein he reported that the Plaintiffs hold "a good title as alleged, and proper for registration."

On May 25, 1988, Lloyd C. Weare, Jr. ("Defendant"), the owner of property adjacent to and surrounding Locus, filed an answer to the Plaintiffs' petition. By said answer, the Defendant contends that the actual side and rear boundary lines of Locus are shown on a plan entitled "Plan of Land in East Bridgewater", dated June 7, 1948 ("1948 Plan") (Exhibit No. 4), rather than those depicted on the Land Court Plan.

A trial was held in the Land Court on April 5, 1989, at which time the proceedings were recorded and later transcribed by a court-appointed reporter. Three witnesses offered testimony and five exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for purposes of any appeal. Neither the Plaintiffs nor the Defendant submitted post-trial memoranda on any issue presented herein.

On all of the evidence before the Court, I make the following findings of fact:

1. As set forth in the Title Examiner's abstract of title, Locus was first conveyed from one Prescott Henry Pratt to one Ruth E. Pratt, by three deeds (Exhibit No. 1, Sheet Nos. 8, 9 and 10). The first deed evidencing this conveyance is dated April 30, 1915 recorded at Book 1213, Page 352 in the Plymouth County Registry of Deeds. [Note 1] The remaining deeds of this conveyance are both dated December 15, 1915, one such deed being recorded at Book 1234, Page 285 and the other at Book 1236, Page 137. As described therein, Locus is bounded and described as follows:

Beginning in the southeasterly line of said Cottage Street at a stone bound; thence in a line at right angles with the southeasterly line of Cottage Street, in a southeasterly direction, by land of the heirs of Henry Gurney, (199) feet; thence southwesterly, in a line parallel with the southeasterly line of said Cottage Street, by land of said heirs, (87) feet; thence northwesterly, in a line parallel to that first above described, by land of said heirs, (199) feet to a stone bound in the southeasterly line of said Cottage Street; and thence in the easterly line of said Cottage Street in a northeasterly direction, [87] feet to the bound first named.

2. By deed dated July 17, 1918, recorded at Book 1307, Page 384 (Exhibit No. 1, Sheet No. 11), Ruth E. (Pratt) MacPherson conveyed an undivided one-half interest in Locus to one Fannie M. Shaw. Thereafter, on April 10, 1926, Locus was conveyed to Fannie M. and Allan B. Shaw, husband and wife, (Exhibit NO. 1, Sheet No. 13). The deed of such conveyance contains a description of Locus which is consistent with the property proposed for registration and confirmation on the Land Court Plan.

3. Upon the death of Fannie M. Shaw on January 11, 1931 (See Exhibit No. 1, Sheet No. 14), title to Locus passed to Allan B. Shaw as surviving joint tenant. Title remained in Allan B. Shaw until his death on August 4, 1932 (See Exhibit No. 1, Sheet Nos. 15 and 16), at which time Locus was devised to one M. Clifton Edson ("Edson"), as Executor and Trustee, with "full power and authority to sell, transfer and convey any property of my estate at private or public sale."

4. In accordance with the aforesaid terms of the will of Allan B. Shaw, Edson conveyed Locus to Louise P. Weare, wife of the Defendant, and one Christine M. Cote and one Virginia A. Patch. This conveyance is evidenced by a deed dated October 14, 1947, recorded at Book 1981, Page 317 (Exhibit No. 1, Sheet No. 17).

5. In 1948, a plan was placed on record at Book 7, Page 704 (Exhibit No. 1, Sheet No. 4A and Exhibit no. 4). Said Plan depicts Locus and the surrounding land presently owned by the Defendant. It is not, however, referred to or incorporated in any of the deeds in the Plaintiffs' chain of title.

6. By deed dated October 14, 1947, recorded at Book 1981, Page 318 (Exhibit No. 1, Sheet No. 18), Locus was conveyed to Robert M. Holbrook, III and Grace E. Holbrook ("Holbrooks"). Thereafter, on August 7, 1956, the Holbrooks conveyed Locus to one Thelma R. Price (Exhibit No. 1, Sheet No. 19), who subsequently conveyed the property to the Plaintiffs on February 5, 1958. This latter conveyance is evidenced by a deed recorded at Book 2616, Page 193 (Exhibit No. 1, Sheet no. 24).

7. All of the descriptions of Locus set forth in the aforementioned deeds follow the original 1915 description.

8. In response to an ongoing dispte between the Plaintiffs and the Defendant as to the location of the boundary line between their respective properties, the Plaintiffs had a survey of their land performed in May of 1970. In conjunction therewith, a plan was prepared for purposes of demonstrating the aforesaid boundary dispute to the Plaintiffs. This unrecorded plan is entitled "Plan of Land, East Bridgewater" (Exhibit No. 3) and is dated August 5, 1970. The property lines, as asserted by the Defendant, are delineated on said plan by dashed lines, while those proposed for registration and confirmation by the Plaintiffs are depicted thereupon in solid lines. Specifically, the area disputed by the Defendant is shown on this plan as two triangular strips of land, one located on the easterly side of Locus and the other on the westerly side, both measuring 199 feet, more or less, in length, and approximately 8 feet at their greatest width.

The Defendant's objection to the Plaintiffs' petition for registration and confirmation of title to Locus is premised solely on the presence of the 1948 Plan in the Registry. Neither this Plan nor the survey which it reflects, however, are referred to or incorporated in any way in the deeds comprising the Plaintiffs' chain of title, which deeds date back as early as 1915 and which all bear the same description of Locus. Accordingly, I find that said 1948 survey and Plan are insufficient, in and of themselves, to supercede and vary the description set forth in these deeds. 12 Am. Jur. 2d Boundaries § 55 et. seq. (1964); 11 C.J.S. Boundaries § 49 (1938). Additionally, as I do not find any ambiguity whatsover in said description of Locus, I decline to consider the 1948 Plan as extrinsic evidence on this issue. See Ellis v. Wingate, 338 Mass. 481 (1959).

In addition to the foregoing, I note that the record before the Court also lacks sufficient evidence to merit a finding that the Defendant holds title to the disputed area by adverse possession. See Boston Seaman's Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 (1985); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961).

On all of the evidence, I thus rule in summary that the Plaintiffs are entitled to a decree registering and confirming title to all of the land petitioned for, as shown on Land Court Plan No. 41964A, subect to such other matters as may appear in the abstract and which are not material hereto.

Judgment accordingly.