MISC 128846

December 27, 1990

Barnstable, ss.



This matter began as an appeal under G.L. c. 41, ยง 81BB of the approval of a subdivision by the Planning Board of the Town of Barnstable. The gist of Plaintiff's complaint was that he was the owner of a certain portion of land in the approved subdivision. The proposed subdivision is of a parcel of land located in Barnstable as shown on a subdivision plan (Exhibit No. 55) as Swan Hill. The defendant Christopher P. Kuhn ("Kuhn"), applicant for subdivision, filed a counterclaim seeking to quiet title and for slander of title alleging that the plaintiff John D. Crocker ("Crocker") had no ownership interest in any portion of the subdivision parcel. Subsequently, the Town of Barnstable purchased the subdivision parcel from Kuhn for conservation purposes and accordingly the counterclaim was amended to include the Town of Barnstable as a party to the proceeding. By stipulation dated September 22, 1989, the subdivision appeal was dismissed. The portion of the counterclaim alleging slander of title was also dismissed.

Crocker has filed with the Land Court a petition to register title to 5.42 acres of real property that he alleges to own on Plum Street, a portion of which falls within the boundaries of the former proposed subdivision (Land Court Registration No. 42572). While that registration case is not the subject of this decision, a copy of this decision will be filed with that case.

A trial was held on the Town's claim to quiet title on August 22 and 23, 1990, at which times the proceedings were recorded by a court-appointed reporter. Five (5) witnesses testified, sixty (60) exhibits were introduced into evidence, and a chalk was furnished to assist the Court. All of the exhibits and the chalk are incorporated herein by reference for the purpose of an appeal. The Plaintiff submitted a post-trial brief as did Defendant Kuhn, whose brief was submitted jointly with the Town.

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

1. The property in question ("Locus") is a portion of the Orchard lot ("Orchard lot") of the once proposed subdivision consisting of 5.42 acres of land located on Plum Street in West Barnstable, Massachusetts. While no engineered plan of the Locus was offered into evidence, it is shown on Barnstable Assessors Map 195 ("Chalk 'A'") as the eastern portion of Parcel 33; a copy of this chalk is attached hereto for clarity.


2. By deed dated September 22, 1986, recorded at Book 5321, Page 118 in the Barnstable Registry of Deeds [Note 1] (Exhibit No. 27), Paul C. Merritt, successor in interest to Prince Nye, conveyed a parcel of land to Kuhn.

3. In 1815, Daniel C. Bacon had conveyed to Prince Nye by deed recorded at Book 2, Page 276 (Exhibit No. 16) a one-quarter interest in:

. . . a lot of woodland called the Orchard lot bounded Southerly by Deacon Crocker and Winslow Crocker's heirs, Westerly by Joseph Blish and Northerly by Andrew Garrett, Easterly by Joseph Blish (later acquired by George Blish). . . .

4. Similarly, a deed from Roland T. Crocker and David Crocker to Prince Nye dated April 29, 1815 and recorded at Book 3, Page 53 (Exhibit 17) had conveyed the other three-quarters of the Orchard Lot.

5. The northerly abutting parcel to the Orchard lot is described in a deed dated December 21, 1819, recorded at Book 4, Page 145 in (Exhibit No. 58), by which Joseph Blish conveyed to Andrew Garrett a parcel of land bounded as follows:

. . . Easterly by the road that leads from the highway, near Isaiah Parker's dwelling house into the woods (now Plum Street), Southerly by the road leading from the aforesaid road towards the Spruce Swamp (now Spruce Pond Road) and Westerly and Northerly by the land of me the said Joseph Blish. . . .


6. Plaintiff's claim is based on a quitclaim deed dated April 22, 1969, recorded at Book 1434, Page 69 (Exhibit No. 40), by which Salme V. Atwood, successor in interest to Francis Jenkins, conveyed a parcel of land to Crocker.

7. This chain begins with a deed from George Blish to Francis Jenkins ("George Blish parcel") dated December 14, 1861 and recorded at Book 78, Page 341 (Exhibit No. 38), wherein the parcel is described as follows:

. . . (bounded) Southward by woodland belonging to Isaac Ewer's heirs, and Westward by Nathan Jenkins' woodland until it comes to a heap of stones adjoining Gorham's fence, then Northerly by said Gorham's Field fence. . .

8. Gorham's field is located northeasterly of the disputed parcel and northerly of the George Blish parcel. It is bounded westerly by Plum Street and southerly by Spruce Pond Road. It is described in a deed dated February 20, 1838, recorded at Book 29, Page 65 (Exhibit No. 57), from George Blish to Samuel Howes as bounded:

. . . Northeasterly by Stewart's Ponds (so called) and on all other sides by roads and by unenclosed lands as the fence now stands and . . . .

9. The Ewer lot, the southerly boundary of the George Blish parcel is described in a set-off dated January, 1861, recorded at Book 77, Page 174 (Exhibit No. 56), by which Isaac Ewer conveyed to Polly Jenkins his land on Garrett's Road (now Plum Street). That parcel of land was bounded "northerly by Nathan Jenkins and the heirs of Joseph Blish, southerly by Barnstable and Falmouth Roads . . . " and contains approximately five acres.

10. The George Blish parcel was conveyed by Francis Jenkins to Lucy Eldridge by deed dated December 16, 1879 (Exhibit No. 52) and recorded at Book 140, Page 141. The language in that deed is identical to the language in the conveyance of the George Blish parcel in finding #7.

11. Lucy Eldridge granted a portion of the "Old Francis Jenkins Woodlot" to The Cape & Vineyard Electric Company (now ComElectric), describing the conveyance as being partially bound by Garrett's Lane (now Plum Street)" by deed (Exhibit No .47) dated July 15, 1927, recorded at Book 448, Page 198. There is presently a transformer or substation on the disputed property.

12. While a Cape & Vineyard Electric plan dated July 1927 (Exhibit 3) and recorded at Plan Book 21, Page 9 shows a substation located to the west of Garrett's Lane as does a subsequent plan (Exhibit 4) dated November 30, 1938 and recorded at Plan Book 60, Page 55, it does not appear that Mrs. Eldridge ever had title to this location. Moreover, no evidence was presented to substantiate the utility company's title.

The question before the court is the actual location of Locus which is poorly monumented except for prior descriptions. A deed description of abutting land of another has been construed as a reference to a monument. Dabiau v. Detourney; 325 Mass. 1 , 2 (1949); Flagg v. Thurston, 30 Mass. (13 Pick.) 145, 150 (1833); Cornell v. Jackson, 50 Mass (9 Metc.) 150, 154 (1845). See also, TITLE STANDARD NO. 27 of the Rules of Construction adopted by the Massachusetts Conveyancer's Association. From the evidence presented, the easterly boundary of the Orchard Lot can be located from the described locations of neighboring parcels. [Note 2]

Andrew Garrett's lot, the northerly abutter to the Orchard Lot, is described in the Blish-Garrett deed as being bounded by what are now Plum Street and Spruce Pond Road, thereby locating the northeastern point of the Orchard Lot on Plum Street.

Further, the George Blish parcel which is the easterly abutter to the Orchard Lot can be located by reference to its northerly and southerly abutters. The northerly abutter to the George Blish parcel is Gorham's Field which is bound by Plum Street to the west and Spruce Pond Road to the south. Gorham's Field, when used as a monument, places the northwest corner of the George Blish parcel to the east of Plum Street and pulls the northeast corner of the Orchard Lot at least as far east as Plum Street. As shown Chalk "A", Plum Street crosses the George Blish parcel.

In determining the Town to be the owner of the Orchard lot, I also considered the following. The southerly abutter to the George Blish parcel is the Ewer parcel. It appears that the Ewer parcel, although it was west of Plum Street and thereby places the abutting portion of the George Blish parcel at this point to the west of that street, did not extend westerly so as to be a southerly boundary of Locus, but extended only to the line between the George Blish parcel and Locus. Accordingly, the George Blish parcel, from which Crocker claims title, extends to but not into Locus. Also there was credible testimony that the line which became the southerly boundary to Orchard Lot is well monumented as the footline of proprietor's woodlots in the 1700's, and that the woodlots were divided southerly off of it into such proprietor's lots. There is no credible evidence that the Ewer parcel extended westward into the proprietor's lots which abutted southerly from Locus. Moreover, the Ewer parcel is described as being "five acres more or less" and being bounded to the south by what is now Oak Street. Since the southern boundary of the Crocker parcel corresponds to the northern boundary of the Ewer parcel, the southeastern corner of the Orchard Lot is determined to be at the relative location as shown on Chalk "A".

In consideration of the foregoing, I find and rule that as between Crocker and the Town of Barnstable, Barnstable has superior title and is therefore entitled to the quiet and peaceful possession of Locus as against Crocker and all persons claiming by, through or under him. Further, Crocker and any persons claiming by, through or under him have no estate, right, title, lien or interest in or to Locus.

Judgment accordingly.

exhibit 1

Decision Plan


[Note 1] Unless stated to the contrary, all deeds and plans referred to herein are recorded at this Registry.

[Note 2] A copy of Chalk "A" is attached hereto for clarity.