EARLE M. MARSTERS, TRUSTEE OF M & R TRUST vs. CARRIE E. ALDEN, ET AL.

In my decision in Registration Case No. 39358 in which William C. Nye, Trustee of the South Mashpee Island Trust was the original plaintiff for whom the plaintiff in the present action ultimately was substituted, I found that the plaintiff had not established title to the southerly two-thirds of the locus. This result was reached because a prior owner in the chain of title had conveyed out many lots on a plan by N. L. Crocker in 1912 (Exhibit No. 3). The plaintiff in the registration case argued that the land shown on the plan could not be placed on the ground and that accordingly the deeds out were void for indefiniteness. I rejected this contention as inequitable since the plaintiff was claiming under the original grantor who was responsible for the cloud on title. Accordingly the substituted plaintiff in the registration case and the plaintiff here has attempted to resolve this unfortunate situation by the commencement of this action. In addition to the original plaintiff at or immediately prior to the trial, the Court allowed the following to join as parties plaintiff: the Town of Mashpee, Owen Peltier, Carol Peltier, John R. Hero, Herbert L. Hayden, Frederica Batchelor, Mary Cloran, Philip Cloran, Joanne K. Shildneck, Joseph O'Brien, Paul F. Lennon, Jeanne LaFrance, Francis J. Lennon, Rosemary Bronstein, Ellen Martin, Edward S. Lyons, Mary Rock, Milton E. Hall, Jr., Linda S. Hall, Florence M. Lawrence Hager, Diane Kezele, Robert Ciccarelli and Francis Ciccarelli. No agreement coud be reached, however, with Stephen A. Trudeau, whose father conveyed to him the lots owned by the Trudeau family immediately prior to the trial by deed dated May 9, 1990 and duly recorded in Book 7155, Page 225 (Exhibit No. 17F). The premises comprise the lots shown as Lots 45-49 on the 1912 Crocker plan.

The action to resolve the stalemate was commenced by a "complaint to quiet title against known and unknown defendants and for declaratory judgment". The plaintiff alleged that the premises shown on the 1912 plan cannot be located on the ground and that title thereto is unmarketable because no owner or owners of land thereon can fix his or their boundaries. The plaintiff sought to have the Court declare that each lot on the plan has an undivided fractional interest in the entire premises, the owners of all the lots being tenants in common, in the same proportion as the lot bears to the total area of the plan. At trial a question was raised by the defendant Trudeau as to whether the owners of lots on a way should not be entitled to a greater proportion inasmuch as the fee to the center line is in the abutter, an argument which the plaintiff's counsel agreed had merit. The relief sought was a declaration that the owners of each lot shown on the plan hold as tenants in common with all other lot owners, that the individual fractional interest of each lot in the premise be established and a determination made that any municipal liens relate only to the individual fractional interest of the lot in the entire premises. The defendant Trudeau objected to the relief sought by the plaintif on the ground that he knew were his lots were located and that for the Court to rule otherwise would grant the plaintiff a private right of eminent domain. In what is the case of first impression in this Commonwealth, I find that the plaintiff's position is the sole and sensible way to resolve at long last this dispute.

A trial was held at the Land Court on May 17, 1990 at which a stenographer was appointed to record and transcribe the evidence. The plaintiff called as witnesses Gunther Greuelich, a registered land surveyor and a registered professional engineer who was qualified as an expert, and Earle Marsters, the principal plaintiff. The defendant called Ernest A. Trudeau, the father of the defendant Stephen and his predecessor in title. Twenty-one exhibits, some of multiple parts, were introduced into evidence and incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows: [Note 1]

1. The 1912 plan by N. L. Crocker entitled "Plan of Land Near Cotuit, Mass." recorded with the Barnstable County Registry of Deeds (to which all recording references herein refer) in Plan Book 24, as Plan 135 (Exhibit No. 3) shows 1,000 lots of which 935 are numbered and with unnumbered lots there appear well in excess of 1,000 lots. The lots are twenty by eighty feet in general and the numerous streets within the subdivision are twenty feet in width for those running north and south and frty feet in width for those running in an east and west direction. The widths are insufficient to comply with the provisions of the rules and regulations of the Mashpee Planning Board. The land shown on the subdivision bounds on the northeast by Pensylvania Avenue, so-called, and on the west by Michigan Street. All the streets in the subdivision are named after universities or colleges.

2. Mashpee Neck Road presently bounds the locus on the west and is a public way taken in fee by the Town of Mashpee by instrument dated June 30, 1959 and recorded in Book 1045, Page 195. Simons Narrows Road is now under construction along the northeasterly boundary of the locus.

3. The actual land on the ground between Simons Narrows Road, Mashpee Neck Road, the land registered in Case No. 39358 and the land abutting on the south now or formerly of Fitch contains approximately 4.2 acres less than the land shown on the 1912 Crocker plan. Accordingly it is difficult to place the Crocker plan on the ground and to locate the lots shown thereon. As the registration case decision shows, surveyors for many years have been unable to find the lots conveyed out by the predecessors in title of the present parties, and the expense involved in attempting to do so has discouraged some efforts.

4. There are various ways of attempting to align the Crocker plan with the situation as it in fact exists on the ground. No one has attempted to prove the title of the lots to the northeast of Simons Narrows Road or to the northwest of Mashpee Neck Road (none of which has been registered or confirmed), but it appears that in the latter case the land is claimed by the Town of Mashpee and in the former there is a subdivision shown on Mashpee Assessor's Map No. 83, which has been introduced as an exhibit in the present action (Exhibit No. 5). However the Crocker plan is placed on the ground it overlaps onto land of third parties.

5. Various methods of overlaying the various alternative locations of the existing streets on the Crocker plan have been tried. If the common starting point is to place the northwest corner of the old subdivision and Michigan Street at Mashpee Neck Road as the assessors have done in their plan 83A (see Exhibit No. 6), Michigan Street and Mashpee Neck Road are not properly aligned because the former consists of two straight parallel lines, whereas Mashpee Neck Road has a curve. To align the plans in this way also brings Simons Narrows Road through the northeasterly part of the 1912 subdivision and places Pennsylvania Avenue within the land northeasterly of locus. The lots claimed by the defendant on the placement by the assessors would lie a few feet from Simons Narrows Road in the interior of the subdivision. This placement, however, has many lots lying without the public ways and on land of third parties.

6. A more logical placement of the Crocker plan with the situation on the ground would hold the northeasterly corner and have both Pennsylvania Avenue and Simons Narrows Road meet at this point (Exhibit No. 9). However, this placement leaves a gap between Pennsylvania Avenue and Simons Narrows Road on the one hand and on the other hand locates on land of the Town of Mashpee to the west several numbered lots on the Crocker plan as well as all the unnumbered lots. If ths placement were followed, the lots owned by the defendant would lie well back from Simons Narrows Road.

7. The defendant's predecessor in title acquired Lots 45-49 inclusive from Louis W. Crawford by deed to Edmourd L. Trudeau, dated September 3, 1912 and recorded in Book 325, Page 151 (Exhibit No. 17B). Title thereafter passed from Edmourd L. Trudeau to Leonel J.A. Trudeau by deed dated October 4, 1933 and recorded in Book 1689, Page 054 (Exhibit No. 17C), from the heirs of Leonel J.A. Trudeau to Lionel E. Trudeau by deed dated December 29, 1967 and recorded in Book 1380, Page 057 (Exhibit No . 17D), by deed from Lionel E. Trudeau to Ernest A. Trudeau, dated April 8, 1986 and recorded in Book 5058, Page 243 (Exhibit No. 17E) and by deed from Ernest A. Trudeau to Stephen A. Trudeau, dated May 9, 1990 and recorded in Book 7155, Page 225 (Exhibit No. 17F). No title examiner testified as to the chain of title in the registry of deeds, and accordingly, the report on the Trudeau title may be incomplete. It is obvious from the deeds introduced into evidence that there are or may be missing probates which present problems of clouds on title and would have to be resolved to perfect the defendant's title. However, for the purpose of this decision I am assuming that he has good record title to Lot 45-49 inclusive, wherever they may be.

8. There are owners of lots who have not been located and who have not appeared in either the registration proceedings or the present action. Their fractional interest, however, can be determined and an award made to them in any partition proceedings in the probate court. The plaintiffs have introduced numerous deeds to establish their title either in this action or in the registration proceedings, but there has never been a complete examination of the records by which the Court can establish who has a title sufficient to be considered an owner of what lots. However, it is possible for the Court to recognize the schedule prepared by the expert, computer driven, of the relationship which each lot bears to the entire tract. This appears on Exhibit No. 10 and is accurate as to the lots. However, each lot which bounds by a way also owns the fee to the middle line thereof, and this would require an adjustment of the fractional share of such lots.

The ultimate question for decision by the Court is how equitably to resolve the question between the parties as to the placement of their lots. The plaintiff contends that the discrepancy between the actual area of the parcel of land as it in fact exists today on the ground is 4.2 acres less than the land shown on the Crocker plan, and I have so found. He argues that the only equitable method of dealing with the discrepancy is to assign to each lot on the Crocker plan its proportionate share of the entire subdivision and to determine that the owners of each of such lots is a tenant in common with all the other owners, and to then have the probate court partition the premises. The defendant contends that he can locate on the ground his parcel of land which comprises five lots from the Crocker plan, that he can build upon such lots by the exclusion from the subdivision control law of pre-existing property, and that it would be inequitable to require him to accept a small monetary award for his premises which would be insufficient to allow him to purchase another parcel of vacant land situated as close to the water in return for ownership of these lots since 1913 and the payment of real estate taxes for many years. He argues for a theory of apportionment.

The situation presents a dilemma which has not been presented to the Massachusetts courts previously in its present form. It is true that G.L. c. 41, §81FF exempts from the operation of the subdivision control law lots held in separate ownership at the time when the city or town in question adopted the subdivision control law and the rights of way appurtenant to such lots. See Toothaker v. Planning Board of Billerica, 346 Mass. 436 (1963), Clows v. Planning Board of Middleton, 12 Mass. App. Ct. 129 (1981). Therefore, if the defendant were able to locate his premises on the ground, he would be entitled to the grace provided by §81FF of c. 41. Such location, however, is the problem. The defendant sought to prove that his predecessors in title had staked out the lots and that they could be found on the ground. If this were so and there had been sufficient other occupation to establish title by adverse possession, then I would recognize the defendant's rights. However, the only real evidence of acts tending to show adverse possession is the payment of the tax bill, and this alone is generally held to be insufficient. It is regrettable that the defendant who has such a love for the land even if he cannot be precise in its location cannot retain it after the family has had a claim to it since 1912, but the difficulty of locating not only the land of the defendant but of many other parties whose families also have owned lots for many years seems overwhelming.

There is only one case which counsel has found in the United States precisely dealing with the question of overlapping ownership and which the plaintiff argues is authority for the position he advocates. That is the case of Losee v. Jones, 235 P.2d 232 (1951). This case, however, really is not in point. It would be applicable if we knew where the land conveyed was situated and there was an overlap or perhaps if the present controversy were between the owners of land within the Crocker subdivision and those of the lands lying on the opposite side of Simons Narrows Road or Michigan Street. Here, however, the controversy is between the owners of various lots within the subdivision as to the appropriate way to place these lots on the ground and how to equitably deduct from each of them the amounts by which the overall total of land in fact on the ground is less than the amounts included in the 1912 depiction.

The usual rule in Massachusetts, absent a plan, is that the excess land in a parcel if that were the problem or a deficiency if that is the case is gained or borne by the last grantee. In the case of Bloch v. Pfaff, 101 Mass. 535 (1869) where there was an excess Justice Colt stated "when an excess or deficiency is found to exist in the estimated distance between fixed monuments, divided into a given number of lots, a rule of apportionment is sometimes applied, which divides the difference between the several lots in proportion to the length of their respective lines. But this rule is only to be availed of when the land is conveyed by reference to a plan, or there is some declaration in the deed indicating a purpose to divide the land according to some definite proportion, and when also there is no other guide to determine the locations of the respective lots".

In the only other comparable case found in Massachusetts where there was an excess of land and lots indeed were shown on a plan, the Appeals Court held that as to the protagonists before the Court a decision would be made that would do the least harm to the properties in the light of the situation on the ground as developed. Mercurio v. Smith, 24 Mass. App. Ct. 329 (1987).

Accordingly I have relied on the principles of these decisions in reaching the unique result here. On all the evidence therefore I find and rule that the 1912 Crocker plan cannot be placed on the ground and that accordingly the owners of the lots theron hold as tenants in common in the proportion that their lots together with the fee in the abutting streets bears to the total of all lots on the plan. I have considered whether the unnumbered lots, presumably not a vital part of the grantor's scheme should be eliminated from the computation. I find and rule in the negative.

The defendant acted pro se and presented his case competently; his expert did not choose to appear in Court on the first day of the trial when it became apparent that the second day, originally scheduled, would not be required.

Judgment accordingly.