M. MARK JOHNSON, JR. and MARILYN C. JOHNSON vs. WINTHROP YACHT CLUB.

By petition filed with this Court on October 21, 1983, and amended on April 8, 1987, M. Mark Johnson, Jr. and Marilyn C. Johnson ("Plaintiffs") seek to register and confirm title, pursuant to G.L. c. 185, §1, to three lots, referred to herein as the North Parcel, containing 2,237± square feet of land, the Middle Parcel, containing 1,836± square feet of land and the South Parcel, containing 2,264± square feet of land, located on the westerly side of Shirley Street in the Town of Winthrop (collectively referred to as "the Parcels"), as well as the flats lying seaward and to the west of the westerly boundaries of the North and Middle Parcels ("Locus"), all as shown on Land Court Plan No. 41424-A2, entitled "Plan of Land in Winthrop, Mass.", dated May 19, 1986. ("Revised Land Court Plan") (Exhibit No. 2).

The Plaintiffs originally filed their registration petition and plan ("Land Court Plan No. 41424-Al") (Exhibit No. 1) in October of 1983. Thereafter, in April of 1984, a title abstract was filed by Land Court Title Examiner Robert E. McGaw, Jr., wherein he reported that, in his opinion, the Plaintiffs do not hold registerable title to Locus. In accordance with certain comments contained in this report, the Revised Land Court Plan and an amended registration petition were filed with this Court by the Plaintiffs on or about July 10, 1986.

Following the issuance of notice to all potential claimants in the matter, including the Attorney General for the Commonwealth of Massachusetts [Note 1], the Defendant Yacht Club, on June 1, 1987, filed an objection to the Plaintiffs' petition. In its answer, the Defendant asserted ownership over the flats lying westerly of the North Parcel and, consequently, denied the Plaintiffs' claim of rights therein. The Defendant asserts no challenge herein to the Plaintiffs' claim of title in and to the three Parcels. A general default was entered as to all other interested parties on December 14, 1987.

The case was tried on April 27, 1988 and May 11, 1990, at which times a stenographer was appointed to record and transcribe the testimony. The Plaintiffs presented testimony from Robert E. McGaw, Jr., Esq., a Land Court Title Examiner, and Orrin Rosenberg, Esq., an attorney specializing in real estate matters. The Defendant offered testimony from Henry H. Thayer, Esq., a Land Court Title Examiner. Twenty-two (22) exhibits and two (2) chalks were presented to assist the Court. All exhibits and chalks are incorporated herein for purposes of any appeal. The Court viewed Locus, in the presence of counsel, on November 16, 1988.

On all of the evidence, I find and rule as follows:

1. By deed dated December 29, 1882, recorded at Book 1583, Page 356 in the Suffolk County Registry of Deeds [Note 2] ("Pendergast Deed") (Exhibit No. 5A), John W. Tewksbury conveyed a twenty-four (24) acre parcel of land, including Locus, to Frank H. Pendergast. As set forth in the deed, this conveyance was made "together with all the beach flats and riparian rights appurtenant to said premises", thereby including the fee in both the uplands and flats. This property is shown on a plan entitled "Plan of Land Owned by John W. Tewksbury", dated December 1882 (Exhibit No. 5B).

2. By deed dated December 29, 1882, recorded at Book 1583, Page 363 (Exhibit No. 6), containing the same descriptive language as the Pendergast Deed, the aforesaid uplands and flats were conveyed to William B. Rice.

3. On April 10, 1888, William B. Rice conveyed the land referred to herein as the North Parcel to Luther T. Harrington, by deed recorded at Book 1817, Page 157 (Exhibit No. 7), which deed contains a precise metes and bounds description of the quantity of land conveyed and additional descriptive language, which reads as follows:

The whole or greater part of the above described land is below mean high water and is conveyed as flats and riparian rights.

The North Parcel is shown as the lot marked "L.T. Harrington" on a plan entitled "Plan to accompany Petition of the Selectmen of Winthrop, Mass. to widen Shirley Street around Cottage Hill", dated September 1890 (Exhibit No. 8B).

I find that the purpose of inserting the aforesaid additional language in the deed to the North Parcel, was to put the grantee on notice of the nature of the land conveyed, that is, that at least a portion of it will be, at times, covered with water, and that such language did not serve as an enlargement of the description of the land conveyed.

4. On December 20, 1894, William B. Rice conveyed the land referred to herein as the South Parcel to Luther T. Harrington. This conveyance is evidenced by a deed recorded at Book 2248, Page 303 (Exhibit No. 9A), which contains the following description:

. . . bounded and described as follows to wit: Easterly on the present line of Shirley Street twenty-five (25) feet; Northerly on land of the grantee ninety-four (94) and 56/100 feet; Westerly on other flats of this grantor twenty-five ( 25) feet; Southerly on other land of said grantor ninety-four (94) and 56/100 feet and containing twenty-three thousand and fifty (2350) square feet of land (emphasis supplied).

By inserting the descriptive language that the South Parcel lies westerly "on other flats of this grantor . . . ", Rice expressly excluded the fee in these flats from the conveyance to Harrington.

5. By deed dated December 24, 1894, recorded at Book 2252, Page 40 (Exhibit No. 13A), William B. Rice conveyed all of his remaining beach flats and riparian rights, located on the westerly and northwesterly side of Great Head in Winthrop, to Orlando E. Lewis. This remaining property is shown on a plan entitled "Plan of Flats & c. belonging to William B. Rice", dated December 1894, recorded at Book 2252, Page 40 (Exhibit No. 10B).

6. There is no deed of record conveying title to the land known herein as the Middle Parcel or to the flats lying westerly thereof. On October 11, 1898, however, the Board of Harbor and Land Commissioners granted a license to Luther T. Harrington to build and maintain a pile pier on such Parcel (See Exhibits No. 4A and 4B). As attested to by certain evidence and testimony offered at trial (See Exhibits No. 21, 22A, 22B, 22C, 22D and 22E), and by the view taken of Locus in 1988, a boathouse appears to have stood on the Middle Parcel since as early as 1908. The record before the Court is silent, however, as to the nature of the ownership or possession of the boathouse during this time.

7. Record title to both the North and South Parcels remained in the Harrington family until January 4, 1983, when Joy Jeffrey Kendrick, Administratrix with the Will Annexed of the Estate of Anne M. Harrington, conveyed these two Parcels to the Plaintiffs. This conveyance, which is evidenced by a deed recorded at Book 10182, Page 277 (Exhibit No. l0A), contains the following language:

[With respect to the North Parcel :]

. . . The whole or greater part of the above desbribed land is below mean high water and is conveyed as flats and riparian rights . . .

[With respect to the South Parcel :]

. . . [Bounded] westerly on other flats of this grantor twenty-five (25) feet . . .

For the above-stated reasons, I find that, by this conveyance, the Plaintiffs acquired the fee in the North and South Parcels, but not in the flats lying seaward and westward of the westerly boundaries of these Parcels.

In consideration of all of the foregoing, I rule that the Plaintiffs do not have sufficient title for registration as to the flats and/or rights lying seaward and westward of the westerly boundaries of the North and Middle Parcels discussed herein and, accordingly, as to such flats and/or rights, the Plaintiffs' registration petition is dismissed. As to the North and South Parcels discussed herein, I rule that the Plaintiffs are entitled to a decree registering and confirming title to such Parcels, subject to such other matters as may appear in the Abstract and which are not material hereto. Lastly, as to the Middle Parcel, I find that the Plaintiffs lack record title thereto and find further that the present record contains insufficient evidence to establish the same by adverse possession. However, inasmuch as the Defendant Yacht Club appears to have no interest in the ownership of the Middle Parcel, I rule that the Plaintiffs may, if they so choose, present further evidence to determine the nature of their ownership, if any, of such Parcel.

Judgment accordingly.