BARBARA WASON DREW and HARRIET WASON CARTER v. PHILLIP S. CARLETTI, LOIS ANN CARLETTI, and PLYMOUTH FEDERAL SAVINGS AND LOAN ASSOCIATION (now PLYMOUTH FEDERAL SAVINGS BANK).

This is a complaint brought on December 3, 1984 pursuant to G.L. c. 240, §1 et seq. to try title to land claimed both by the plaintiffs, Barbara Wason Drew and Harriet Wason Carter, and the defendants, Phillip S. Carletti and Lois Ann Carletti. The plaintiffs failed to make a motion that the Court order the defendants to bring a complaint to try title within a stated period as is the customary procedure. However, the parties agreed that the filing of an answer by the defendants may serve as the commencement of a separate proceeding pursuant to the statutory procedure. [Note 1] The dispute between the parties centers on the title to a small triangular parcel of land ("locus") of approximately 3,400 square feet which lies between their respective summer homes in Plymouth, in the County of Plymouth.

A trial was held at the Land Court on May 22, 1991. The procedure followed by the parties has presented the Court with unusual difficulty in attempting to resolve their dispute. No stenographer was engaged to record and transcribe the proceedings, so the Court was forced to rely on the taped version. Neither party called at the trial an expert witness such as a Land Court Examiner who had examined the records at the Registry of Deeds. An up to date survey of the locus and its relationship to the properties of the parties and any structures thereon would have been invaluable. Finally, the testimony of an employee of the Plymouth Water Department as to its records should have been provided. The only witness called by the plaintiffs was Barbara Wason Drew. The defendants similarly called only Frances Carletti and her son Phillip Carletti, a defendant. There were 52 exhibits introduced into evidence which are incorporated herein in the event of an appeal. Most of such exhibits are recorded documents from the Registry of Deeds whose significance was not explained and which it were left to the Court to synthesize and reconcile. In their briefs the parties attempted to provide the expert testimony that was lacking at the trial, but that is not the appropriate way to establish one's case. The parties entered into a stipulation relative to the record title to their respective parcels, but this chiefly consisted of a listing of recorded instruments and is of limited value. References to the exhibits numbers are as they were marked for trial.

The parties stipulate as follows, and I so find and rule:

1. The Land which is the subject matter of dispute in this action is located on the northerly shore of Boot Pond in Plymouth, Plymouth County, Massachusetts, and is shown as Lot B on a plan entitled "Survey of Land Adjoining Boot and Great South Ponds - Plymouth Mass. Lot 'A', Lot 'B' - June 11, 1945" by Elbridge Wason, Eng. recorded with the Plymouth County Registry of Deeds [Note 2] inPlan Book 6, Page 845. A true copy of said plan is submitted herewith as Exhibit [No. 2];

2. The Plaintiffs' claim of record title to the land is based upon the following:

a. A deed from Henry Richmond of Plymouth to Nathaniel Clark of Plymouth dated April 3, 1783 and recorded in Book 62, Page 24. This deed conveyed a parcel of land described as follows:

A certain tract or parcel of land with a dwelling house at South Pond in said Plymouth being all the land that I bought of Jonathan Churchill by a Deed dated January 31st A.D. 1760. Excepting what I sold to my son Eliab Richmond and Josiah Bradford, deceased.

A true and complete copy of said deed recorded at Book 62, Page 24 is submitted herewith as . . . Exhibit [No. 3].

b. A deed from Eliab Richmond of Plymouth to Nathaniel Clark of Plymouth dated April 29 [sic - April 26], 1784 and recorded in Book 63, Page 69. This deed conveyed a parcel of land described as follows:

Thirty Acres of Land at South Pond in said Plymouth being the whole that I bought of my father Henry Richmond by deed dated January 14, 1773 Bounded Beginning at the Edge of South Pond at the corner of Jonathan Holmes' Lands, thence by the Pond westerly thirty-five rods to a crotched white oak tree marked [illegible] of the Pond; thence Northerly or Northeasterly as far as My Father's land extended, such a point of the Compass as to include the exact quantity of thirty acres, thence easterly to said Holmes Land, then by his Land to the first corner.

A true and complete copy of said deed recorded at Book 63, Page 69 is submitted as . . . Exhibit [No. 4].

c. A deed from Nathaniel Clark of Plymouth to Samuel Wright of Plymouth dated March 18, 1788 and recorded in Book 94, Page 259. Said deed conveyed a parcel of land described as follows:

A certain tract or parcel of land with a dwelling house at South Pond in said Plymouth being all of the land that I bought of Henry Richmond and Eliab Richmond his son, that of Henry Richmond by deed dated April the third A D 1783 and that of Eliah [sic - Eliab] Richmond by deed datd April 26, 1784.

A true and complete copy of said deed at Book 94, Page 259 is submitted as . . . Exhibit [No. 5].

d. A deed from Samuel Wright of Plymouth to John Burgess of Plymouth dated March 30, 1801 and recorded in Book 91, Page 78. Said deed conveyed a parcel described as follows:

The whole of my homestead, land & buildings in Plymouth aforesaid and lying on Easterly and Southerly Side of the Great South Pond, containing eighty acres more or less, being bounded Westerly, Northwesterly and Southwesterly by the said South Pond and Southeasterly by Belcher Manter's Land and bounded Northeasterly by Land improved by Henry Richmond being all of the land I own between South Pond and Finney's Meadow [Note 3] with my Dwelling house, Barn and all other Buildings thereon, reference to the records for a particular description thereof, excepting about one acre of said Land which lies now within Belcher Manter's Fence which said Manter is to have.

A true and complete copy of said deed at Book 91, Page 78 is submitted as . . . Exhibit [No. 6].

e. A deed dated Aril 21, 1831 recorded in Book 172, Page 47 from John Burgess to Phineas Burgess conveying a parcel of land described as follows:

[T]he whole of my homestead farm lying in Plymouth aforesaid at the Great South Pond so called containing eighty acres more or less, with my dwelling house, barn and all other buildings standing thereon said premises is bounded Northwesterly by said Great South Pond and Southwesterly by the Southeasterly arm of said Great South Pond and however otherwise bounded being the whole of my homestead joining together at that place with its appurtenances reference to the records for a particular description thereof.

A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 7];

f. A deed dated July 31, 1876 recorded in Book 552, Page 357 from Phineas Burgess to Phineas F. Burgess and Peleg S. Burgess as tenants in common, conveying the property at Great South Pond and Boot Pond in Plymouth. Said deed conveys a parcel of land described as follows:

Beginning at the Great Oak Tree on the Shore of Boot Pond so-called and running S.14° E. twenty rods, thence S.11 1/2° E. twenty-eight rods fourteen links, thence S.34 1/2° E. sixteen rods five links, thence S.27 1/2° E. fifty-five rods sixteen links, all by the shore of Boot Pond, thence N.53° E thirty-eight rods, thence S.81° E. thirty-six rods, three links, thence N.46 1/2° E. forty-one rods, five links, thence N.43 1/2° W. one hundred and seventy-four rods to the shore of Great South Pond, thence by the shore of said Pond S.31° W. thirty four rods, thence by the same shore S.51° W twenty-seven rods twelve and one half links, thence still by the shore of said pond S. 64° W. fifty-six rods to the brook between Boot Pond and Great South Pond, thence S. 60° E. forty one rods by the shore of Boot Pond, thence by the said shore N. 12° E. twenty three rods, thence still by the said shore of said Pond N. 80° E. thirty rods to the point of beginning. Being the same premises to me conveyed by my father the late John Burgess deceased by deed dated April 21, 1831 and recorded with the Records of Deeds for said County of Plymouth Book 172, Folio 47.

A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 8];

g. Probate of the Estate of Phineas F. Burgess in which his Will, dated April 19, 1897, was allowed by a decree of the Plymouth County Probate Court in Case No. 12195 on November 11, 1901. By Article First of said will, Phineas F. Burgess devised all of his real property to his wife, Harriet A. Burgess. A true and complete copy of the decree and will are submitted herewith as . . . Exhibit [No. 9];

h. A deed dated March 10, 1902 recorded in Book 844, Page 19 from Harriet A. Burgess to Peleg S. Burgess conveying the Grantor's interest in property at Great South Pond and Boot Pond in Plymouth. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 10];

i. A deed dated October 15, 1918 recorded in Book 1313, Page 113 from Peleg S. Burgess to Annie S. Burgess, Charlotte J. Burgess, Susan H. Burgess, Mary A. Burgess and Harrison N. Burgess conveying the premises conveyed to the Grantor and Phineas F. Burgess by Phineas Burgess by deed recorded in Book 552, Page 357, excepting so much as had previously been conveyed. A true and complete copy of the deed recorded in Book 1313, Page 113 is submitted herewith as Exhibit [No. 11];

j. A deed dated October 15, 1923 recorded in Book 1445, Page 428 from Annie S. Burgess, Charlotte J. Burgess, Mary A. Burgess, Harrison N. Burgess and Susan H. Burgess to Peleg S. Burgess conveying the same premises described in the deed recorded in Book 1313, Page 113. A true and complete copy of said deed recorded in Book 1445, Page 428 is submitted herewith as . . . Exhibit [No. 12];

k. A deed dated November 10, 1923 recorded in Book 1445, Page 429 from Peleg S. Burgess to Annie A. Burgess, Charlotte J. Burgess, Mary A. Burgess, Harrison N. Burgess and Susan H. Burgess, as joint tenants, conveying the premises described in the deeds recorded in Book 1313, Page 113 and Book 1445, Page 428. A true and complete copy of said deed recorded in Book 1445, Page 429 is submitted herewith as . . . Exhibit [No. 13];

l. A death certificate of Charlotte J. Burgess who died a resident of Plymouth on May 16, 1934. A true and complete copy of said certificate is submitted herewith as . . . Exhibit [No. 14]

m. By deed dated June 11, 1945 recorded in Book 1889, Page 38 from Annie S. Burgess, Susan H. Burgess, Mary A. Burgess and Harrison N. Burgess conveyed to Elbridge Wason the parcels depicted as Lot "A" and Lot "B" on the plan recorded in Plan Book 6, Page 845 (Exhibit [2]). A true and complete copy of said deed is submitted herewith as . . . Exhibit [Nos. 15; see also Exhibit No. 43]

n. A deed dated December 5, 1973 recorded in Book 3952, Page 694 from Elbridge Wason to Barbara Wason Drew and Harriet Wason Carter conveying four parcels of land including Lot "A" and Lot "B". A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 16].

3. The Defendants' claim of record title to the Land is based upon the following:

a. A deed dated October 21, 1882 recorded in Book 505, Page 336 from Gustavus G. Sampson to Everett F. Sherman conveying a lot of land between Great South Pond and Boot Pond in Plymouth. A true and attested copy of said deed is submitted herewith as . . . Exhibit [No. 17].

A deed dated August 20, 1892 recorded in Book 878, Page 522 from Gustavus G. Sampson to Everett F. Sherman conveying the lot referred to immediately above. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 18].

A deed dated May 14, 1988 [sic - 1888] recorded in Book 555, Page 291 from Russell Bourne, Henry F. Stoddard and Mary Le Baron Stoddard to Gustavus G. Sampson. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 19].

A deed dated May 14, 1898 [sic - 1888] recorded in Book 561, Page 13 from William P. Stoddard, as guardian of Mary C. Stoddard and Elizabeth C. Stoddard, to Gustavus G. Sampson. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 20].

A deed dated April 12, 1892 [Note 4] recorded in Book 643, Page 307 from William P. Stoddard, as guardian of Henry Farris and James Farris, to Gustavus G. Sampson. A true and complete copy of said deed is submitted herewith as Exhibit [No. 21].

b. A deed dated August 23, 1889 recorded in Book 591, Page 106 from Gustavus G. Sampson to Hannah C. Nelson conveying a lot of land between Great South Pond and Boot Pond in Plymouth. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 22].

A deed dated August 27, 1890 reordered in Book 596, Page 374 from Gustavus G. Sampson to Hannah C. Nelson conveying a lot of land on Boot Pond and May Hill Road in Plymouth. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 23].

A deed dated August 20, 1892 recorded in Book 639, Page 445 from Gustavus G. Sampson to Hannah C. Nelson conveying his interest in the two lots referred to immediately above, which interest was acquired by the deeds set forth in . . . Exhibits [Nos. 19, 20, and 21]. A true and complete copy of said deed recorded in Book 639, Page 445 is submitted herewith as . . . Exhibit [No. 24].

A deed dated July 25, 1902 recorded in Book 878, Page 526 from Hannah C. Nelson to Everett F. Sherman conveying a lot of land between Great South Pond and Boot Pond in Plymouth. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 25].

c. A deed acknowledged on July 14, 1902 recorded in Book 878, Page 523 from Gustavus G. Sampson to Everett F. Sherman conveying a lot between Great South Pond and Boot Pond in Plymouth. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 26];

d. Probate of the Estate of Everett F. Sherman as allowed by a decree of the Plymouth County Probate Court in Case No. 21878 dated January 12, 1914, wherein J. [sic] Morton Collingwood [Note 5] was appointed administrator de bonis non and was empowered by license of the Probate Court dated June 14, 1915 to convey the property referred to in the following paragraph. A true and complete copy of the appointment of J. [sic] Morton Collingwood as administrator de bonis non and of the license is submitted herewith as . . . Exhibit [No. 27];

e. A deed dated June 30, 1915 recorded in Book 1259, Page 441, from J. [sic] Morton Collingwood, administrator de bonis non of the Estate of Everett F. Sherman to Charles H. Broadbent, Walter U. Schroeder, Samuel Broadbent, Charles L. Schroeder and Annie [Note 6] [sic] Haskins conveying a parcel of land described as follows:

A certain lot of land, with the buildings thereon, situated between Great South and Boot Ponds in said Plymouth and bounded and described substantially as follows: Northeasterly by land of Edwin D. Hauthaway [Note 7] and Peleg S. Burgess, one hundred ten feet, more or less; Southeasterly by Boot Pond, two hundred twenty feet, more or less; Southwesterly by land of Nightingale or land of Bennett, one hundred ninety three feet, more or less; Westerly by land of owners unknown and land of Clark; Northwesterly by the road, seventy four feet, more or less; Southwesterly again by land of Clark, one hundred ten feet, more or less; Northwesterly by Great South Pond one hundred feet more or less. Subject to existing rights of way if any.

A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 28];

f. Probate of the Estate of Charles H. Broadbent and a decree dated February 11, 1920 made by the Plymouth County Probate Court in Case No. 28139 allowing the will of the said Charles H. Broadbent. By the First Article of his will, Charles H. Broadbent devised all of his real estate to his wife, Maude E. Broadbent. A true and complete copy of said decree and Will are submitted herewith as . . Exhibit [No. 29];

g. A death certificate of Samuel G. Broadbent who died in Plymouth on August 27, 1923 [sic]. [Note 8] A true and complete copy of said certificate is submitted herewith as . . . Exhibit [No. 30];

h. Affidavit of Maude E. Broadbent acknowledged March 4, 1932 and recorded in Book 1626, Page 555. A true and complete copy of said affidavit is submitted herewith as . . . Exhibit [No. 31];

i. A deed dated March 31, 1924 recorded in Book 1625, Page 163 from Carrie R. Broadbent to Maude E. Broadbent, Walter U. Schroeder, Charles L. Schroeder and Annie [sic] R. Haskins. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 32];

j. Probate of the Estate of Maude E. Broadbent and a decree dated November 28, 1938 made by the Plymouth County Probate Court in Case No. 49486 appointing Louis F. Dunham administrator of said estate. The said Maude E. Broadbent died on March 3, 1988 [sic - 1938] intestate leaving as her only heirs and next of kin three sisters, Annie [sic] Haskins, Clara Sampson and Bertha Schroeder. A true and complete copy of said decree is submitted herewith as . . . Exhibit [No. 33];

k. A deed dated March 7, 1939 recorded in Book 1766, Page 92 from Annie [sic] R. Haskins, Clara Sampson and Bertha Schroeder to Fred A. Sampson conveying all of the Grantors, interest in the premises described in the deed from Collingwood, administrator de bonis non, to Charles H. Broadbent et al recorded in Book 1259, Page 441. A true and complete copy of said deed recorded in Book 1766, Page 92 is submitted herewith as . . . Exhibit [No. 34];

l. A deed dated March 11, 1944 recorded in Book 1863, Page 49 from Walter U. Schroeder, Fred A. Sampson and his wife, Clara L. Sampson, Annie [sic] R. Haskins and Charles L. Schroeder to Everett H. Browne conveying a certain parcel of land lying between Great South Pond and Boot Pond in Plymouth, bounded and described as follows:

Northerly by Great South Pond, about ninety-nine and 6/10 (99.6) feet; Easterly by land of John R. Hauthaway one hundred ten (110) feet, more or less; Southerly by Boot Pond, ninety (90) feet, more or less; Southwesterly by land of Charles L. Schroeder, et als, fifty nine and 8/10 (59.8) feet; and Northwesterly by land of Daniel W. Besse, one hundred ten (110) feet, more or less. Said land contains about 14,607 square feet more or less, and is delineated as an un-named lot, being the Easterly lot shown on a certain plan of land in Plymouth, on Boot Pond and dated March 1st, 1944, [Note 9] and to be recorded herewith. Together with all rights of way and other easements appurtenant thereto, and subject to existing rights of way. Meaning and intending to convey, and hereby conveying all the right, title, and interest of these grantors of certain land into Great South and Boot Pond as is contiguous in so far as the line of private ownership extends.

A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 35]. The Plan referred to in said deed is recorded in Plan Book 6, Page 691 and a true and complete copy thereof is submitted herewith as . . . Exhibit [No. 35]; [Note 10]

m. A deed dated March 16, 1948 recorded in Book 2020, Page 248 from Everett H. Browne to Eva Aileen Butler. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 36];

n. A deed dated July 18, 1955 recorded in Book 2434, Page 361 from Eva Aileen Butler to herself and Beatrice M. Ryan as joint tenants. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 37];

o. An Inheritance Tax Real Estate Certificate issued by the Department of Corporations and Taxations, Inheritance Tax Bureau, in connection with the estate of Beatrice M. Ryan, late of Quincy, dated September 25, 1964 and recorded in Book 3153, Page 201. A true and complete copy of said certificate is submitted herewith as . . . Exhibit [No. 38];

p. A deed dated March 14, 1968 recorded in Book 3430, Page 123 from Eva A. Schroeder, formerly Eva A. Butler, to Charles L. Schroeder and Eva A. Schroeder conveying the 14,607 square foot lot shown on the Plan recorded in Plan Book 6, Page 691. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 39];

q. A deed dated August 22, 1980 recorded in Book 4869, Page 186 from Charles L. Schroeder and Eva A. Schroeder to Phillip S. Carletti and Lois Ann Carletti. A true and complete copy of said deed is submitted herewith as . . . Exhibit [No. 40];

r. A mortgage dated August 22, 1980 recorded in Book 4869, Page 188 from Phillip S. Carletti and Lois Ann Carletti to Plymouth Federal Savings and Loan Association. A true and complete copy of said mortgage is submitted herewith as . . . Exhibit [No. 41].

4. Great South Pond and Boot Pond are great ponds.

5. Omitted.

On all the evidence I further find and rule as follows:

6. Exhibit No. 2, a plan entitled "Survey of Land Adjoining Boot & Great South Ponds - Plymouth Mass. Lot 'A', Lot 'B' - June 11, 1945" by Elbridge Wason, Engineer [Note 11] filed in Plan Book 6 at Page 845 (Exhibit No. 2) depicts so-called Lot B which is the area here in dispute. Lot B shows a curving body of water running between the two great ponds, and the principal issue in this litigation is whether the brook ever has been relocated in an easterly direction from wherever its prior location may have been. The plaintiffs insist that the brook formerly lay to the west of its present bed and that therefore their title runs to the northwesterly boundary of Lot B whereas the defendants claim that the brook remains in its longtime location and the defendants' land encompasses all of Lot B.

7. The only evidence as to the brook's relocation is found in an affidavit made by Addie S. Burgess, Susan H. Burgess, Mary A. Burgess and Harrison N. Burgess dated June 1, 1945 and recorded in Book 1889, Page 38 (Exhibit Nos. 15 and 43) where the affiants

under oath depose and say that the so-called "Divisional Brook" referred to as the "Western Boundary of the Burgess Farm" [Note 12] was changed from its original location. It was excavated to its present location by Peleg S. Burgess and his brother Phineas F. Burgess during the construction of the Plymouth Water Works system in 1855 or shortly thereafter, and is now maintained by the Plymouth Water Works Department. The stone bound at the intersection of the eastern bank of Divisional Brook and the shore of Great South Pond and a second stone bound on the shore of Boot Pond about 67' westerly of the present eastern bank of Divisional Brook and the shore of Boot Pond, shows the original location of the eastern bank of the so-called "Divisional Brook" connecting Boot Pond and Great South Pond and its present location as excavated by our father, Peleg S. Burgess, and our uncle Phineas F. Burgess, and indicated on the attached plan [none attached] as Lot "B" was part of the land contained in the original Homestead Farm of Phineas Burgess "our grandfather" and recorded with the Registry of Deeds . . . April 21, 1831, Book 172, Page 47. [Exhibit No. 7].

A deed in the chain of title from members of the Burgess family to Mr. Wason similarly describes the relocation, but the evidentiary weight of both statements is lessened by the clear hearsay nature of the knowledge of the members of the Burgess family. No direct documentary evidence was introduced to prove that the original divisional brook so-called, a narrow connection between Great South and Boot Ponds, was ever relocated. If there are plans on record which show the change in the brook over the years, they remain in the Registry of Deeds and not in the evidence before me.

8. The so-called divisional brook does not appear as a boundary monument as of the 1831 deed from John Burgess to Phineas Burgess (Exhibit No. 7) although it is claimed to have existed. The 1876 deed from Phineas Burgess to Phineas F. Burgess and Peleg S. Burgess (Exhibit No. 8) contains the earliest reference to a brook in either chain of title: "by the shore of [Great South] pond . . . fifty-six rods to the brook between Boot Pond and Great South Pond". Thereafter, passing reference is made to its existence or relocation, but none of the references are consistent, to wit: Exhibit No. 48 (a 1914 deed from Peleg S. Burgess to Clarence L. Hauthaway) "Ending at what was formerly divisional brook between Boot Pond and Great South Pond . . ."; and again in the same deed the description reads "thence S. 86° W. 110 feet to dividing line of said Ponds; thence by said line to Boot Pond". The description in the 1945 deed into the plaintiffs' father located the granted premises as "Beginning at a Stone Bound at the intersection of the Eastern bank of divisional brook, and the shore line of Great South Pond" and proceeded to describe the triangular shaped Lot "B" shown on Exhibit No. 2 which is the disputed locus.

9. The plaintiffs contend that the brook was moved to its second location in 1855 and finally to a third location as shown on a plan entitled "Plan Land Plymouth, Mass. of the Plymouth Water Department" dated October 3, 1974 and recorded in Book 4076, Page 255 as Plan No. 362 of 1975 (Exhibit No. 42). The plan shows a contemplated relocation, but there was controverted evidence as to whether in fact the brook ever had been relocated. Such evidence was available and was not presented to the Court. There were photographs which supposedly shows a brook flowing along different courses (see Exhibit Nos. 58 and 59), but it is difficult to base any conclusions on such nebulous evidence.

10. The land of the defendants is shown on a plan entitled "Plan of Land in Plymouth at Boot Pond and Great South Pond" dated March 1, 1944 and recorded in Plan Book 6, Page 691 (Chalk B). The dimensions shown on the plan and given in the relevant deeds match those in the plaintiffs' chain of title. The land now owned by the plaintiffs is shown as that of "John R. Hauthaway" on said plan. The plan also forms a part of Exhibit No. 35 having been recorded with the deed recorded in Book 1863 at Page 49. This plan shows a straight center line for the brook within the granted premises and accordingly suggests that land of Hauthaway ends at the easterly bank of the brook. It seems clear that the brook as depicted on Exhibit No. 35 is an approximation and does not reflect in detail the actual course of the brook. However, it is this line which the defendants have treated as their property line at last from 1944, but without question for many years prior thereto. The plan prepared by the plaintiffs' father (Exhibit No. 2) roughly coincides as to both bearing and distance with the plan in the defendants' chain. The only difference is that the plaintiffs claimed the northwesterly line of Lot B to be the boundary line and the defendants the easterly line thereof.

11. On March 11, 1944, the defendants' lot as shown on the plan described above, was sold to one Everett H. Browne, by deed recorded at Book 1863, Page 49, (see paragraph 3.1. of the stipulation, ante) as shown on the plan referred to therein (Chalk B). Through mesne conveyances the defendants' purchased the property, together with a small abutting triangular piece southwest of their parcel, August 22, 1980, by deed recorded at Book 4869, Page 189 (Exhibit No. 40). The deed recites as the easterly abutter a John R. Hauthaway. As appears in various deeds in the defendants' back title an Edwin D. Hauthaway was an easterly abutter together with Peleg S. Burgess, one of the plaintiffs' predecessors. Thereafter, reference is made on the Plan referred to in the defendants' chain as well as some of their deeds, to John R. Hauthaway being the defendants' only abutter.

12. The plaintiffs' back title contains a 1914 conveyance from Peleg S. Burgess to one Clarence L. Hauthaway of land bordering Boot Pond on the south and the right of way shown on Exhibit No. 2 to the north. There is no indication that Edwin, Clarence and John were related, although the unusual spelling leads to the conclusion that they were. Thereafter, Peleg Burgess conveyed an 8,600 square foot lot to Charlotte Burgess which appears to be the parcel northerly from the Hauthaway lot and along the southerly coastline of Great South Pond. Although the boundary lines on Exhbit No. 2 do not square with the description in the deed, there can be no doubt the land is at the westerly end of the Burgess land on Great South Pond (see Exhibit No. 50). This parcel was conveyed after Charlotte's death by the remaining Burgesses to Elbridge Wason. Finally, as shown on the 1974 plan depicting the location of the easement granted the Town of Plymouth, John Rauney Hauthaway is noted as the plaintiffs' easterly abutter, adjacent to the land once owned by Clarence L. Hauthaway. This clearly is an error.

13. It was not until 1944 when the plaintiffs' father Elbridge Wason supposedly purchased Lots "A" and "B" from the remaining Burgesses after the death of Charlotte Burgess that the presence of a parcel of land known as Lot B became apparent. The plaintiffs' alleged source of title for Lots "A" and "B" is not clear, and although Lot "A" was almost certainly contained in the original 80± acres which made up the Burgess homestead, the location of Lot "B" is more troublesome. The parties in essence agreed that the process of reliction resulted in the exposure of this land now in dispute, but no such evidence is before the Court, the Commonwealth of Massachusetts has not been notified, and the issue has not been argued nor decided.

14. The plaintiffs no longer contend that they acquired title by adverse possession, and they did not present their case on that basis.

15. May Hill Road bisects the Carletti property and proceeds to cross the divisional brook; as it passes the Carletti cottage, the way is paved. Exhibit No. 54 shows a plank bridge across the brook constructed by Charles Schroeder as it stood during the 1920's. There were no present day photographs showing the area as May Hill Road passes over the brook. There has been a culvert with a 15 inch galvanized pipe to control the flow between the ponds installed by the town sometime during the 1970's. It is unclear whether the brook now is channeled through the culvert and thus has made the bridge unnecessary. The defendant Phillip Carletti's mother was the daughter of Charles Schroeder, who with others owned property between Great South Pond and Boot Pond and conveyed this parcel to the defendants. In 1930 a lawn was put in; in the 1950's a garage was located north of May Hill Road which as noted above bisects the Carletti property and as shown on the plans crosses the brook. The Schroeder family used Boot Pond for skating and ice fishing in winter when in residence at a nearby cottage for the winters, but most of the use was in the summer. Mrs. Carletti's father maintained the lawn, shrubs and most importantly the beach area. Somewhere on the Schroeder property there also was a garden which was maintained from at least 1919 for an undetermined period of time. The lawn and garden are not located on Lot B, and while the defendants claim the garage is situated thereon, there is no evidence to show this. Sometime between 1957 and 1960 a post and rail fence was constructed by the defendants' predecessors on the southerly, or Boot Pond side, of May Hill Road and ran from the brook to within approximately 40 feet of Hog Rock Road. It recently has succumbed to repeated assaults by snow plows, and it is no longer standing. The Carletti property is bounded on both ponds by cinder block retaining walls, but whether this encompasses Lot B again is not clear. The triangular locus is included within the 14,600 square foot parcel as shown on Exhibit No. 35 (Chalk B) and accordingly the defendants have the benefit of the doctrine of color of title as will be set forth hereafter.

The effect of G.L. c. 240, §1 et seq. in authorizing a plaintiff to require an adverse claimant to bring a second proceeding to establish his title has nineteenth century connotations which may not be constitutional in the light of the twenty-first century about to begin. In the present case the defendants were content to rely on their answer as the complaint required by statute since the plaintiffs never got to dissolve the appropriate motion. It seems inapposite to require the defendants to bear the burden of establishing their record title since the claim by the plaintiffs came after the recording of the deed and plan showing the land of the defendants. In any event with the conclusion that I reach it makes no difference as to where the burden rests.

I find and rule that there has been no credible evidence introduced which I accept that the brook has been relocated and I further find and rule that the boundary line between the land of the plaintiffs and the defendants is the easterly line of Lot B as shown on Exhibit No. 2. This conclusion rests in part on a study of the deeds in both chains of title; the easterly line of the defendants' land shown as the parcel containing 14,607 square feet on Exhibit No. 35 is the same line which appears as the easterly line of Lot B on Exhibit No. 2, and the deeds set forth in the stipulation confirm this to be the fact. From approximately the 1915 deed from Morton Collingwood to Charles H. Broadbent et al (Exhibit No. 28) to the present the easterly boundary line is given as the same 110 feet which appears on the Wason plan. The deeds in the plaintiffs' chain commencing with the 1876 deed from Phineas Burgess to Phineas F. and Peleg S. Burgess (Exhibit No. 8) set forth in paragraph 2.f., ante describe the boundary along Great South Pond as running close "to the brook between Boot Pond and Great South Pond". It is not clear from the various descriptions as to whether the line goes to the center line of the brook or to its easterly line.

The real question is whether the brook as located on the ground in 1876 was where the brook shows on the various plans before the Court or whether it was to the west thereof. I have found and ruled that there is no independent evidence before me as to an actual relocation on the ground of the so-called divisional brook. Accordingly I find and rule that the defendants must prevail, and I base my finding not on any technicality that the affidavit does not meet the requirements of G.L. c. 183, §5B since it was executed prior to the adoption of the statute, but simply that the hearsay which is set forth in the affidavit and in the deeds detract from their credibility and that other evidence should have been produced to establish the relocation where property rignts are an issue.

I have no difficulty also in applying the doctrine of Norton v. West, 8 Mass. App. Ct. 348 (1970), see also Dow v. Dow, 243 Mass. 587 , 590 (1923) as to color of title. Color of title as it related to adverse possession was explained by Justice Kass in Norton v. West as follows:

Color of title; in the context of an adverse possession claim, is an assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title. See Attorney Gen. v. Ellis, 198 Mass. 91 , 97-98 (1908). The advantage which a person may gain from that doctrine is that the activities relied upon to establish adverse possession reach not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant. Dow v. Dow, 243 Mass. 587 , 590 (1923). For example, if the act of adverse possession were cultivating a half acre parcel of land, but the claimant held an invalid deed described three acres, the claimant would have constructive possession of the three acres for the reason that it is the presumed intention of the grantee of the deed to assert such possession.

The problem here, however, is not that the deed itself is invalid nor in truth is the description indefinite; it is merely that with the lack of recent on the ground surveys it is difficult to establish the proper division line between the parties without the evidence that normally would be furnished. In addition to the doctrine of color of title the defendants are assisted by the rule that the conduct of the parties is illuminating in establishing where on the ground a boundary line falls. It is in that context that occupation becomes important here even though most of the activities of the defendants were concentrated elsewhere on their land.

On all the evidence I therefore find and rule that the defendants have established by a preponderance of the evidence that their title to Lot B is superior to that of the plaintiffs.

Judgment accordingly.