This is an action between neighbors in Avon in the County of Norfolk who have owned adjoining parcels of land for many years, and is the type of controversy which the Court is unable to fathom and which should have had a peaceful resolution. The plaintiff, James F. McGonagle, Jr., is the record owner of a parcel of land fronting on Granite Street in said Avon, and the defendant, Barbara A. Collins, is the owner of the adjoining parcel which fronts on Page Street but which has a common boundary with the land of the plaintiff. The action is brought to have the boundary line determined and the plaintiff's title to the land described in the deed to him in essence confirmed although not pursuant to the provisions of G.L. c. 185.
A trial was held at the Land Court on November 28, 1990 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff and his son Timothy testified on the plaintiff's behalf, and William Self, Chief of Party for the surveying firm of Curley & Hansen, testified for the defendant. A total of twenty-one exhibits were introduced into evidence including within this number separate divisions of certain of the master exhibits, all of which are incorporated herein for the purpose of any appeal.
The present controversy stems from a mistake made twice over in conveying out the two parcels of land owned by the parties from the larger parcel of which they originally formed a part. The original mistake of record benefitted the plaintiff and the second mistake the defendant. In each instance the distances set forth in the deeds resulted in an overlap, initially in favor of the plaintiff's predecessors (when the problem was not caught) and currently in favor of the defendant if the rule as to the first deed out should be mechanically applied.
On all the evidence I find and rule as follows:
1. The land adjoining that of the plaintiff on the southwest has been registered. The Land Court Subdivision Plan 9111A gives the distance between the southeasterly corner of the registered land on Granite Street to its intersection with Page Street as 219.14 feet. This plan is dated November 28, 1922.
2. The County of Norfolk made a taking in fee for the widening of Page Street in 1931 by instrument recorded with the Norfolk County Registry of Deeds (to which Registry all recording references herein allude) in Book 1932, Page 361 and took a parcel of land with frontage on Granite Street of approximately 18 feet which was a portion of the land owned by a predecessor in title of the parties and which taking, overlooked by the surveyors, accounts for the problems encountered in this action.
3. The conveyancing and surveying which was done during a period of several years after the taking failed to recognize the new layout of Page Street and that accordingly the frontage on Granite Street was approximately 18 feet less than the draftsmen of the deeds recognized.
4. The earliest title instrument before the Court embodied a conveyance by Josephine F. Roberts to Raymond T. Olson and Vera M. Olson by deed dated September 26, 1949 and duly recorded in Book 2859, Page 587 (Exhibit Nos. 1A and 2A). Attached to the deed was a plan by W. H. Pope which showed the line of the taking but which gave the frontage on Granite Street as being 218 feet. In truth this distance carried to the old line of Page Street which also appears on the plan.
5. Mr. and Mrs. Olson then conveyed to William J. Chaplic and Myrtle Lee Chaplic substantially the same parcel now claimed by the plaintiff by deed dated April 15, 1950 [Note 1] and duly recorded in Book 2937, Page 340 (Exhibit No. 1B). Thereafter some months later the Olsons conveyed the remainder of their land, i.e., the parcel now owned by Mrs. Collins to the Chaplics by deed dated January 16, 1951 and duly recorded in Book 2977, Page 154 (Exhibit No. 2B). This deed gave the frontage on Granite Street as being 108 feet whereas the first deed out by the Olsons to the Chaplics gave the frontage of the McGonagle parcel as being 110 feet (Exhibit No. 1B).
6. Title to the entire parcel at this point in 1951 once again had merged and was in Mr. and Mrs. Chaplic. They then proceeded to convey out first the parcel which is now owned by the defendant by a deed to Leo A. Carrell and Rose Carrell dated May 4, 1951 and duly recorded in Book 3001, Page 400 (Exhibit No. 2C). The description in this deed commences
BEGINNING on said Page Street at a point 107.93 feet northerly of a County Highway Bound and running thence SOUTH 59° 13' WEST by a wall and line of Granite Street, one hundred nine (109) feet to a stake; thence NORTH 31° 33' 30" WEST by other land of these grantors, one hundred sixty-three and 89/100 (163.89) feet to a drill hole;
(Exhibit No. 2C).
7. Thereafter the Chaplics conveyed out the land now owned by the plaintiff to Albert E. Caledonia and Marie P. Caledonia by deed dated August 30, 1952 and recorded in Book 3113, Page 66 (Exhibit No. 1C). The description in this deed commences
. . . on the Northwesterly side of Granite Street at a point which is one hundred eight (108) feet Westerly from a drill hole on said Northwesterly side of Granite Street which is the end of a county line as shown on a plan hereinafter referred to;
Thence Southwesterly by Granite Street one hundred ten (110) feet to a drill hole in the stone wall;
Thence Northwesterly by the wall one hundred sixtythree and 50/100 (163.50) to a stake;
Thence Northeasterly by the wall one hundred (100) feet to a point;
Thence Southeasterly one hundred sixty-three (163) feet, more or less, to the point of beginning.
The plan which is referred to in the description is the August 18, 1949 plan of land owned by Josephine Roberts to which reference has been made. The description calls the granted premises to commence at a point 108 feet westerly from a drill hole which if the error had not been made by the surveyors would leave 110 feet for the frontage on the plaintiff's land. As it in fact is, there is a toal of approximately 201 feet between the intersection of Granite and Page Streets and the land registered in Registration Case No. 9111, however, the total distances in the Chaplic deeds out total 219 feet. Note also that the frontage in the Collins chain was said to be 109 feet but that the description in the McGonagle chain commences at a point 108 feet from Page Street, another discrepancy.
8. Mrs. Collins and her then husband, Francis L. Collins, acquired title to the land which she now claims from Robert E. Whyatt et al by deed dated May 17, 1966 and recorded in Book 4352, Page 111 (Exhibit No. 2E) whereas the plaintiff acquired title to his Granite Street parcel from Albert E. Caledonia et al by deed dated March 12, 1968 and recorded in Book 4581, Page 105 (Exhibit No. 10).
9. At the time of his acquisition the plaintiff had a co-worker at Boston Gas Company locate the boundaries referred to in the deed to him and marked them on the ground. He thereafter during the years until this dispute erupted used the small triangular parcel in dispute which is shown vividly on Exhibit No. 5B, a plan by Curley & Hansen which locates certain monuments on the ground. The difference between the lines in the two deeds results also in a very minute triangle at its northerly end which benefits the defendant if the line claimed by the plaintiff is adopted.
10. A privet hedge runs westerly along Granite Street from a telephone pole to the boundary line claimed by the plaintiff as shown on Exhibit No. 5B. There was evidence also that the hedge ran down the middle of the disputed area, and it may well have spread out over the years. For many years roses grew over the area between the stone wall and the privet hedge and eventually were cut down by the plaintiff's son, Timothy, a gradute of Norfolk County Agricultural School. He also trimmed the privet hedge and cultivated the arborvitae hedge, which ran from the privet hedge to the back of the lot. He also put in foundation plantings and cut the grass in the area.
11. Timothy customarily parked his car on Granite Street between a telephone pole and the plaintiff's driveway, along the wide end of the disputed triangle, and would shovel snow from the area.
12. After Timothy left home in the late 1970's, the plaintiff assumed his duties, and he cut the privet hedge and the grass, but by then the arborvitae hedge was so tall and broad that little was done on it.
13. There was a stunted pine tree in the disputed triangle which the plaintiff and his wife thought unsightly and dangerous. The plaintiff had it cut down but not without a visit from the police called by the defendant's children. This was in the late 1980's, about 1986 or 1987.
14. The present Avon Zoning by-law requires a side yard of fifteen feet, and if the boundary line is located in accordance with the description in the deeds found in the plaintiff's chain of title, that distance will be met. Otherwise the line will only be a few feet from the plaintiff's porch. It is unclear, however, what the dimensional requirements of the by-law were in 1951 and 1952 when the conveyances out were made.
15. Sometime after the dispute arose over the pine tree, the defendant caused a load of fill to be dumped on the disputed area. She has never, however, engaged in any activities thereon. There was no direct evidence as to the identity of the person who maintained the hedges prior to the plaintiff's purchase, but it seems clear that it was his predecessor.
16. After the defendant's children raised an issue about the rear line of her property, each party had surveying work done. Yunits Engineering first found the overlap when engaged by the plaintiff in July 1986 (Exhibit No. 4), and it was confirmed by the more detailed plans prepared by Curley & Hansen in July and August 1986 (Exhibit Nos. 5A and 5B).
It is obvious that a mutual mistake was made on both occasions when the larger parcel was divided into the two constituent parts which now are owned by the plaintiff and the defendant. Neither party realized that the actual frontage on the ground was approximately 18 feet less than the total of the frontage on Granite Street as set forth in the deeds to the predecessors in title of the plaintiff and the defendant. There are three alternative ways of approaching a resolution of this action. One would be to hold that since the deed to the predecessors in title of the defendant went out first, those grantees and their successors in title are entitled to the full frontage described therein. On the other hand another school of construction would look to the conduct of the parties in which only the plaintiff and those claiming under him have used the land in dispute and find the intentions of the grantors and grantees from the construction given by the parties. There is a line of cases which adopts this rule. Murphy v. Donovan, 4 Mass. App. 519, 527 (1976). See also Morrison v. Holder, 214 Mass. 366 (1913) and Blais v. Clare, 207 Mass. 67 (1910). In each instance it is important to discover the intent of the parties and to give it recognition. Finally, since each party is an innocent victim of a mistake made by others, a third possible course would be to divide the disputed area equally and thus to prorate the missing frontage between the parties. There are approximately 18 feet less in the frontage on Granite Street than the deeds to the parties set forth. Nine feet of this might be deducted from the 109 feet claimed by the defendant and a like amount added to the 92 feet which in fact exists on the ground between the registered land and the line of hedges so each party would have approximately the same frontage.
On reflection it seems to me that the second course is preferable. It reflects the original conveyance between the Olsons and the Chaplics, it reflects the construction placed by the parties on the location of the line and if, in truth, the practices prior to the plaintiff's acquisition were known, there doubtless is twenty years uninterrupted adverse possession under a claim, of right.
In addition the line which is in dispute runs very close to the plaintiff's house, whereas the defendant's house fronts on Page Street and is at some distance from the disputed area. It is for this reason that I cannot understand the antagonistic attitude of the defendant when the tree was cut down. I find and rule that the tree constituted a danger, and the plaintiff was within his rights in eliminating it.
On all the evidence therefore I find and rule that it was the intention of the parties when the two properties in question were conveyed out by the common grantor that the line follow that set forth in the deed to the plaintiff's predecessors in title, that the conduct of the parties recognizes this and that the deed to the defendant must be reformed to recognize the mutual mistake by correcting the length of the frontage on Granite Street.
[Note 1] Exhibit No. 1B shows a handwritten date of conveyance as August 15, 1950, whereas the boundary description of the adjacent parcel conveyed by Exhibit No. 2B shows the conveyance was April 15, 1950.