JOHN P. JAKUBAJTYS and JEAN M. JAKUBAJTYS vs. LINDA LEROUX, TRUSTEE, DAVID J. POTCNER and ALICE V. POTCNER.

This is a declaratory judgement action to resolve a one foot boundary dispute as to properties in Holbrook. Plaintiffs also allege continuing trespass. Prior to trial, Defendant Trustee sold her land to David J. and Alice V. Potcner, and the Complaint was amended to add them as Defendants.

There was a trial on May 10, 1991, at which testimony was taken before a Court stenographer, who has prepared a transcript. Five exhibits were introduced into evidence and are incorporated in this Decision for purposes of any appeal. Three witnesses testified: Robert Backman, a registered land surveyor and Plaintiff John P. Jakubajtys, both testifying for Plaintiffs; and Stephen Levreault, an employee of Levreault Engineering, a surveying firm, testifying for Defendants. By stipulation both Messrs. Backman and Levreault were qualified as experts in surveying matters. At the close of Plaintiffs' case, I allowed a motion under Mass. R. Civ. P. 4l (b) for dismissal as to so much of Plaintiffs' case as relates to damages, as I find that no evidence was introduced as to damages.

When Mr. Levreault staked out a foundation for a building on Defendants' land, Mr. Jakubajtys observed what he perceived as an intrusion into his yard and the present controversy evolved. Defendants have constructed their driveway on their interpretation of the boundary line and, according to Mr. Jakubajtys, it encroaches on his land by about ten inches.

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

1. Plaintiffs own 8 Edgewood Road, Holbrook ("Eight Edgewood Road"). Eight Edgewood Road is legally described as follows:

The land with the buildings thereon, situated in Holbrook, Norfolk County, Massachusetts, being Lots 414 and 415 as shown on revised plan dated May 3, 1949 of Holbrook Grove, Addition #1, Holbrook, Mass., by R. Loring Hayward, C.E., recorded with Norfolk Registry in Plan Book 151, Plan 496 of 1949 (Exhibit 2 in this action), as revised by Plan No. 1002 of 1952, recorded in Book 3105, Page 85, and as revised by Plan No. 1569 of 1952, recorded in Book 3137, Page 100.

As shown on Exhibit 2, Eight Edgewood Road consists of two lots, each having frontage of 50 feet on Edgewood Road and a depth of 100 feet, for an aggregate square footage of 10,000. A copy of a portion of Exhibit 2, with some additional markings by me, is attached to this Decision.

2. Defendants David J. Potcner and Alice V. Potcner own 3 King Road, Holbrook, Massachusetts ("Three King Road" ). Three King Road is legally described as follows:

The land in Holbrook; Norfolk County, Massachusetts, being Lot Four Hundred and sixteen (416) as shown on revised plan dated May 3, 1949, of Holbrook Grove Addition #1, Holbrook, Massachusetts. . .recorded in Norfolk County Registry of Deeds in Plan Book 151, Plan 496 of 1949 (Exhibit 2).

As shown on Exhibit 2, Three King Road is a lot having a 50 foot frontage on Edgewood Road and a 100 foot frontage on King Road, and contains 5,000 square feet.

3. Three King Road is at the corner of King Road and Edgewood Road. "Plaintiffs and Defendants share the northeasterly boundary of Eight Edgewood Road and the southwesterly boundary of Three King Road. The exact location of that boundary is the disputed fact in the present action. Both properties are lots in a large subdivision called the "Grove".

4. The original Defendant in the present action was Linda Leroux, Trustee of Leroux Realty Trust. On May 16, 1989, Linda Leroux, Trustee conveyed Three King Road to Linda Y. Leroux, individually. On January 31, 1991, Linda Y. Leroux conveyed Three King Road to Defendants David J. Potcner and Alice V. Potcner, who are the present owners.

5. Section 9.4 of the Holbrook Zoning By-Law states that the minimum side lot width from a building to a boundary line is fifteen (15) feet. On December 2, 1986, the Holbrook Zoning Board of Appeals granted a variance to Linda Leroux allowing her to construct a building on Three King Road with a thirteen (13) foot side yard.

6. Messrs. Backman and Levreault were very credible witnesses and their testimony shows an admirable attempt on their part to resolve matters in the field. Their testimony reveals that the problem here is that in the layout of this subdivision, there is about a foot discrepancy between the layout on the ground and the layout as shown on Exhibit 2.

7. Each of the experts used the same methodology. Each started from lots on Exhibit 2 which have since the original subdivision become registered land. They each started their measurements at monuments on the ground referred to in the respective Land Court plans and then measured distances and directions as shown on Exhibit 2. Specifically, Mr. Backman started with the Land Court bound at the southeast corner of Lot 412 and then measured 150 feet northeasterly along the line of Edgewood Road. He placed a mark on the ground and determined that that was the location of the southeasterly corner of Eight Edgewood Road and the southwesterly corner of Three King Road.

8. Mr. Levreault, on the other hand, started from the Land Court monument at the southwest corner of Lot 628, registered land on Overlook Road. Plotting by Exhibit 2 from there, he fixed the centerline of King Road at Three King Road and from there fixed the boundary between Three King Road and Eight Edgewood Road. The line he arrived at is about ten inches southwesterly of the line as established by Mr. Backman. A portion of the Levreault line is shown as a straight line of pavement on the photograph, Exhibit 3.

9. In a perfect world there would be no discrepancy but imperfection, in the guise of a little less than a foot, crept into the layout of the subdivision. Both experts were commendably forthright in stating that it all depends which Land Court lot you start from. Mr. Levreault prefers Lot 628 because he is familiar with it and it, with Lots 629 and 630, has more monumentation; in addition, there is monumentation in Clover Road. Mr. Backman prefers Lot 412 because it is closer to the disputed areas and involves less extrapolation.

10. The approach proposed by Mr. Backman is preferable, for the reasons set forth by him. In addition, following his approach is consistent with Mercurio v. Smith, 24 Mass. App. Ct. 329 (1987), with reference to adjustments to the lots. Following Mr. Levreault's approach would mean that the boundaries of lots 413, 412, 460 and 461 would become suspect, if not those of adjoining lots to the north (on Clover Road) as well. Theoretically, following the Backman approach would mean that lots tied into the registered land lots on Overlook Road would be thrown out of place, but as a practical matter I doubt that the problem will ever arise. In any event, my ruling is only based in part on the considerations from Mercurio. Independently of that, I believe resort to the nearer registered land lot is preferable.

11. Finally, Mr. Jakubajtys testified as to monuments on corners of his lot. There were pipes at the Edgewood Road corners of Lots 414 and 415, which he recalled being in place when he bought the two lots. Mr. Jakubajtys testified that Defendant's contractors removed the pipe at the southeasterly corner of his land (at the disputed boundary) in the course of installing the driveway. Mr. Jakubajtys testified that he took a tape measure and measured from the surviving pipes and, apparently on the basis of that measurement, located the red line on Exhibit 3, showing Defendants' drivewy as encroaching.

12. I cannot rely conclusively on the red line on Exhibit 3 as establishing the correct boundary, (although I strongly suspect it is)because Mr. Backman could not testify as to the accuracy of the photograph. However, if the parties do not agree that the red line is the boundary, the boundary can be quickly established in the field (at Plaintiffs' expense) by reference to the monumentation for Lot 412.

13. Defendants, Potcners, are ordered to remove so much of the hard-surfaced driveway as encroaches over the boundary line.

Judgement accordingly.