REG 41135

January 28, 1991

Barnstable, ss.




The present four registration proceedings involve three adjoining cases aligned in a north to south configuration where the parties have worked out their differences and have entered into stipulations which govern their respective rights. Each of these plaintiffs, however, Gladys M. Pratt, Jean F. Bloch, Robert S. Mason and Audrey M. Mason have a more serious controversy with David W. Vaughan and Martha S.Vaughan, the record owners of two parcels of land adjoining the land of the other parties on the east where title to a strip fifteen feet in width between the land of the parties is in dispute. The controversial location of the fifteen feet stems from the placement by the registered land surveyor who prepared the file plan for Mr. and Mrs. Vaughan in Registration Case No. 42403 of the westerly line of Dewey Avenue, fifteen feet farther to the west than the registered land surveyor who prepared the other three plans. The nub of the problem is the proper width and placement of Dewey Avenue, i.e., whether it is thirty feet in width as is the case of other streets in the subdivision, at least of record, or is fifteen feet-wider, as suggested by Francis J. Alves, an older surveyor with much experience in Provincetown, including the area of loci, and adopted by William S. Rogers, who prepared the Vaughan file plan. I have concluded that the width of Dewey Avenue is only thirty feet, that it should be placed immediately to the south of that portion of Dewey Avenue between Massachusetts state Route 6A and Bay View Avenue and that the decision by Mr. Alves to show Dewey Avenue as forty-five feet in width was in error. The results of this placement which was designed to accord recognition to the situation on the ground as to third persons whose land lies to the east of locus and who are not parties to this action is not determined. The Court does hold, however, that as between the owners of the parcels covered by the registration cases now before it, Dewey Avenue is only thirty feet wide as is Hobson Avenue which abuts land of three sets of plaintiffs on the west. As will appear from the decision, Hobson Avenue has been narrowed by adverse possession as has a portion of Bay View Avenue, but that does not affect the determination of the proper location of the properties on the ground.

A trial was held at the Land Court on May 14, May 15, June 19, June 20 and June 28 of 1990 at which all the evidence applied equally to each of the registered land cases. Witnesses at the trial included Robert S. Mason, who with his wife claims to own the premises shown on the file plan in Registration Case No. 41714. Miriam S. Mason, his mother and predecessor in title, Gladys M. Pratt, the plaintiff in Registration Case No. 42098, Calvin Pratt, her son, David Vaughan, who with Martha S. Vaughan, his wife, claims to own the premises shown on the file plan in Registration Case No. 42098, Jean Bloch, who claims title to the premises shown on Registration Case No. 41135, William Rogers, a registered land surveyor, and Chester M. Lay, also a registered land, surveyor. Seventy-seven exhibits were introduced into evidence, including the depositions of Francis Alves and of Donald Vaughan, each of whom was prevented by illness from testifying at the trial, and are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The land now claimed by Ms. Pratt, Ms. Bloch and Mr. and Mrs. Mason formerly was owned by Addie Santhorn Stephens, also known as Addie S. Stephan. The so called Lot 22 was conveyed by William B. Bangs et al to J. W. Stephan et ux by deed dated September 3, 1912 and recorded with the Barnstable County Registry of Deeds [Note 1] in Book 341, Page 551. This conveyance covered so-called Lot 22 which bounded westerly by Hobson Avenue sixty feet, northerly by the other Stephan parcel forty-five feet, easterly by what is now the Vaughan land about sixty feet and southerly by high water mark. Subsequently Mr. Stephan conveyed Lot 22 to his wife by deed dated December 8, 1925 and duly recorded in Book 428, Page 52. Accretion has added a considerable amount of land on the opposite side of Garfield Avenue, which is not referred to in the description of Lot 22, but which is shown on the various plans of Mayflower Heights, to which reference hereafter will be made.

2. Mrs. Stephan, called Stephens in this conveyance, acquired from Nathaniel B. Fisk, Trustee so-called Lot 1 by deed dated August 19, 1907 and duly recorded in Book 341, Page 550. The description of this lot begins at Hobson Avenue and proceeds easterly by Bay View Avenue forty-five feet, then turns and runs southerly by land of Alice Day Heath (now Vaughan) sixty feet to land now or formerly of W. B. Bangs being the parcel hereinbefore described (i.e., Lot 22), then turns and runs westerly by land of Bangs forty-five feet to Hobson Avenue, and turns and runs northerly by Hobson Avenue sixty feet to the point of beginning. The starting point of the description in each of these two deeds is a point in Hobson Avenue and obviates the difficulties which Mr. Alves wrestled with in proceeding westerly from Dewey Avenue. The deed to the Vaughan predecessor in title similarly is tied into Hobson Avenue.

3. The premises now owned by Jean F. Bloch consist of the southerly part of Lot 1 and those owned by Gladys M. Pratt, the northerly portion together with in both cases a portion formerly part of Hobson Avenue acquired by adverse possession and in the case of Mrs. Mason, a former part of Bay View Avenue similarly acquired.

4. The Vaughan title commences with a deed from Nathaniel B. Fisk, Trustee to Alice Day Heath dated August 19, 1907 and duly recorded in Book 286, Page 395. This deed was delivered at approximately the same time as the deed to Mrs. Stephan, but the latter instrument was not recorded until approximately five years later. Nonetheless the description in the deed begins at a point on Bay View Avenue forty-five feet from Hobson Avenue and continues easterly approximately ninety feet to a post, then turns and runs southerly approximately 120 feet to a post, then turns westerly ninety feet to a point forty-five feet from Hobson Avenue and turns and runs northerly parallel to the street, 125 feet to the point of beginning. All the deeds herein mentioned refer to a 1905 plan by Tully Crosby which no one has been able to locate. Mr. Fisk subsequently gave a confirmatory deed to Florence Irene Regan dated August 25, 1914 and recorded in Book 332, Page 426 which conveys the same property but bounds by land of J. W. Stephens (sic Stephan) as its first course. Alice Day Heath and Alexander Heath then conveyed to Florence Irene Regan by deed dated August 27, 1914 and recorded in Book 335, Page 41 the same premises described in the Fisk to Regan deed and the Fisk to Heath deed.

5. Addie S. Stephan died on February 22, 1960, Suffolk Probate No. 406745 testate and left as her heirs at law and next of kin four daughters, Miriam S. Mason, Pauline S. Pratt, Elizabeth S. Taylor and Ruth S. Pennier. The interest in the Provincetown real estate was devised only to the first named three daughters. The will of Mrs. Stephan provided that she devised to her daughter Miriam S. Mason, "my cottage on Hobson Avenue, in Provincetown, on that lot shown as Lot No. 22 in Block I on a plan of East Harbor Beach together with said Lot 22." Mrs. Stephan also devised to her daughter Pauline S. Pratt, "the cottage on Hobson Avenue, aforesaid, on the southerly half of Lot No. 1 in Block I on said plan, together with the southerly half of said lot." Finally she conveyed to her daughter Elizabeth S. Taylor, "the cottage on Hobson Avenue, aforesaid, on the northerly half of Lot No. 1 in Block I on said plan, together with the northerly half of said lot." Finally she conveyed to the three daughters, "the accrued land on the east side of Hobson Avenue at East Harbor Beach, meaning and intending to devise all my interest in the land between the southerly line of said Lot 22 and any prolongation thereof and low water in Provincetown Harbor." I'll return to the present ownership of the accreted land later in these findings.

6. Reverend Stephan, the father of one of our witnesses; Miriam Stephan Mason, who is now ninety years old and grandfather of her son Robert Stephen Mason, another witness at the trial a Methodist minister, had acquired the three cottages which now abut on Hobson Avenue from a camp ground in the western part of the state and transported them by train to their present location about 1907. Presumably he had no expert assistance in locating the property on the ground on which the cottages were to be placed since the present Pratt cottage is not on the northerly half of Lot 1 but indeed within the limits of Bay View Avenue, as well as encroaching on Hobson Avenue. The Bloch cottage appears to be situated within the correct lot, but it too encroaches on Hobson Avenue. The Mason cottage alone appears to have no location problem. Reverend Stephan also acquired [Note 2] the cottage which is now called "Seaward" and transported it to Provincetown; it is located on the Vaughan property known as Lot I-21. Donald Vaughan acquired the most northerly of the three Vaughan cottages from the government and moved it to his land about 1946. It is called "Buoy". The property shown on Lot 2 on the file plan in Case No. 42403, the cottage being called "Beach Bum", was constructed by David Vaughan in 1974-1975. This was less than twenty years before the Mason registration case was filed.

7. From the construction of the Stephan properties in 1907 or 1908 until 1974 or 1975 when Mr. Donald Vaughan erected a high fence inches from the cottages on what is now claimed by the Pratt, Bloch and Mason interests, the area between Hobson Avenue and westward into the layout thereof, eastward to a point a few feet from the Vaughan cottages and northerly into a part of Bay View Avenue was used by the members of the Stephan family. There were three clothesline posts situated on the area in dispute upon which posts there then rested a cross piece long enough to carry four clotheslines. These lines were used for laundry and wet bathing suits only by the owners of the Stephan properties. About 1972 or 1973 a third party who owned none of the properties here in question but had cottages on the opposite side of Bay View Avenue kept the mother of David Vaughan from hanging clothes on the clothesline here in question. This apparently was what led her husband, David Vaughan's father Donald, to have his properties surveyed and is the root of the difficulty between the parties in question. The incident also coincided with the Vaughans being in funds from the sale of another cottage, the building of Beach Bum and their wish for a survey. From the time the westerly tier of cottages was put in place they were used over the years during the summer season by Reverend and Mrs. Stephan, the three daughters, their families, friends and tenants. The Bloch cottage was previously owned by a Stephan daughter, Pauline Pratt, and the present plaintiff, Gladys M. Pratt, is the widow of Pauline's former husband. Jean Bloch is the only non-Stephan family member or in-law represented by the Hobson Avenue plaintiffs. The family members, their guests and any tenants of the Stephan cottages used the clothesline for a period of well over sixty years. In addition family gatherings were held throughout the open space not occupied by the cottages, it being apparent from the exhibits that all the buildings here are very close, one to the other. There were family cookouts. There were lounge chairs and sunbathing, children's games and the like throughout the area both between the so-called Stephan houses and the Vaughan properties and between the north and south locations of the various Stephan houses and the portions of the two streets. Gladys Pratt also built an addition at the rear of her home to constitute a shed in which showers and the like might be taken rather than continuing the practice of using an outdoor faucet. The owners of these three cottages went to the beach down Hobson Avenue whereas the Vaughans proceeded from the opposite side of their home to reach the water. Generally speaking the Vaughans also carried their rubbish out from the side of their homes farthest from the Stephan interest since none of the Vaughan cottages had a back door on the Hobson Avenue side.

8. Over the years the owners of the Bloch and Pratt houses planted gardens or trees in their front yards and constructed a fence adjacent to Hobson Avenue. Mr. Pratt also put a fence on the Bay View Avenue side. All of these activities have continued over a long period of time and are sufficient as against parties having a right to use Hobson Avenue to constitute adverse possession. As far as the sidewalk, however, which apparently has been in place for as long as any of the witnesses could remember is concerned, that would appear to be a natural part of the street, and I do not carry the line of ownership any farther west than to abut on the easterly line of the sidewalk.

9. The Vaughans had always gone northerly to Route 6A or Bay View Avenue and southerly to the beach from the east side of their cottages and had not crossed the land claimed by the Stephan successors. It is true that David Vaughan as a child had engaged in childish games on the area between the cottages, that the gas man who serviced Gladys Pratt's cottage may have continued southerly to make his deliveries to the Vaughans over the Stephan loci and that occasionally David took the trash out to the highway through the back of his family's cottages. It is significant, however, that these cottages had no back doors, that they did not provide any convenient exit to the area in dispute and that the area in question from 1908 until the unfortunate happenings in the 70's were used by the minister's descendants and those claiming under them and not by the Vaughan interests.

10. The cottage devised to Elizabeth S. Taylor was not, of course, located on the designated lot but within Bay View Avenue. However, it is clear that it was the intention of the testatrix to devise this cottage to her daughter and title thereto has passed to Gladys Pratt. The Pratt ownership encompasses not only the lot devised to her but the land within Bay View Avenue. As between the Pratt and Bloch interests, there have been conveyances to establish the boundary lines, and.stipulations have been entered into which will be recognized in the decree.

11. After Mrs. Pratt and her husband bought the cottage from Mrs. Taylor in 1964, they erected a shed at the rear of the cottage; otherwise, the three cottages are basically as they were when put in place in 1907. Mrs. Pratt first came to Provincetown in 1927. Between that time and her 1964 purchase she had visited at least twenty-five times. After the purchase of the property a fence was erected on the north side and on the west side two trees were planted and a fence erected to protect the property from boats being transported either to the ocean or over Bay View Avenue. Her husband and Donald Vaughan were close friends. After her husband died in 1973 she did not come to Provincetown that summer. She and Mr. Vaughan, Sr. spoke of him in 1974 when for the first time Mr. Vaughan made a claim to ownership of the disputed fifteen feet. Mrs. Pratt denied this claim, but during the winter when she had left Cape Cod, Donald Vaughan caused a fence to be erected which blocked the rear entrance to the Pratt cottage and encompassed the clothesline which was no longer accessible to the families in the west.

12. In all the years from 1907 until 1975 neither the Vaughans nor their predecessors in title had ever made any claim to the area in question. The vacant land between the cottages had been used by the Stephan interests, and the record is replete with photographs showing the various family members enjoying cookouts, lounging in the sun and participating in various summer sports activities in the disputed area. The clothesline which was maintained for nearly three quarters of a century in the disputed location is convincing evidence of a claim by adverse possession if indeed there were flaws in the record title.

13. After Mr. Vaughan apparently became incensed at the rebuff by a third party with no authority to his wife over the matter of hanging clothes on the clothesline, he engaged Francis Alves, a well known Provincetown surveyor, to survey the property. At the time Mr. Alves deposition was taken, he was nearly 83 years old, and the deposition was introduced at the trial rather than having Mr. Alves testify. A surveyor who prepared the registration plan for Vaughan, William S. Rogers, did testify. The Exhibit 33-1 which is a working plan prepared by Mr. Alves shows the source of the difficulty. He has moved the westerly sideline of Dewey Avenue fifteen feet westerly between Bay View Avenue and Garfield Street from the westerly sideline of Dewey Avenue between Bay View Avenue and Route 6A. Originally the lots in the I block where the dispute is centered originally lined up with similarly numbered lots in Block H to the north. Alves realigned them on paper so the lots in Block I were shifted fifteen feet to the west. There have been over the years at least five versions of plans recorded in the Registry of the land on the oceanside of Route 6A running from the Truro town line westerly called on the plans either Highland Park or East Harbor Beach. This was in addition to the Tully Crosby plan referred to in the deeds out to the predecessors in title of the parties hereto which has never been located. The plan in question include the following:

a) A plan entitled "Plan of Highlands Park 'formerly Bangsville' Provincetown, Mass." surveyed 1899 by C. Ames King and recorded in Plan Book 9, Page 79 (Exhibit No. 33-4); which also includes a sketch of five cottages, perhaps the very structures referred to in this decision and entitled "view of the beach from Mayflower Heights";

b) A second version of or recording of the same plan in Plan Book 63, Page 57 (Exhibit No. 33-3):

In the 1899 plan Block H and Block I which extended from Hobson Avenue to Dewey Avenue each included two tiers of eleven lots, the most easterly of the lots in the two blocks abutted Dewey Avenue and bore the numbers 11 and 12.

c) Another version of the plan was recorded in Plan Book 3, Page 83 entitled "East Harbor Beach Provincetown, Mass. owned by H. F. Williamson" redrawn June 15 by Steele Brothers which showed only a tier of seven lots between Hobson Avenue and an unnamed street (Exhibit No. 33-5). The seven lots each had a width of forty-five feet. There was a narrow rectangle between the most easterly Lots 7 and 16 in each block and the unnamed street. These rectangles represented fifteen feet which does not in fact exist on the ground.

d) The next version is entitled "Revised Plan of East Harbor Beach Provincetown, Mass. formerly owned by H. F. Williamson" redrawn June 25 by Steele Brothers with a note redrawn July 1933 by John R. Dyer (Exhibit No. 55). The Dyer version shows a tier of eight lots between Hobson Avenue and Dewey Avenue, Dewey Avenue appearing to be thirty feet wide on the plan and located westerly of where it appeared on the earlier version by Steele Brothers. Each of the lots between Hobson Avenue and Dewey Avenue had a width of forty-five feet with a total distance therefore of 360 feet from the westerly line of Dewey Avenue to the easterly line of Hobson Avenue. That is true both in Block H and Block I which line up in this version of the plan.

e) A fifth version of the plan redrawn by Mr. Dyer both in July 1933 and October 1940 which shows no changes in the area now before the Court.

14. There is a deed from Lawrence F. Buell to Arthur W. Partch et al dated October 1, 1940 and recorded in Book 571, Page 388 in which there appears this recital:

The location of the Dewey Avenue above referred to is shown in the handwriting of Nathaniel B. Fisk on a plan of Highland Park, Book 63, Page 57. It is one hundred and eighty (180) feet west of the location of the former Dewey Avenue shown in printed letters on the same plan aforesaid. [Exhibit No. 33-2.]

15. When Mr. Alves interpreted the plans and language of the deed for the relocation of Dewey Avenue, he gave Dewey Avenue in Block I between Bay View Avenue and Garfield Street a width of forty-five feet rather than the thirty feet which appears on all the plans as the width between Bay View Avenue and the state highway and to which the other subdivision streets scale. He took this position in part because the way, substituted for lots which formerly had a width of forty-five feet and also to avoid encroachments by the buildings then erected on the various lots (see Exhibit No. 31). To do this, however, the easterly line of Hobson Avenue was pushed fifteen feet westerly of where it belongs, and the line between the Stephan interests and those of Vaughan similarly were moved fifteen feet to the west from where the parties previously had placed it and where the lines of occupation for nearly seventy-five years had existed.

16. When William S. Rogers studied Mr. Alves notes and interpreted all the boundaries in the neighborhood, he continued the error which Mr. Alves had made in moving the line of Dewey Avenue fifteen feet westerly from its proper location. At the time Dewey Avenue was relocated, all the lots between it and Hobson Avenue had been conveyed and the lot lines could not be changed without the consent of the parties thereto. It is doubtful also whether Dewey Avenue should have been relocated one hundred eighty feet to the west many years earlier once lots had been conveyed out with an implied, if not an express, right to use the subdivision streets, but the time is long past to rectify this action. While it might have been appropriate when Mr. Alves was working in the area to have the parties who owned in this block agree to revise lot lines or to bring Land Court complaints to register or confirm title to their Mayflower Heights lots, the record lot lines could not be shifted unilaterally or by the action of a surveyor rather than a court.

17. After the survey made for Mr. Donald Vaughan and the erection of the fence, Mr. David Vaughan built a cottage on the accreted land between Garfield Street and Provincetown Harbor. It is impossible in this proceeding to determine the proper lines of the accreted premises. The division is very similar to determining the division of flats and would affect ownership of parcels to the east and west. Accordingly I am severing and retaining Lot 2 in Case No. 42403 for later determination.

18. Robert S. Mason and Audrey M. Mason have record title to the premises shown as Lot 1 on their file plan together with the benefit of the stipulation with the other Stephan plaintiffs. However, Mr. Mason has only an undivided one-third interest in Lot 2 as shown on the file plan in Case No. 41714 which he acquired from his mother Miriam. His two aunts were also devised an undivided one-third interest each by his grandmother, and so far as appears of record, these interest are outstanding in other family members. In addition, he holds title in his name alone, and thus Lot 2 could not be registered in the same action as Lot 1. Accordingly I shall sever and dismiss Lot 2 in Case No. 41714 without prejudice.

The law applicable to the resolution of the dispute between the parties is not difficult to apply. The only difficulty in these cases is to make it clear what are the various title and possession claims by the parties and hopefully the findings that I have made do this. This case illustrates the vagaries of human nature or perhaps the differences between people as they grow older. Both Miriam Mason at 90 and Gladys Pratt at 84 at the time of the trial were crystal clear in their memory and in their positions. Mr. Donald Vaughan, on the other hand, who was the cause of the difficulty between neighbors after 67 years of congenial Provincetown living (at least so far as appears from the record) apparently became cantankerous as he grew older. In any event the Court cannot conceive of the erection of a fence in such a way as to block entrance to the neighbor's property, while the neighbor was absent during the off-season and where there had been no claim of ownership from the time the Vaughans acquired title in 1941 until 1974. There is no doubt in my mind that the problems stemmed from the desire by Francis Alves to reconcile to the extent possible the lines of occupation on the ground with title, but he was not in a position to change lot lines, fixed both by the record and by use of parties without their consent. From the earliest deeds out of what I am calling the Stephan interests in 1907, the lots were measured from the easterly line of Hobson Avenue which I find to be approximately thirty feet wide. The westerly sideline has been fixed in two previous Land Court cases, No. 14709 and 37209. The easterly line is approximately thirty feet distant therefrom and with a slightly different bearing so that it will be parallel with the easterly line of Dewey Avenue as fixed in Registration Case No. 40634 apart from the area thereof affected by the adverse possession claim therein.

The evidence was replete with instances of use over many years of the disputed fifteen feet. The fact that some of this was seasonal was immaterial in view of the nature of the property. There can be no question that there was open, uninterrupted, exclusive possession adverse to all the world of the fifteen feet in question. However, the record title also confirms the ownership by the Stephan interests of the disputed fifteen feet since the lots are all forty-five feet in width. To the west, of course, the owners have acquired an additional fifteen feet by adverse possession from what otherwise would be Hobson Avenue since the cottages on the Pratt and Bloch properties and the steps on the Mason lots encroach within Hobson Avenue and have done so presumably ever since they first were transported here by the Reverend Stephan. In any event none of the parties having the right to use Hobson Avenue have filed objections to the registration proceedings (other than the Vaughans).

The lines between the Mason and Vaughan properties are less clear than those between Pratt and Bloch on the one hand and Vaughan on the other. The Masons have never claimed to own up to what one might assume to be the property line, i.e., forty-five feet from the easterly line of Hobson Avenue, and since the Vaughan cottage is one of those brought by Reverend Stephan from the western part of the state and presumably has been located as shown on the Mason file plan since 1907, the line as shown on the Mason plan is as favorable to the Vaughan interest as they are entitled to expect.

A decree may be entered in each of the Stephan registration cases, i.e., Pratt, Bloch and Mason registering title to the properties claimed by them between the northerly line of the Pratt property and the southerly line of Lot 1 as shown on the Mason registration case subject to the stipulations entered into the parties and to such matters as may appear in the abstracts and are not in issue here, including the reservations in the earliest of deeds of rights to service of the properties from utilities on the loci (except as modified by the stipulations) and subject also to an easement, as appurtenant to the Vaughan property, to enter upon the easterly five feet of each of the plaintiffs' properties (other than the Masons) to the extent necessary for painting or repairing the Vaughan cottage known as Seaward. The Vaughan are to remove the fence within thirty days of the entry of this decision and are not to interfere with the use of the fifteen feet by the Stephan interests during the appeal period.

In Case No. 41714 there will be severed and dismissed so much of the complaint as relates to the premises south of the center line of Garfield Avenue.

In Case No. 42403 a decree is to be entered severing and retaining so much thereof as lies southerly of the center line of Garfield Avenue and registering title to the remaining land shown on the file plan other than the westerly line thereof which is to follow the line as shown on Case Nos. 41135, 41714 and 42098 subject to such matters as appear in the abstract and are not in issue here and with the benefit of the appurtenant easement set forth herein.

All parties filed extensive requests for findings of fact and rulings of law. Since I have made my own, I have not ruled expressly on those presented by counsel.

Judgment accordingly.


[Note 1] It is to this Registry of Deeds that all recording references herein refer.

[Note 2] He apparently bought a fifth cottage as well, which was placed somewhere to the east of the present loci.