REG 41845

September 11, 1991

Middlesex, ss.



The substituted plaintiffs, Bradford A. Nyhan and Paula E. Nyhan, seek to register their title to the premises on Dunstable Road in Westford in the County of Middlesex shown on a plan entitled "Plan of Land in Westford" by James W. Bougioukas dated May 1, 1985, revised August 1, 1985 (Exhibit No. 2A) pursuant to the provisions of G.L. c. 185, §l (a). The property in question appears to be an idyllic retreat from the world in its location on Long Sought For Pond, a great pond of the Commonwealth of Massachusetts. Problems arise, however, even in such a setting, and the dispute between the substituted plaintiffs' predecessors in title Joseph W. Morrill and Ellen Morrill and the abutters William J. Koziol and Mary S. Koziol as to the proper location of the boundary between their respective properties has led to this registration proceeding. The abutters to the southeast, Stanley J. Struzenski and Sophie Struzenski, are content with the boundary as depicted on the file plan and took no active part in the trial. Massachusetts Electric Company filed an appearance to see the decree, and the Commonwealth of Massachusetts also appeared and answered, but it has entered into a stipulation with the plaintiffs which will protect the rights of the public. The Town of Westford also answered and objected unless the property was bounded by the line of Dunstable Road which the decree will do. In the original appearance of an attorney for Mr. and Mrs. Koziol two other individuals also were named, but they did not file an answer. The answer by successor counsel for the abutters did not include the two individuals, and the Court rules that they have no standing in this proceeding for failure to answer.

A trial was held at the Land Court on April 22, 1991 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. They were twelve in number of which two consisted of multiple parts. Witnesses at the trial were Patrick Plunkett, the Land Court examiner who prepared the abstract of title (Exhibit No. 1) for the Court, James W. Bougioukas, formerly a registered land surveyor (but no longer) who prepared the registration plan, Joseph Morrill, Jr., a predecessor in title of the plaintiff, Bradford Nyhan, one of the substituted plaintiffs, and Richard J. Ludwig, a surveyor employed by the Struzenskis to locate the southeasterly boundary line of locus.

On all the evidence I find and rule as follows:

1. When the area in question was developed in 1947 by Leon R. Poock and Harry H. Kahn, Trustees, its early history revealed its ownership by the Methodist Church. After World War II a subdivision plan of a portion of the Church land was prepared by Frederick A. Ewell entitled "Plan of Lots East Side of Dunstable Road Westford, Mass." by Frederick A. Ewell and recorded with Middlesex North District Deeds (to which recording references herein refer) in Plan Book 71, Plan 34.

2. By deed dated August 20, 1947 and recorded in Book 1074, Page 535 Messrs. Poock and Kahn, Trustees as aforesaid, conveyed Lots 3 and 4 on the plan to Joseph W. Morrill and Ernestine L. Morrill. Mr. Morrill alone conveyed to the Lowell Electric Light Corp., now Massachusetts Electric Company, an easement for the maintenance of a pole on Lot 4 by instrument dated June 11, 1949 and recorded in Book 1116, Page 492. Exhibit No. 3 suggests that the pole may now be in a different location, but this was not an issue at the trial.

3. After the death of Mr. Morrill, his widow conveyed the premises to her son Joseph W. Morrill, Jr. and his then wife Alice B. Morrill by deed dated July 8, 1960 and recorded in Book 1481, Page 198. After the death of Alice B. Morrill, Joseph W. Morrill, Jr. conveyed the premises to himself and Ellen Morrill, his second wife, by deed dated December 29, 1982 and recorded in Book 2587, Page 291. Subsequently as noted above the premises were conveyed to the Nyhans.

4. During the refinancing of the mortgage on the locus the mortgagees' plot land showed the northwesterly line of Lot 3 between it and the Koziol property as running through the home on the locus, Lots 3 and 4 on the original subdivision plan of 1947 (Exhibit No. 3). The plan bore a legend to the effect that "if the deed distances are held, the house then encroaches on Lot No. 2." The old lot line was shown on the plan as being somewhat southwesterly of the shore of Long Sought For Pond and southeasterly of the northwesterly line of the premises, both as shown on Exhibit No. 3 and as shown on the file plan in these registration proceedings. A mortgage inspection plan dated August 21, 1985 did not bear this legend and only that portion of the old lot line close to Long Sought For Pond was shown. The latter plan did not show any encroachment but rather showed the line five feet from the nearest corner of the house.

5. Joseph W. Morrill, Sr. had moved an old army camp to the locus after the purchase of Lots 3 and 4, and the camp remained on the property during his lifetime. In 1948 Mr. Morrill planted 16 small pine trees along the boundary line between Lot 2 belonging to the Koziols or their predecessors in title and Lot 3 owned by him and his wife as well as on the boundary line between Lots 4 and 5, the latter now owned by the Struzenskis.

6. It is unclear when the Koziols purchased their property since their deed was not introduced into evidence, but it was after the conveyance to the Morrills. Mr. Morrill, Jr. testified that his father and Mr. Koziol had laid out the boundary line in the location where they believed it to be and that this was done with some difficulty since their property rose in altitude from the street to the midpoint of the sideline and then fell off to the great pond. The trees are located on that line. A stone retaining wall runs parallel to the shore and extends northerly into the Koziol property. The plaintiffs make no claim co-extensive with the length of the retaining wall.

7. The precise date that the pine trees were planted, November 28, 1948, appears in a diary kept by Mr. Morrill, Sr. He kept such a diary all his adult life until shortly before his death, and his son identified his writing and the authenticity of the diary which was admitted in evidence.

8. The trees are shown as they existed (at least prior to Hurricane Bob) on Exhibits Nos. 7, 10 and 11. They lie relatively in a straight line and indeed do appear to mark the boundary between the respective properties. Two of them have been damaged; Mr. Nyhan testified that he saw the Koziols attacking the trees with a machete or an ax, and I accept his testimony (see Exhibits Nos. 12A and 12B).

9. During the time frame when the Morrills hoped to reach a boundary line agreement with the Koziols prior to the institution of this litigation a plan was prepared which shows the location of the trees. The plan also shows the length of the boundary lines as given in the deed to the Morrills which is shorter on the northeasterly side adjacent to the pond and on the northwesterly side. The boundary agreement never came to fruition. The plan (Exhibit No. 4) serves a definite purpose, however, in making evident the occupation on the ground by the trees which run in a way that clearly mark a line. A comparison between Exhibit No. 2, the file plan, and Exhibit No. 4 shows that the common boundary line between the Koziols and the Nyhans is that which starts at the rock on Dunstable Road and runs through the trees to the pond.

10. In 1955 Joseph Morrill, Sr. died and Joseph Morrill, Jr., to whom his mother had conveyed the premises, attempted to dig a foundation for the Morrill camp which venture was unsuccessful, the camp falling into the cellar. The younger Morrill then built a regular house around the camp as it had been located by his father in the late 1950's. There also is on Lot 4 another structure which as a young man Mr. Morrill, Jr. put together.

11. From the late 1940's until some time early in Morrill, Jr.'s ownership the relationship between the Morrill and Koziol families was very close, and Sunday morning coffee usually was a ritual enjoyed together. When the line was fixed between the two properties it was done by Messrs. Koziol and Morrill since the rise in the lot made it difficult to set.

12. It was not until the problem arose with the mortgage survey and the Koziols were approached about a boundary line agreement that they claimed to own land southerly of the line of the pine trees.

The defendants question the validity of the Land Court plan since it varies from the first mortgage survey plan produced by the same engineer. I agree with the defendants that this discrepancy requires a careful examination of the work of the surveyor in an evaluation of his performance. The Court also is gravely concerned about his other legal difficulties. However, in this particular case it is very apparent from the evidence, both physical, the actual presence of the trees planted more than forty-three years ago as evidenced by a contemporary writing and testimony at the trial that the parties long ago settled on the line of pine trees as the common boundary line here in question. Whether this is viewed as the acquisition by adverse possession of the disputed area since it clearly had been occupied by the plaintiffs and their predecessors in title for well over forty years or whether it is viewed as an example of an agreement between abutters recognized by the law, Hathaway v. Evans, 108 Mass. 267 (1871), Gilmore v. Williams, 162 Mass. 351 (1894), is immaterial. The same result is reached. There is no doubt in my mind that this is a proper case to follow the line of occupation in fixing the boundaries for registration and I so find and rule.

The surveyor attempted to defend the discrepancy by testifying that the early plan had no bearings on the lines and that this has now been rectified. It is, of course, true that the plan was indefinite in this regard, but I am not persuaded that the lines with more attention to the situation on the ground could not have been fixed in the first plan as they now have been. Such mortgage survey plans are produced for little monetary return and without much thought. Discrepancies do occur. The occupation by the Morrill family for so many years of the area to the south of the pine trees acquiesced in by the Koziols gives title to the area to them, and their grantees accordingly have sufficient title for registration. On all the evidence therefore I find and rule that title may be registered in the substituted petitioners subject to matters set forth in the abstract and not in issue here.

Judgment accordingly.


[Note 1] The substituted plaintiffs are the grantees of the locus by deed from Joseph W. Morrill, Jr. et al dated August 26, 1985 and recorded with Middlesex North District Deeds Book 3153, Page 7 (Exhibit No. 9).