MARGARET ZINNO vs. MITCHELL GARABEDIAN [Note 1]

Mitchell Garabedian, a member of the bar of this Commonwealth, disputes the right of the plaintiff, Margaret Zinno, an employee of the Internal Revenue Service of the United States of America in North Andover, to register her title to a parcel of land in Methuen in the County of Essex pursuant to the provisions of G.L. c. 185. The plaintiff claims to have record title sufficient for registration to a 2.06 acre parcel of land situated at the end of Lindbergh Avenue as shown on a plan entitled "Plan of Land in Methuen, Mass." by Stowers Associates, Inc. dated October 1984 and numbered 41858-A by the Court (Exhibit No. 2). Since the commencement of this action a portion of the locus as shown on the plan has been conveyed to one Anastasios Kalogianis. The defendant claims that the plaintiff's chain of title is defective and that the land covered thereby is not located on the ground as claimed by the plaintiff. He claims also to own by record title and by adverse possession. The locus is physically an unusual site since it encompasses the remains of so-called "borrow pit" as terraced by a prior claimant to the defendant, and the title thereto is difficult to fathom. It apparently is its proximity to Rout 93 from which it is separated only by the land of the defendant Bracken Leasing Co., Inc. that makes this contest worthwhile. I conclude that the defendant has failed in his effort to establish his title by adverse possession, that his record title is to non-locus land and that the plaintiff is entitled to prevail. There have been earlier registration cases, one No. 37334 dismissed for lack of prosecution and the other No. 41789 which remains current. The Court has taken judicial notice of its records, that is, the abstract and plans in each of the prior cases, to assist in the placement of the properties.

A trial was held at the Land Court on November 29 and 30, 1990 at which a stenographer was appointed to record and transcribe the testimony. In all thirty-seven exhibits were introduced, some with multiple parts, together with an Exhibit No. 38 consisting of an attested copy of a handwritten schedule of tax payments for 102 Lindbergh Avenue from the office of the Methuen tax collector provided by the defendant at the Court's request. All such exhibits are incorporated herein for purposes of any appeal. Nine witnesses testified at the trial. The plaintiff called George A. Richardson, a registered land surveyor; Wayne L. Belair, a Land Court Title Examiner appointed by the Court to review and report on the records; and the plaintiff, who also testified as a rebuttal witness. The defendant called as witnesses Kevin P. Haggerty, the Methuen Community Development Director who also is keeper of the records for certain municipal boards; Joseph D'Angelo, former Assistant District Engineer for the Massachusetts Department of Public Works, now retired; John D. Jalbert, one of the defendant's "predecessors in title"; Edward Ramey, an abutting landowner; the defendant; and Martin Garabedian, the defendant's father. In addition Vincent Iacozzi appeared through a video deposition, the transcript and tape of which also are marked in evidence in lieu of live testimony, the witness being in poor health. The deposition of Paul C. Bracken also was admitted as an exhibit.

The defendants made a post-trial motion for the admission of evidence concerning the existence of two Nathaniel Marshes and their death in Haverhill in the same year. I denied the motion to reopen the case since the evidence was such that it could have been presented at trial. Moreover, on the decision which I have reached, the evidence is immaterial.

On all the evidence I find and rule as follows:

1. The earliest deed in the abstract of title prepared by Mr. Belair (Exhibit No. 1) is a deed from John L. Bodwell to Joseph Bodwell dated May 5, 1808 and duly recorded with Essex South District Registry of Deeds in Book 197, Page 22. The deed describes a parcel of land approximately 40 rods, i.e., 660 feet, by 20 rods, i.e., 330 feet. The grantee, Joseph Bodwell, subsequently conveyed the property to Nathaniel Marsh of Haverhill by deed dated March 23, 1812 and recorded in Book 197, Page 22 immediately following the recording of the prior deed. It is the identity of the grantee and the devolution of the title to the land of subsequent members of the Marsh family that give rise to difficulties in this case.

2. The plaintiff has prepared Chalk C which illustrates the placement by the Land Court Eaminer of the deeds in this area. The Bodwell deed appears thereon in relation to Parcel C, and the common boundary between the owners of adjacent parcels ties this locus into the location on the ground shown on the filed plan by comparing the description in the deeds in the back titles.

3. In the tax title deed to which reference is hereinafter made and in at least one of the conveyances in the plaintiff's chain of title the parcel of which locus is a portion is located on the shore of Mystic Pond, which was partly filled during the construction of Route 93, but this description was in error and the tax deed was amended in recent years to reflect the mistake and to eliminate the phrase. The description in the Bodwell deed makes no reference to Mystic Pond and its location on Chalk C is at the end of what is today the Mystic Heights Subdivision, an extensive subdivision situated northerly and northeasterly of locus, which does border Mystic Pond.

4. The plaintiff's title retrogresses after the deed to Nathaniel Marsh since it is difficult to locate the appropriate probate proceedings for members of the Marsh family and their descendants, and to identify correctly the members of the Marsh family. For instance, the abstract sets forth probate memoranda for various Marsh descendants, but it is uncertain which decedents are properly members of the Marsh family which in the early nineteenth century held title to locus. In addition, the proceedings are incomplete with either no inventories or inventories without reference to any Methuen holdings.

5. The Town of Methuen took for the nonpayment of real estate taxes for the years 1918 and 1919 a five acre parcel of land from one "Julia Marsh (Atkinson)" and Edward J. Feeney and John McFarlane (also spelled McFarland) purchased the property at public auction. The tax papers described the premises as "Lot of land consisting of about five acres known as Mystic lot bordering on Mystic Pond, off Pelham Street", and the parcel was conveyed by deed dated July 16, 1920 and recorded in Book 429, Page 91 with the Essex North District Registry of Deeds, to which registry the recording references hereinafter refer. The tax title was never foreclosed. A corrective deed was later executed by the Town in 1982 and recorded in Book 1580, Page 88 which deleted from the description of the granted premises the reference to "bordering on Mystic Pond". The Mystic Heights Subdivision dated September 1932 and recorded on February 20, 1967 in Book 1077, Page 212 (Chalk K) shows the location of Lindbergh Avenue and other parcels in relation to Mystic Pond from which locus is distant.

6. The grantees in the tax deed, Messrs. Feeney and McFarlane, subsequently obtained a deed of the equity from Mary T. Marsh, as executrix for Julia Marsh by instrument dated May 24, 1921 and recorded in Book 440, Page 273. The conveyance described the premises as follows:

Mystic Lot, consisting of about five acres of land bordering on Mystic Pond, off Pelham Street, said lot is bounded and described as follows:

Northerly by land of Varnum Corless [Note 2] heirs, now or formerly;

Easterly by land of one Lyons, now or formerly;

Westerly by land of one Dow, nor or formerly; and

Southerly by land of one Dow, now or formerly.

This description ties in with other deeds in the area so far as abutting owners are concerned and with the help of Chalk C can be placed in the approximate location of locus.

7. There is no definitive evidence as to the estate of which Mary T. Marsh was executrix and if it were a foreign probate, there appears to be no Massachusetts ancillary proceedings. Moreover, the will of the decedent Julia Marsh is not before the Court, and it is unclear how she fits into the Marsh family and the extent of her ownership. Presumably Mary T. Marsh had an interest of her own apart from the fiduciary interest which may have been conveyed by this deed, but this is speculative.

8. The locus or rather the larger area of which it is a part called the "Mystic Lot" for purposes of convenience was conveyed by Feeney and McFarlane to Mary Sparrow by deed dated September 11, 1923 and recorded in Book 486, Page 423. The description in this deed follows that in the deed of the equity from Mary T. Marsh to the grantors. Subsequently in 1939 the Town of Methuen once again took the parcel for nonpayment of taxes for the year 1937. The tax taking was recorded in 1939 in Book 624, Page 420 (Exhibit No. 4, Exhibit No. 1, Sheets 27 and 28). At this time, however, the right of redemption pursuant to this low value tax taking was foreclosed with the Methuen Town Treasurer conveying the "Mystic Lot" to Elias Rizkallah by deed dated May 19, 1946 and recorded in Book 651, Page 571. The affidavit of the commissioner of corporations and taxation was recorded prior thereto in Book 650, Page 245. The grantee in this deed was the plaintiff's father, and he subsequently conveyed the premises to her by deed dated May 22, 1969 and recorded in Book 1131, Page 107 (Exhibit No. 1, Sheet 30).

9. The plaintiff has subsequently conveyed to Bracken Leasing Co. two parcels of land which had already been conveyed to Bracken by Vincent H. Iacozzi and Shirley M. Iacozzi. These are identified as Lots A and 1 as shown on a plan recorded as Plan No. 6644, a plan entitled "Subdivision Plan of Land in Methuen Industrial Park" drawn by V.R.S. Engineering Company (Exhibit No. 18), the so-called Iacozzi subdivision plan, but identified in the deed as Lot 1 of Plan No. 6592 which was not introduced into evidence. The deed from the plaintiff to Bracken conveyed the same properties together with an easement in Lindbergh Avenue. The plaintiff also has conveyed to Anastasios Kalogianis Lot 7 on the Iacozzi subdivision plan.

10. The total conveyances out by the plaintiff equal 6.41 acres and accordingly this area, plus the 2.06 acres of locus (less so much thereof as has been conveyed to Kalogianis), total more than the original five acres of the Mystic Lot.

11. Bracken has filed a complaint to register his title to the land adjoining Route 93 in Registration Case No. 41789 and this case is still pending. There also was a complaint filed by Joseph S. Durso at al in Registration Case No. 37334, dismissed by the Court for lack of prosecution.

12. The plaintiff provided extensive tax records showing assessments as far back as 1919 and 1920 to the present. By the record, it appears that the Town of Methuen has consistently assessed taxes against both the plaintiff and defendant, as well as their respective predecessors. Margaret Zinno has been assessed for Map 141, Block 131, Lot 126E (Exhibit No. 17), also sometimes referred to on the tax bill as "Mystic Lot"; she produced assessments for 5 acres of the so-called Mystic Lot for the following years:

1970 - Mystic Lot; Book 1131, Page 107; Map 18, Lot 02110

1971 - Mystic Lot; Book 1131, Page 107; Map 18, Lot 02110

1972 - (several lots, note: Book 1181, Page 107)

1973 - (Town did not assess Zinno this year)

1974 - (same as 1973; after which Zinno approached Town authorities and was reinstated on the roles)

1975 - (hand written "-Zinno, Margaret J., Mystic Lot, 5ac (put back into assessment")

1976 - Mystic Lot; Book 1131, Page 107; Map 416, Lot 131, Plot 126E

1977 - Mystic Lot; Book 1131, Page 107; Map 416, Lot 131, Plot 126E.

1978 - (no reference to Mystic Lot); Book 1131, Page 107; Map 131, Parcel 126E; "subdiv 416"

1979 - same

1980 - same

1981 - same

1982 - same (416 reference is difficult to read and cannot be verified)

1983 - same (416 reference is difficult to read and cannot be verified)

1984 - Mystic Lot; Book 1131, Page 107; Map 414, Lot 131, Plot 126E

1985 - Mystic Lot; Book 1131, Page 107; Map 414, Lot 131, Plot 126E

1986 - Mystic Lot; Book 1131, Page 107; Map 131, Parcel 126E; (414 reference is difficult to read and cannot be verified)

1987 - Mystic Lot; Book 1131, Page 107; Lot 414, Map 131, Parcel 126E;

1988 - (no reference to Mystic Lot); Book 1131, Page 107; Map 131, Parcel 126E; (414 reference is difficult to read and cannot be verified)

1989 - (no reference to Mystic Lot); Book 1131, Page 107; Map 131, Parcel 126E; (414 reference is difficult to read and cannot be verified)

* NOTE : Exhibit No. 22 is an assessors card placing the parcel on Lindbergh Avenue; printed 11/20/89.

The plaintiff's immediate predecessor, Elias Rizkallah, was assessed from 1949 to 1969 for 5 acres of the "Mystic Lot" so-called, save 1962. From 1962 to 1969 reference Number 1802110 was used (the numbers are the same, albeit differently configured on the 1970, 1971 assessments above). The tax records (Exhibit No. 15) do show Julia Marsh and Julia Marsh (Atkinson) assessed in 1919 and 1920 respectively for the five acre Mystic Lot. Records older than that also indicate assessments to those claimed to be in the plaintiff's chain, but it frequently is difficult, if not impossible, to ascertain what is being assessed. As a result, the earlier records are of little value. Finally, Exhibit No. 16 contains the tax bills for land identified as being at Map 131, Parcel 126E, Book 1131, Page 107 for the years 1982, 1984, 1985, 1986, 1987, 1988 and make reference to Lindbergh Ave., 1989 refers only to "Lindbergh Ave.", and 1990 has the reference "0 Lindbergh Ave.".

13. In 1989, the plaintiff initiated correspondence between herself, the Town of Methuen and the Commonwealth regarding a tax abatement for land lying westerly of Interstate 93, comprising approximately five acres. She relinquished all claims of ownership to it, but she expressly disclaimed its application to land on the easterly side of Interstate 93 which she claimed to be represented by the deed recorded at Book 1131, Page 107 (the deed from her father). Lot 126E is shown on the westerly side of Route 93 (see Exhibit No. 17), but the date of the assessors' plan is unknown. The Town represented to the Commonwealth in forwarding the plaintiff's request that upon investigation the Town found the land did not exist on the westerly side, it had been erroneously included in a subdivision there and properly was in a subdivision on the easterly side of the highway. The Commonwealth allowed the requested abatement (see Exhibit Nos. 19A, 19B and 19C).

14. The defendant also offered tax records. Exhibit No. 38 purports to set forth the record of owners assessed by the Town. Title begins in 1964. Assessments for 102 Lindbergh Avenue are as follows (note the change in acreage but all still assessed as being numbered 102 Lindbergh):

1964 - Francis c.Rogers, 19ac

1965 - 1970 - Joseph S. Durso, 19ac

1971 - Joseph & Anthony Durso, 19ac

1972 - Vincent & Shirley Iacozzi, 19ac

1973 - 1981 - John D. & Sylvia Jalbert, 1.18ac

1982 - 1985 - Cleto Arroyo 1.18ac

1986 - 1990 - Mitchell Garabedian, 1.18ac

In addition, separate tax bills were offered as Exhibit Nos. 20 and 32 showing tax assessments to Cleto J. Arroyo for 1985 and 1986, and the defendant for 1988, 1990 and 1991. These individual assessments identify the parcel as 102 Lindbergh Avenue, Map 514, Block 147, Lot 110F.

15. The defendant claims his record title to be based on the chain which appears in the abstract filed in Registration Case No. 37334 by Joseph S. Durso. The parcels comprising Lot 1 as shown on Sheet 4 of that abstract derived from the so-called Osgood Lot (i.e., Lots A and B, and later Lot F, shown thereon) which ultimately were owned by Christopher and Joseph Howe and are situated westerly from the plaintiff's property as placed on Chalk C. The Howe title devolved to Francis C. Rogers and from him to Joseph S. Durso by deeds dated July 22, 1965 and recorded in Book 1039, Page 82, and August 30, 1966 and recorded in Book 1071, Page 54. The abstract in the earlier registration case does not "include the premises conveyed to Christopher and Joseph Howe by deed dated February 15, 1828 and recorded in Book 282, Page 79 (Exhibit No. 5, and shown as Lot F on Chalk C) but this deed would explain the increase of the Osgood Lot in size to 19 acres. Exhibit No. 21 also contains deeds in the Garabedian chain of title with a summary of the conveyancing history.

16. The crucial part of the Garabedian title chain, the earlier of the two deeds from Rogers to Durso dated l965 is very difficult to place because the description is tied into the taking plan for Route 93 which was not introduced into evidence. The second deed from Rogers to Durso dated 1966, describes the following parcel supposedly on the easterly side of Route 93 as follows:

all the land in Methuen, in said County of Essex, and Commonwealth and especially to land on the Easterly side of Route #93 and being opposite the land previously conveyed by me to said Durso which was bisected by Route #93 and which deed is dated July 20, 1965 and duly recorded in Essex North District Registry of Deeds on July 22, 1965.

According to the abstract in Registration Case No. 37334 the only lots conveyed by Rogers to Durso were originally of Christopher and Joseph Howe. Joseph Durso subsequently conveyed to Vincent H. Iacozzi et al by deed dated December 31, 1971 and recorded in Book 1186, Page 87 two parcels of land, the title references to which were the second Rogers deed and a deed in Book 1144, Page 499 which covered Lot F on Chalk C and thus was non-locus.

17. Exhibit No. 21 as well as the Abstract sets forth the chain of title on which the defendant relies. The deeds relate properly, one to the other, but the early title on which they are based is not locus.

18. The locus was part of what is known as the "Martin DeMatteo Pit Number 2" which was named for the contractor constructing this portion of I-93. The Commonwealth had a list of so-called "borrow pits" which imply that fill was borrowed from the landowner, an interesting historical phrase. Customarily the borrow pit was named for the owner of the land, and the description of the contractor instead suggests that the owner was unknown. The very impressive witness, retired Assistant District Engineer D'Angelo, prepared a plan which located the borrow pit in question. It encompassed portions of the locus as well as adjacent land. Since it covered over 1,300 feet of pit area (Exhibit No. 26), approximately 221,000 cubic yards of fill was removed from the pit of which 31,500 was removed from the locus considering it is a 2.06 acre parcel during the period from 1959 to 1961. Apparently since 1961 approximately 23,000 additional cubic yards of fill have been removed, some of which may have been used to fill the property now owned by Bracken Leasing. The possessory interest in locus ended about 1961, however, and did not commence again until 1972.

19. In 1972 John and Sylvia Jalbert purchased Lot 8 as shown on the Iacozzi subdivision plan, for the purpose of building a construction garage. At the time, the lot was a large hill, and prior to their purchase of the lot, the land sloped across Lindbergh Avenue rendering the way impassable. Mr. Paul C. Bracken of Bracken Leasing Company, Inc., a truck dealership, was purchasing Lot A, abutting Lot 8 at Lindbergh Avenue, and before his building could be occupied, Iacozzi was required to construct the road providing access, sewer, water, utilities, drainage and the like. Approximately twenty-five feet of the sixty foot layout was constructed, but only to the southerly end of Lot 8 as shown on the Iacozzi plan.

20. Jalbert, who had a history of working with Iacozzi in the home construction business, contracted with Iacozzi to remove the fill from the road, Lots 7 and 8, for Lot A, and built the foundation for the Bracken building; Iacozzi testified in his deposition that materials from Lot 8 were also used in his construction business. Thereafter Jalbert purchased Lot 8 and over the course of four to five years terraced and reshaped the lot to accommodate a building at the top and provide access to the proposed construction site. The building was never constructed. During the period of his ownership a small amount of fill was taken from Lot 8 for use elsewhere in the subdivision, as well as from other lots in the subdivision. As to vegetation on the lot Mr. Jalbert testified that there are young trees, about three to four inches in diameter.

21. The defendant's immediate predecessor was one Cleto J. Arroyo who may have used some of locus for storage purposes.

22. The principal of Bracken Leasing testified in his deposition that he purchased Lots A and 1, which are non-locus, from the Iacozzis in 1972. Since then he stated, and I accept his testimony, absolutely nothing has been done to Lot 8, the boundary lines of which are substantially the same as our present locus. He did additionally testify that soil and gravel were eroding from Lot A with the result that the already poor condition of this portion of Lindbergh Avenue continued to worsen. As noted above a predecessor of the defendant, the witness Jalbert, terraced and reshaped the lot with the ultimate objective of erecting a building on the top of it, but this objective has never been accomplished.

The record title to the locus is far from clear; the possessory rights were more sharply defined in the testimony but do not meet the stringent requirements of the law in this Commonwealth. A study of the abstract introduced in this case as well as in the two earlier proceedings, all of which are records of this Court of which I take judicial notice and the assistance afforded by the numerous chalks presented by the parties, establish that the record title to locus is based on Lot C on Chalk C. Its devolution to the plaintiff is, as pointed out by the defendant, far from perfect, but that, of course, is the reason for registration proceedings. If the title were without flaw, Chapter 185 would not be required. In my opinion whatever infirmities there may be in the earlier title deriving from the Marsh family, such title was sufficient to support the tax taking from Mary Sparrow whom the assessors were entitled to accept as the owner of record. Moreover, the plaintiff has the benefit of G.L. c. 60, §80C. [Note 3] See Sheriff's Meadow Foundation. Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 (1987).

The record title devolves from the foreclosure of the low value tax taking through the plaintiff's father to her, and I find and rule that it is sufficient to give her a title suitable for registration pursuant to the provisions of G.L. c. 185 unless the defendant shows a superior title of record or the acquisition by adverse possession of the land claim by the plaintiff. The defendant has done neither. As outlined in my findings, the defendant's record title does not encompass the parcel from which the plaintiff's title flows. Neither is he helped by the doctrine of adverse possession since there was not twenty years of uninterrupted use of the locus prior to the filing of the present registration petition which cut off the running of the adverse possession clock. There was strong evidence of adverse possession for the two years from 1959 to 1961 [Note 4] and again commencing about 1972, but there was no period of uninterrupted use sufficient to establish title in the defendant. The lapse between 1961 and 1972 interrupted the continuity of the possession of the defendant's predecessors. Mendonca v. Cities Service Oil Co., 354 Mass. 323 , 326 (1968). Accordingly I find and rule that a decree may be entered registering the plaintiff's title to the locus as shown on the filed plan less so much thereof as was conveyed by the plaintiff to Anastasios Kalogianis by deed dated March 19, 1987 and recorded in Book 2458, Page 314 and such other matters as are shown by the abstract and not in issue here. The plaintiff's plan must be updated and amended to reflect the conveyance immediately above referred to.

Judgment accordingly.