RICHARD D. DONOVEN and CAROL SULLIVAN, TRUSTEES OF D & S REALTY TRUST vs. ELANOR THANOS, TRUSTEE OF PINE REALTY TRUST.

On May 7, 1987 Plaintiffs filed a petition seeking to register title pursuant to the provisions of G.L. c. 185, §1 to a certain parcel of land located on the westerly side of Pine Street in Raynham ("locus"). Locus is shown on a plan entitled "Land Owned by D & S Realty Assoc. in Raynham, Massachusetts" filed with the Court as Land Court Plan No. 42089, also Exhibit No. 1 ("Plan" or "Exhibit No. 1") and is sometimes referred to as the Huldah Hall farm.

Defendant claims to be the owner of the land northerly of and a portion of locus, Defendant's land being sometimes referred to as the Job Hall farm. The question in this proceeding is the actual location of the northerly boundary of locus. Plaintiffs claim it is as shown on the Plan; Defendant claims it is between points B and 8 on the Plan or as is also shown on a plan by H. K. Holmgren & Associates (Exhibit No. 18). The land between the northerly boundary on the Plan and the line connecting points 8 and B thereon is referred to herein as "disputed area."

The case was tried as to this issue on October 30, 1989 and July 9, 1990. Seven witnesses testified and twenty-two exhibits were admitted into evidence. The exhibits are incorporated herein for the purpose of any appeal. Following the hearing the Court viewed locus in the presence of counsel.

Upon consideration of the foregoing I find as follows:

1. On March 15, 1988 the Land Court Examiner filed his report and opinion in which he stated, "In my opinion, the petitioners do not have a good title as alleged, and proper for registration." On December 7, 1990 he filed a supplementary report (Exhibit No. 17) in which he indicated he had located the heirs of Nathan Williams, which discovery presumably caused a change in opinion inasmuch as at trial he testified that Plaintiffs own all 27 acres "in fee simple."

2. The supplementary report further highlights a basic problem in this matter viz:

The 1801 probate inventory of the estate of Edmund Hall shows a homestead comprising about 60 acres; . . . Likewise, the early deeds and probates covering the land to the north of locus have descriptions by bounding parties, without the dimensions which would give precise location to boundary lines.

3. The disputed portion of locus appears to be heavily wooded and in a wild state; exceptions are several wood roads and a cemetery which shows little, if any, care for at least the past twenty or thirty years. The cemetery is traversed by a somewhat overgrown, although readily definable path running generally in a north-south direction. The existence of stone walls would indicate that at one time the area was cleared. The land northerly of locus, the Job Hall farm, is cleared for the most part. This clearing, however, does not extend to the boundaries, there being a wooded belt about two to three hundred feet deep along Pine Street to the east and in varying depths along the northerly border of the disputed area. The cemetery and adjacent land in all directions are as stated in a wild state except for the pathway.

4. It appears that a large tract including both the Huldah and Job Hall farms and, of course, the disputed area, was at one time owned by James Hall who died in 1735. Plaintiffs' claim of title comes through James' son Edmund (d. 1801) while Defendant's claim comes through his son David (d. 1778). [Note 1]

5. Plaintiffs allege and the examiner agrees that locus passed from Edmund upon his death to his daughter Huldah.

6. Huldah died in 1834, her will devised "to Asa Hall all my homestead farm, where I now live. . . ." The inventory described the farm as ". . . containing by estimation Sixty Acres. . . ." Asa was Huldah's first cousin, the son of her uncle James (d. 1799).

7. In 1835 by deed recorded in Book 150, Page 105 Asa conveyed to Nathan Williams "the same farm that was given me by will of Huldah Hall . . . bounded . . . Northerly by the farm of Job Hall . . . and contains fifty acres be the same more or less. . . ." I note that Exhibit No. 18, which shows Defendant's claim to the southerly bound of disputed area, also shows the Huldah Hall farm to contain 50.4 acres, while under Plaintiffs' allegation it would contain about 58.6 acres.

8. With the resolution of the Williams estate and except for the matter at hand, the title subsequently passes to Plaintiffs.

9. Defendant's title is derived from Job Hall (d. 1839), a son of Nathan (d. 1808), and nephew of aforesaid David, who left Job "my whole estate." Presumably this could have been the homestead of David's father James (d.1735) inasmuch as David never married and in the custom of the time "remained on the farm." There is no evidence of what, if anything, Job received from his father.

10. By deed dated 1839 Job conveyed to his son Job, Jr. ". . . all of my homestead farm . . . excepting two lots . . . the farm conveyed by this deed is supposed to contain eighty-seven acres by the same more or less." This deed was not recorded until 1886, Book 445, Page 204.

11. In 1886 Job, Jr. conveyed the above property to his son Charles O. Hall, Book 444, Page 230, with warranty covenants.

12. Later in that year Charles conveyed the property to John D. Spinney, Book 446, Page 240. This deed excepts ". . . a quarter of an acre which has been used for burying ground and a right of way to and from the same." The southern boundary is described as "by the heirs of Perez Hall." The Perez Hall heirs owned the land westerly of locus.

13. Thereafter, with certain exceptions, title to the Job Hall farm appears to pass to the Defendant.

14. A "family" cemetery occupies about a quarter of an acre, approximately 2/3 of which is on the Defendant's land (Job Hall), the remainder being on the disputed land. While the northern portion in general contains graves of the families of Macy and Nathan Hall, and the southern portion contains graves of the Edmund and James Hall families, there are sufficient exceptions to indicate that by the time of the Hall-Williams conveyance in 1835, Asa Hall may well have considered it to be one cemetery.

As noted by the Land Court Examiner the boundaries in this area are somewhat indefinite, to say the least. Moreover, this is not an area where there are clearly defined lines of occupation or monumentation other than Pine Street. While a stone wall appears to mark the southern boundary between Defendant's land and the parcel westerly of Locus (formerly Perez Hall), and an extension of the line of this wall is relied upon by Plaintiffs for their northerly boundary, stone walls are not always property lines - several examples of obviously "non-boundary walls" appear on Exhibit No. 18 and for reasons below stated, I cannot determine this wall to be a present boundary of Plaintiffs'/Defendant's land.

In an attempt to determine this boundary, I have considered, in addition to the limited physical evidence, the only available albeit limited evidence bearing on Asa's intent in the 1835 conveyance to Williams.

As noted above Plaintiffs establish their northern boundary by following a wall that appears to be in part at least a boundary wall to its present easterly terminus, then extending the line of wall in generally the same direction, to Pine Street, where it intersects a "stone bound." This line divides the cemetery leaving about a quarter of it southerly of the line. That this is the boundary is not an unreasonable assumption and results in the Huldah Hall farm containing fifty-eight and 6/10, or approximately, sixty acres as described in her will. This wall, which appears to have been in existence in 1839 (see deed Book 158, Page 253), was probably in existence in 1835. As noted above, it now ends at the path on the ridge at the cemetery at which point it tapers to about ground level. I could, however, find no evidence of it ever extending to Pine Street, nor can I find that the "stone bound" off Pine Street was at its present location in 1835 or at any other time prior to 1986.

Defendant seeks to establish the boundary by the location of an existing woods road, a partially buried barbed wire fence, and a "pile of stones" on an adjacent lot at the westerly end of her claimed line. This claim is further supported by the area of the Huldah Hall farm, which, using this boundary, contains fifty and 4/10 acres, close to the 1836 deed description. Based on the facts above, Defendants' assumption is not unreasonable. I note, however, that barbed wire was not invented until about 1881, and that its location along a wood road is as probable to keep livestock on the road, as to mark a boundary. While this roadway, in conjunction with a path, does provide access to the cemetery, such evidence supports only a possibility that this road is the right of way referred to in the 1886 deed, if, in fact, the language of that deed refers to a specific right of way at all, and in addition, there is another woods road which provides such access over Defendant's land via the field and the northerly end of the above path. Finally, while the "pile of stones" abuts the westerly face of a wall of adjacent property, I give it little significance as to locus.

A careful study of the cemetery viewed in conjunction with Edmund and Huldah's probate and Asa's deed out raises a further possibility. Dividing the cemetery, as suggested by Plaintiffs, there are twelve identifiable plots and five unidentifiable plots in the northern section and ten identifiable plots in the southern section. I assume there are also plots in both sections which are no longer identifiable. Since the majority of the graves appear to date between 1810 and 1840, I would allocate the bulk of the unmarked and unidentifiable plots to this period.

When Edmund died in 1801, leaving his sixty acre farm to Huldah, the cemetery contained only the grave of Macy (d. 1782) in the "northern" section. At the time of Huldah's death in 1834, there were at least seven graves in the northern section and seven in the southern, one of which was the grave of Asa's son Asa (d. 1822). Huldah was undoubtedly aware of the cemetery, as probably was Edmund; neither mentioned its existence (there is no evidence as to when Huldah's will was written) possibly because a) it was on the Job (or David) Hall farm, b) it was a family cemetery and the property was not leaving the family, or most likely, c) they did not think it worth mentioning.

In 1835, however, when the Huldah Hall farm was sold to Nathan Williams (who may have been related but not in the immediate family) Asa, the grantee, was very much aware of the cemetery and most probably would not have sold it "out of the family." I find it most probable that Asa believed the farm contained something less than sixty acres (under no theory does the supposed area contain a full sixty acres) and further assumed the cemetery was in its entirety on the northerly or Job Hall farm, and accordingly made the adjustment to fifty acres, intending to exclude the cemetery and a portion of land around it.

Another possibility, although less probable, is that he conveyed ten or so acres to Job for the integrity of the cemetery or some other reason, and that such deed has been lost. This possibility becomes somewhat more probable considering that Asa Jr. was less than diligent in recording instruments. As noted the 1836 deed of the homestead farm to him from his father was not recorded until 1886.

Unfortunately neither of the first two possibilities which support a specific boundary line rise to the level of probability necessary to defeat the other or to even the third which supports neither line.

Accordingly I find that the Plaintiffs have not met their burden of proof in determining the northerly boundary of locus and that their petition must be and hereby is dismissed. Should they so wish and believe appropriate, they may move to "sever and dismiss" as to the disputed parcel.

In so finding, I find only that Plaintiffs have not proven title to the disputed parcel. I make no finding as to Defendant's claim of title other than as herein stated, to such parcel and suggest to all parties concerned that should the disputed parcel be the matter of further litigation, such litigation should probably notice the appropriate Hall heirs as possible parties in interest.

Judgment accordingly.