JAMES T. ANGELOS, TRUSTEE OF CHARNOCK HILL REALTY TRUST vs. JOHN THAYER.

The plaintiff James T. Angelos, Trustee of Charnock Hill Realty Trust brings this complaint pursuant to the provisions of General Laws Chapter 240, section 6 to remove a cloud from title to his property on Charnock Hill Road in Rutland in the County of Worcester and to quiet title to said premises. The defendant owns the land abutting that of the plaintiff, and the sole question to be decided by the Court is the proper location of the boundary line between the land of the plaintiff and the defendant.

A trial was held at the Land Court on December 16, 1991 at which a stenographer was appointed to record and transcribe the testimony. The defendant, Dr. John Thayer, a dentist and John R. Andrews, the plaintiff's surveyor, were called by the plaintiff. Douglas Andrysick, also a registered land surveyor, testified for the defendant. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The Court took a view in the presence of counsel on May 27, 1992.

Common ownership of the lands now owned by the parties hereto ended in 1836 with the delivery of deeds conveying adjoining parcels. These deeds contain substantial errors and were silent as to controlling monuments (other than land of the abutter) along the boundary which is the root of the present controversy. The dispute centers, as I have said, on the location of the southerly boundary line of the plaintiff and the northerly boundary line of the defendant. It is best illustrated by Chalk A, a plan entitled "Definitive Plan of Pheasant Ridge in Rutland, Mass. Owned & Developed by Charnock Hill Realty Trust James T. Angelos, Trustee", by Andrews Survey and Engineering, Inc. (the "Andrews plan"), a copy of a portion of which is attached hereto on which the Court has indicated the divergent positions of the plaintiff and the defendant. The plaintiff argues that the boundary line is a straight line leading to Charnock Hill Road from the southerly corner of his locus since that distance most clearly comports to the distance given in the deed out to his predecessor in title and because such deed neither bounds by a stone wall nor does it set forth a change in direction. The defendant's contrary position is that the stone wall now in existence on the premises was a monument in 1836 although not mentioned in the deed and that the boundary should be placed there. The area in dispute has frontage of 172.75 feet on Charnock Hill Road and an area of about 22,044 square feet (Exhibit No. 17). While the resolution of this question presents some difficulties, the plaintiff's position appears more logical and consistent with the documentary evidence.

The parties have stipulated as follows (Exhibit No. 1A): [Note 1]

1. James T. Angelos, as Trustee of Charnock Hill Realty Trust under a Declaration of Trust dated November 9, 1987 and recorded in Worcester County Registry of Deeds, Book 10931, Page 381 (Exhibit No. 1), owns a parcel of land in the Town of Rutland off of Charnock Hill Road (a/k/a Barrack Road). The parcel is described in a deed dated October 27, 1987 and recorded in Worcester County Registry of Deeds, Book 10931, Page 387 (Exhibit No. 2) (the "Angelos parcel").

2. The parcel described as being excluded from Exhibit No. 2 is shown on a plan dated June 23, 1952 and recorded in Worcester County Registry of Deeds, Plan Book 183, Plan 57 (Exhibit No. 3).

3. The Angelos parcel is shown on a plan dated November 3, 1988 and recorded in Worcester County Registry of Deeds, Plan Book 618, Plan 95 (Exhibit No. 4). The area in dispute involves a triangular piece of land bounded to the west by Charnock Hill Road (172.75'). The disputed area is shown on Exhibit No. 4 at the southwesterly corner of the parcel depicted on that plan. The parties stipulate and agree that one or the other has record title to the disputed area.

4. John Thayer owns a parcel of land (the "Thayer parcel") with frontage on Charnock Hill Road adjacent to the Angelos parcel by virtue of:

(i) A deed dated April 16, 1941 and recorded in Worcester County Registry of Deeds, Book 2811, page 549 from William E. Hunt to Rockwood H. Thayer (John Thayer's father) (Exhibit No. 5);

(ii) the will of Rockwood H. Thayer who died in 1981; and

(iii) A deed dated June 6, 1986 and recorded in Worcester County Registry of Deeds, Book 9501, Page 287 (Exhibit No. 6) from John Shields and Beatrice M. Shields to John Thayer (the "railroad right of way parcel").

5. Excluded from the Thayer parcel is the parcel described in a deed dated December 10, 1974 and recorded in Worcester County Registry of Deeds, Book 5637, Page 9 (the "Lemon parcel") (Exhibit No. 7). The Lemon parcel is shown on a plan recorded in Worcester County Registry of Deeds, Plan Book 633, Page 90 (Exhibit No. 8).

6. The relevant chain of title to the Thayer parcel starts with a deed dated March 22, 1836 and recorded in Worcester County Registry of Deeds, Book 314, Pages 124-126 (Exhibit No. 9). The northerly boundary is described in relevant part as follows:

thence westerly ninety five rods partly by the original line and partly a new division line to a corner at the aforesaid road (Charnock Hill Road) . . . .

7. The relevant chain of title to the Angelos parcel starts with a deed dated March 29, 1836 and recorded in Worcester County Registry of Deeds, Book 316, Pages 322-323 (Exhibit No. 10). The southerly boundary is described in relevant part as follows:

westerly by land this day conveyed to Stephen Hammond fifty-one and a half rods to the Town road (Charnock Hill Road) . . . .

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

8. The controversy between the parties became apparent when the conservation commission and the Planning Board considered in the fall of 1990 a definitive plan entitled "Definitive Plan of Pheasant Ridge in Rutland, Mass. Owned & Developed by Charnock Hill Realty Trust James T. Angelos, Trustee" by Andrews survey and Engineering, Inc. At the hearings Dr. Thayer raised a question about the triangle at the southwesterly corner of the land shown on the, plan and enunciated his claim to ownership of this triangle.

9. While the definitive plan does not show a way which is apparent on the ground and which runs on the southerly side of the wall to a home formerly constructed on the plaintiff's land and occupied by a third party, by coincidence a patient of the defendant, the nature of the way on the ground is shown on a photograph which is marked Exhibit No. 13A. As revealed by the view it is barely negotiable by a vehicle with a four wheel drive.

10. The Rutland Assessors' Plan, the work done for the plaintiff by a surveying firm called Bradford Engineering and for the defendant by one Mailhot all showed the boundary line to be as it appears on Chalk A prepared by Andrews Survey and Engineering, Inc. for the plaintiff.

11. At one time a broker employed by Dr. Thayer approached the plaintiff about a sale of the Thayer land to the plaintiff, and the sketch which accompanied the information about the Thayer property was consistent with the Andrews plan (Exhibit No. 12).

12. After the contretemps at the Planning Board the plaintiff employed Mr. John R. Andrews, III, a registered land surveyor, the owner of Andrews Survey and Engineering, Inc. to solve the problem as to the correct location of the boundary line. Mr. Andrews made an independent examination of the records at the Registry of Deeds and the office of the Rutland assessors. He then not only did a perimeter field survey of the plaintiff's property, but he tried to place the call in the deeds of the plaintiff and defendant's predecessors in title on the ground together with that of the King property to the south. The latter has a separate chain of title, but it is helpful in computing distances to see how it has been located.

13. The deeds by which the common ownership was severed have measurements which do not fit today's situation on the ground whether from the inartistry of the draftsman in 1836, a change in the sideline of the layout of the road or some other flaw. There are at least two errors in the distances as they appear in the deed to the plaintiff's predecessor in title. The common boundary as set forth in this deed which was delivered or at least recorded a week after that of the defendant's predecessor is more exact in that it bounds by the abutting owner as a monument and gives a course, but the distance set forth in the deed is roughly 50 feet more than the length of the line given in the deed. If the length of the line in the deeds were held it would bisect the disputed area. The position for which the defendant argues would require an overall line of 892.05 feet which is 43 feet more than the distance in the deed so that both lines contended for by the parties either undershoot or overshoot the length as called for by the draftsman. However, the line as set forth in the deed has no indication that there is an angle in it as is apparent from Chalk C. The defendant's argument that the line follows a stone wall would require a turn at a substantial angle which is not memorialized in the deed. The calls in the deed are for a straight line.

14. The deed to the plaintiff's predecessor, Exhibit No. 10, proceeds from the course discussed above "thence westerly by land this day conveyed to Stephen Hammond, [Note 2] fifty-one one half rods to the town road, thence northerly sixty-eight rods on the road to the place of beginning". It is obvious, and the parties agree, that 68 rods is much too short for the line of the parcel on Charnock Hill Road, and there also is agreement that the correct distance should be 168 rods, although there is some variation from this figure in the actual length of the line on the ground. The inartistry, however, apparent from the dropping of the "one" in the scrivener's preparation of the deed illustrates the problems found in interpreting the language of the instruments.

15. Another guide which the plaintiff's expert witness used in placing the disputed boundary line was the placement of the southerly line of the Thayer parcel from the present iron pin and fence which marks that line on the ground and the correlation thereof with the abutter to the south, formerly King and now Lemon. Using the distances on the frontage on the street of the Thayer parcel and that of the King parcel brings the northerly Thayer line to a point about 15 feet into the area claimed by the plaintiff. If the existing fence and iron pin at the southerly corner of the defendant's land is used, the overage would be about nine feet. Each of these exercises suggest that the appropriate northerly line of Thayer is closer to where it has been placed by Andrews than where the defendant's surveyor has placed it on his chalk.

16. There is no question that many of the boundaries of the plaintiff's land are marked by stone walls including those on the street as well as those between the plaintiff and abutting landowners. While it is not incumbent on the plaintiff to offer any explanation as to why the stone wall abutting the triangle was not a boundary wall, his expert witness did suggest that this was a wall erected by farmers in bygone years to keep cattle from straying onto the wetlands. The witness also testified that he found rocks suggesting the beginning of the wall leading from the street line whereas the defendant claimed that the rocks were rubble dumped on the parcel during the construction from an adjoining railroad right of way which now is owned by the defendant. There is nothing in the deed that suggests the boundary line in dispute followed a stone wall and in many Land Court cases, stone walls are not boundary walls. It is more important that the course recites a straight line than that it does not follow a wall on the ground. I note that on the view rocks were apparent near the street line at the point claimed by the plaintiff which I find to be the beginning of a stone wall, not rubble. However, to the east there is so much rubble deposited in connection with the railroad excavation on land now of the defendant that it is impossible to tell now whether the plaintiff's line formerly was marked by a wall.

The rule of construction in interpreting deeds is that the Court must try to give effect to the intent of the parties as manifested by the words which they use, Lindsay v. Board of Appeals of Milton, 362 Mass. 126 (1972), in light of the material circumstances and pertinent facts known to the parties when the instrument was executed, Gray v. Handy, 349 Mass. 438 (1965). However, it is difficult when one is dealing with instruments drafted about 156 years ago to interpret the intent or to be apprised of the material circumstances and pertinent facts which led to the drafting of the deeds. Nonetheless, there obviously is enough discrepancy in the actual language of the deed to allow the introduction of extrinsic evidence, and I have relied on it in setting forth the facts as I have found them. See Ellis v. Wingate, 330 Mass. 481 (1959), Oldfield v. Smith, 304 Mass. 590 (1939). Moreover, it is recited that acts of adjoining owners showing the practical construction of the language in the deed may be given great weight, Fulginitti v. Cauddi, 292 Mass. 321 , 325 (1935). The case most like the factual situation before me and cited by the plaintiff as persuasive authority is Leigh v. LaPierre, 113 New Hampshire 633 (1973). In Leigh there was a dispute as to whether the line followed the stone wall or whether it was a straight line and the court in reaching its decision held that in the absence of language in the deed to cause a deviation, a boundary line between two points is presumed to be a straight line and it so fixed the disputed boundary line before it.

On all the evidence I therefore find and rule that the disputed boundary line between the parties does not follow the stone wall shown as the northeasterly line of the triangle shown on Exhibit No. 17 but is the southerly line of said triangle between '"Parcel 'F'", as shown on said plan and land of Dr. Thayer.

Judgment accordingly.

exhibit 1