MISC 159103

November 9, 1992



Plaintiff alleges that she, as Executrix under the will of Herbert L. Babbitt, owns a 2.07 acre parcel of land ("Locus") on the westerly side of Forest Street in Berkley and that Defendants without right constructed a house on Locus. Plaintiff seeks a declaration that she is the owner of Locus, an order that Defendants remove their house, and damages.

Defendants plead laches and statute of limitations as affirmative defenses and bring two counterclaims. In Counterclaim I Defendants claim record title to a portion of Locus and request the court to have Plaintiff show cause why she should not bring an action to try Plaintiff's claim to Locus. In Counterclaim II Defendants claim that they have title to their portion of Locus by adverse possession (since 1953) and ask that the court declare them the owners.

Plaintiff moved for Summary Judgement with respect to Defendants' Counterclaim I. Counsel for both parties argued the motion on June 10, 1992 and submitted memoranda in support of their positions. The only Affidavits filed were those of Defendant, Jerry McCrohan, as to matters occurring since 1985, and of Gladys McCrohan, as to various matters occurring since 1953. Attached to Plaintiff's Motion for Summary Judgment and Defendants'/Plaintiffs in Counterclaim's Motion In Opposition to Plaintiffs' Motion for Summary Judgment were various attested copies of Registry documents and, as counsel argued the motion on the basis of those documents, I am accepting them for purposes of this motion.

I find and rule for Plaintiff as follows (many of the following having been stipulated by counsel at the hearing):

1. Locus is a roughly rectangular area shown as "2.07 Acres ±", with a frontage of 165' on Forest Street, on a plan (the "1988 Plan") by E. Otis Dyer entitled "Land Owned by the Heirs of Herbert L. Babbitt in Berkley, Massachusetts," dated May 10, 1988 recorded at Bristol County Northern District Registry of Deeds (all recording references hereinafter are to that Registry) at Plan Book 300 Page 47. A copy of the 1988 Plan appears as Appendix H to Plaintiff's Motion For Summary Judgment. References to Appendices hereinafter shall, unless otherwise indicated, be to the Appendices to that motion.

2. Along its entire northern boundary, Locus abuts land at one time known as the "Fox Lot." The Fox Lot is shown on the 1988 Plan, containing 334.76 frontage on Forest Street and having a depth, along its southerly boundary, of 550'. Locus and the Fox lot abut.

3. The Fox Lot was conveyed to John Q. Dillingham by Marion L. Whitaker by deed (Appendix C) dated December 15, 1967 recorded at Book 1515 Page 210. John Q. Dillingham devised the Fox Lot to Ella F. Dillingham (Bristol Probate 146628).

4. The deed recorded at Book 1515 Page 210 refers, for a more particular description of the Fox Lot, to a deed (Appendix D) recorded at Book 275 Page 52. That is a deed from Henry H. Fox, administrator of the estate of Jabez Fox, to Herbert A. Dean dated January 19, 1865. That 1865 deed describes the Fox Lot and its description includes a southerly bound as "thence in line of Adinoram Babbitt."

5. That land of Adinoram Babbitt is Locus.

6. Locus was conveyed to Adinoram Babbitt by deed (Appendix E) of Isaac Babbitt dated April 6, 1838 recorded at Book 157 Page 327, in which Locus is the third parcel.

7. The land described in the deed to Adinoram Babbitt recorded at Book 157 Page 327 was conveyed by Adinoram Babbitt to Rollin H. Babbitt by deed (Appendix F) dated March 24, 1886 recorded at Book 438 Page 373 and then conveyed by the heirs of Rollin H. Babbitt to Plaintiff's decedent, Herbert L. Babbitt by deed (Appendix G) dated March 22, 1955 recorded at Book 1165 Page 356.

8. The County Road referred to in the older deeds involved in this action is the present Forest Street.

9. The deeds described in 6 and 7 above (Locus) have descriptions which suggest that land of Ephraim French Jr. is to the south of Locus.

10. By deed (Appendix I) dated December 24, 1839 recorded at Book 163 Page 97 Ephraim French, Jr. conveyed to Edward Babbitt 2 acres and 14 rods of land bounded easterly by the County Road. The description in the deed suggests that the northerly abutter is Adoniram Babbitt.

11. By deed (Appendix J) dated December 6, 1851 recorded at Book 208 Page 374 Charles G.W. French, as the devisee of Ephraim French, conveyed "nearly three acres" of land bounded easterly by the County Road to Edward Babbitt; this land abuts to the south the land conveyed in the deed recorded at Book 163 Page 97.

12. By deed (Appendix K) dated December 7, 1868 recorded at Book 296 Page 219 Edward Babbitt conveyed to Giles L. Leach four acres of land more or less bounded easterly by the County Road. That conveyance included all of the lot conveyed by the deed recorded at Book 163 Page 97 and part of the land conveyed by the deed recorded at Book 208 page 374.

13. Land now or formerly of Adoniram Babbitt is the northerly abutter to the land conveyed by the deed recorded at Book 296 Page 219.

14. The area claimed by Defendants (the "56,250 s. f. Lot") is shown on a plan (Appendix B) dated July 26, 1985 by Brant S. Haworth Associates recorded at Plan Book 248 Page 15.

15. The 56,250 s. f. Lot is described in a deed (Appendix A) into Defendants from John and Gladys McCrohan dated August 7, 1985 recorded at Book 2772 Page 345.

16. The 56,250 s. f. Lot is shown on the 1988 Plan as "Claimed by Jerry & Elizabeth McCrohan 2772/345." As claimed by Defendants it extends into Locus 300' and extends beyond Locus to the south 22.5'.

17. By deed dated November 9, 1925 recorded at Book 763 Page 315, Frans H. Silvan, Collector of Taxes for the Town of Berkley conveyed to L. C. Whittaker (sic) "5 acres 21780 feet known as Giles Leach land on Forest Street" (the "Giles Leach Land"). A copy of that deed is Exhibit D to Defendant's Motion for Summary Judgment. L. C. Whittaker was also known as Linneus C. Whitaker.

18. Defendants allege that the Giles Leach Land passed from Linneus C. Whitaker to his widow, Addie M. Whitaker. That is not demonstrated by the evidence before me but I accept it, as the point does not bear on the result. By deed (Exhibit C to Defendant's Motion) dated November 2, 1953, recorded at Book 1127 Page 154 Addie M. Whitaker conveyed the Giles Leach Land to John McCrohan Jr.

19. By deed (Exhibit B to Defendant's Motion) dated April 26, 1977 recorded at Book 1729, Page 1060 John McCrohan Jr. conveyed the Giles Leach Land to himself and his wife, Gladys I. McCrohan.

20. By an undated deed (Exhibit E to Defendant's Motion) recorded November 1, 1873 at Book 335 Page 355, Sumner Knapp conveyed to Giles L. Leach land bounded on the east by the County Road, said to contain four acres more or less.

21. By a deed (Exhibit F to Defendant's Motion) dated October 31, 1885, recorded at Book 434 Page 528, Edward L. Babbitt, Administrator of the Estate of Edward Babbitt, conveyed to Giles L. Leach a triangular parcel said to contain two acres more or less, bounded on the north by the County Road and on the west by land of Giles L. Leach.

22. The land described in the deed recorded at Book 335 Page 355 (para. 20 above) is the same land as described in the deed recorded at Book 296 Page 219 (para. 12 above). Both deeds convey to Giles L. Leach. Neither counsel suggest why, having acquired the land in 1868, Leach needed to reacquire it in 1873, but the gap is of no significance.

23. I am satisfied that four acres, when combined with the land conveyed to Leach by the deed recorded at Book 434 Page 528 (para. 21 above), makes the Giles Leach Land and that the Giles Leach Land abuts Locus to the south.

24. Defendants have not shown how the title gets from Leach to Chandler, from whom the Town acquired for taxes, leading to the tax deed at para. 17 above and thence to John and Gladys McCrohan (para. 19 above). However, that gap is not of significance. Even if we assume title leading from Leach to John and Gladys, Defendant fails at the next step, the conveyance from John and Gladys to Defendants. That conveyance, of the 56,250 s. f. Lot, shows it as bounded on the north by Ella F. Dillingham (the Fox Lot) but the title of John and Gladys (the Giles Leach Land) never went north to the Fox Lot; it only went as far north as the southerly line of Locus. In short, as far as record title is concerned, the 56,250 s. f. Lot, in the location claimed by Defendants, was not John and Gladys's to give.

25. Defendants' Counterclaim I is dismissed.

Judgment accordingly.