MISC 163342

November 23, 1992



Plaintiffs, the Hyannis Fire District and its Board of commissioners (collectively, Hyannis District) bring this action against the Barnstable Fire District and its Board of Commissioners (collectively, Barnstable District) under G. L. c. 42 §12 for a determination of the boundary between them. In its Answer, Barnstable District raises the affirmative defenses of laches and statute of limitations and asks for attorneys and surveyors fees and costs.

A trial was held on April 24, 1992 and June 23, 1992. A stenographer was appointed to record and transcribe the testimony. Fifty lettered Exhibits (some with multiple parts) were introduced into evidence and five chalks were presented. All of the Exhibits and Chalks are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: John H. McHugh (one of the five fire commissioners for the Hyannis District and a full time employee of the Hyannis District from the early 1960's through 1989); George L. Pierce (an employee of the Hyannis District from 1932 to 1974, Deputy Chief at his retirement); Glen B. Clough (former Chief of the Hyannis District from 1955 to 1981 and employed by the District since 1940); and Craig Farrenkopf (Captain and twenty year employee of the Hyannis District), these four witnesses having been called by the Hyannis District; and Morris Hinckley (a police officer in the Town for thirty years); Edward E. Kelley (an employee of Cummaquid Survey, Inc., a registered land surveyor, and qualified as an expert witness as a surveyor), these two witnesses having been called by the Barnstable District.

I find and rule as follows.

1. Both parties are Fire Districts, established under G. L. c. 48, §60 et. seq. existing in the Town of Barnstable (the Town). They are two of five fire districts in the Town. Fire districts have the authority to provide fire and water services to a particular geographical area and to tax the inhabitants of that area for the services provided. As it happens, Barnstable District provides both fire and water service and Hyannis District provides only fire service (nothing turns on that distinction). The Districts also provide emergency response services.

2. The area claimed by both parties (the Disputed Area) is an area in the Town forming a narrow triangle. It is shown on Chalk 3 as the area formed by the pink line and the dashed line marked "Fire District Line" and a much shorter double dashed line on the west (Old Route 132). Almost the entire Disputed Area is also marked off by a pink line on Chalk 2. I have attached a copy of a part of Chalk 5, on which I have added various notations, one of which shows the Disputed Area.

3. All agree that Barnstable District is to the north of the Disputed Area and Hyannis District is to the south of it. Originally the Disputed Area was not of much concern to anyone. On it were a drive-in theatre and assorted minor retail properties. In the early 1980's, however, the duck turned into a swan, in the guise of two new shopping malls, Festival Mall and Southwind Plaza. Those added very substantially to the tax base, from which a fire district can draw. Now everyone was interested.

5. Chalk 1 shows Hyannis District was formed originally in 1896 and then enlarged three times, in 1924, 1927 and 1930. It is the last of these accretions which concerns us. The 1930 addition to Hyannis District was unanimously voted (the 1930 Vote) by Hyannis Districts's voters at an election on May 28, 1930. Hyannis District claims that the Disputed Area is the northerly­most portion of the area added by the 1930 Vote.

6. The area added by the 1930 Vote, insofar as it relates to the Disputed Area, is described as follows (except that I have added numbers to identify the clauses and have spaced them) :

"1) Beginning at a point marked by a granite stone set on the boundary line between the Towns of Barnstable and Yarmouth, said point being the northeasterly corner of the present Hyannis Fire District;

2) thence westerly in a straight line to a point formed by the intersection of the County Highway leading from Jones' corner, so called, to the village of Hyannis, and the Old Barnstable and Sandwich Road, so called;

3) thence southeasterly by the said Old Barnstable and Sandwich Road, so called, to Pitchers Way, so called;

4) thence in a southerly direction in line of said Pitchers Way, so called, to a pile of stones located at a point on the present northerly boundary line of said Hyannis Fire District."

7. Both parties agree on the starting point (clause 1). That is the apex of the triangle shown on the various chalks, at the east end of the Disputed Area.

8. Clause 2 directs us to the intersection of the County Highway and the Old Barnstable and Sandwich Road. Here the dispute erupts. The parties do not agree on the location of Jones' Corner, on the intersection referred to or on the length of the course described in Clause 3. They do agree on the place where the Old Barnstable and Sandwich Road meets Pitcher's Way, and I have shown that as point E on the attached.

9. Counsel at trial or in pre-trial Memorandum stipulated that:

a. Hyannis District has never taxed real property in the Disputed Area; taxes there have always been assessed by Barnstable District. Where an assessed lot lies partly in the Disputed Area and partly to the south of the Disputed Area, the Town's assessors have a formula for allocating the parts, allocating the part in the Disputed Area to Barnstable District.

b. The entrance to the access road to the current day Festival Mall is off Route 132, wholly within Hyannis District.

c. The district line as claimed by Barnstable District divides Southwind Plaza and Festival Mall; the line as claimed by Hyannis District puts both of them wholly within Hyannis District.

d. In 1924, Route 132 travelling easterly ended at Phinney's Lane.

e. The sprinkler and alarm systems in Festival Mall and Southwind Plaza are tied into Hyannis District's fire station.

f. The northerly line of Hyannis District forms the southerly line of Barnstable District. We do not have here the possibility that there is a strip in the middle not in the jurisdiction of either District.

10. Each District has mutual aid agreements with the other District and with other fire districts in the Town and in neighboring communities, under which a District responds with help when requested.

11. Hyannis District's arguments are, first, that a correct reading of the 1930 Vote results in the District boundary line being where Hyannis District claims it; second, that if the 1930 Vote is ambiguous, the post-1930 activities of the parties, such as answering fire and emergency calls, permitting, and inspecting, are determinative evidence in Hyannis District's favor; and that, failing either of those arguments, Hyannis District has by prescription established the boundary line in the location claimed by it.

12. Exhibit AAA is a packet of maps used by witness Kelley. References in Mr. Kelley's testimony, and herein, to numbered Exhibits refer to the Exhibits to Exhibit AAA. Chalk 5 is a full sized copy of Exhibit 13.

13. Exhibit 1 shows the 1927 County layout of Route 6A and, leading off to the south, the County Road to Hyannis, which later became Route 132, now known as Iyanough Road. At that intersection, as shown on Exhibit 2, are the words "Jones' Corner." That intersection is about one and 3/4 miles northwesterly of the westerly end of the Disputed Area.

14. As stipulated by the parties, the 1924 layout of the County Road to Hyannis stopped at the westerly end of the pink line on Chalk 3 - its intersection with present day Phinney's Lane, (point "A" on the attached).

15. The extension southeasterly of the County Road past Phinney's Lane is shown on Exhibit 4, a 1927 County Layout (of which 5 of 7 sheets are in the Exhibit) of the road as Route 132, where the extension shows as "West Barnstable Road." Sheet 1 of Exhibit 4 shows property owned by "William Jones et al" at two corners of the Phinney's Lane intersection. Exhibit 4 shows the County Road, now named "West Barnstable Road," leading southeasterly. The 1927 County Layout soon veers off easterly from the existing road (West Barnstable Road), at stations 127 to 128 of the County Layout. Mr. Kelley identifies that point as the westerly end of the dashed line in Chalk 3 (point "B" on the attached). The other sheets of Exhibit 4 show the continuation of the 1927 County Layout easterly. Pitcher's Lane is shown crossing the 1927 County Layout between stations 133 and 134, that is, about 500' southeasterly of the intersection (point "B") where the County Layout leaves West Barnstable Road.

16. West Barnstable Road, after it departs from Route 132, is now known as Bearce's Way, and is shown as such (somewhat illegibly) on Chalk 3. By 1930 (Exhibit 5, a County Commissioner's Layout) West Barnstable Road, (now Bearce's Way) had become known as "Old West Barnstable Road." Sheet 7 is a private plan of the County Way (Route 132) west of Phinney's Lane showing an arrow leading northwesterly to "Jones' Corner," thus supporting the placement of Jones' Corner at Route 6A. The area at "B," "C," "D," and "E" on the attached is shown clearly on Exhibit 8. To complicate matters further, the County straightened Route 132 just westerly of Bearce's Way in 1952. That is shown on Exhibit 9.

17. Exhibit 10 is a plan prepared by engineers of the Public Works Department of the Town in 1980 showing the fire district line in the location claimed by Barnstable District. Chalk 2 is a blow-up of that. Exhibit 11 is a composite plan prepared by Mr. Kelley showing the ways depicted in the preceding exhibits. Exhibit 13 is a May 1975 map of Barnstable District prepared by witness Kelley, revised through 1990, the original size version of which is Chalk 5. The intersection of Pitcher's Way and West Barnstable Road (Bearce's Way) is shown by a red "A" on Chalk 3.

18. West Barnstable Road (Bearce's Way) was shown as "Sandwich Road" on 1892 and 1907 Atlases (Exhibits H and I and Chalk 4, which is a blow-up of Exhibit I).

19. The only specific map reference to "Old Barnstable and Sandwich Road" is on Exhibit L, a 1974 map based on a 1935 layout. That shows High Street at the Sandwich-Barnstable Town Line (miles from our locus) as "'Old Barnstable-Sandwich Road' now called High Street." It is a logical route from there, via Main Street, to Sandwich Road as shown on the 1892 and 1907 Atlases. But that would suggest that the whole route (High Street, Main Street, Route 132 and Bearce's Lane) is what "Old Barnstable and Sandwich Road" refers to.

20. Exhibit M (an excerpt from a 1929 Town Report) suggests there may have been a third "Jones' Corner," somewhere on the Hyannis Road, as shown on Chalk 4, some considerable distance from our locus and a red herring for us, except to indicate there may have been more than one "Jones' Corner."

21. Hyannis District made inspections at, and issued permits (such as underground storage permits) to, the stores that lined Route 132 in the vicinity of the former drive-in theatre (shown on Chalk 2, now the site of the two malls) and responded to fires and other emergencies at those stores and at the drive-in theatre itself (Exhibits O through PP). No such activity appears for Barnstable District.

22. Hyannis District commissioned a review of the boundary line by Cape Cod Survey Consultants, a surveying firm, which produced a report (Exhibit VV) dated October 23, 1983 concluding that the boundary line is where Barnstable District says it is. In 1988 Hyannis commissioned for over $40,000 a second investigation by Nickerson & Berger, Inc., professional engineers and land surveyors. That firm produced a lengthy report dated April 22, 1988 (Exhibit QQ ) containing numerous maps and other exhibits and also concluding that the boundary line is in the location claimed by Barnstable District.

23. A map dated January 1973 (Exhibit RR), prepared by the Engineering Department of the Town places the boundary line in the location claimed by Barnstable District, as does a zoning map of the Town as of 1949 (Exhibit N to the Nickerson & Berger Report).

24. Chapter 81 of the Acts of 1955, further extending the territory of Barnstable District, describes its southerly boundary as being in the location claimed by Barnstable District.

25. With respect to the 1930 vote, I conclude that : "Jones' corner" is the intersection of current Route 6A and Iyanough Road, that is, the location claimed for it by Barnstable District; the "County Highway" is the following route (starting at Jones' corner and using current names): Iyanough Road, Old Route 132, Iyanough Road; and "the Old Barnstable and Sandwich Road" is Bearce's Lane.

26. Referring to the attached sketch, the first course of the line as stated in the 1930 Vote ends at "B," which is the "point" referred to in clause 2 of the 1930 Vote; clause 3 travels southeasterly the short distance to point "E"; and clause 4 proceeds southerly down "D," Pitcher's Way.

27. That reading of the 1930 Vote is the more logical of the two. It avoids the interpretation, suggested by Hyannis District, that point "A" is both Jones' corner and the "point." It recognizes the County Highway and the Old Barnstable and Sandwich Road as separate, whereas under Hyannis District's reading, they would be the same from points "A" to "B."

28. If the intent had been to put the end of the first course at point "A," the obvious way to express that would have been to refer to the intersection of the County Highway and Phinney's Lane (or the "Centerville-Barnstable Road" as it was then known).

29. The only confusion here is not the location of "Jones' corner." Also, the County Highway, in the location described at 25 above, was earlier known as the Sandwich Road, and also, from point A southeasterly, as the West Barnstable Road. Even if you put Jones' corner where Barnstable District (and I) say it is, at Route 6A, and if you read "Old Barnstable and Sandwich Road" as meaning the same thing as "Sandwich Road" and "West Barnstable Road," you could read the "intersection" as point "A," where Hyannis District wants it. To do that you read "intersection" as meaning the point where the County Highway left off in 1924 and became "West Barnstable Road." That ignores the fact that the road between "A" and "B" had, by the 1927 taking, become included in the County Highway. I find Hyannis Districts' interpretation strained.

30. I do not find that the actions of the parties over the years lead to the result claimed by Hyannis District. It appears that most, if not all, fire district activity in the Disputed Area has been by Hyannis District. However, that was natural since the businesses in theDisputed Area had their entrances on Route 132 in locations clearly within Hyannis District under any reading. Also the level of activity was not great in any event. Finally, counterbalancing these activities to some extent is the payment of taxes in the Disputed Area by Barnstable District and the matters described in paragraphs 23 and 24 above.

31. Hyannis District's suggestion that it has acquired the Disputed Area by prescriptive right is imaginative but unconvincing. Governmental bodies do not, by virtue of their corporate boundaries, have property rights in the areas under their jurisdiction and prescription is a property law concept.

32. The District boundary line is where Barnstable District says it is.

Judgment accordingly.

exhibit 1

Attached sketch