RICHARD A. GOULDING, JR. and ROBERTA A. GOULDING vs. GEORGE W. COOK and DOROTHY N. COOK.

The plaintiffs Richard A. Goulding, Jr. and Roberta A. Goulding bring this complaint against their neighbors George W. Cook and Dorothy N. Cook for a determination pursuant to the provisions of G.L. c. 240, §1 that they are the owners free of any claims of the defendants in a triangular parcel of land containing about 2,998 square feet and shown on a plan entitled "Land of James E. Thomas, Scituate, Mass. September 7, 1926", by Henry A. Litchfield, duly recorded in Plan Book 4, Page 567 of the Plymouth County Registry of Deeds (to which registry all recording reference herein refer).

A trial was held at the Land Court on April 16 and May 23, 1992 at both of which sessions a stenographer was appointed to record and transcribe the testimony. At the beginning of the trial on April 16, 1992 the defendants for the first time made a motion to dismiss upon the ground that the deed to the plaintiffs was void since the scrivener neglected to set forth therein the consideration for the sale as set forth in the probate court license. I denied the motion on the ground that the defendants did not have standing to raise that question in view of the nature of the controversy, but that it was a matter for the heirs of the decedent Harlen Drum to question or for the plaintiffs to cure in a separate proceeding to reform the deed. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The plaintiffs called as witnesses Leo Scarry, a Land Court title examiner, David Primmer, a registered land surveyor, Richard Goulding, one of the plaintiffs, Robert J. Flynn, the owner of the premises at 103 Mann Hill Road and a neighbor of the plaintiffs, Gene M. McCarthy, a landscaper who previously had worked for Harlen Drum and Debra C. Causer, a close friend of Mr. Drum who is deceased. The defendants in turn called as witnesses William B. Hovey, a Land court examiner, Paul J. Mirabito, a registered land surveyor and the defendants.

The controversy between the parties concerns the ownership of a small triangular parcel of land title to which is claimed by both of the plaintiffs and the defendants; this parcel, containing 2,998 square feet, is denominated "Area of Encroachment See Plan 713 of 1968" on a plan entitled "Plan of Land in Scituate, MA. Showing Parcel No. 22-11-4 at 102 Mann Hill Road consisting of two parcels by Stenbeck and Taylor, Inc" (Exhibit No. 13). The plaintiffs claim that the triangle is correctly placed on said exhibit and that the southerly line thereof is a continuation of the southeasterly line of their main house lot to Mann Hill Road. The defendants on the contrary claim that the apex of the triangle should be placed much closer to the intersection of Mann Hill Road and Boardman Avenue and that a surveyor in 1926 misplaced the parcel in the location shown on the plan prepared by Stenbeck and Taylor, Inc. It is clear from the evidence that there has been an error in distance in the recorded documents which has been carried forward for many years. I find that the plaintiffs' interpretation of the records is correct and accordinqly that the defendants have encroached on land of the plaintiffs.

On all the evidence I find and rule as follows:

1. Title to the land now claimed by the plaintiffs was acquired by James E. Thomas and Harriet M. Thomas by several deeds in 1926. The main house lot was conveyed to Mr. and Mrs. Thomas by Julia I. Brown by deed dated May 8, 1926 and recorded with the Plymouth County Registry of Deeds in Book 1508, Page 48. This parcel essentially is Lot 41 on a plan entitled "Plan of Part of Mound Farm Scituate, Mass." dated August 24, 1899 by McClintock & Woodfall and recorded in Book 799, Page 169 (Exhibit No. 12) and in an earlier 1875 plan of house lots (Exhibit No. 11).

2. The chain of title of the remaining portion of the plaintiffs' land is as follows: (a) a deed from Mary S. Shurtz to Ruth Appleton Burge and Howard W. Burge dated August 19, 1922 (Exhibit No. 7) and describing a large portion of land surrounding Lot 41 and including both the remaining land claimed by the plaintiffs and the land now of the defendants; (b) a deed from Ruth Appleton Burge et al to James E. Thomas et al dated October 7, 1926 and recorded in Book 1507, Page 496 conveying all right, title and interest of the grantors "in and to that portion of McPherson Avenue, in Scituate, Plymouth County, Massachusetts, which lies between the land conveyed by us to these grantees by deed dated July 26, 1926 recorded with Plymouth County Deeds, in Book 1513, Page 221 as shown on the plan recorded therewith, and other land of the grantees conveyed to them by Julia I. Brown by deed dated May 28, 1926 recorded with said Deeds in Book 1508, Page 48." [Note 1] (c) a deed from Ruth Appleton Burge to James E. Thomas et al dated July 26, 1926 recorded in Book 1513, Page 221 (Exhibit No. 4) conveying the triangular parcel which gives rise to this controversy and referring to a plan entitled "Survey for James E. Thomas, Scituate, Mass." dated June 19, 1926 and recorded in Plan Book 4, Page 567 (Exhibit No. 5);

3. The defendants' chain of title also comes from Ruth Appleton Burge who conveyed to Katharine R. Sinnott by deed dated March 25, 1931 and recorded in Book 1609, Page 377 (Exhibit No. 8) the remaining Burge land from which there is excepted the parcel conveyed to Mr. and Mrs. Thomas by the deed dated July 26, 1926 which is specifically described in this deed. This again is the triangle which gives rise to the present controversy, and to the extent there is a discrepancy the first deed out controls.

4. It should be noted that the deed last mentioned, Exhibit No. 8, has a frontage on Mann Hill Road, otherwise known as Wild Rose Avenue, of 408.85 feet from land now or formerly of Elizabeth R. Hood to land now or formerly of Julia I. Brown. This measurement conforms with the location of the parcels on the ground as I have found them. It differs from the starting point referred to in several of the exhibits which is given as 284.98 feet from the corner of the land of Elizabeth R. Hood, which is the error I referred to above.

5. The two parcels specifically conveyed to the plaintiffs' predecessors in title are separated by a paper street known as McPherson Avenue which is 30 feet wide on the plan of Mound Farm. Any interest of the then common owner of the triangular parcel and land of the defendants in McPherson Avenue was conveyed in 1926 to the plaintiffs' predecessors.

6. McPherson Avenue is shown on the Mound Farm plan and on the two plans prepared by one James Litchfield as 30 feet wide. A 1968 plan which the defendants claim as correct shows McPherson Avenue as only ten feet for which there is no record basis. This is a plan entitled "Subdivision Plan of Land in Scituate, Mass." dated August 23, 1968 by Neil J. Murphy (Exhibit No. 10); was a compiled plan only and did not result from an on the ground survey.

7. Henry A. Litchfield prepared a survey for James E. Thomas dated June 19, 1926 and recorded in Plan Book 4, Page 567 showing the triangular parcel of land in question. The plan is referred to in a deed which was drafted after the plan and incorporates the plan by reference. The southerly line of the triangular parcel as shown on the June 19, 1926 Litchfield plan is a continuation to the west of the southerly line of Lot 41. McPherson Avenue is shown as bisecting the two parcels, but the distance of the southwesterly corner of the triangle from land of Elizabeth Hood is not shown There is a second Litchfield plan dated September 7, 1926 and referred to in a deed from James E. Thomas et al to Elizabeth Bond March dated October 8, 1926 and recorded in Book 1507, Page 497 (Exhibit No. 18) which shows the controversial parcel as Lot 3 and parcels 1 and 2 fronting on what was then Boardman Avenue. This plan by Litchfield is dated September 7, 1926 and is recorded in Plan Book 4, Page 390. Again it continues to show McPherson Avenue and a straight line as the southerly line of Lots 1, 2 and 3. The defendants attack the earlier plan as incorporating the ideas of the grantees not the grantor and contend that it does not reflect her intention. There is not, however, a shred of evidence to support this contention.

8. Many years ago the County of Plymouth laid out Mann Hill Road which much earlier was called Wild Rose Avenue in this location. The public way cut across Lot 46 on the Mound Farm plan and left a small triangular portion of Lot 46. The defendants argue that it is only this portion of Lot 46 which was conveyed to the plaintiffs' predecessors in title, but there is no support in the record for this position.

9. The plan which was prepared for the plaintiffs by Stenbeck and Taylor, Inc. entitled "Plan of Land in Scituate, Ma. showing Parcel No. 22-11-4 at 102 Mann Hill Road" dated April 15, 1992 shows essentially the same relationship of the Goulding parcels one to another as appears on the Litchfield plan, but the 1992 plan locates more extensive monumentation than was done 65 years ago. The surveyors also were able to locate some of the monuments shown by Litchfield. The defendants did not have a recent survey which was incorporated into a plan, but the Ross Engineering Company, Inc. did prepare a plan for the Scituate Board of Health of a proposed new septic system for the defendants' property which gives the metes and bounds thereon and includes within the defendants' land, the disputed parcel. A septic system now has been installed therein. This plan is Exhibit No. 22. Other than the disputed parcel there apparently is no other part of the defendant's land which passed a percolation test.

10. The plan by Ross Engineering is based on "Subdivision Plan of Land in Scituate, Mass." dated August 23, 1968 by Neil J. Murphy and duly recorded (Exhibit No. 10). The Murphy plan locates the triangular area much closer to the junction of what was Wild Rose Avenue and Mann Hill Road and leaves only a ten foot wide strip as the old McPherson Avenue which is shown on the early subdivision plan and on plans for the opposite side of Mann Hill Road as being thirty feet wide. The defendants' land is Lot 1 on the Murphy plan whereas the land of the plaintiffs is the triangular parcel marked "N or F Thomas" the ten foot wide strip and the rectangular parcel marked "N or F Julia Brown" on this plan.

11. A deed from Mary S. Shurtz to Ruth Appleton Burge and Howard W. Burge dated August 19, 1922 and recorded in Book 1421, Page 54 conveys the property from which the triangular parcel, McPherson Avenue, and the land of the defendants later was created. This deed runs from land of Elizabeth R. Hood North 15° 46' 56" East 408.85 feet to land now or formerly of Julia I. Brown; thence continues "South 18° 3' East 138.99 feet on land of said Julia I. Brown to a point; thence turning and running North 71° 57' East 163.66 feet to a point in the line of a proposed Avenue." The important aspect of this deed is that it places land of Julia I. Brown 408.85 feet Northeasterly of land of Elizabeth Hood.

12. The present dispute arises from the starting point of the description of the triangular parcel as it appears in a deed from Ruth Appleton Burge and Howard W. Burge to James E. Thomas and Harriet N. Thomas dated July 26, 1926 and recorded in Book 1513, Page 221 (Exhibit No. 4) where the description begins on Mann Hill Road, otherwise known as Wild Rose Avenue "at a point two hundred eighty-four and 98/100 feet distant from land now or formerly of Elizabeth R. Hood." The deed refers to a plan by Henry A. Litchfield C. E. dated June 19, 1926 duly recorded with the deed. This plan is Exhibit No. 4 and is recorded in Plan Book 4, Page 567. It shows the southerly line of the triangular parcel as being an extension of the southerly line of the Thomas parcel and included between the two, McPherson Avenue to its full width of 30 feet.

13. Even though the deed last referred to would pass the interest of the grantor in McPherson Avenue, Ruth Appleton Burge et al simultaneously therewith conveyed to James E. Thomas and Harriet N. Thomas by deed dated October 7, 1926 and recorded in Book 1507, Page 496 (Exhibit No. 6)

all our right, title and interest in and to that portion of McPherson Avenue, in Scituate, Plymouth County, Massachusetts, which lies between the land conveyed by us to these grantees by deed dated July 26, 1926 recorded with Plymouth County Deeds, in Book 1513, Page 221, as shown on the plan recorded therewith, and other land of said grantees conveyed to them by Julia I. Brown by deed dated May 8th, 1926 recorded with said Deeds in Book 1508, Page 48.

14. The deed out from Julia I. Brown to the Thomases (Exhibit No. 3) dated May 8, 1926 recorded in Book 1508, Page 48 does bound Westerly on McPherson Avenue one hundred thirty-eight and 64/100 feet which would carry title to the center line of McPherson Avenue. The two deeds bounding on McPherson Avenue plus the specific grant conveyed title to the paper street to the plaintiffs' predecessors.

15. While the plaintiffs' predecessors in title generally took care of the area in dispute, the area along the public way was left bounded by brush and trees, and the southeasterly line of the parcel was similarly treated. However, there is evidence that during the years of the ownership of the plaintiffs' predecessor and during the short period the plaintiffs have used it, the remainder of the area that is its central part was cared for by those in the plaintiffs' chain. A lawn service was engaged to care for the triangle and the remainder of the grounds. The grass was mowed. There was a stone wall extending from the rear of the plaintiffs' property about to the public way. On the defendants' side of the line there had been a veritable jungle, the defendant George W. Cook, Jr., even before he purchased the property, helped his friend Scott Gillis, a prior owner, to clear out some of the overgrowth on the Gillis-Cook side of the line. It appears that until the present controversy the defendants had done nothing to beautify the area which they now claim as theirs and in which they have installed their septic system.

16. There is no controversy as to the remainder of the title to the property of the defendants and the deeds in this chain appear as Exhibits Nos. 19, 20, 21 and 9.

17. Photographs introduced into evidence as Exhibits Nos. 15A-15F from the plaintiffs show the property of the plaintiffs from the plaintiffs' side, Exhibit No. 16D shows the remainder of the wall as do 16B and C which also illustrate the work in progress for the installation of the septic system. Exhibit No. 16A shows the beginning of the Brown removal project. Exhibit No. 24A shows the wall and the fence erected by Mr. Drum some feet inside the line. Exhibit No. 24C is helpful in that it shows the driveways to the respective properties with that of the plaintiffs being to the left and that of the defendants to the right.

18. Exhibit No. 14 is an assessors' plan of the area which adopts the defendants' placement. Since such plans commonly are based on the last plan of record (i.e. Murphy's in this case) it has little probative value.

The present dispute stems from the starting point as set forth in the deed out of the triangular area. The deed itself which gives the point as 286.09 feet from land of Hood does not allow sufficient room for the line of the triangle and the line of McPherson Avenue which is 30 feet wide before it reaches the land of Brown. Similarly the deed of the remaining land (Exhibit No. 8) gives a distance of 408.85 to land of Julia I. Brown from land of Elizabeth R. Hood. In fact, the distance appears to be 462.72 feet or if Brown's land is viewed as the middle of McPherson Avenue, a somewhat lesser figure should be used.

The dispute between the parties centers on whether the starting point of the deed of the triangular piece was in error in fixing the point as 286.09 feet from land of Hood which eliminated at least 20 feet of McPherson Avenue or whether the plan which is referenced in both the deed of the triangular piece and the deed out of what had been the Julia Brown piece plus the triangular piece plus a portion of McPherson Avenue should control. The two early plans were prepared contemporaneously with the transactions in which there is reference to them and with the deeds encompassing the transactions and were recorded with the deeds which consummated the transactions. I find and rule that the starting point was in error and that on the circumstances of this case the plans which are read with the deeds control. In addition, it is a well ruled principle of law in this Commonwealth, that monuments control distances. Land of an abutter is a monument and that governs.

Since the deeds were drafted and delivered approximately seventy years ago, presumably no party involved in the transactions is available to testify to his intention. However, in the usual course of real estate conveyances the owner of the land or his broker engages a surveyor to accomplish the result which the owner seeks, and in each instance it was Mr. Litchfield who was hired. It is logical that he was instructed to prepare an extension of the rear line of the main house lot to Wild Rose Avenue, now Mann Hill Road. There would have been no reason to have the jog in this line for which the defendants contend. (Exhibits Nos. 2 and 10). The same result follows if the grantees arranged for the plan, for it is improbable that the grantor executed the deed without understanding what she was conveying.

The defendants argue that the triangular piece which was intended to be conveyed to the plaintiffs' predecessors in title was a remaining portion of Lot 46 on the Mound Farm plan after the layout of Wild Rose Avenue, but there is no support in the documents for such a theory. The deeds do not refer to Lot 46, and it is unclear whether the area conveyed would have contained the same number of square feet as the triangular parcel. If one measures the complete distance from the land of Hood to the intersection of what was Wild Rose Avenue and McPherson Avenue and follows the deed description around the property it is obvious that the distance along Wild Rose Avenue is sufficient to encompass the three parcels but that if the starting point referred to in the deed out is held, it is not.

I have concluded that in reconciling the deeds and plans, and in view of all the circumstances, it does less violence to the language of the recorded instruments and the presumed intention of the parties to place the property as shown on the plans incorporated in the deeds, rather than holding the distance set forth for the starting point from lands of Elizabeth Bond March.

On all the evidence therefore I find and rule that the plaintiffs hold title to the area in dispute free from any claims of the defendants or those claiming under them. I further find that the defendants have not acquired title by adverse possession to the disputed area although the plaintiffs, if they had not acquired record title as I have found they did, had acquired it by adverse possession.

This result leaves open the question as to the septic system which the defendants installed in good faith in the land claimed by the plaintiffs. It is the Court's opinion that the matter now should be resolved by a grant of an easement from the plaintiffs to the defendants for the maintenance of the septic system at a price to be negotiated by the parties and with provisions for maintenance, repair and replacement as counsel so agree. The plaintiffs are entitled to have the surface of the soil restored to the condition it was in prior to the installation of the septic system but without a replanting of the trees. Monetary damages should suffice as to them. If the parties so request a hearing may be held on the ultimate resolution of the practical problem. As to the presence of the septic system on the plaintiffs' land, while it is clear there is no private right of eminent domain, it would serve no useful purpose to require the septic system to be removed if there is no other area of the defendants' land where successful percolation tests might be had. The contrary result would cause the defendants to lose their home.

Judgment accordingly.