REG 42311

January 3, 1992

Norfolk, ss.




These are two companion registration cases in which Petitioners' petitions for registration were both opposed by Respondent Massachusetts Audubon Society (Audubon). Mary A. Perry (Perry) seeks to register a 24.44 acre parcel (the Perry Parcel) on the northerly side of Marshall Street in the Town of Norfolk. Henry Johnson (Johnson) seeks to register an 8.9414 acre parcel (the Johnson Parcel) off the northerly side of Marshall Street, abutting part of the Perry Parcel to the west.

Appearances were filed on behalf of an abutter, Freeman, and abutters, Pantazi. Freeman filed only to protect an easement, to which Pantazi objected. Pantazi was defaulted for failure to appear and Freeman took no further part in either action. The two actions were consolidated for trial and the same counsel represented both Petitioners.

In Case 42311, Land Court Examiner, Erik A. Anderberg, Esq. in his Abstract, reported that the Petitioner (Perry) does not have good title, proper for registration. Having later reviewed the title to the Johnson Parcel, he altered his opinion in his oral testimony and concluded Perry has registerable title. In Case 42469, he reported that Petitioner (Johnson) does have good title for registration.

A trial was held on January 18, February 14 and February 15, 1991. A stenographer was appointed to record and transcribe the testimony. Twenty-seven Exhibits (some with multiple parts) were introduced into evidence and all of them are incorporated in this Decision for purposes of any appeal. Seven chalks were presented. Decision was delayed for months because the parties thought they might settle.

The following witnesses testified: Mr. Anderberg and Paul N. Robinson (a Registered Land surveyor, who prepared the petition plans in both actions), both testifying for Petitioners; and Emily Preston, Sanctuary Director of Audubon's Stonybrook Nature Center and Wildlife Sanctuary; William R. Buckley, registered land surveyor; Cynthia Thomas, former Director of the Stonybrook Sanctuary; George Dusty, an employee of Audubon at the Stonybrook Sanctuary; and Michael H. Marsh, Esq., an expert title examiner, all appearing for Audubon.

I find and rule against Johnson and in favor of Perry as follows:

1. As shown by the petition plan (references in this Decision to the "Plan" are to the applicable petition plan), the Perry Parcel is ten sided, including 676.47 foot frontage on the northerly side of Marshall Street, a public way. It extends back from the street approximately 840 feet at its northeasterly corner and approximately 1560 feet at its northwesterly corner. Two of its bounds, northeasterly bounds, are roughly parallel with Pond Street, being from about 750 feet to 400 feet distant therefrom. As shown on the Plan, the Johnson Parcel is a five sided parcel lying to the west of the Perry Parcel sharing a 773.30 foot common boundary with it. The Johnson Parcel has no frontage on any street, being about 600 feet northerly of Marshall Street. According to the Plan, Audubon is Perry's abutter to the northeast and northwest and Johnson's abutter to the northwest and west.

2. Mr. Anderberg testified as to the Johnson Parcel: he commenced his abstract of title with a deed into one William Hill in 1926 of a parcel said to contain about 10 acres, recorded at Norfolk County Registry of Deeds (to which all recording references in this Decision refer) at Book 1711, Page 304; the Town of Norfolk took the Johnson Parcel from Hill in 1937 for non-payment of taxes; the Town's tax title was assigned to Johnson in 1971; and the tax title was foreclosed by Johnson in this Court in 1974, by decree recorded in Book 5099, Page 552.

3. As to the Perry Parcel, Mr. Anderberg testified: his abstract commences with an 1804 deed, Book 22, Page 17, (Exhibit 4) of an area estimated at 110 acres both north and south of Marshall Street, plotted on Chalk C. The critical deed out from the 110 acres is an 1822 deed at Book 66, Page 283 to Timothy Hill (Exhibit 5) (the Timothy Hill Deed). The second parcel in that deed is a parcel said to contain about 28 acres, having a frontage on Marshall Street of 683.1 feet. The easterly boundary in that deed does not have appear to follow exactly the easterly bound in the 1804 deed; Mr. Anderberg cannot explain the discrepancy but believed that the 1804 easterly boundary was to the east of the easterly boundary of the Perry Parcel, that is, it included it. His conclusion is that the Timothy Hill Deed includes the Perry Parcel and adjoining land. The subsequent deeds in the chain for the Perry Parcel involve three variations in the description (a mortgage description at Sheet 12, a description at Sheet 21 which includes land south of Marshall Street, and a description at Sheet 55, the final description), leaving title in Anthony Perry and Mary A. Perry. There is a missing probate for Anthony to bring the title into Mary A. Perry solely.

4. I adopt as findings the various matters set forth in the two immediately preceding paragraphs, except insofar as the same relate to the location of the Johnson Parcel (which I deal with below). Audubon does not dispute the chains of title described by Mr. Anderberg; rather, it disputes that they relate to the Johnson Parcel and the Perry Parcel as located on the Plans. The nub of the problem in both actions is that Audubon has competing chains of title, which it says give it all of the Johnson Parcel and a substantial portion of the Perry Parcel. Perry, says Audubon, has title to only a portion of the Perry Parcel, and Johnson may have title to a parcel of some size somewhere, but not the Johnson Parcel in the location shown on the Plan. All parties agee, and I concur that the description in the deed by which Audubon claims title, a 1972 deed from Lasky recorded at Book 4847, Page 674 (included in Exhibit 20, the "Lasky Deed"), includes all of the Johnson Parcel and the northerly portion (perhaps three-fifths of the whole) of the Perry Parcel. (Johnson and Perry contend, of course, that their chains of title control over the Lasky Deed.) The Lasky deed also includes land to the west of the Johnson Parcel and the Perry Parcel, which land to the west is not involved in these proceedings.

5. Mr. Anderberg defended his locating of the Johnson Parcel by reference to abutting parcels (including his examination of the Perry Parcel) as well as evidence of boundary markers. In the deeds in the Johnson chain there are references to stakes and stones at corners of the demised premises. There are stones, nails and drill holes at four of the five corners of the Johnson Parcel as shown on the Plan, but it is not clear to me that they are the monuments referred to in the deeds.

6. Mr. Anderberg testified that, in his opinion, based on references to abutters, earlier deeds in the Audubon chain do not include the Johnson Parcel or any portion of the Perry Parcel. He finds the Lasky deed unsupported by the earlier deeds relied on by Audubon.

7. Audubon attacked Mr. Anderberg's conclusions (and those of Surveyor Robinson, who agreed with Mr. Anderberg as to the location of the two parcels) by pointing out the lack of bearings or distances in the deeds in the Johnson chain, ambiguities as to references to monuments on the ground (stakes and stones for the most part), discrepancies between various deeds in the Perry chain, the lack of any reference in the Johnson chain to a right of way leading to Marshall Street (the Johnson Parcel is landlocked) and, most importantly for the Johnson Parcel, the existence of a parcel owned by Lucas or Lucius Pond (the "Pond Parcel"), which Audubon contends contradicts the location claimed for the Johnson Parcel. Audubon introduced deeds which it said support the Lasky Deed. It also introduced evidence, which I accept, that Audubon has been actively using, and has posted, the land described in the Lasky Deed since 1972.

8. As to the Johnson Parcel, I conclude that Johnson has not met his burden of establishing its location. I agree that the record supports an ownership in Johnson of land somewhere. The deed descriptions indicate that to be approximately ten acres; Johnson claims just under nine. Acreage figures without bearings and distances (as is the case as to the Johnson chain) are suspect, however. Whatever the amount of Johnson's ownership, one cannot tell where it is with enough certainty to allow registration. There is a strong likelihood that Johnson owns some part of the Johnson Parcel, but the record does not show clearly how large Johnson's ownership is or where it is located. Perhaps Johnson's ownership includes land of Audubon to the west of the Johnson Parcel. There simply is not enough acreage to accommodate all the pieces that are supposed to fit into the 1804 deed described at paragraph 3 above, which encompasses the entire area involved in both these actions.

9. Audubon's Lasky Deed is suspect, as Johnson suggests. From a chain of title which describes land leading westward to North Street, we switch without explanation to a description which marches all the way to the east to the lands of the owners fronting on Marshall and Pond Streets, to take in a portion of the Perry Parcel. However, Johnson cannot make his case by exposing weaknesses in Audubon's.

10. The following findings are relevant as to both parcels. George Fairbanks was the original owner of the Johnson Parcel and the Perry Parcel (and perhaps more), by virtue of the 1804 deed described at paragraph 3 above. As mentioned there, in 1822 Fairbanks conveyed out in the Timothy Hill Deed a parcel estimated to contain 28 acres having a frontage on Marshall Street of 683.1 feet. The frontage claimed for the Perry Parcel on the Petitioner's plan in Case 42311 is 676.47 feet. I conclude that the Timothy Hill Deed frontage is the same as that of the Perry Parcel and that the Perry Parcel does not include any land outside the limits of the Timothy Hill Deed.

11. The Timothy Hill Deed properly describes its westerly boundaries as remaining land of Fairbanks. Petitioners' Chalk B sets forth a series of deeds whereby the land to the west of the Timothy Hill land is conveyed out. Not all those deeds are in evidence and at some points I have difficultly following those that are. The Chalk indicates that a deed to Daniel Blake at Book 92, Page 247 (a predecessor in the Johnson chain of title) finishes the process whereby all of Fairbanks' land west of Hill is deeded out. That process must have included a deed out of the Pond Parcel, although no-one can identify that deed or how the Pond Parcel came to be owned by Benjamin Blake.

12. Exhibit 3 is an 1834 deed of the Pond Parcel from Benjamin Blake to Lucas Pond and Smith Pond, Book 154, Page 205. It conveys unimproved land "bounded as follows, viz. northerly, westerly and southerly on land of Daniel Blake and easterly on land of Timothy Hill, or as the bounds may be otherwise defined." Thus, the Pond Parcel appears to be located within Daniel Blake's parcel. The only thing definite about it is that it is bounded on the east by Timothy Hill, as would be expected.

13. Next is a 1863 deed from Daniel Blake's successor, Latimer Blake, to Ann Mercy Jordan, Book 314, Page 101 (Exhibit 1). That is of a parcel said to contain 30 acres and bounded westerly by North Street, southerly by Marshall Street, easterly by Asa Hill, northerly, easterly and southerly by Lucas Pond, easterly by Asa Hill and northerly and northwesterly by Charles Jordan (a successor of Benjamin Blake) and McGaw. This deed, therefore, honors the Lucas Pond Parcel - the easterly abutter is Hill, as we would expect, and, again as we would expect, the line detours west, north and then east, around the Pond Parcel, back to Hill. But we still have no idea how large or where the Pond Parcel is.

14. Book 496, Page 74 (included in Exhibit 13) is a 1877 deed from a successor of Ann Mercy Jordan, Andrew L. Davis, to Susan E. Morse of an area said to contain 23 acres more or less, which comes out of the parcel conveyed to Ann Mercy Jordan. This deed is the beginning of the chain which ends in Freeman and Gray, as shown on the Plan.

15. Next is an 1880 deed (Exhibit 2) from a successor of Ann Mercy Jordan of an approximately 10 acre portion of her 30 acres, at Book 516, Page 226 (we are thus now at 33 acres). The description of this parcel, which Mr. Anderberg says is the Johnson Parcel, commences at a corner of Lucas Pond's land, then runs northeasterly by Pond, northerly by Asa Hill, westerly and southerly by Charles A. Jordan and southeasterly by Jordan, now of Willard A. Morse, to the point of beginning. It is thus a five sided parcel, as in the Jordan Parcel. Starting at the northwesterly corner of the Pond Parcel, the first four lines (the first being the northerly line of the Pond Parcel) are the same as the corresponding lines in the 1863 deed into Ann Mercy Jordan. The fifth boundary merely runs southeasterly to close at the point of beginning. That still leaves the location of the Johnson Parcel unclear, since, particularly, there are no distances on any of the bounds. I also note that the easterly boundary of the Jordan Parcel as shown on the Petitioner's plan is a line running approximately northwest instead of northerly, as called for in the deeds.

16. I conclude that the Pond Parcel lies somewhere within the Johnson Parcel. The deed referred to at 13 above wraps around the Pond Parcel. The deed at 14 above is a deed out of the 30 acre parcel. Next in time is the deed at 15 above, which is the beginning of the Johnson Parcel. The size of the Pond Parcel is shrouded in as much mystery as its location, but what evidence there is (particularly a subdivision plan, Exhibit 24) suggests between 5 and 7 acres.

17. None of the expert witnesses could bring the title of the Pond Parcel down to date; it simply disappears in a series of subdivision deeds early in this century. It is not shown on assessor's plans. However, it existed and it almost certainly lay north of the Freeman/Gray land. With it unexplained, Johnson's case fails.

18. Returning to the Timothy Hill Deed and the Perry Parcel, I conclude, as stated above, that its southerly boundary almost exactly describes the Marshall Street frontage of the Perry Parcel. I also conclude (primarily because of the jog in the line and because modern deeds of the easterly abutters honor the line as shown on the Plan) that its easterly boundary follows the easterly boundary of the Perry Parcel.

19. However, since there are no distances set forth for that line, I cannot say that its northerly-most portion (after the jog) is the same length as that shown on the Plan. The description in the earlier, 1804, deed is quite precise and, as plotted on Chalk C, takes in not only the Perry Parcel but land to its east and north. Perry does not claim any of that excess land, however.

20. Such confusion as may exist as to whether the easterly and northerly bounds of the 1804 deed and the Timothy Hill Deed coincide is not important in resolving the next, and more serious, problem - the length of the northerly line of the Perry Parcel. The Timothy Hill Deed states it as "bounded Northerly on said Benjamin Blakes's land (correct abutter) (947.1 feet) to a white oak tree and stones". That 947.1' leaves one far (about 400') short of the westerly boundary of the Perry Parcel as shown on the Plan. 947.1 feet brings one to a point just above the number 1185.61 as shown on the Plan. On the other hand, surveyor Robinson shows a 14' white oak, with stones around its base, at the end of the bound where Perry claims it. A picture of the tree in question was introduced, with testimony from Audubon's witnesses which cast doubt on whether the tree was a white or black oak and as to the age of the tree - also that there were other white oaks in the area.

21. The next two bounds are "westerly on my own land (1188') from said white oak to a stake and stones by the fence, thence bounded southerly and westerly on my own land to the first corner..." A line drawn southerly from the 947.1 foot point brings one to about 125' from the road, well beyond the only fence shown on the plan. On the other hand, a 1188' line dropped southerly from the northwesterly corner of the Perry Parcel as shown on the Plan brings one much closer to the fence and the concrete bound at the southeasterly corner of the Johnson Parcel as shown on the Plan (the 1188' line extends about 175' past the concrete bound). In short, the 947.1' dimension and the 1188' dimension are irreconcilable.

22. The next description used for this land, starting at Sheet 12 in the Abstract and used in instruments through 1877 is a four sided 28 acre description which recognizes abutters correctly but is so vague as to be totally unhelpful.

23. At sheet 21 in the Abstract, this land is included in an 1886 deed which uses a description of land on both sides of Marshall Street. That description is used in various instruments through 1933. It is equally unhelpful.

24. This property is at times referred to as the "wood and sprout land". I have no idea what the "sprout" refers to but I do note that in the inventory of Asa Hill (next successor to Timothy), Sheet 18 of the Abstract, the "Wood and sprout" real estate is stated at 20 acres, not 28.

25. In 1936, Sheet 49 of the Abstract, the final description appears. The southerly bound is by Marshall Street. The easterly bound contains inconsistencies but I conclude it leads one to the northeasterly corner of the Perry Parcel as shown on the Plan (or perhaps further north to the survey line shown on Chalk C, but it makes no difference which).

26. The description continues, "Thence northwesterly on land formerly of said Wood now or late of one Thompson (these abutter references are correct) following an old survey line to a pile of stones." The survey line is the northeasterly boundary of the Perry Parcel as shown on the Plan (or the northeasterly line as shown on Chalk C, but, again, it matters not). Audubon plots this line on Chalk G as extending only to the stones found a little more than halfway along the line, a position which it notes is reasonably consistent (about 150 off) with the 947.1 dimension referred to above. However, as discussed above, there are also stones further along the line, at the northerly-most corner of the Perry Parcel as shown on the Plan.

27. Continuing: "Thence westerly along a leading way to a stake and stones for a corner." There is an unlabeled way shown on the Plan leading across the Perry Parcel, starting just inside the northeasterly boundary at the stones pointed to by Audubon on Chalk G; it leads southwesterly and dead-ends inside the Perry Parcel. Audubon suggests that is the "leading way".

28. There was testimony that a "leading way" is a way which leads to a street, as opposed to a way which dead-ends. There is a way shown on the Plan which leads from Marshall Street and touches the westerly-most corner of the Perry Parcel and then the northerly-most corner (at the respective ends of the 303.64' bound) and then proceeds to Pond Street. The Plan shows stones at the westerly-most corner and, as stated above, stones and a white oak tree at the northerly-most corner.

29. The description then concludes: Thence southerly to a stake in an old wall for a corner, thence easterly to the end of the wall, thence southerly to the point of beginning" (on Marshall Street). I conclude that the first of those three lines is the 773.30 westerly boundary of the Perry Parcel, with the next two lines being the jog to the east, totaling 128.03', and the 620.19 westerly boundary, respectively.

30. I conclude that the 1936 description encompasses the Perry Parcel as shown on the Plan. The "leading way" is the westerly "cart road 8-10' wide". The "leading way" suggested by Audubon is a dead end as shown on the Plan and not of the significance as the one which I refer to. Moreover, Audubon's "leading way" does not end with stones, as called for in the description; the "cart road" does. Audubon's alternative suggestion, that the "leading way" is a cart road leading off the northeasterly boundary about 300' from its easterly end is completely implausible.

31. The "leading way" bows slightly outside the 303.64' northwesterly boundary of the Perry Parcel; Perry does not claim the land within the bow and I honor that.

32. Accepting Perry's claims for the Perry Parcel involves two main problems. The first is the 947.1 dimension. It simply does not fit; it should be about 1347'. The second is that the Timothy Hill Deed does not describe the bend in the westerly boundary formed by the 303.64" and the 773.30" lines. I conclude that the dimensional discrepancy is an error and that the lack of reference to the bend in the line is an imprecision.

33. To summarize: I have no hesitancy about the southerly bound of the Perry Parcel - that is Marshall Street as shown on the Plan. I am satisfied that the easterly boundary is as shown on the Plan. Similarly, as to the northeasterly bound, although, as stated, its length is more of a problem. On the westerly side, I am convinced that the first two lines leading off Marshall Street are as shown by the Plan. Audubon's brief concedes that, except for the length of the wall. With that much of the parcel established, the solutions proposed by Audubon make much less sense than to follow the rest of the westerly boundary as shown by the Plan. The two portions of that when combined total 1076.94', not far off the 1188' in the Timothy Hill Deed. And the plan lines are consistent with the 1936 description, if one accepts, as I do, that the "leading way" is as I have found it.

34. The 1936 description does not mention any bend in the northeasterly line. However, the bend which the plan shows is not a major bend and does not violate the 1936 description - "following an old survey line".

35. I accept that Audubon has used all or portions of the Johnson Parcel and the Perry Parcel since it acquired title in 1972, but since Petitioners commenced these actions in 1988, Audubon's activities fall short of the 20 years necessary for adverse possession, even if the nature of the activities were sufficient.

36. Assessor's records and plans have at one time or another supported both sides of this controversy, depending on whose plans were most recently on record at the Registry. I attach no weight to the assessor's materials.

37. In Case 42311 a decree may be entered registering the title of Petitioner to the Perry Parcel subject to such matters as may appear in the abstract and are not in issue here. In Case 42469 the Complaint for registration must be dismissed.

Judgment accordingly.