CHARLES E. WHITNEY vs. ESSEX COUNTY GREENBELT ASSOCIATION, INC.

This is a complaint to register title to approximately 73.68 acres of land in Boxford in the County of Essex situated on the westerly side of Bare Hill Road and the westerly side of Interstate Route 95. Essex County Greenbelt Association, Inc. claims to own a portion of the locus. Accordingly the ownership of this part of locus and its location is the sole remaining issue in the litigation.

A trial was held at the Land Court on November 25, 1991 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff called as witnesses Donald Desmond, president of Hancock Survey Associates, the firm that prepared the registration plan, Ellen Zipeto, an attorney at law who was appointed Land Court Examiner to review the records and report thereon and Charles Whitney, the plaintiff. The defendant called Paul J. Donohoe, also a registered land surveyor who previously worked for Hancock as well but who now has his own firm and Dorothy L. Woodbury, a title examiner familiar with the records of the title to land in Boxford who previously had worked for a well-known brokerage firm, one of whose brokers was a predecessor in title to the defendant. Forty-four exhibits and one chalk were introduced into evidence, all of which are incorporated herein for the purpose of any appeal. On all the evidence I find and rule as follows:

1. The locus is a large tract of land which apparently has never been built upon and has remained vacant land until the present, surely due at least in part to the title difficulties now faced by the plaintiff. It lies to the west of Bare Hill Road as relocated by the Commonwealth of Massachusetts and Interstate Route 95, all as shown on a plan entitled "Plan of Land in Boxford, MA" dated December 24, 1987 by Hancock Survey Associates filed with the Land Court as Plan No. 42314A (Exhibit No. 2).

2. The plaintiff acquired title to the premises by three deeds: one from Henry Blake dated February 15, 1985 and duly recorded with Essex South District Deeds (to which registry all recording references herein refer) in Book 7662, Page 221, a second from Barbara C. Perley dated February 16, 1985 and recorded in Book 7665, Page 434 and a third from the Charles H. Chaplin Trust dated September 3, 1987 and recorded in Book 9179, Page 335. Mr. Whitney conveyed the premises held either by him individually or as trustee of a 1985 trust to himself as trustee under a declaration of trust dated February 1, 1989 and recorded in Book 9915, Page 446 by deed dated February 28, 1989 and recorded in Book 9915, Page 456; he subsequently executed a confirmatory deed dated November 21, 1990 and recorded in Book 10636, Page 288. After this registration complaint was filed another portion of locus was acquired by the plaintiff by deed from Richard H. Ford et al by deed dated February 22, 1989 and duly recorded in Book 9915, Page 444.

3. The Land Court Title Examiner had no difficulty so far as the adequacy of the title to the parcels conveyed to Whitney. The difficulty which she found in examining the title is in placing the parcels in the record title on the ground within the framework of the registration plan. She painstakingly attempted through an analysis of the title to abutting properties, both within and without the locus, and from other extrinsic aids to report on the extent on the plaintiff's title.

4. The only remaining claim to locus is that made by the defendant Essex County Greenbelt Association, Inc. which acquired its interest as a gift from Robert Livermore, Jr. et al to the trustees under an agreement and declaration of trust entitled "Essex County Greenbelt Association" ("Greenbelt") dated April 18, 1961 and recorded in Book 4837, Page 210. The deed to Greenbelt is dated December 7, 1973 and recorded in Book 6034, Page 715. [Note 1]

5. The grantors to the defendant had acquired their interest through the estate of Robert Livermore and his widow, Mr. Livermore being a well-known North Shore real estate broker and the developer of a subdivision immediately to the south of locus. He acquired his interest from Clinton E. French by deed dated February 5, 1947 and recorded in Book 3510, Page 83 (Exhibit No. 32). The description of the first parcel in the deed when the rods and links are converted to feet fits very well within the area of locus, both as to distance and abutters, where Mr. Donohoe placed it. The French deed also conveyed to Livermore a second parcel of five acres but in this instance the description is less than precise reading only as follows: "Also another lot containing five acres more or less, and bounded on the above described parcel of land or land formerly of Nathan Andrews and on land of others".

6. When the Commonwealth of Massachusetts laid out Route I- 95 they took two small triangular parcels from Livermore interests, one designated as Parcel No. 26 and the other Parcel No. 28. In the original deed out to Greenbelt there was excluded from the conveyance Parcel No. 26, but a confirmatory deed was executed after the commencement of this litigation in which the reference was changed to Parcel No. 28. Parcel No. 26 is well south of locus where Parcel No. 28 falls within I-95 adjacent to the land claimed by the plaintiff.

7. The surveyor whose firm prepared the registration plan was less than helpful, in his testimony as to the location of the numerous parcels included within locus; on the ground there are stone walls which denominate certain of the parcels which make up locus as well as most of the southwesterly boundary. There also are interior stone walls which may or may not have been boundaries or may have served some agricultural purpose. There was no testimony on behalf of the plaintiff that would have been enlightening on this. There was, however, convincing testimony at the trial that the first parcel in the deed to the defendant was situated as shown on Exhibit No. 27, a sketch made by Paul J. Donohoe, a registered land surveyor. At the time he prepared the sketch he was working for Hancock Survey Associates and was in the field working on the plan of the adjacent Twitchell property for the plaintiff. To some extent the defendant's representatives located its claim on the ground for Mr. Donohoe, but the bounds found by Mr. Donohoe seemed to accurately denote the first parcel. This parcel appears to be correctly placed. It is impossible for anyone to be certain of the location of the second five acre Livermore parcel other than to agree that it abuts the first parcel in the deed. However, if it is placed as Mr. Donohoe has done, adjacent to the first parcel where its northeasterly corner falling within the I-95 layout, it ties in with the taking from Livermore and solves the puzzle.

8. The plaintiff in 1985 recognized the location of the defendant's property as claimed by it at a time when he initiated a proposal for an exchange (Exhibit Nos. 26A and 26B), but apparently the negotiations to consummate the exchange were never finalized.

The burden is on the plaintiff to establish by a preponderance of the evidence that he has sufficient title for registration of the land shown on the filed plan. This he has failed to do since I find and rule that there is situated within the boundaries of locus the land claimed by the defendant and located approximately as shown on Exhibit No. 27. Those who have attempted to unravel the title to the area have found it difficult to trace the titles and to place them on the ground, but I recognize that as to the principal portion of locus the title is satisfactory for registration. The plaintiff has shown sufficient title to the remainder of the land shown on the filed plan to warrant the entry of a decree of registration thereof subject to such matters as are shown by the abstract and not an issue here, including the stipulation with other defendants who have withdrawn subject thereto. No order for a decree registering the title to the plaintiff's land remaining after the Greenbelt claim is recognized can enter, however, until the plaintiff files an amended registration plan eliminating the two parcels claimed by the defendant (or a plan of that part of locus affected by the dismissal sufficient for the Land Registration Office to prepare a registration plan). The Court also has a question as to the placement of the second parcel claimed by the defendant since the triangular parcel shown as Parcel No. 28 on the taking plan appears to be located somewhat southerly of the triangle claimed to be a depiction thereof on Exhibit No. 27. However, the presence of stone walls on the ground in this location within which the parcels as described in the Livermore chain fit suggests that these parcels have been correctly placed. If the plaintiff elects to proceed to register the remainder of his land, it now will be shown as two parcels since they will be noncontiguous. The Court also will afford sufficient time before taking any final action on this land for the parties to renegotiate any proposed exchange.

Judgment accordingly.