WILLIAM A. BONN and RUBEN A. CEBALLOS vs. ALEXANDER J. BROWN and JOADY A. BROWN

Plaintiffs filed their unverified complaint on June 10, 2010, pursuant to the provisions of G.L. c. 240, §§6-10, seeking to quiet title to a portion of their property (the “Disputed Area”) claimed by Defendants. On August 5, 2010, Defendants filed their Answer and Counterclaim, alleging adverse possession as to the Disputed Area. Plaintiffs filed their Reply to the Counterclaim on August 9, 2010. A case management conference was held on August 23, 2010. A pre-trial conference was held on April 4, 2011, at which Defendants raised the issue of arguing the doctrine of acquiescence and were granted permission to do so only if their argument required no new discovery or testimony. A site view and the first day of trial were held on September 12, 2011 at the Orleans District Court . The second day of trial was held at the Land Court in Boston on September 13, 2011. Post-trial briefs were filed on November 14, 2011. At that time, the matter went under advisement.

Testimony at trial was given by Plaintiffs’ witnesses John McElwee (“McElwee”) (professional land surveyor), Martin Donoghue (professional civil engineer), John Demarest (“Demarest”) (professional land surveyor), Joady Brown (Defendant), and Alexander Brown (Defendant). Testimony was given at trial by Defendants’ witnesses Sherman Merrill (prior owner of Defendant Property), Gary Burgess (grandson of prior owner of Defendant Property), and Donald Poole (“Poole”) (land surveyor). There were sixty-one exhibits submitted into evidence.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Benjamin Lancey (“Lancey”) was deeded two large, abutting parcels of land along Franklin Street in Provincetown, Massachusetts, on April 22 and April 23, 1867, respectively. Lancey made four conveyances of land from those parcels, currently known as 42 Franklin Street, 44 Franklin Street , 46 Franklin Street, and 48 Franklin Street. Lancey conveyed Plaintiff Property (as hereinafter defined) third and Defendant Property (as hereinafter defined) last. The respective deeds for Plaintiff Property and Defendant Property granted each lot forty feet of frontage along Franklin Street. The four deeds left an extra six feet of frontage along Franklin Street, which was not deeded out.

2. Defendants purchased property containing a single-family house located at 46 Franklin Street, Provincetown, Massachusetts 02657 (“Defendant Property”) by deed of Sherman A. Merrill, Jr. dated March 19, 1992, and recorded with the Barnstable Registry of Deeds (the “Registry”) at Book 7929, Page 124. The legal description is as follows: Beginning at the southeast [Note 1] corner of the premises by land now or formerly of Peter Morrill and running southwesterly by land of said Morrill one hundred fifteen (115) feet to a stake; thence running northwesterly by land now or formerly of Phineas N. Freeman thirty-five (35) feet to a stake; thence northeasterly by land of Antone Rego one hundred ten (110) feet to a private way leading to Franklin Street; thence southeasterly by said Private Way forty (40) feet to the point of the beginning. [Note 2]

Defendant Property is shown as Parcel 14 on Provincetown Assessor’s Map 6-3.

3. Plaintiffs purchased property containing a single family house located at 44 Franklin Street, Provincetown, Massachusetts 02657 (“Plaintiff Property”) by deed of Mark J. Thomson (“Thomson”) dated May 19, 2006, and recorded with the Registry at Book 21109, Page 187. The legal description is as follows:

Commencing at the Southeast [Note 3] corner of the premises, on a private road off Franklin Street by land formerly owned by Joseph Lewis; thence running SOUTHWESTERLY by land formerly owned by said Lewis one hundred forty (140) feet; thence running NORTHWESTERLY thirty-five (35) feet to land formerly owned by Benjamin Lancy, thence running NORTHEASTERLY by land formerly owned by said Lancy one hundred thirty-two (132) feet to a common passageway or private road; thence running SOUTHEASTERLY by said private road forty (40) feet to the point of the beginning.

Plaintiff Property is shown as Parcel 13 on Provincetown Assessor’s Map 6-3. Defendant Property and Plaintiff Property abut.

4. In late 1996-early 1997, Defendants replaced their septic system, and hired Coastal Engineering Co., Inc. (“Coastal”) to prepare a plan in that regard. Coastal prepared a plan titled “Sewage Disposal System” and dated July 9, 1996 (the “1996 Plan”). [Note 4] The westerly boundary of Defendant Property was listed as 111.46 feet long and had a directional of S28° 45’00”W. The easterly boundary of Defendant Property was listed as 116.77 feet long and had a directional of S31° 01’36”W, which came within inches of the southwest corner of Plaintiffs' house. In conjunction with the installation of the septic system, a hedge (the “Hedge”) that was located near the boundary line between Plaintiff Property and Defendant Property (as shown on the 1996 Plan) was removed. [Note 5] [Note 6]

5. Prior to the removal of the Hedge, Defendants had the westerly portion of the Hedge trimmed twice. Prior to one of these trimmings, Defendants sought permission from Plaintiffs' predecessor-in-title to have the easterly portion of the Hedge trimmed. Defendants were denied such permission.

6. In March or April 1997, Defendants constructed a wooden stockade fence (the “Side Fence”) to the east of where the Hedge had been located. The Side Fence runs approximately two-thirds the length of Defendants' easterly boundary from Franklin Street, and is in the general location of the easterly boundary of Defendant Property as shown on the 1996 Plan.

7. Following the construction of the Side Fence, Defendants utilized the area west of the Side Fence to park cars, store fishing boats and equipment, and provide an area for Defendants' child to play.

8. Donald Croxton and Douglas Pew own property to the south of Plaintiff Property and Defendant Property. Croxton and Pew had Felco Inc. (“Felco”) prepare a Survey Working Plan dated March 8, 2002 (revised September 9, 2002) (the “2002 Plan”) relative to their registration petition to the Land Court. The 2002 Plan shows both Plaintiff Property and Defendant Property in their entirety.

9. McElwee, a professional land surveyor creating the 2002 Plan, utilized no less than seven Land Court plans as references in creating the 2002 Plan. McElwee utilized a Land Court Bound at the northeast corner of Defendant Property, Plaintiffs' deed, and Defendants' deed to determine the front lot corners of Defendant Property and Plaintiff Property. McElwee found an iron pipe at the southwesterly corner of Plaintiff Property and ran the thirty-five foot deed distance easterly for the rear boundary of Plaintiff Property and came to another iron pipe at almost the exact deed distance. According to McElwee, there were no other pipes along the Plaintiff Property's rear boundary line. McElwee used the iron pipes and front lot corners to establish Plaintiff Property's boundary lines. Using the iron pipe at the southeast corner of Defendant Property, McElwee walked westerly the deeded distance of the rear of Defendant Property and located another iron pipe, which McElwee viewed as marking the southwesterly corner of Defendant Property. McElwee located Defendant's western boundary to the west of the Retaining Wall and Defendants' eastern boundary to the west of the Side Fence. The 2002 Plan was filed with the Land Court in conjunction with another plan designating the land claimed by Croxton and Pew and marking the southern boundaries of Plaintiff Property and Defendant Property by the iron pipes. The 2002 Plan showed the boundary line between Plaintiff Property and Defendant Property in a different location from the 1996 Plan (to the west of the boundary line designated in the 1996 Plan).

10. The 2002 Plan gave Defendant Property 40.22 feet of frontage on Franklin Street, 115 feet on the easterly boundary line, 33.78 feet on the rear boundary line, and 112 feet on the westerly boundary line. The 2002 Plan gave Plaintiff Property 46.8 feet of frontage on Franklin Street, 138.72 feet on the easterly boundary, 34.15 feet on the rear boundary, and 110 feet on the westerly boundary.

11. In 2005, Thomson, a predecessor-in-title of Plaintiff Property, installed a new septic system on Plaintiff Property. In this regard, a Site & Sewage Plan prepared for Thomson by Felco, dated July 28, 2005 (the “2005 Plan”), showed Defendants' easterly boundary in a different location than the 1996 Plan and substantially in the same location as shown in the 2002 Plan.

12. Coastal prepared another plan for Defendants titled “Existing Conditions Plan” dated April 12, 2006 (the “2006 Plan”) in conjunction with a claim Defendants were making relative to land south of Defendant Property owned by Croxton and Pew. The 2006 Plan showed the westerly boundary of Defendant Property as 108.99 but in a directional of N32° 02’52”E, and an easterly boundary as 115.62, but in a directional of S34° 08’18”W that roughly paralleled the westerly line of Plaintiffs’ house (approximately 2.5 to 4 feet away). The 2006 Plan identified the same two iron pipes shown in the 2002 Plan as designating the southern boundary of Defendant Property. The boundary line between Plaintiff Property and Defendant Property was also the same as shown on the 2002 Plan and the 2005 Plan. Coastal advised Defendants that the 2006 Plan (as compared to the 1996 Plan) accurately showed the boundary line between Defendant Property and Plaintiff Property. [Note 7]

13. In 2009, Plaintiffs planned to make an addition to their house and hired Coastal to prepare a plan titled “Site Plan Showing Proposed Building Addition,” which was dated April 23, 2009 (the “2009 Plan”). Plaintiffs' westerly boundary line is designated in the same place on the 2009 Plan as it is on the 2002 Plan, the 2005 Plan, and the 2006 Plan.

14. Iron pipes located at the southeast and southwest boundaries of both Plaintiff Property and Defendant Property were used in the 2002 Plan, the 2005 Plan, the 2006 Plan, and the 2009 Plan to designate boundary markers on the southern portions of Plaintiff Property and Defendant Property. [Note 8]

15. Joady Brown appeared before the Provincetown Planning Board in 2009 relative to the hearing on Plaintiffs' addition and objected to the 2009 Plan as showing Plaintiffs' westerly boundary in the wrong location.

16. Coastal prepared a sketch plan for Plaintiffs dated May 11, 2010 (the “2010 Plan”) that shows an overlay of the 1996 Plan and 2009 Plan. The northerly boundary point separating the two properties is located at a point on Franklin Street and is not in dispute. The 1996 Plan shows Defendants' easterly boundary line starting at that point on Franklin Street, then running 116.77 feet at a directional of S31° 01'36”W. The 2009 Plan shows Defendants' easterly boundary line starting at the same point on Franklin Street, but running 115.62 feet at a directional of S34° 08'18”W. The overlap of the boundary line between Plaintiff Property and Defendant Property in each plan defines the Disputed Area. [Note 9]

17. Poole testified at trial that in order to reconcile the boundaries set in the 1996 Plan with Plaintiffs' deed, Plaintiff Property must shift eastward, which would require Plaintiffs' easterly boundary line pass through buildings located on Plaintiffs' eastern abutter's property; the only other alternative would be denying Plaintiffs several feet of land granted in Plaintiffs' deed.

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Both parties argue that they own the fee interest in the Disputed Area, based upon the legal description in the deeds to their respective properties. Alternatively, Defendants claim they have title by adverse possession to the Disputed Area. However, Plaintiffs argue that Defendants do not meet the requirements for adverse possession because any use of the Disputed Area by Defendants was for less than the required twenty year time period. Defendants also argue that the proper location of the boundary line between Defendant Property and Plaintiff Property is the Side Fence, based upon the application of the doctrine of acquiescence. Plaintiffs argue that the doctrine of acquiescence may not be used to actively claim ownership of a fee owner's land and is thus inapplicable in this case. I shall examine each issue in turn.

I. Boundary Dispute.

The principal issue in this case is the ownership of the Disputed Area. Both parties argue that particular plans entered into evidence correctly delineate the correct boundary line between Plaintiff Property and Defendant Property as it relates to the Disputed Area. Plaintiffs argue that their position relative to the common boundary is shown consistently on the 2002 Plan, 2005 Plan, 2006 Plan, and 2009 Plan. They point out that the rear boundaries of both Plaintiff Property and Defendant Property are marked by iron pipes that have been recognized by the Land Court as boundary markers. [Note 10]

Defendants argue that the 2002 Plan, 2005 Plan, 2006 Plan, and 2009 Plan are not consistent with the boundary distances as specified in the pertinent deeds, particularly in regard to deed frontage. Furthermore, Defendants argue that the Side Fence and the Hedge serve as more accurate monuments that should control.

Both parties agree that the boundary intersection of the two properties on Franklin Street is correct and that it is the call that runs southerly from that point that is critical.

A. Evaluation of Various Plans Submitted Into Evidence

Where deed construction is at issue, a hierarchy of priorities for interpreting descriptions in a deed controls the analysis. Descriptions that refer to monuments control over those that use courses and distances; descriptions that refer to courses and distances control over those that use area; and descriptions by area seldom are a controlling factor. See Pauli v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Monuments, when verifiable, are the most significant evidence to be considered. Plaintiffs argue that iron pipes identified as boundary designators in the 2002 Plan, the 2006 Plan, and the 2009 Plan serve as such monuments.

Defendants argue that the iron pipes utilized by the 2002 Plan, the 2006 Plan, and 2009 Plan are not proper monuments to designate boundary markers. Defendants argue that the pipes have “no documented history” as being set by a surveyor and are not called for in any deed, despite their use in many plans. Instead of using the iron pipes as boundary markers, Defendants choose to rely upon the Retaining Wall shown in the 1996 Plan that is also not referenced in any deed. Defendants justify this decision by stating that the Retaining Wall serves as a practical location for the boundary line by its use as a wall, and that the iron pipes do not represent any such use or intent of a boundary by the owners. Although the Retaining Wall could be considered a monument, Plaintiffs' witness Demarest, a professional land surveyor, testified that he used the iron pipes as boundary markers because the length between the pipes was almost exactly as described in the deeds and that these iron pipes were typically used by a surveyor to mark a property corner. These iron pipes have been used and documented as boundary markers in plans before this court. [Note 11]

Defendants also rely upon the Hedge and the Side Fence as monuments. However, both of these structures present problems. In determining the boundary between Plaintiff Property and Defendant Property, Poole, in drafting the 1996 Plan, arbitrarily assumed that Defendants' predecessors-in-title planted the Hedge far enough to the west of Defendants' easterly boundary line such that the Hedge would not encroach on Plaintiff Property. [Note 12] There is, however, no evidence in the record of who planted the Hedge or for what purpose the Hedge was planted. Moreover, the center line of the Hedge is approximately in the location of the boundary line shown on the 2009 Plan. In addition, the evidence indicates that the Side Fence was installed by Defendants based on the location of the easterly boundary of the Hedge (rather than the center of the Hedge).

In defining Defendant Property and designating the boundary line between the properties, the 1996 Plan results in one of two undesirable outcomes. As Poole testified at trial, in order to reconcile the 1996 Plan with Plaintiffs' deed, Plaintiff Property must shift eastward, resulting in Plaintiff's easterly boundary line passing through buildings located on Plaintiffs' easterly abutter's property. Alternatively, the 1996 Plan denies Plaintiffs several square feet of their deeded land, the land encompassed by the Disputed Area. Moreover, numerous plans created after the 1996 Plan are at odds with the 1996 Plan's delineation of the boundary line between Defendant Property and Plaintiff Property.

Croxton and Pew, Defendants' abutters to the south, hired Felco (McElwee) to create the 2002 Plan for a registration petition to the Land Court. McElwee utilized numerous public records, including at least seven Land Court plans, to complete the 2002 Plan. The 2002 Plan used two iron pipes as boundary markers for the southern boundary of Defendant Property and determined that Defendant Property's eastern boundary line was located to the west of the Side Fence and thus west of the location designated in the 1996 Plan.

In 2005, Thomson, the predecessor-in-title to Plaintiff Property, hired Felco to create a plan for the installation of a new septic system on Plaintiff Property. This 2005 Plan located Defendants' eastern boundary line in substantially the same location as the 2002 Plan and west of the location designated in the 1996 Plan and the location of the Side Fence.

In 2006, Defendants hired Coastal to create the 2006 Plan in connection with a claim to land to the south of Defendant Property owned by Croxton and Pew, as shown in the 2002 Plan. Like the aforementioned plans, the 2006 Plan utilized the iron pipes to designate the rear boundary of Defendant Property and placed the easterly boundary of Defendant Property in virtually the same location as the 2002 Plan and 2005 Plan, to the west of the Side Fence and the location designated in the 1996 Plan. Furthermore, and most importantly, following the completion of the 2006 Plan, Coastal (Defendants' expert Poole) informed Defendants that the easterly boundary of Defendant Property was erroneously depicted by the 1996 Plan and correctly shown on the 2006 Plan. At trial, Defendant Alexander Brown confirmed he was notified of the discrepancy between the 2006 Plan and 1996 Plan and proceeded to submit the 2006 Plan to the Land Court as support against Croxton and Pew.

Finally, the 2009 Plan, created by Coastal for the purposes of a proposed addition to Plaintiff Property, locates the westerly boundary of Plaintiff Property in the same location as the 2002 Plan, 2005 Plan, and 2006 Plan, to the west of the location designated by the 1996 Plan and west of the Side Fence.

The 2010 Plan, which superimposes the 1996 Plan on the 2009 Plan, clearly shows that adhering to the 1996 Plan would result in Plaintiff Property having an irregular westerly boundary line that is not consistent with Plaintiffs' deed: one that runs southerly from Franklin Street for one hundred fifteen feet, juts westerly at 90 degrees for roughly six feet, then turns another 90 degrees and continues south for approximately twenty-five feet to Plaintiffs' rear boundary line. It is difficult to imagine such an irregular boundary line was intended by the grantor but not described in Plaintiffs' deed.

Using the iron pipes as boundary markers and measuring the deeded distance of Defendant Property places the boundary line between Plaintiff Property and Defendant Property in the middle of what would have been the Hedge, to the west of the Side Fence, and in conformance with the 2002 Plan, 2005 Plan, and 2006 Plan. The 1996 Plan inaccurately designated the boundary between Plaintiff Property and Defendant Property by placing the boundary too far east, which resulted in Defendants building the Side Fence upon land that belongs to Plaintiffs. Defendants were informed of this mistake by Coastal, the company that created both the 1996 Plan and the 2006 Plan. Moreover, Coastal advised Defendants that they had made a mistake.

As a result of the foregoing, I find that the correct boundary line between Plaintiff Property and Defendant Property is as designated on the 2002 Plan, the 2005 Plan, the 2006 Plan, and on the 2009 Plan, and as a result, Plaintiffs hold fee title to the Disputed Area. [Note 13]

II. Adverse Possession

Title by adverse possession can be acquired only by proof of nonpermissive use that is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Concord, 439 Mass. 416 , 421, 788 N.E.2d 546 (2003), quoting Kendall v. Selvaggio, 413 Mass. 619 , 621–22, 602 N.E.2d 206 (1992). See also G.L. c. 260, § 21. “Acts of possession which are ‘few, intermittent and equivocal’ [are insufficient to] constitute adverse possession.” Kendall v. Selvaggio, supra at 624, 602 N.E.2d 206, quoting from Parker v. Parker, 83 Mass. 245 , 1 Allen 245 , 247 (1861). The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. See Holmes v. Johnson, 324 Mass. 450 , 453, 86 N.E.2d 924 (1949). If any of the elements remains unproven or left in doubt, the claimant cannot prevail. See Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326, 237 N.E.2d 16 (1968); see also Tinker v. Bessel, 213 Mass. 74 , 76, 99 N.E. 946 (1912), quoting Cook v. Babcock, 65 Mass. 206 , 11 Cush. 206 , 210 (1853) (When evaluating whether a claimant's use is adverse, “[t]he acts of the wrongdoer are to be construed strictly and ‘the true owner is not to be barred of his right except upon clear proof'”).

Defendants argue that they and their predecessors-in-title have used the Disputed Area exclusively and adversely since at least 1950, based on the existence of the Side Fence and the Hedge. Plaintiffs claim that Defendants fail to prove that their predecessors-in-title installed and maintained the Hedge in a way that was open, notorious, exclusive, and adverse to Plaintiffs' predecessors-in-title for a period of at least seven years prior to the installation of the Side Fence in 1997.

a. Use of Disputed Area & Twenty Year Time Period

Both parties agree that installation of the Side Fence in 1997 and subsequent use of the Disputed Area, by itself, does not establish that Defendants have used the Disputed Area for the requisite twenty years. The crux of the issue is whether Defendants and Defendants' predecessors-in-title utilized the Disputed Area openly, notoriously, and adversely to Plaintiffs and Plaintiffs' predecessors-in-title for seven years prior to the construction of the Side Fence for a combined use of the Disputed Area for twenty years. If the use of the Hedge satisfies the requirements of adverse possession for the requisite period of time, it may be combined with the use of the Disputed Area enclosed by the Side Fence, and vest title to the Disputed Area in Defendants.

The evidence presented in the case at bar does not establish that Defendants and Defendants' predecessors-in-title continually used the entire Disputed Area and Hedge in a way that constitutes adverse possession. Defendants do not offer any evidence of the use of the Disputed Area and Hedge by their predecessors-in-title, or any use by Defendants themselves prior to the installation of the Side Fence, or that such use was open, notorious, or adverse. Therefore, the earliest the adverse possession time period could begin is the date of the construction of the Side Fence (Spring 1997), which is less than twenty years ago. This deficiency alone is be enough to dispose of the adverse possession claim. See Tinker v. Bessel, supra at 76 (requiring acts of wrongdoer be construed strictly and setting high bar for adverse possession to prevent wrongful taking of true owner's property).

However, Defendants contend that the existence of the Hedge prior to their purchase establishes adverse use by their predecessors-in-title. Defendants cannot show when the Hedge was planted or who planted it. Defendants fail to show the existence of the Hedge was adverse to Plaintiffs. Moreover, on one of the occasions Defendants had the Hedge trimmed, Defendants sought and were denied permission by Plaintiffs' predecessors-in-title to trim the eastern portion of the Hedge. In seeking permission to trim the Hedge, Defendants demonstrated a belief that the easterly portion of the Hedge, more or less from the halfway point of the Hedge eastward, belonged to the Plaintiffs' predecessors-in-title, and acted in congruence with that belief. [Note 14] Furthermore, no plan in the record shows the easterly side of the Hedge. The westerly side of the Hedge is parallel to the correct boundary of Defendant Property. Therefore, the use of the Hedge cannot be tied to the thirteen years of the existence of the Side Fence, and thus Defendants' claim of title by adverse possession must fail.

As a result of the foregoing, I find that Defendants' claim to title of the Disputed Area by adverse possession must fail because Defendants fail to prove they, or their predecessors-in-title, used the Disputed Area in a way that was adverse to Plaintiffs or Plaintiffs' predecessors-in-title for a period of twenty years.

III. Doctrine of Acquiescence [Note 15]

The doctrine of acquiescence, as established in cases concerning boundary disputes, provides that where a description in a deed is ambiguous, extrinsic evidence is admissible to show the construction given to the deed by the parties and their predecessors-in-title as manifested by their acts. See Ryan v. Stavros, 348 Mass. 251 , 260 (1964) (“The doctrine of acquiescence as established in cases concerning boundary disputes provides merely that, where a description in a deed is of doubtful or ambiguous import, extrinsic evidence is admissible to show the construction given to the deed by the parties and their predecessors in title as manifested by their acts”), quoting Methodist Episcopal Soc. in Charlton City v. Akers, 167 Mass. 560 , 563 (1897) and Morrison v. Holder, 214 Mass. 366 , 369 (1913). “[T]hese acts must amount to acquiescence in a line or fence or other indicium as a boundary. Mere acquiescence in the existence of a fence or line as a barrier or for some other purpose is not enough to establish a boundary.” See Ryan, 348 Mass. At 261 (emphasis in original). There is no evidence that Plaintiffs ever acknowledged, through their actions, that the Hedge or the Side Fence was an actual boundary between the two parties.

Most importantly, however, the doctrine of acquiescence is a defensive doctrine; the doctrine is to be used as a shield and not a sword. See Davenport v. Broadhurst, 10 Mass. App. Ct. 182 , 187 (1980). In other words, the doctrine is not used as a tool to acquire the land of the other, as Defendants are trying to do at the case at bar. Defendants may not attempt to justify an acquisition of the Disputed Area with a defensive doctrine. See id. at 187-88 (“Whatever may be said for the doctrines of acquiescence and latches as equitable defenses to a claim of trespass or encroachment, these equitable principles may be used as a shield but not a sword. They may serve a defendant from the expense of removing a structure built upon another's land, but they do not assist one in the position of the plaintiff in acquiring an easement over another's land.”) (internal citations omitted). [Note 16]

As a result of the foregoing, I find the Defendants' claim for possession of the Disputed Area by doctrine of acquiescence must fail because Defendants' attempted use of the doctrine is impermissible in this case.

As a result of the foregoing, this court orders that the Side Fence, which encroaches upon Plaintiff Property, must be removed at the expense of Defendants within sixty days of this Decision.

A final survey plan is to be created and recorded by both parties, marking the boundary line between Plaintiff Property and Defendant Property in congruence with this Decision.

Judgment to enter accordingly.