EDWARD J. SAAB, TRUSTEE OF MERIAM STREET NOMINEE TRUST v. PETER E. KOSTORIZOS, TRUSTEE OF THE PETER E. KOSTORIZOS REVOCABLE TRUST OF 2005, and ANNE T. KOSTORIZOS, TRUSTEE OF THE ANNE T. KOSTORIZOS REVOCABLE TRUST OF 2005

Introduction

At issue in the instant matter is the location of a common boundary, lying between properties owned by the plaintiffs and defendants, respectively. Plaintiff Edward J. Saab, Trustee of the Meriam Street Nominee Trust (plaintiff) holds record title to land improved by a residential dwelling at 57 Meriam Street in Lexington, Massachusetts (Meriam Street Property / Samia Property). Leonard J. Samia and his family reside at the Meriam Street Property. The general area of the Town in which these properties are located is known as Oakmount Park, a 1903 subdivision. [Note 1]

Directly abutting the Samia Property to the north, located at 36 Oakmount Circle in Lexington, is the land owned by the defendants, Peter T. Kostorizos as Trustee of the Peter T. Kostorizos Revocable Trust of 2005 and Anne T. Kostorizos as Trustee of the Anne T. Kostorizos Revocable Trust of 2005 (Oakmount Circle Property / Kostorizos Property).

The segment of Meriam Street which is most relevant to this discussion lies fairly parallel to the corresponding segment of Oakmount Circle. Located between Meriam Street and Oakmount Circle are several lots improved with residential dwellings, including the Samia Property and the Kostorizos Property. The boundary in dispute is the common lot line which runs between the said Properties, from Meriam Street to Oakmount Circle. [Note 2]

In the verified complaint, the plaintiff alleges that the actual boundary lies approximately three feet to the north of the location where the defendants would site the boundary line. Accordingly, there is a disputed strip of land which is being contested by the parties. At its widest point, the disputed area measures approximately three feet.

The plaintiff seeks to quiet title, alleges trespass and requests a declaratory judgment. For their part, the defendants, by way of counterclaim also seek to quiet title, allege trespass and seek a declaratory judgment pursuant to G.L. c. 231A.

The common boundary in dispute was the subject of prior litigation. On July 30, 1993, then plaintiff Peter T. Kostorizos filed a complaint in Middlesex Superior Court, seeking to determine respective rights in an easement burdening his land for the benefit of the Samia Property. On June 27, 1994, Kostorizos filed a complaint seeking to register the premises at 36 Oakmount Circle. The Superior Court case was transferred to the Land Court under G.L. c. 212, s. 26A on or about October 21, 1994. Thereafter, the cases were consolidated and tried over a three day period in October, 1999 before Lombardi, J. [Note 3] At issue in the registration case was the location of the disputed boundary as well as the ownership of the disputed strip.

In his decision, Judge Lombardi determined as follows:

Because neither party has provided credible survey evidence as to the location of their lots situated between Oakmount Circle and Meriam Street, I am unable to determine the location of the disputed boundary to the degree of exactness demanded by the parties. Kostorizos v. Samia, 9 LCR 117 , 122 (2001).

As a consequence, the registration case was dismissed pursuant to G.L. c. 185 §44. The Judge concluded as follows:

After more than seven years of litigation, this decision unfortunately leaves the parties with an unsatisfactory result. The lack of civil discourse between the parties and their counsel has in all likelihood prevented them from resolving this controversy years ago. The parties thus remain where they started, i.e. disagreeing over the correct location of the disputed boundary.

The parties must now consider their options. The parties, of course, may retain the services of surveyors to prepare new surveys in anticipation of further litigation. Alternatively, the parties could sit down and settle their outstanding differences with or without the assistance of a neutral third party. The choice belongs to the parties.” Id. at 123.

The prior matter bears relevance to the case at bar, inasmuch as the defendants herein raised the issue of res judicata with their motion for a directed verdict at the close of the plaintiff’s case in chief. While the Motion for a Directed Verdict was denied, the defendants’ Motion to Dismiss, predicated upon the claim of res judicata, was to be taken under advisement after being fully briefed and further argued by the parties.

Res Judicata

A post trial hearing was conducted on the issue of res judicata. Plaintiff has moved to strike defendants’ Res Judicata brief. That Motion was taken under advisement and is now Denied.

Res judicata is a “generic term for various doctrines by which a judgment in one action has a binding effect in another. It comprises ‘claim preclusion’ and ‘issue preclusion.’ ‘Claim preclusion’ [Note 4] is the modern term for the doctrines traditionally known as ‘merger’ and ‘bar,’ and prohibits the maintenance of an action based on the same claim that was the subject of an earlier action between the same parties or their privies. ‘Issue preclusion’ [Note 5] is the modern term for the doctrine traditionally known as ‘collateral estoppel,’ and prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.” Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). At issue in the present case is whether the doctrine of issue preclusion prevents maintenance of this claim, and mandates a dismissal.

In the case of Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366 , 372 (1985), the Court, quoting the Restatement (Second) of Judgments, §27 (1982) made the following pertinent observation:

The general rule of issue preclusion provides that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim". “The purpose of the doctrine is ‘to conserve judicial resources, to prevent the unnecessary costs associated with multiple litigation, and to ensure the finality of judgments.’" Alba v. Raytheon, 441 Mass. 836 , 841 quoting Martin v. Ring, 401 Mass. 59 , 61 (1987).

In the case now at bar, there are factors that facially, at least, lend credence to defendants’ invocation of the principles of “issue preclusion.” Thus, the respective parties to both actions are in direct privity, [Note 6] and both actions turn on the resolution of a single issue, the location of the disputed boundary. [Note 7] However, the decision rendered in Kostorizos v. Samia, 9 LCR 117 (2001) lacks two critical elements, i.e. the requirement that the issue be “actually litigated and decided” or determined, and that there be “finality,” or a final judgment.

An issue is actually litigated when “an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.” Restatement Second of Judgments §27; Jarosz v. Palmer, 436 Mass. 526 , 532 (2002). In the previous litigation, the location of the disputed boundary was properly raised as an issue and submitted to the court for determination. However, it was plainly left unresolved. In this regard, the trial judge observed that he was “unable to determine the location of the disputed boundary to the degree of exactness demanded by the parties.” Consequently, as that issue cannot be said to have been determined by the court, the principles of issue preclusion have not been sustained.

Moreover, the decision, with respect to the location of the disputed boundary, was not “final” for the purposes of issue preclusion. The defendants argue that a determination is considered final when "the parties were fully heard, the judge's decision is supported by a reasoned opinion, and the earlier opinion was subject to review or was in fact reviewed.” Tausevich v. Board of Appeals of Stoughton, 402 Mass. 146 , 148, 149 (1988). It is also true that “[f]inality will be lacking if an issue of law or fact essential to the adjudication of the claim has been reserved for future determination.” Restatement Second of Judgments §13 b. Further, “[i]ssue preclusion is not available where there is ‘ambiguity concerning the issues, the basis of decision, and what was deliberately left open by the judge.’” Day v. Kerkorian, 61 Mass. App. Ct. 804 , 809 (2004) quoting Kirker v. Board of Appeals of Raynham, 33 Mass. App. Ct. 111 , 113 (1992). In this case, the location of the boundary was not decided, and the decision invited the parties to “retain the services of surveyors to prepare new surveys in anticipation of further litigation.” Kostorizos v. Samia, 9 LCR at 123. In view of the foregoing, this court is well satisfied that the doctrine of res judicata is not here applicable. Defendants’ next argue that the present action is precluded as a matter of law. G.L. c. 185 s. 44. Section 44 essentially prohibits the relitigation of a registration case in the event it is determined that plaintiff is lacks proper title for registration. The defendants assert that as the earlier registration case was dismissed for want of proper title, Section 44 should apply.

Section 44 provides in pertinent part as follows:

If the court finds that the plaintiff has not title proper for registration, a judgment shall be entered dismissing the complaint, and such judgment may be ordered to be without prejudice, in whole or in part, but unless so ordered it shall bind the parties, their privies and the land in respect of any issue of fact which has been tried and determined.”

The matter of Paull v. Kelly, 62 Mass. App. Ct. 673 (2004) closely mirrors the case at bar. In Paull, the Appeals Court had occasion to construe the provisions of G.L. c. 185 s. 44. The focus there, was upon the location of a disputed common boundary and the ownership of a disputed strip of land lying between the litigants’ properties. The plaintiff argued that the dismissal of an earlier, unsuccessful, registration case had preclusive effect on the pending action for declaratory judgment.

In dismissing that earlier registration case, the trial judge concluded that the evidence failed to establish title to the disputed area in either party. In promulgating her Judgment she took note of the “lack of sufficient credible evidence to prove the …boundary” of the disputed parcel. She concluded with the recitation that the plaintiff had “not proven title to said parcel as alleged. Accordingly, the … complaint is hereby dismissed.”

In the subsequent action for declaratory judgment, the trial judge ruled that G.L. c. 185, s. 44 did not operate to bar the plaintiff’s current action, inasmuch as the earlier registration complaint had not been dismissed with prejudice and the location of the disputed boundary had not been determined. The judge reasoned that while the plaintiffs “had been unable to meet their burden for registration, clearly such finding did not determine the [disputed] boundary at all, certainly not in favor of any party.” Id. at 676-677.

In affirming the decision of the trial court, the Court in Paull concluded as follows:

After examining the judge’s decision and the judgment dismissing the complaint in the registration action, we conclude that the complaint was not dismissed with prejudice and that the location of the disputed boundary was not “tried and determined” in that [registration] proceeding.

General Laws c. 185, s. 44, makes clear that an unsuccessful registration proceeding can have two possible effects – one that is preclusive and one that is not. If the judge dismisses the action without prejudice, the failed attempt at registration has no preclusive effect and will not bar either a subsequent attempt at registration or any other method to determine or declare title. If the judge dismisses the action with prejudice, the statute precludes relitigating issues of fact that were “actually tried and determined” in the registration proceeding.

Here, the prior complaint for registration was dismissed “without prejudice” even though the decision and judgment did not expressly use those talismanic words. Id., at 678.

When a boundary line is in controversy, it is a question of fact…where the true line originally ran,…. Although the location of the boundary was a fact at issue in the registration proceeding, G.L. c. 185, s. 44, only precludes relitigation of a factual issue that was “actually tried and determined.” The prior attempt at registration failed because, at that time, [the plaintiffs] did not meet the requisite burden of proof to establish the boundary, not because the boundary was fixed elsewhere. Far from concluding that the disputed boundary existed in a particular location, the judgment in that registration action simply left resolution of that question of fact for another day. Id., at 678-679. (emphasis supplied) (internal citations omitted)

The reasoning in Paull applies with equal force to the matter at hand. This court is satisfied, therefore, that the location of the disputed boundary was not “tried and determined” in the earlier registration case, and that the said case was not dismissed with prejudice. In sum, this court concludes that G.L. c. 185, s. 44 has no preclusive effect in the instant matter.

Findings of Fact

A three-day trial was conducted at which a stenographer was sworn to take the testimony of John L. Noonan, Eugene E. Mulligan, Peter E. Kostorizos, and David W. Humphrey. Forty-four exhibits were presented at trial, of which all but No. 40 were admitted into evidence. The exhibits are incorporated by reference for purposes of appeal.

On all the credible testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

1. Edward Saab, as Trustee of Meriam Street Nominee Trust holds record title to 57 Meriam Street, Lexington, Massachusetts. [Note 8]

2. Peter E. Kostorizos, as Trustee of the Peter E. Kostorizos Revocable Trust of 2005 and Anne T. Kostorizos as Trustee of the Anne T. Kostorizos Revocable Trust of 2005 hold record title to 36 Oakmount Circle, Lexington. [Note 9]

3. The Samia and Kostorizos Properties directly abut each other, sharing a common boundary. [Note 10] The Kostorizos Property abuts the Samia Property to the north.

4. The land which now comprises both the Samia Property and the Kostorizos Property was previously part of a larger tract. This tract was subdivided and a plan recorded on May 28, 1903 designated as “Part B of a Plan of Oakmount Park, Lexington, Mass.” by H.T. Whitman and Channing Howard, Civil Engineers and Surveyors (Whitman and Howard Plan). [Note 11]

5. Approximately two months after the completion of the Whitman and Howard Plan, two worksheets (Worksheets) were prepared, providing engineering detail of the layout of the streets contained in and surrounding Oakmount Park. [Note 12] The Worksheets are on file with the Lexington Engineering Department.

6. On May 31, 1945, Katie G. Reed conveyed to Walter E. Sands and Doris G. Sands (the Sands), husband and wife as tenants by the entirety “the following parcels of land in Lexington, Massachusetts, being lots numbered 117, 118, 121, 122, 123 and a portion of lot 124, shown on Part B of Plan of Land of Oakmount Park, Lexington, Massachusetts dated may 28, 1903, H.T. Whitman and Channing Howard, Civil Engineers and Surveyors, recorded with Middlesex South District Deeds, Plan Book 145, Plan 3.” [Note 13]

7. On May 19, 1965, a plan of land entitled “Plan of Land, Lexington Mass.” by E. Conrad Levy & Associates (Levy Plan) was prepared, showing Lots 121 and 118. The Levy Plan received an “Approval under the Subdivision Control Law not Required” (ANR) Endorsement pursuant to G.L. c. 41 §81P, from the Lexington Planning Board on June 28, 1965. [Note 14]

8. The Levy Plan depicts Lot 118 as burdened with both a driveway easement and a power line easement for the benefit of the remaining lands of the grantor. [Note 15]

9. The Levy Plan also depicts the boundary line dividing Lots 121 and 118, as a dashed, rather than as a solid line. [Note 16]

10. It further depicts the numerals for Lots 121 and 118 as dotted rather than as solid. [Note 17]

11. The Plan depict a physical monument consisting of a stone bound (S.B.), located along Merriam Street, measured as 19.49 feet from the edge of the driveway easement. [Note 18]

12. On July 2, 1965 the Sands recorded the Levy Plan and conveyed the land that is now the Kostorizos Property or the Oakmount Circle Property, to Patrick M. Hurley and Margaret M. Hurley (the Hurleys). [Note 19]

13. The Deed conveying the Oakmount Circle Property to the Hurleys includes the following description:

[A] certain parcel of land situate on Meriam Street and Oakmount Circle in said Lexington and shown on plan entitled “Plan of land Lexington, Mass.” dated May 29, 1956, E. Conrad Levy & Assoc., Surveyors and Engineers, to be recorded herewith, and bounded and described as follows:

WESTERLY by Meriam Street, by two lines measuring respectively fifty-four and 50/100 (54.50) feet and seventy-eight and 97/100 (78.97) feet;

NORTHERLY by land now or formerly of Charles H. and Ann E. Spaulding, by two lines measuring respectively one hundred thirty-nine and 49/100 (139.49) feet and one hundred fourteen and 80/100 (114.80) feet; and

EASTERLY by Oakmount Circle, one hundred ten and no/100 (110.00) feet; and

SOUTHERLY by other land of the grantors, by two lines measuring respectively one hundred thirty-seven and 20/100 (137.20) feet and one hundred sixty-three and 96/100 (163.96) feet; and containing, according to said plan, 32,707 square feet of land.

Said parcel is shown as lots 118 and 121 on Part B of plan entitled “Plan of Oakmount Park Lexington, Mass.” dated May 28, 1903, H.T. Whitman, Channing Howard, Civil Engineers and Surveyors, Middlesex South District Deeds Plan Book 145, Plan 3.

The premises are conveyed subject to perpetual rights and easements hereby re-served for the benefit of other land of the grantors, hereinafter described, (1) to use the strip of land shown on said first mentioned plan as “Easement (30.’ wide) for all purposes for which private driveways are now or hereafter may be commonly used in said Lexington, including passage by foot and by vehicle of any and all types, and all rights incidental thereto; and (2) to use the strip of land shown as “Power Line Easement (20.’ wide)” on said plan to maintain, erect, operate, and replace poles and wires for the transmission of electricity and intelligence by electricity, with any necessary anchors, guys, supports and fixtures, and all rights incidental thereto, including the right to cut down and keep trimmed all trees and bushes in or overhanging such strip; and reference to said plan is made and said plan is incorporated herein for a complete and detailed description of all said strips of land. Said rights and easements are subject to the right of the grantees to install, maintain, repair and replace pipes for water, sewer, and utilities under said strips of land, provided that on each occasion when the grantees perform any such work it shall be carried on expeditiously and with as little interference as reasonably possible with the uses reserved for the grantors, and that the surface be restored to as good condition as existed prior thereto. [Note 20]

The premises herein conveyed are a portion of those conveyed to the grantors by deed from Katie G. Reed dated May 31, 1945, recorded in said Deeds, Book 68961, Page 117; and the other land of the grantors for the benefit of which the aforesaid rights and easements are reserved, consists of the remainder of the land described in said deed.”

14. As noted supra, the deed to the Oakmount Circle Property includes three references. The first, to the Levy Plan. The second, a bounding description derived from the Levy Plan. And the third, a reference to the 1903 Whitman and Howard Plan.

15. The 1965 deed includes latent ambiguities in the parcel description.

16. The Levy Plan includes a measurement for the Lot 118 northerly sideline of 139.49 feet. [Note 21] The southerly boundary of Lot 118 is given as 163.96 feet. [Note 22]

17. The remaining measurements are as follows: Lot 121 northerly boundary, 114.80 feet; the easterly boundary along Oakmount Circle, 110 feet; the southerly boundary of Lot 121, 137.20 feet. As to Lot 118, the westerly boundary along Merriam Street is given as 154.50 feet with an arc length of 78.97 feet. [Note 23]

18. The measurements for the northerly and southerly sidelines of Lot 118 differ from those depicted on the 1903 Whitman and Howard Plan. The Whitman and Howard Plan places the northerly sideline of Lot 118 at 137 feet, and the southerly sideline at 161 feet. [Note 24]

19. The Levy Plan’s sideline linear measurements are, therefore, 2.49 feet and 2.69 feet greater, respectively, than the measurements set forth in the Whitman and Howard Plan.

20. Based upon the measurements shown on the Levy Plan, the parcel appearing between Oakmount Circle and Merriam Street [Note 25] is approximately three feet too long, i.e. the total actual distance between the two streets is 251.6 feet [Note 26] whereas the Levy Plan locates the roads at 254.3 feet. [Note 27] According to plaintiff’s expert, John Noonan, “you can’t fit that parcel between those two streets. It either has to go into Meriam or it needs to go into Oakmount Circle, but it will not fit in that space.” [Note 28]

21. In 1966, Walter E. Sands and Doris G. Sands conveyed the remainder of their property to Frank and Victoria Sands.

22. The 1966 deed describes the land as follows:

“[T]he following parcels of land in Lexington, Middlesex County, Massachusetts, being lots numbered 117, 118, 121, 122, 123 and a portion of lot 124, shown on Part B of a Plan of Oakmount Park, Lexington, Massachusetts, dated May 28, 1903, H.T. Whitman and Channing Howard, Civil Engineers and Surveyors, recorded with Middlesex South District Deed, Plan Book 145, Plan 3. Said lots are together bounded and described as follows:

Beginning at the Northerly corner of said lot 118 on Merriam Street at land now or late of Maud G. Winlock; thence the line runs Southeasterly by lot 119 shown on said plan One Hundred and Thirty-seven (137.0) feet and continuing Southeasterly by lot 120 shown on said plan One Hundred Fourteen and 8/10 (114.8) feet to Oakmount Circle and by lots 121, 123, and part of 124, three Hundred and Fifty (350) feet to land conveyed to Frank M. Sheldon and Dorothy Dean Sheldon shown by deed and plan recorded October 31, 1928, in Middlesex South District Deeds, Book 5294, Page 271, and said plan of Oakmount Park; thence the line runs Northwesterly in two courses by said land conveyed to said Sheldons One Hundred Forty-two and 87/100 (142.87) feet and One Hundred Eighty-five and 77/100 (185.77) feet, shown on said plan recorded in Book 5294, Page 271, to a stone bound on Merriam Street; thence the line runs Northeasterly in four courses by said Merriam Street, as shown on the plan above referred to, Thirty-one and 55/100 (31.55) feet by lot 124 in part, One Hundred and Three and 23/100 (123.23) feet by lot 123, One Hundred Thirty-five and 97/100 (135.97) feet by lot 117, and One Hundred Thirty-three and 47/100 (133.47) feet by lot 118, to the point of beginning.

There is excepted from foregoing the parcel conveyed by the grantors to Patrick Mason Hurley and Margaret M. Hurley by deed dated July 2, 1965, recorded with said Deeds, Book 10863, Page 212.” [Note 29] (emphasis in original).

23. By mesne conveyance, Leonard J. Samia and Robert L. Blank, Trustees of the Merriam Realty Trust [Note 30] purchased the Samia Property [Note 31] on May 2, 1989. The Samia Property constituted a portion of the remaining land of the Sands. The deed describes the land conveyed as: “being Lot 1 as shown on a Subdivision Plan of Land in Lexington, Mass., dated June 22, 1987 and recorded with Middlesex South Registry of Deeds in Book 18452, Page 60.”

24. The 1987 subdivision plan created two lots out from lots 122, 117, 123, and a portion of lot 124 from the 1903 Whitman and Howard subdivision. [Note 32] Lot 1, later the Samia Property, consists of Lots 117, 122, and a portion of Lot 123 from the 1903 subdivision. The 1903 Whitman and Howard Plan and the Levy Plan place the disputed boundary in different locations.

25. The Levy Plan locates the disputed boundary approximately three feet to the southeast from where the Whitman and Howard Plan locates the lot line.

Peter Kostorizos, relying on his understanding regarding the boundary location, planted a row of hemlock shrubberies in 1987 or 1988, along what he believed to be the lot line in the disputed area. [Note 33] Mr. Kostorizos also constructed a stone wall along that line. [Note 34]

25. Should the disputed boundary be located on the line established by the Whitman and Howard Plan of 1903, [Note 35] both the stone wall and shrubbery will be held to lie within the Samia Property.

Discussion

Determining the location of the disputed boundary is a matter of deed interpretation. “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (emphasis supplied); J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923); Suburban Land Co. v. Billerica, 314 Mass. 184 , 189-190 (1943). “Various rules of construction have been adopted to aid in the ascertainment of the intent of the parties where a deed contains conflicting descriptions of the property conveyed.” Morse v. Chase, 305 Mass. 504 , 507 (1940). Ordinarily, more weight is to be given to monuments than to courses, and the latter are usually entitled to more consideration than distances. Monuments, courses and distances are generally deemed to be more indicative of the intent of the parties than is the quantity or area mentioned. Holmes v. Barrett, 269 Mass. 497 , 502 (1929). Raymond v. Jackson, 297 Mass. 509 , 511 (1937). “These rules are based upon common experience and are of general application. They are not, however, inflexible, and they are not to be followed if they would lead to a result plainly inconsistent with the intent of the parties.” Morse v. Chase, 305 Mass. at 507. (citing Temple v. Benson, 213 Mass. 128 : Ovans v. Castrucci, 267 Mass. 600 ).

As previously observed, the 1965 deed conveying what would become the Kostorizos Property, contains a latent ambiguity. The property description includes a reference to the 1965 Levy Plan, a bounding description derived from the Levy Plan, and a reference to the 1903 Whitman and Howard Plan. The Levy Plan depicts the distance between Merriam Street and Oakmount Circle as being approximately three feet greater than is actually the case. In this regard, the Levy Plan shows the northerly and southerly sidelines of Lot 118 at 139.49 and 163.96 feet, whereas Whitman and Howard Plan places the same sidelines at 137 and 161 feet, respectively. [Note 36] This court is satisfied that but for minor discrepancies not here relevant, the 1903 Whitman and Howard Plan accurately portrays the sidelines at issue.

Consequently, the Levy Plan and the Whitman and Howard Plan place the disputed boundary in different locations. It is well settled that “where in an attempt to locate land according to the description given in a deed or other instrument uncertainty arises, evidence of extrinsic facts is relevant to ascertain the intention of the parties. A disputed boundary, or the condition of the locality at the time of the conveyance, are familiar illustrations of the rule.” Weeks v. Brooks, 205 Mass. 458 , 462 (1910). (citing Putnam v. Bond, 100 Mass. 58 (1863); Hathaway v. Evans, 113 Mass. 264 (1873); Hoar v. Goulding, 116 Mass. 132 (1874); Dunham v. Gannett, 124 Mass. 151 (1878); Barrett v. Murphy, 140 Mass. 133 (1882); Haskell v. Friend, 196 Mass. 198 (1907); Gould v. Wagner, 196 Mass. 270 (1907). See also Jones v. Gingras, 3 Mass. App. Ct. 393 (1975). Any competent evidence may be considered in determining the true boundary line between adjoining owners. Holmes v. Barrett, 269 Mass. 497 ; Barrett v. Murphy, 140 Mass. 133 (1885). Thus, in order to decide where the boundary lies, this court must inquire into the intent underlying the 1965 Deed and the 1965 Levy Plan.

The parties offer differing interpretations as to the the purpose of, and the intent behind, the Levy Plan. The plaintiff argues that the purpose of the Levy Plan was to merge Lot 118 and Lot 121 into a single parcel, as evidenced by the ANR endorsement thereon, and to place the driveway and power line easements thereon.

For their part, the Kostorizos defendants contend that the individual lots owned by the Sands [Note 37] had merged through common ownership under the Reeds, the Sands predecessors in title. Thus, they argue, when the Sands commissioned the Levy Plan and conveyed the land described in the 1965 deed, they had no need to merge Lots 118 and 121, as the unity of title was extant. The defendants further argue that the purpose of the Levy Plan was not only to place the easements, but also to change the boundary between the remaining land of the Sands, i.e. the Meriam Street or Samia Property and what is now the Oakmount Circle or Kostorizos Property.

ANR Endorsement

The 1965 Levy Plan, as noted supra, received an ANR endorsement from the Lexington Planning Board on June 28, 1965, four days before the plan was recorded on July 2, 1965. The Subdivision Control Law, G.L. c. 41 §§81K-81GG, prohibits the subdivision of land without approval of a subdivision plan by the local planning board. For purposes of the subdivision control law, §81L defines a subdivision as the “division of a tract of land into two or more lots.” “Lot,” in turn, is defined as "an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings." One wishing to record a plan of land which does not exhibit a subdivision, in a city or town that has adopted the subdivision control law, must submit the plan for ANR endorsement under §81P. Thereafter, pursuant to G.L. c. 41 §81P, should a planning board determine that a plan does not constitute a subdivision as delineated under the statute, the planning board will endorse the plan as “approval under the subdivision control law not required.”

John Noonan (Noonan), licensed land surveyor and civil engineer, appeared as plaintiff’s expert witness. Mr. Noonan testified at length regarding the relationship between the Levy Plan and G.L. c. 41 §81P. On the Levy Plan, the perimeter of the property is shown as a solid line, whereas the midline of the land, the prior boundary between Lots 118 and 121 as derived from the 1903 Whitman and Howard Plan, is depicted as a dashed line. Noonan discussed the significance of dashed versus solid lines under the circumstances pertaining herein. On direct examination, he examined a plan of land he had prepared in 1992 for one Patricia Grieff. [Note 38] This plan shows a re-subdivision of Registered land on the parcel directly abutting the Samia Property to the south. The plan depicts the entire Oakmount Circle / Meriam Street neighborhood, and shows the Samia and Kostorizos Properties in their entirety. Noonan’s relevant testimony on direct examination is as follows: [Note 39]

Q: Did you also use solid and dashed lines on exhibit 5 [the Grieff Plan]?

A: Yes I did.

Q: What in general do the dashed lines depict in contrast to the solid lines?

A: The dashed lines depict lines that are former lot lines or easements.

Q: And what do the solid lines depict in contrast to the dashed lines?

A: The solid lines are lines of current ownership and street lines.

Q: And to be more particular where are those on exhibit 5, there is a dashed centerline that originally divided the two original Kostorizos lots, 118 and 121, on Oakmount; is that right?

A: Yes.

Q: And you depicted that on the land registration plan with a dashed line?

A: Yes.

Q: And likewise, the dashed centerline that divided the original two lots, 119 and 120, that also has been removed?

A: Yes.

Q: And it was depicted as a dashed line?

A: Yes.

Q: And last, the dashed line which formed the southerly boundary of the original Samia lots, 117 and 122, and that also was a dashed line?

A: Yes.

Q: And that has been removed?

A: Yes.

Q: And then to recap, in addition to boundary lines, dashed lines are also used to depict easements?

A: Yes, they are.

Q: And the solid lines that are depicted on exhibit 5 establish the unchanged lot lines?

A: Correct.

Noonan testimony in this regard, continued: [Note 40]

Q: And the dashed lines show the prior lines of ownership that have been changed?

A: Correct.

Q: Are the dashed lines particular to you as usage, or is that a widely accepted surveyor’s practice?

A: I have been using them all of my career.

Q: And do others use them as well:

A: Yes, they have in all of the States that I practice in.

As to the Levy Plan, Noonan opined as follows concerning the dashed lines: [Note 41]

Q: And likewise, the middle line, [Note 42] which is depicted in dashes, that was also removed and that shows a change?

A: Yes it does.

Q: So the Levy Plan is consistent with what you’ve testified earlier to, the customary usage of […] dashed lines and solid lines to depict boundaries?

A: Yes.

Noonan also testified as to the dotted numbers appearing on the Levy Plan: [Note 43]

Q: And what is your understanding as a land surveyor for the difference in how the lot numbers are depicted, dots on one side, solid numbers on the other?

A: In all my years of land surveying, those always indicated past lot parcels, and the solid would be current lot parcels.

Q: So what is depicted in that is the removal of that lot line and showing that those two lots will no longer exist and will be combined into one as evidenced by those dots?

A: That is correct.

Noonan further testified as follows, regarding the relationship between the dashed lines, indicative of the removal of the boundary between Lots 121 and 118 and an ANR endorsement. [Note 44]

Q: Now, are you familiar with a law known as Massachusetts General Laws, Chapter 81X? [Note 45]

A: Yes, I am.

Q: And in general, I’m not asking for a lawyer’s view, what is the process under that? What does that statute allow you to do?

A: Well, 81X, in general, is the recording requirements that the registry would look for at the time you record plans.

Q: If this were simply an easement case—I’m sorry, if [the Levy Plan] was simply to put easements on there, would you have – would you be – did you have to go to the planning board?

A: No. There are provisions in 81X that allow you to just put a note on the plan that you are not creating any new lines of ownership, and then you can record the plan without a planning board endorsement.

Q: But in this case, in addition to the easements, there was also the removal of the lot line on the two lots […] lots 121 and 118 on exhibit 2?

A: That is correct.

Q: Because of the removal of that centerline by those two lots, basically the people in 1965, the owner had to go to the planning board and could not bypass the planning board?

A: Yes.

The defendants’ expert witness, David Woodcock Humphrey (Humphrey), a registered professional land surveyor, testified that he had used a dashed line to indicate the location of the former midline on the Kostorizos Property on a sketch that he had drafted.

Q: And in fact you used a dashed line in your sketch to show the midpoint line that is no longer; correct?

A: Correct. [Note 46]

G. L. c. 41 §81L, as noted supra, defines a “Subdivision” as meaning the “division of a tract of land into two or more lots.” The statute sets forth several exceptions from what is included within the definition of a subdivision. Relevant here, is what is commonly known as the single-lot exemption. Section 81L provides in relevant part as follows:

Conveyances, or other instruments adding to, or taking away from, or changing the size and shape of lots in such a manner as to not leave any lot so affected without the frontage above set forth, […] shall not constitute a subdivision.”

Accordingly, anyone who adds area to a lot, such as combining two lots into one, will create a resulting lot which does not constitute a subdivision, so long as the resultant lot retains the requisite frontage for the purposes of the Subdivision Control Law.

It is clear that the Levy Plan effectively merged Lots 121 and 118 into a single lot. The 1945 deed in which Katie Reed conveyed the land then owned by her, to the Sands, described the land as “the following parcels of land in Lexington, Massachusetts, being lots numbered 117, 118, 121, 122, 123 and a portion of lot 124, shown on Part B of Plan of Land of Oakmount Park, Lexington, Massachusetts dated may 28, 1903, H.T. Whitman and Channing Howard, Civil Engineers and Surveyors, recorded with Middlesex South District Deeds, Plan Book 145, Plan 3.” (emphasis added).

In the deed from Katie Reed, the land conveyed was comprised of individual lots, together with a portion of Lot 124. A description of the land so conveyed as a number of individual parcels, (i.e. as individual lots appearing on a plan), rather than a lone parcel with a bounding or running description indicates that the lots had not merged under common ownership as the defendants argue, but rather, retained their status as distinct lots. Consequently, when Katie Reed conveyed the land she owned to the Sands, she conveyed not one large parcel, but five individual lots, as well as a portion of another. Therefore, when the Sands later determined to sell Lots 121 and 118 as a singular parcel, [Note 47] they were obliged to provide for their merger.

This court credits Noonan’s testimony to the effect that the underlying purpose of the Levy Plan in representing the midline dividing former Lots 121 and 118 as a dashed, rather than solid line, and the lot numbers themselves as dotted or broken, rather than as solid lines, was for the purpose of indicating the elimination of the midline and the merger of the two lots into a single parcel.

Inasmuch as the Town of Lexington had, by that time, adopted the Subdivision Control Law, and the merger of two lots into one falls plainly within the above quoted language of G.L. c. 41, s. 81L, the Sands were obliged to seek, and obtain, an ANR endorsement from the Planning Board under G.L. c. 41 §81P.

Location of the Boundary

In the case at bar, the court is presented with the unique situation where a deed references two different plans, each placing the boundary at issue in a different location. When interpreting a deed, familiar rules of construction aid the court in determining the boundaries of a parcel conveyed. Of relevance is the maxim that "[w]henever, in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern; although neither courses, nor distances, nor the computed contents, correspond with such boundaries." Burke v. Commonwealth, 283 Mass. 63 , 68 (1933); citing Davis v. Rainsford, 17 Mass. 207 , 210 (1917); Holmes v. Barrett, 269 Mass. at 499-500. Streets are monuments. Overly v. Treasurer, 344 Mass. 188 , 192.

In the present case, the Levy Plan describes the Kostorizos parcel as being approximately three feet longer than is actually the case. [Note 48] The distances in that Plan logically must yield to the placement of the streets. [Note 49] If implemented as shown, these extra feet would cause the Kostorizos Property to intrude into one or both streets.

As a rule, a “mistake in detail will not control the general and perfect description.” Birch v. Hutchings, 144 Mass. 561 , 563 (1887). Here, however, the description derived from the Levy Plan is fatally flawed. The Plan contains several erroneous measurement. As noted supra, there is an approximate three foot error on the land lying between Merriam Street and Oakmount Circle. Furthermore, if any one angle is held from the Levy Plan, it will throw off all other angles on the lot, altering the sideline distances. In this regard, Noonan testified as to the effect of holding the angles present on the Levy Plan: [Note 50]

Q: [Regarding holding the angle from Oakmount Circle to the southerly sideline of lot 121 (disputed boundary)] What effect does it have on the other distances and angles?

A: Well, what it does is it throws out the other two angles that are on the 1965 plan.

Q: So let’s be clear what that means. So if you hold the angle from the ’65 [Levy] plan on Oakmount, and you continue down toward Merriam, along the southerly border of lot 121, you then have an angle where lot 121 meets 118?

A: Correct.

Q: And that’s an angle here; correct?

A: Right.

Q: “Here” being in that point between those two lots. So if you hold the ’65 angle from Levy, you will then throw off the angle on the Levy Plan?

A: For 1965, that’s correct.

Q: At that point?

A: At that point.

Q: At the intersection of those four lots. What about the angle on Merriam Street?

A: You also throw that angle off.

Q: So if you try to retain the ’65 angles, if you will, and you run from Oakmount Circle, if you accept the first one from Levy, you have to throw off the next two?

A: If you want to get back to the Merriam Street line, you have to.

Q: And you have to get back to it, because the streets are what they are; they’re fixed?

A: Correct.

David Humphrey, the defendants’ expert, testified on cross examination regarding the effect of holding the angle at the intersection of Oakmount Circle and Lot 121 on the Levy Plan: [Note 51]

Q: There’s an angle, and the angle is at the intersection of lots 121 and 118 on exhibit 2; correct?

A: Yes.

Q: And that angle alters, correct, if you hold Oakmount Circle from what’s on the ’65 Plan?

A: Alters the ’65 plan, yes.

Q: And it will also alter the angle when you get to the end; correct?

A: That is correct also, yes.

Q: Now you tried it going the other way and you said, “Okay, I’m going to go from Merriam Street and do the reverse;” right?

A: That’s correct.

Q: And when you do that, the same thing happens. You hold the angle, the distance changes, the center angle changes and the angle at the end changes; correct?

A: Yes.

This court is satisfied, given the errors in the Levy Plan, that any purported alteration of the boundary line at issue from the 1903 Whitman and Howard Plan, was purely inadvertent and resulted solely from drafting error. [Note 52] It is evident to this court that the intent of the Plan, as well as the 1965 Deed, was not to alter the location of the boundary between the currently existing Kostorizos and Samia properties. Rather, this court concludes that the intent underlying the 1965 Levy Plan and Deed, was to (a) effect a merger of Lots 118 and 121 into a single parcel, and (b) delineate the easements for the benefit of the remaining land of the grantors. [Note 53]

Having found that the Levy Plan and the 1965 Deed were not intended to, and do not alter the disputed boundary, the court must locate the disputed boundary line. As previously observed, the 1965 Deed references the 1965 Levy Plan, a bounding description derived from the Levy Plan, and the 1903 Whitman and Howard Plan. [Note 54] It is apparent that the intent of the grantor in the 1965 deed was to follow the boundary established by the Whitman and Howard Plan.

John Noonan drafted “Plan of Land in Lexington Mass., August 31, 1994, Noonan and McDowell, Inc.” [Note 55] (Noonan Plan) which is intended as a retracement [Note 56] of the Whitman and Howard Plan. In so doing, Noonan relied on “Part B of a Plan of Oakmount Park, Lexington, Mass.” by H.T. Whitman and Channing Howard (the Whitman and Howard Plan), [Note 57] Worksheet A, [Note 58] which provides the engineering detail necessary to locate the lots and the roads. Noonan relied too, upon the Levy Plan to the extent necessary to locate the easements. [Note 59] The Noonan Plan depicts the Samia Property, as well as the Kostorizos Property, and the abutting properties of the parties’ neighbors. In so doing, it correctly locates the disputed boundary.

At trial, certain minor discrepancies were highlighted as between the Noonan Plan and the 1903 Whitman and Howard Plan. Although the frontage on Lots 118 and 121 (the Lots comprising the Kostorizos Property) remained static, the distances along the northerly and southerly boundaries of the Lots differed slightly between the record distances and the surveyed distances. For example, the northerly boundaries of the lots differed by 3/100ths of a foot from the record distance, and the southerly boundaries had a discrepancy of two or three inches. [Note 60] Additionally, the Noonan Plan depicts a point of curvature on Oakmount Circle that has shifted by two inches from the 1903 Plan. [Note 61]

These minor discrepancies between the record and the survey are solely attributable to advancements in measurement technique that have occurred since 1903.

At that, the relevant measurements given on the 1903 Plan are remarkable for their accuracy, given the advances in technology over the last hundred years. Thus, while distances were then carried to a hundredth of a foot or two decimal places, measurements are now computer-aided with distances often carried out to ten-thousandths of a decimal place. [Note 62] This court finds that Noonan used accepted methodologies to create his survey, [Note 63] that the Noonan Plan is an accurate retracement of the 1903 Whitman and Howard Plan, and that the Noonan Plan correctly locates the disputed boundary.

Consequently, this court is satisfied that all right, title and interest in the disputed area along that boundary, [Note 64] is vested in the plaintiff, and that the plaintiff holds the disputed area free from any interest of the defendants.

Trespass

As this court has determined that the plaintiff holds record legal title to the strip of land at issue that runs along the disputed boundary, I turn now to the action for trespass. Pursuant to G.L. c. 185, §1 (o), the Land Court’ jurisdiction over civil actions of trespass is limited to actions “involving title to real estate” At the heart of an action for trespass to real property is that the defendant intentionally entered the land of another, without privilege to do so, regardless of any harm caused to the land. Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988). The tort is actionable even where the trespasser is ignorant that his invasion violates the title or right of possession of the plaintiff. United Electric Light Co. v. Deliso Const. Co., 315 Mass. 313 , 318 (1943). An ongoing invasion of the plaintiff’s land without legal right may constitute a continuing trespass, and an "intentional and continuing trespass to real estate may be enjoined.... Damages are usually inadequate because the plaintiff is not to be compelled to part with his property for a sum of money." Chesarone v. Pinewood Builders, Inc., 345 Mass. 236 , 240 (1962); See also Massachusetts Practice, Summary of Basic Law, c.14 §17.24.

It is undisputed that the defendant Peter Kostorizos has made certain improvements, including the construction of a retaining wall and the planting of shrubbery on land belonging to the plaintiff. These improvements constitute a continuing trespass. However, plaintiff has provided no evidence that would adequately support the award of monetary damages. There is, however, sufficient evidence that would warrant the grant of injunctive relief. [Note 65]

Judgment to issue accordingly.