CYTRYNOWSKI vs. MCDONALD, MISC 06-327920

Procedural History

On August 15, 2006, Zbigniew Cytrynowski and Elizabeth Healy Cytrynowski (Cytrynowskis) filed their Verified Complaint and an Ex Parte Motion for Lis Pendens against Edward McDonald (McDonald), the owner of the abutting property in Pembroke, in case no. 06 MISC 327920. In the Verified Complaint, the Cytrynowskis sought to try title pursuant to G. L. c. 240, § 1 (Count I), sought damages for trespass (Count II), petitioned for injunctive relief (Count III), and petitioned for declaratory relief (Count IV). On August 22, 2006, the court (Trombly, J.) allowed the Cytrynowskis Ex Parte Motion for Lis Pendens and issued Short Order of Notice for Hearing on Endorsement Request. On September 18, 2006, McDonald filed his Verified Answer, Affirmative Defenses and Counterclaims and Motion for Lis Pendens (Counterclaim). The Counterclaim has five counts: Declaratory Judgment (Count I), Slander of Title (Count II), Abuse of Process (Count III), Interference with Advantageous Contractual Relationship (Count IV), and G. L. c. 231, § 6F (Count V). On September 21, 2006, the Cytrynowskis filed their Answer to Counterclaim and Opposition to Defendants Motion for Lis Pendens. McDonalds Motion for Lis Pendens was allowed on September 25, 2006. On October 23, 2006, the Cytrynowskis Motion to Amend Complaint was allowed and the Amended Complaint was filed, revising Count I from a try title action to a quiet title action pursuant to G.L. c. 240, § 6 (Complaint). On July 9, 2007, McDonald filed his Motion to Amend Answer and Counterclaims of Defendant. McDonalds Motion to Amend Answer and Counterclaims of Defendant was denied without prejudice on July 24, 2007.

On March 1, 2010, McDonald filed Defendants Motion for Summary Judgment, Involuntary Dismissal and Sanctions. A hearing on McDonalds Motion for Summary Judgment was held on March 8, 2010 and the motion was taken under advisement. On March 26, 2010, the Cytrynowskis filed Plaintiffs Opposition to Defendants Motion for Summary Judgment, Involuntary Dismissal, and Sanctions, Brief in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment, Involuntary Dismissal, and Sanctions, and Plaintiffs Appendix. On March 30, 2010, the Cytrynowskis filed Plaintiffs Cross-Motion for Partial Summary Judgment and Brief in Support of Plaintiffs Cross-Motion for Partial Summary Judgment. McDonald filed an Opposition to Plaintiffs Motion for Partial Summary Judgment on April 26, 2010. On May 6, 2010, Plaintiffs Motion for Partial Summary Judgment was heard and taken under advisement. On June 9, 2010, the court issued an Order Denying Defendants Motion for Summary Judgment and Plaintiffs Cross-Motion for Partial Summary Judgment.

On October 2, 2010, McDonald filed his Complaint in registration case no. 10 REG 43456, seeking to confirm title to his property. A citation issued and notice was sent to the Attorney General, Pembroke Selectmen, Pembroke Town Clerk, and abutters. On October 4, 2010, the court allowed Defendants Motion to Consolidate Land Registration Proceedings (case no. REG 43456) with the Cytrynowskis 2006 action to quiet title (case no. 06 MISC 327920). After the retirement of Judge Trombly, these consolidated cases were assigned to me. The Commonwealths Answer and Objections were filed on April 29, 2013. On May 9, 2013, the Plaintiffs filed their Answer to McDonalds Complaint in REG 43456. McDonald filed his Motion to Strike Answers and Exhibits of Plaintiffs in REG 43456 on July 15, 2013. A hearing was held on the Motion to Strike on October 17, 2013, at which time the court ordered the Cytrynowskis to file amended answers. Plaintiffs Amended Answers and Opposition to Complaint for Registration and Confirmation of Title was filed on November 14, 2013. McDonalds Renewed Motion to Strike Answers and Exhibits of Plaintiffs was filed on December 12, 2013. A hearing was held on the Renewed Motion to Strike on December 19, 2013, and the motion was denied on October 30, 2014.

On September 10, 2015, the Cytrynowskis filed Plaintiffs Motion for Sanctions for Spoliation of Evidence, and the motion was taken under advisement. A view was taken on September 15, 2015. A trial was held on September 17, 2015 where upon the Commonwealth filed a Stipulation and Withdrawal of its Answer and Objections and the court denied Plaintiffs Motion for Sanctions for Spoliation of Evidence without prejudice. At trial, testimony was heard from Douglas Bailey, Elizabeth Cytrynowski, Edward McDonald, and John Keefe. Exhibits 1- 21A were marked. On November 30, 2015, the Cytrynowskis filed Plaintiffs Post Trial Brief and Deposition of Charles A. Pickering. On December 3, 2015, McDonald filed Defendants Post Trial Brief. Closing arguments were heard on December 9, 2015, and the matter was taken under advisement. This Decision follows.

Findings of Fact

Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

Facts Common to Title of Cytrynowski and McDonald Properties

1. The Cytrynowskis own and reside at 35 Cranberry Lane in Pembroke (Cytrynowski Property). The Cytrynowski Property is made up of three parcels (Lot 4, Parcel 2, and Parcel I, as discussed further below). The southernmost parcel (Lot 4) abuts registered land to the east. Exh. 1, ¶ 1; Exh. 13; Tr. 27, 44-45.

2. McDonald owns and resides at 198 Furnace Lane in Pembroke, which abuts the Cytrynowski Property to the west (McDonald Property). The McDonald Property is improved by a cottage that was built in 1940. The boundary line between the Cytrynowski Property and the McDonald Property is the subject of this dispute. Exh. 1, ¶¶ 2-4.

3. The Cytrynowski Property and the McDonald Property were once under common ownership. Both properties are shown on a plan of land entitled Plan of Cottage Lots at Furnace Pond, Pembroke, Mass., prepared for the Lot Phillips and Company Corporation (Lot Phillips) dated January 1919 (1919 Plan), and recorded with the Plymouth County Registry of Deeds (registry) in Plan Book 2, Page 685 and Page 706. The 1919 Plan was a compass survey, which utilized magnetic north, rather than true north. The 1919 Plan shows four numbered lots, a 25 foot right of way, and Furnace Pond. The McDonald Property originates from Lot 3 and the southernmost parcel making up the now Cytrynowski Property originates from Lot 4 on the 1919 Plan. The Cytrynowskis other two adjoining parcels extend north of Lot 4 to Queensbrook Road and Cranberry Lane. The 1919 Plan is attached here as Exhibit A. Exhs. 2, 11, 11A; Tr. 58-61.

4. In 1966, Greenwood Manor Trust (Greenwood Manor) filed a Definitive Subdivision Plan with the registry as Plan # 759 (1966 Plan) for the proposed subdivision of an 81.87 acre parcel of land surrounding Furnace Pond, including land abutting the Cytrynowski and McDonald Properties (Greenwood Property). In 1974, Greenwood Manor filed a second Definitive Subdivision Plan for the Greenwood Property with the registry as Plan # 331, attached here as Exhibit B. Exhs. 15, 16.

5. In 1975, Greenwood Manor filed a confirmation petition in Land Court (REG 38717) seeking to confirm title to the Greenwood Property. In connection with this filing, a confirmation plan of the Greenwood Property (Confirmation Plan) was prepared by Charles Pickering, of C. A. Pickering Assoc. Inc. (Pickering). In creating the Confirmation Plan, Pickering attempted to reestablish the property lines as shown in the 1966 Plan and confirm that they agreed with the 1919 Plan. When he was preparing the Confirmation Plan, Pickering set a concrete bound where

he concluded the northeast corner of the 25 foot right of way met the northwest corner of Lot 4 as shown on the 1919 Plan, along the same course as the common boundary between Lots 3 and 4 on the 1919 Plan. McDonalds predecessors in interest filed an answer opposing certain boundaries as depicted in the Confirmation Plan, such as the location of the right of way and the common boundary line. Exh. 14; Deposition of Charles A. Pickering (Pickering Dep.) at 12-14, 16, 19-26, 29-30.

6. At the request of the Land Court, Pickering completed a supplemental survey plan (the Greenwood Plan) filed with the court in December 1979, attached here as Exhibit C. The Greenwood Plan depicts the 25 foot right of way, now known as Furnace Lane. When Pickering completed the supplemental Greenwood Plan, he used the concrete bound he previously set in conjunction with the Confirmation Plan. In 1980, McDonalds predecessors reached an agreement with Greenwood Manor and filed a stipulation as to the location of certain bounds (Stipulation Agreement, discussed further below). Exh. 19; Pickering Dep. at 12, 17, 19, 22, 29- 30.

Title to the McDonald Property

7. On January 31, 1919, Lot Phillips conveyed Lot 3 on the 1919 Plan to Alexander Millen (Millen) by deed recorded in the registry on September 14, 1920 at Book 1361, Page 456 (the Millen Deed). In the Millen Deed, the shared boundary course is S 34º 23 W with a distance of 114 feet. Exhs. 2, 8.

8. On August 20, 1920, Millen conveyed the easterly portion of Lot 3, bounded on the east by Lot 4, to Allan McDonald (no relation to defendant) by deed recorded in the registry on September 14, 1920 at Book 1361, Page 457 (1920 Deed). The deed describes the property as follows:

Beginning at a stake and stones at the northeasterly corner of said premises thence south thirty four degrees twenty three minutes east (S 34º 23 E) by land now or formerly of John Taylor about one hundred fourteen (114) feet to Furnace Pond, thence westerly by said pond to a point on said pond half way between the last mentioned bound and the southwesterly corner of lot 3 as shown on a plan hereinafter referred to being a distance of about forty five (45) feet, thence northeasterly by land of the grantor about one hundred twenty eight (128) feet to a stake and stones, thence southerly fifty six degrees forty five minutes east (S.56º 45 E) by land now or formerly of Lot Phillips and Company Corporation sixty seven and twenty seven one hundredth (67.27) feet to the point of beginning.

The description of the shared property bound in the 1920 Deed is the same as in the Millen Deed, except the course for the shared boundary is stated as running S 34º 23 E instead of S 34º 23 W. This eastern portion of Lot 3 conveyed to Allan McDonald comprises the now McDonald Property. Exhs. 2, 8.

9. Allan McDonald died on February 26, 1933. His estate was probated and he left the now McDonald Property to his widow, Minnie McDonald. On November 10, 1934, Minnie McDonald conveyed the McDonald Property to Toivo Nordvall (Nordvall) by deed recorded in the registry on February 9, 1935 at Book 1678, Page 460. The description of the property bounds in this deed is the same as in the 1920 Deed. Minnie McDonald passed away between the date of execution and recording of the deed, but authorized the administrator of her estate to convey the property to Nordvall. Exhs. 2, 8.

10. On May 16, 1946, Nordvall conveyed the McDonald Property to Hosea and Mary Benson (Bensons) by deed recorded in the registry on May 17, 1946 at Book 1913, Page 352. The description of the property bounds in this deed is the same as in the 1920 Deed. Exhs. 2, 8.

11. On April 22, 1952, the Bensons conveyed the McDonald Property to Joseph and Mary Andronica (Andronicas) by deed recorded in the registry on April 24, 1952 at Book 2203, Page 466. The description of the property bounds in this deed is the same as in the 1920 Deed. Exhs. 2, 8.

12. On July 22, 1960, the Andronicas conveyed the McDonald Property to Lottie Howard (Howard) by deed recorded in the registry on July 25, 1960 at Book 2790, Page 118. In this deed, the description of the property bounds is the same as in the 1920 Deed except the course of the common boundary changed back from S 34º 23 E to S 34º 23 W, which is how it is described through the remaining conveyances. Exhs. 2, 8.

13. On August 1, 1962, Howard conveyed the McDonald Property to George and Marion Daniels (Daniels) by deed recorded in the registry on August 2, 1962 at Book 2953, Page 345. Exhs. 2, 8.

14. On October 10, 1980, the Daniels reached a Stipulation Agreement with Greenwood Manor regarding the confirmation petition in Land Court (REG 38717). The Stipulation Agreement states in part:

It is hereby stipulated and agreed between the parties hereto, that the respondents [the Daniels] shall withdraw their objections to Petitioners confirmation proceedings, subject to the conditions contained herein. It is further agreed that the following changes shall be made on the supplementary plan prepared by C. A. Pickering Associates dated December 19, 1979:

(5) The northerly boundary line and cement bound of the land on [the Greenwood Plan] owned by George Daniels. et ux, shall be moved to coincide with the existing stone wall as shown on said plan and the easterly boundary mark shall be moved to its original location as shown on the [1919 Plan].

Neither Pickering nor anyone at C.A. Pickering Assoc. Inc. was consulted or involved in any of the negotiations leading to the Stipulation Agreement. Exh. 3; Pickering Dep. at 22, Exh. 2.

15. On August 4, 1981, the Daniels conveyed the McDonald Property to Marion Daniels and Marian Washburn (Washburn) by deed recorded in the registry on August 17, 1981 at Book 5040, Page 325. On August 5, 1991, the McDonald Property was conveyed to Washburn individually by deed recorded in the registry on November 25, 1991 at Book 10602, Page 78. Exh. 8.

16. Washburn conveyed the McDonald Property to McDonald by deed dated and recorded in the registry on October 26, 2001 at Book 20773, Page 340. The description of the western boundary changes in this deed from that in previous deeds, with the course running northwesterly 128 feet, rather than northeasterly. Exh. 8.

Title to the Cytrynowski Property

17. On July 7, 1919, Lot Phillips conveyed Lot 4 of the subdivision, shown on the 1919 Plan, to Arthur Linnell by deed recorded in the registry on August 6, 1919 at Book 1327, Page 359 (1919 Deed). The deed describes Lot 4 as follows:

Beginning on Furnace Pond at the southeasterly corner of Lot No. 3 shown on Plan of Cottage Lots at Furnace Pond, Pembroke, Mass. Lot Phillips and Company Corporation, January 1919 and now owned by Alexander Millen, and running thence North 34º 23 East by said Lot No. 3 and by right of way, one hundred and thirty-nine (139) feet to a stake and stones, thence South 48º 37 East, by other land of the grantor, about ninety-seven (97) feet to land of Estelle Clark, thence Southwesterly by said Clark land, about one hundred seventy-three (173) feet to Furnace Pond aforesaid and thence Northwesterly by said Pond about sixty-one (61) feet to the point of beginning and being Lot No. 4 shown on said plan. Exh. 7.

18. On June 3, 1920, Linnell conveyed Lot 4 to John Taylor by deed recorded in the registry on June 8, 1920 at Book 1358, Page 89. The description of Lot 4 is the same as in the 1919 Deed. Exh. 7.

19. On March 25, 1925, Lot Phillips conveyed the parcel directly north of Lot 4, consisting of approximately 5,833 square feet (Parcel 2), to Esther Taylor, wife of John Taylor, by deed recorded in the registry on July 29, 1925 at Book 1487, Page 360. The deed describes Parcel 2 as follows:

Beginning at the northeasterly corner of houselot owned by John H. Taylor [Lot 4] at land of Estelle Clark thence running northwesterly by said Taylors land about ninety-five (95) feet to corner of land of said Taylor and grantors; thence north 34º 23 east 61.4 feet to a stake at the top of a hill; thence in a southeasterly direction parallel with said Taylors line to land of Estelle Clark; thence with said Clarks land in a southwesterly direction about 61.4 feet to the point of beginning. Exh. 7; see Chalk 1 attached here.

20. On July 29, 1925, John Taylor conveyed Lot 4 to Donald Walker (Walker) by deed recorded at Book 1487, Page 361. The same day Walker, acting as a straw, conveyed Lot 4 to Esther Taylor by deed recorded in Book 1487, Page 362. The description of Lot 4 is the same as in the 1919 Deed. By this transaction, Esther Taylor held title to both Lot 4 and Parcel 2, abutting Lot 4 to the north. Exh. 7.

21. On December 13, 1943, Esther Taylor conveyed both Lot 4 and Parcel 2 to Joseph and Miriam Dionne (Dionnes) by deed recorded in the registry on December 14, 1943 at Book 1856, Page 256. The descriptions of Lot 4 and Parcel 2 are consistent with the descriptions in the original deeds, and remain consistent through the rest of the conveyances. Exh. 7.

22. On May 18, 1945, the Dionnes conveyed Lot 4 and Parcel 2 to Frank and Beatrice Diekmeyer by deed recorded in the registry on May 22, 1945 at Book 1887, Page 157. Exh. 7.

23. After Frank Diekmeyer passed away, Beatrice Diekmeyer, now the sole property owner as the surviving spouse of Frank Diekmeyer, conveyed Lot 4 and Parcel 2 to Stephen and Denise Correia (Correias) on July 13, 1977 by deed recorded in the registry on July 18, 1977 at Book 4292, Page 280. Exh. 7.

24. On October 30, 1978, the Correias conveyed Lot 4 and Parcel 2 to Stephen Burke (Burke) by deed recorded in the registry at Book 4559, Page 23. Exh. 7.

25. On July 15, 1981, Burke signed an assent to the Stipulation Agreement that the Daniels signed, agreeing to the repositioning of certain boundary lines, which was recorded in the registry on October 23, 1985 at Book 6381, Page 162. Exh. 4.

26. On October 31, 1986, Burke conveyed Lot 4, Parcel 2, and the third and final parcel of land comprising the now Cytrynowski Property, shown as Parcel I on the Greenwood Manor Subdivision Plan, to Ray and Annie Bows (Bows) by deed recorded at Book 7234, Page 195. Exh. 7; see attached Exhibit B.

27. On February 22, 2001, the Bows granted to Ray Bows, individually, Lot 4 and Parcel 2 by deed recorded in the registry on February 28, 2001, at Book 19433, Page 347. On March 29, 2001, Annie Bows conveyed all her interest in Parcel I to Ray Bows by deed recorded in the registry on April 2, 2001 at Book 19603, Page 185. Exh. 7.

28. On March 30, 2001, Ray Bows conveyed all three parcels (Lot 4, Parcel 2, and Parcel I) composing the now Cytrynowski Property to the Cytrynowskis by deed recorded in the registry on April 2, 2001 at Book 19603, Page 186. Exh. 7.

The Common Boundary Dispute

29. Around August 7, 2002, McDonald obtained a building permit from the Town of Pembroke (the Town) to renovate the cottage on his property, including construction of a new deck and stockade fence. Exh. 1, ¶ 5; Exh. 18.

30. In February 2006, in anticipation of selling his property, McDonald had his property surveyed by John Keefe (Keefe), a registered land surveyor (Keefe Survey). The Keefe Survey depicted the shared boundary line and indicated that the improvements to his cottage did not encroach on the Cytrynowski Property. The Keefe Survey is attached here as Exhibit D. Exh. 1, ¶ 6; Exh. 5; Tr. 121.

31. Keefe testified as to the methodology he used when surveying the McDonald Property. Keefe first located all the pertinent monuments called in the parties chains of title. These bounds included the concrete bound at the southeast corner of the McDonald Property/southwest corner of the Cytrynowski Property by the Pond, the concrete bound at the southwest corner of the McDonald Property/southeast corner of Lot 2 by the Pond, the stone wall and iron pipe at the northwest corner of Lot 4/northeast corner of the right of way, the rotted pipe at the northeast corner of the McDonald Property/southeast corner of the right of way, and the concrete bound at the southeast corner of the Cytrynowski Property. He also located other monuments on adjacent lots and from the registered land plans (REG 38717) that he used as reference points and for further confirmation in surveying the properties. The Keefe Survey, submitted as part of the registration case no. 43456, has the perimeter of McDonalds land fully bounded with all monuments called in prior deeds and plans and distances matching the deed descriptions within inches. Based on his survey, Keefe testified that McDonalds house is entirely within his property boundary and does not encroach on the Cytrynowski Property. I credit Keefes testimony as to the location of the shared boundary line and, as discussed in the analysis below, I find that there is no encroachment. Exh. 5; Tr. 122-130, 132-139; view.

32. Some of the courses in the Keefe Survey differ from those in deeds and plans in the parties chains of title. Those measurements in the chain of title were derived from the 1919 Plan that was a compass survey. Keefe testified that such surveys stopped being used long ago due to their lack of accuracy in setting down boundary lines because they used magnetic north instead of true north. He opined that the shortcomings of the compass survey caused Pickering to be unable to find any of the original bounds and to improperly locate his concrete bound approximately six feet southwest of the original bound for the northeastern corner of the right of way/northwestern corner of Lot 4 at the stone wall and iron pipe. The concrete bound Pickering placed in conjunction with the Stipulation Agreement was the only inconsistent monument of those found by Keefe.

Keefe testified that prior to the Stipulation Agreement, deeds in the parties chain of title had the northwest corner of Lot 4/northeast corner of the 25 foot right of way at the stone wall and iron pipe and the northeast corner of the McDonald Property/southeast corner of the right of way at the rotted iron pipe. The Stipulation Agreement redefined the location of the 25 foot right of way. It shifted north the northeast corner of the 25 foot right of way/northwest corner of Lot 4, and made the stone wall and iron pipe the southeastern bound of the right of way. It redefined the northern boundary of the McDonald Property to move it to coincide with the stone wall and iron pipe, thereby adding land north of the original Lot 3. Although the stipulation states that the easterly boundary mark of the McDonald Property is moved to its original location on the 1919 Plan, the Greenwood Plan shows that the course of the common boundary line was actually moved west, coinciding with the course on which Pickerings bound was set.

Keefe testified that the misplacement of Pickerings concrete bound is directly responsible for the redefined property lines in the Stipulation Agreement. Not only did the location of the right of way shift up from its position on the 1919 Plan, adding land north of the now McDonald Property, but the southwest shift of the bound altered the course of the common boundary line and caused the Cytrynowski Property to widen. It is based on this altered course that the Cytrynowskis claim title to a portion of the land where McDonalds house is presently located. I credit Keefes testimony that the Stipulation Agreement did not do what was intended in correcting and fixing the bounds pursuant to the 1919 Plan. The stipulation itself is inherently inconsistent in that it agrees to place the shared boundary line according to its original location, yet the Greenwood Plan depicts the boundary as shifted westward so as to run through the now McDonald Property, a third of the way through the house. It is fair to infer, and I find, that McDonalds predecessors would not have stipulated to position the common boundary through the middle of their existing residence. Because of its innate inconsistencies, I do not find the Stipulation Agreement credible evidence of the true and accurate location of the shared boundary. Exhs. 2-5, 19; Tr. 127-129, 135-137, 171-173; view.

33. In surveying the properties, Keefe observed acts of the adjoining landowners that supported his placement of the common boundary. The location of McDonalds house, stairs, landscaping, a concrete berm, and concrete curbing were noted approximately all along what Keefe determined was the property line between the Cytrynowski Property and the McDonald Property. Keefe opined that all the boundary lines he surveyed follow the lines of occupation. Exh. 8; Tr. 133-134; view.

34. On April 9, 2009, Keefe prepared a second plan in connection with McDonalds registration case no. 43456 entitled Plan of Land Pembroke, Mass. by Keefe Associates. It is in all material respects, identical to the earlier Keefe Survey.

35. In July 2006, the Cytrynowskis had a survey done of their property by Douglas Bailey (Bailey), a registered land surveyor (Bailey Survey). The survey showed that McDonalds house, new fence and deck, added in 2002, encroached on the Cytrynowskis land. The Bailey Survey is attached here as Exhibit E. Exh. 1, ¶ 8; Exh. 6; view.

36. Bailey testified as to the methodology he used to establish the common boundary line. Unlike Keefe, Bailey failed to locate several significant bounds identified in the 1919 Plan and the parties chains of title. He stated that he instead primarily relied on Pickerings Greenwood Plan in plotting the boundaries, using Pickerings bounds and bearings in said plan, including the concrete bound that Pickering placed in 1974 in connection with the initial Confirmation Plan. Bailey extrapolated the shared boundary line using that bound. In using Pickerings bound, which was placed southwest of the original bound, the Bailey Survey did not match up with distances called in Cytrynowskis deed and chain of title. This created a gap along the western border of the Cytrynowski Property between the distances described in the deeds and the wider extrapolated boundary determined by Bailey. Using Baileys extrapolated line, the westerly border of the Cytrynowski Property lies about a third of the way across the McDonald Property, leading the Cytrynowskis to assert that McDonalds house is encroaching on their land.

Bailey also stretched the length of the western border of the Cytrynowski Property past the length stated in the Cytrynowskis deed of 139 feet (114 feet plus the 25 feet right of way) to 161 feet. Nothing in the Bailey Survey matches the description of the property in the Cytrynowskis deed except the eastern boundary line that abuts the registered land. The Bailey Survey does not delineate the boundaries of the three parcels (Lot 4, Parcel 2, Parcel I) that compose the Cytrynowski Property, but only depicts the border of the entire Cytrynowski Property. Bailey testified that he was unware of the Keefe Survey and did not discuss the differences between the two surveys with Keefe. Based on the difference in methodology employed by each surveyor, I find the methods used by Keefe to be more accurate and sound, and, therefore, cannot credit Baileys testimony as to the location of the shared boundary. A chalk illustrating the differences between the boundary lines established by the Keefe Survey and the Bailey Survey is attached here as Chalk 1. Tr. 24, 52-53, 72-76, 80; Exh. 6.

37. In his deposition, Pickering testified that he did not do any field work in creating the Confirmation Plan or the Greenwood Plan and did not replicate on the ground the gross boundary as depicted in the 1919 Plan. Instead, he assumed that the prior surveyors had already done so in connection with creating the 1966 Plan. Pickering only replicated the property lines of frontage and the right of way. He did not replicate any monuments. He also did not find any of the original monuments found by Keefe. Pickering opined that the Bailey Survey correctly depicts the boundaries of the Cytrynowski and McDonald Properties, including the location of the common boundary line. However, in forming his opinion, Pickering did not conduct his own ground survey nor did he review the Land Court registration plans submitted by Keefe. Given that Pickering did little field work or on the ground assessment in determining the boundaries or in analyzing the accuracy of the Bailey Survey, I do not credit his testimony. Pickering Dep. at 9- 10, 38, 41; view.

Discussion

This controversy is over the location of the shared boundary between the Cytrynowski and McDonald Properties. The resolution of this dispute turns on the degree to which certain plans and surveys accurately reflect the corresponding deeds that are necessary to determine the genuine boundary between the respective properties. The Cytrynowskis allege that, based on the Bailey Survey, McDonalds residence encroaches on their property. They seek relief for trespass, injunctive relief to prevent McDonald from continuing to encroach, and declaratory relief to require the removal of the allegedly encroaching structures. In reliance on the Keefe Survey, which conflicts with the Bailey Survey, McDonald asserts that his residence is entirely within his property and he is not encroaching on the Cytrynowski Property. In the alternative, McDonald asserts that he has adversely possessed the encroached upon area in excess of twenty years.

The location of a disputed boundary line is a question of fact to be determined on all the evidence, including the various surveys and plans, and the actual occupation and use[s] by the parties. Ellis v. Ashwood Realty, LLC, 19 LCR 520 , 523 (2011), quoting Hurlbut Rogers Mac. Co. v. Boston & Maine R.R., 235 Mass. 402 , 403 (1920). Deed construction is part of that analysis. Rules of deed construction provide a hierarchy of priorities for interpreting descriptions in a deed. 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. Moreover, when abutter calls are used to describe property, the land of an adjoining property owner is considered to be a monument. Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Monuments, when verifiable, are thus the most significant evidence to be considered. Ouellette v. McInerney, 19 LCR 41 , 42 (2011). The only exception recognized is where, by strict adherence to monuments, the construction is plainly inconsistent with the intention of the parties as expressed by all the terms of the grant. Temple v. Benson, 213 Mass. 128 , 132 (1912). In general, property descriptions in prior deeds in a deed chain take precedence over inconsistent descriptions of the same land in later deeds, for the simple reason that a grantor cannot convey more than he possesses. See C.M. Brown, et al., Browns Boundary Control and Legal Principles (4th Ed. 1995) (hereafter, Browns Boundary Control) § 2.6 at 32. A plan referred to in a deed becomes part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed. Reagan v. Brissey, 446 Mass. 452 , 458 (2006), quoting LaBounty v. Vickers, 352 Mass. 337 , 339 (1967).

When presented with expert surveying and title testimony, a court must assess the opinions offered. The court must decide which . . . expert it finds more credible, basing such assessment on the experts' analysis, taking into account the other evidence presented, including the documentary evidence, particularly the deeds and plans that lend support and corroboration to each opinion. Lombard v. Cook, 20 LCR 325 , 326 (2012). No surveyor or court has authority to alter or modify a boundary line once it is created. It can only be interpreted from the evidence of where that boundary is located. Brown's Boundary Control § 2.6 at 32. If the location of the survey lines are uncertain from lack of control of known fixed monuments, and various surveyors might place the lines in different places, subsequent occupational conduct, such as fences and improvements, are sometimes helpful evidence of the original lines and may be indicative of the originally intended grant. Fulgenitti v. Cariddi, 292 Mass. 321 , 325 (1935) (Acts of adjoining owners showing the practical construction placed by them upon conveyances affecting their properties are often of great weight.); Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417 , 423 (1922); Abbott v. Walker, 204 Mass. 71 , 73 (1910); see also Brown's Boundary Control § 11.22 at 273. The law does not require absolute certainty of proof to determine a boundary line, but merely a preponderance of the evidence. See McCarthy v. McDermott, 18 LCR 405 , 406 (2010), citing M. Brodin and M. Avery, Handbook of Massachusetts Evidence (8th Ed.), § 3.3.2(a) at 67.

Both sides relied mainly on the evidence presented by their respective surveyors who each interpreted the deeds and plans at issue and reached differing conclusions. Ambiguity in deeds of abutting properties does not preclude the courts ability to determine the location of a boundary line in dispute; it will be placed wherever the totality of the evidence indicates. Indeed, the law recognizes that descriptions sometimes varyoften due to differences in measurements taken at different times by different persons (who may or may not have been professional surveyors) using different tools or methodsand allows the court, after considering all the evidence, to resolve them. See Paull, 62 Mass. App. Ct. at 682 n. 16; Browns Boundary Control § 2.6 at 32.

Each party asserts that the rules of deed construction warrant an interpretation that favors them. The Cytrynowskis contend that the Bailey Survey correctly located the shared boundary line in accordance with their chain of title, the 1919 Plan, and the Greenwood Plan. According to the Bailey Survey, the common boundary line extends approximately a third of the way through McDonald's residence, resulting in an encroachment on the Cytrynowski Property. McDonald argues that the Keefe Survey accurately located the common boundary line using original monuments that Bailey was unable to find. Further, he asserts that the Bailey Survey relied too heavily on the Confirmation Plan and Greenwood Plan and should not have used the monument placed by Pickering in determining the bounds of the properties. The different approaches taken by each sides surveyor in placing the common boundary line is at the center of this dispute. I find the methodology and opinion of McDonalds surveyor, Keefe, persuasive and supported by the weight of the evidence.

The facts establish that the Keefe Survey was the most consistent with prior deed descriptions and plans as to the locations of the monuments that defined the Cytrynowski and McDonald Properties, dating back to the partition of the original parcel by Lot Phillips. Using the original monuments found, Keefe was able to calculate the distance of the shared boundary as 114.27 feet, corresponding to the distance in the Millen Deed and 1920 Deed (about one hundred fourteen feet) that first conveyed the McDonald Property out of common ownership. The Keefe Survey has the remaining perimeter of the McDonald Property fully bounded with all monuments located and all distances matching closely, within inches, of the descriptions in McDonalds chain of title67.27 feet for the northern boundary (same as the 1920 Deed), 120.54 feet for the western boundary (128 feet on the 1920 Deed), and 44.83 feet for the southern boundary (45 feet on the 1920 deed, approximate halfway point on the 1919 Plan).

While some of the courses and distances in the Keefe Survey are at odds with those in prior deeds and surveys, the courses in previous documents were derived from the outdated compass survey that created the 1919 Plan, which uses magnetic north instead of true north. In any event, these discrepancies should not be given much weight because descriptions referring to monuments control over those that use courses and distances. Moreover, acts of the adjoining landowners support Keefes placement of the common boundary. The location of McDonalds house, stairs, landscaping, a concrete berm, and concrete curbing were observed approximately all along what Keefe determined was the shared property line. These lines of occupation are helpful evidence of the original boundary lines and are indicative of the originally intended grant to the parties.

While Keefe found and used all original monuments that were called out in the chains of title to both properties and corresponding plans, Bailey did not. Instead, Bailey relied on the Greenwood Plan and used Pickerings bound when calculating and charting the courses and distances. The monument set by Pickering stands in error against all the other original monuments. Keefe testified that he believed that the shortcomings of the 1919 Plan, as a compass survey, caused Pickering to improperly place the concrete bound several feet southwest of the original bound denoting the northeast corner of the right of way/northwest corner of Lot 4, along the shared boundary. Consequently, this threw off the placement of the boundary in the Stipulation Agreement, which was intended to adjust the shared boundary to correspond with the 1919 Plan. The stipulation and the Greenwood Plan, while intended to be corrective, created more discrepancies between the older deeds and plans, and the newer surveys. In mistakenly relying on the accuracy of Pickerings bound, many of Baileys courses and distances differ significantly from the earlier deed descriptions found in the parties chains of title. Furthermore, the Bailey Survey does not isolate the three parcels comprising the Cytrynowski Property on his survey plan, making it impossible to match deed descriptions for each parcel to ascertain the surveys accuracy. I find the methodologies used by Keefe to be more accurate, and, thus, the Keefe Survey correctly depicts the location of the parties boundary lines.

Though Pickering opined that the Bailey Survey correctly ascertained the boundaries of the two properties using his bound and surveys, I do not credit his testimony. Pickering stated that he did not do any field work in creating the Confirmation Plan or the Greenwood Plan and did not replicate on the ground the gross boundary as depicted in the 1919 Plan. Like Bailey, Pickering also did not find any of the original monuments found by Keefe. Additionally, Pickering did not review the Land Court registration plans submitted by Keefe or do any field work to determine the accuracy of the Bailey Survey.

I also credit Keefes testimony that the Stipulation Agreement did not do what was intended in fixing the bounds pursuant to the 1919 Plan. The agreement itself is inherently inconsistent in that it calls for reestablishing the easterly bound of the now McDonald Property according to the 1919 Plan, yet deviates from said plan, as seen in the Greenwood Plan, based on Pickerings misplaced bound. The stipulation widened the Cytrynowski Property, shifting the common bound westward onto the McDonald Property. I agree with Keefes assessment, and find that the concrete bound set by Pickering should be disregarded and the original bound, the stone wall and iron pipe, is the proper monument from which to establish the shared boundary line.

Based on the documentary evidence in the record and Keefes testimony, I find that the boundary line in the Keefe Survey is the record common boundary line. Accordingly, McDonalds residence is located entirely within his own property bounds and does not encroach on the Cytrynowski Property. As such, judgment will enter against the Cytrynowskis and in favor of McDonald on Count I of his Counterclaim for declaratory judgment. Because I find that the entire house is located on the McDonald Property, I need not reach the trespass claim or McDonalds alternative claim for adverse possession. In addition, McDonalds Counts II, III, IV, and V of his Counterclaim are dismissed without prejudice as these claims have not been pursued by McDonald in this action nor fully addressed on the record and may also fall outside this courts subject matter jurisdiction.

Conclusion

Based on the foregoing, I find and declare that the record boundary line between the Cytrynowski Property and the McDonald Property is located according to the Keefe Survey, and is adopted by this Court for purposes of registration. The objections to registration advanced by the Cytrynowskis are dismissed. McDonald has proven title to his property and is entitled to a decree of registration of title for the McDonald Property, as shown on the filed registration plan by Keefe Associates and submitted by the petitioner. I rule that the title to the parcel shown on petitioner McDonalds file and accompanying survey by Keefe Associates, be registered and confirmed subject to other matters as are disclosed by the examiners abstract which are not in issue herein. Judgment shall enter in case no. 06 MISC 327920 as follows. On Count I of the Complaint and Count I of the Counterclaim, judgment shall enter declaring the boundary line between the Cytrynowski Property and the McDonald Property as shown on the Keefe Plan. The remaining counts of the Complaint are DISMISSED with prejudice, and Counts II-V of the Counterclaim are DISMISSED without prejudice.

Judgment accordingly.

ZBIGNIEW CYTRYNOWSKI and ELIZABETH HEALY v. EDWARD MCDONALD

MISC 06-327920

August 18, 2016

Plymouth, ss.

FOSTER, J.

DECISION