REGAN McCARTHY v. ROBERT McDERMOTT and ELLEN McDERMOTT.

Introduction

Plaintiff Regan McCarthy brought this action to determine the location of the common boundary line between her property in Truro and the abutting property then-owned by defendants Robert McDermott, Ellen McDermott, and Mikhail Zakin, and now by the McDermotts alone. [Note 1] This Decision is not the first in this case to address the location of that boundary. After an eleven-day trial, this court entered final judgment on August 2, 2010 and an Amended Judgment on August 2, 2011, finding and concluding as follows:

the boundary line between the property owned by plaintiff Regan McCarthy and the property owned by defendants Robert McDermott, Ellen McDermott and Makhail Zakin in the town of Truro is the straight line between points 8 and 9 as shown on the attached Decision Sketch A. Point 9 falls on the straight line connecting points 3 and 8 where it crosses the Cape Cod National Seashore boundary line. No adjudication has been requested, and none is given, of any other lines shown on that Sketch. [Note 2]

Amended Judgment (August 2, 2011). A copy of that Decision Sketch, annotated to show the area in question in this phase of the lawsuit ("the Trapezoid"; see discussion below), is attached hereto as Ex. 1. The Appeals Court subsequently affirmed the Amended Judgment and this court's denial of Ms. McCarthy's motion for a new trial. See McCarthy v. McDermott, Mem. & Order Pursuant to Rule 1:28, 85 Mass. App. Ct. 1123 , 2014 WL 2474196 (June 4, 2014).

As it turned out, that Amended Judgment did not fully resolve the entirety of the boundary dispute. This was because the trial and judgment were predicated on the parties' agreed fact that the entirety of the defendants' property was contained within the boundaries of the land conveyed in an 1838 deed recorded at the Barnstable County Registry of Deeds in Book 41, Page 180 ("Deed 41/180"). [Note 3] Unbeknownst to Ms. McCarthy and the court, however, nine months before the trial, Charles Francis, Jr. executed a deed purporting to convey to the defendants land located to the south of the Deed 41/180 property that, depending on its validity and location, might also abut Ms. McCarthy's property. [Note 4] As a result, the adjudication of the parties' common boundary was potentially incomplete.

After Ms. McCarthy learned of the Charles Francis, Jr. deed (recorded approximately sixty-eight months after its execution, twenty months after the initial Judgment entered, and eight months after the Amended Judgment entered), she filed a Rule 60(b) motion based on newly discovered evidence (the deed) and the court re-opened these proceedings for the limited purpose of adjudicating (1) whether Charles Francis, Jr. owned the land he purportedly conveyed to the defendants and, depending on that answer, (2) the location of its boundary line with the McCarthy property south of the 41/180 parcel, if any. [Note 5] See Memorandum and Order on Plaintiff's Rule 60(b) Motion (August 7, 2012).

During the pendency of the re-opened proceedings, the McDermotts concluded that Charles Francis, Jr. had no interest in the land he purportedly conveyed to them. [Note 6] The McDermotts then obtained a deed dated October 13, 2012 from Linda Pinkerton that purports to convey a trapezoid-shaped parcel of land (hereinafter the "Trapezoid") directly abutting the southern boundary of the Deed 41/180 property and to the west of Ms. McCarthy's. See Ex. 1 (attached) and a blow-up of the relevant area, attached as Ex. 2. [Note 7] Because the Pinkerton deed potentially affected the parties' common boundary, [Note 8] the court re-framed the issues to be determined in the re-opened proceedings to (1) whether Linda Pinkerton owned the Trapezoid that she purportedly conveyed to the McDermotts and, depending on that answer, (2) the common boundary line between that land and Ms. McCarthy's. See Memorandum and Order on Pending Motions (December 26, 2012).

A four-day trial was held before me on those limited issues, jury-waived. Based on the testimony and exhibits admitted into evidence at trial and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that the McDermotts own the Trapezoid and that the Trapezoid's eastern boundary line, which is as shown on Ex. 1 and 2, is its common boundary line with Ms. McCarthy's land of record.

Facts and Analysis

The location of a disputed boundary line is "a question of fact on all the evidence, including the various surveys and plans, . . . [to determine] where the true line originally ran, and was to be established." See Hurlbut Rogers Machinery Co. v. Boston & M. R. R., 235 Mass. 402 , 403 (1920). "Any competent evidence may be considered in determining the true boundary line between adjoining owners." Bernier v. Fredette, 85 Mass. App. Ct. 265 , 268 (2014) (quoting Holmes v. Barrett, 269 Mass. 497 , 500 (1929)). In this case, the evidence regarding the Trapezoid's title and common boundary with Ms. McCarthy's land largely consists of deeds. The principles of deed construction and harmonization therefore govern the court's analysis. [Note 9] Importantly for this case, when deeds or their harmonization with other deeds are ambiguous, when they conflict, or when their reliability is in question, it is the province of the trial judge to resolve those issues based on his or her evaluation of the totality of the evidence. See Cuddy v. Eldredge Pub. Library, Mem. & Order Pursuant to Rule 1:28, 91 Mass. App. Ct. 1129 , 2017 WL 2687415 at *1-*2 (June 22, 2017). In making that evaluation for Cape Cod woodland such as this, the court must keep in mind, among other things, "the relaxed documentation practices concerning woodlands on Cape Cod in the past (and particularly during the nineteenth century as their value declined), [and] the absence of reliable or complete monumentation. . . ." Id. at *2.

Guided by these principles, I address the Trapezoid's title and the boundary line question as follows.

Title to the Trapezoid

The trial of this aspect of the case began with the stipulated facts that both the McDermotts' Deed 41/180 property (in its entirety) and Ms. McCarthy's property (in whole or in part) are bounded on the south by land formerly owned by Doane Rich. [Note 10] I so find. For purposes of this Decision, the Trapezoid's chain of title thus begins with Doane Rich. As discussed more fully below, through a series of conveyances, title to the Trapezoid passed from Doane Rich to Linda Pinkerton and then, ultimately, to the McDermotts.

Doane Rich and His Devisees

The Trapezoid was once a portion of a three-acre parcel of brush land called Snow's Lot (the "three-acre parcel of brush land") that was owned by Doane Rich at the time of his death on August 4, 1859. [Note 11] In his will, Doane Rich devised a life estate in all of his real estate to his wife Sarah Rich and, upon her death, a life estate in all of his real estate (with the exception of his interest in half of a church pew) to his daughter Sally (a/k/a Sarah) R. Paine. He devised the fee in his real estate (also excepting the church pew) to his granddaughters Betsy R. Paine (married name Coan), Lucy A. Paine (married name Dyer), and Sarah R. Paine (married name Harrington), [Note 12]

Doane Rich's wife Sarah's life estate terminated when she died on August 11, 1859, as did Doane Rich's daughter Sally's life estate when she died intestate on December 30, 1885. The remainder (fee) interests in his granddaughters, Betsy, Lucy, and Sarah then went as follows. Sarah predeceased her mother, the life tenant Sally, on July 31, 1867, leaving as heirs her daughters Annie F. Knowles, Isabel L. Williamson, and Eugenia N. Bradford. The other two granddaughters, Betsy and Lucy, were still living when their mother died. Thus, at the time of the mother (Sally's) death, Betsy, Lucy, Annie F. Knowles, Isabel L. Williamson, and Eugenia N. Bradford together owned the fee in the three-acre parcel of brush land.

Partition by Doane Rich's Devisees

In 1887, Betsy and Lucy petitioned the Barnstable Probate Court to partition "the real estate lying in this Commonwealth of Sarah R. [Sally] Paine, late of Truro in said County of Barnstable," claiming to hold a two-third's interest in that property "as tenants in common and heirs at law of said deceased" [Note 13] and identifying the other interested parties as the late Sarah R. Paine/Harrington's daughters Annie F. Knowles, Eugenia N. Bradford, and Isabel L. Williamson. [Note 14] The Probate Court appointed as partition commissioners Samuel Dyer, Barnabas Paine, and Daniel E. Paine and ordered them to sell "all the real estate lying in [Massachusetts], of Sarah R. Paine, late of Truro, in said County of Barnstable, deceased."

I find that the property at issue in the partition proceedings included the three-acre parcel of brush land, for these reasons. Prior to the partition proceedings, there is no conveyance of record by Doane Rich or his devisees of a similar parcel. In the partition petition, Betsy R. Paine/Coan and Lucy A. Paine/Dyer sought the partition of not only the real estate they inherited from their mother Sally/Sarah R. Paine, but also the partition of real estate that they owned "as tenants in common," which at that time included the three-acre parcel of brush land. The court's partition order thus included this land. As discussed immediately below, the commissioners so interpreted it, as did the court itself in ultimately approving the sale.

In the partition proceedings, the partition commissioners conveyed an approximately three-acre parcel of brush land, which I find was the same three acres previously owned by Doane Rich and included the Trapezoid. By deed dated February 20, 1888 and recorded at the Barnstable County Registry of Deeds in Book 194, Page 544 (Deed 194/544), Samuel Dyer, Barnabas Paine, and Daniel E. Paine in their capacity as partition commissioners conveyed to John Silva two parcels of land: an approximately seven-acre lot of brush land and a second parcel - the three-acre parcel related to this case - which was described in the deed as follows:

a lot of brushland containing about three acres near the dwelling house of B.S. Keley bounded on the west by the Old County Road on the north by the land of Samuel Dyer, on the east by parties unknown, and on the south by land of Samuel A. Paine.

(hereinafter "Deed 194/544 Parcel Two"). [Note 15] Thereafter, the partition commissioners reported to the Probate Court that they "made sale and conveyance of the real estate therein ordered [in the Probate Court's warrant], by public auction, to the following named person[s] and for the sum[s] set against their name[s], to wit: W.J. Knowles $324, John Silva $23, Samuel Dyer, Jr. $85, [and] Harriet Snow $25. . . ." On August 14, 1888, the Probate Court accepted the commissioners' report and decreed the partition sale confirmed and established.

I find that Deed 194/544 Parcel Two is the three-acre parcel of brush land that encompassed the Trapezoid. No other conveyance of record by the partition commissioners purports to convey a parcel of brush land of any size, let alone one of about three acres. [Note 16]

John Silva/C. John Oliver

After John Silva acquired title to Deed 194/544 Parcel Two from the partition commissioners, that property was next conveyed on April 25, 1935 by Lucy Oliver as the Administratrix of the estate of C, John Oliver. [Note 17] There is no gap in the chain of title between those conveyances because, I infer, John Silva and C, John Oliver were the same person. As shown by the numerous vital records in evidence, John Silva, of Portuguese ancestry, was known by many anglicized names, including C. John Oliver, during his lifetime. [Note 18]

Charles F. Francis, Gladys M. Francis, and Charles F. Francis, Jr.

After John Silva/C. John Oliver passed away on August 3, 1933, Lucy Oliver, as the Administratrix of the estate of C. John Oliver, executed a deed dated April 25, 1935 and recorded in Book 511, Page 298 at the Barnstable County Registry of Deeds (Deed 511/298) purporting to convey seven parcels of land to Charles F. Francis. [Note 19] The third parcel in Deed 511/298 is described as follows:

Also a lot of brush land containing about three acres near the dwelling house of B. S. Keeley bounded on the west by the old county road on the north by land of Samuel Dyer on the east by parties unknown and on the south by land of Samuel Paine.

(hereinafter "Deed 511/298 Parcel Three"). I find that Deed 511/298 Parcel Three is the same property that John Silva/C. John Oliver acquired from the partition commissioners, Deed 194/544 Parcel Two. Deed 511/298 Parcel Three thus included the Trapezoid.

Charles F. Francis died intestate on September 27, 1937, leaving as heirs his wife, Gladys M. Francis, and his minor son, Charles F. Francis, Jr. The elder Charles F. Francis' estate Inventory (Barnstable Probate No. 25998) included three parcels of land: "Land about 2 acres; meadow about 1 acre; woodland about ½ acre all situated in Truro." His Inventory does not specifically reference three acres of brush land, but I infer, and so find, that Charles F. Francis owned Deed 511/298 Parcel Three at the time of his death. The record contains no instrument by Charles F. Francis that purports to convey that property during his lifetime. Also, his Inventory includes more than three acres of property, and its general descriptions of that property- "land," "meadow," and "woodland" - are a reasonable description of "brush land," and the fact that it was vacant land, of relatively little value at that time, explains why more precision was not sought. See Cuddy, 2017 WL 2687415 at *2 (discussing "relaxed documentation practices concerning woodlots on Cape Cod in the past"). In addition, as further discussed below, subsequent instruments in the Trapezoid's chain of title, including a deed by his son Charles F. Francis, Jr., refer to the elder Charles F. Francis' estate as a title source. I thus find that the elder Charles F. Francis owned Deed 511/298 Parcel Three, and therefore the Trapezoid, until his death when his wife, Gladys M. Francis, and son, Charles F. Francis, Jr. inherited it.

Gladys M. Francis passed away testate on September 13, 1972, devising all of her property to her son, Charles F. Francis, Jr. Her estate Inventory (Barnstable Probate No. 48567), includes the following real estate:

One-third interest in land with dwelling, Book 511, Page 298 (Parcels 1 in said deed). One-third interest in meadow and other land, Book 511, page 298 (Parcels 4, 5, and 6, in said deed). Fresh meadow and woodland[] one-third ineterst [sic] book 493, page 505.

Her Inventory does not reference Deed 511/298 Parcel Three. However, from the date of her husband's death to hers, there is no conveyance of record by Gladys M. Francis of a three­acre parcel of brush land like Deed 511/298 Parcel Three. I thus find that she owned Deed 511/298 Parcel Three, and thus the Trapezoid, until her death, and that her son, Charles F. Francis, Jr., inherited it. [Note 20]

Lorraine S. Francis

On March 4, 1975 Charles F. Francis, Jr. conveyed a portion of Deed 511/298 Parcel Three to the United States of America by deed recorded at the Barnstable County Registry of Deeds in Book 2161, Page 352 (Deed 2161/352). That conveyance did not, however, include the Trapezoid. Charles F. Francis, Jr. owned the Trapezoid until April 12, 2000 when, by deed recorded in Book 12948, Page 242 at the Barnstable County Registry of Deeds (Deed 12948/242), he conveyed the following property to his wife, Lorraine S. Francis:

the land in Truro, Barnstable County, Massachusetts, containing 1.92 acres, more or less, and being shown on a plan of land entitled in part: "Plan of Land in Truro made for Lorraine S. Francis" scale 1 IN.= 100 FT. Feb. 29, 2000 prepared by Slade Associates, Inc. and filed in Barnstable County Registry of Deeds in Plan Book 556, Page 28. For grantor's title see deed of Lucy Oliver to Charles F. Francis recorded with the Barnstable County Registry of Deeds in Book 511, Page 298, the above described premises being Parcel 3 therein. See also probate of the Estate of Charles F. Francis Barnstable Probate No. 25998 and probate of the Estate of Gladys M. Francis Barnstable Probate No. 48567.

(emphasis added). This property description refers to an approximately 1.92-acre parcel shown on the plan recorded at the Barnstable County Registry of Deeds in Plan Book 556, Page 28 (Plan 556/28) as well as Deed 511/298 Parcel Three. I find that Deed 12948/242 conveyed the entirety of Charles Francis' remaining interest in Deed 511/298 Parcel Three because of the specific title reference to that deed and parcel, and because of the references to the estates of the elder Charles F. Francis and Gladys M. Francis from which the grantor in Deed 12948/242, Charles F. Francis, Jr., acquired title to the property. [Note 21] On April 12, 2000, Lorraine S. Francis thus acquired title to the Trapezoid and the other land described in Deed 12948/242.

On September 21, 2000, Lorraine S. Francis conveyed a portion of the property she acquired by Deed 12948/242 to Dianne M. Fair. Lorraine S. Francis' deed to Diane M. Fair, recorded in Book 13253, Page 301 of the Barnstable County Registry of Deeds (Deed 13253/301), describes the property thereby conveyed as follows:

the land in Truro, Barnstable County, Massachusetts, containing 1.92 acres, more or less, and being shown on a plan of land entitled in part: "Plan of Land in Truro made for Lorraine S. Francis" scale 1 IN. = 100 FT. Feb. 29, 2000 prepared by Slade Associates, Inc. and filed in Barnstable County Registry of Deeds in Plan Book 556, Page 28. For grantor's title see deed of Charles F. Francis, Jr. dated April 12, 2000, and recorded in Barnstable County Registry of Deeds, Book 12948, Page 242.

This description has a title reference to Deed 12948/242 and, like the property description in that deed, refers to a 1.92-acre area and Plan 556/28. Unlike Deed 12948/242, however, the property description in Deed 13253/301 does not refer to Deed 511/298 Parcel Three. I thus find that Lorraine Francis' conveyance to Diane M. Fair in Deed 13253/301 did not include any portion of Deed 511/298 Parcel Three. [Note 22] Lorraine Francis thus did not convey the Trapezoid to Diane M. Fair, and it remained in Lorraine's ownership until her death.

Linda Pinkerton and the McDermotts

As just noted, Lorraine Francis owned the Trapezoid until her death on January 3, 2010 when her daughter, Linda Pinkerton, inherited the property. [Note 23] In her will, Lorraine Francis devised all of her real estate, after taxes, to her husband Charles F. Francis, Jr. if he survived her and, otherwise, to her daughter Linda Pinkerton. Charles F. Francis, Jr. predeceased Lorraine Francis and, thus, Linda Pinkerton inherited the Trapezoid.

On October 13, 2012, Linda Pinkerton conveyed the Trapezoid to Robert A. McDermott and Ellen D. McDermott by deed recorded in Book 26850, Page 120 at the Barnstable County Registry (Deed 26850/120). [Note 24] The McDermotts then became, and now are, the owners of the Trapezoid.

The Common Boundary Line

Having concluded that the McDermotts own the Trapezoid, the remaining issue in this case is the parties' common boundary line. The location of a disputed boundary line is "a question of fact on all the evidence. . . ." See Hurlbert Rogers Machinery Co., 235 Mass. at 403. The standard to determine a boundary line is "by a preponderance of the evidence," i.e., more probably true than not. See M. Brodin and M. Avery, Handbook of Massachusetts Evidence, § 3.3.2(a) at 67 (8th ed. 2007). Applying that standard, I find as follows.

As previously discussed, the court re-opened this case to determine whether the parties' common boundary extends beyond that which has already been adjudicated. [Note 25] Ms. McCarthy's position is that the McDermotts do not own the Trapezoid or any other land to the south of the line between points 7 and 8 as shown on Decision Sketch A. Thus, in her view, the common boundary only extends to point 8.

Contrary to Ms. McCarthy's contention, the McDermotts do own the Trapezoid, and its eastern boundary is as shown on the attached Ex. 1, i.e., a continuation of the straight line connecting points 3, 9, and 8 as set forth in the deed from Ms. Pinkerton. [Note 26] As discussed above, the Trapezoid is contained within the "three-acre parcel of brushland" owned by Doane Rich and passed down to Ms. Pinkerton by the devises, conveyances, and partition sale described above, and thus the part of it conveyed to the McDermotts goes to the southern extension of the point 3, 9, and 8 line. Whether the eastern boundary of the Trapezoid is a common boundary with Ms. McCarthy's land depends on whether Ms. McCarthy owns the land on the other side in this section. I find that she is, at least, the record owner of that area for the following reasons.

Ms. McCarthy's parcel is, like the McDermotts' Deed 41/180 property, "bounded on the south by land formerly owned by Doane Rich," Statement of Agreed Facts at 4, ¶ 9 (May 31, 2007), which land I find is part of the three-acre parcel of brush land from which the Trapezoid derives. The western boundary of Ms. McCarthy's parcel is, as the parties stipulated, a straight line. See Trial Transcript, Vol. I at 28 (Mar. 19, 2014). The evidence from the first trial indicates that the record western boundary of her land extends at least one rod (which is sixteen-and-one-half feet) further south along the same line as adjudicated in the Amended Judgment. See Decision at 16 n. 32 (August 2, 2010). See also Memorandum and Order on Pending Motions at 3 n.5 (December 26, 2012). The length of the eastern boundary of the Trapezoid is shorter, at approximately twelve-and-one-half feet long. See Ex. 59 (08-10-2006 Sketch of Land in Truro by Slade Associates, Inc. dated July 11, 2006 and revised August 30, 2006). I therefore find that Ms. McCarthy's parcel of record shares a common boundary with the Trapezoid's eastern boundary for that twelve-and-one-half feet (i.e., to the southeastern point of the Trapezoid). I make no finding as to whether Ms. McCarthy has actual title to any portion of her parcel of record to the south of the line between points 7 and 8 as shown on Decision Sketch A as the evidence before me was insufficient to reach that conclusion.

Conclusion

For the foregoing reasons, and for the reasons set forth in the August 2, 2010 Decision and the court's August 2, 2011 Memorandum and Order on Plaintiff's Motion for New Trial and to Amend Findings, I find and rule that the straight line between points 8 and 9 as shown on Decision Sketch A is a common boundary line between the parties' properties, and that Ms. McCarthy's parcel of record shares a boundary with the eastern boundary of the Trapezoid, owned by the McDermotts, as shown on the attached Ex. 1. Judgment shall enter accordingly. [Note 27]

SO ORDERED.

exhibit 1

exhibit 2