MARGARETH JEAN v. PEDRO PEREZ

I. INTRODUCTION

Margareth Jean ("Plaintiff") filed this case in this court on April 3, 2015. . She filed an amended complaint later that month. Plaintiff brings under G.L. c. 185, § 1(o) a claim of trespass to real estate involving title to real estate, and seeks judgment also pursuant to G.L. 185, § 1 (k) and G.L. c. 231A, requesting declaration.

Plaintiff, who owns land in Groton, asserts that the defendant, an owner of adjoining property, Pedro Perez ("Defendant"), built and maintains a fence that encroaches on Plaintiff's property ("Property"). [Note 1] Plaintiff requests that the court declare that the Property is located as described by Plaintiff's surveyor; Plaintiff seeks injunctive relief requiring removal of the disputed chain link fence from the area in controversy, and prohibiting further trespass by Defendant.

Defendant asserts that there is no encroachment, and that the fence is within the boundary of Defendant's property, as it exists on the ground. [Note 2] This case, which presents a claim of trespass, is properly before this court because, for Plaintiff to prevail on her assertion of trespass and obtain the relief sought from the court, it must determine the location on the ground of the boundary line between Plaintiff's and Defendant's properties, something about which the parties are in palpable disagreement.

II. PROCEDURAL POSTURE

Plaintiff filed an amended complaint on Apri1 13, 2015 seeking the following:

1. A Judgment that Defendant is committing a continuing trespass on Plaintiff's property as a result of the misplaced and encroaching fence, depriving Plaintiff of the use and enjoyment of her property.

2. An injunction ordering Defendant to remove the encroaching chain link fence from Plaintiff's property.

3. A declaration of Judgment that the boundaries described in the deed to Plaintiff's property are correct.

4. An award of interest, costs and such other relief as the Court may deem appropriate.

Defendant filed an answer to the amended complaint on May 4, 2015. A case management conference was held on May 11, 2015, at which counsel for both parties appeared. During that conference the court (Piper, J.) ordered the parties, by May 26, 2015, to inform their respective mortgagees of the litigation so they could elect to intervene, and, because counsel for Plaintiff professed that his client had an interest in mediation, the court ordered the parties, by May 26, 2015, to report whether their respective surveyors had conferred, and to report on the willingness of the parties to resolve this dispute through mediation. During that conference the court also established a schedule calling for discovery to close on September 30, 2015, with the first dispositive motion, if any, to be filed by October 31, 2015.

On October 6, 2015 the parties filed a joint motion requesting a brief enlargement of the deadlines established during the case management conference because the parties were working toward a consensual resolution of the matter, which involved hiring a third, independent surveyor to render an opinion. On February 16, 2016, the parties filed a second joint motion to enlarge the case management deadlines to allow for further efforts to resolve the case consensually. The court allowed that motion in part, giving the parties until April 4, 2016 to complete discovery, but declining to extend without further hearing the deadline for dispositive motions.

The court held a pre-trial conference on April 29, 2016. Counsel, at that conference, reported that the parties might have still some willingness to resolve this matter consensually, and the court ordered the parties to report by May 4, 2016 whether all were willing to participate in mediation. During that conference, trial was scheduled to begin on July 18, 2016, and the court ordered the parties to report, by May 16, 2016, whether there would be a court reporter and to file an amended joint pre-trial memorandum by July 8, 2016. The parties informed the court that there would be no court reporter, and in the filed pre-trial memorandum the parties, by their counsel, stipulated to certain facts and provided a list of agreed exhibits and witnesses. A mediation did not take place, as there was not mutual agreement to participate. The parties appeared for trial on July 18, 2016. No court reporter was present at the trial to create a transcript of the testimony. There is an audio recording created by the court's digital system.

At trial the parties by their counsel reiterated their stipulation that the agreed facts set forth in the amended pretrial memorandum were established for all purposes. Two witnesses testified at trial. Plaintiff called Stanley Dillis, Defendant called Michael Martorella. Both witnesses are land surveyors, called as expert witnesses to aid the court in determining the location on the ground of the property boundary dividing Plaintiff's and Defendant's lots. Sixteen exhibits, some in subparts, were introduced into evidence by the parties' agreement at trial. Certain exhibits also were presented in enlarged form for use by the witnesses and counsel during testimony. At the end of the trial day on July 18, 2016, after both parties informed the court that all of the evidence had been introduced, the court suspended the trial to allow each party to file, by September 2, 2016, proposed findings of fact, proposed rulings of law, supportive memoranda of law, and proposed forms of judgment. On November 16, 2016, trial resumed for closing arguments, following which the court took the case under advisement. I now decide the case.

********

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument submitted by the parties' counsel, I find the following facts and I rule as follows:

III. FINDINGS OF FACT

1. The Nashua River Paper Company owned a parcel of land in Groton, Middlesex County, Massachusetts that it conveyed to Irvin Schofield by deed dated June 26, 1946 and recorded with the Registry (see note one) in Book 7085, Page 535, on January 8, 1947.

2. On September 11, 1953, Irvin Schofield executed three deeds by which he conveyed in three (3) parcels the land he acquired from Nashua River Paper Company.

3. The deeds by which Irvin Schofield conveyed the three parcels were recorded with the Registry on September 15, 1953 and were marked by the Registry as being recorded all at the same minute, 10:04 a.m.

4. The deeds by which the three parcels were conveyed by Irvin Schofield all were signed and acknowledged by him on September 11, 1953.

5. One parcel, which is now the Property held by Plaintiff, known as 31 Fitch's Bridge Road, was conveyed by Irvin Schofield to Gordon E. Schofield in a deed dated September 11, 1953 and recorded with the Registry in Book 8137, Page 508 on September 15, 1953. This document is identified by the Registry as instrument #99.

6. Another parcel was conveyed by Irvin Schofield to Verna P. Schofield in a deed dated September 11, 1953 and recorded with the Registry in Book 8137, Page 509. This document is identified by the Registry as instrument #100. This parcel included both the parcel now known as 15 Fitch's Bridge Road, which is Defendant's property, and the parcel now known as 19 Fitch's Bridge Road.

7. An additional parcel, now known as 25 Fitch's Bridge Road, was conveyed by Irvin Schofield to Hetty P. Schofield in a deed dated September 11, 1953 and recorded with the Registry in Book 8137, Page 510. This document is identified as instrument #101.

8. In 1957, a surveyor named S. Chipman prepared a plan ("Chipman Plan") entitled a "Plan of Land in Groton, Mass.," Scale 1" = 20' by S. Chipman, Surveyor, Dated September, 1957 and recorded with the Registry on October 15, 1957 in Book 9040, Page 445. The Chipman Plan does not honor the distance of 100 feet for the western boundary of the parcel conveyed by Irvin Schofield to Hetty Schofield as stated in that deed, but rather has a distance for that boundary of 88.55 feet.

9. In or around the year 2000, the Plaintiff's parcel, known as 31 Fitch's Bridge Road, was advertised for sale.

10. While that property was advertised for sale, Defendant's property was surveyed by David E. Ross Associates, Inc. Following the survey, Defendant erected a chain link fence along the Defendant's northern boundary--as established by the Ross surveyor's report.

11. Defendant Pedro Perez is a title owner of the property known as 15 Fitch's Bridge Road, Groton, Middlesex County, Massachusetts, which was conveyed to him and his wife Carmen Lydia Perez by quitclaim deed dated October 9, 1959, and recorded with the Registry in Book 9476, Page 444 on October 13, 1959.

12. Plaintiff Margareth Jean is the title owner of the property known as 31 Fitch's Bridge Road, Groton, Middlesex County, Massachusetts, which was conveyed to her by quitclaim deed dated September 26, 2001, and recorded with the Registry in Book 33743, Page 458 on October 1, 2001.

13. Plaintiff's deed describes the property as being 161 feet east to west by 100 feet north to south.

14. In 2012, Plaintiff had the Jean property surveyed by Ducharme and Dillis.

15. Plaintiff's surveyor, Stanley Dillis, believes that the property should be 100 feet by 161 feet in accordance with the parcel description in both Plaintiff's 2001 deed and the deed from Irvin Schofield to Gordon E. Schofield recorded with the Registry in Book 8137, Page 508.

16. Mr. Dillis advised Plaintiff that he believed that Defendant's fence encroached on her property by nearly 15 feet.

17. Defendant's surveying firm, David Ross Associates, Inc. believes that the boundaries of Plaintiff's property are consistent with the distance of the western boundary set out in the Chipman Plan.

18. The 31 Fitch's Bridge Road parcel abuts the 15 Fitch's Bridge Road parcel along the entire southern boundary of the 31 Fitch's Bridge Road parcel which is the westernmost portion of the northern boundary of the 15 Fitch's Bridge Road parcel. This is the boundary line in dispute.

19. The parcels owned by Plaintiff and Defendant came out of a parent parcel originally conveyed to Irvin Schofield by the Nashua River Paper Company which states that the western boundary of the parent parcel is 531.70 feet.

20. I credit the testimony of both surveyors which found that the description of this parent parcel nearly closes mathematically.

21. I credit the testimony of Defendant's expert witness that this parcel had errors in measurements in relation to the monuments called out in the description.

22. In all three of the September 11, 1953 deeds from Irvin Schofield which divide up the parent parcel, each boundary is described both by distance and as running from monument to monument. Certain directional language regarding the path from one monument to the next in these deeds is inexact.

23. With the exception of two stone bounds, all of the monuments described in these three deeds dividing up the parent parcel are iron pipes. Both of the stone bounds are along what is now Fitch's Bridge Road. [Note 3] One stone bound is a monument at the northwestern corner of the 31 Fitch's Bridge Road parcel and one stone bound is a short distance from the northeastern corner of the 19 Fitch's Bridge Road parcel.

24. When Irvin Schofield conveyed the three parcels, no plan or survey of the three parcels was recorded with the Registry along with the deeds.

25. A portion of the parcel conveyed by Irvin Schofield to Verna Schofield was conveyed by Verna Schofield to Nunzio J. and Leola M. Carbone by deed dated July 5, 1955 and recorded with the Registry in Book 8513, Page 178 on July 8, 1955; the parcel, described as 140 feet east to west and 100 feet north to south, is part of what is now known as 19 Fitch's Bridge Road. The deed to this parcel does not mention iron pipes as monuments, but does describe the distances as going to a "bound" at each corner.

26. Another portion of the parcel conveyed by Irvin Schofield to Verna Schofield was conveyed by Verna Schofield to Nunzio and Leola Carbone in a deed dated August 3, 1957 and recorded with the Registry in Book 9040, Page 443 on October 15, 1957, which was described as a parcel 100 feet north to south by 10 feet east to west. The deed to this parcel does not mention monuments, but measures distances from the parcels then held by Verna Schofield and Nunzio and Leola Carbone.

27. These two parcels conveyed by Verna Schofield to Nunzio and Leola Carbone--the lot 140 feet east to west and the strip of land 10 feet east to west--are together now known as 19 Fitch's Bridge Road.

28. The remainder of the land then held by Verna Schofield now is held by Defendant and known as 15 Fitch's Bridge Road.

29. Nunzio and Leola Carbone conveyed both parcels, together known as the 19 Fitch's Bridge Road parcel, to Joseph Rizzo and Jeannette Rizzo by deed dated October 15, 1957, and recorded in Book 9040, Page 445 on October 15, 1957. The descriptions of the parcel boundaries in this deed differ from the descriptions in the deeds from Verna Schofield to Nunzio and Leola Carbone. This deed cites to, and conveys according to, the Chipman Plan. The Chipman Plan went to record along with this deed, as did the deed in from Verna Scholfield, conveying the strip of land described as 100 feet north to south by 10 feet east to west.

30. The Chipman Plan accompanying the deed from Nunzio and Leola Carbone to Joseph Rizzo and Jeannette Rizzo was recorded four years after the original conveyance from Irvin Schofield to Verna Schofield.

31. Both the Chipman Plan and the deed to Joseph and Jeannette Rizzo give a distance of 88.55 feet between two iron pipes to the western boundary of the first parcel conveyed by Verna Schofield to Nunzio and Leola Carbone (the boundary between the 19 Fitch's Bridge Road parcel and the 25 Fitch's Bridge Road parcel). This same boundary was described as 100 feet between two iron pipes in both the deed from Verna Schofield to Nunzio and Leola Carbone and in the prior deed from Irvin Schofield to Verna Schofield.

32. On the Chipman Plan three iron pipes are marked as existing pipes. One of the pipes, the one in the southeastern corner of the first parcel conveyed by Verna Schofield to Nunzio and Leola Carbone, was not a pipe or marker identified in the deed from Irvin Schofield to Verna Schofield. Nevertheless, it was on the Chipman Plan, marked as an existing pipe.

33. On the Chipman Plan the western boundary of the 19 Fitch's Bridge Road parcel is shown as at a 90? angle off the northern boundary, the line running east to west at the northern end of the depicted parcel, along what is now Fitch's Bridge Road; this line along the road is shown as being between an iron pipe and a stone bound. The western boundary is shown as running from an existing piper at the road to another existing pipe. All three of these monuments were identified in the deed from Irvin Schofield to Verna Schofield four years prior to the Chipman Plan.

34. The western boundary of the 19 Fitch's Bridge Road parcel shown on the Chipman Plan is consistent with longstanding occupation on the ground.

35. Plaintiff's expert Stanley Dillis created a plot plan consistent with the description of the distances set out in the deeds. This plan shows lines that are not perpendicular to what is now Fitch's Bridge Road, but rather depicts lots which are parallelograms.

36. The lot lines drawn by Plaintiff's expert Stanley Dillis, when overlaid on the aerial photograph of Plaintiff's lot (Trial Exhibit 2H) and the adjoining lots along Fitch's Bridge Road are not consistent with longstanding occupation on the ground. The proposed line for Plaintiff's lot comes very close to the southwestern corners of the houses on the 25 Fitch's Bridge Road parcel and the 19 Fitch's Bridge Road parcel.

37. I credit Plaintiff's expert Stanley Dillis's testimony that Defendant's fence runs over Plaintiff's septic system.

38. Iron pipes were found by Defendant's expert Michael Martorella along what is now Fitch's Bridge Road in locations consistent with the distances along that road described in the 1953 deeds from Irvin Schofield to Gordon Schofield, Verna Schofield, and Hetty Schofield.

39. An iron pipe was found near the southeastern corner of Plaintiff's parcel by Defendant's surveyor. This pipe, described in the deed from Irvin Schofield to Gordon Schofield, was of the same stock as the iron pipe found by Defendant's surveyor along the road in the northeastern corner of Plaintiff's parcel.

40. Plaintiff's surveyor also found the iron pipe near the southeastern corner of Plaintiff's parcel and identified it as an old pipe on the plan prepared for Plaintiff, but concluded that this monument did not mark the corner of Plaintiff's parcel.

41. The iron pipe shown on the Chipman Plan at the southwestern corner of the land conveyed by Nunzio and Leola Carbone to Joseph and Jeannette Rizzo was not found by Defendant's surveyor. A new pipe was set in that location.

42. Defendant's expert Michael Martorella testified that the reason the description in the deed to the parent parcel nearly closes mathematically, but does not match the monuments, is because the southeastern corner of the parent parcel does not match the monuments set out in the deed to Verna Schofield.

43. Defendant's surveyor found: that the measurement of the parent parcel's eastern boundary between monuments is over 1 foot longer than that described in the deed from the Nashua River Paper Company to Irvin Schofield; that the measurement of the parent parcel's southern boundary between monuments was nearly 10 feet longer than that described in the deed to Irvin Schofield; and that the measurement of the parent parcel's western boundary between monuments is over 13 feet shorter than that described in the deed to Irvin Schofield.

44. The location of the monuments found by Defendant's surveyor contradicts the distances set out in the original division deeds in 1953 from Irvin Schofield to Gordon Schofield, Verna Schofield, and Hetty Schofield, and in the seminal deed from Nashua River Paper Company to Irvin Schofield. Specifically Defendant's surveyor found, as Michael Martorella testified, the western boundary of the parent parcel, which sets Plaintiff's and Defendant's combined western boundary, to be 518.42 feet in length, and not 531.70 feet in length.

45. The western boundary of both Plaintiff's and Defendant's property abuts the same parcel of land, Lot 5 on Land Court Plan No. 39656-A ("Registered Lot 5"), filed with this court's South Registry District for Middlesex County with Certificate number 165779 in Book of Registrations 959, Page 29. Registered Lot 5 also abuts, to its east, part of a parcel south of Defendant's lot.

46. Defendant's expert Michael Martorella testified that the distance of the eastern boundary of Registered Lot 5 is, as adjudicated by this court in the registration case, 609.42 feet, and that the distance from the southwestern corner of Defendant's lot marked by an iron pipe and the stone bound further south along the eastern boundary line of Registered Lot 5 that marks the southeastern corner of Registered Lot 5 is exactly 91 feet. I credit this evidence.

47. I find that, in general, Defendant's expert Michael Martorella presented more persuasive testimony than Plaintiff's expert Stanley Dillis. Mr. Martorella gave an extensive and convincing explanation on the stand about the differences between the deed descriptions and what was found on the ground, and the reasons for the conclusions reached by Defendant's surveyor. I further find that Defendant's surveyor performed more extensive work, including the creation of a retracement survey of the area. I find that the work done by Plaintiff's surveyor was less comprehensive, and included only a plot plan of Plaintiff's lot, which did not fully consider the other lots that were carved out of the parent parcel along with Plaintiff's lot.

48. I find persuasive the longstanding occupation on the ground when considering the lot lines proposed by Plaintiff's surveyor. I find that the creation of lots that are parallelograms, rather than squared-off lots with lines running largely north to south, to be a far less likely and plausible outcome. I find these were not the intended lines when the lot lines were created. These more sharply-angled boundary lines are far less likely indicative of what the original parties' intentions were, because these skewed lines would shift the lot boundaries much closer to existing structures, cut across Defendant's driveway, and result in multiple encroachments among the four lots. The placement by owners over the years of plants and trees, accessory structures, and driveways, shows that the owners of these parcels believed that the lot lines do not form parallelograms, but rather run north to south.

IV. DISCUSSION

To determine the boundary between Plaintiff's and Defendant's lots, owned in fee of record, I begin by reviewing the record instruments for each parcel. Plaintiff asserts that the intent of the relevant grantor, Irvin Schofield, is found in the plain language of the 1953 deed conveying a lot to Gordon Schofield which measures 100 feet north to south and 160 feet east to west. If this is what the grantor did intend and in fact did convey to Plaintiff's predecessor in title, then Plaintiff has title to the same area, because the description of Plaintiff's parcel in her deed is unchanged from the relevant description in the deed making this first conveyance. There is no question that Irvin Schofield did include this language to describe what was he purported to convey to Gordon Schofield. However, the case is not that cut and dry. Ambiguity can be found within an instrument of conveyance, and such ambiguity, once found, allows the introduction of parol evidence to determine the rights granted or the area conveyed. See Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) (citing cases).

Viewed one way, there does not appear to be any internal ambiguity in the express language of the deed. The distances set out in the deed do nearly close mathematically. But there is ambiguity brought about by this conveyance. The ambiguity in this case arises not from internally inconsistent language within the instrument, but from the failure to find on the ground what is described in the deed. And where, as here, the deed's description relies on physical monuments, those monuments, and their location on the ground, are part of the mix in discerning the true meaning of the instrument. "A conveyance of land can only be by deed, and parol evidence is not admissible to control or vary a deed. If the description in [the deed] is certain and unambiguous, it is not competent to prove that the parties had any intention different from that expressed. But if, upon applying a deed to the land, it is found to be ambiguous, parol evidence of the surrounding circumstances and of the acts of the parties is competent to aid in the interpretation of the deed, and to enable the court to ascertain what was the intention of the parties in the words which they have used." Miles v. Barrows, 122 Mass. 579 , 581 (1877). "For the purpose of locating land conveyed by metes and bounds, resort must always be had to extrinsic evidence; and when uncertainty or ambiguity arises in the application of the description to the subject matter of the conveyance, evidence of all the facts and circumstances of the transaction will be received for the purpose of ascertaining the real intention of the parties. . . . It is only when the terms of the deed as applied to the land conveyed create no ambiguity, that evidence of intention is excluded." Chester Emery Co. v. Lucas, 112 Mass. 424 , 434-435 (1873). Contrary to Plaintiff's argument, when the descriptions in the deed fail to match what is found on the ground, and in particular do not jive with the location of the monuments called for in the conveyance, the court may look beyond the plain language of the instrument.

There are well-established legal principles that govern the court's determination of the location of a boundary line on the ground. These bedrock principles recently were laid out by the Appeals Court in Bernier v. Fredette, 85 Mass. App. Ct. 265 , 268-269 (2014):

The location on the ground today of what [is] described in the [] deed . . . presents a question of fact, Baker v. Miller, 284 Mass. 217 , 222 (1933), to be decided "on all the evidence, including various surveys and plans." Hurlbut Rogers Mach. Co. v. Boston & Maine R.R., 235 Mass. 402 , 403 (1920). "Any competent evidence may be considered in determining the true boundary line between adjoining owners." Holmes v. Barrett, 269 Mass. 497 , 500 (1929) .... It [is] for the judge to decide whether upon all the testimony and evidence it [is] more accurate to rely on one expert over another or ancient plans over more recent plans. Holmes at 502.

"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." Patterson v. Paul, 448 Mass. 658 , 665 (2007) (quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998)). "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." Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Whenever in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern. Baker, 284 Mass. at 220. Generally speaking, monuments, including a stake and stones, govern over distances. Temple v. Benson, 213 Mass. 128 , 132, 100 N.E. 63 (1912). "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." Ibid. "If the monument cannot be found and its location cannot be made certain by evidence, the measurements and other provisions of the deed are controlling." Holmes, supra at 500. "The weight to be given to the fact that certain terms of the deed [are] contravened by the location of the [boundary line] [is] for the judge to decide." Id. at 502. It [is] the judge's task to determine which, if any, of the parties' approaches correctly [locates] the boundary between [the lots], keeping in mind that the plaintiffs [bear] the burden of proving by a preponderance of the evidence that they own the disputed property.

Contrary to Plaintiff's argument, in the absence of evidence of a directly different intention, monuments control--and not the distances set out in the deeds. If the monuments described in the deeds are found on the ground, distances must be adjusted to them. The grantor's intent primarily is expressed in the placement of monuments by which the grantor conveys.

The deeds from Irvin Schofield do refer to distances along the boundaries of other properties, which may themselves constitute monuments, but each distance is described in the deed as going between placed physical monuments, either stone bounds or iron pipes. In such a circumstance, these monuments, when found, control. If these original monuments could not be found, then the effort would be to place them by use of the available evidence, and the distances would carry weight in this exercise. I turn to whether the monuments described in the deeds from Irvin Schofield to Gordon Schofield and Verna Schofield in fact were found on the ground, because, if so, these monuments control the determination of the boundaries of the Property, including the location of the disputed boundary line, and to a great extent the outcome of this case.

I accept as a fact that Defendant's surveyor found three monuments–those which I determine, in agreement with Defendant, are original monuments described in the 1953 deeds out of Irvin Schofield. Plaintiff's surveyor found these same three monuments, but Plaintiff claims that one of these monuments is not a monument described in the deeds; I do not accept this assertion. The first monument is the stone bound at the northwestern corner of Plaintiff's parcel near Fitch's Bridge Road. This bound also is a monument at a northeastern corner of Registered Lot 5. The deed from Irvin Schofield to Gordon Schofield identifies this monument as a stone bound, although it was identified on Land Court Plan No. 39656-A as a concrete bound. Both Plaintiff's and Defendant's experts found a concrete bound in this location. Despite the distinction between a stone and concrete bound in the plans, there is general agreement between the expert witnesses that this is the monument described in the deed from Irvin Schofield to Gordon Schofield as marking the northwestern corner of the 31 Fitch's Bridge Road parcel. I infer that, in connection with the registration proceeding for the adjacent parcel, a concrete bound was placed, likely at the court's direction, but otherwise conclude this to be the original location of this stone bound. Based on all the evidence and testimony presented, I find that this is (and at all times has been) the position of the monument identified in the deed from Irvin Schofield to Gordon Schofield which marks the northwestern corner of Plaintiff's parcel.

A second monument, which was found by both expert witnesses, and which they agreed marked a corner of Plaintiff's lot, was an iron pipe at the northeastern corner of Plaintiff's parcel and the northwestern corner of the 25 Fitch's Bridge Road parcel. The distance between this monument and the stone bound matches the distance described in the deed from Irvin Schofield to Gordon Schofield. Given the general agreement on this fact between the parties and their experts, and based on all the evidence and testimony presented, I find that this is the monument described in the deed from Irvin Schofield to Gordon Schofield which marks the northeastern corner of Plaintiff's parcel. I find that these two monuments mark the corners of Plaintiff's northern boundary.

A third monument found by both expert witnesses, and shown on their respective plans, is an iron pipe around 85 feet south of the northern boundary of Plaintiff's parcel as just established; this pipe lies along Plaintiff's boundary line. Defendant's expert testified that this iron pipe is the same kind of iron pipe as that found at the northeastern corner of Plaintiff's parcel. Defendant's expert testified that his survey team found this pipe because the distance from this pipe to the northern boundary nearly matches the distance north to south between two iron pipes on the Chipman Plan that mark the northeastern and southeastern corners of the 25 Fitch's Bridge Road parcel conveyed by Irvin Schofield to Hetty Schofield.

This monument also is shown on the plan prepared by Plaintiff's expert. Plaintiff's expert testified to the existence of this monument, but testified that he did not believe that this monument was intended to mark the southeastern corner of the lot because the location did not match the distances north to south set out in the deeds from Irvin Schofield to Gordon Schofield and Irvin Schofield to Hetty Schofield. Plaintiff's expert assumed that this monument could not be the original monument, but did not locate an alternative original monument. I find that Plaintiff's expert erred in yielding the found location of this monument to the distances called for in the deeds. I find persuasive the Chipman Plan, which established the eastern boundary of the parcel conveyed from Irvin Schofield to Hetty Schofield as around 85 feet between monuments. I find this plan persuasive because these monuments were located and depicted by Chipman in 1957, only four years after the original conveyance out of the parent parcel. The court is not convinced that, as Defendant argues, the pipes shown on the Chipman Plan as "existing pipes" all were set by Irvin Schofield, because the iron pipe marking the southeastern corner of the first parcel conveyed by Verna Schofield to Nunzio and Leola Carbone in 1955 was not identified as a monument in the deed from Irvin Schofield to Verna Schofield. I am, however, convinced that the two pipes which mark the western boundary of the 19 Fitch's Bridge Road parcel shown on the Chipman Plan--which is the eastern boundary of the 25 Fitch's Bridge Road parcel conveyed by Irvin Schofield to Hetty Schofield--are the same monuments originally identified in the deed to Hetty Schofield. I find it instructive that the monuments marking the eastern boundary of the lot conveyed in 1955 by Verna Schofield to Nunzio and Leola Carbone as shown on the Chipman plan are 100 feet apart, whereas the two pipes found on the western boundary of the 19 Fitch's Bridge Road parcel by the surveyor of the Chipman Plan are around 85 feet apart. In the deed from Verna Schofield to Nunzio and Leola Carbone, the description of the distance between the monuments that mark the eastern boundary of the 19 Fitch's Bridge Road parcel matches what is found on the ground, whereas the description of the distance between monuments that mark the western boundary does not. This western boundary of the 19 Fitch's Bridge Road parcel matches the longstanding occupation on the ground, and is 90? from another monument, the second stone bound found along Fitch's Bridge Road. This stone bound was found by Defendant's surveyor as well.

Turning back to the Plaintiff's parcel, the distance between the northeastern corner as just established and the monument determined by Defendant's surveyor to mark the southeastern corner of the lot, is also around 85 feet in length. If this is the monument that marks the southeastern corner, then the 25 Fitch's Bridge Road parcel would have a western and eastern boundary of the same length of around 85 feet. This would not match the deed description, but would make the parcel square. This is, I find, what the intention was. I also find it persuasive that the directional language in the original deeds out of the parent parcel is inexact, indicating reliance on the monuments placed, rather than on the "measured" distances included. Given this evidence and the testimony presented, I find that the iron pipe which Defendant's surveyor opined marked the southeastern corner of Plaintiff's lot, and which was found by both surveyors, is the monument described in the deed from Irvin Schofield to Gordon Schofield, which marks the southeastern corner of Plaintiff's lot.

I find that these three monuments are the monuments described in the 1953 deeds from Irvin Schofield to Gordon Schofield and Irvin Schofield to Verna Schofield, that they mark three corners of Plaintiff's parcel, and that the distances between these monuments on the ground control over the distances recited in the deeds. I further find that the line between the monuments at the northeastern corner of Plaintiff's parcel and the southeastern corner of Plaintiff's parcel mark the eastern boundary of Plaintiff's lot. The monuments control and the distances of the boundaries must yield to match the actual distances between these monuments found on the ground. The distance between the monuments on Plaintiff's northern boundary approximates, but is slightly more than, the distance for that boundary set out in the deed from Irvin Schofield to Gordon Schofield, and it is this actual distance between the monuments that is, I find, the length of the northern boundary of Plaintiff's parcel. The actual distance between the monuments on Plaintiff's eastern boundary, although nearly 15 feet less than the distance given in Plaintiff's deed, is the length of Plaintiff's eastern boundary.

No monument was found by either Plaintiff's or Defendant's surveyor at the southwestern corner of Plaintiff's parcel, along the line where the parcels owned by Plaintiff and Defendant abut Registered Lot 5. The absence of a found monument however, is dealt with by the location (adjudicated by the court in rem in the registration case) of Registered Lot 5. The eastern boundary of Registered Lot 5, which lies along the western edge of both Plaintiff's and Defendant's parcels, was established in Land Court Registration Case No. 39656, and both Defendant and Plaintiff's predecessors in title had ample opportunity to appear in that case and contest the location of that western boundary during that registration proceeding. The eastern boundary of Registered Lot 5, which is the westernmost boundary of both Plaintiff's and Defendant's parcels, has been definitively established by this court in an in rem proceeding, see G.L. c. 185, §§ 45, 47, and is a monument to be relied upon for all purposes in this case.

Defendant's expert set a pipe to establish the southwestern corner of Plaintiff's parcel at a location close to the distance of 431.70 feet described in the deed from Irvin Schofield to Verna Schofield for the westernmost boundary of the parcel now held by Defendant. The description of the western boundary in Plaintiff's deed is 100 feet. However, the distance from this pipe, set by Defendant's expert, and the stone bound at the northwestern corner of Plaintiff's parcel is just over 85 feet, which is approximately the same distance as the eastern boundary of Plaintiff's parcel I have established in this decision, and approximately the distance of the eastern boundary of the parcel known as 25 Fitch's Bridge Road as shown on the Chipman Plan.

While the distances in the deed may operate to convey where there is no monument used to transfer title, monuments do govern when employed in the conveyance. Defendant's surveyor found the western boundary of the parent parcel, which is Plaintiff's and Defendant's combined western boundary, to be 518.42 feet in length, and not 531.70 feet, between monuments. Plaintiff did not contest Defendant's claim that the monument at the southeastern corner of Defendant's parcel, as it was found by Defendant's surveyor, was the original monument described in the deed from Irvin Schofield to Verna Schofield. Based on the testimony and evidence presented, I find that this is the location of the original monument described in that deed. The deed from Nashua River Paper Company to Irvin Schofield gives a distance of 531.70 feet for this western boundary, which does not match the distance between these monuments. I find that the western boundary of the parent parcel is the distance between monuments marking the southwestern and northwestern corners of the parent parcel, and that this distance is, as measured by Defendant's surveyor, around 518 feet and not around 532 feet.

Given the shortened length of the western boundary of the parent parcel as just established, the descriptions in Plaintiff's and Defendant's deeds cannot both be correct. One of the two distances must yield to the other. I already have established that the distance in the deed from Irvin Schofield to Gordon Schofield for the eastern boundary is quite close to 85 feet, and not 100 feet as set out in that deed. By using this as the distance in the deed from Irvin Schofield to Verna Schofield, the western boundary of Plaintiff's parcel also comes to approximately 85 feet in length. Thus, I could defer to the distance set out in the deed to Verna Schofield and conclude that it governs over the competing distance set out in the deed to Gordon Schofield. Before reaching this conclusion, however, I turn to the southern boundary of Plaintiff's parcel.

Having determined the southeastern corner of Plaintiff's parcel it is clear that the distance of the southern boundary of Plaintiff's parcel, if it is to be parallel to the northern boundary, must be less than the distance of the northern boundary of Plaintiff's parcel. This is due to the angle of Plaintiff's western boundary along Registered Lot 5, which is not parallel to the eastern boundary of Plaintiff's parcel as established, but which rather runs at an angle between the northwestern and southwestern corners of Plaintiff's land. For Plaintiff's southern boundary to be 160 feet in length from Plaintiff's southeastern corner, the southern boundary cannot be parallel to the northern border, but would need to extend at a wide angle to reach the western boundary of Plaintiff's parcel, at a point that would be far off from the length of 100 feet described in Plaintiff's deed. While such an uneven parcel shape is a possible outcome, it is inconsistent with the language in the deed from Irvin Schofield to Gordon Schofield making the eastern and western boundaries the same length, which is the same length as that of the eastern and western boundaries set out in the deed from Irvin Schofield to Hetty Schofield. Further, Plaintiff did not seriously argue that such an implausible lot shape should be the result in this case.

If, by contrast, the southern boundary is held parallel to the northern boundary, and the southwestern corner is placed at the point where that parallel line intersects with the eastern boundary of Registered Lot 5, then, as stated, the distance closely matches the boundary distance set out in the deed from Irvin Schofield to Verna Schofield, and the distance of the eastern boundary of Plaintiff's parcel just established. I find it instructive that the distances set out in the deeds from Irvin Schofield to Verna Schofield and from Irvin Schofield to Gordon Schofield for the western boundaries of their respective parcels, when added, equal the length of the western boundary set out in the deed from the Nashua River Paper Company to Irvin Schofield. If one follows the distances in the directions called in the deed from Irvin Schofield to Verna Schofield, measuring from the southwestern corner of the parcel as is called for in the deed to Verna Schofield, and places a monument at the northwestern corner of that parcel, then one would place the monument where the monument was set by Defendant's surveyor. This seems right. I also find it instructive that Plaintiff's surveyor did not suggest the southern boundary was not parallel, but instead suggested that the western boundary determined the angle for all of the boundaries running north to south, something I cannot accept as a factual or legal matter.

I find, based on my assessment of the credibility of the witnesses and the persuasiveness of all the evidence presented, that the southern boundary line of Plaintiff's lot runs parallel to the northern boundary. This southern boundary line runs to a point along the eastern boundary of Registered Lot 5, which is the fourth corner of Plaintiff's lot. This point is the same point which would be established if the distance set out in the deed from Irvin Schofield to Verna Schofield for the western boundary of that parcel, 431.70 feet, were followed. I find that this point is the southwestern corner of Plaintiff's parcel. This is so even though the distance remaining for Plaintiff's western boundary is shorter than the distance of 100 feet given in the deed from Irvin Schofield to Gordon Schofield for Plaintiff's western boundary.

The southern and western boundaries of Plaintiff's parcel then are established by creating a line for the southern boundary from the iron pipe in the southeastern corner parallel to the line for the northern boundary, to a point along the eastern boundary of Registered Lot 5. The southern boundary of Plaintiff's parcel also is nearly 28 feet shorter than its northern boundary. The monuments found at the southeastern corner of Plaintiff's parcel and created by the eastern boundary of Registered Lot 5 govern, fixing the true length of this boundary. The western boundary of Plaintiff's lot is, as described, around 85 feet in length.

Finally, I address Plaintiff's argument that because the deed from Irvin Schofield to Gordon Schofield was recorded prior to the deed from Irvin Schofield to Verna Schofield, the parcel conveyed to Verna Schofield must be reduced by the measurement of the land first conveyed to Gordon Schofield. Plaintiff bases this contention on the general principle that what has already been conveyed by a grantor and duly recorded cannot be reduced by a conveyance later recorded. On the facts of this case, that argument lacks merit.

I have found that these conveyances bear the same date and were marked as being recorded on the same day within the same minute. Our appellate courts have provided guidance regarding the legal effect of recording deeds in a particular order when such deeds are recorded on the same day and around the same time. When the instruments come to be executed, delivered, and recorded at the same times, there is no supremacy afforded the grant in the one of the sequential instruments which first makes it to record, at least in the absence of some evidence of a contrary intention. The court in Chase v. Woodbury, 60 Mass. 143 , 147 (1850) held that where "deeds bear date the same day; there is nothing in the terms of either which makes it subject to the other; and prima facie therefore they [are] in fact simultaneous." See also Lefavour v. McNulty, 158 Mass. 413 (1893) and Richardson v. Bigelow, 81 Mass. 154 , 156 (1860) which construe together conveyances made at the same time or on the same day to determine easement rights. See Johnson v. Jordan, 43 Mass. 234 , 241 (1841), in which the court stated that where "it appears by the deeds themselves, as well as by the other evidence in the case, that the two conveyances from the owner of the whole, under which the parties claim, were simultaneous . . . [the case] is much more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it, than like the case of grantor and grantee, where the grantor conveys a part of his land, by metes and bounds, and retains another part to his own use."

In King v. Stephens, 9 Mass. App. Ct. 919 , 920 (1980) the Appeals Court addressed the question whether "the recording of the two deeds out of sequence constitutes a cloud on record title," where the earlier recorded deed conveyed property which was not held except under an earlier dated, but later recorded, deed. That court found that "entry of two deeds out of sequence did not cloud the record title when ‘the recording grantee has done all that he can do'" National Lumber Co. v. Lombardi, 64 Mass. App. Ct. 490 , 496 (2005) (citing King v. Stephens, at 920, quoting from 6 Powell, Real Property par. 918, at 298.2 (Rohan ed. 1979)). This decisional law guides the court to the conclusion that, when deeds are presented at the same time to the Registry, the order in which deeds go to record does not determine property rights definitively. I find that the order in which the conveyances from Irvin Schofield were recorded neither determines the rights of the parties, nor is at all instructive about the intent of the grantor.

Rather, I view the three deeds--all intra-family conveyances prepared, signed, acknowledged, and recorded at the same times--together as a single act by the grantor. These grants in these deeds are to be harmonized, rather than to be ranked in conveyancing priority. To conclude otherwise would allow procedural errors by personnel at the Registries, and other ministerial acts, to determine the rights of individuals who have presented documents simultaneously to the Registry in good faith. See King v. Stephens, 9 Mass. App. Ct. at 920.

Having determined that Defendant's expert was correct in determining the location of the disputed line, it follows that there is no trespass or encroachment as a result of the placement of Defendant's fence and no need for injunctive relief. A declaratory judgment is to enter establishing the disputed boundary line as placed by Defendant's surveyor. [Note 4]

Judgment accordingly.