Home JAMES S. OLEKSAK, JR., as Trustee of the Oleksak Revocable Living Trust v. WALTER A. BAENZIGER and NANCY BAENZIGER.

MISC 11-455708

November 5, 2018

Hampden, ss.



The surveyor's duty in regard to surveying historical boundaries is often described as "following in the footsteps of the original surveyor." Unfortunately, searching for footsteps involves searching for recollections, markings, monuments, and records that typically range in age from 50 to 300 years old. The intervening time has taken its toll on this evidence through decay, fire, flooding, construction, unintentional destruction, deceit, ignorance, and the unavailability or incompetency of reliable witnesses.

Knud E. Hermansen, When Is a Rod Not 16.5 Feet? (More Times Than Not), in LAND SURVEYS: A GUIDE FOR LAWYERS AND OTHER PROFESSIONALS 54 (Mitchell G. Williams, ed., ABA Publishing 2000).

If resolving the boundary dispute in this case required merely following in the footsteps of a surveyor, the fight would have ended long ago. Instead, the parties ask the Court to trace the wanderings of two brothers, Stephen J. and Thomas V. Oleksak, both of whom are dead. Neither was a surveyor. Both were foresters, and they had inherited in 1942 a large, mountainous and heavily timbered tract in Russell, Massachusetts. In 1961 (a date at the low end of Hermansen's range for "ancient" surveys), they decided to divvy up their lands. And while the vernier transit and steel tape had been in use since the late 1800s (not to mention the surveyor's compass and chain, technologies that were familiar to George Washington, see id. at 54-56), the Oleksak brothers decided to skip the expense of a surveyor. Instead, in 1961 of all years, they chose to describe the line between the largest part of their lands this way:

Beginning at a point at the location of the Old Bridge which crosses King's Brook, so-called, on what is known as the Old Hallbourg Road, which Road is marked by pipes and stones along its course; thence running westerly along said Road to a point at Sodom Brook at the location of an old bridge which crossed said Sodom Brook [but which by 1961 had long since disappeared without a trace]; thence westerly up a steep hill [in an area of rugged terrain!] to a ravine [ditto!]; thence westerly along said ravine to a heap of stones [!] on a ledge [!] at land of the Appalachian Club.

The current owners of the Oleksak brothers' lands ask this Court to find the location of Old Hallbourg Road, the "old bridge" that once crossed Sodom Brook, the "steep hill," the "ravine," and the "heap of stones on a ledge" on the abutting land of the Appalachian Mountain Club (the "AMC Property"). They appeared for trial in April 2018. On the first day of trial, the Court viewed the parties' Russell properties. That view included a bumpy drive along a gravel road that the parties represented (at the time of the view) was Old Hallbourg Road, to its crossing of Sodom Brook. The view allowed a look at where that road and a purported older road cross that brook, plus an inspection of one of two areas that are competing for the title of the Oleksak brothers' "ravine." After trial, the Court requested additional evidence. After the parties complied with that request, defendants Walter A. and Nancy Baenziger requested an evidentiary hearing, which the Court held in October 2018. During that hearing, plaintiff James S. Oleksak, Jr., as Trustee of the Oleksak Revocable Living Trust, advanced a different argument concerning the location of Old Hallbourg Road.

Based on the testimony at trial, the parties' agreed facts, the evidence admitted at trial, the Court's view, various post-trial submissions by the parties, and the October 2018 evidentiary hearing, the Court finds the following facts:

1. Trustee Oleksak owns in fee simple land at 1400 General Knox Road in Russell, MA, more fully described in a deed recorded in Hampden County Registry of Deeds (the "Registry") in Book 9022, Page 123.

2. Mr. and Ms. Baenziger own in fee simple land at 1460 General Knox Road, Russell, MA, more fully described in a deed recorded at the Registry in Book 17386, Page 144. The Baenzigers' property abuts the Trustee's property.

3. Stephen J. Oleksak is the Trustee's father, and Thomas V. Oleksak is the Trustee's great-uncle. (Because four Oleksaks play parts in this case, this decision will call each of the Oleksaks except Trustee Oleksak by their first names.) Stephen and Thomas once held title as tenants in common to what are now the Trustee's and the Baenzigers' properties, as well as other lands.

4. In 1961, Stephen and Thomas decided to divide their lands between themselves. They did so by recording two deeds. In the first deed, recorded at the Registry in Book 2796, Page 292 ("Thomas's Deed"), Stephen was the grantor and Thomas the grantee; in the second, recorded at the Registry in Book 2796, Page 293 ("Stephen's Deed"), Thomas was the grantor and Stephen the grantee. The result of both deeds was that Stephen received the southern part of a formerly unified parcel and Thomas received the northern part. Trustee Oleksak is Stephen's successor in interest; the Baenzigers are Thomas's successors in interest.

5. The opening of this decision quotes the language in Thomas's and Stephen's Deeds that describes the dividing line between the brothers' parcels. Neither deed contains language excepting or reserving Stephen's (in the case of Thomas's Deed) or Thomas's (in the case of Stephen's Deed) respective fee interests beneath Old Hallbourg Road.

6. At the time of the April 2018 trial, the parties appeared to agree that Old Hallbourg Road is a gravel road that begins on the south side of General Knox Road in Russell. The parties also appeared to agree that Trial Exhibit 8, a plan prepared by surveyor Robert G. Foresi in 2013, depicts most of the section of Old Hallbourg Road that separates the parties' properties. In preparing his survey, Foresi reviewed the pertinent deeds, atlases, county records, and assessors' maps. He also attempted to locate what Stephen and Thomas's Deeds call the "pipes and stones" along Old Hallbourg Road, with little success.

7. It seemed at the time of the April 2018 trial that the parties accepted Exhibit 8's depiction of Old Hallbourg Road up to a point that is approximately 130 feet east of the easternmost of two culverts shown on Trial Exhibit 20 (the "Point of Dispute"). The parties together had the Court view the entirety of Old Hallbourg Road as depicted on Exhibit 8. At the time of the April 2018 trial, the parties appeared to disagree over only (a) the location of Old Hallbourg Road west of the Point of Dispute, including where it intersects with Sodom Brook; (b) the location of the boundary between their two properties west of Sodom Brook; and (c) whether, in the "agreed" portion of Old Hallbourg Road east of the Point of Dispute, the boundary between their properties was the northern edge of the Road as shown on Exhibit 8 or its centerline.

8. By the time of the October 2018 evidentiary hearing in this matter, Trustee Oleksak no longer accepted Exhibit 8 as showing the course of Old Hallbourg Road from King's Brook to the Point of Dispute. Trustee Oleksak traced his route for Old Hallbourg Road using Trial Exhibit 22, a 1967 map from the U.S. Geological Survey of the Woronoco, Mass. Quadrangle (the "1967 Map"). The 1967 Map doesn't name any of its features "Old Hallbourg Road," but Trustee Oleksak argued that Old Hallbourg Road takes the following path on the 1967 Map: Old Hallbourg Road begins as what the 1967 Map shows as an unimproved road leading southwest and then south from General Knox Road, approximately 2600 feet from where General Knox Road intersects with what the 1967 Map shows as the Westfield Corporate Boundary. Old Hallbourg Road follows the unimproved road until it reaches an unnamed stream on the 1967 Map. The parties agreed that that stream corresponds to King's Brook. Old Hallbourg Road then leads west from King's Brook along what the 1967 Map shows as an unnamed trail. That trail splits into two trails. The 1967 Map calls the northern trail the Fisher Trail, and the southern one the Spring Trail. According to Trustee Oleksak, Old Hallbourg Road follows what the 1967 Map shows as Spring Trail until that trail reaches Sodom Brook. Trustee Oleksak contended in October 2018 that, beyond Sodom Brook, the Spring Trail is the boundary between the parties' properties until the Trail reaches the AMC Property.

9. The Court finds that Exhibit 8 shows the path of Old Hallbourg Road that is described in Stephen and Thomas's Deeds from King's Brook to the Point of Dispute, for three reasons. First, the Court accepts Mr. Foresi's testimony that the path shown on Exhibit 8 is identical to the route described in ¶ 8 of this Decision from King's Brook to the intersection of the Fisher and Spring Trails, and then for approximately another 800 feet southwest along the Spring Trail to a point where the 1967 Map shows as an unnamed trail heading south from the Spring Trail. The Old Hallbourg Road that the Court viewed at trial then followed the unnamed trail south and then west until it reached the Point of Dispute.

10. Second, the path of Old Hallbourg Road shown on Exhibit 8 corresponds with that shown on Trial Exhibit 4, a 1986 map prepared at Trustee Oleksak's request by Daniel A. Oleksak of Woodland Management Services. Daniel drew Exhibit 4 based upon another map, one prepared in 1980 by Bruce Anderson. Daniel was not a licensed professional surveyor, and Exhibit 4 is not a professional survey. But Exhibit 4 has an important feature that enhances its reliability: Daniel prepared it to enable Trustee Oleksak to submit a state-mandated forest management plan. Current state regulations pertaining to forest management plans require a detailed description of any lands that are subject to the plan, along with details explaining how one can discern the land's boundaries. See 302 CMR 15.04(1)(b) (requiring map of parcel to be classified as managed forest, prepared "at least to the extent required in the most recent edition of 'Directions for the Preparation of Chapter 61 Management Plans'"); Directions for the Preparation of New Chapter 61 Forest Management and Forest Stewardship/ Green Certification Plans (Apr. 2014 revision, available at https://www.mass.gov/files/documents/2018/03/20/ 61stewgc-directions-oct14.pdf). The parties did not introduce any evidence surrounding the Commonwealth's requirements for such plans as of 1986, but in view of Exhibit 4's content, the Court finds that Daniel prepared Exhibit 4 knowing that Trustee Oleksak would be filing it pursuant to state regulations, and further understanding that he needed to prepare the exhibit in a truthful and reliable fashion.

11. Third, Trustee Oleksak made no effort at the April 2018 trial to show the Court the section of the Spring Trail that crosses Sodom Brook. Trustee Oleksak instead spent considerable time trying to convince the Court that Old Hallbourg Road crossed Sodom Brook in an area considerably distant from where the 1967 Map shows the Spring Trail crossing Sodom Brook.

12. At the April 2018 trial, the parties disputed the location of Old Hallbourg Road in the section starting at the Point of the Dispute west to what Stephen and Thomas's Deeds call the location of the "old bridge" across Sodom Brook.

13. The old bridge didn't exist in 1961. Trustee Oleksak never saw the old bridge, but he understood that it used to be at a "ford" across Sodom Brook along Old Hallbourg Road. Trustee Oleksak testified that he assisted Stephen and Thomas at the time they divided their lands. Trustee Oleksak testified that in 1961, the ford was at the point labelled "Old Ford Location" on Trial Exhibit 20. Trustee Oleksak claimed that in the 1970s, he relocated Old Hallbourg Road in the area of Sodom Brook to its current location, a location that he claims is south of the "Old Ford Location."

14. The Court does not credit Trustee Oleksak's testimony regarding the "Old Ford Location." The Court finds instead that the "ford" associated with the "old bridge" lies underneath current Old Hallbourg Road, as depicted on Exhibit 8, as it crosses Sodom Brook (hereafter, the "Crossing Point"). The Court makes this finding for two reasons. First, the Baenzigers bought their parcel from Thomas in June 1986. Before they bought the property, Mr. Baenziger toured the parcel with Thomas. Baenziger and Thomas travelled westerly along Old Hallbourg Road until they reached Sodom Brook. They then crossed the Brook at a ford made of solid bedrock. The ford had no debris upon it, and its southern edge dropped steeply. Thomas described Old Hallbourg Road, including the ford as it existed in 1986, as the boundary between his property and the Trustee's property.

15. Second, George Costa, a geotechnical engineer, credibly testified that, in his opinion, the existing culverts beneath Old Hallbourg Road as it crosses Sodom Brook lie on a flat, solid surface, consistent with the "bedrock" Mr. Baenziger observed in 1986. Costa testified that he probed the soils of the purported "Old Ford Location" to a depth of 30 inches, and found no hard surface. He also probed the soils in the vicinity of both culverts. His probe repeatedly hit refusal within eight inches of the bottom of the culverts. Moreover, while the culverts were not professionally installed (Trustee Oleksak installed them in 1999-2000), the downstream ends of the culverts show few signs of erosion. In Costa's opinion, the lack of significant erosion beneath the culverts at their downstream end indicates that they sit atop an erosion-resistant surface, consistent with bedrock or heavy boulders.

16. Having found the Crossing Point, the Court turns to the remaining courses described in Stephen and Thomas's Deeds from Sodom Brook to the AMC Property. Those courses are "thence westerly up a steep hill to a ravine; thence westerly along said ravine to a heap of stones on a ledge at the land of the Appalachian Club."

17. Stephen and Thomas's Deeds use the word "westerly" imprecisely. For example, they use the word "westerly" to describe the boundary between the two properties that runs along Old Hallbourg Road. While the place where Old Hallbourg Road crosses Sodom Brook is west of the "Beginning" point described in both Deeds, Old Hallbourg Road travels in many compass directions – west, northwest, west, southwest, west, south, southwest, and west – before it reaches Sodom Brook. On the other hand, the Deeds also use the words "northerly," "northeasterly," "southerly," and "easterly" to describe various courses. The courses described in ¶ 16 of this decision don't use any of those directions.

18. The Court finds that Exhibit 8 shows the boundary between the parties' properties between the Crossing Point and the AMC Property, but not quite along the path for which the Baenzigers advocated at trial. Exhibit 8 depicts after Sodom Brook two portions of a boundary that appears on Exhibit 4 (Daniel Oleksak's 1986 map): the first proceeds approximately 200 feet west from Sodom Brook, and the second turns southwest from that point (the bearing either is S 26°W or S 36° W – the number is unclear from Exhibit 4) for 512 feet until it reaches what Exhibit 8 and Mr. Foresi call a ravine (the "Ravine Intersection"). Both of those courses climb what one could call a "steep hill."

19. The Baenzigers argued that the course "westerly up a steep hill to a ravine" runs on a line approximately 290 feet long that proceeds southwest from the Crossing Point, meeting the ravine (the same ravine discussed in ¶ 18 above) at a point where it intersects a twelve-foot wide gravel roadway. (The gravel roadway currently starts at the Crossing Point, climbs a gradual slope to the west, then turns sharply southeast.) Exhibit 8 shows the 290-foot course. That course too climbs what one could call a "steep hill" from its start at the Crossing Point until it reaches the ravine. Mr. Baenziger claimed that Thomas confirmed in 1986 that the intersection of the ravine and the gravel roadway marked the boundary between the Oleksak brothers' parcels.

20. The Court finds that Daniel's two courses, described in ¶ 18, correctly identify the boundary between the parties' properties in the section that begins at the Crossing Point and ends at the Ravine Intersection, for three reasons. First, those courses proceed from the Crossing Point in a compass direction that better fits the Deeds' use of the term "westerly" than the Baenzigers' proposed 290-foot course.

21. Second, Daniel's two courses use the same distances that appear on three Town of Russell assessors' maps that depict the boundaries of the parties' properties. (Those maps locate Sodom Brook and Old Hallbourg Road's crossing of the Brook in a place that's different from what Exhibit 4 shows. Thus, on the assessors' maps, the first of Daniel's two courses starts somewhat east of where it starts on Exhibit 4.) That historical, independent evidence corroborates Daniel's two courses.

22. Third, the 1967 Map shows that the unnamed trail described in ¶ 9 above follows the same course as the gravel roadway described in ¶ 19 above. The 1967 Map shows the unnamed trail heading southeast until it splits into two trails, one of which the Map calls the County Road Trail. Exhibit 4 (Daniel's 1986 Map) shows the same split; it calls the entire road from the Crossing Point and past the County Road Trail "Old Hallbourg Road." This evidence suggests that today's gravel roadway west of the Crossing Point existed in 1961 as Old Hallbourg Road. It's undisputed that Stephen and Thomas were familiar with Old Hallbourg Road in 1961. If they had intended for the course leading up the "ravine" to start at Old Hallbourg Road, it's likely they would have said that. Instead, their Deeds reflect a decision not to use Old Hallbourg Road as any sort of boundary or monument west of the Crossing Point.

23. Now for the final run, that between the Ravine Intersection and the AMC Property. Exhibit 4 shows two courses in this section: a 626-foot course running S 84° W, and a 670-foot course running S 58° W that passes through a "pile of stones" shortly before reaching the AMC Property. Exhibit 4 doesn't indicate that these courses are climbing a ravine. Exhibit 8 by contrast shows a 773-foot course running up the ravine in a westerly direction, then leaving the ravine west/southwesterly for approximately 225 feet before reaching an eight-inch blazed maple, proceeding another 281 feet or so in the same direction before reaching an iron pipe set in an 18-inch beech tree "blazed with stones," and then proceeding 90 feet in the same direction to the AMC Property.

24. Neither Exhibit 4 nor Exhibit 8 indicates a "heap of stones on a ledge at the land of the Appalachian Club." The Court nevertheless finds that Exhibit 8's courses beyond the Ravine Intersection better illustrate the boundary line described in Stephen and Thomas's Deeds than does Exhibit 4, principally because Exhibit 8's 773-foot course proceeds "westerly" up the Ravine found at the Ravine Intersection.


Having found the facts, the Court turns to the parties' claims.

Trustee Oleksak filed this action in November 2011. Count I in his complaint is a petition to try title under G.L. c. 240, §§ 1-5, and Count II is a petition to quiet title under c. 240, § 6. The Trustee brought three other counts, but he agreed prior to trial, with the assent of the Baenzigers, to waive his claims in those counts, without prejudice to bringing them some other time. The Baenzigers have nine counterclaims, but they agreed prior to trial (with the Trustee's assent) to have this Court transfer them to the Hampden County Superior Court once this Court resolves Counts I-II.

On February 23, 2018, this Court issued an Order in Advance of Trial that specified that the sole issue to be tried is the location of "the boundary between the parties' properties in the vicinity of 'Disputed Parcel #2,' as identified in Trustee Oleksak's complaint." After trial, the parties agreed that they had tried, and wanted the Court to determine, the entire boundary between their formerly unified parcels (see Finding ¶ 4). Resolving this dispute depends on the answers to four subsidiary questions: (a) where is "the Old Hallbourg Road"; (b) where is the "the location of an old bridge which crossed . . . Sodom Brook"; (c) where does the law put the boundary between the parties' properties in the section that uses Old Hallbourg Road as a monument; and (d) where are the courses beyond the "old bridge" that the parties' deeds describe as "westerly up a steep hill to a ravine; thence westerly along said ravine to a heap of stones on a ledge at land of the Appalachian Club."

The first two questions are entirely factual. The Court has found that Old Hallbourg Road from King's Brook to Sodom Brook follows the path shown on Exhibit 8. The Court also has found that the Crossing Point is the "location of an old bridge which crossed . . . Sodom Brook" at the end of the stretch of Old Hallbourg Road that Stephen and Thomas mentioned in their Deeds.

The third question – where is the boundary between the parties' properties along Old Hallbourg Road until it crosses Sodom Brook – is one of law. General Laws c. 183, § 58 (also known as the Derelict Fee Statute) provides in pertinent part:

Every instrument passing title to real estate abutting a way, whether public or private, . . . shall be construed to include any fee interest of the grantor in such way . . . unless (a) the grantor retains other real estate abutting such way . . . , in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, . . . as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way . . . between the division lines extended, the title conveyed shall be to the center line of such way . . . as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding a side line.

The Derelict Fee Statute dictates who owns what in Old Hallbourg Road from its crossing of Kings Brook to the Crossing Point. Stephen and Thomas's Deeds describe the boundary between their properties as "[b]eginning at a point . . . on what is known as the Old Hallbourg Road," and thereafter "running westerly along said Road. . . ." (Emphases added.) That language describes each brother's parcel as abutting a private way, Old Hallbourg Road, for purposes of the Derelict Fee Statute. See Alexander v. Juchno, 21 LCR 621 , 630-21 (2013) (deed that describes granted parcel as bounded "on," "by" or "along" a way is subject to the statute). Moreover, as of the day they signed their deeds, each brother owned a 50% interest in the entirety of Old Hallbourg Road as it wound through what had been their larger, jointly owned property. Each brother thus had "a fee interest . . . in such way" that he could convey. After their conveyances, each brother retained real estate abutting Old Hallbourg Road, on the opposite side of the Road from his brother, but neither brother "except[ed] or reserv[ed]" in his deed any rights in the Road. Accordingly, the boundary between the parties' properties from their "beginning" on Old Hallbourg Road at King's Brook west to the Crossing Point is the center line of Old Hallbourg Road. Each party and their successors in interest to their Old Hallbourg Road parcels also enjoy an easement over the Road, from King's Brook to the Crossing Point. See Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 481-482 (1989).

The fourth question– where is the boundary between the parties' properties from the Crossing Point to the land of their abutter, AMC – "is 'a question of fact on all the evidence, including the various surveys and plans . . . where the true line originally ran, and was to be established.'" Paull v. Kelly, 62 Mass. App. Ct. 673 , 679 (2004), quoting Hurlbut Rogers Machinery Co. v. Boston & Maine R. R., 235 Mass. 402 , 403 (1920). Where there is a deed that describes the parties' boundary, Paull's factual inquiry becomes more of an exercise in deed interpretation, with the law providing "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, 62 Mass. App. Ct. at 680.

The good news is that Stephen's and Thomas's Deeds rely solely on monuments to describe the boundary of their properties between the Crossing Point and the AMC Property: the boundary goes "westerly up a steep hill to a ravine; thence westerly along said ravine to a heap of stones on a ledge at land of the [AMC]." The bad news is that the Deeds describe the monuments with horrible imprecision. The Deeds use the term "westerly" loosely. "Steep hills" rises southwest, west and northwest of the Crossing Point. There are at least two potential "ravines" in the area, and others likely disappeared or were altered as the result of logging after 1961. A "heap of stones" in the mountains of Russell describes many things, some of which likely disappeared long ago. For good reasons, the parties' experts didn't advance the inquiry: surveyor Shute didn't perform any surveys west of Sodom Brook, and surveyor Foresi concluded (to his credit) that it was up to the Court or the parties to determine the boundary from the Crossing Point to the AMC property. See also Cytrynowski v. McDonald, 24 LCR 503 , 508 (2016), quoting C.M. Brown, et al., Brown's Boundary Control and Legal Principles, § 2.6 at 32 (4th Ed. 1995) ("'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.'").

Based on all of the evidence, the Court concludes that the boundary between the parties' properties west of the Crossing Point to what the Court calls the "Ravine Intersection" is shown on Exhibit 4, Daniel's 200- and 512-foot courses. The Court adopts those courses for five reasons. First, they generally travel "westerly" up a "steep hill" before reaching the very "ravine" that the Baenzigers and their expert Mr. Foresi identified at trial. By contrast, the Baenzigers' proposed course heads entirely southwesterly before reaching the same ravine.

Second, the 1967 Map suggests that sufficient remnants of Old Hallbourg Road likely existed in 1961, in close to the same location shown on the 1986 Map (which is at or close to the Road's location today), so as to enable Stephen and Thomas to use the term "Old Hallbourg Road" as the connection between the Crossing Point and the Baenzigers' "ravine" if Stephen and Thomas so intended. But they didn't use Old Hallbourg Road as a monument once they reached the Crossing Point: they chose courses that didn't rely on roads or trails.

Third, while Daniel prepared the 1986 Map in the same month that Thomas sold his property to the Baenzigers, Daniel based the 1986 Map on a 1980 map, one prepared when members of the Oleksak family held title to both of the parties' properties. There was no evidence at trial of any hostilities among members of the Oleksak family that would have encouraged Daniel to draw a boundary that favored one Oleksak over another.

Fourth, while Daniel was not a licensed professional surveyor, he prepared the 1986 Map in his profession as a forest manager, knowing it would be sent to the state agency that oversees forest management plans. That gave Daniel an incentive to get the 1986 Map right.

Finally, Russell tax authorities used a boundary very similar to that shown on the 1986 Map for assessment purposes. No one introduced evidence that Thomas or the Baenzigers ever challenged the assessors' maps. By contrast, it appears that only the Baenzigers have relied on the courses depicted on the Foresi survey.

Beyond the Ravine Intersection found by the Court and the AMC Property, however, the Court holds that Exhibit 8 depicts the boundary. While neither Foresi nor Daniel found the "heap of stones," Foresi did follow westerly the same ravine with which Daniel's courses intersect. It's not clear whether Daniel's courses beyond the Ravine Intersection follow the ravine. Foresi stopped using the ravine as a monument only once he saw, in his march up the ravine, blazes on trees and other field indications of a boundary or other lines. In other words, given the choice in this section of the parties' boundary between two imperfect plans, Exhibit 4 and Exhibit 8, the Court chooses the one that expressly relies on a monument described in the parties' deeds. That plan is Exhibit 8.

In Bergeron v. Andrews, 19 LCR 364 , 370 (2011), Justice Piper gave the parties the opportunity to confer on the form of the Court's judgment "so as best to settle, of record, the disputed boundaries determined by my decision." This Court will give Trustee Oleksak and the Baenzigers the same opportunity. Accordingly, the Court ORDERS the parties to confer within fifteen days of this Order, and to file a joint report within 30 days of this Order, over how best to reduce the findings and decisions of this Court to a plan, without prejudice to either party's rights to appeal this decision or the resulting judgment.