HOLIUS DELVAT, NADEGE DELVAT v. MARIE CLAUDETTE JEAN PHILIPPE.

This case concerns the ownership of a disputed area along the boundary line between the parties' properties. The area in contention is the driveway separating the two properties. The plaintiffs, Holius Delvat and Nadege Delvat (Delvats), brought an action against abutter Marie Claudette Jean Philippe (Philippe) to quiet title, claiming ownership over the entire portion of the disputed area pursuant to their deed. Summary judgment disposed of some of the Delvats' arguments; the remaining claims were tried. After trial, I find that the boundary between the parties' property is as shown on the surveys prepared by the registered surveyors, namely, bisecting the driveway between the two properties.

Procedural History

On September 22, 2016, the Plaintiffs filed their Complaint. A case management conference was held October 31, 2016. The Answer to the Plaintiffs' Complaint with Counterclaim and Affirmative Defenses was filed on November 14, 2016. A Joint Pre-Trial Memorandum was filed on April 12, 2017. The Defendant filed a Motion for Summary Judgment on All Counts and on the Counterclaims, Memorandum of Law in Support of her Motion for Summary Judgment, Statement of Material Facts in Support of Motion for Summary Judgment, Affidavit of Marie Claudette Jean Philippe in Support of Her Motion for Summary Judgment, and Request for Default on her Counterclaims on April 12, 2017. On April 14, 2017, the Plaintiffs' filed their Answers to Defendant's Counterclaims.

Plaintiffs' Opposition to the Motion of the Defendant for Summary Judgment, Memorandum in Support of Plaintiffs' Opposition to the Motion for Summary Judgment, Affidavit of Plaintiff Holius Delvat in Support of Plaintiffs' Opposition to the Motion for Summary Judgment, Plaintiffs' List of Exhibits in Opposition to the Defendant's Motion for Summary Judgment, Sur-Rebuttal/Response of the Defendant to the Plaintiffs' Opposition for Summary Judgment, Defendant's Responses/Answer to the Plaintiffs' Concise Statement of Additional Facts, Defendant's Amended Statement of Material Facts in Support of Motion for Summary Judgment, and Plaintiffs' Response to the Defendant's Amended Statement of Material Facts were filed on May 23, 2017. A hearing on the Defendant's Motion for Summary Judgment was held on May 23, 2017, and the court took the motion under advisement. The court issued its Memorandum and Order Allowing in Part and Denying in Part Defendant's Motion for Summary Judgment on June 14, 2017 (Summary Judgment Order).

The pretrial conference was held on October 24, 2017. The parties' Joint Amended Pre-Trial Memorandum was filed on November 9, 2017. The Defendant's Motion in Limine to Preclude Specific Proposed Plaintiffs' Exhibits was filed on January 9, 2018; the plaintiffs' opposition was filed on January 12, 2018. The Defendant's Motion in Limine was heard on January 17, 2018, and allowed in part and denied in part.

A view was taken on January 24, 2018. Trial was held on January 24, 2018. The court reporter and the interpreter were sworn. Exhibits 1 through 15 were admitted. Testimony was heard from Holius Delvat, Osman Nie, Nadege Delvat, and Marie Claudette Jean Philippe, after which the parties rested. Plaintiffs, Holius Delvat and Nadege Delvats', Post-Trial Brief and Defendant/Counter Plaintiff, Ms. Marie Claudette Jean Philippe's Post Trial Brief Memorandum were filed on April 20, 2018. The court heard closing arguments on April 27, 2018, and took the case under advisement. This decision follows.

Facts

Based on the view, [Note 1] the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. On or about November 24, 1998, Marie Claudette Jean Philippe (Philippe) purchased the property located at 34 Granfield Avenue in Roslindale (Philippe Property) by a deed recorded with the Suffolk Registry of Deeds (registry) in Book 23157, Page 113. The deed describes the Philippe Property as follows:

The Land in with the buildings thereon situated in that part of Boston formerly West Roxbury, Suffolk County, Massachusetts, bounded and described, as follows:

Southwesterly: by Granfield Avenue forty (40) feet:

Southeasterly: by Lot 435 as shown on a plan hereinafter mentioned eighty-two and 8/10 (82.8) feet:

Northeasterly: by Lot 408 as shown on said plan forty (40) feet:

Northwesterly: by Lot 433 as shown on said plan eighty-three and 4/10 (83.4) feet:

Containing 3324 square feet of land and being lot 434 as shown on a plan made by W.C. Bates, dated March 1, 1920, recorded with Suffolk Deeds, Book 4337, Page 476.

Exhs. 1, 4.

2. On or about March 8, 2002, Holius Delvat and Nadege Delvat (Delvats) purchased the property located at 32 Granfield Avenue by a deed recorded with the registry in Book 28139, Page 133 (Delvat Property). The deed describes the Delvat Property as follows:

A certain parcel of land with the buildings thereon situated in the West Roxbury district of Boston and being shown as Lot #433 on a plan by Walter C. Bates, dated March 1, [1920], and recorded with the Suffolk Deeds Book 4337, Page 476, more fully bounded and described as: Southwesterly, by said Granfield Avenue forty (40) feet; and Northwesterly, by Lot 432, as shown on said plan, eighty-four (84) feet; Northeasterly, by Lot 409, as shown on said plan, forty (40) feet; and Southeasterly, as shown on said plan, eighty-three and 4/10 (83.40) feet, containing, according to said plan, 3348 square feet of land, more or less.

Exhs. 1, 2; Tr. 20.

3. The Delvat and Philippe Properties abut each other, with the Delvat Property to the left (as one faces it) and the Philippe Property to the right. A driveway exists between the two properties. Residents of both properties use a portion of the driveway for ingress and egress to the properties. On the other side of the Delvat Property is another driveway used solely for parking by the owner of 30 Granfield Avenue. There is also space at the back of the Delvat Property in which a car can turn. Exhs. 1, 5; Tr. 77-78; View.

4. No easement or any right of use has been granted to any record owner of the Delvat Property, 32 Granfield Avenue, by the owners of the Philippe Property, 34 Granfield Avenue, for the use of any part of the Philippe Property. Exh. 1.

5. The only easement or any right of use that exists on record is an easement granted to the then owners of the Philippe Property to use a portion of a driveway located on the 36 Granfield Avenue property to the right of the Philippe Property. Exh. 1.

6. When Philippe purchased the Philippe Property, there was a wood board affixed to the driveway on the boundary between the two properties, running approximately the length of the two houses. The wood board was in the location of the boundary as shown on the surveys discussed below. Exh. 13; Tr. 61-64, 87-88.

7. When the Delvats purchased the Delvat Property, they understood that they were entitled to use the entire driveway between the Delvat and Philippe Properties, and did so. At some point, Ms. Philippe and her son told the Delvats that their shared property line was down the middle of the driveway and that the Delvats could not use or drive on Philippe's side of the driveway. Tr. 21-26, 54, 80, 88.

8. In 2013, Philippe had a survey done of her property to determine the location of the boundary line on the driveway between the Delvat Property and Philippe Property. A licensed surveyor, Michael Paul Antonio, conducted the survey on or about November 24, 2013. Antonio's survey shows the boundary lines of the Philippe Property, but does not show where the driveway is in relation to the property lines or reference other abutting properties. Exhs. 1, 9.

9. In 2015, the Delvats first obtained a survey of their property to determine the location of the boundary line on the driveway. The survey was conducted by Antoni Szerszunowicz and showed that the portion of the driveway over which the Delvats dispute ownership was located entirely within the Philippe Property (Szerszunowicz Survey). The Szerszunowicz Survey is not in the record. Exh. 1; Tr. 55-56.

10. On or about April 23, 2015, the Delvats sought and obtained a second survey from Boston Survey, Inc., which was conducted by George C. Collins (Collins Survey). The Collins Survey showed that the Delvats did not own the part of the driveway in dispute, and that part was located entirely within the Philippe Property. Exhs. 1, 7; Tr. 56-57.

11. On July 10, 2015, Philippe sought a permit from the City of Boston and constructed a four foot fence on the driveway along where her property line was shown on the prior surveys. The fence lies on the Philippe Property side of the line between the Philippe and Delvat Properties. Exhs. 1, 11, 12A, 12B, 14; Tr. 97-98; View.

12. After the complaint was filed in this case, on or about December 28, 2016, the Delvats sought and obtained a third survey of their property and the disputed boundary line from D. O'Brien Land Surveying (O'Brien Survey). The O'Brien Survey showed that the portion of the driveway in dispute and the newly built fence, were both located within the Philippe Property. The O'Brien Survey is attached as Exhibit A. Exhs. 1, 8, 10; Tr. 58-59.

13. A plot plan of the Delvat Property appears to show a distance between the Delvats' house and their property line with the Philippe Property that is greater than the distance between their house and the property line as shown on the Collins and O'Brien Surveys, suggesting that the Delvat Property includes more of the driveway. Specifically, the plot plan shows that the dwelling on the Delvat Property is 25 feet wide, and the driveways are 6'3" (6.25 feet) on the left and 8'9" (8.75 feet) on the right, totaling 40 feet of frontage along Granfield Avenue. Both the Collins Survey and O'Brien Survey show the driveways as 6.9 feet on the left and 7.4 feet on the right. Relying on the plot plan for the width of the dwelling as 25 feet, the total frontage from the Collins Survey and O'Brien Survey only amounts to 39.3 feet. In other words, if the plot plan is correct, these surveys show measurements which vary from the deed to the Delvat Property. The plot plan is an undated, unsigned sketch plan, whereas the surveys in the record are stamped and signed by registered land surveyors. I credit the dimensions of the lots and the location of the line between the Delvat and Philippe Properties that are shown on the Collins and O'Brien Surveys. Exhs. 6, 7, 8, 10; Tr. 43-45, 58-60.

14. Mr. Delvat claims that Mr. Szerszunowicz changed the boundary markings on the ground when he conducted the Szerszunowicz Survey, moving them from the edge of the driveway near Philippe's house to the middle of the driveway. He also claims that George Collins, who conducted the Collins Survey, also "gave [him] the driveway." I do not credit this testimony. All three surveys agree that the boundary between the two properties is down the middle of the driveway and show the boundary in the same location, and the boundary markers placed by the surveyors reflect that location. Exhs. 7, 8, 10, 15; Tr. 30-33, 35-37; View.

15. Mr. Delvat and Ms. Philippe have engaged in arguments concerning each person's claim of rights in the way, about Mr. Delvat's parking, and Ms. Philippe's fence. Mr. Delvat has called the police on occasion. Tr. 84-85, 97, 100, 102-104.

Discussion

The central issue in this case is the location of the boundary between the Delvat and Philippe Properties, and the resulting rights of the parties to use the driveway. The Delvats claim the right to use the entire driveway between the Delvat and Philippe Properties. Philippe claims that the boundary to the two properties runs down the centerline of the driveway. In the Summary Judgment Order, which I incorporate here, I found that the Delvats could not establish an easement by necessity over the entire driveway or rely on any "custom of the street" that homeowners used the driveways on one side of their property. Those conclusions of law stand. The remaining issues from the Summary Judgment Order are whether, as alleged by Mr. Delvat, the surveyors engaged in fraud by changing the results of their survey and whether the plot plan or the surveys show the correct location of the boundary between the properties.

In response to a question at trial, Mr. Delvat expressly stated that he was not alleging that Ms. Philippe or her son paid any of the surveyors to change the location of the boundary on their surveys. Tr. 66. He did allege that both Mr. Szerszunowicz and Mr. Collins changed the boundary markings on the ground when they conducted their respective surveys, moving them from the edge of the driveway near Philippe's house to the middle of the driveway. Tr. 30-33, 35-37. As discussed above, I do not credit this testimony. All three surveys agree that the boundary between the two properties is down the middle of the driveway and show the boundary in the same location. I see no reason to believe that a registered surveyor intentionally misstated the location of the boundary on a stamped survey. "A Registrant shall provide professional services that are truthful, based upon independent professional judgment, founded upon adequate knowledge of the issues, and based upon competence in the subject matter." 250 Code Mass. Regs. § 5.02(1)(b) (2018); see also 250 Code Mass. Regs. § 5.02(1)(e) (2018) ("A Registrant shall not permit the use of the Registrant's name or firm name nor associate in business ventures with any person or firm which the Registrant may have reason to believe is engaging in fraudulent or dishonest business or professional practices.").

The remaining question, therefore, is whether the Collins and O'Brien Surveys correctly show the boundary between the Delvat and Philippe Properties, or does the plot plan more accurately show the line farther toward the house on the Philippe Property. "When a boundary line is in controversy, it 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 Mach. Co. v. Boston & Maine R.R., 235 Mass. 402 , 403 (1920). Based on the evidence before me, I find that the Collins and O'Brien Surveys accurately show the boundary line between the Delvat and Philippe Properties. Those surveys are prepared by registered surveyors. They appear to comply with all applicable requirements. See 250 Code Mass. Regs. § 6.02 (2018). They show all the relevant dimensions of the properties, including the location of the houses, attachments, the fence, the curb cuts, and the driveway. Exhs. 7, 8, 10; View. By contrast, the plot plan only purports to show the Delvat Property, shows no relevant features apart from the house, and is not signed by a surveyor. Exh. 6. It is a rough plan that cannot be relied upon to establish the boundary between the Delvat and Philippe Properties. Therefore, declaratory judgment will enter determining the boundary between the properties as that shown on the O'Brien Survey, the most recent of the three surveys.

The final issue is Ms. Philippe's counterclaim. The counterclaim has four counts: Count I, Trespass; Count II, Intentional Infliction of Emotional Distress; Count III, Negligence; and Count VI [sic], Harassment. Count I, for trespass, is the inverse of the Delvats' claim and will be resolved by the declaration concerning the location of the boundary. Philippe presented no evidence of damages arising out of the alleged trespass. The Land Court has no subject matter jurisdiction to hear Counts II and III. Intentional infliction of emotional distress and negligence are not claims "cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved." G.L. c. 185, § 1(k). Those claims will be dismissed without prejudice.

Count VI, for harassment, was tried. While it is a stretch, I will consider this claim as arising out of the boundary dispute and resulting trespass claim, and thus subject to ancillary jurisdiction under the principles set forth in Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 301-302 (2008). Based on the evidence at trial, I find that emotions ran high for both the Delvats and Ms. Philippe, and that both sides engaged in behavior that in retrospect was probably unwise. None of what I heard, however, rises to the level of harassment. Count VI will be dismissed with prejudice.

Conclusion

For the foregoing reasons, a declaration will be entered under the complaint and Count I of the counterclaim that the boundary between the Delvat Property and Philippe Property is as shown on the O'Brien Survey and there is no easement by necessity or by custom burdening the Philippe Property. Counts II and III of the counterclaim will be dismissed without prejudice, and Count VI of the counterclaim will be dismissed with prejudice.

Judgment accordingly.

exhibit 1