ELIZABETH J. LORDEN, as personal representative of the ESTATE OF JOHN LORDEN, JR. v. NASHOBA CONSERVATION TRUST, INC.

A sloppily prepared, slapdash water line easement plan prepared and recorded more than sixty years ago has caused no end of problems for owners of good faith on both sides of the property line of undeveloped, wooded lands in Pepperell. Questions raised by the water line easement plan, and incorrectly answered by an engineering and surveying company, led the company to the probably unprecedented step of refusing to sign the final, approved subdivision plans that it had prepared for signoff by a planning board for recording at the registry of deeds. While the surveyors at David E. Ross Associates, Inc. undoubtedly believed that they were doing the right thing by refusing to sign the "mylars" of an approved subdivision plan that their firm had prepared and shepherded through the planning process for fifteen years, they did so on the basis of their own mistaken belief that the western boundary line of the subdivision property, as they had located it on the plan, was incorrect.

For the reasons that follow, I find and rule that record title to the disputed area on the common boundary of the plaintiff's and defendant's properties lies with the plaintiff; that in the alternative, the plaintiff has sustained its burden of establishing title to the area by adverse possession under color of title; and that the defendant has failed to sustain its burden of establishing title to the disputed area by adverse possession.

PROCEDURAL HISTORY

The plaintiff, John Lorden, Jr. ("Lorden"), filed a one-count complaint in the Land Court on March 28, 2017, seeking to quiet title to a disputed portion of his 47-acre property in Pepperell ("locus" or "Lorden property"). Lorden later amended his complaint to add a count for adverse possession under color of title over a disputed area of the locus. The defendant Nashoba Conversation Trust, Inc. ("NCT"), which owns property abutting the locus, counterclaimed to quiet title to its property abutting the locus, and likewise amended its counterclaim to add a count for adverse possession under color of title over the disputed area. On June 21, 2019, the court took a view of the locus and NCT's abutting property. Trial was held before me on June 24 and June 25, 2019, at which time seven witnesses testified and 84 exhibits were admitted into evidence. Following the submission of post-trial briefs, proposed findings of fact, rulings of law, and closing arguments, I took this matter under advisement on July 26, 2019.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, and my assessment as the trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

The Parties

1. Plaintiff John Lorden, Jr. and his three siblings owned the 47-acre locus, which had earlier been purchased by their parents in 1961. [Note 1] In 2015, Lorden acquired his siblings' interest in the locus. [Note 2] The locus is located at 53 Lawrence Street in Pepperell. [Note 3]

2. Lorden died on May 7, 2019. [Note 4] On July 19, 2019, plaintiff filed an Assented to Motion to Substitute Plaintiff, which was granted on July 25, 2019. [Note 5] As a result of the allowance of the motion, Elizabeth J. Lorden, as personal representative of the estate of John Lorden, Jr., became the plaintiff.

3. NCT is a non-profit corporation with a principal office in Pepperell. [Note 6]

4. In 1976, NCT acquired 33 acres of wooded, undeveloped land on Lawrence Street in Pepperell ("NCT property"). [Note 7] The eastern boundary of the NCT property abuts the western boundary of the Lorden property. [Note 8]

Nashoba Conservation Trust Chain of Title

5. In 1836, the present Lorden and NCT properties were in common ownership of the estate of Asa Ames. ("Ames). [Note 9] The Ames estate owned a parcel of land of approximately 55 acres known as the "Champney" property. [Note 10]

6. After Asa Ames died, Luther Lawrence ("Luther") was appointed administrator of Ames' estate. [Note 11] Luther conveyed out of the Champney property a 16 ¼ acre tract of land to Ephraim A. Lawrence ("Ephraim") by deed dated April 6, 1836 and recorded with the Middlesex South District Registry of Deeds ("Registry") on April 10, 1837, at Book 362, Page 226 ("1836 deed"). [Note 12] Shortly thereafter, Luther conveyed another parcel of land consisting of 2 and 2/3 acres of land to Ephraim dated April 24, 1837 and recorded with the Registry on March 14, 1839, at Book 380, Page 406 ("1837 deed"). [Note 13] The deed for the 2 and 2/3 acre parcel of land described its eastern boundary as running "Southwesterly on the Northerly and Westerly side of said cart path[.]" [Note 14]

7. On March 12, 1839, Ephraim conveyed 19 acres of land (comprised of the land described in the 1836 deed and the 1837 deed) to Luther Shattuck by deed recorded with the Registry on March 14, 1839, at Book 380, Page 407 ("1839 deed"). [Note 15] The deed described the parcel's eastern boundary as running "Northeasterly on the Westerly side of an old road and on land of Luther Lawrence[.]" [Note 16]

8. After Luther Shattuck's death, the property conveyed by the Shattuck 1839 deed passed to his daughter, Harriet Adelade Shattuck Maxwell ("Harriet"). [Note 17] On June 19, 1926, Harriet conveyed the property described in the 1839 deed to Henry W. Shattuck ("Henry") by deed recorded with the Registry on August 16, 1926, at Book 5005, Page 278. [Note 18] The deed described the parcel's eastern boundary as running "northerly on the westerly side of the old road and on land of Luther Lawrence[.]"

9. Henry Shattuck died several years later, leaving Florence Shattuck Barnaby, Jesse M. Shattuck, Bessie E. Fennelly, Katie E. Blood, and Forrest E. Shattuck ("Henry heirs") to inherit this land. [Note 19] The property described in the 1839 deed was conveyed by warranty deed to Theodore W. Day and Mildred B. Day ("the Days"), as tenants by the entirety, by the Henry heirs and by Rupert L. Blood, spouse of Katie E. Blood, and Marion E. Shattuck, spouse of Forrest E. Shattuck, who released all interest in the land described in the deed. This deed is dated June 4, 1949, and was recorded with the Registry on June 28, 1949, at Book 7447, Page 473. [Note 20] This was the first deed of what is now the NCT property out of the Shattuck family since it was conveyed to Luther Shattuck 110 years earlier, in 1839. The deed eliminates the earlier deeds' references to an "old road," and describes the parcel's eastern boundary as running "northerly on westerly side of land now or formerly of Luther Lawrence[.]" [Note 21]

10. The Days conveyed the property described in the 1839 deed to Theodore W. Day on October 15, 1971, by deed recorded with the Registry on October 21, 1971, at Book 12096, Page 548. [Note 22] The deed describes the parcel's eastern boundary as running "Northerly on Westerly side of land formerly of Luther Lawrence now of John Lorden et ux[.]" [Note 23]

11. Theodore W. Day conveyed the property described in the 1839 deed to the defendant, NCT, on May 10, 1976, by deed recorded with the Registry on May 11, 1976, at Book 12974, Page 402. [Note 24] The deed describes the parcel's eastern boundary as running "northerly on westerly side of land formerly of Luther Lawrence, now or formerly of John Lorden et ux[.]" [Note 25]

Lorden Chain of Title

12. After conveying the 16 and ¼ acre tract of land in 1836 [Note 26] and the 2 and 2/3 acre tract of land in 1837 to Ephraim Lawrence [Note 27] - and a 7 and 2/3 acre tract of land to an unrelated party - Luther Lawrence was left with approximately 29 acres of the Champney property. [Note 28]

13. The remaining approximately 29 acres of the Champney property stayed in the ownership of the heirs of Luther Lawrence until 1914. In 1914, the remaining 29-acre portion of the Champney property was purchased from the heirs of Luther Lawrence by William O. Kemp, Frank R. Bennett, and Charles Miller, ("Miller, Kemp, and Bennett") who were "active purchasers and sellers of real estate" in the Pepperell area. [Note 29] They purchased the property from the heirs of Luther Lawrence by two deeds.

14. The first deed was dated June 1, 1914, and recorded with the Registry on July 1, 1914, at Book 3895, Page 209, deeding the 29-acre property from Luther's heirs Julia B. Johnson, Edith L. Ormsbee, and Marion E. Bolte to Miller, Kemp, and Bennett; [Note 30]

15. The second deed, from the remaining heirs of Luther Lawrence, was dated June 5, 1914, and recorded with the Registry on July 1, 1914, at Book 3895, Page 214, deeding the same property from Luther's heirs Charles Frazier and Edith L. Ormsbee, Executors of the Will of Jennie L. Williams, to Miller, Kemp, and Bennett. [Note 31]

16. The westerly common boundary between the land conveyed to Miller, Kemp and Bennet and the land now owned by NCT was described identically in these two deeds as: "Beginning at the southwesterly corner thereof, at said Lawrence Street, at land now or late of the L.T. Shattuck heirs and at a path leading to Huff's Mill so called; thence by said path and by land now or late of the L.T. Shattuck heirs and by land now or late of the J.F. Tarbell heirs northeasterly and northerly as follows: fourteen (14) rods to an angle; twenty-seven (27) rods to an angle; and forty-six (46) rods to an angle at land now or late of said J.F. Tarbell heirs . . ." [Note 32]

17. Less than two weeks after recording the deeds by which they acquired the 29-acre parcel, Miller, Kemp, and Bennett "flipped" it to the B. and A. D. Fessenden Company ("Fessenden"), by deed dated July 13, 1914, and recorded with the Registry on July 15, 1914, at Book 3899, Page 240. [Note 33]

18. In the deed to Fessenden, the description of the boundary between the land conveyed to Fessenden and the land now owned by NCT was changed from the deeds recorded just two weeks earlier. The description of the boundary between what is now the Lorden property and what is now the NCT property was described as: "Beginning at the southwesterly corner of the premises on the northeasterly side of Lawrence Street, at land now or late of the Heirs of Luther T. Shattuck, and a cart path leading to Huffs Mills (so called) thence northeasterly by said Shattuck land fourteen rods to a corner; Thence northerly by the Shattuck land twenty-seven (27) rods to land now or late of the Heirs of Thomas F. Tarbell . . . " The deed further references a plan made by Lorenzo P. Blo[o]d as follows: "And meaning and intending to hereby convey all and the same premises described on page #16 in a book of plans made by Lorenzo P. Blod (sic) of said Pepperell, and known as the Champney land." [Note 34]

19. The plan prepared by Lorenzo P. Blood (the "Blood Plan") and referred to in the deed to Fessenden was not recorded, and has not been found.

20. In all of the subsequent deeds conveying the 29-acre parcel, including the 1961 deed from Fessenden to the Lordens, the description of the common boundary line does not change, and is identical to the description used in the 1914 deed to Fessenden. [Note 35]

21. Several decades later, Fessenden conveyed the property consisting of 29 acres to John Lorden, Sr. and Florence Lorden by deed dated August 2, 1961, and recorded with the Registry on August 10, 1961, at Book 9866, Page 218. [Note 36] As in the 1914 deed to Fessenden, the deed describes the point of beginning of the disputed boundary line as "at land now or late of the Heirs of Luther T. Shattuck, and a cart path leading to Huffs Mills (so-called); thence Northeasterly by said Shattuck land. . . " [Note 37] The boundary itself is described without reference to a cart path, using only the Shattuck land as a monument.

22. Florence C. Lorden, by her guardian Attorney James Nelligan, conveyed the 29-acre property to the Lorden Realty Family Trust, James Nelligan, Trustee ("LRFT") by deed dated April 20, 1993, recorded with the Registry on April 23, 1993, at Book 23106, Page 352. [Note 38] Again, the deed describes the common boundary between 29-acre parcel and the abutting parcel to the west as "[b]eginning at the Southwesterly corner of the premises on the Northeasterly side of Lawrence Street, at land now or late of the Heirs of Luther T. Shattuck, and a cart path leading to Huffs Mills (so called); thence Northeasterly by said Shattuck land fourteen (14) rods to a corner . . ." [Note 39]

23. Florence C. Lorden, by her guardian, Attorney James Nelligan, conveyed two other parcels of property to LRFT by deeds dated April 20, 1993, recorded with the Registry on April 23, 1993, at Book 23106, Page 353 ("Parcel 3-26-0") [Note 40] and Book 23106, Page 358 ("Parcel 3-25-A"). [Note 41] Special Delivery Services, Inc. conveyed a parcel of property to LRFT by deed dated July 24, 1993, and recorded with the Registry on March 1, 1994, at Book 24313, Page 075 ("Parcel 3-30-0"). [Note 42] These three deeds together conveyed 16 acres to LRFT. [Note 43]

24. In 2010, LRFT conveyed all its property, including the 29-acre parcel, Parcel 3-26-0, Parcel 3-25-A, and Parcel 3-30-0, to the children of Florence Lorden - John Lorden, Jr., Kathleen Horgan Long, Nancy Whitkin, and Judith Lillis - as tenants in common. The property was conveyed by deed dated July 21, 2010, and recorded in the Registry on August 3, 2010, at Book 55099, Page 298. [Note 44]

25. Several years later in 2013, Kathleen Horgan Long and Nancy Whitkin conveyed their interests in the property to John Lorden, Jr. Their property interests were conveyed by deed dated April 11, 2013, and recorded with the Registry on April 25, 2013, at Book 61671, Page 342. [Note 45]

26. Judith Lillis conveyed her interest in the property to John Lorden, Jr. by deed dated February 20, 2015, and recorded with the Registry on March 5, 2015, at Book 65010, Page 200. [Note 46] This conveyance left John Lorden, Jr. with all right, title, and interest in the 45-acre parcel presently abutting the property owned by NCT in Pepperell.

The Boundary Dispute

27. In 1956, Theodore and Mildred Day (then owners of what is now the NCT property) granted the town of Pepperell an express easement to enter on and install a water main under a 20-foot strip of their land "running in various courses, all as set forth on a plan entitled 'Pipe Line Right of Way, Pepperell Water Department, Pepperell, Massachusetts,' dated May 1951[,]" by deed dated May 21, 1956, and recorded with the Registry on January 13, 1964, at Book 10442, page 108 (the "Water Line Easement"). [Note 47] The easement plan was drawn in 1951, the deed granting the easement was not executed until 1956, and it was not recorded until 1964. The easement plan referenced in the grant of easement shows an easement for the water line extending, generally, north- northeasterly from the northern side of Lawrence Street over land labelled on the plan as belonging to Theodore W. Day, both to the east and west of the easement. The easement plan shows the easement as roughly following the course of a "cart path." The easement plan does not show or describe any boundary of the land of Day. Regardless whether the plaintiff or the defendant is correct about the location of the cart path with respect to the boundary between the Lorden property and the NCT property, it is undisputed, and I so find, that the easement plan incorrectly shows the land to the east of the cart path and the water line easement as being the property of Day. [Note 48]

28. Much later, Lorden began planning to develop the property as a residential subdivision. [Note 49] A preliminary subdivision plan was prepared by J. A. Visniewski, Inc. and is dated April 11, 1997. [Note 50]

29. In August 2001, David E. Ross Associates, Inc. ("Ross") prepared a second preliminary subdivision plan for Lorden portraying a 22-lot residential subdivision to be called "Bemis Estates." [Note 51] The plan was based on available information, including perimeter information taken from previous plans; no new survey was conducted at this time. [Note 52]

30. In March 2002, Ross prepared a definitive subdivision plan for "Bemis Estates," numbered Plan L-7436. [Note 53] The definitive subdivision plan was prepared with the benefit of a new perimeter survey and the confirmation on the ground of topographic conditions [Note 54] The March 2002 plan was submitted to the Pepperell Planning Board, [Note 55] but was denied. [Note 56]

31. Following years of litigation concerning the denial of the subdivision plan, the matter was remanded to the Planning Board in 2015. [Note 57] Pursuant to a Land Court order, Ross prepared a revised definitive subdivision plan for Bemis Estates addressing issues raised by the Planning Board, and resubmitted the subdivision plan to the Planning Board on November 23, 2015 ("2015 Subdivision Plan"). [Note 58] The revised plan shows a portion of the common boundary line with the NCT property beginning at the northeastern intersection of Lawrence Street and the proposed subdivision road, Lorden Lane, travelling northeast. [Note 59] The plan also shows a "Cart Road" and the water line easement within the Lorden property to the east of the common boundary line. [Note 60]

32. On February 4, 2016, the Planning Board filed a Certificate of Approval for the plan, as revised by the 2015 Subdivision Plan, and with further "General Revisions" dated January 15, 2016. [Note 61] The period for appeal of the approval passed without any appeal on February 24, 2016. [Note 62]

33. Lorden sought mylars of the approved 2015 Subdivision Plan from Ross, so he could submit them to the Planning Board to be signed and then recorded to finalize the subdivision approval. [Note 63] Ross refused to turn over the mylars, based on its conclusion that the subdivision plans it had prepared and revised over the past fifteen years did not accurately depict the common boundary with the NCT property. [Note 64]

34. Ross personnel re-examined the 1951 water line easement plan, which shows the water line coinciding with a cart path, but also shows the land of Day (the NCT property) both on the east and west of the water line easement and the cart path. Ross then re-examined the chain of title, including the 1830s deeds, which describe the boundary between the eventual NCT and Lorden properties as along a cart path or an "old road." Ross personnel then concluded that the boundary between the properties should be as described in the 1830s deeds, with the cart path as the boundary, and not as described in the 1914 and subsequent deeds in both chains of title, which describe the boundary (after mentioning the cart path as the point of beginning) without regard to the cart path, but uses the abutter's land as the defining boundary monument. They also apparently concluded without further investigation that the path coinciding with the physical location of the water line, as installed, was the same cart path or old road referenced in the 1830s deeds.

35. Ross made its determination that its own land surveyor - who had determined the boundary line in preparing the subdivision plan in 2001 - had been incorrect, without making any determination whether the cart road and old road described in the 1830s deeds was the same cart path shown on the 1951 water line easement plan, and without determining whether it was the same cart path shown on the subdivision plans. It also made its determination that the present cart path must be the boundary between the two properties notwithstanding that it knew it should not rely on the water line easement plan to locate boundaries, and notwithstanding that the water line easement plan showed the cart path and the water line easement - obviously incorrectly - to be well within the boundaries of the Day (NCT) property and not on, or anywhere near, the boundary between the Lorden and NCT properties.

36. The portion of the common boundary, as shown on the Ross subdivision plans, is consistent with the boundary that John Lorden, Sr., John Lorden, Jr., and Stanley Fessenden walked from Lawrence Street in their walk of the property's perimeter in 1961. [Note 65]

37. The "cart road" portrayed in the subdivision plans is present on the ground today. The property between the common boundary line shown on the subdivision plans and the western boundary of the cart path shown on the subdivision plan (and present on the ground) will be referred to as the "disputed area."

38. Additional findings of fact, in particular those pertaining to the use of the disputed area, are addressed below in the discussion sections of this decision.

DISCUSSION

Burden of Proof

Both parties to this dispute seek to prove that they have title to the disputed area between the present-day path and the record boundary line shown on the 2015 Subdivision Plan approved by the Planning Board in 2016. John Lorden, Jr., now represented by Elizabeth Lorden, the personal representative of his estate, has asserted a quiet title claim pursuant to G. L. c. 240, §§6-10 with respect to the claim that the boundary between the Lorden and NCT properties is as shown on the 2015 Subdivision Plan approved by the Planning Board. NCT has asserted a counterclaim to quiet title pursuant to G. L. c. 240, §§6-10, seeking a declaration that the disputed boundary is at the westerly side of the present-day cart path.

The plaintiff seeking to establish its title through a quiet title action "has the burden of establishing its title and not simply by demonstrating the weaknesses or nonexistence of the defendant's title." Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987). Here, the parties dispute whether a present-day path represents the common boundary line between their properties as referenced in the 1837 and 1839 deeds. In order for the plaintiff, Lorden, to succeed, she must prove either that the original path referenced in the 19th century deeds was located elsewhere than in the location of the present-day path, or else that the present-day path is not the one that was referenced in the early deeds. NCT, to prove its counterclaim, in the first instance needs only rebut the evidence put forward by Lorden, but that rebuttal evidence would then seek to establish by a preponderance of the evidence either that the present-day cart path is the same path that was referenced in the early deeds, or that there was never a cart path in any other location when the early deeds were delivered and recorded.

Interpretation of Boundary in Lorden and NCT Chains of Title

The disagreement over the common boundary line between Lorden's and NCT's abutting properties is predicated on different interpretations of the descriptions of that boundary in their respective chains of title. NCT maintains that the cart path currently on the ground as shown on the modern subdivision plans is the same one described in the 1830s deeds in the NCT and Lorden chains of title, and therefore that it is the definitive common boundary between the properties at issue. More specifically, NCT argues that the changes in the deed descriptions in both chains of title that eliminate the use of the cart path as a monument for the boundary between the two properties have been misinterpreted as moving the boundary to the west of the cart path on the ground today, which NCT asserts is the same cart path that was there in 1837. Lorden argues that the path present on the ground today is not the same path referenced in the deeds, especially those from 1837 and 1839, and that a boundary lying to the west of the current path, as described in both chains of title since 1914, accurately represents the common boundary. Lorden also argues that the descriptions of the boundary were changed at the time of the first deeds out of the Lawrence and Shattuck families in, respectively, 1914 and 1949, because the old cart path that had marked the boundary, no longer existed and was no longer useful as a boundary monument.

The present-day, on-the-ground location of a boundary that was described in older deeds in the parties' chains of title is a question of fact for determination by the court. Baker v. Miller, 284 Mass. 217 , 222 (1933). In determining the true boundary between the lands of abutting owners, the court may consider "[a]ny competent evidence," and it is for the court 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." Bernier v. Fredette, 85 Mass. App. Ct. 265 , 268 (citing Holmes v. Barrett, 269 Mass. 497 , 502 (1929)). A boundary line does not need to be established by absolute certainty, but "merely by a preponderance of the evidence." In re McDonald, 24 LCR 502 , 508 (2016) (Foster, J.), 92 Mass. App. Ct. 1114 (2017), citing McCarthy v. McDermott, 18 LCR 405 , 406 (2010) (Long, J.).

The court's primary governing principle in interpreting deeds is to give effect to the intentions of the parties. Morse v. Chase, 305 Mass. 504 , 507 (1940). The intent of the parties is to be "ascertained from the words used in the written instrument[s], construed when necessary in light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). In the construction of deeds, "where the land conveyed is described by courses and distances and also by monuments which are certain or capable of being made certain[,] the monuments govern," and any non-corresponding courses or distances must yield. Temple v. Benson, 213 Mass. 128 , 132 (1912). Descriptions that refer to courses and distances will, however, govern over descriptions that use land area (which are themselves rarely controlling). Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). "The only exception recognized is where, by strict adherence to monuments, the construction is plainly inconsistent with the intention of the parties as expressed by all the terms of the grant." Temple v. Benson, supra, 213 Mass. at. 132. If the monument described in the deed cannot be found, "and its location cannot be made certain by evidence, the measurements and other provisions of the deed are controlling." Holmes v. Barrett, supra, 269 Mass. at 500. Furthermore, a plan referenced in a deed becomes part of the land contract "so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Reagan v. Brissey, 446 Mass. 452 , 458 (2006), citing Jackson v. Knott, 418 Mass. 704 , 711 (1994).

a. 1951 Water Line Easement Plan

NCT relies to a great extent on the water line easement and corresponding 1951 water line easement plan as evidence that the current cart path is the same one referenced in its chain of title. [Note 66] The 1951 water line easement plan, not the subject of a grant of easement and not recorded until several years after it was prepared, is an easement plan as opposed to a boundary survey, and it was not intended to be determinative as to property boundaries. [Note 67] Further, to the extent it represented an attempt to show boundary lines, it did a terrible job, as both parties are forced to agree. The 1951 water line easement plan depicts the cart path and the proposed water line easement as somewhere in the middle of the NCT property, with "Theodore W. Day" shown as the owner on both sides (east and west) of the cart path and proposed pipeline - a place that neither party contends the cart path ever existed, and a place that neither party contends the water line, as installed, exists today. Any reliance on the 1951 water line easement plan, therefore, as a tool to help locate the present day cart path, an earlier cart path, or the proposed or existing location of the water line, is misplaced. In fact, the water line easement plan does not even correctly describe the ownership of the land upon which it incorrectly locates the cart path and the proposed water line easement. The owners of the NCT land at that time were Theodore Day and Mildred B. Day, not just Theodore Day. Perhaps of a piece with the sloppy nature of the plan itself was the lack of diligence or urgency that was placed upon completing the conveyance and doing the work contemplated by the plan. The plan was drawn in 1951; the Days, who were not even arguably the correct owners of all the land shown on the plan, did not get around to signing the grant of easement until 1956; and finally, nobody seems to have thought to record the easement until 1964. I take this as some evidence that no one was paying much attention to detail with respect to the drafting and conveyance of this water line easement.

NCT's witness Mark Wheeler ("Wheeler"), a registered land surveyor employed by David Ross & Associates, did not work on the subdivision plans prepared for Lorden by his office, nor did he ever visit the site, but he testified to his opinion on the location of the cart path at trial. [Note 68] He relied on the 1951 water line easement plan as evidence of the location of the cart path between 1951 and 1964 (when the plan was recorded) notwithstanding his acknowledgment that it was an easement plan and not a boundary plan; notwithstanding that it incorrectly showed Day's property to the east of the cart path; notwithstanding its failure to identify any boundaries of the property on which it lay; and notwithstanding his acknowledgment that two stone bounds ("s.b. to be set") indicated on the plan could not be found on the ground. [Note 69] Mr. Wheeler's testimony did not credibly connect the cart path as it exists on the ground today with the cart path described as a boundary monument in the early deeds in either NCT's or Lorden's chains of title.

It is true that the 1951water line easement plan illustrates the easement running precisely under a "cart path" that was present in 1951, and the parties agree that the actual water line runs underneath the present-day dirt path. While this establishes that the water line easement was coextensive with a cart path (the present-day path), it does not establish that the 1951 water line easement was coextensive with the cart path referenced in deeds as long ago as 1837. That is, nothing offered into evidence by NCT links the cart path lying over the water line easement with the old cart path and "old road" described in the 1837 and 1839 deeds (or any thereafter). Additionally, the 1951 water line easement plan is devoid of meaningful markings or monuments showing where it lies in relation to the surrounding property. It shows only Lawrence Street as its southern terminus; a boundary line to the north of that point separating the Day property [Note 70] and the Tarbell property; and a Pepperell Water Works bound on the northeastern edge of the easement in the Tarbell property. [Note 71] It does not establish where along Lawrence Street the easement begins. Despite a notation that a stone bound was "to be set" at the southern terminus at Lawrence Street, no such stone bound was found by either party or their experts. Therefore, this plan is not on its face probative of the location of the cart path in relation to the surrounding property. The plan was, in fact, not meant to serve as a boundary line between the relevant properties, and NCT's own witness Wheeler admitted as much - casting doubt on NCT's argument that the 1951 water line easement plan establishes where the cart path, and therefore the common boundary, was laid and continues to lie. [Note 72]

b. Topographic Changes and Activity on the Ground

As might be expected, both parties placed considerable emphasis and effort at trial on the question of whether the dirt path in existence on the ground today is the same path that was described in the deeds separating the two properties in the 1830s. Lorden presented evidence tending to show considerable changes to the topography of the property over a period of many years, in an effort to lead to a conclusion that the path on the ground today is likely not the same path that was present 180 years ago. NCT attempted to show that considerable activity in the area over the years was in fact evidence of the continued use of the original cart path present in the 1830s. Neither party made any attempt to unearth physical evidence of the presence or absence of a cart path at any other location than the location of the present path.

Entering the Lorden property from Lawrence Street from the south, the current path is of variable width, as much as about ten to twelve feet wide, and has a surface of dirt, gravel and grass. The ground slopes up to both the left (west) and right (east) as one walks along the path. Notably, the slope to the immediate west of the path, toward the NCT property, even taking into account a considerable number of stumps, indicating trees that have been cut down, is not as maturely wooded for the first twenty to thirty feet to the west of the path as it is farther up the slope, as if it had been cleared and has not completely filled in yet. [Note 73] To the right, or east, of the path, there is a larger cleared area, where three trailers were placed by Lorden after the property was purchased by Lorden's father in 1961. Stakes indicating the presence and location of the water line are present at various points along the path.

The history of the properties informs my findings with respect to the conditions on the ground. Fessenden, the purchaser of the Lorden property in 1914, was in the cooperage business and employed lumberjacks who felled trees on the Lorden property, cutting them to size and hauling them north to Huff's Mill. [Note 74] In 1914, when Fessenden purchased the property, lumber would have been hauled by horse-drawn or ox carts from the felling area to the mill. [Note 75] The lumber operation would have meant carriages creating a number of paths in the vicinity of the common boundary. Additionally, the evidence of logging means logs also would have been dragged along the ground, disturbing any cart path. [Note 76] There was evidence that what came to be called Huff's Mill, a lumber mill to the north of the subject properties, was in operation as early as 1839, but that it did not become a large operation until the late 1800s. [Note 77] Significantly, while there was evidence of logging on the nearby Tarbell property in the 19th century, there was no evidence presented that logging took place on the Lorden property until it was purchased by Fessenden in 1914, although a "path to Huff's Mill" already existed on the property in 1914, as it is referenced in the 1914 deed to Fessenden, but not as being on the boundary with what was then the Shattuck property.

Further north on the Lorden property there is evidence of gravel pits that were excavated on the property, which in turn means that heavy equipment would have had to access the gravel pits over roads constructed on the site. [Note 78] As with the logging operations conducted in the area, the excavation and maintenance of gravel pits would very likely have led to alterations in the pathways or roads in the area of the common boundary between the NCT and Lorden properties.

Lorden offered evidence of other changes to the topography in the vicinity of the present path. Construction of the water line in the location of the present path necessarily involved the use of heavy equipment and required the digging of a trench six feet deep and three to four feet wide. [Note 79] Clearing of land for three mobile homes also required additional clearing and excavation for the installation of septic systems. [Note 80]

It is evident, and I so find, that all of this activity over many years, on the Lorden property - considerable logging at least since 1914, clearing for construction of mobile homes and installation of septic systems, and trenching all along the present path for installation of the water line in the 1950s or 1960s - caused considerable changes to the existing topography as it had existed in the decades prior to 1914. Furthermore, the evidence established, as confirmed by my observations on the view, and I so find, that the location where the original 1830s cart path would have existed, if it existed, has been obliterated by changes in topography. Photograph 5 of Exhibit 68 illustrates the condition I found to exist as I walked the path with the parties. The slope for twenty to thirty feet west of the existing path, even discounting for the trees that have been relatively recently cut down (witness the considerable number of stumps) is a less mature wooded area than the NCT property immediately to its west. This is an indication that the area of the slope was cleared or otherwise altered, certainly at some point after 1836. The uncontested evidence of trenching for the water line makes it a likely candidate for the deposit of fill from the six-by-four foot trench, and it was likely the site of earlier clearing for Fessenden's logging activities for its cooperage business.

My conclusion that the present path is the result of activities significantly post-dating the 1830s is supported by the testimony of NCT's expert witness Barbara Donahue, a historical archaeologist who testified with respect to activities in the vicinity of the subject properties in the 19th century. Ms. Donahue testified that as early as the 1830s - and 1839 in particular in the case of Huff's Mill, located to the north of the subject properties - milling and lumbering was taking place in the vicinity of the subject properties. [Note 81] When Huff's Mill was sold in 1866, it had increased in value substantially. [Note 82] Ms. Donohue testified that lumber mills in this area were a "full time operation" and that Huff's Mill in particular had a "very big business." [Note 83] I credit this portion of Ms. Donahue's testimony. However, I also find that since Ms. Donahue presented no evidence of logging on the NCT property or the Lorden property at any time prior to 1914, her testimony does not support a finding that a cart path on either of the subject properties was involved at these early dates, supporting the conclusion that the "old road" referred to in the 1839 deed, would have overgrown from lack of use by the late 19th century, Her testimony concentrated on a partnership between the owner of Huff's Mill and the owner of the Tarbell property to the north of the subject properties. I therefore find that if there was a cart path on the NCT property boundary to the west of the present path on the Lorden property, it would likely have overgrown from disuse, as there is no showing that it was used for logging as was the nearby Tarbell land. Conversely, the present path, as I have found, while already in existence as a "path to Huff's Mill" as described in the 1914 Fessenden deed, was shown by that deed to be located to the east of the prior path and was likely not heavily used until Fessenden purchased the land for its cooperage business and would have wanted a path for its activities within its own boundaries.

Further, I do not credit NCT's efforts, through Ms. Donahue, to rebut the considerable evidence of early and mid-20th century changes to the topography in the vicinity of the present path with evidence that the present path is the same as the one described in the 1830s deeds. [Note 84] As described above, I found that Ms. Donahue's testimony as to the historical uses in the area tended to support a conclusion the opposite of the one she evinced. Moreover, as a historical archaeologist, Ms. Donahue professed to be familiar with tools available for physical examination of the ground to determine whether there was physical evidence of the presence or absence of a path at a location to the west of the present path. Yet, Ms. Donahue, while acknowledging the availability and usefulness of these tools, including Light Detection and Ranging technology, ("LiDAR") which would have enabled visualization of the area under the surface of the present-day cart path or the nearby suspected location of an earlier path, never made use of this technology in forming her expert opinion, although it was available to her and commonly used by archaeologists. [Note 85] Nor did Ms. Donahue conduct any soil or subsoil sampling in the present-day cart path area or the location of the suspected earlier path, although she has done so at other properties and conceded that this type of sampling is standard in archaeology for uncovering subsurface historical properties of the land. [Note 86]

As noted above, I do not credit Ms. Donahue's conclusions resulting from her historical research. Nor do I credit her conclusions based on her visual observations of the present-day path, as they appear speculative and conclusory, and as they conflict with the physical evidence of changes in topography, especially to the west of the present path, where the slope has clearly undergone significant changes. [Note 87] Similarly, United States Geological Survey (USGS) maps and field notes compiled by Ross show that at some point in the mid to late-20th century, gravel pits in the northern area of the common boundary were being excavated. [Note 88] Excavation of these pits would have involved heavy machinery going in and out of the area, with equipment running through and across any roads or pathways on the site. [Note 89] As with the logging operations conducted in the area, the excavation and maintenance of gravel pits would very likely have led to alterations in the pathways or roads in the area of the common boundary between the NCT and Lorden properties.

The USGS maps in the record also illuminate the extent to which the area of the common boundary has changed. The USGS map from 2015 shows that there is a fairly well-defined valley between higher ground on both the NCT property and the Lorden property north of Lawrence Street. [Note 90] Investigating earlier USGS maps of the same area reveals that the two properties had at one time featured less of a sloping gradient on either side of the disputed boundary line. [Note 91] The map for 1893, the earliest USGS map in the record, displays much gentler slopes in the area of the common boundary - that is, a smaller difference in elevation when comparing the area of the common boundary line and the remainder of the properties on either side of it. [Note 92] To the extent that NCT expert Ms. Donahue suggested the old cart path referred to in 1837 and 1839 would not be located to the west of the present day path because cart paths have to be flat [Note 93] (and currently the area to the west of the present-day path is sloping), her contention is rebutted by credible topographical evidence that the terrain in the area was actually less sloping, and more level, in 1893. [Note 94]

c. Deed Language

The physical changes on the ground in the many decades following the original 1836, 1837 and 1839 deeds, as discussed above, are important to consider in conjunction with an analysis of changes in the deed descriptions used for conveying the Lorden and NCT properties over the years. Where, as I so find, changes in the deed descriptions of the boundary between the NCT and Lorden properties were necessary to reflect changes on the ground, those changes in the deed descriptions should not be treated as surplusage or as otherwise inconsequential.

The 1837 deed of 2 and 2/3 acres to Ephraim Lawrence described the parcel's eastern boundary as running along the northerly and westerly side of "said cart path." [Note 95] Similarly, the 1839 deed from Ephraim Lawrence to Luther Shattuck described the boundary as running on the westerly side of an "old road." [Note 96] I give some credence to this change in reference to what was likely the same path or road. The change in description from "cart path" to "old road" suggests, and I so find, that the road was in something less than active use and was perhaps not maintained or was overgrown even at that early date. In a 1926 intra-family deed to Henry Shattuck, the boundary was still being described as along the westerly side of an "old road." [Note 97] This suggests that, as the property was still within the family, and, as the evidence suggests, the property was not being actively used, as for logging, the deed references to the old road were not examined and were simply mimicked in succesive deeds. However, in 1949, the NCT property, in the ownership of the Shattuck family for more than a century, was conveyed out of the family for the first time. The deed to the Days no longer used the "cart path" or "old road" as the artificial monument to describe the eastern boundary of the NCT property, but instead now described the NCT property as being bounded on the east by the "westerly side of land now or formerly of Luther Lawrence." [Note 98]

Similarly, the deeds in the Lorden chain of title deleted use of the cart path as the monument for its western boundary for reasons that I find related to changes on the ground that made use of the cart path as a monument infeasible: specifically, the cart path or old road utilized as a boundary monument in 1837 and 1839 was no longer in existence in the same location and so could not be utilized as a monument for the western boundary of the property. The Lawrence, now Lorden, property, was not conveyed out of the Lawrence family until 1914. The first two 1914 deeds, to the "broker/dealers" who flipped the property to Fessenden, did not change the earlier use of the cart path as a boundary monument for the western boundary of the property. But the deed to Fessenden, only weeks later, was to the first user outside of the Lawrence family, a cooperages business that planned to utilize the property for logging. I credit the testimony suggesting that such a buyer would have walked the land before the purchase to confirm the boundaries, and would have insisted on a description that left no doubt as to the limits of its ability to clear trees from its property. I further credit the testimony that Fessenden, as a business user intending to actively cut down lumber on the property, would have carefully ensured that any description of cart paths was accurate, so as to facilitate its use of the property for its intended purpose. Specifically, I credit the testimony that the change in language beginning in the 1914 deeds in the Lorden chain of title (where the western boundary of the property began to be described by reference to an abutter's land) was the result of care and diligence exercised by Fessenden, the first non-family purchaser of the property in many decades. [Note 99] Further, I credit the testimony that this change reflected the fact that "no path was visible on the ground any longer" at the boundary with the Shattuck property by 1914. [Note 100]

Accordingly, the 1914 deed to Fessenden no longer described the boundary line with the NCT property as running by a cart path or old road. Rather, the deed to Fessenden referred to the path leading to Huff's Mill only as part of the description of the point of beginning of the property description, This point coincides with the beginning of the present day location of the path before it diverges from the western boundary of the property and runs further to the east, away from the then-Shattuck, and now NCT property. The deed goes on to describe the boundary as running from that point of beginning, northeasterly by "Shattuck land" (the land currently owned by NCT). [Note 101] This use of the Shattuck land as a boundary monument, instead of the cart path, remains in all subsequent deeds in the Lorden chain of title. [Note 102] Similarly, in the NCT chain of title, the use of an "old road" as a monument for the boundary line for the NCT property ceased by the time of the 1949 deed from Florence Shattuck to Theodore and Mildred Day. [Note 103] Even earlier than that, in deeds conveyed in 1839 and 1926, the eastern boundary of the NCT property was being additionally described by reference to the abutting land of Luther Lawrence. [Note 104] After 1949, only the Lawrence call remained as describing the NCT property's eastern boundary. [Note 105]

All of this evidence supports an inference, and I so find, that circumstances were changing on the ground when language changes occurred in the deeds to reflect those changes on the ground, resulting in the need for different language in the relevant deeds to describe the common boundary between the properties. This change in ground conditions makes it more likely than not, and I so find, that the cart path and old road referred to respectively in the 1837 and 1839 deeds was no longer present along the true common boundary at least as early as 1914, and probably earlier.

d. The boundary is properly located on the approved subdivision plan.

I credit the testimony of Lorden's expert Robert Buckley ("Buckley") as credible and persuasive. Buckley performed a field retracement survey of Lorden's property based on his review of the deeds in the Lorden chain of title, associated plans, monuments on the ground and of record, and other evidence on the ground (such as the water line easement and present-day cart path). [Note 106] His retracement survey took account of deeds in both the NCT chain of title (the 1837 Deed to Ephraim Lawrence, which described the NCT property's eastern boundary as running southwesterly from the northeast corner of the property) and the Lorden chain of title (the 1914 deed to Fessenden, which described the Lorden property's western boundary as running northeasterly 14 rods, northerly 27 rods, and northeasterly 46 rods). [Note 107] Buckley's retracement survey yielded a boundary line that was nearly identical to the boundary line shown on the 2002 plan prepared by Ross (with de minimis differences). [Note 108] This expert testimony and field work places the disputed portion of the common boundary between the properties to the west of the present-day cart path. [Note 109]

Adverse Possession

By agreement, both parties amended their complaints to add alternative counts for adverse possession under color of title to the disputed area between the westerly side of the present path and the boundary between the Lorden and NCT properties as shown on the Ross subdivision plans.

A party can acquire title to land through adverse possession by demonstrating proof of "nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Kendall v. Selvaggio, 413 Mass. 619 , 621-622 (1992). A party making an adverse possession claim under color of title is making an "assertion of a claim of ownership based on an instrument of title, such as a deed or lease, even though that instrument does not pass a valid title" to the disputed area. Norton v. West, 8 Mass. App. Ct. 348 , 350 (1979). Where ordinary adverse possession only provides the successful claimant title to the extent that the disputed property was actually possessed, a successful claim for adverse possession under color of title reaches "not only the part of the premises actually occupied, but the entire premises described in a deed to the claimant." Id. At 351. The burden of proving the elements of adverse possession lie with the person claiming title thereby, and he must prove all of the elements of the claim in order to succeed. Lawrence v. Town of Concord, supra, 439 Mass at. 421.

Actual use is use which, considering the nature of the land occupancy relative to its character, constitutes a "control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership." Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993), quoting LaChance v. First Nat'l Bank and Trust Co. of Greenfield, 301 Mass. 488 , 491 (1938). The requirement of open and notorious possession is satisfied when the use of the property by the adverse party is without concealment and "sufficiently pronounced so as to be made known, directly or indirectly, to the landowner" using a reasonable degree of supervision over the property. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007).

The particular acts that would be consistent with ownership, as well as those sufficient to provide notice to the true owner, will vary depending on the features of the land in question, and the court must therefore consider the conjunction of "the nature of the occupancy in relation to the character of the land." See Lawrence v. Town of Concord, supra, 439 Mass. at 421, quoting Kendall v. Selvaggio, 413 Mass. 619 , 623-624 (1992). "Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city." LaChance v. First Nat'l Bank & Trust Co., supra, 301 Mass. at 490. Put another way, "the nature of the occupancy and the use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; (for instance) in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose." Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct, 838, 848 (2004). "Acts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession." Kendall v. Selvaggio, supra, 413 Mass. at 624, quoting Parker v. Parker, 83 Mass. 245 , 247 (1861). "[T]he determination whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific." Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847.

Typically, a significant factor considered as demonstrative of actual, open, and notorious use is the erection of significant permanent improvements on the land. See, e.g., Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (noting lack of permanent improvements); Collins v. Cabral, 348 Mass. 797 , 798 (1965) (noting septic tank installation); Shaw v. Solari, 8 Mass. App. Ct. 151 , 154 (1979) (installation of fence and chicken coop). Major alterations to existing features of the landscape itself, such as filling, grading, clear-cutting, or extensive cultivation may serve the same purpose. See Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993); Conte v. Marine Lumber Co., 66 Mass. App. Ct. 505 , 509 (2006) (clearing trees, burying rubbish, planting rye grass, and digging loam can together qualify as sufficient use); Hurlbert v. Kidd, 73 Mass. App. Ct. 1104 (Rule 1:28 Decision) (Nov. 7, 2008) (finding that permanent structures not necessary where plaintiff parked cars, maintained lawn, planted vegetation).

The open and notorious use must be continuous for a period of twenty years. Lawrence v. Town of Concord, 439 Mass., supra, at 417, 425. For the claimant's use to be exclusive, it must exclude not only the true owner of the property but also all third parties "to the extent that the owner could have excluded them." Peck v. Bigelow, 34 Mass. App. Ct. at 557. Finally, the use must be adverse, or without permission from the true landowners. Kane v. Vanzura, 78 Mass. App. Ct. 749 , 759 n. 20 (2011) ("[A] use conducted with permission is not unexplained and cannot support a claim of adverse use.")

Lorden has argued in the alternative that she has adversely possessed the disputed area for the statutory period. If Lorden is able to prove adverse possession of a portion of the disputed area under color of title, she would be considered to have adversely possessed the entirety of the disputed area along the common boundary off of Lawrence Street. Because I find that the boundary between the NCT and Lorden properties is as shown on the subdivision plans prepared by Ross & Associates in 2002 and 2015, it is unnecessary to determine whether Lorden has adversely possessed the disputed area. However, I do so in the interest of completely addressing the issues presented by the parties at the trial of this matter.

Lorden presented uncontradicted evidence that from and after 1914, Fessenden, during its period of ownership of the property, utilized the Lorden property for logging in support of its cooperage business. After Fessenden sold the property to the Lorden family in 1961, significant clearing and excavation took place for the purpose of developing parts of the property for mobile home sites with septic systems. The appearance of the property even today bears witness to these uses. In particular, as is noted elsewhere in this decision, I find that the slope to the west of the present day path, which encompasses most of the disputed area, appears to have been cleared at some point in the past, its grade altered, and today has not grown back to the level of mature forest that is evident just a little farther west on the record NCT property. I find and rule that this clearing and grading activity by Lorden and Lorden's predecessors in title was "actual, open, notorious, exclusive, and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). I further find and rule that the plaintiff's and the plaintiff's predecessors' adverse possession was under color of title, as the 1914 deed into Fessenden, and all later deeds, explicitly described the western boundary of the Lorden property as encompassing an area that I have found was used extensively by Fessenden and Lorden since 1914, and included use of most, if not all, of the disputed area for logging and other activities.

NCT has also asserted an adverse possession claim, arguing that it has occupied the disputed area openly, notoriously, exclusively, continuously, and adversely for the statutory period of twenty years. NCT offered scant evidence of adverse possession, relying on the testimony of Paula Terrasi, the Conservation Administrator for the Town of Pepperell. Ms. Terrasi testified that she has walked the present-day cart path herself before, as have other members of NCT. [Note 110] However, according to Ms. Terrasi's testimony, NCT has never maintained the presently existing path or put signage there indicating its status as an NCT trail, as it has for other NCT trails in the area. [Note 111] Additionally, NCT has not produced evidence - through Ms. Terrasi or otherwise - that any use by NCT members of the cart path was more than merely intermittent or occasional, thus failing to satisfy the actual use and open and notorious use elements of adverse possession. Especially when taking into account the "wild and unimproved" character of the land (see Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct, at 848), this sporadic and light use of the disputed land was insufficient to put the owner of record on notice of an adverse use. Neither did NCT prove that it has made exclusive use of the disputed area, including the cart path. In fact, NCT itself concedes that its use, to the extent there is any, of the disputed area "has not been exclusive in all respects." [Note 112] I find that NCT's use of the disputed area, consisting of occasional walks by members on the present path, was intermittent, sporadic and insufficient to sustain its burden to prove either possession by adverse possession or to establish an easement by prescription. For these reasons, I find that NCT has failed to sustain its burden in proving it adversely possessed the disputed area.

CONCLUSION

For the reasons stated above, the plaintiff has carried her burden of quieting title to the disputed area, and has also established her alternative claim for adverse possession under color of title. Judgment will enter accordingly.