MISC 18-000330

February 3, 2020

Middlesex, ss.




This is a record boundary case between neighboring property owners in Newton. [Note 1] Plaintiffs Charles and Sheila Ufland are the owners of 313 Brookline Street, and defendant Charles Badaoui owns the property to its West at 325 Brookline Street. What prompted the lawsuit was the Uflands' belief that a brick pillar on the side of Mr. Badaoui's driveway encroached on their land. As the evidence showed, they were wrong.

Most of the basic facts are substantially undisputed and, in any event, are as follows.

The lot the Uflands purchased was created by deed and plan in 1922. [Note 2] The property description in that 1922 deed (Mick to Sherwin, Oct. 26, 1922) (Trial Ex. 1) ("the 1922 Sherwin Deed") is exactly the same as the property description in the Ufland deed (Dunlany to Ufland, Jul. 26, 1973) (Trial Ex. 4) ("the Ufland Deed") and in all intervening deeds in that chain. Both the 1922 Sherwin Deed, the Ufland Deed, and all intervening deeds in that chain reference exactly the same plan in their property description ("Plan of Land in Newton Mass. made for Paul H. Sherwin, Sept. 22, 1922") (Trial Ex. 26) ("the 1922 Sherwin Plan"). Every measurement, angle, and square footage on that Plan exactly matches the property description in the 1922 Sherwin Deed, the Ufland Deed, and all intervening deeds in that chain. The measurements and angles on that Plan completely "close" (i.e., the boundary lines meet as described, exactly, with no gaps between them) and produce exactly the square footage described. There are no ambiguities in the property description in the deeds or as shown on the Plan. The lot as described and depicted can be located, exactly, on the ground today. All of them describe the Southern boundary of the Ufland parcel as 226.21' from the sideline of Oak Hill Road, at which point the Western boundary of that parcel turns 90 degrees to the North, ending at the sideline of Brookline Street. In other words, consistently throughout, conveyance to conveyance to conveyance, the Western boundary line of the Ufland parcel is 226.21' from Oak Hill Road.

Despite this, the Uflands claim additional land to the West of that boundary line based on a 1927 deed (Mick to Smith, Jun. 24, 1927) (Trial Ex. 7, first deed) ("the 1927 Smith Deed") and plan ("Plan of Land in Newton, Mass., Jun. 1927") (Trial Ex. 27) ("the 1927 Smith Plan") to which neither they nor any of their predecessors was a party That deed, which gives the Sherwin (now Ufland) lot as its eastern boundary (i.e., which uses the Sherwin lot as a monument), includes a linear measurement that would place the boundary line 3.38' further over than the actual conveyance to Sherwin. Despite not being a party to that deed, and pushing aside its use of the previously-conveyed Sherwin parcel as a monument, the Uflands now claim that the 3.38' of extra land was "intended" to be theirs and thus, presently, is. Mr. Badaoui disagrees, relying on: (1) the rule that monuments control over distances, (2) the consistent record description of the Ufland parcel, conveyance after conveyance, up to and including when the Uflands purchased it, without any of that land included, and (3) other evidence showing no intent to include it.

The case was tried before me, jury-waived. At the conclusion of the Uflands' case, Mr. Badaoui, pursuant to Mass. R. Civ. P. 41(b)(2), moved for judgment declaring that the Uflands' western boundary is the boundary as described in the 1922 Sherwin Deed and as shown on the 1922 Sherwin Plan. On such a motion in a non-jury case, the court may make factual findings, including reasonable inferences from the evidence, and I do so. See Mass. R. Civ. P. 41(b)(2) ("The court as trier of the facts may then determine them and render judgment against the plaintiff . . ."). Based on the testimony and exhibits admitted into evidence at trial and my assessment of the credibility, weight and inferences to be drawn from that evidence, I allow Mr. Badaoui's motion and judgment will be entered accordingly.

The motion did not seek, and thus no adjudication is made, regarding the location of Mr. Badaoui's current eastern boundary line, i.e. whether, as a result of subsequent conveyances in Mr. Badaoui's chain of title, none of which involved the Ufland property, the Badaoui (not the Ufland) boundary line moved. Thus, no adjudication will be given as to whether this is currently a common boundary line between the Ufland and Badaoui properties, nor of the location of any other boundaries of the Ufland property.


The parties' contentions were presented through the testimony of their witnesses and the various deeds, plans and other documents admitted into evidence. Based on that evidence, my assessment of its weight and credibility, and the reasonable inferences I draw, these are the facts as I find them after trial.

The chain of title to the Ufland property began when the original lot was created and conveyed by William Mick to Paul Sherwin on October 26, 1922 (the 1922 Sherwin Deed). That deed (Trial Ex. 1) gave a metes and bounds description of the land, the square footage contained therein, and referenced a 1922 plan of the property created by the grantee, Mr. Sherwin (Trial Ex. 26) (the 1922 Sherwin Plan). The description of the property in the deed and its depiction on the plan match each other exactly. The plan mathematically closes (i.e., there are no gaps between the boundary lines), the square footage in the deed and shown on the plan is the same, and both the deed and the plan, unambiguously, identify the Southern boundary line as 226.21' long starting at the sideline of Oak Hill Street ("southwesterly by other land of said Mick two hundred twenty-six and 21/100"). There is no evidence of any additional conveyance of land from Mick to Sherwin, ever. Nor is there any evidence that any of Mick's successors conveyed any additional land to Sherwin or his successors, ever.

This description of the now-Ufland property was repeated in every deed from the initial conveyance in 1922 to and including the deed by which the Uflands acquired the property. The first time it changed was when the Uflands changed it, unilaterally, when they created a subdivision plan of their lot in 1994. Adding the extra land enabled them to create two zoning-compliant buildable lots (they could not do so with only the land described in their deed – there was not enough total area for two buildable lots unless the extra land was added), and showing two such lots on their new plan enabled them to sell the easternmost one for $281,500 (Trial Ex. 6). The Uflands' new plan did not disclose the change from their deed, nor did they bring it to the attention of the planning board or building inspector.

All deeds in the Uflands' chain of title, including the deed that conveyed it to them, reference the 1922 description of the boundary line at 226.21'. See Trial Exs. 4, 5. It was not until the Uflands' deed subdividing the lot, dated March 21, 1995, that the southerly border changed to 229.59' in their chain of title. See Trial Ex. 6. The 3.38' difference in the two measurements is not due to a different starting point. Both start from the same point on the sideline of Oak Hill Street.

The chain of title to the Badaoui lot began on June 24, 1927, when Mr. Mick sold all of his property abutting the previously-conveyed Sherwin lot to Luise Sinclair Smith (the 1927 Smith Deed). The Badaoui parcel was eventually created through subsequent subdivision of the now-Smith land. Both the Mick to Smith deed (Trial Ex. 7, first deed) and the later corrective deed between those parties (Sept. 15, 1927, Trial Ex. 7, second deed) identify the boundary of the Sherwin (now Ufland) lot as the eastern boundary of the conveyance to Smith ("Easterly on land of Paul H. Sherwin"), using the Sherwin lot as a monument. [Note 3] Both the original Mick to Smith deed and the later corrective deed, however, give an erroneous linear measurement of 229.59' (rather than the correct 226.21') as the distance from Oak Hill Street. I find that this was due to inaccurate surveying by Ms. Smith's surveyor (who created the plan) and that Mr. Mick did not closely examine the measurements for accuracy because he was conveying everything he had (everything to the Sherwin boundary) as the deed reflected. [Note 4] The 229.59' distance was then (erroneously) carried down on subsequent plans of Smith-related properties. See, e.g. Trial Ex. 37. This erroneous distance does not, however, appear anywhere in the chain of title for the Uflands.

Further facts are set forth in the Discussion section below.


The determination of a disputed boundary line is "a question of fact on all the evidence, including the various surveys and plans . . . [to determine] where the true line originally ran, and was to be established." See Hurlbut Rogers Machinery Co. v. Boston & M. R. R., 235 Mass. 402 , 403 (1920). "Any competent evidence may be considered in determining the true boundary line between adjoining owners." Bernier v. Fredette, 85 Mass. App. Ct. 265 , 268 (2014) (quoting Holmes v. Barrett, 269 Mass. 497 , 500 (1929)). Here, the evidence regarding the Uflands' title and the boundary line on the Western side of their property consisted primarily of deeds.

When deeds conflict, or when their reliability is in question, the court in a non-jury case resolves these issues based on its evaluation of the totality of the evidence in accordance with case law principles. See Cuddy v. Eldredge Pub. Library, Mem. & Order Pursuant to Rule 1:28, 91 Mass. App. Ct. 1129 , 2017 WL 2687415 at *1-*2 (2017). One of the most important of these principles is that property descriptions in prior deeds in a chain-of-title take precedence over inconsistent descriptions of the same land in later deeds, because a grantor cannot convey more than he possesses. See Bongaards v. Millen, 440 Mass. 10 , 15 (2003); see also C.M. Brown, et al., Brown's Control and Legal Principles (4th Ed.), John Wiley & Sons, Inc., New York (1995) ("Brown's Boundary Control") §3.1 at 33 ("[O]ne who grants title to property to a second person can grant no more interest than what is owned"). The standard of review to determine a boundary line dispute is "by a preponderance of the evidence." See M. Brodin and M. Avery, Handbook of Massachusetts Evidence, §3.3.2(a) at 67 (8th ed. 2007). Guided by these principles, I address the parties' boundary line dispute as follows.

The 1922 Deed and Plan

The 1922 deed from Mick to Sherwin (the 1922 Sherwin Deed) and its accompanying referenced plan (the 1922 Sherwin Plan) clearly and unambiguously conveyed exactly 226.21' from Oak Hill Street. This plan was created by Sherwin, the purchaser, with specific measurements of exactly what he was purchasing. As the buyer, Sherwin had a clear incentive to ensure that the measurements were correct, that the lot he received was accurately described, and I so find. The 1922 Sherwin Plan exactly matches the 1922 Sherwin Deed in measuring the distance from Oak Hill Street as 226.21', and matches all other measurements in the deed as well. As shown on Trial Ex. 26 (the 1922 Sherwin Plan), the upper part of the Sherwin lot is exactly one acre, 43,560 square feet, which underscores the accuracy and lack of ambiguity in the plan. Also underscoring the accuracy of the 1922 Sherwin Plan is the fact that, from that point onwards – from 1922 to 1994 – every subsequent conveyance of the Sherwin (now Ufland) parcel referred back to the 1922 Sherwin deed and plan and used its same descriptions.

There is no evidence of a mistake in the deed conveying the land from Mick to Sherwin. Had there been, a corrective deed making the change would likely have been drafted. [Note 5] It was only after the Uflands decided to subdivide and sell a portion of their property (Trial Ex. 6), that they adopted a different boundary, unilaterally. Although the Ufland subdivision claimed more land than the Ulfands actually owned, that claim means nothing and has no legal effect. A grantor cannot convey more than they possess. See Bongaards, supra; Brown's Boundary Control, supra.

Abutting Property as a Monument

Deeds are construed in accordance with the following rules, which I apply in analyzing the Ufland parcel.

Rules of deed construction provide a hierarchy of priorities for interpreting descriptions in a deed. Descriptions that refer to monuments control over those that use courses and distances; descriptions that refer to courses and distances control over those that use area; and descriptions by area seldom are a controlling factor. See Holmes v. Barrett, 269 Mass. 497 , 499-500 (1929); Ryan v. Stavros, 348 Mass. 251 , 258-259 (1964). Moreover, when abutter calls are used to describe property, the land of an adjoining property owner is considered to be a monument. Holmes v. Barrett, supra at 500; Ryan v. Stavros, 348 Mass. at 259.

Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004). Thus, abutting property is considered to be a monument when identified as a boundary, and monuments govern over conflicting linear distances.

The June 1927 Mick to Smith deed (the 1927 Smith Deed) states that the Smith property is bounded "[e]asterly on land of Paul H. Sherwin, one hundred seventy-seven feet; [and] [n]ortherly again on said Sherwin land, two hundred twenty-nine and 59/100 feet . . ." See Trial Ex. 7. This description thus has both linear distances and a monument –"on said Sherwin land." The two are inconsistent, since the Sherwin land ends 226.21' from Oak Hill Street, not 229.59'. [Note 6] As noted above, monuments control over linear distances. "Whenever in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern." Bernier, 85 Mass. App. Ct. at 269. When an abutter call is used to describe property, the adjoining property is a monument. See Paull, 62 Mass. App. Ct. at 680. The boundaries of the Sherwin property are monuments, which control over the linear description.

This abutter call shows clearly that Mr. Mick intended to convey all of his remaining property to the border of the Sherwin property, nothing more and nothing less. Since there is no evidence that additional land was conveyed to Mr. Sherwin beyond that which he bargained for and received in the 1922 deed and plan (226.21' along the southern boundary), the boundary of the Sherwin property, as established in the 1922 plan, controls as a monument over the conflicting distance in the 1927 plan and deed, to which Sherwin was never a party. Moreover, as further corroboration that the 1922 deed and plan were the correct ones, Sherwin never sought or obtained any change to his deed, and when he conveyed out his lot years later, he used the same 1922 description and referenced the same 1922 plan as set forth in his own deed.

Intent of the Common Grantor

The Uflands argue that, despite the precision of the 1922 deed and plan, Mr. Mick nonetheless intended the Smith property to begin 229.59' from Oak Hill Street as referenced in the 1927 deed from him to Ms. Smith. I disagree, and find that Mr. Mick was not concerned with the distance measurement in that 1927 deed, and that his only intention was to convey to Smith all of the land in his possession, over to the boundary of the Sherwin parcel. The original deed between Mick and Smith dated June 24, 1927, did not refer to a plan. See Trial Ex. 7. Only later, in the corrective deed dated September 15, 1927 (the second deed in Trial Ex. 7), is there reference to a plan. Given that the plan was neither referenced in, nor even existing at the time of the original June 24, 1927 Mick to Smith deed, but rather, was referenced only in the later September 15, 1927 corrective deed, it is clear that the plan was created by Ms. Smith's surveyor [Note 7] and thus cannot be interpreted as Mr. Mick's "intent." It certainly did not change what Mr. Mick had conveyed to Mr. Sherwin in the 1922 deed.

The Uflands also argue that the length of the stone retaining wall between the then-Sherwin property on the North and the property conveyed to Ms. Smith on the South is indicative of an intent to enlarge the Sherwin (now Ufland) property. However, it is not 229.59' long and, even if it was, I find it likelier that the wall was installed by Ms. Smith rather than Mr. Sherwin to level her property and was set back from the boundary to allow access for maintenance. See Bernier, 85 Mass. App. Ct. at 268 ("It [is] for the judge to decide whether upon all the testimony and evidence it [is] more accurate to rely on one expert over another or ancient plans over more recent plans."). See also Fechtor v. Fechtor, 26 Mass. App. Ct. 859 , 863 (1989) ("Faced with a battle of experts, the fact finder may accept one reasonable opinion and reject the other[, o]r the judge may reject expert opinion altogether and arrive at a valuation on other evidence.") (internal citations omitted). The stone wall cannot be interpreted as an intent to create a boundary. Walls are built for many other purposes, and often not as boundaries. See Ryan v. Stavros, 348 Mass. 251 , 261 (1964) (finding that "[m]ere acquiescence in the existence of a fence or line as a barrier or for some other purpose is not enough to establish a boundary."). Extrinsic evidence, such as a wall, may be admissible to show the construction given by the parties to a deed if the description in that deed is doubtful or ambiguous. Id. at 260. But here, however, the description in the Uflands' source deed – the 1922 conveyance from Mick to Sherwin – is neither doubtful nor ambiguous, and it establishes the western boundary of the Ufland property at 226.21' from Oak Hill Street. There is no call to consider evidence of the wall or to speculate as to who built the wall.

The 1927 Corrective Deed from Mick to Smith

The 1927 corrective deed from Mick to Smith is interesting for a number of reasons, none of which are helpful to the Uflands' contention that it somehow reflects Mr. Mick's "true" intent to have conveyed 3.38' of additional land to Sherwin five years previously.

First, there is no similar corrective deed for Sherwin. If Mr. Mick had intended to convey additional land to Mr. Sherwin he would have drafted a similar corrective deed to say so, and surely Mr. Sherwin would have insisted on receiving such a deed. Given that Mr. Mick corrected the deed in his conveyance to Ms. Smith, he would have known how to do the same for Mr. Sherwin if there was an inaccuracy in that deed. The Uflands argue that there may have been an unrecorded deed that did so or, in any event, that Mr. Sherwin must have believed he was getting more land than his 1922 deed and plan reflected. [Note 8] But this cannot be true because Mr. Sherwin's subsequent conveyance of his land to a new owner, [Note 9] and every deed in that chain thereafter including the deed into the Uflands, reference the 1922 Sherwin Plan and give precisely the same metes and bounds measurements and descriptions set forth in the 1922 Sherwin Deed. If Mr. Sherwin had a deed reflecting additional land, he would have recorded it, and certainly would have referenced it in his conveyance. Here, when Mr. Sherwin conveyed his land to a new owner, he did not imply or state that anything existed or affected his title other than the 1922 Sherwin Plan and Deed. There was no mention or reference to anything else.

Second, the 1927 Mick to Smith corrective deed is demonstrative of the poor quality of the June 1927 plan drafted by Ms. Smith's surveyor. [Note 10] The corrective deed identifies errors in two measurements. The first corrective measurement differed from the original by over a foot, while the second differed from the original measurement by approximately thirteen feet. Smith's surveyor's plan also had an inaccurate angle measurement at its western point where it turns north to Brookline Street - 89 degrees on the Smith plan (Trial Ex. 27) instead of the 90 degrees on the 1922 Sherwin plan (Trial Ex. 26). [Note 11] Thus, I find that Ms. Smith's surveyor incorrectly measured the distance on the Sherwin side of the property, and that this error was carried forward into subsequent deeds in the Smith-originated chain. A mistaken measurement carried into subsequent deeds (to which Mr. Mick was not a party) is not evidence of Mr. Mick's intent to have conveyed additional land to Mr. Sherwin.

The Uflands' final argument is that, prior to the trial, the parties' surveyors identified the locations each party claimed for all relevant boundaries, and that, accordingly, Mr. Badaoui should be bound by his surveyors' use of 228.80' from Oak Hill Street as a boundary measurement. See Ex. 47. Mr. Badaoui disagrees that he is so bound, and gave an alternate explanation for what his surveyor was showing. I need not resolve this conflict, however, because, as the fact finder, I may reject expert opinions and arrive at my own conclusions based on the evidence, and I have done so. No "expert" can change the plain meaning and controlling nature of the 1922 Sherwin Deed and Plan. See Fechtor, 26 Mass. App. Ct. at 863.

Res Judicata Preclusion of Future Attempts to Claim Adverse Possession Based on Events That Occurred Prior to the Filing of This Case

Res judicata "makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." Blanchette v. School Committee of Westwood., 427 Mass. 176 , 179 n.3 (1998). This concept is based on the principle that the "party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit." Foster v. Evans, 384 Mass. 687 , 696 n.10 (1981) (internal citations omitted). Claim preclusion requires three elements: "(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005) (internal citations and quotations omitted). Thus, if either the Uflands or the Badaouis were to bring a future adverse possession claim regarding the location of the Uflands' western boundary line, the claim would be barred insofar as it is based on any actions that occurred prior to the filing of this lawsuit. [Note 12] The parties would be identical (Mr. Badaoui and the Uflands or their successors in title), the judgment in this case is a final judgment on the merits, and the cause of action for res judicata purposes would be the same. See Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass. App. Ct. 393 , 399 (1991) ("A claim is the same for res judicata purposes if it is derived from the same transaction or series of connected transactions.").


For the foregoing reasons, I find and rule that the Uflands' Western boundary line is 226.21' Eastwards from the sideline of Oak Hill Street, and then turning 90 degrees North toward Brookline Street from that point, as described in the 1922 Sherwin Deed and shown on the 1922 Sherwin Plan. A copy of that Plan (Trial Ex. 26) is attached for ease of reference. I am not persuaded otherwise by the 1927 Mick to Smith deed or plan, any subsequent events, or the arguments deriving from them. There were no subsequent deeds to convey additional property to Mr. Sherwin, nor any persuasive evidence that additional land was intended for him. Thus, the brick pillar does not encroach upon the Uflands' property.

Although the Western boundary of the Ufland lot began as a common boundary between the parties' properties, there have been conveyances involving Mr. Badaoui's predecessors in title since that time, none of which involved the Ufland property and none of which the Badaouis asked me to review or adjudicate. I thus make no adjudication as to whether the boundary between the Uflands and Mr. Badaoui is currently a common boundary. The only judgment entered is the location of the Uflands' western boundary.

Judgment shall enter accordingly.



[Note 1] The parties stipulated that neither claimed title by adverse possession.

[Note 2] As described more fully below, the Uflands subsequently subdivided their lot into two parcels, selling one and keeping the other. For ease of reference, unless the context indicates otherwise, when I refer to the "Ufland deed" or the "Ufland lot" I mean the deed and lot as they purchased it, i.e. their original deed and lot (Dunlany to Ufland, Jul. 16, 1973 (Trial Ex. 4). The boundary line at issue is the one on the Western side of the Ufland lot - the side where they continue to live.

[Note 3] That line thus began as a common boundary.

[Note 4] Monuments control over distances. See Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004).

[Note 5] Note that such a correcting deed was used in the Mick to Smith conveyance, showing that Mick was aware that such a formal document was needed if he believed a material mistake had been made in the earlier one. There was no such material mistake here because the 1927 Smith Deed clearly conveyed all of Mick's land to the Western boundary of the Sherwin parcel ("Easterly on land of Paul H. Sherwin") using the Sherwin lot as a monument, and monuments control over distances. Paull, 62 Mass. App. Ct. at 680.

[Note 6] The parties agree that the starting point on Oak Hill Street for both was the same.

[Note 7] The subsequent plans of the Smith property were all prepared by the same surveying company, which is further evidence that the 1927 plan was prepared for Smith. See Trial Ex. 30, 31, 37.

[Note 8] This argument assumes that Mr. Sherwin built the retaining wall on his southern boundary and that he intended it to exactly track his boundary line. As discussed above, I reject both assumptions.

[Note 9] Sherwin's subsequent deed to Ms. Edith L. Haskell on May 1, 1940 (Trial Ex. 2) specifically states that the property being conveyed is as shown on the 1922 Sherwin Plan (the plan "recorded at the end of Book 4564 of the Middlesex South District Deeds") and describes the length of its southern boundary ("southwesterly on other land now or late of Mick") as 226.21'.

[Note 10] I cannot over emphasize the fact that Mr. Sherwin was not a party to any of the Mick to Smith deeds, that the Mick to Smith deed is not in Sherwin's or his successors' chain of title, and that none of the later conveyances of the Sherwin parcel refer or reference the Mick to Smith deed in any way.

[Note 11] Mr. Ufland testified that he found a stake near the sidewalk, which I find is unrelated to the Ufland or Badaoui boundaries and most likely due to the road-widening taking by the City of Newton that was described in the conveyance to Sheila Ufland. See Trial Ex. 4. So far as the record shows, the stake Mr. Ufland saw does not tie into anything related to the parties' east/west boundary lines.

[Note 12] In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n.8 (1996).