MISC 07-354916

July 12, 2013

Norfolk, ss.

Grossman, J.


The instant action was initiated by the Cistercian Order of the Strict Observance in Massachusetts, Inc. (plaintiff / the Abbey) against Peter Burnett, Richard Burnett, and the Estate of Theresa E. Burnett (defendants / Burnetts) for the purpose of establishing ownership of a portion of the Abbey’s property in Wrentham, Massachusetts. The disputed property consists of approximately 2.39 acres (disputed area / disputed parcel) located at the western boundary of the Abbey’s property, on the easterly side of Arnold Street. The plaintiffs filed a complaint to try title under G.L. c. 240, §§ 1-5. The defendants challenge the Abbey’s claim of ownership and have brought a counterclaim alleging that they hold title to the disputed area under a deed from Theresa E. Burnett to her sons, Peter and Richard Burnett.

This is not the first lawsuit to address the ownership of the Abbey’s Parcel and the disputed area. In 1995 the Abbey filed an action in the Superior Court against Theresa E. Burnett and Richard Burnett seeking to determine who held title to the disputed property and additional abutting land. In a comprehensive decision issued July 2, 1998, [Note 1] the Superior Court (Chernoff, J.) determined that the Abbey had established its ownership to a portion of the land in dispute, but had failed to meet its burden with regard to the remaining 2.39 acres. That 2.39 acre portion is the land currently in dispute.

The Judge also determined that the Burnetts had failed to establish title to the disputed 2.39 acres either through a chain of title or adverse possession. Acting upon the Court’s suggestion that the parties could pursue registration or alternative remedies in the Land Court, the plaintiff initiated the instant action.

The plaintiffs allege that they hold record title to the disputed property while arguing that the record conveyance from Theresa Burnett to Peter and Richard Burnett should be invalidated. For their part, the Burnetts argue that they hold superior record title to the disputed property under a series of deeds dating back to 1820. They argue further that the deeds within the Abbey’s chain of title fail to establish that the plaintiff holds record title. Both chains of title contain errors that have invited competing interpretations.

These issues were the subject of a three-day trial on October 15, 16, and 17, 2012, [Note 2] at which a stenographer was sworn to take the testimony of Sister Jane Smith, Karen Wright, Kenneth McKenzie, Peter Burnett, and Richard Burnett. Thirty exhibits, a number of which contained extensive subparts, were admitted into evidence as were nine chalks. These exhibits and chalks are incorporated by reference into this decision for purposes of appeal.

On all the credible testimony, [Note 3] exhibits and other evidence properly introduced at trial or otherwise before me and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

I. Background

The Cistercian Order of the Strict Observance in Massachusetts is a group of 43 nuns who have chosen a monastic way of life. [Note 4] It is a tradition of their order to preserve green space [Note 5] and to that end, the Abbey has acquired various parcels of land over time. [Note 6] The Abbey owns multiple parcels in Wrentham and Franklin in the vicinity of the disputed area. [Note 7] It acquired the disputed property in 1947 as part of an acquisition of a larger parcel of land (the “Abbey Parcel”). [Note 8] It claims record title based upon fourteen deeds in its chain of title dating from 1820. [Note 9] The disputed parcel is located easterly of Arnold Street and westerly of the Abbey’s driveway. It is located in the vicinity of the western and southern boundaries of the Abbey Parcel. [Note 10]

Ownership of the disputed area depends upon the location of the southwest edge of the Abbey Parcel. If the boundary were to be located where the plaintiff alleges it to be, the Abbey Parcel will encompass the disputed area. If, on the other hand, the boundary were to be located where the defendants allege it to be, then the Abbey Parcel will not encompass the disputed area. The location of the disputed area turns on the proper placement of the southerly and southwesterly boundary line of the Abbey Parcel where it intersects with (a) Arnold Street, (b) the 80 Rod Parcel and (c) the Gilmore Pasture, all of which are discussed infra. [Note 11]

All three of these properties are situated on the easterly side of Arnold Street. [Note 12] The parties agree that the 80 Rod Parcel borders the southwesterly edge of the Abbey parcel and the northeasterly edge of the Gilmore Pasture, [Note 13] and that the adjacent Gilmore Pasture also abuts a portion of the Abbey Parcel. [Note 14] The plaintiff believes that the 80 Rod Parcel and Gilmore Pasture abut the Abbey Parcel as shown on the Swanson Plan [Note 15] and McKenzie Plan. [Note 16] The defendants believe that the 80 Rod Parcel, and correspondingly the northerly boundary of the Gilmore Pasture, is approximately 600’ further north on Arnold Street. They submitted plans showing the boundaries as they believe them to be located. [Note 17] Should the court find the boundaries to be as the defendants propose, the Gilmore Pasture would include approximately four acres more than called for in the relevant deed. [Note 18] The Superior Court decision, see infra, determined title to approximately 1.61 acres of this four acre parcel, leaving 2.39 acres for disposition by this court.

The judgment of the Superior Court determined that the Abbey holds record title up to a wall located in the southwest portion of the Abbey Parcel as shown on the sketch attached to that Court’s decision. [Note 19] The 2.39 acre disputed parcel directly abuts the boundary of the Abbey parcel, as defined by the Superior Court. The disputed parcel is bounded on the southwest line by what is now the Pettis Parcel, but what has historically been known as the 80 Rod Parcel. [Note 20] Although at trial, the defendants argued that the Superior Court judgment was incorrect and should be overruled, this court declines to review the findings of the Superior Court and will concern itself with the 2.39 acre disputed area, only. [Note 21] However, for discussion and analysis purposes, the court will consider all relevant parcels, deeds, and boundaries, commencing with the Abbey Parcel.

II. G.L. c. 240, §§ 1-5.

The plaintiff brought the instant action as a “try title” petition under G.L. c. 240, §§ 1-5. [Note 22] The relevant part of § 1 states “[i]f the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein . . . may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim.” The defendants responded to the complaint by filing a counterclaim alleging that they hold title to the disputed area. [Note 23] The try title statute has been described as an “anachronism” as it is outdated and poorly structured to deal with modern title conflicts. See Bevilacqua v. Rodriguez, 460 Mass. 762 , 766 n. 3 (2011). Although the statute contemplates the original defendants filing an action to contest title, this court has treated an appropriately-filed counterclaim as complying with the statute without the need to file a separate action. Having filed the said counterclaim, the defendants have the burden of establishing that they hold title to the disputed area. The Abbey need only show record title [Note 24] to establish standing to bring the initial try title action. See Bevilacqua v. Rodriguez, 460 Mass. 762 , 767 (2011). It is this court’s view that the plaintiffs have cleared that hurdle. [Note 25]

While the defendants may have the burden of proving title to the disputed area, the court will nonetheless commence its analysis with the Abbey Parcel.

III. The Abbey’s Chain of Title.

The Abbey Parcel’s chain of title can be traced back to 1820. [Note 26] The Parcel has, at various times, belonged to Garelick, [Note 27] Bartlett, [Note 28] Gurwitz, [Note 29] Rolling Realty, [Note 30] Swanson, [Note 31] Lougest, [Note 32] Outhouse, [Note 33] Cole, [Note 34] Blake, [Note 35] Gay, [Note 36] and Pierce. [Note 37] Unfortunately, there are errors in certain of the deeds in the Abbey’s chain of title that make it difficult to ascertain the bounds of the property with absolute precision. [Note 38] The distance measures in the Abbey’s deeds do not uniformly comport with the plans that accompany them. [Note 39] The plaintiffs rely on an amalgamation of deeds in their title chain to determine the proper boundaries of their property.

The 1947 deed under which the Abbey took title is missing a course in the deed description that was carried forward from an error in the 1939 deed in the chain of title [Note 40] The flawed 1939 deed incorporates a plan of land by reference. [Note 41] That plan, known as the Rolling Realty Plan, depicts the parcel’s boundaries. [Note 42]

Attorney Karen Wright, a Land Court certified title examiner with 27 years of experience, [Note 43] appeared on behalf of the plaintiff. She noted that a plan of land incorporated into a deed description controls over courses and distances presented in the deed. [Note 44] A grantee is entitled to rely on an engineered plan that is incorporated into the deed, even if the distances shown on the plan do not strictly accord with those set out in the deed description itself. [Note 45] Ms. Wright testified that when she, with the assistance of an engineer, plotted the south boundary of the Abbey Parcel as set out in the 1939 deed it matched the line shown as C-D-E-F-G on the Rolling Realty Plan. [Note 46] Further, the line C-D on that plan has the same distance call as the northwest line of the abutting Gilmore Pasture as surveyed by Kenneth McKenzie. [Note 47]

Mr. McKenzie is a professional land surveyor with over 50 years experience. [Note 48] He appeared on behalf of the plaintiff. He testified that his field research on the disputed south boundary line of the Abbey Parcel confirmed that the boundaries shown on the Rolling Realty Plan match the deed description. [Note 49] He also found that the said boundaries substantially matched the Abbey Parcel as delineated on the Swanson Plan. [Note 50] However, both Mr. McKenzie and Attorney Wright predicated their conclusions concerning the location of the disputed area upon consideration of other deeds in the Abbey’s chain of title.

Looking back from the 1939 deed, one encounters three deeds upon which the parties did not focus. [Note 51] One then reaches the deed that is most problematic from the plaintiff’s point of view, the 1902 deed from Outhouse to Lougest. [Note 52] This deed is poorly drafted and somewhat confusing. [Note 53] The parties agree that the starting point of the deed description is incorrect. [Note 54] Although the deed states that the parcel to be conveyed begins “at the northwesterly corner of land of George J. Hittenger,” [Note 55] the proper beginning should be at the northwesterly corner of the land formerly of Farnum, meaning the 80 Rod Parcel. [Note 56] George Hittenger never owned the 80 Rod Parcel, [Note 57] but he did own the Gilmore Pasture in 1902. [Note 58] All parties agree that the 80 Rod Parcel is located between the Gilmore Pasture and the Abbey Parcel. [Note 59] It follows that, as the description fails to account for the presence of the 80 Rod Parcel located between the Hittenger land and the Abbey Parcel, the beginning point is necessarily incorrect. [Note 60]

As a corollary, the ending point of the 1902 deed is incorrect as well. [Note 61] The last call of the 80 Rod deed should be included as the final call in the 1902 deed to incorporate the presence of the 80 Rod Parcel between the Gilmore Pasture and the Abbey Parcel. [Note 62] The parties agree that the Abbey Parcel should have commenced at the corner of the 80 Rod Parcel. [Note 63] The ending point should match the beginning point to close the running description of the property.

There is another error in the 1902 deed – a mistake in the first distance call, which determines the length of the southerly boundary of the Abbey Parcel. The deed calls for a line bounded “[b]eginning at northwesterly corner of land of George J. Hittenger at easterly line of said Arnold street thence running easterly at land of said Hittenger, Benjamin E. Lincoln and George Sheldon, partly on a stone wall one hundred (100) rods [1650 feet] to stake and stones at land of Universalist Society of West Wrentham.” [Note 64] The plaintiffs state, and the defendants do not dispute, that the part of the boundary line that is described as running along the land of Benjamin Lincoln and George Sheldon to a stake and stones at the Universalist Society Parcel is as shown on the Swanson Plan. [Note 65] Therefore, this court concludes that the easterly end of the southern boundary is located as shown on the Swanson Plan. [Note 66] The error concerns the reference to the call for 100 rods and the land of Hittenger.

The central dispute therefore centers on the westerly end of the southerly boundary of the Abbey Parcel, which is determinative of the correct starting and ending point of the deed description, and also of the title to the disputed area. If the southerly boundary line of the Abbey Parcel ends well short of the Abbey’s proposed location, then it stands to reasons that the beginning and ending point must be considerably further north on Arnold Street, thus decreasing the amount of land in the Abbey Parcel, and, at least according to the defendants, increasing the amount of land in the Gilmore Pasture. [Note 67] The defendants allege that the distance call along the 100-rod line controls, [Note 68] and that consequently the last bound of the Abbey Parcel ought to head in a northerly direction and intersect with Arnold Street, bounded westerly by the Gilmore Pasture and 80 Rod Parcel. [Note 69] The plaintiff argues that the abutting properties provide the length of the last bound, [Note 70] rendering the last call of the Abbey Parcel continuing in a westerly direction, bounded southerly and southwesterly by the Gilmore Pasture and 80 Rod Parcel. [Note 71] 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).

Attorney Wright testified that roads, stone walls, stakes, heaps of stones, fences, and abutting property owners all constitute monuments for the purposes of determining boundaries of a parcel of land, [Note 72] and affirmed that monuments control over distances. [Note 73] Mr. McKenzie testified that he found a heap of stones on the Universalist Society Parcel, [Note 74] and a stone wall running along the boundaries of the abutting parcels to the south, which he testified are those that are referenced in the deed. [Note 75] In considering the Swanson Plan, [Note 76] the Wilson Plan, [Note 77] and the McKenzie Plan, [Note 78] it is clear that the southerly border of the Abbey Parcel must be longer than 1,650 feet. [Note 79] Mr. McKenzie testified that the distance between Arnold Street and the heap of stones on the Universality Society Parcel is 1,965.29 feet, not 1,650 feet. [Note 80] Given that monuments control over distances, the improper distance given in the deed is not dispositive. [Note 81] Since the monuments control, the only way to determine the proper location of the southern bound is to determine the location of the abutters’ properties.

The plaintiff relies on the 1865 Blake to Cole deed in their chain of title to elucidate the proper abutters. [Note 82] That deed describes the Abbey Parcel thusly: “[B]eginning at the west corner of said lot being a corner on Avery Crowninshield and Geo. F. Greene the line running easterly on land of said Crowninshield to the road, thence cross the road easterly on land of Mrs. James O. Brown to a stake and stones eight rods from Mount Hill road, thence southerly on land of Chas. Hawes to a stake and stones for a corner on land of Silas P. Fisher, thence southerly the line running westerly on land of Silas P. Fisher, Daniel M. Handcock and Benj’n H. Guild and Ellery Grant and Otis G. Cheever to the east corner of Albert Farnum’s lot thence on said Farnum’s land to the road thence across the road to land of Geo. F. Greene for a corner, thence southerly and westerly by land of s’d Green Otis G. Cheever to the first mentioned bound.” [Note 83]

This court need only consider that part of the description that refers to the portion of the Abbey Parcel that is on the east side of Arnold Street, that is, the description commencing at “thence cross the road easterly on land of Mrs. James O. Brown.” [Note 84] The east end of the southerly line commences at the Hawes property, referred to as the Universalist Society of West Wrentham Parcel, [Note 85] at the stake and stones monument which is the same heap of stones found by Mr. McKenzie and shown on the McKenzie Plan, [Note 86] and the same monument referenced in the 1902 deed. [Note 87] Continuing from east to west, the southerly line is described as being bounded by the following properties (referred to here by the names referenced most frequently at trial): the Fisher parcel, [Note 88] the Hancock Parcel, [Note 89] the Guild Parcel, [Note 90] the Grant Parcel, [Note 91] and the Cheever property known also as the Gilmore Pasture. [Note 92]

The southwesterly line of the Abbey Parcel abuts the 80 Rod Parcel as it intersects with Arnold Street. It seems clear that the southern boundary of the Abbey parcel runs primarily in a westerly direction, not westerly then northerly, [Note 93] towards Arnold Street until it reaches the east corner of the 80 Rod Parcel. [Note 94] At the corner, it follows along the northern edge of the 80 Rod Parcel until it intersects with Arnold Street. [Note 95] To determine the precise location requires a determination of the location of the Gilmore Pasture [Note 96] and the 80 Rod Parcel, [Note 97] as those are the parcels that abut the disputed area. IV. The Gilmore Pasture and 80 Rod parcel

Theresa Burnett, now deceased, at one time owned an approximate nine acre parcel that is located southwesterly of the Abbey Parcel. [Note 98] Her property consisted of two lots known as the Gilmore Pasture [Note 99] and the 80 Rod Parcel. [Note 100] Peter Burnett and Richard Burnett are the sons of Theresa E. Burnett. They claim ownership of the disputed parcel under a 1998 deed from their mother. [Note 101] Mrs. Burnett conveyed out various portions of her property, prior to the 1998 deed to her sons. In 1984 Mrs. Burnett sold the 80 Rod Parcel to Pettis. [Note 102] Mrs. Burnett also subdivided the Gilmore Pasture three times, [Note 103] and conveyed two of the resulting parcels to the Abbey in 1975 [Note 104] and 1985 respectively. [Note 105] The third parcel was conveyed to Tosy in 1988. [Note 106]

The defendants do not contest these conveyances. Rather, they argue that the disputed parcel remained with their mother after the last conveyance to Tosy, to be conveyed to them thereafter, under the 1998 deed. [Note 107] However, this court is satisfied that Mrs. Burnett retained none of the approximate nine acre parcel after the respective conveyances to the Abbey, Pettis and Tosy. See in this regard confirmatory testimony of Attorney Wright and Mr. McKenzie, alike. [Note 108]

Both the Gilmore Pasture and the 80 Rod Parcel were conveyed by the same deeds from 1942 forward. George McGregor came into ownership of both parcels, [Note 109] and after his death the parcels were conveyed together. [Note 110] Prior to 1942, each parcel had a distinct chain of title. The Gilmore Pasture was previously known as the land of Hittenger, [Note 111] Ward, [Note 112] Cheever, [Note 113] Gilmore, [Note 114] and Day. [Note 115] The 80 Rod Parcel was previously known as the land of Coop, [Note 116] Smith, [Note 117] Zimmerman, [Note 118] Somersall, [Note 119] Farnum, [Note 120] and Blake. [Note 121]

A. The Gilmore Pasture

The parcel of land conveyed to Ms. Burnett has boundaries which are determined by the deed received from her father, Napoleon Gladu. [Note 122] The plan prepared for Mrs. Burnett by Mr. Szpila shows the outer boundaries of the Burnett Parcel. [Note 123] Mr. McKenzie testified that the stone walls shown as the northerly boundary of the Gilmore Pasture on the Szpila Plan remain in place. [Note 124] The parties concur that the Szpila plan depicts the parcel that Mrs. Burnett received as described in her deed. [Note 125] However, Peter Burnett contends that his mother actually received more land that is not described by the bounds set out in the deed, as her father showed her the bounds of the property she was purchasing by walking the property with her. [Note 126] Mr. Burnett alleges that a deed in his mother’s chain of title, specifically the Gilmore to Cheever deed in 1835, expands the amount of land to which his mother took title, notwithstanding the description in the deed she received from her father. [Note 127]

Peter Burnett also argues that the 1821 Probate Will of Samuel Day is evidence that the Gilmore Pasture should include more land. [Note 128] The language in that document states that the conveyance includes “[o]ne other lot called the Cheever Pasture & Orchard lying on the north easterly side of the road leading from David Grant’s to Elias Cheever’s and contains twelve acres and fifty five rods by estimation, and is bound on said last mentioned road southerly and westerly from the original house lot of Fisher Day to the road leading to Samuel Guild’s then bound northerly on said Samuel Guild’s road and of Edward Gay to land set off to Fisher Day, then bound easterly and southerly on said Fisher Day’s land to the Elias Cheever road first mentioned.” [Note 129]

Mr. Burnett alleges that the intent of the grantor was to convey two parcels, one called the “Cheever Pasture” and another called the “Orchard,” and the acreage call simply did not include the 4 acres of the Orchard, thus rendering the Gilmore Pasture alone, at approximately 13 acres. [Note 130] After his mother conveyed out 9.87 acres, [Note 131] there would therefore remain approximately three acres that Mrs. Burnett claimed to have owned and to have passed down to her sons, of which the disputed area is a part. [Note 132] Richard Burnett offered a less coherent argument alleging that the use of abutters as monuments allows for the Gilmore Pasture to constitute a greater area than is set out in the deed. [Note 133] This court is not persuaded by the arguments proffered by the defendants.

When claiming property, as the defendants do here, a party must recover on the strength of its own title, not due to a weakness in the title held by the adverse party. See Stephanick v. Fortuna, 222 Mass. 83 , 87 (1915). “The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998); see Suburban Land Co. v. Billerica, 314 Mass. 184 , 189 (1943); Barchenski v. Pion, 9 Mass. App. Ct. 896 (1980). The plain language of Mrs. Burnett’s deed makes it clear that Mrs. Burnett received a certain amount of land under her deed - 8 and a half acres and twenty rods – bounded as described in her deed. [Note 134] Although she may have believed that she took title to a larger parcel, her understanding is immaterial when considering the language of the deed. A mistaken or vague understanding of the proper boundaries of one’s parcel does not increase one’s holdings where the deeds distinctly describe the parcel being conveyed. See Whiting v. Dewey, 15 Pick. 428 , 434 (1834) (“Very little stress is to be placed on words of recital and general description as to the extent of a conveyance when there is a particular description of the lands conveyed in clear and unambiguous language.”). The plain language of the deeds contradicts Mr. Burnett’s’ position.

The principles governing the interpretation of a deed are not dissimilar from those governing contract interpretation. In the case of the latter, “[a]n interpretation which gives a reasonable meaning to all of the provisions of a contract is to be preferred to one which leaves a part useless or inexplicable.” Jacobs v. United States Fid. & Guar Co., 417 Mass. 75 , 77 (1994). This court must thus determine which interpretation is most reasonable and most closely comports to the language of the deeds. The 1821 Probate Will of Samuel Day explicitly states that only one lot is being transferred. [Note 135] This court believes that it is more reasonable to interpret the deed language as conveying one parcel called the “Cheever Pasture and Orchard” rather than two parcels, the “Cheever Pasture” and the “Orchard.” The entire parcel was 13 acres, which, after the conveyance out of the Parking Lot Parcel, left approximately nine for the conveyance to Mrs. Burnett. [Note 136]

Peter Burnett further argues that an earlier deed in the chain of title to the Gilmore Pasture with a larger acreage call demonstrates that the Gilmore Pasture originally included more land. [Note 137] He claims that the subsequent deeds carried forward this error, which is dispositive of the matter. Mr. Burnett points to the 1823 deed from Day to Gilmore which purports to convey a parcel “containing thirteen acres be the same more or less bounded as follows beginning at the northwest corner of said lot on the road – thence bounded north as the wall now stands on land of Edward Gay till it comes to corner of wall – thence making an angle south and east as the wall now stands – bound east on land of Nathan Pierce till it comes to the north line of land sold to George Cargill – thence moving west bound south on land of G. Cargill till it comes to the road leading from David Grants to Elias Cheevers – thence bound south and west on said road till it comes to the first mentioned corner.” [Note 138]

The land of Edward Gay is the Abbey Parcel. [Note 139] The road referenced is Arnold Street. [Note 140] The property referred to as that of G. Cargill is the land of Fisher Day that abutted the Gilmore Pasture to the south. [Note 141] Mr. Burnett is correct that this conveyance constitutes approximately thirteen acres. [Note 142] The court notes that the area call is not dispositive. Utilizing the abutters as monuments would determine the precise acreage. Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2004) (“[D]escriptions by area seldom are a controlling factor.”). However, it is correct that this conveyance included more land than Mrs. Burnett received. This is not the final deed, however, and it cannot be considered in isolation.

The next deed in the Gilmore Pasture chain of title, the 1835 Gilmore to Cheever deed states that it conveys a parcel “containing by estimation nine acres, be the same more or less, and is bounded as follows, viz.; beginning at the northwest corner of said lot on the road leading by Elias Cheever’s to Edward Gay’s, thence bounded northerly on Edward Gay’s land as the wall now stands till it comes to a corner of the wall by E. Grant’s land, thence making an angle south and east, as the wall now stands, bounded easterly on Ellery Grant’s land, till it comes to the north line of Rhoades Sheldon’s land, thence westerly bounded Southerly on said Sheldon’s land to the road leading from said Sheldon’s to Elias Cheever’s then south on said road till it comes to a corner of the wall by the orchard, thence bounded westerly on said orchard as the wall now stands to stake and stones for a corner, thence bounded southerly on my own land, as the wall now stands to the last mentioned road, thence bounded westerly on sd. Road to the first mentioned bound.” [Note 143]

Edward Gay’s land is the Abbey Parcel. [Note 144] Ellery Grant’s land borders the Gilmore Pasture to the east. [Note 145] The road that is referenced is Arnold Road. [Note 146] Rhoades Sheldon’s land is the property that abuts the Gilmore Pasture to the south. [Note 147] Although this acreage call is significantly less than in the prior deed, the southwest portion of the property described in the 1823-deeded property was subdivided out; in 1854 Gilmore conveyed to Guild a four acre parcel of land that he cut out of the larger original Gilmore Pasture Parcel. [Note 148] This explains the lesser area of the Gilmore Pasture conveyed to Mrs. Burnett and matches the boundary calls found in subsequent deeds. This court is not persuaded that Mrs. Burnett took title to any more than the 8.5 acres and 20 rods in the Gilmore Pasture described in her deed and as shown on Exhibit 17.

B. The 80 Rod Parcel

The 80 Rod Parcel was created under the 1856 deed from Blake to Farnum, and is therefore also referred to as the Farnum Parcel. [Note 149] It was subdivided out of the Abbey Parcel as described in the exception contained in the 1865 Blake to Cole deed. [Note 150] The 80 Rod Parcel directly abuts the Gilmore Pasture [Note 151] and was originally described thusly: “[b]eginning on said road [Arnold Road] at a corner of wall on land of Otis G. Cheever the line running on land of said Cheever as the wall now stands S. 73°E. ten rods twenty links to a turn in the wall thence N. 75° E. two rods to a stake by the wall thence N. 20° W. 15 rods two links to a stake by the wall at the road thence on said road 12 ½ rods to the first mentioned bound.” [Note 152]

This is the same point of beginning as that in the deed that first describes Cheever’s land as the Gilmore Pasture. [Note 153] The first call refers to a wall along Cheever’s land and Mr. McKenzie testified that the northerly boundary wall on Exhibit 18 is the boundary line between the 80 Rod Parcel which was carved out of the Abbey property and the Gilmore Pasture. [Note 154] This is consistent with the court’s determination that all the property Mrs. Burnett obtained from her grantor is depicted on Exhibit 17.

The parcels were subsequently subdivided and conveyed, [Note 155] with Mrs. Burnett retaining no land. [Note 156] Mrs. Burnett’s 1998 deed to Peter and Richard Burnett purported to convey, among other parcels, “a tract or parcel of land with buildings thereon situated in said Wrentham on the Easterly side of the road leading from the residence formerly of Otis G. Cheever to the Mount School, containing eighty (80) rods more or less, bounded and described as follows: Beginning on said road the line running on land of Otis G. Cheever as wall now stands South 73 degrees East, ten (10) roads Twenty (20) links to a bend in the wall; thence North 75 degrees East ten (10) rods to a southerly wall; thence North Twenty (20) degrees West fifteen (15) rods and two (2) links to said road; thence on said road twelve and one half (12 ½) rods to the point of beginning.” This court is satisfied that to the extent she sought to convey the above described parcel, i.e. land that she did not then own, that purported conveyance was of no effect and inoperative. See Marshall v. Francis, 332 Mass. 282 , 288 (1955) (stating that a grantor can only convey what he owns, and no more).

V. The Southerly Line of the Abbey Parcel

The location of the last unknown abutters, the 80 Rod Parcel and the Gilmore Pasture, having been determined, the Abbey’s southern line can now be determined. This court concludes that the Abbey’s southern boundary line is as it is shown on the McKenzie Plan, [Note 157] which closely adheres to the depiction of the Abbey Parcel on the Swanson Plan. [Note 158]


Reliance upon perceived ambiguities in the Abbey’s chain of title will not suffice to afford the defendants more land than is called for in their own relevant deeds. See Stephanick v. Fortuna, 222 Mass. 83 , 87 (1915). Whatever the court’s conclusions regarding the boundaries of the Abbey Parcel, they are separate and apart from the determination as to the amount of land in the Gilmore Pasture. The 80 Rod Parcel abuts the Gilmore Pasture to the north and borders on the Abbey Parcel on the disputed area. This court is satisfied that the Gilmore Pasture and the 80 Rod Parcel are located as shown on the McKenzie Plan, which is consistent with the Rolling Realty Plan and the Swanson Plan. The Gilmore Pasture never included the disputed parcel. At no time did the Burnetts own the disputed parcel. The only land that the Mrs. Burnett ever owned is depicted on Exhibit 17 and she subsequently conveyed all of the said property to the Abbey, Pettis, and Tosy. Therefore Peter and Richard Burnett never held title to the disputed area. As they have failed to meet their burden under a try title case, this court concludes that the plaintiffs holds title to the disputed area free and clear of any claim by the defendants.

Judgment to enter accordingly,


[Note 1] This court takes judicial notice of the Decision and Judgment in the Superior Court action. See Jarosz v. Palmer, 436 Mass. 526 , 530 (2002) (“[A] judge may take judicial notice of the court's records in a related action.”).

[Note 2] The Plaintiff and Defendant Peter Burnett filed their post-trial briefs on June 7, 2013 after many assented-to extensions. The court appreciates the thorough nature of both briefs, given the complexity of the issues involved in the instant action.

Defendant Richard Burnett filed a “post-trial” brief as well, although it lacked anything that could properly be described as a “brief” and instead consisted of additional documentation, apparently for the court to take into consideration in making its determination. To the extent any of the submitted material is duplicative of the evidence submitted at trial, this court has duly considered it already; any additional documentation has been disregarded in this court’s analysis as improvidently provided.

[Note 3] I have made references to testimony that I credit.

[Note 4] See Trial Transcript (“Tr.”) Volume (“Vol.”). 1, 55:21-24.

[Note 5] Id. at Vol. 1, 56:16-18.

[Note 6] Id. at Vol. 1, 57-58.

[Note 7] See Exhibit (“Ex.”) 13; Tr. Vol. 1, 58:8-14.

[Note 8] See Ex.

[Note 9] See Ex.

[Note 10] See Ex. 13.

[Note 11] See Ex. 13.

[Note 12] See Ex. 13.

[Note 13] Tr. Vol. 1. 138:19-23; Tr. Vol. 1, 205:15-20; see Chalk 6C.

[Note 14] See Ex. 3; Chalk 6C.

[Note 15] See Ex. 11.

[Note 16] See Ex. 13.

[Note 17] See, e.g., Chalk 6C.

[Note 18] See Chalk 6C.

[Note 19] See Sup. Ct. Decision, Case No. 95-2361B; see also Ex. 12.

[Note 20] See Sup. Ct. Decision, Case No. 95-2361B; see also Ex. 12.

[Note 21] See Ex. 12.

[Note 22] See Complaint.

[Note 23] See Answer and Counterclaim.

[Note 24] The plaintiff need also show possession of the disputed land, but possession not being contested, the court will dwell on it no further.

[Note 25] See infra Part V.

[Note 26] See Ex.

[Note 27] See Ex.

[Note 28] See Ex.

[Note 29] See Ex.

[Note 30] See Ex.

[Note 31] See Ex.

[Note 32] See Ex.

[Note 33] See Ex.

[Note 34] See Ex.

[Note 35] See Ex.

[Note 36] See Ex.

[Note 37] See Ex.

[Note 38] See Tr. Vol. 1, 123:4 to 124:3; Tr. Vol. 1, 169:8-13.

[Note 39] See Ex. 13.

[Note 40] See Ex.; Ex.

[Note 41] Ex.

[Note 42] See Ex. 9.

[Note 43] Tr. Vol. 1, 108:11-18.

[Note 44] Tr. Vol. 1, 113:6 to 115:8.

[Note 45] Tr. Vol. 1, 114:21 to 115:8.

[Note 46] Tr. Vol. 1, 116:5 to 117:4.

[Note 47] Tr. Vol. 1, 115:20 to 116:4; see Ex. 20.

[Note 48] See Tr. Vol. 1, 177:14-24.

[Note 49] Tr. Vol. 1, 191:2-14.

[Note 50] Tr. Vol. 1, 191:2-14.

[Note 51] See Ex.; Ex.; Ex.

[Note 52] See Ex.

[Note 53] See Tr. Vol. 3, 98:9-23.

[Note 54] See Tr. Vol 1. 123:12 to 124:3; Tr. Vol. 1, 185:10-18; Tr. Vol. 2, 53:21 to 54:17.

[Note 55] Ex.

[Note 56] See Tr. Vol. 2, 53:21 to 55:7.

[Note 57] See Ex.

[Note 58] See Ex.

[Note 59] Tr. Vol. 1. 138:19-23; Tr. Vol. 1, 205:15-20; see Chalk 6C.

[Note 60] See Tr. Vol. 2, 99:14 to 100:20.

[Note 61] See Tr. Vol. 2, 145:17 to 146:7.

[Note 62] See id.

[Note 63] See Tr. Vol. 2, 100:21-24.

[Note 64] Ex.

[Note 65] Tr. Vol. 2, 102:3 to 103:5.

[Note 66] See Ex. 11.

[Note 67] See Chalk 6C.

[Note 68] See Tr. Vol. 2, 110.

[Note 69] See Chalk 6C.

[Note 70] See Tr. Vol. 1, 118:3-22.

[Note 71] See Ex. 13.

[Note 72] See Tr. Vol. 1, 110:6-21.

[Note 73] Tr. Vol. 1, 110:22 to 111:12.

[Note 74] Tr. Vol. 1, 189:12-17.

[Note 75] Tr. Vol. 1, 192:4-10.

[Note 76] Ex. 11.

[Note 77] Exs. 15 and 16.

[Note 78] Ex. 13.

[Note 79] See Exs. 11, 13, 15, 16.

[Note 80] Tr. Vol. 1, 189:3 to 190:14.

[Note 81] See Tr. Vol. 1, 118:3-22.

[Note 82] See Tr. Vol. 1, 120:1 to 121:24.

[Note 83] Ex.

[Note 84] The parties appear to be in agreement regarding the location of the properties on the west side of Arnold Street. Tr. Vol. 3, 15:3 to 159:12.

[Note 85] See Ex. 11; Exs. to

[Note 86] See Ex. 13.

[Note 87] See Ex.

[Note 88] See Exs. to

[Note 89] See Exs. to

[Note 90] See Exs. to

[Note 91] See Exs. to

[Note 92] See Ex.

[Note 93] See Tr. Vol. 2, 59:15 to 60:6; Chalk 6F.

[Note 94] See Ex.

[Note 95] See Ex.

[Note 96] Exs. to

[Note 97] Exs. to

[Note 98] See Ex.; Ex.; Ex. 17.

[Note 99] See Ex.

[Note 100] See Ex.

[Note 101] See Ex.;

[Note 102] Ex.

[Note 103] See Ex.; Ex.; Ex.

[Note 104] Ex.

[Note 105] Ex.

[Note 106] Ex.

[Note 107] See Tr. Vol. 3, 8:19 to 9:9.

[Note 108] See Tr. Vol. 1, 140:9-15; Tr. Vol. 1, 201:17 to 202:4.

[Note 109] See Ex.; Ex.

[Note 110] See Ex.; Ex.

[Note 111] See Ex. to

[Note 112] See Ex.

[Note 113] See Ex. to

[Note 114] See Ex.

[Note 115] See Ex. to

[Note 116] See Ex.

[Note 117] See Ex.

[Note 118] See Ex.

[Note 119] See Ex.

[Note 120] See Ex.

[Note 121] See Ex.

[Note 122] See Ex. The deed encompasses a transfer of both the Gilmore Pasture, and the 80 Rod Parcel as demonstrated at Ex. This court will refer solely to the deed at Ex. for purposes of clarity.

[Note 123] See Ex. 17.

[Note 124] Tr. Vol. 1, 192:4-13.

[Note 125] See Vol. 2, 151:1-17.

[Note 126] Tr. Vol. 3, 164:23 to 165:5.

[Note 127] See Tr. Vol. 3, 19:8-13.

[Note 128] See Tr. Vol. 20:19 to 21:23.

[Note 129] Ex.

[Note 130] Tr. Vol. 3, 23:19 to 24:3. Therefore the conveyance of the Parking Lot Parcel (the Orchard) did not diminish his mother’s grant. See Tr. Vol. 3, 21:8 to 21:3.

[Note 131] Tr. Vol. 3, 6:13 to 8:7.

[Note 132] See Tr. Vol.3, 9:3-9; Ex.

[Note 133] Tr. Vol. 1, 162:1-21.

[Note 134] Tr. Vol. 1, 167:23 to 168:8.

[Note 135] Ex.

[Note 136] See Ex.

[Note 137] See Ex.

[Note 138] Ex.

[Note 139] See supra.

[Note 140] See Ex. 17.

[Note 141] See Tr. Vol. 2, 71:7-15.

[Note 142] See Tr. Vol. 3, 17:5-7.

[Note 143] See Ex.

[Note 144] See supra.

[Note 145] See Ex. 11.

[Note 146] See Ex. 11.

[Note 147] See Ex. 11.

[Note 148] See Ex.

[Note 149] See Ex.

[Note 150] See Ex.

[Note 151] See Tr. Vol. 1, 205:15-20; Tr. Vol. 2, 145:17 to 146:7.

[Note 152] Ex. Although some of the subsequent deeds listed the second call as 10 rods, not 2, all parties agree that this is an error. See Tr. Vol. 2, 174:17 to 175:3.

[Note 153] See Ex.

[Note 154] Tr. Vol. 1, 201:5-19.

[Note 155] See Ex.; Ex.

[Note 156] Tr. Vol. 1, 140:9-15.

[Note 157] See Ex. 13.

[Note 158] See Ex. 11.