Bernier v. Fredette

• Decision Date: 06 May 2014
• Docket Number: No. 12–P–1684.,12–P–1684.
• Citation: 8 N.E.3d 769,85 Mass.App.Ct. 265
• Court: Appeals Court of Massachusetts
• Parties: Bryant BERNIER & another v. Norman FREDETTE & others.

85 Mass.App.Ct. 265

8 N.E.3d 769

Bryant BERNIER & another¹

v.Norman FREDETTE & others.²

No. 12–P–1684.

Appeals Court of Massachusetts,

Suffolk.

Argued Nov. 6, 2013.

Decided May 6, 2014.

Mark Bobrowski, Concord, for David Bechtold.

Richard E. Burke, Jr., New Bedford, for Norman Fredette & another.

Marc R. Deshaies, New Bedford, for the plaintiffs.

Present: KANTROWITZ, GRAHAM, & MEADE, JJ.

GRAHAM, J.

This boundary dispute originates from deeds granted beginning in 1870 and requires us to locate the common boundary between the plaintiffs' and defendants' Acushnet properties. The plaintiffs commenced this action seeking to remove a cloud on their title pursuant to G.L. c. 240, §§ 6–10, seeking a declaration of the correct location of their common boundary, and seeking damages for trespass and nuisance. The defendants filed counterclaims for trespass and nuisance.

Following a three-day trial and a view of the relevant properties and monuments, the Land Court judge adopted the boundary proffered by the plaintiffs and awarded them nominal damages for trespass and nuisance. The judge expressly limited the judgment to the parties named and served in this proceeding. On appeal, the parties do not pursue any issue regarding their trespass and nuisance claims, and only the boundary dispute is before us on the defendants' appeal. For the reasons that follow, we affirm the decision of the Land Court judge.

Background. All the property at issue is located off Hathaway Road in Acushnet and originally was owned by Samuel Wing, whose heirs subdivided the property and conveyed separate parcels over time. The parcels are referred to by the parties pursuant to lot numbers designated on Acushnet Assessors' Map 14 (map 14). The current map 14 is not in the record, but the multiple plans submitted by the parties have adhered to the lot numbers set forth on map 14. The judge attached to his decision the Bernier trial plan of lot 13 and lot 16 submitted by the plaintiffs following trial.³ To orient the reader and for ease of reference, we attach the relevant part of the trial plan as an Appendix to this opinion.⁴

Samuel Wing's substantial holdings included, at a minimum, what is now identified as lots 8, 13, 16, and 20 on the Appendix.The plaintiffs, Bryant and Judith Bernier, own lot 13, and the defendants each own subdivided portions of lot 16 that abut lot 13 on their western boundaries. Defendant David Bechtold owns the northern portion of lot 16 and defendants Norman and Marie Fredette own the southern portion of lot 16.⁵ The Appendix shows the long triangular shaped disputed area of land along the parties' common boundary.⁶

History of the Properties. The first conveyance of Wing's holdings was of lot 7 by deed dated May 11, 1870. Lot 7 is located far to the west of the lots at issue and does not abut them. Next, on May 13, 1870, the Wing estate conveyed two lots by separate deeds, lot 20 to George L. Russell (recorded March 13, 1871) and lot 16 to Samuel B. Hamlin (recorded October 24, 1873). As described in the deeds, the southeast portion of lot 16's eastern boundary and lot 20's western boundary share a common directional bound (south one and one-half degrees west) and are shown as abutting: in the Appendix. In addition, both lots' southern boundaries run from east to west four and three-quarter degrees south. The deeds do not specify whether lot 20 and lot 16 abut one another; while the defendants contend that the lots do not abut, the deed descriptions provide that the southern portion of the eastern boundary of lot 16 at least runs parallel to the western boundary of lot 20 and their southern lot lines run at least parallel to one another. The judge found that the lots do abut one another.

The Wing heirs conveyed lot 8 on January 4, 1899, and, finally, lot 13, the next day, on January 5, 1899. Lot 7 abuts lot 8 on lot 7's eastern bound, lot 8 abuts lot 13 on lot 8's eastern boundary, and lot 13 abuts lot 16 on lot 13's eastern boundary. The May 13, 1870, deed, the content of which is set forth in the footnote,⁷ created the boundary between lot 16 and the remainder of Wing's land, now represented by the eastern boundary of lot 13. The judge found that because lot 16 is the senior lot, its location on the ground controls the boundary with lot 13.

The plaintiffs and defendants take different approaches to locating the boundary between lot 16 and lot 13 on the ground. The plaintiffs started with the deed description for lot 16 and located four of the five monuments on the ground. They verified the direction of the northern and western boundaries by examining abutter deeds, including the deed to lot 20, for consistency along the southern boundary. Explaining that creation of a cranberry bog likely disrupted the fifth monument, they admitted they could not locate that monument on the ground. Consequently, after ascertaining the northern, eastern, and southern boundaries, they relied on the distance and directional calls in the deed to locate the western boundary with lot 13. As placed by the plaintiffs, the disputed property lies to the west of the boundary and is owned by the plaintiffs.

The defendants, on the other hand, first contend that errors in deeds to the western lots, particularly lot 8, cause lot 13, in its entirety, to shift to the west. Next, they purport to locate the western boundary of lot 16, not by surveying all of the monuments described in lot 16, but by focusing on the two courses that comprise the western boundary. They concentrate on the fifth monument, described in the deed as a stake and stones at “the northeast corner of Edward G. Dillingham's land.” The Dillingham land in 1870 was comprised of a large lot, partially shown as lots 21 and 22: in the Appendix. The deed description to lot 22 contains abutter calls on its northern boundary but some metes and bound descriptions on its southern and eastern boundaries. Contending that the deed to the Dillingham land was incorporated by reference into the deed to lot 16, the defendants' surveyor purported to locate several of the southern bounds and extrapolated from those the location of Dillingham's northeast corner, confirmed by locating a stake and stones some 100 feet west of the location proposed by the plaintiffs. Pursuant to this line, the disputed property is part of lot 16.

Discussion. The location on the ground today of what was described in the 1870 deed of lot 16 presents a question of fact, Baker v. Miller, 284 Mass. 217, 222, 187 N.E. 699 (1933), to be decided “on all the evidence, including various surveys and plans.” Hurlbut Rogers Mach. Co. v. Boston & Maine R.R., 235 Mass. 402, 403, 126 N.E. 789 (1920). “Any competent evidence may be considered in determining the true boundary line between adjoining owners.” Holmes v. Barrett, 269 Mass. 497, 500, 169 N.E. 509 (1929) ( Holmes ). It was for the judge to decide whether upon all the testimony and evidence it was more accurate to rely on one expert over another or ancient plans over more recent plans. Id. at 502, 169 N.E. 509.

“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.” Patterson v. Paul, 448 Mass. 658, 665, 863 N.E.2d 527 (2007), quoting from Sheftel v. Lebel, 44 Mass.App.Ct. 175, 179, 689 N.E.2d 500 (1998). “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.” Paull v. Kelly, 62 Mass.App.Ct. 673, 680, 819 N.E.2d 963 (2004). Whenever, in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern. Baker, supra at 220, 187 N.E. 699. Generally speaking, monuments, including a stake and stones, govern over distances. Temple v. Benson, 213 Mass. 128, 132, 100 N.E. 63 (1912). “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.” Ibid. “If the monument cannot be found and its location cannot be made certain by evidence, the measurements and other provisions of the deed are controlling.” Holmes, supra at 500, 169 N.E. 509. “The weight to be given to the fact that certain terms of the deed would be contravened by the location of the [boundary line] was for the judge to decide.” Id. at 502, 169 N.E. 509.

It was the judge's task to determine which, if any, of the parties' approaches correctly located the boundary between lot 16 and lot 13, keeping in mind that the plaintiffs bore the burden of proving by a preponderance of the evidence that they own the disputed property. In reviewing the judge's decision, we note that “[a]n appeal from the Land Court brings before this court only questions of law apparent upon the record. Findings of fact cannot be revised.” Waltham Resources Corp. v. Kennedy, 346 Mass. 765, 765, 190 N.E.2d 870 (1963). “So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it.” Demoulas v. Demoulas Super Mkts., Inc. 424 Mass. 501, 510, 677 N.E.2d 159 (1997) ( Demoulas ).

With these principles in mind, we first note that we agree with the judge that resolution of this dispute does not require us to locate lots 7 and 8, or lot 13 other than its common bound with lot 16, on the ground. While it is true that lot 7 was conveyed before lot 16, it was quite distant from lot 16 and never abutted it or lot 13. Any errors in the descriptions of lot 7 do not bear on lot 16's western boundary with lot 13. The defendants' insistence that,...