Cuddy v. Eldredge Pub. Library

• Decision Date: 22 June 2017
• Docket Number: 16-P-900
• Citation: 91 Mass.App.Ct. 1129,86 N.E.3d 512 (Table)
• Court: Appeals Court of Massachusetts
• Parties: Paul CUDDY, trustee,& another v. ELDREDGE PUBLIC LIBRARY & others.

91 Mass.App.Ct. 1129

86 N.E.3d 512 (Table)

Paul CUDDY, trustee,¹ & another²

v.ELDREDGE PUBLIC LIBRARY & others.³

16-P-900

Appeals Court of Massachusetts.

Entered: June 22, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from two cases that were consolidated below⁵ and that, in broad summary, sought to determine the ownership and the boundaries of two adjoining parcels of land in Harwich. After a thirteen-day nonjury trial, a judge of the Superior Court declared that (1) the so-called "Ryder" parcel is owned by Paul Cuddy and Paul R. O'Connell, III, as trustees of the Quason Realty Trust (trustees),⁶ (2) the so-called "Smith" parcel is owned by the Eldredge Public Library (library) (having an undivided five-eighths interest), the estate of Charlotte E. Webber (having an undivided three-sixteenths interest), William S. Follett (having an undivided three-thirty-seconds interest), and the Norman A. Keyes Trust (having an undivided three-thirty-seconds interest), and (3) the location of the common boundary between the Ryder and Smith parcels. Postjudgment, Peter S. Farber, the attorney who represented the library under a contingent fee agreement, sought to intervene individually in order to assert a claim against the personal representative of the estate of Charlotte Ellen Smith Webber and the beneficiaries of the Norman Keyes Trust (collectively, the interveners) and possibly Follet under a theory that Farber's representation of the library had resulted in a common benefit for which they should, under equitable principles, bear their fair portion of the library's fees and costs. That motion was denied.

The library and Farber have appealed. The library contends that (1) the judge erroneously rejected the thirteen-acre call contained in an 1828 deed in favor of the sixteen-acre call contained in an 1856 deed for the same parcel, (2) the judge was required to determine all boundaries of the Smith parcel, not simply the common boundary between the parcels, regardless of the fact that the other abutters were not parties to the litigation, and (3) the judge should have, using equitable principles, awarded the library a portion of its fees and expenses against the interveners. Farber argues that the judge abused his discretion in denying Farber's postjudgment motion to intervene. We affirm.

"Where, as here, a judge acts as the trier of fact, his or her factual findings must be accepted on appeal unless shown to be clearly erroneous." R.M. Packer Co. v. Marmik, LLC, 88 Mass. App. Ct. 654, 655 n.2 (2015), citing Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). Moreover, where, as here, the library and Farber (as appellants) have not included the trial transcript in the record appendix, the judge's "findings are in essence unreviewable." Ibid. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kunen v. First Agric. Natl. Bank of Berkshire County, 6 Mass. App. Ct. 684, 689-691 (1978) ; Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995) ; Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004).

The library argues that it was an error of law for the judge to reject the thirteen-acre call in the 1828 deed into Joseph and Zenas Atkins for the so-called "panhandle lot" in favor of the sixteen-acre call contained in an 1856 deed into Samuel Ryder, Sr., for the same parcel.⁷ However, the evaluation of which of the two descriptions is more reliable was a factual determination for the judge to make in light of the circumstances, which included (as the judge noted) the relaxed documentation practices concerning woodlots on Cape Cod in the past (and particularly during the nineteenth century as their value declined), the absence of reliable or complete monumentation, the trial testimony (which, as we noted, cannot be reviewed because it is not in the record appendix), and the loss of documents resulting from the 1827 destruction by fire of the Barnstable County registry of deeds, and—of particular importance here—the history of the various transfers, as well as the points in time at which, and the identities of the parties among whom, they occurred. See Paull v. Kelly, 62 Mass. App. Ct. 673, 679 (2004), quoting from Hurlbut Rogers Mach. Co. v. Boston & Me. R.R., 235 Mass. 402, 403 (1920) ("When a boundary line is in controversy, it is ‘a question of fact on all the evidence, including the various surveys and plans ... where the true line originally ran, and was to be established’ "). Central to the judge's conclusion was his subsidiary finding that the deed into Ryder, Sr., for the panhandle lot included the third and fourth lots of the first division of the Kendrick, Sr., tract. That subsidiary finding, together with the inference the judge drew concerning the likelihood that it was Solomon Kendrick, rather than Nathan Kendrick, who bought Thomas Kendrick, Jr.'s, fourth lot, were sufficient bases upon which the judge could conclude that the sixteen-acre description in the 1856 deed was more reliable. "The location on the ground today of what was described in [an 1800's deed] presents a question of fact to be decided ‘on all the evidence, including various surveys and plans.’ ‘Any competent evidence may be considered in determining the true boundary lines between adjoining owners.’ 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." Bernier v. Fredette, 85 Mass. App. Ct. 265, 268 (2014) (citations omitted).

The library next argues that the judge abused his discretion by declining to declare all boundaries of the Smith parcel, including those shared with nonparty abutters. The library has cited no legal authority for the proposition that the judge was required to...