Holmes v. Barrett

• Decision Date: 06 January 1930
• Citation: 169 N.E. 509,269 Mass. 497
• Parties: HOLMES et al. v. BARRETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 497

169 N.E. 509

HOLMES et al.

v.BARRETT.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 6, 1930.

Exceptions from Land Court, Plymouth County; Clarence C. Smith, Judge.

Petition by Joseph H. Holmes and others for registration of land, opposed by Louise S. Barrett. On respondent's exceptions to certain rulings made by judge of land court. Exceptions overruled.Abraham S. Feinberg, of Plymouth, for petitioners.

Fletcher Clark, Jr., of Middleboro, for respondent.

SANDERSON, J.

This is a petition filed in the land court to register title to land in Little Cromesett Neck, in the town of Wareham. The respondent owns land south of and adjoining that of the petitioners, and the sole matter now in dispute is with reference to the location of the southerly boundary of the petitioners' land. Decisions of questions of fact by the land court are final and only questions of law apparent in the record can be reviewed by this court. G. L. c. 185, § 15; Bessey v. Ollman, 242 Mass. 89, 91, 136 N. E. 176;Moss v. Old Colony Trust Co., 246 Mass. 139, 140 N. E. 803;Allen v. Wood, 256 Mass. 343, 348-349, 152 N. E. 617;Crawford v. Roloson, 262 Mass. 527, 160 N. E. 303. The parties agreed that their lands were to be classed in law as ‘wild land’ until within the last three or four years, and it is not contended that either party could have gained a title to the disputed area by adverse possession. See Parker v. Parker, 1 Allen, 245;McDonough v. Everett, 237 Mass. 378, 384,129 N. E. 691.

Conveyances in the petitioners' chain of title describe the most southerly course on the easterly boundary concerning which the controversy in part arises as ‘South 40° East 14 rods to Swift's corner by the meadow,’ or by other designation with the same meaning. The southerly line is described as having a specified course and distance and bounding on the Swift land or line. It is agreed that Swift was the predecessor in title of the respondent and that the Swift line is the northerly line of her property. The judge of the land court decided that the Swift line was at a point which would extend the easterly boundary course referred to about two hundred feet and increase the area called for in the deed to the petitioners by about five acres.

The only exceptions are to statements or rulings made by the judge in the course of his decision. The exception to his ruling, that if there is any variance the monument prevails over the distance, must be overruled. It was accurate as a general proposition of law, and so far as appears the judge did not err in applying it to the facts in the case. Howe v Bass, 2 Mass. 380, 3 Am. Dec. 59;Clark v. Munyan, 22 Pick. 410,33 Am. Dec. 752;Percival v. Chase, 182 Mass. 371, 377, 65 N. E. 800;Stefanick v. Fortona, 222 Mass. 83, 85, 109 N. E. 878. The land of an adjoining proprietor may be a monument. Flagg v. Thurston, 13 Pick. 145;George v. Wood, 7 Allen, 14; Percival v. Chase, supra; Goyette v. Keenan, 196 Mass. 416, 82 N. E. 427. The location of a monument which is in dispute may be established by extrinsic evidence. Brimmer v. Proprietors of Long Wharf, 5 Pick. 131, 138;Clark v. Munyan, 22 Pick. 410, 416,33 Am. Dec. 752;White v. Bliss, 8 Cush. 510, 512;Morse v. Rogers, 118 Mass. 572, 578.Temple v. Benson, 213 Mass. 128, 132, 100 N. E. 63;Van Ness v. Boinay, 214 Mass. 340, 101 N. E. 979;Webber v. Cox, 256 Mass. 595, 153 N. E. 457; Any competent evidence may be considered in determining the true boundary line between adjoining owners. Frost v. Spaulding, 19 Pick. 445,31 Am. Dec. 150;Barrett v. Murphy, 140 Mass. 133, 2 N. E. 833. ‘The parol evidence identifies the subject on which the deed operates, and then the estate passes by force of the deed.’ Waterman v. Johnson, 13 Pick. 261, 268. 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. Wilson v. Hildreth, 118 Mass. 578, 582;Temple v. Benson, 213 Mass. 128, 100 N. E. 63. An exception to the rule that courses and distances must yield to monuments would exist in case a strict adherence to monuments would lead to a construction plainly inconsistent with the intention of the parties as expressed by all the terms of the grant. Murdock v. Chapman, 9 Gray, 156, 158;Davis v. Rainsford, 17 Mass. 207; Morse v. Rogers, supra; Temple v. Benson, 213 Mass. 128, 132, 100 N. E. 63.

In the early part of the eighteenth century the whole area comprising the neck was divided by partition proceedings into four lots numbered respectively from north to south, one, two, three and four. The petitioners' land is the southerly part of lot one, the land of the respondent the northerly part of lot two, and the dividing line between those lots in this partition is the dividing line now in dispute. For the purpose of making the partition, a base line was established beginning at its northerly point at a stake and stones a little westward of the house at the head of the neck and running by a course south twenty-nine degrees east. The southerly lines of lots one, two and three intersect this base line at points ascertained by laying off on the line from north to south the successive distances of one hundred eight, sixty-four and seventy-two rods. The lines marking the southerly boundary of lots one and two are described as straight but not as parallel to each other. The line marking the southerly boundary of lot three is described as following one course easterly of the base line and a course varying from the latter by one degree on the westerly side of this line. But a civil engineer testified that he believed he knew the...