Netsky v. Sewer
| Decision Date | 16 May 2002 |
| Docket Number | CIVIL NO. 237/99. |
| Citation | 205 F.Supp.2d 443 |
| Parties | Martin B. NETSKY and Tangara E. Netsky, Plaintiffs, v. Violet SEWER and all other persons claiming an interest in parcels 6E-1 and 6E-2 Estate Hansen Bay, St. John, as shown on PWD Drawing D9-1725-T81, Defendants. |
| Court | U.S. District Court — Virgin Islands |
Maria Tankenson Hodge, Esq., Hodge & Francois, St. Thomas, V.I., Attorney for Plaintiffs Martin B. Netsky and Tangara E. Netsky.
Violet Sewer Mahabir, St. John, V.I., Lyle A. Battiste, St. Thomas, V.I., Lorne M. Battiste, Miami, FL, Irvin A Sewer, Wilma Marsh Monsanto, St. Thomas, V.I., Pro Se Defendant.
Karl Percell, Esq., Law Offices of Percell & Hermon-Percell, P.C., St. Thomas, V.I., Administrator for the Estate of James Wellington George.
Presently before the Court are Motions for Summary Judgment filed by Martin B. Netsky and Tangara E. Netsky (hereinafter the "Netskys" or "Plaintiffs"), and one of Defendants, Irvin A. Sewer, ("Defendant"). On February 20, 2002, the Court held a hearing regarding these motions. For the reasons that follow, Defendant's Motion for Summary Judgment is DENIED and Plaintiffs' Motion for Summary Judgment is GRANTED.
This is a quiet title dispute over real property involving two parcels of land located at Parcel Nos. 6E-1 and 6E-2 (), situated in Estate No. 6 Hansen Bay A, East End Quarter, St. John, Virgin Islands, between Plaintiffs and the following Defendants and Intervenors: the Estate of James Wellington George, et al.; Violet S. Mahabir (née Sewer) ("Violet Sewer"); Wilma Marsh Monsanto; Lyle A. Battiste; Lorne M. Battiste; and, Irvin A Sewer. (hereinafter collectively referred to as "Defendants").
In a three-count Complaint filed on December 30, 1999, Plaintiffs seek declaratory relief, the quieting of title, and injunctive relief against Defendants claiming an interest in Parcels 6E-1 and 6E-2, over which Plaintiffs claim that they are the lawful owners. Defendants claim that Plaintiffs' property, as described in the survey under which they took title in 1988 pursuant to a Consent Judgment, actually encroaches into Parcel 6AB, a parcel of land in which Defendants claim to have an undivided interest and which is located directly adjacent to Parcel 6E.
On or about August 30, 1988, Plaintiffs purchased Parcel 6E for $460,000.00 under a deed of the Clerk of the District Court of the Virgin Islands. The deed was issued pursuant to a Consent Judgment of the Court dated April 7, 1988 in a case captioned Hoheb v. Muriel, et al., Civ. No.1983-85. .
In Hoheb, commenced in 1983, the original owners of Parcels 6E-1 and 6E-2 sought to rescind the sale of these parcels and other land in St. John from the Newfound Corporation and Gulf Carribbean Corporation. The plaintiffs in Hoheb were all the heirs of William and Martha George, both then deceased. Under the terms of the Consent Judgment, the Hoheb plaintiffs were required to sell Parcel 6E to provide funds for settlement. Parcel 6E was conveyed by deed to the Clerk of the District Court, as trustee for the parties, to the highest bidder for the property. The Netskys made the highest offer and paid $460,000. . The description of the property conveyed under the Court's judgment was ." The Clerk's deed conveyed title by reference to the same survey, as ordered by the Consent Judgment. . Both the Consent Judgment and the deed from the Clerk of the Court were duly recorded on April 13, 1988, and October 12, 1988, respectively.1
Sometime in 1990, Plaintiffs hired a crew to begin clearing the land and dig post holes to build a fence around the property. . They also hired the original surveyor, Charles Hamilton, to reconfirm his survey which formed the basis for the deed to the Netskys from the Court. ("Hamilton Dep."). Litigation commenced when Violet Sewer confronted Plaintiffs' workmen and asserted that they were working in an area in which she claimed an interest, an area identified by her as belonging to Parcel 6AB. (Dep. of Violet Sewer at 36-37) ("Violet Sewer Dep.").
Hamilton performed two surveys of Parcel 6E: one surveying Parcel 6E in its entirety, (the "Hamilton 1980 Survey"),2 and a subdivision survey of Parcel 6E delineating the boundaries between Parcels 6E-1 and 6E-2 (the "Hamilton 1981 Survey") (hereinafter collectively referred to as the "Hamilton Surveys"). Hamilton duly recorded these surveys in 1980 and 1981 at the Virgin Islands Cadastral Office. (See Hamilton Dep. at 90-91); Netsky v. Sewer, et al., Civ. No. 99-237 (Hr'g Tr. of Feb. 20, 2002 at 5) ("Hr'g.Transcript"). The Hamilton surveys indicate that Parcel 6E directly abuts Parcel 6AB, lying immediately to the west. Hamilton testified that these were the first surveys conducted of Parcel 6E. (Hamilton Dep. at 91).
In addition to the Hamilton Surveys, two other surveys exist. These were performed by a deceased surveyor named Nathaniel Wells. The first is an unrecorded survey of Parcel 6AB dated December 6, 1957 (the "Unrecorded Wells Survey"), which was employed as an evidentiary exhibit in a 1950's quiet title action captioned Alice V. Smith Sewer v. Ernestine Smith, et al., 3 V.I. 457 (1957), in the District Court of the Virgin Islands (hereinafter the "Alice Smith Sewer Lawsuit" discussed infra). . The second is a publicly recorded survey of the parcel occupied by Alice Smith, designated 6ö-1 (the "Wells 6ö-1 Survey" or "Wells Recorded Survey"), which was performed in connection with that action but does not depict either Parcel 6E or 6AB. . The Wells 6ö-1 survey delineates the area actually occupied by Alice Smith that was awarded to her by the Court, and Hamilton cited and reflected them in his survey of Parcels 6E-1 and 6E-2. (See id. at Ex. C); (Hamilton Dep. at 8-9). Hamilton never saw the Unrecorded Wells Survey and did not reflect it in his own survey of Parcel 6AB performed in 1980. (Hamilton Dep. at 82).
Defendants allege that the Hamilton surveys wrongfully depict a portion of Parcel 6AB as belonging to Parcel 6E. They further contend that Hamilton is charged with the knowledge of the 1957 Unrecorded Wells Survey, that it represents the "original" survey of Parcel 6AB, and that he was therefore bound to follow in its footsteps. Defendant Violet Sewer contends that her prepared survey, Map No. D9-6588-T99, filed on August 10, 1998 and recorded at the Virgin Islands Cadastral Office, accurately reflects the boundaries between Parcels 6AB and 6E because it recognizes and incorporates the 1957 Unrecorded Wells Survey as the "original survey."
Plaintiffs contend that because no other recorded survey existed in the Virgin Islands Cadastral Office depicting a survey of Parcels 6E and 6AB, the Hamilton Surveys recorded in 1980 and 1981 represent the original recorded surveys for both parcels. Plaintiffs relied upon the 1981 survey when they purchased Parcels 6E-1 and 6E-2 from the Court in 1988 because there was no contrary survey on record. . As noted above, this dispute arose when Violet Sewer placed fence posts in the ground within the area designated Parcel 6E-2 on the Hamilton Survey and the Netsky deed, thereby leading Plaintiffs to commence this action on December 30, 1999.
Defendants can be categorized into two groups. The first group is comprised of Irvin Sewer and Violet Sewer, who are siblings, and Wilma Marsh Monsanto, their Aunt (for her mother, Genevieve Marsh) who claim by descent from Emilie Roberts (hereinafter collectively referred to as the "Roberts Claimants"). Emilie Roberts, pursuant to the 1913 Agreement, discussed infra, possessed an undivided interest in Parcel 6AB. (See Dep. of Irvin Sewer at 67, 47) ("Irvin Sewer Dep."). The Roberts Claimants do not claim to be heirs of William and Martha George. (See id. at 7.).
The second group, hereinafter referred to as the "Battiste Claimants," consists of persons and parties claiming by descent from James Wellington George, another person with an undivided interest in Parcel 6AB pursuant to the 1913 Agreement. The Battistes include: Leayle Battiste, who is the administrator of the Estates of Beulah Battiste, Anthon George, and James Wellington George ; and Lyle A. Battiste and Lorne M. Battiste, pro se, who have appeared in an individual capacity and contend that they are heirs to the estates of Beulah Battiste, Anthon George, and James Wellington George.3 . Having determined the relationship between the numerous defendants in this case, the Court turns to discuss the history underlying land ownership on the East End of St. John.
To provide a historical lens through which the Court is to view the current matter before it, Plaintiffs direct the Court to the "1913 Agreement." The Court has significant knowledge and experience with this Agreement in that the Court recognized the 1913 Agreement as a valid basis of recording and conveyancing in the decision of Newfound Management Corp. v. Sewer, 885 F.Supp. 727, 760-62 (D.Vi. 1995), which helped to...
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