Paull v. Kelly, 03-P-1439.
| Decision Date | 13 December 2004 |
| Docket Number | No. 03-P-1439.,03-P-1439. |
| Parties | MARY JANE PAULL, trustee, v. KELLY C. KELLY, trustee. |
| Court | Appeals Court of Massachusetts |
Present: LENK, GRASSO, & COHEN, JJ.
Lee H. Kozol for the defendant.
Gordon M. Orloff for the plaintiff.
Suffolk.
When James Hall died intestate in 1735, all of his real property in Raynham devolved to his sons Edmund and David. After more than two hundred years of mesne conveyances, the plaintiff, Mary Jane Paull, as trustee of SMND Realty Trust (Paull) — who traces her chain of title to Edmund — and the defendant, Kelly C. Kelly, as trustee of Pine Realty Trust (Kelly) — who traces her chain of title to David — are involved in a boundary dispute that bears on the ownership of a 7.7 acre parcel lying between their respective properties.3 A sketch of the relevant parcels, attached as an Appendix to this opinion, provides immediate visual context for the problem. Paull owns the property directly to the south of the disputed parcel (shown as the Huldah Hall farm/Nathan Williams property). Kelly owns the property to the north of the disputed parcel (shown as the Job Hall property).
On appeal from a declaratory judgment in favor of Paull, Kelly argues that the Land Court judge erroneously fixed the location of the disputed property line some 393 feet north of where Kelly believes that the boundary should be. In particular, she maintains that (1) an unsuccessful attempt by Paull's predecessor in title to fix that boundary in a previous registration proceeding bars the present action through principles of issue or claim preclusion; and (2) the Land Court judge improperly relied on abutter calls4 in a deed in the chain of title of a third party (shown as the Perez Hall property) to determine the location of the disputed boundary. We affirm.
1. Background. The parties agree that Paull's property is bounded on the north by Kelly's land and on the west by the Perez Hall property and that Kelly's property is bounded on the south by both Paull's land and the Perez Hall property. The present controversy centers on Paull's contention, accepted below, that the boundary shared by the parties joins with the undisputed northern boundary of the Perez Hall property to form a relatively straight line across the southern edge of Kelly's property (represented on the diagram as the northern boundary of the disputed parcel). Although Kelly has previously argued that this boundary should be fixed elsewhere,5 her contention here is simply that Paull has not carried the burden of proving that the boundary between her land and Paull's is the northern boundary of the disputed parcel. If the Land Court judgment stands, Paull's claim of ownership in the disputed parcel will be established as superior to Kelly's; otherwise, ownership of the parcel will remain unresolved as between Paull and Kelly.
None of the ancient deeds in either Kelly's or Paull's chain of title precisely fixes their shared boundary. Instead, the deeds describe the properties primarily by estimations of acreage and abutter calls. Paull begins the analysis of her chain of title by looking to the will of Huldah Hall (Edmund's daughter), who died in 1834 and devised "to Asa Hall all my homestead farm where I now live." The probate inventory of Huldah Hall described the farm as "containing by estimation Sixty Acres." One year later, Asa Hall granted to Nathan Williams "the same farm that was given me by will of Huldah Hall . . . and contains fifty acres be the same more or less."6 The deed from Asa Hall to Nathan Williams also identified Joseph Hall, who then owned what is now the Perez Hall property, as the only western abutter. The parties do not dispute that modern surveying techniques would calculate the area of the original Huldah Hall farm to be 58.6 acres if Paull's version of the disputed boundary is correct. Alternately, if Kelly's suggested placement were utilized, the area would total 50.4 acres.
2. The registration proceeding and declaratory judgment action. In 1987, Paull's predecessors in title sought to establish ownership of the disputed parcel through a registration proceeding. After two days of trial, the judge issued a decision in which he concluded:
The judgment provided:
Subsequently, Paull initiated the present action,7 seeking a declaratory judgment that, at least as to Kelly, would establish the disputed boundary favorably to Paull.8 Kelly moved for summary judgment, arguing that issue or claim preclusion served to bar the action, based on the prior unsuccessful action for registration. The same Land Court judge who had presided over the registration proceeding denied Kelly's motion, reasoning that while Paull's predecessors had been unable to meet their burden of proof for registration, "clearly such finding did not determine the boundary at all, certainly not in favor of any party."
Subsequently, this matter came to trial before a different Land Court judge. In the course of expert testimony, Paull introduced an 1839 deed in the Perez Hall property chain of title (Perez Hall deed) that was in neither Paull's nor Kelly's chain of title.9 The Perez Hall deed described the northern boundary of the Perez Hall property as running eastward along the boundary shared with Kelly's property "to land of Nathan Williams," a predecessor in title to Paull. The Perez Hall deed further described an eastern boundary that ran south "thence in Williams line . . . one hundred fifty six rods to the road." According to these descriptions, the Perez Hall property and Paull's predecessor shared an eastern boundary of a defined length that originated at the northwest corner of the disputed parcel, ran along the entire western edge of the disputed parcel, and continued to the road.
Relying substantially on these abutter calls, the trial judge ruled that the Perez Hall deed established the disputed boundary favorably to Paull. Central to the judge's decision was her determination that despite the failure of extensive oral testimony10 to assist in fixing the boundary, the abutter calls in the 1835 deed from Asa Hall to Nathan Williams and the Perez Hall deed provided corroborating evidence that "the disputed parcel was originally part of Paull's property and was never part of Kelly's property." A judgment issued declaring that the northern boundary of the disputed parcel was the boundary between Paull's and Kelly's parcels, in effect placing ownership of the disputed parcel in Paull.
3. Issue and claim preclusion. Kelly contends that the prior registration proceeding established conclusively that the northern boundary of the disputed parcel does not exist in the location advocated by Paull. As a result, Kelly maintains, res judicata principles bar Paull from again attempting to fix that same boundary to the disputed parcel in this action. This contention misconstrues what was resolved in that prior failed attempt to register title and the effect of that action on subsequent actions to resolve the boundary.
Whether that prior failed attempt has preclusive effect is determined by G. L. c. 185, § 44, St. 1981, c. 658, § 24, which provides in pertinent part: "If the court finds that the plaintiff has not title proper for registration, a judgment shall be entered dismissing the complaint, and such judgment may be ordered to be without prejudice, in whole or in part, but unless so ordered it shall bind the parties, their privies and the land in respect of any issue of fact which has been tried and determined." After examining the judge's decision and the judgment dismissing the complaint in the registration action, we conclude that the complaint was not dismissed with prejudice and that the location of the disputed boundary was not "tried and determined" in that proceeding. Accordingly, G. L. c. 185, § 44, does not bar Paull from seeking to determine the location of that boundary in this action.
General Laws c. 185, § 44, makes clear that an unsuccessful registration proceeding can have two possible effects — one that is preclusive and one that is not. If the judge dismisses the action without prejudice, the failed attempt at registration has no preclusive effect and will not bar either a subsequent attempt at registration or any other method to determine or declare title. If the judge dismisses the action with prejudice, the statute precludes relitigating issues of fact that were "actually tried and determined" in the registration proceeding.
Here, the prior complaint for registration was dismissed "without prejudice," even though the decision and judgment did not expressly use those talismanic words. The judge's decision focused on the inability of any party to prove the northern boundary of the disputed parcel and he observed that any future litigation should provide notice to other putative parties in interest. The judgment states that Paull's predecessors in title "have not at this time provided sufficient credible evidence to prove the northerly boundary of said parcel" (emphasis supplied).11
Even were ...
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