Sutcliffe v. Burns

• Citation: 294 Mass. 126,1 N.E.2d 23
• Parties: SUTCLIFFE v. BURNS et al.
• Decision Date: 01 April 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 126

1 N.E.2d 23

SUTCLIFFE v. BURNS et al.

Supreme Judicial Court of Massachusetts, Essex.

April 1, 1936

Exceptions from Land Court, Essex County; Smith, Judge.

Petition by Everett Sutcliffe for registration of title to land opposed by Edward E. Burns and others. Petition dismissed and petitioner brings exceptions.

Exceptions overruled.

J. V Dep. Phelan, of Boston, for petitioner.

W. E Waterhouse, of Boston, and C. M. Crowell, of Marblehead, for respondents.

PIERCE, Justice.

This is a petition to register title to land in that part of Marblehead known as Naugus Head. The petition was contested by fifty-two respondents. Following an adverse report by the examiner, the case was heard on the examiner's abstracts from the public records, and on oral and documentary evidence.

The locus here in controversy consists of a triangular parcel of land, having its base on Salem Harbor and its apex at a point in what is admittedly the boundary line between land owned by the petitioner's wife and land claimed by the respondents and formerly known as the Sparhawk land. The westerly side line of the triangle as claimed by the petitioner crosses an irregular lot set apart as reservation Z, the roadway known as Naugus Avenue and land claimed by the respondents Burns, Gauss and Facey, by the nearest embankment of an old fort to the shore of Salem Harbor. The easterly line of the triangle follows a stone wall which the respondents claim to be the true easterly boundary line of their land. The judge of the Land Court on all the evidence, which includes the examiner's abstracts from the public records and oral and documentary evidence, found ‘ in narrative form’ the pertinent facts and made certain rulings of law, in substance as follows: Many years ago three old residents of Marblehead owned two adjoining parcels of land, one of which included the locus. The westerly parcel was land of John Sparhawk. The easterly parcel was acquired by Ezekiel and John D. Russell, partly in 1842 and partly in 1864. The petitioner claims title through the Russells by mesne conveyances, and contends that the conveyance to the Russells in 1842 included the locus. The description of this first parcel which was conveyed in two parts is as follows: ‘ All that lot or parcel of land situate at the ferry, so called, in said Marblehead, and containing ten acres, more or less. The part of said lot with the barn thereon owned by Benjamin Orne and hereby conveyed is bounded as follows: Northerly by Salem Harbor. Easterly on land now of Thomas and Joseph Bowden. Southerly on land of Asor Orne herein conveyed partly, and partly on land of Sparhawk and Westerly on land of Brimblecome and Sparhawk. Also a piece of meadow land adjoining the aforesaid land and forming part of said lot and now owned by Asor Orne and bounded as follows: Easterly on land of Thomas and Joseph Bowden, Southerly on land of Henry Cloutman and extending to the stone wall, Westerly partly on land of Sparhawk and partly on the aforesaid land, Northerly on said land first herein mentioned, or however otherwise the aforesaid premises or any part thereof is meted bounded or described, with the privileges and appurtenances thereto belonging being the whole of said lot of land as first above mentioned the same being now enclosed by a stone wall excepting that small part bounding on land of Sparhawk.’

The judge of the Land Court directs attention to the fact that lot A, shown on a sketch attached to his decision, was conveyed in two parcels, the first bounding ‘ westerly on land of Brimblecome and Sparhawk’ ; that the Brimblecome land is located on an old plan of the ‘ Sparhawk Estate’ made in 1865, which was in evidence, and is a part of the record; that the southerly boundary is partly on the second parcel, later described, and partly on land of Sparhawk; that the second parcel bounds northerly on the first parcel and is called ‘ a piece of meadow land.’ The judge infers, and consequently finds, that the words as to the wall enclosing all the land sold except ‘ that small part bounding on land of Sparhawk’ relates to some part of the meadow lot, as it would be less practical or necessary to enclose such land; that it was not a ‘ small part’ but a substantial part of the first described parcel which bounded westerly on land of Sparhawk. The sketch attached to the decision of the Land Court for convenience of reference designates the earlier purchase of the Russells at the water front in 1842, as lot A and the later purchase in 1864 as lot B. Adjoining the northwest corner of lot A is a parcel marked lot C on said sketch which represents the locus in issue. A little later, in 1842, the Russells in a mortgage described their land as follows: ‘ All that lot or parcel of land situate at the ferry, so called, in said Marblehead, and containing about nine acres, more or less, with a barn thereon, standing being the same premises which we lately purchased of Azor and Benjamin Orne, and is bounded as follows, Northerly on Salem Harbour, Easterly on land of Thomas and Joseph Bowden, Southerly on land of Henry Cloutman partly, and partly on land of Sparhawk, and Westerly on land of Sparhawk and Brimblecome, or however otherwise bounded, the same being now enclosed by a stone wall.’

The two Russells held title until their deaths, John in 1887 and Ezekiel in 1891. The parties rightly claiming under them by sundry deeds conveyed the Russell land in 1893 to Thomas S. Pitman. In these deeds for the first time lot C of the sketch attached to the decision is included as part of the Russell lands. Counsel agree they have been unable ‘ to locate or identify any surveyor who made the description.’ The judge found that, although the deeds clearly include the locus, the grantors had no title to lot C, and there was no evidence of weight tending to show occupation of the locus by either the Russells or the Pitmans under a claim of right, and he directs attention to the deed of the Pitmans to one Monahan in 1926 of land east of the wall between lots A and C on said sketch, such land being shown on two plans made in 1926 and 1928, and to the fact that the words ‘ now or late of Sparhawk’ were ‘ written on the other side of such wall to denote the adjoining owner.’

Certain other deeds by the Pitmans to predecessors in title of the petitioner are described in the record. It is to be noted that the petitioner's claim to the disputed locus is based on a deed procured from the devisees of Thomas S. Pitman dated February 15, 1933. This deed purports to convey all the right, title and interest to which the grantors were entitled as heirs of Thomas S. Pitman in the land specifically described in a deed of Benjamin F. Doliver et al., heirs of John D. Russell to Thomas S. Pitman, ‘ excluding * * * all land * * * heretofore conveyed by us by deeds * * * heretofore recorded.’ It is to be further noted that the Pitman heirs or devisees had already conveyed the entire Edgemere tract (lots A and B) to one Monahan, that the deed bounded the tract northwesterly on land ‘ now or late of Sparhawk,’ and that it is the respondents' contention, as it was the examiner's, that the grantors had divested themselves of all title up to the Sparhawk land, wherever that land was located.

Upon a survey of the Sparhawk exhibits made in 1865, from the Pitman plan, from other documents and evidence, the judge found that Russell and Sparhawk had always considered their lands so bounded that the locus C fell within the boundaries of the...