Sweeney v. Sweeney
| Decision Date | 07 October 2021 |
| Docket Number | MISC 19-000123,REG 15-43498 |
| Parties | Kenneth W. Sweeney, Plaintiff; v. Kenneth W. Sweeney, Defendant Marialaina A. Lannin, Plaintiff, |
| Court | Commonwealth of Trial Court of Massachusetts. Land Court Department |
J.FOSTER
Kenneth Sweeney and Marialaina Lannin own abutting lots that bound on Little Sandy Bottom Pond, a great pond in Pembroke. Their lots were originally laid out as part of a 100+ lot subdivision shown on a July 1915 plan. This plan, like so many plans of the era, created small cottage lots along the water, presumably for vacation use. See, e.g., Zarba v Town of Oak Bluffs Zoning Bd. of Appeals, 27 LCR 677 (2019) (Misc. Case No. 17 MISC 000139) (Foster, J.); Denardo v. Bosworth, 20 LCR 344 (2012) (Misc. Case Nos. 06 MISC 324036, 07 MISC 346353) (Foster, J.). These plans tended not to be precisely surveyed, which may not have been a problem when the lots were inexpensive, the cottages small, and the uses seasonal. These lots have long since become quite valuable as their owners have built or improved houses for permanent residential use, however, and it has become important to determine just where the boundaries of these lots are.
Mr Sweeney seeks to register the boundaries of his lot. Ms Lannin has brought a separate claim that her lot actually extends into the area Mr. Sweeney claims is part of his lot. These claims were tried to me. As discussed below, I find that, based on both the actual location of Mr. Sweeney's lot as shown on the 1915 plan and the areas he claims by adverse possession, Mr. Sweeney has demonstrated his boundaries; Ms. Lannin, while not owning the area up to Mr. Sweeney's house as she claims, has established title by adverse possession to the portion of her property that lies within the bounds of Mr. Sweeney's lot under the 1915 plan.
Kenneth W. Sweeney (Mr. Sweeney or Petitioner) filed his Petition for Registration of property located on Woodbine Avenue in Pembroke, MA on December 28, 2015 in Registration Case No. 15 REG 43498 (Registration Case), claiming that he obtained title both by deed and by adverse possession.
Marialaina A. Lannin (Ms. Lannin or Respondent) filed a complaint (Complaint) for encroachment in this matter in the Plymouth Superior Court on March 6, 2017 naming as defendant Kenneth W. Sweeney (the Superior Court action). The Complaint contains a single count, alleging encroachment upon Lannin's property. After Sweeney's Motion to Dismiss was denied on June 16, 2017, Sweeney filed Defendant's Answers to Complaint and Counterclaims (Counterclaim) on July 7, 2017. The Counterclaim contains two counts: (I) Misrepresentation of Material Facts, and (II) Filing of a Complaint as retaliation and in bad faith. Ms. Lannin filed an Answer in the Registration Case on August 31, 2018. At a status conference on January 30, 2019, the Court advised that if the related Superior Court action were transferred, it would be treated as a companion case with the Registration Case. On March 7, 2019, the Superior Court Action was transferred to the Land Court pursuant to G.L. c. 211B, § 9, and the Complaint was filed with this court.
The Pre-Trial Conference was held on July 16, 2019. The court took a view on November 18, 2019. Trial was held on November 19, 20, and 21, 2019, and on January 7, 2020. Exhibits 1- 37, 38A, and 39-50 were marked. Testimony was heard from Kenneth Anderson, John Woods, Kenneth Sweeney, Jeffrey Bezanson, George Furness, Christopher Kelley, and Marialaina Lannin. On November 20, 2019, the second day of trial, Sweeney's Motion for Finding was denied. Both Marialaina A. Lannin's Post Trial Brief and Petitioner Kenneth W. Sweeney's Post Trial Brief were filed on June 19, 2020. The court held a Post Trial Hearing and heard closing arguments on June 26, 2020 by video conference and took the case under advisement. This Decision follows.
Based on the view [1], the undisputed facts, the exhibits the testimony at trial, and my assessment of credibility, I make the following findings of fact:
1. Mr. Sweeney is the owner of and resides at the land known as and located at 62 Woodbine Avenue, Pembroke, MA 02359 (Sweeney Property). Exh. 1.
2. Ms. Lannin is the owner of and resides at the land known as and located at 58 Woodbine Avenue, Pembroke, MA 02359 (Lannin Property). Exh. 1.
3. 62 Woodbine Avenue and 58 Woodbine Avenue are abutting and contiguous properties that share a common bound (being the north property line of 58 Woodbine Avenue and the South property line of 62 Woodbine Avenue) extending generally westerly from Woodbine Avenue to Little Sandy Bottom Pond. Exh. 1; View.
4. Little Sandy Bottom Pond is a Great Pond and is sometimes identified as Little Sandy Lake and Little Sandy Pond. Exh. 1.
5. The rights of the public in and to Little Sandy Bottom Pond are to remain without impact from this registration case. Exh. 1.
6. The northerly abutter to the Sweeney Property, Rosarie M. Tanguay, did not appear or file any opposition in the Registration Case. Exh. 1.
7. Sweeney purchased the Sweeney Property from Jeffrey C. Bezanson (Mr. Bezanson) by a deed dated June 30, 2004 and recorded with the Plymouth County Registry of Deeds (registry) at Book 28574, Page 238 (Sweeney Deed). Exh. 24.
8. The Sweeney Deed, as well as all of the deeds in Mr. Sweeney's chain of title put into evidence, convey Lot 12A as shown on a plan entitled "Plan of House Lots at Woodbine, Little Sandy Pond," Dana M. Pratt, C.E., recorded with the registry at Plan Book 2, Page 871, dated July 1, 1915 (Pratt Plan). [2] A copy of the Pratt Plan is attached as Exhibit A. Exh. 7, Exh. 24, Exhs. 25-34, Tr. I-126, I-128.
9. Like the other deeds in Sweeney's chain of title, the Sweeney Deed describes Lot 12A, generally, as being bounded by Lot 11A to the northeast as shown on the Pratt Plan, southeasterly by "Lake Avenue [...] 40 feet more or less," southwesterly by Lot 13A as shown on the Pratt Plan, and northwesterly "by Little Sandy Pond [...] 40 feet more or less." The Pratt Plan shows Lot 12A as having 40 feet of frontage along Lake Avenue but does not state the lengths of any of the other boundaries. Exh. 7, Exh. 24, Tr. I-128-129.
10. Lannin purchased the Lannin Property from Michael J. Corey, Individually and as Trustee of Corey Realty Trust, by a deed dated October 28, 1994, and recorded with the registry at Book 13235, Page 260 (Lannin Deed). The Lannin Property, as described in the Lannin Deed, is comprised of 2 lots, the northerly being described as Lot 13A on the Pratt Plan, bounded northeasterly by Lot 12A. Lot 13A, as shown on the Pratt Plan and as described in the Lannin Deed, has 37 feet of frontage along Lake Avenue. Exh. 7, Exh. 17, Tr. II-169-170.
11. What is shown as Lake Avenue on the Pratt Plan was subsequently renamed and is now known as Woodbine Avenue. Exh. 7, Tr. II-120.
12. Both surveyors who testified, Kenneth B. Anderson and Christopher Kelley, agreed that the Pratt Plan has significant flaws. While it lays out over 100 lots, the Pratt Plan only establishes one monument on the entire plan, on the northeast corner of Lot 32 on that plan. While it does show frontages of lots, a note below the title states "areas and distances approximate." Mr. Anderson testified that West Street as laid out by the county is not in the same location as shown on the Pratt Plan, because the monument is now significantly beyond West Street. The Pratt Plan shows no compass angles, though the rectangular lots are, impliedly, rectangular. I credit this testimony and find that the Pratt Plan is significantly flawed. Exh. 7, Exh. 11, Tr. I-33-34, I-36, I-38-39, II-217-218, View.
13. In 1983, Ruth Emery, owner of Lot 11A (the Sweeney Property's northerly abutter) as shown on the Pratt Plan, had a survey completed of her property by one Carleton W. Garvey (Garvey Plan), recorded with the registry at Plan Book 24, Page 257. The following note (with omissions for brevity) is found on that plan:
NOTE: THIS PLAN SHOWS WHAT IS THIS OFFICE'S INTERPRETATION OF THE LOCATION OF WHERE LOT 11A AND LOT 76 WERE INTENDED TO BE LAID OUT BY D.M. PRATT C.E. [...] FROM A SURVEY OF THE ENTIRE SUBDIVISION AND THE LOCATION OF MANY PIECES OF MONUMENTATION, INCLUDING THE ONLY BOUND SHOWN ON THE ORIGINAL SUBDIVISION PLAN, THIS OFFICE FEELS IT HAS RE-ESTABLISHED THE ABOVE MENTIONED NORTHERLY AND WESTERLY PROPERTY LINES. FROM A FIELD SURVEY THIS OFFICE FINDS LOT FRONTAGES ON WEST STREET AND ACTUAL FIELD MONOMENTATION TO DISAGREE BY 26 +- FT. [...] IT APPEARS THAT THE SOUTHERLY PROPERTY LINE OF THE SUBDIVISION PLAN IS IN ERROR. FROM FIELD MONUMENTATION FOUND IT APPEARS LOTS HAVE BEEN LAID OUT FROM THE SOUTHERLY PROPERTY LINE CREATING AN OVERLAP IN THE SUBDIVISION. IN CONCLUSION THIS PLAN IS INTENDED TO SHOW THE LOCATION OF LOTS 11A AND 76 AND IS NOT A FINAL SOLUTION TO THE MANY ERRORS FOUND IN THE D.M. PRATT C.E. SUBDIVISION PLAN.
14. The Garvey Plan shows a number of monuments, iron pipes and drill holes, at the borders of the Lannin and Sweeney Properties, which are not shown on the Pratt Plan. A copy of the Garvey Plan is appended as Exhibit B. Exh. 7, Exh. 9, Tr. II-214-216, Tr. III-8-9.
15. On June 2, 1988, Carleton Garvey prepared a plot plan for Jeffrey Bezanson, which appears to be based upon the Garvey Plan, in that it shows the same monuments and distances as the Garvey Plan. However, none of the monumentation in the plot plan, such as the iron pipes along Little Sandy Bottom Pond, is recited in the deed to Mr. Bezanson, which references only the Pratt Plan. Therefore, I do not credit the Garvey plot plan. Exh. 14, Exh. 25, Tr. III-29, III-30-31.
16. Mr Anderson was hired by Mr. Sweeney to conduct a survey for his...
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