Opinion
No. 12–P–1451.
2013-08-20
Trumbull B. BARRETT v. THE NATURE CONSERVANCY.
By the Court (TRAINOR, MEADE & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in the Superior Court, the defendant, The Nature Conservancy (TNC), appeals from the second amended judgment in favor of the plaintiff, Trumbull B. Barrett, which (1) declared the location of the northerly and westerly boundary lines of a parcel of rural land in accordance with those advocated by Barrett, thereby reducing the area of property to which TNC believes it is entitled by approximately two acres, and (2) dismissed its counterclaims to quiet title and for adverse possession. We affirm.
The parties own abutting land in Sheffield. On September 26, 1909, Barrett's predecessors in title, Edward and Augusta Peckrul, conveyed by deed a small parcel of land in the southeast corner of their seventy-one acre farm to their abutting neighbor, Eugene Fuller, TNC's predecessor in title. This dispute arises out of the location of the northerly and westerly boundaries of the land conveyed, the so-called Peckrul parcel. TNC contends that the judge erroneously fixed the location of the disputed boundary lines some distance south and east of the preexisting fieldstone walls, which TNC believes to be the Peckrul parcel's actual boundaries. The Peckrul parcel, according to the 1909 deed, constituted “four acres, more or less,” and was defined only by way of abutter calls. The area between the boundary lines contested by the parties contain nearly two acres, the so-called disputed portion. Excluding this disputed portion from the Peckrul parcel, Barrett defines an area of approximately 4.2 acres, while TNC defines an area of approximately six acres which includes the disputed portion in the Peckrul parcel.
The deed description reads: “a certain piece of land situated in the southerly part of Sheffield and bounded and described as follows: viz:—on the west and north by land of the said Peckrul, east by land of Carl Peckrul and the said Fuller, south by land of Fuller, containing four acres, more or less, Being a portion of the farm conveyed to us by deed from Martha C. Morse and Charles S. Morse, dated [S]eptember 30th, 1903 and recorded in the Registry of Deeds at Great Barrington Book 190 page 241.”
“Abutter calls are statements in a deed that describe the landowner's parcel by reference to the owners of adjoining properties.” Paull v. Kelly, 62 Mass.App.Ct. 673, 674 n.4 (2004). Here, the abutter calls “on the west and north by land of the said Peckrul” (see note 1, supra ) provide no guidance in fixing the disputed boundary lines.
The parties agree, and the judge found, that the 1909 deed description fails to fix the northerly and westerly boundary lines of the Peckrul parcel with certainty. In light of the deed's ambiguous import, the judge appropriately considered extrinsic evidence to determine the boundaries which the language of the deed intended to describe. See Melis v. Provincetown Golf Range, Inc., 359 Mass. 766, 766 (1971). We bear in mind, however, “that the language, being the language of the grantor, is to be construed most strongly against him.” Bernard v. Nantucket Boys' Club, Inc ., 391 Mass. 823, 827 (1984), quoting from Thayer v. Payne, 2 Cush. 327, 331 (1848). TNC claims certain errors in the judge's determination of intent, including that he improperly (1) disregarded the attendant circumstances at the time of the transfer and the actions of the parties' predecessors in title thereafter, (2) placed evidentiary weight on the acreage estimation expressed in the 1909 deed as “four acres, more or less,” and (3) adopted the corner-points provided in a 1958 deed to determine the southwestern and northeastern corners of the disputed parcel.
“[W]e review the judge's subsidiary findings of fact under the clearly erroneous standard, while reviewing de novo his ultimate conclusion of law.” Zabin v. Picciotto, 73 Mass.App.Ct. 141, 170 (2008). Generally, a finding of intent is a question of fact which, therefore, is not to be disturbed unless it is clearly erroneous. See Erickson v. Ames, 264 Mass. 436, 441 (1928); McEachern v. Budnick, 81 Mass.App.Ct. 511, 515–516 (2012). Where, however, “the [trial] judge's decision is based on an interpretation that arises ‘solely from the documentary evidence,’ an appellate court has the ‘same interpretive powers as the [trial] judge.’ “ Paull v. Kelly, 62 Mass.App.Ct. 673, 680 (2004), quoting from Darman v. Dunderdale, 362 Mass. 633, 637 (1972). In concluding that it was most likely that the Peckruls intended to convey a parcel of four acres, more or less, as reflected by the boundaries outlined by Barrett's surveyor, Michael Parsons, the judge considered several deeds and the testimony of the parties' various experts and a nearby neighbor, Richard LeGeyt; additionally, the judge viewed the property, walking a significant amount of the disputed portion. From our review of the evidence, we are unable to conclude that the judge's findings are clearly erroneous.
1. Interpretation of the 1909 deed. Although there is no mention of stone walls in the 1909 deed, TNC contends that they were, at the time of the conveyance, the agreed-upon boundaries. The judge found that in 1909, when Peckrul conveyed to Fuller, the Peckrul parcel, including the disputed portion, was a discrete and contiguous hay field, enclosed on the north, west, and south by stone walls. TNC suggests that the hay field comprised a geographically independent parcel due to these stone walls, together with its unique topographical characteristics.
The judge's view of the property, supported by the record, revealed a relatively flat parcel. At its western bound, the land dropped off rather abruptly, with the western stone wall closely tracing the edge of a precipice. At its eastern bound, the grade sloped upward. The northern and southern stone walls also followed steep slopes.
“Doubtless, in cases of ambiguity in descriptions, weight may be given to the circumstances in which a conveyance was made, and to physical characteristics of the property transferred, in determining what the parties intended.” Weinrebe v. Coffman, 358 Mass. 247, 251 (1970). Contrary to TNC's assertion, the attendant circumstances at the time of the conveyance do not compel the conclusion that the Peckruls intended to convey to Fuller the entire hay field logically bound to the west and north by the stone walls. So far as it appears, the judge recognized the parcel's historical agricultural use and physical characteristics, as well as the anomalous fact that the adoption of Barrett's proposed boundary lines would result in the Peckruls' retention of a “totally valueless” portion of rocky land. Thus, the judge “consider[ed] the improbability that a grantor ... would seek to retain such a relatively useless strip,” Ryan v. Stavros, 348 Mass. 251, 259 (1964), but ultimately found, based on the evidence, that the location of the stone walls served a utilitarian purpose, such as to protect the hay field from the livestock on the adjacent pasturelands. See id. at 261 (“Mere acquiescence in the existence of a fence or line as a barrier or for some other purpose is not enough to establish a boundary”). These findings are sufficient to warrant the judge's conclusion.
TNC further contends, in effect, that Barrett and his predecessors have by their conduct acquiesced in the northern and westerly boundaries as demarcated by the stone walls. See Ryan v. Stavros, supra at 260 (discussing the doctrine of acquiescence in cases concerning boundary disputes). In particular, TNC avers that the subsequent occupation of the land by the parties and their predecessors reflects that the Peckrul parcel was bounded by the stone walls, and these boundaries have been mutually respected ever since 1909. To this end, TNC asserts that at some point after the original conveyance, its predecessors strung barbed wire along certain portions of the stone walls, including the westerly access point adjacent to the land of Barrett's predecessors, cut hay up to the stone walls, and installed signage on the line of trees along the stone walls.
Our examination of the judge's subsidiary findings, supported by the record, however, confirms that evidence of subsequent occupation reflects only an indeterminate reality of how the parties regarded the stone walls. TNC's expert, Professor Tom Wessels, testified that he could not offer his opinion as to who strung the barbed wire fence or who hayed the field at any point in time. Wessels merely indicated that the barbed wire fencing, much like the stone walls, served to protect the hay field from livestock, not to reflect an intended boundary line. Additionally, that a third party, Richard LeGeyt, testified that since approximately 1941 his family has hayed the field, at some points up to the stone walls, does not, without more, establish boundaries in accordance with those advocated by TNC . Further, TNC employee and ecologist Frank Lowenstein testified that his belief that the stone walls reflected the Peckrul parcel's true westerly and northerly boundaries stemmed from his observation in 1995 of rotting signs affixed to the trees alongside both stone walls, which, he stated, may have read “Tatkon” in reference to Carol Tatkon, an owner in TNC's chain of title from 1964 until 1995 who ultimately donated her property to TNC. Lowenstein noted that after receiving title to the property in 1996 and without conducting a survey, TNC simply replaced the old signs with ones bearing TNC's name or logo.
Despite his finding that LeGeyt and his family hayed the Peckrul parcel with the permission of TNC and its preceding owners, the judge ultimately was not persuaded that these actions supported an inference of acquiescence in the stone wall boundaries.
“Absent indications of how the parties and their predecessors in title regarded the [disputed boundary line], acquiescence can hardly be inferred.” Ryan v. Stavros, 348 Mass. at 261. From the whole evidence, we cannot say that the judge erred in failing to find that TNC and its predecessors had exercised acts of ownership over the disputed parcel and Barrett and his predecessors had not. Contrast Methodist Episcopal Soc. in Charlton City v. Akers, 167 Mass. 560, 563 (1897) (evidence that the plaintiff's predecessors in title had cut grass up to the asserted boundary constituted an act of ownership sufficient to support the conclusion that the plaintiff owned the land up to that boundary). See also Ovans v. Castrucci, 267 Mass. 600, 605–606 (1929); Lyon v. Parkinson, 330 Mass. 374, 379–380 (1953). The judge, recognizing the unavailability of clearly persuasive evidence for either side, appreciated the appeal of TNC's argument, yet reasoned, quite rationally, that had the parties to the deed intended the stone walls as boundaries, it would have required little effort to so memorialize them as such. In short, the judge credited the acreage estimation of “four acres, more or less,” as provided in the 1909 deed, and adopted the boundaries outlined by Barrett's surveyor, Michael Parsons, from whom he also heard testimony. Where, as here, “there are two permissible views of the evidence, the [judge's] choice between them cannot be clearly erroneous.” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997), quoting from Gallagher v. Taylor, 26 Mass.App.Ct. 876, 881 (1989).
The record is supportive of the fact that the stone walls existed at the time of the 1909 conveyance.
Considering the limited evidence of the intended boundaries in this instance, TNC's contention that the acreage estimation should not be applied formalistically is unpersuasive. Although TNC accurately cites a basic rule of deed construction, namely that “descriptions by area seldom are a controlling factor,” Paull v. Kelly, 62 Mass.App.Ct. at 680, it overlooks the familiar premise from which that principle is derived: “Descriptions that refer to monuments control over those that use courses and distances; descriptions that refer to courses and distances control over those that use area.” Ibid. An abutter call, capable of being ascertained, may properly be regarded as a monument within the hierarchy of priorities for interpreting a deed description; importantly, however, such is not the case here, at least as concerns the disputed north and west bounds. Contrast id. at 681–682, citing Overly v. Treasurer & Recr. Gen., 344 Mass. 188, 192 (1962) (in the usual case, a deed's use of the “more or less” language suggests that the area call is not exact). The deed, therefore, contained neither monuments nor courses and distances. To aid his resolution of the ambiguity then, the judge appropriately exercised his discretion in construing the phrase “four acres, more or less,” as reflecting boundaries resulting in a parcel of 4.2 acres as opposed to TNC's proposed six acres.
Lastly, even assuming for the moment that the judge's reliance on the 1958 deed to determine the southwestern and northeastern corners of the Peckrul parcel was misplaced, there remains no permissible basis on which to alter the decision below. The judge did not rest his ultimate decision—that the Peckruls intended to convey a parcel outlined by the boundaries advocated by Barrett—on the 1958 deed. Instead, the judge merely derived “further support” for his position from the location of corner points articulated in that deed and thus, the accuracy of the corner points is not a dispositive fact. See Brandao v. DoCanto, 80 Mass.App.Ct. 151, 155 & n.9 (2011). Even if we excise the 1958 deed from the judge's analysis, the evidence that remains in favor of the claim of TNC is insufficient, as matter of law, to outweigh that supporting the judge's reliance upon the deed description of “four acres, more or less”; therefore, we must conclude that there is adequate support for the judge's interpretation of the 1909 deed based on the facts found. See Commonwealth v. Carr, 458 Mass. 295, 303 (2010), quoting from Demoulas v. Demoulas Super Mkts., Inc., supra (“So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it”).
The 1958 deed is a deed within Barrett's chain of title, dated October 31, 1958, in which David Cosgriff, Jr., conveyed the twenty-seven acre parcel, less the Peckrul parcel, to Hewlett Manee and Margaret W. Manee, and is, thus, a “remainder” deed. In so deeding, Cosgriff identified, by courses and distances, the southwestern and northeastern corner points of the Peckrul parcel. This description has since been carried forward in the deeds within Barrett's chain of title.
2. Adverse possession. TNC contends that it has acquired title to the disputed parcel by adverse possession. “Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. at 262. We agree with the judge that TNC may not assert title based on LeGeyt's haying absent evidence tending to demonstrate an agency or other legal relationship between LeGeyt and TNC. Moreover, even assuming that LeGeyt's actions may be properly imputed to TNC, or that his actions were implicitly at the behest of its predecessors and thus could be tacked onto TNC's period of ownership, the judge did not err in concluding that TNC failed to present evidence establishing that LeGeyt's use was adverse and exclusive. Instead, even if an indulgent view of the evidence suggests that LeGeyt hayed with the permission and for the benefit of TNC and its predecessors, the judge could properly remain unpersuaded that LeGeyt's actions were effectively to the exclusion of all, including the owners and all third persons. Contrast Ottavia v. Savarese, 338 Mass. 330, 333–335 (1959); Brandao v. DoCanto, 80 Mass.App. at 156–158. As such, we are satisfied that TNC has not demonstrated error in the judge's determination that TNC failed to establish the elements of adverse possession.
Second amended judgment affirmed.