Opinion
16-P-757
03-21-2017
Josephine W. RODGERS v. Anne CASTINE& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this boundary dispute, Anne and Michael Castine appeal from a judgment of the Land Court that issued on a petition for registration of title. The Castines claim the judge erred in adopting the registration plan's depiction of the common boundary line between their parcel and the registration parcel. Specifically, the Castines argue that the southern boundary of their parcel is seven feet further south than depicted in the registration plan. Consequently, according to the Castines, a portion of their property is included within the registration parcel. Because we discern no clear error in the judge's factual findings, we affirm.
Background . We summarize the undisputed facts. The registration parcel is located at 30 Homer Avenue in Yarmouth. It is bordered on the west by Homer Avenue, on the north by the Castine property, on the east by North Cove Landing, and on the south by the Bass River.
The Land Court title examiner's report began with a description of the registration parcel set forth in a 1915 deed:
"Beginning at the [southwest] corner of the premises, herein conveyed at a point 151 feet from the road leading from the residence of the late Peleg P. Akin to the lower village, (so-called); thence running [northeasterly] by land of Charles H. Abbot, 165 and 1/2 feet to a corner in range of said Abbot's land, thence running [southeasterly] by land of said Abbot to Bass River, thence [southwesterly] by said [Bass] River to the line of Homer Avenue which extends into the above mentioned river, thence [northwesterly] by said Homer Avenue to the first mentioned bound and point of beginning."
The road described in the deed is Pleasant Street, which was originally laid out as a forty-foot wide public way in 1882. A 1946 layout of Pleasant Street depicts the actual traveled way as approximately one-half of the width of the forty-foot layout. The 1915 deed does not indicate from what part of Pleasant Street the 151-foot measurement was taken.
The 1915 deed contained two errors. First, the deed incorrectly refers to the beginning point as the "southwest" corner. In fact, the beginning point of the description is the "northwest" corner of the registration parcel. Second, the call for a distance in the deed of 165.5 feet along the northern boundary of the property is inaccurate. The true distance is 183.5 feet.
This error was carried in the deeds from 1915 to 1942 before it was corrected. Deeds before 1915 contained the correct description.
The distance error was corrected in subsequent deeds.
The registration parcel was described in substantially the same terms in deeds until 1942. In 1942, the description changed in a recorded plan which set forth a measured distance along Homer Avenue between an iron pipe and a seawall, abandoning the 151-foot measurement from Pleasant Street. , The location of the seawall on the 1942 plan is consistent with a seawall on a 1931 plan, referenced by a deed conveying an adjacent property. The 1931 plan is the first to show the seawall between the registration parcel and the Bass River.
The wall is described as both a stone wall and seawall. The parties agree that they are the same. We use seawall throughout our decision for consistency.
The description placed the northwesterly corner of the property at an iron pipe placed in the ground, which was "190.86 feet more or less to a point on the [seawall] as shown on said plan, and to the waters of the Bass River."
The judge was aware that the 1942 plan also contained an error. The measured distance along Homer Avenue between a marked spike and an iron pipe is noted as 82.86 feet, while the scaled distance is 74.5 feet.
The chain of title to the Castine parcel contains no reference to any monument or plan. Nor do any of the deeds reference a starting point as a given distance from Pleasant Street or the Bass River. Instead, the Castine parcel has been consistently described as having seventy-three feet of frontage along Homer Avenue. This distance, together with the Castine parcel's northerly abutter's seventy-eight feet of frontage along Homer Avenue, equals the 151-foot measurement used in the pre-1942 deeds to the registration parcel. At trial, the Castines introduced a plan of their property that places the northwest corner of the registration parcel 151 feet from Pleasant Street, but does not reference the seawall.
Discussion . 1. Timeliness of notice of appeal . The procedural history of this case is unusual. The complaint for registration of title was filed on January 17, 1986. The judge's written decision issued sixteen years later following a two-day trial. The Castines' first notice of appeal following the 2002 decision was rejected by the Land Court, presumably because no final judgment had entered. , After an additional delay of thirteen years, final judgment entered on January 20, 2016. By letter dated February 10, 2016, the Land Court informed the Castines that it was preparing to enter judgment and referred to an enclosed copy of the judgment for review. However, a copy of the judgment was not enclosed. The Castines filed a second notice of appeal on March 14, 2016, fifty-four days after judgment entered. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013).
The decision dated May 22, 2002, expressly provided: "Judgment will not issue at this time."
We do not consider whether this appeal could have been prosecuted pursuant to G. L. c. 185, § 15. See Arno v. Commonwealth , 457 Mass. 434, 446 (2010) ; Devine v. Saugus , 5 Mass. App. Ct. 885, 886 (1977) ; Snow v. E. L. Dauphinais, Inc ., 13 Mass. App. Ct. 330, 338 (1982).
To his credit, counsel for the Castines acknowledged that the second notice of appeal was filed twenty-four days late. Counsel for Rodgers acknowledged "that the notice of entry of judgment sent from the Land Court on January 20, 2016 created confusion and resulted in a late filing [by] the Castines." Both counsel agreed that the case should be decided on the merits, rather than on this procedural issue. We commend the professionalism with which counsel approached this question at argument. Because we agree that communication from the Land Court may have contributed to the delayed filing of the second notice of appeal, we exercise our discretion to enlarge the time for filing the second notice of appeal up to and including March 14, 2016. See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979).
2. Record title . General Laws c. 185, § 45, as amended by St. 1981, c. 658, § 25, provides that "[i]f the court, after hearing, finds that the plaintiff has title proper for registration, a judgment of confirmation and registration shall be entered, which shall bind the land and quiet the title thereto." Here, in deciding proper title for registration, the judge made comprehensive written findings and concluded "that the Registration Plan correctly depicts the boundary between the parties' lots," and that "the deed description relied upon in [the Castine plan] is less reliable than the monuments relied upon in the Registration Plan." Put another way, she reasoned that the 1942 plan, which referenced measurements from a seawall, was more reliable than the 1915 deed, which referenced a measurement from Pleasant Street.
The location of a boundary line is a question of fact for the judge to decide. Bernier v. Fredette , 85 Mass. App. Ct. 265, 268 (2014). On appeal "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). A finding is not clearly erroneous unless, after reviewing all of the evidence, we are "left with the definite and firm conviction that a mistake has been committed." White v. Hartigan , 464 Mass. 400, 414 (2013), quoting from New England Canteen Serv., Inc . v. Ashley , 372 Mass. 671, 675 (1977). "So long as the judge's account is plausible in light of the entire record, an appellate court should decline to reverse it." Demoulas v. Demoulas Super Mkts., Inc ., 424 Mass. 501, 510 (1997).
The Castines argue that the judge erred in rejecting the 151-foot measurement from Pleasant Street set forth in the pre-1942 deeds, in favor of the 190-foot measurement from the seawall contained in the 1942 plan and deed. We disagree. It is undisputed that the 1915 deed, the source of the 151-foot measurement, is inaccurate in two respects. First, it misidentifies the starting point for the description. Second, the only other measurement contained in the deed, the measurement of the length of the northern property boundary, is incorrect. Based on those errors, the judge concluded "[t]he lack of additional monumentation and the erroneous call for distance as the only other measurement given in the deed, make it difficult to rely upon the Starting Deeds' description." This conclusion is supported by the evidence and is not clearly erroneous.
The judge also found that "where, as here, there are monuments called for which are ascertainable, and the street line is unclear, this court is persuaded that the reference to the street must give way to the fixed monumentation." See Stefanick v. Fortuna , 222 Mass. 83, 85 (1915) ("No rule is better settled than the rule that monuments govern distances"). Acknowledging that a measurement from a given way is presumed to be from the sideline of the way, see Smith v. Hadad , 366 Mass. 106, 109 (1974), the judge found, based on the evidence at trial, that the sideline of Pleasant Street was not reliable as a monument. We see no clear error in the judge's weighing of the evidence in this way. Building Inspector of Lancaster v. Sanderson , 372 Mass. 157, 161 (1977) (trial judge is "in a superior position to appraise and weigh the evidence").
To the extent that we do not address the Castines' other arguments, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
Judgment affirmed .