Boundary disputes can arise in a number of ways. Perhaps a landowner wants to install a fence or septic system, and the location of the boundary line becomes an issue with the neighbor. Other cases can come about innocently, such as when a landowner discovers (via a survey undertaken by a qualified land surveyor) that property lines are not located as originally thought, with buildings or other structures found to be encroaching on an abutting lot.
Even undeveloped land is not immune from boundary disputes. Attempts to determine the amount of frontage or lot area available for a subdivision can sometimes reveal previously unknown boundary discrepancies.
Boundary disputes can be litigated in a number of ways. Some cases are adjudicated as an action to try title (M.G.L. c. 240, § 1 et seq.) or an action to quiet title (M.G.L. c. 240, §§ 6-10). These often lead to counterclaims of adverse possession or prescriptive easement over the same area. Other cases ask the court to determine the location of the boundary with a declaratory judgment action filed under M.G.L. c. 231A.
No matter how a boundary dispute arises or how it is resolved in court, there are different kinds of evidence that may be admissible at trial.
Deeds are the primary source of information used to settle boundary disputes. While the court must give effect to the original grantor’s and grantee’s intent within the pertinent chains of title, there is a certain hierarchy that is used in construction of deed descriptions (listed in descending importance):
- monuments (assuming they can be found on the ground);
- courses and distances; and
- area (though seldom a controlling factor)
See Pauli v. Kelly, 62 Mass. App. Ct. 673, 680 (2004). Given that there have been centuries of land ownership in Massachusetts, the deeds relied upon by the trial court can be quite old. In a 2011 Land Court case (Bergeron v. Andrew, 02MISC284532 (July 19, 2011), the court’s (Piper, J.) review of the evidence include a partition instrument dated back to 1769. In two more recent Land Court cases (Hayes et al. v. Pratti et al., 08MISC377864 (April 6, 2012) and Bonn v. Bergeron, 10MISC431636 (March 7, 2012)), the deeds dated back to 1859 and 1867, respectively.
Reliance on very old deeds in boundary disputes has some limits. Aside from the obscure and imprecise wording that was commonplace in the past, often the monuments (like trees) referenced in old deeds are long gone, or altogether ambiguous (like ledge). To complicate matters, two different surveyors may have completely different results when attempting to mark the boundary descriptions set forth in deeds.
Fortunately, additional evidence can often be admitted, and may be given considerable weight by the court. This evidence can include
- recorded development plans (ANR, subdivision)
- Land Court registration plans
- instrument surveys undertaken by a qualified land surveyor
- photographs (aerial, street level)
- historical maps
- assessor’s plans
- found marks (iron pipes, concrete bounds) referenced in plans
- evidence of former structures (foundations, fences)
- testimony about past use of the area
- court judgments/decrees involving abutting land (particularly registration cases)
No matter how a boundary dispute begins, it is important to gather all of the relevant evidence and utilize appropriate experts at trial, so that the court can make a sound determination of the boundary location.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.
