Opinion
16-P-900
06-22-2017
Paul CUDDY, trustee,& another v. ELDREDGE PUBLIC LIBRARY & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from two cases that were consolidated below and that, in broad summary, sought to determine the ownership and the boundaries of two adjoining parcels of land in Harwich. After a thirteen-day nonjury trial, a judge of the Superior Court declared that (1) the so-called "Ryder" parcel is owned by Paul Cuddy and Paul R. O'Connell, III, as trustees of the Quason Realty Trust (trustees), (2) the so-called "Smith" parcel is owned by the Eldredge Public Library (library) (having an undivided five-eighths interest), the estate of Charlotte E. Webber (having an undivided three-sixteenths interest), William S. Follett (having an undivided three-thirty-seconds interest), and the Norman A. Keyes Trust (having an undivided three-thirty-seconds interest), and (3) the location of the common boundary between the Ryder and Smith parcels. Postjudgment, Peter S. Farber, the attorney who represented the library under a contingent fee agreement, sought to intervene individually in order to assert a claim against the personal representative of the estate of Charlotte Ellen Smith Webber and the beneficiaries of the Norman Keyes Trust (collectively, the interveners) and possibly Follet under a theory that Farber's representation of the library had resulted in a common benefit for which they should, under equitable principles, bear their fair portion of the library's fees and costs. That motion was denied.
Cuddy vs. Eldredge Public Library, Sup. Ct., No. CV05-469; and Cuddy vs. Bailey, Sup. Ct., No. CV08-404.
This ruling is not challenged on appeal.
The library and Farber have appealed. The library contends that (1) the judge erroneously rejected the thirteen-acre call contained in an 1828 deed in favor of the sixteen-acre call contained in an 1856 deed for the same parcel, (2) the judge was required to determine all boundaries of the Smith parcel, not simply the common boundary between the parcels, regardless of the fact that the other abutters were not parties to the litigation, and (3) the judge should have, using equitable principles, awarded the library a portion of its fees and expenses against the interveners. Farber argues that the judge abused his discretion in denying Farber's postjudgment motion to intervene. We affirm.
"Where, as here, a judge acts as the trier of fact, his or her factual findings must be accepted on appeal unless shown to be clearly erroneous." R.M. Packer Co. v. Marmik, LLC, 88 Mass. App. Ct. 654, 655 n.2 (2015), citing Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). Moreover, where, as here, the library and Farber (as appellants) have not included the trial transcript in the record appendix, the judge's "findings are in essence unreviewable." Ibid. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kunen v. First Agric. Natl. Bank of Berkshire County, 6 Mass. App. Ct. 684, 689-691 (1978) ; Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995) ; Buddy's Inc. v. Saugus, 62 Mass. App. Ct. 256, 264 (2004).
The library argues that it was an error of law for the judge to reject the thirteen-acre call in the 1828 deed into Joseph and Zenas Atkins for the so-called "panhandle lot" in favor of the sixteen-acre call contained in an 1856 deed into Samuel Ryder, Sr., for the same parcel. However, the evaluation of which of the two descriptions is more reliable was a factual determination for the judge to make in light of the circumstances, which included (as the judge noted) the relaxed documentation practices concerning woodlots on Cape Cod in the past (and particularly during the nineteenth century as their value declined), the absence of reliable or complete monumentation, the trial testimony (which, as we noted, cannot be reviewed because it is not in the record appendix), and the loss of documents resulting from the 1827 destruction by fire of the Barnstable County registry of deeds, and—of particular importance here—the history of the various transfers, as well as the points in time at which, and the identities of the parties among whom, they occurred. See Paull v. Kelly, 62 Mass. App. Ct. 673, 679 (2004), quoting from Hurlbut Rogers Mach. Co. v. Boston & Me. R.R., 235 Mass. 402, 403 (1920) ("When a boundary line is in controversy, it is ‘a question of fact on all the evidence, including the various surveys and plans ... where the true line originally ran, and was to be established’ "). Central to the judge's conclusion was his subsidiary finding that the deed into Ryder, Sr., for the panhandle lot included the third and fourth lots of the first division of the Kendrick, Sr., tract. That subsidiary finding, together with the inference the judge drew concerning the likelihood that it was Solomon Kendrick, rather than Nathan Kendrick, who bought Thomas Kendrick, Jr.'s, fourth lot, were sufficient bases upon which the judge could conclude that the sixteen-acre description in the 1856 deed was more reliable. "The location on the ground today of what was described in [an 1800's deed] presents a question of fact to be decided ‘on all the evidence, including various surveys and plans.’ ‘Any competent evidence may be considered in determining the true boundary lines between adjoining owners.’ It [is] for the judge to decide whether upon all the testimony and evidence it [is] more accurate to rely on one expert over another or ancient plans over more recent plans." Bernier v. Fredette, 85 Mass. App. Ct. 265, 268 (2014) (citations omitted).
The library relies on the hierarchy of priorities for construing deeds. See Holmes v. Barrett, 269 Mass. 497, 500 (1929) ; Morse v. Chase, 305 Mass. 504, 507 (1940) ; White v. Hartigan, 464 Mass. 400, 411 (2013). However, the doctrine is not helpful here because, as the library acknowledges, the only element of the hierarchy present in either deed is the description. Thus, this is not a case where the judge was asked to resolve conflicts within a deed, but rather one where the judge needed to decide which of two deeds was more reliable.
The library next argues that the judge abused his discretion by declining to declare all boundaries of the Smith parcel, including those shared with nonparty abutters. The library has cited no legal authority for the proposition that the judge was required to declare all perimeter boundaries simply because the library sought such relief in its complaint and that relief was within the court's jurisdiction. Nor has the library pointed us to any authority for the proposition that a judge abuses his discretion when he declines to declare boundaries with abutters who have not been made parties to the litigation or whose interests are not otherwise represented. Here, although the library sought a declaration as to all boundaries of the Smith parcel, the record does not show that it made any effort to join affected adjoining property owners. In these circumstances, we discern no abuse of discretion in the judge's decision not to declare those boundaries. See Mass.R.Civ.P. 19, 365 Mass. 765 (1974).
The library and Farber also argue that, under the common-fund doctrine, the judge should have required the interveners to pay their pro rata share of the library's fees and costs of litigation. See Commissioner of Ins. v. Massachusetts Acc. Co., 318 Mass. 238, 242-243 (1945) ("Where a litigant at his own expense has been successful in creating, preserving, protecting or increasing a fund in which others have a right to share, the court having control of that fund may order the payment of counsel fees or costs as between solicitor and client out of the fund, ... or the court may make the right of others to share in the fund conditional upon their contributing proportionately to the expenses of the litigation"). The doctrine is inapplicable here because there is no common fund.
Moreover, even if one were to style this as a case of common benefit, we still would discern no abuse of discretion in not requiring the interveners to shoulder a portion of the library's fees and costs. Carlson v. Withers, 16 Mass. App. Ct. 924, 925 (1983) ("A trial judge is accorded considerable discretion in determining 'whether the requirements of intervention have been met ..., and his decision will not be reversed in the absence of an abuse of such discretion' " [citation omitted] ). To the extent there was any common benefit shared with the interveners, it was not achieved by the library or Farber. Indeed, not until the interveners appeared through their own counsel did they achieve any benefit from the litigation at all. Before then, Farber's efforts had deprived the interveners of their interest in the Smith parcel.
Deciding as we do, we need not reach Farber's argument that his fees should be assessed against the interveners using the lodestar method.
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Judgment affirmed.
Order denying intervention affirmed.