318 Mass. 599 | Mass. | 1945
This is a petition in the Land Court to register title to a parcel of land in Belchertown. The respondent, an abutter on the east and south, filed an answer denying the petitioner’s title. The actual dispute concerned the eastern boundary and part of the southern boundary. The judge filed a decision in which he found that these boundaries were as contended by the respondent, and that the petitioner was entitled to register title to a portion only of the parcel. The petitioner appealed.
At the outset of the hearing in the Land Court the parties agreed upon all the boundaries except that on the east and-the eastern part of that on the south. In so doing they agreed that the easternmost point of the northern boundary was a four inch elm tree shown on a plan in evidence made by the engineer of the court. The judge in reliance upon the agreement made findings which the petitioner concedes he cannot now dispute unless he be allowed to withdraw from the agreement on the ground that it is obviously at variance with the facts. His present contention, advanced for the first time in this court, in the main is that the agreement was made in the misapprehension that this elm was the same as “a small elm tree near Bachelors Brook” mentioned in a deed of 1901 to a predecessor in title of the petitioner given by one Davison, who was a common owner of all the land now held by the parties; that this in the nature of things could not have been true; and that also the plan showed no brook at this point. The record, however, does not disclose any such basis for the agreement. The petitioner may not of right withdraw from the stipulation of counsel made in open court and adopted by the trial judge as a foundation for his conclusions. Wyness v.
Decision affirmed.