Volpe v. Marina Parks, Inc.

220 A.2d 525, 101 R.I. 80, 1966 R.I. LEXIS 358
CourtSupreme Court of Rhode Island
DecidedJune 20, 1966
DocketEq. No. 3286
StatusPublished
Cited by19 cases

This text of 220 A.2d 525 (Volpe v. Marina Parks, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Volpe v. Marina Parks, Inc., 220 A.2d 525, 101 R.I. 80, 1966 R.I. LEXIS 358 (R.I. 1966).

Opinion

*81 Kelleher, J.

This bill in equity was brought to establish title and the right to possession of certain real estate •therein described, to remove certain clouds on title, and for other incidental relief. The cause was heard in the superior •court on the answers of the respondents, one answer being in the nature of a cross bill and proof. The trial justice granted the prayers of the complainants’ bill. From a decree to this effect both respondents have appealed to this court.

In dispute is title to a parcel of land located on Apponaug Cove in Warwick, Rhode Island. The waters of Apponaug Cove are tide wiaters. They were formerly known as Cowesett- Bay but today are known as Greenwich Bay. We will refer to them herein as Cowesett Bay.

The chain of title by which both complainants and respondent Dickerson claim title to' a portion of the land in question is ‘anchored in their common grantor, Herbert C. *82 Calef. Respondent Marina Parks, Inc. in its answer claimed no interest in the subject real estate.

The record shows that on June 28, 1909, Calef purchased a large tract of land in the Apponaug section of Warwick known as Arnold’s Neck. This land was platted into lots and several streets were laid out and designated on this plat. It was duly recorded in the records of land evidence in Warwick and entitled “Arnolds Neck Plat, belonging to Herbert C. Calef. By Frank E. Waterman. July 1909.” Hereafter we shall refer to this plat as the Arnold’s Neck Plat.

On August 24, 1910, Calef conveyed lots A and B on the Arnold’s Neck Plat together with all riparian, water, shore and fishing rights appurtenant thereto to- the Arnold’s Neck Boat Club. The various rights set forth in the conveyance to the boat club were further described as being located between two. points on the plat known as Shell Point and Long Point. This property with the various rights set forth was ultimately conveyed to respondent Dickerson by deed recorded June 9, 1959.

Lot 3 on the Arnold’s Neele Plat was conveyed by Calef to Willard F. Lowe by deed dated June 2, 1911. Title to this lot was transferred several times until May 24, 1960, when it was conveyed to the complainants. In all the conveyances the property was described by lot number and reference to the plat. No metes and bounds description was used.

An examination of the Arnold’s Neck Plat shows that it is bordered on the northwest by the right of way of the New York, New Haven and Hartford Railroad, on the northeast and southeast by Cowesett Bay, and on the southwest by Mary’s Creek. A street or way begins in the northeasterly corner of the plat near lot C and runs in a general southeasterly direction along Cowesett Bay to Long Point. It -is described on the plat as “Shore Walk.” It is met by *83 a street 20 feet in width which runs in a general southerly direction past lot 3 and past lot A towards Shell Point. As it passes Shell Point it becomes 50 feet in width.

The outer edge of this street as it passes lot 3 on the plat is drawn as a straight line showing no land lying to the east but the Warwick tax assessor’s plat shows land lying to the east of this street.

Both parties agree that on August 21, 1958, the 20-foot street immediately to the east of lot 3 was abandoned by the city of Warwick.

Calef died testate on March 9, 1957, leaving all his property equally to his two children. On December 10, 1959, they conveyed their interest in the land lying to. the east of lot 3 to Dickerson together with all riparian and other rights along the shore between Long Point and Shell Point.

It was agreed that lot 3 on the Arnold’s Neck Plat contained approximately 5,880 square feet. By deeds recorded January 8, 1962, however, complainants conveyed to a straw a parcel of land on Cowesett Bay having an area of approximately 9,750 square feet and the land was then reconveyed to complainants. The description in both deeds was prepared for complainants by their surveyor.

The surveyor testified that the description was prepared after he had first determined the mean high-water mark to the east of the land abutting lot 3 and as a result of conferring with complainants’ attorney. The description was compiled by adding to lot 3 a parcel of land which runs from the easterly boundary of the lot to the mean high-water mark of Cowesett Bay, including therein land upon which the platted street existed and the land between the easterly edge of said platted street and the mean high-water line of the bay. The surveyor had been an employee of the -city of Warwick for a number of years and had never observed any highway at this location.

In his testimony complainants’ surveyor stated that it *84 ■was possible that the Arnold’s Neck Plat did not show all the land owned by Calef. Respondent. Dickerson produced a marine scientist who gave an opinion that the shore line of Cowesett Bay had changed little over the years.

In June 1962 complainants, pursuant to the provisions of G. L. 1956, §46-6-2, sought from the director of public works approval of their plans to construct a pier in front of their property which would project into the waters of the bay.

Respondent Dickerson became aware of complainants’ efforts and on July 6, 1962, pursuant to §34-7-6, notice was served on 'complainants- that he was contesting their title to the land east of lot 3. This litigation then followed.

In his decision and decree the trial justice refers to the street which abuts the easterly edge of lot 3 as Shore Walk. The witnesses, however, all referred to this street as being known as Northup avenue or Midgley avenue and it was by these names that it was abandoned by the city of Warwick. We will refrain from using any name. Where we use the name Shore Walk in this decision we are referring to that way or street which runs in a general southeasterly direction on the Arnold’s Neck Plat beginning near lot C and proceeding to- Long Point. The trial justice found that there was land owned by Calef which was not depicted on the Arnold’s Neck Plat lying between the outer edge of the street and the mean high-water mark of Cowesett Bay. He found that this land was intended -by Calef to be dedicated ias part of the street. He also found that there had been no appreciable change in the mean high-water mark in the waters of the bay surrounding -the plat from the time of its filing. He further declared the deed from the heirs of Calef to respondent Dickerson to be null and void because he ruled that they had no interest to convey in the land in 'question.

These findings were in amplification of his decision wherein the trial justice found that all the land to the east of lot *85 3 to the mean high-water mark was a public road and upon abandonment title reverted to complainants as owners of the abutting lot.

The bulk of the evidence in this case is documentary •consisting for the most part of deeds, plats and correspondence. The testimonial evidence given by the witnesses was substantially uncontradicted.

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Bluebook (online)
220 A.2d 525, 101 R.I. 80, 1966 R.I. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volpe-v-marina-parks-inc-ri-1966.