PETITION, filed in the Land Court on January 17, 1923, for the registration of the title to certain land bordering on the sea in Barnstable.

In the Land Court, the petition was heard by Davis, J. So far as they related to the questions of law presented by the record, the trial judge found the following facts in substance:

The principal question in controversy was the boundary line between land formerly of Charles R. Codman, predecessor in title of the respondent, and Nickerson and Dottridge, predecessors in title of the petitioner. Nickerson and Dottridge in 1878 conveyed an irregular strip of land along their boundary line to Codman by a deed describing the land as containing two and one-half acres, more or less, the boundary line "beginning at the northwest corner at a point 25 yards from the nearest point where land of said Codman adjoins land of Slade, and thence running south 21 degrees west 281 feet, south 55 degrees east 192 feet, south 19 degrees west 61 feet, south 62 1/2 degrees east to the sea, with a right of way to said Codman, his heirs, and assigns, to and from the shore over our land on the southerly side of the granted premises." The real controversy at the hearing was the location of the line, "south 62 1/2 degrees east to the sea."

As to the point "at the northwest corner" of the grantor's land "25 yards from the nearest point where land of said Codman adjoins land of Slade," the judge found "the testimony shows that the stone monument north of the windmill was set in consequence of a dispute in regard to the boundaries at that point. It does not appear exactly when it was set, but it does appear that it was set in the spot at which the existing ancient farm fences cornered. It represents the corner of the Nickerson and Dottridge and Codman land as actually existing in 1878, and is distant twenty-five yards from the corner of the Slade land as that corner was then established by ancient fences. This was the point of beginning in the deed of 1878. The course from that point called for by that deed coincides with a fence which has been standing for over twenty years and which ends at the boundary line established by the parties by over twenty years occupation, but is on the boundary line called for by the deed, both as to the course and distance."

The judge admitted evidence, that, owing to a dispute between the adjoining owners in 1905, a surveyor was employed and a line running to the sea orally agreed upon, and that in 1911 Codman built a fence slightly back on his own land from the line so agreed upon, which fence still was standing. The line so established by oral agreement in 1905 the judge established as the boundary line, denominating it the "Bourne line." It made the angle, described in the last boundary in the deed to Codman as "south 62 1/2 degrees east to the sea," to be "south 61 degrees 18 minutes and 30 seconds east."

The decision of the judge of the Land Court continues: "I find no case exactly like this in the books. It somewhat resembles Cleaveland v. Flagg, 4 Cush. 76; Miles v. Barrows, 122 Mass. 579; Iverson v. Swan, 169 Mass. 582, and Temple v. Benson, 213 Mass. 128, but differs from each of those cases in some essential particular. The petitioner argues that it was clearly the intention of the parties to describe the courses and distances marked out by the stakes as originally placed by Dottridge and Childs. But it is what the parties actually did, not what they had previously planned to do, that governs. There was no reference to any of these stakes or to any other monument in the deed, direct or indirect. Nor was there any patent ambiguity in the deed itself, or latent ambiguity developed in applying the description to the ground. On the other hand, the whole course of the line in controversy was not visible on the ground. Its seaward end could not be seen from the point of departure on the upland, nor could the upland end of the line be seen from the beach. Its location was certain mathematically, but for practical purposes was uncertain. It was necessary to have it located by a surveyor, and it was for this reason and for this purpose that Mr. Bourne made his survey in 1905 for all of the parties in interest.

"His line was accepted, and Col. Codman built his fence just far enough back therefrom to have it all on his own land. The petitioner has erected structures in reliance thereon, and made use of the beach in connection with the hotel in accordance therewith. The deed line, if mathematically carried out, will go straight through the petitioner's summer house. The petitioner's occupation however has not been maintained for over twenty years. On the other hand, the situation is not like that in Iverson v. Swan, where the `building of the fence was not in pursuance of an agreement to settle a doubt, even in the parties' minds.' It was built just back from a line that had been established by Bourne for the very purpose of settling a doubt, or rather an uncertainty. It varied by a very small fraction from the correct angle at its starting point on the upland, with a resultant variation of about seven feet at the high water mark of 1878. But notwithstanding this variation, it was an attempt to place on the ground on behalf of all the parties the boundary line the location of which was at that point uncertain, not mathematically but practically. There was no latent ambiguity in the application of the line to the land, as in Temple v. Benson, but there was a latent uncertainty. The parties undertook in good faith to have this uncertainty determined. They adopted Mr. Bourne's determination, and they both acted on that determination. If it had not been for the unfortunate subsequent attempts by Mr. Bourne to locate the line which he had thus determined, there would have been no controversy. I think that the parties intended to be bound by the Bourne location, and that they were bound by it. I rule that the boundary line from the upland to high water mark is the line which I have found to be the Bourne line."

The exceptions saved by the respondent were to rulings by the trial judge admitting and acting upon evidence tending to show that subsequent to the deed of 1878, (viz. in 1905), the parties established by parol a boundary line between them from the upland to high-water mark, on a line differing from the deed line as described in said deed by monuments, courses and distances; to a refusal by the judge to rule "that a parol agreement by the parties, even if such agreement were proved, so locating the boundary lines, or any of them, as to contradict the terms of the Codman deed of 1878, is not admissible to alter or vary the boundary lines described by monuments, courses and distances in said deed, unless accompanied by exclusive possession for at least twenty years prior to the commencement of suit," to a refusal by the judge to rule that "the boundary line must be located in accordance with the deed lines as described by courses and distances in the deed to Codman in 1878, starting from the stone monument north of the windmill"; to the ruling establishing the "Bourne line" as the boundary line, and to the ruling and decision that, "it having been found and determined that the existing fence running in a southwesterly direction from the stone monument north of the windmill corresponds with the first course in the deed to Codman in 1878, and that the deed lines, as determined by the courses and distances specified in said deed can be, and have been located on the ground with exactness, nevertheless that such deed lines are not controlling in fixing the boundary line from the upland to high-water mark."

The case was submitted on briefs.