By DAN TOMASELLO
LYNNFIELD — The search for the West Burying Ground Cemetery’s missing deed continues.
Historical Commission member Abby Kilgore recalled during a July 17 meeting that the board had to withdraw a grant proposal submitted to the Massachusetts Historical Commission earlier this year. The grant would have been used to repair gravestones at the West Burying Ground Cemetery that abuts Lynnfield Middle School.
“We are looking to clean it up,” said Kilgore. “One of the issues we ran into with the state is we do not have a deed that says the town owns the land. That is why the project couldn’t move forward. We don’t know where to get it.”
Town Counsel Tom Mullen noted that missing deeds for historic properties is “not an unusual situation.”
“It’s an old commonwealth and a lot of municipal properties, including cemeteries, often date back hundreds of years,” said Mullen.
Mullen said the Historical Commission could have a title examination undertaken for the West Burying Ground Cemetery.
“That is not something I can do for you,” said Mullen. “Title examiners are specialists and are not necessarily lawyers. I can hire a title examiner for you if I get authorization from the Select Board.”
Mullen noted that deeds can be located by using the Southern Essex District Registry of Deeds’ Grantor and Grantee Index.
“The town of Lynnfield, like every other town, is a repeat player throughout history,” said Mullen. “That is complicated and time-consuming.”
Mullen said a title examiner would recommend that the Historical Commission provide the individual with background information about the property and abutting properties.
“It is likely that the town acquired this property from someone who was an abutter,” said Mullen.
Historical Commission Chairman Kirk Mansfield recalled that that the town previously had trouble locating the deed for Pillings Pond while Gagnon Welding and Contracting was undertaking the dredging project in the 1990s.
In response to a question from Mansfield, Mullen said the town could also pursue a tri-title action in Land Court.
“That means we would go to court and would in effect say to the judge this is everybody who could conceivably have an interest in this land,” said Mullen. “We would sue all of them and challenge them to prove they have the title. I can say that 99.9 percent of those people are not going to respond. That is an expensive process, and you begin that with a title examination because you need to know who those people are.”
Kilgore noted that the West Burying Ground Cemetery is included on the National Register of Historic Places. She inquired if federal government could have a copy of the deed.
“Whether your property is on the National Register of Historic Places or not has close to zero legal significance,” said Mullen. “The only advantage legally is you become eligible for certain tax benefits.”
Historical Commission member Bob MacKendrick asked if the state’s adverse possession law can be applied to the West Burying Ground Cemetery restoration project.
Mullen said a prescriptive easement, which applies to properties that are used by the public, would be more applicable.
“We can certainly do that, and it would be part of the Land Court action,” said Mullen. “It’s not automatic. You have to go to court and have a judge say that the public has acquired rights to this property by prescription.”
In response to a question from MacKendrick, Mullen said he did not believe there would be any opposition to a prescriptive easement or a tri-title action in Land Court.
“There is just a process that you have to go through,” said Mullen. “It’s not cheap and it’s not quick.”
Mansfield inquired how long either process will take.
Mullen said it will take time to figure out “who to sue.”
“You have to convince a title examiner in the Land Court that you have identified who would have any interest in that property,” said Mullen. “You also have to figure out who are their descendants today. You end up not only just looking through deeds, but the probate records. That is much more difficult. We do that in the first instance and the Land Court checks our work.”
Mullen also suggested that the Historical Commission review Town Meeting records from hundreds of years ago to figure out when Lynnfield acquired the West Burying Ground Cemetery property.
“The town’s acquisition of the cemetery had to be approved by Town Meeting,” said Mullen. “That would help you narrow down a lot of the information. It might also identify the person from whom the property was acquired.”
Kilgore said the Historical Commission can continue working on the West Burying Ground Cemetery restoration project without the state grant. While the commission has been working with Epoch Preservation, Inc., which specializes with preserving historic gravestones, on the initiative, she said the commission will need to have a request for proposals (RFP) go out to bid for the project before the work begins.
“We can do it in little sections to get it started,” said Kilgore. “As long as we do it through an RFP, we are allowed to start part of the project with our own funds.”