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SJC-11603
BRIAN S. HICKEY & others1 vs. PATHWAYS ASSOCIATION, INC., &
others.2
Suffolk. October 7, 2014. - September 22, 2015.
Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines,
JJ.
Beach. Way, Private. Real Property, Registered land:
Easement, Beach, Easement. Easement.
1
Mary P. Hickey, Lorraine M. Paglia, and Robert L. Paglia.
2
Kathleen D. Homa, Theodore M. Homa, Evelyn A. Jenkins,
Jane W. Loiselle, John R. Loiselle, James T. Moshier, Mary E.
Moshier, Joseph J. Rahal, Mary G. Rahal, Irving A. Wilson,
Martha K. Young, Roland W. Young, Norman Allentoff, Patricia M.
Becker, Robert Becker, Rebecca S. Blair, Wesley K. Blair, III,
Carole R. Bohn, Geraldine Burstein, Joseph Burstein, Frank
Carrick, Jean Carrick, Marie C. Creonte, William T. Creonte,
Craig P. Eddy, Julia H. Eddy, Robert A. Furman, Elaine Giberti,
Richard Giberti, Susan M. Hennessey, Pamela A. Maher, Paul J.
Maher, Barbara Jessel, Martin Jessel, Karen LaFauci, James
Maguire, Mary Maguire, Geoffrey L. Mahon, Mary Ellen Manock,
Arthur Maressa, Gary McWilliams, Rosalind Neuman, Sanford
Neuman, Marcia O'Shea, Richard O'Shea, Julie A. Piantedosi,
Lewis R. Piantedosi, Paul W. Pietro, Susan E. Pietro, Joseph
Russo, Suzanne Russo, Ronald S. Saks, Sharalyn Saks, Ann
Christine Tobey, William Banks Tobey, Joseph Tosh, Christine M.
Tosti, Christopher P. Tosti, Dorothy L. Tosti, Andrew Tvirbutas,
Catherine Tvirbutas, Elizabeth Walker, John J. Walker, Kristin
M. Walker, Michelle T. Walker, Susan L. Walker, Dudley Woodward,
Karen Woodward, and Bayview Limited Partnership.
2
Civil action commenced in the Land Court Department on
April 15, 2009.
The case was heard by Karyn F. Scheier, J., on a case
stated.
The Supreme Judicial Court granted an application for
direct appellate review.
Jennifer S.D. Roberts for Lorraine M. Paglia & another.
Brian M. Hurley for Brian S. Hickey & another.
Kevin T. Smith for Elizabeth J. Walker & others.
David L. Delaney for Pamela A. Maher & others.
Roland W. Young, pro se.
Peter L. Freeman, for William J. Creonte & others, was
present but did not argue.
LENK, J. This case involves a dispute among landowners in
the same subdivision over access rights over a private way to
the beach. The plaintiffs own two beachfront lots in the town
of Dennis (town), fronting on Shore Drive. Shore Drive runs
along the waterfront parallel to Cape Cod Bay. The plaintiffs'
lots are separated by a twenty-foot way that extends south from
Cape Cod Bay, along the length of the lots, to Shore Drive. The
defendants3 own lots located to the south and west of the
3
A number of the defendants in the Land Court did not
pursue an appeal. Another seven defendants, who own waterfront
lots that appear on the subdivision plans showing the
plaintiffs' lots (James J. Lepore, Douglas and Patricia Suliman,
N. Richard and Karen Greenfield, and Jack and Claire Chaflin),
filed a joint stipulation of dismissal in December, 2010,
several years before the Land Court judge issued her decision.
For simplicity, we refer to the set of defendants who pursued an
appeal as "the defendants."
3
plaintiffs' lots, starting from the inland side of Shore Drive.
All of the land involved is registered land; it had formed part
of a 217.24 acre tract of land originally owned by Frank B.
Tobey and registered in the Land Court in 1903. In 1917, Tobey
conveyed the parcel to two sisters who thereafter subdivided the
parcel repeatedly through 1977. Over that sixty-year period,
they subdivided the parcel a small section of residential lots
at a time. The way appears on the subdivision plans creating
the plaintiffs' lots, and on some of the plans creating the
defendants' lots.
The defendants maintain that, according to provisions in
their deeds and certificates of title, all of which reference
easements over ways in subdivision plans, they hold rights of
access over the way. The plaintiffs contend that they hold all
ownership rights in the way, and the defendants have no right to
use it for any purpose. The plaintiffs claim that, once the
sisters sold the second of their two lots to the plaintiffs'
predecessors in interest, the way as it appears on the
subdivision plans ceased to exist, with each of their
predecessors in interest acquiring title to one-half of the way,
and no one else retaining any rights of access. In support of
this contention, the plaintiffs offer a series of arguments,
some of which are contradictory to others.
If the land at issue here were recorded land, it is
4
unlikely that this case would be before us. Under long-standing
common-law rules of interpretation of deeds containing
references to plans, the defendants' understanding likely would
prevail. However, this is registered land. And the land
registration act provides that "[e]very plaintiff receiving a
certificate of title in pursuance of a judgment of registration,
and every subsequent purchaser of registered land taking a
certificate of title for value and in good faith, shall hold the
same free from all encumbrances except those noted" on
the certificate. G. L. c. 185, § 46. While the plaintiffs'
deeds contain provisions granting easement rights over the way
from the original developers to the plaintiffs' predecessors in
interest, it is undisputed that the plaintiffs' certificates of
title do not contain a specific encumbrance showing an easement
right held by any one of the named defendants. Therefore, we
confront the question whether easements claimed over registered
land to provide waterfront access from the defendants' inland
lots are binding against the plaintiffs, where easements
benefiting the defendants do not appear on the plaintiffs'
certificates of title, but are noted in various forms on the
defendant lot owners' certificates of title and in plans
referenced in those certificates.
The plaintiffs filed an action in the Land Court to quiet
title and for declaratory relief against twenty named defendants
5
and persons "unascertained or unknown claiming as successors of
Frank B. Tobey." Ultimately, the case proceeded with almost
seventy named lot holder defendants holding thirty-eight
certificates of title. Relying on a common-law presumption, the
judge determined that the plaintiffs hold the fee in the way,
each abutter owning the land from the lot line to the center
line of the way.
In evaluating the defendants' claims to easements over the
way, the judge divided the defendants into three main groups.
The division was based on differences in the language in the
defendants' certificates of title concerning access over ways
shown on different subdivision plans. The first group of
defendants holds certificates granting them access over the ways
shown in "all other plans in Land Court Case No. 647," the
original Land Court case under which the 217 acre parcel was
registered in 1903. The second group of defendants holds
certificates of title granting them access over all ways shown
on Land Court Plan 647-G (G Plan); that plan, which also shows
the earlier subdivision plans establishing the plaintiffs' lots
and the way, created thirty-two lots, moving several blocks
inland from the plaintiffs' lots. The third group of defendants
holds certificates of title referencing ways appearing on
subdivision plans, other than the G Plan, that show their
particular lots. Many of those defendants' certificates
6
reference Land Court Plan 647-M (M Plan), which created
approximately eighty lots south and southwest of the lots on the
G Plan. Other of those defendants' certificates reference later
plans showing small sections of lots created by reconfiguring a
series of lots on a given street shown on the G or M Plans,
without changing any of the public or private ways shown on the
G or M Plans. The judge concluded that the lot owners in the
first and second groups hold rights of access over the way, and
the owners in the third group do not.
The plaintiffs appealed, and a number of the defendants
filed cross appeals. Thereafter, we allowed the plaintiffs'
application for direct appellate review. Because the defendants
successfully rebutted the common-law presumption, we determine
that the plaintiffs do not hold the fee in the way. We conclude
also that, as to the first two groups of defendants, the judge
was correct in determining that the defendants hold easements
over the way. We conclude further that, as to the third group
of defendants, and all but two of the unclassified defendants,4
4
Certain defendants were not classified into any of the
three groups. For varying reasons, the judge concluded that
certain of those unclassified defendants hold access rights over
the way, and eleven do not. We conclude that the judge was
correct in deciding that two of those defendants, Rosalind and
Stanford Neuman, whose names do not appear on any certificate of
title submitted to the Land Court, do not hold easements over
the way. As to the other defendants, who hold Certificates No.
190691 (Walker), 110223 (Maressa), 164891 (Tosti), and 179868
(Tobey), we conclude that they hold easement rights over the way
7
they, too, hold easements for access to the waterfront over the
way.
1. Background. The Land Court judge reached her
determination on a "case stated" basis, relying upon facts
stipulated by all of the parties and 285 exhibits, largely
copies of documents filed in the Barnstable Registry District of
the Land Court. After she issued her initial decision in April,
2013, the judge allowed the parties to submit proposed
corrections of stipulated facts and other requested
modifications. In July, 2013, the judge issued an amended final
decision, allowed a motion for entry of judgment, and modified a
preliminary injunction prohibiting access to the way, entered at
the request of the plaintiffs in June, 2010, such that the
successful defendants were permitted to use the way. We
summarize the undisputed facts, reserving certain facts for
later discussion of the issues.
a. Development of the registered parcel. The plaintiffs,
Brian S. Hickey, Mary P. Hickey, Robert L. Paglia, and Lorraine
M. Paglia, own two beachfront lots in the town, Lots X and J
respectively. The lots, fronting on Shore Drive, are separated
by a twenty-foot way that extends south from Cape Cod Bay, along
the approximately 280 foot length of the plaintiffs' lots, and
for reasons similar to those for the owners in the second and
third groups. See discussion, infra.
8
ends at Shore Drive. The defendant lot owners hold thirty-eight
certificates of title to lots inland of the plaintiffs' lots, on
the inland side of Shore Drive, south of the plaintiffs' lots.
All of the lots involved initially formed part of a 217.24 acre
tract of land owned by Frank B. Tobey. In 1903, Tobey brought a
proceeding in the Land Court, Registration Case No. 647, to
register the parcel pursuant to G. L. c. 185. He was issued
certificate of title No. 16, under plan 647-A.
The registered parcel was first subdivided in June, 1917,
when it was conveyed to the original developers, sisters Lunette
Luscombe and Ruth T. Morley, under Plan 647-B (B Plan). The
B Plan subdivided the easternmost part of the 217 acre parcel,
bounded on the north by Cape Cod Bay and on the west by a "road"
now known as Nobscussett Road, into 155 lots.5 In 1925, Luscombe
and Morley conveyed the land to the Nobscussett Realty Trust
(their family trust) and, in 1928, conveyed another subdivision
5
The B Plan is divided into two sheets. The first sheet
creates a series of waterfront lots along a street paralleling
Cape Cod Bay, with four ten-foot ways extending between every
three waterfront lots, from the road to the beach. A strip of
beach, approximately 150 feet wide, runs along the waterfront
the entire length of the plan, and is itself labeled as a lot.
South of the waterfront road, the plan creates two more parallel
streets running east-west, with several connecting streets
running north-south from the waterfront road. The second sheet
creates an additional eight blocks of residential lots, further
inland from the lots on the first sheet, with north-south
streets connecting to the streets shown on the first sheet, and
extending inland to the boundary of the developers' land.
9
of the 217 acre parcel, the C Plan.6
In June, 1935, the entire 217 acre parcel was reconveyed to
Luscombe and Morley, who were issued Certificate of Title No.
3710 (Certificate No. 3710). After they reacquired the
registered parcel, Luscombe and Morley began developing
residential lots to the west of Nobscussett Road, in a similar
fashion to the earlier subdivision on the B Plan. Luscombe and
Morley proceeded first to develop lots along the shore line from
east to west, and then from the south side of Shore Drive
inland.
The plaintiffs' lots were created on subdivision plans 647-
D (D Plan) and 647-F (F Plan), in 1936 and 1938. These plans
show five and thirteen residential lots, respectively, along
Cape Cod Bay to the north of a road now known as Shore Drive.
The twenty-foot way at issue first appeared on the D Plan. It
is shown on the western side of the D Plan, and abuts the
western boundary of the lot that is now the Paglias'. Shore
Drive (labeled "Road") is shown extending open-ended on the
western edge of the D Plan.7 The eastern boundary of the
6
The C Plan is essentially a square running south from Cape
Cod Bay, immediately to the west of Nobscussett Road,
encompassing much of the land at issue here, including the land
on the D, F, and G Plans.
7
On the eastern side of the D Plan, a perpendicular road,
also now known as Shore Drive, extends north to the shoreline,
along the eastern edge of the easternmost lot, and extends south
10
easternmost lot on the F Plan, now the Hickeys' lot, abuts the
way to the west of the Paglias' lot.8 The defendants' lots,
south of Shore Drive, were created on subdivision plans 647-G,
647-M, 647-S, 647-2, 647-8, 647-11, and 647-15, from 1940
through 1977.9
When the plaintiffs acquired their lots in 1994 and 1999, a
large wooden staircase standing at the waterfront end of the
to a road owned by the town of Dennis (town). At that time,
Luscombe and Morley also owned all of the land between Shore
Drive and the town road.
8
In 1937, between the filing of the D and F plans, Luscombe
and Morley filed the E Plan, which subdivided the westernmost
part of their 217 acre parcel, a portion that jutted west along
the waterfront; unlike the land south of the D and F Plans,
Luscombe and Morley did not own the land south of the land on
the E Plan. The E Plan created one large waterfront lot, Lot K,
two smaller inland lots, Lots L and M, immediately south of Lot
K, and a road now known as BayView Road leading southeast from
Lot K, between lots L and M, and thence along the western edge
of the developers' parcel. In May, 1937, the town took Bayview
Road by an exercise of eminent domain. Approximately one month
later, Luscombe and Morley conveyed Lot K to the town; it became
a public beach, with public parking added later on Lots L and M.
In 1945, the town took the Common Landing parcel, a waterfront
parcel at the northern terminus of Shore Drive, and took an
easement in Shore Drive from that point west to Bayview Road.
All of these takings, which provided public access to the
waterfront at the westernmost and midway points of the original
parcel, occurred before Luscombe and Morley conveyed any lots to
the defendants' predecessors in interest.
9
For convenience, an overlay combining the individual Land
Court plans into a single document is attached in the Appendix.
It is similar to a map prepared by some of the parties during
proceedings in the Land Court, and submitted in the record
appendices in their briefs, that was not an exhibit in the
summary judgment record.
11
area of the way led from the dunes and rocks down to the beach.
For some years, the plaintiffs saw the way being used, but took
no action; the Hickeys maintained in argument before us that
they allowed this use as permissive. Several years before
commencing litigation in the Land Court, however, the plaintiffs
decided that they no longer wanted this use to continue;
eventually, contending that the staircase was dangerous because
of damage to some of the supporting posts, the Paglias obtained
permission from the town to remove it. The Land Court judge's
order explicitly permitted those defendants whom she concluded
had access rights over the way to repair or rebuild the
staircase and to make use of the way.10
b. Judge's classification of defendant lot holders. As
stated, the judge divided most of the defendants into three
groups, based on language in their certificates of title. The
first group of owners (fourteen certificates of title) hold
certificates of title and deeds that state, either directly or
by incorporating a reference to an earlier certificate or deed,
that the owners "have, as appurtenant to said parcel, a right to
use all ways shown on all other plans filed in Land Court Case
No. 647, for all purposes in common with others entitled
10
An easement on registered land cannot be extinguished
through nonuse or prescription. See G. L. c. 185, § 53; Cater
v. Bednarek, 462 Mass. 523, 528-529 & n.15 (2012); Lasell
College v. Leonard, 32 Mass. App. Ct. 383, 390 (1992).
12
thereto." The second group of owners (seven certificates of
title) have certificates of title and deeds explicitly granting
access to all ways shown on the G Plan.11
The third group of owners hold eleven certificates of title
to lots shown on derivatives of the G Plan, and to lots shown on
the M Plan and plans reconfiguring specific lots on that plan.
Their certificates of title reference rights to ways appearing
on subdivision plans showing their particular lots; the
certificates do not explicitly reference the G Plan or
explicitly grant rights to use all of the plans in Case No. 647.
The certificates state, either directly or by incorporating a
reference to an earlier certificate or deed, that "there is
appurtenant to [the lot] a right to use the ways shown on [the
plan showing the lot] for all purposes common with others
entitled thereto."
2. Discussion. The plaintiffs maintain that the judge
erred in concluding that any party other than the plaintiffs
themselves has rights to use the way. They argue that the judge
determined correctly that, under common-law principles
11
The G Plan, which creates lots south and east of the
plaintiffs' lots, including those immediately across the street,
on the inland side of Shore Drive, also shows the way, the lots
on the D Plan, and the eastern half of the lots on the F Plan,
including the Hickeys' lot, as well as another way to the water
between two other waterfront lots on the F Plan. The G Plan
also indicates the outlines of the B Plan, the subdivision to
the east of Nobscussett Road.
13
applicable to land conveyed as abutting a way, the plaintiffs
own the fee from their respective lot lines to the center of the
way. Based on this, the plaintiffs contend that, after deeding
the parcels containing what are now the Hickey and Paglia lots
to the plaintiffs' predecessors in interest, Donald B. Aldrich
and Eugene J. and Harriet J. Waldron, respectively, the
developers Luscombe and Morley retained no rights to grant
easements to subsequent purchasers of any other lot. The
plaintiffs argue also that, even if Luscombe and Morley retained
some interest in the way, the judge improperly determined that
the defendants are entitled to easements by estoppel, which the
plaintiffs contend are prohibited under Jackson v. Knott, 418
Mass. 704, 711 (1994) (Jackson).12 The plaintiffs maintain
further that Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass.
App. Ct. 434 (2006) (Lane), and Duddy v. Mankewich, 75 Mass.
App. Ct. 62 (2009) (Duddy), upon which the judge relied, were
wrongly decided, and are contrary to Jackson, supra at 714 n.7,
and to G. L. c. 185. Finally, the plaintiffs argue that the
facts here differ significantly from those in Lane and Duddy,
and that, applying their holdings, which the plaintiffs maintain
are that easements by estoppel may arise on registered land, no
12
In addition, the Paglias argue explicitly, and the
Hickeys suggest, that the exceptions noted in Jackson v. Knott,
418 Mass. 704, 711 (1994) (Jackson), are improper, and that
easements on registered land should be construed strictly to
include only those entries on the certificate of title.
14
easements exist over the way for the benefit of any of the
defendants.
Because the judge issued her decision on a case stated
basis, we review it de novo, drawing our own inferences of fact
and reaching our own conclusions of law. See Richardson v. Lee
Realty Corp., 364 Mass. 632, 634 (1974); Ware v. Hardwick, 67
Mass. App. Ct. 325, 326 (2006).
Having considered the defendants' arguments in rebuttal of
the common-law presumption, we conclude that the defendants have
established the original developers' intent to retain the fee in
the way, and that the plaintiffs hold only easements over the
way. We conclude also, following Jackson, Lane, and Duddy, that
documents on file in the land registration office show Luscombe
and Morley's clear intent to grant easements over the way to the
defendants in both the first and second groups, and, based on
similar reasoning, to the defendants in the third group.
a. Fee in the way. We consider first a question that the
plaintiffs argue is outcome determinative: the ownership of the
fee interest in the way. The plaintiffs maintain that once
Luscombe and Morley conveyed their lots out of the registered
parcel to Aldrich and the Waldrons, Luscombe and Morley had no
rights left in the way to convey to future purchasers of any
other lots, see Darman v. Dunderdale, 362 Mass. 633, 639 (1972),
and thus that any language purporting to grant easements in any
15
of the defendants' certificates of title could not have conveyed
such an interest. The defendants joining one of the briefs
argue that the plaintiffs hold fee in the way, but that Luscombe
and Morley retained an easement interest which they were able to
convey. A majority of the defendants maintain, however, that
the plaintiffs hold only easement rights in the way, in which
Luscombe and Morley retained the fee interest. See Suburban
Land Co. v. Billerica, 314 Mass. 184, 189-190 (1943).
The judge determined that the Hickeys and the Paglias each
own a fee in one-half of the way based on the common-law
presumption13 that a grantor conveying land described as "on" or
"by" a way, who owns title to the way, as here, is presumed to
have conveyed the way to its center line.14 See Rowley v.
Massachusetts Elec. Co., 438 Mass. 798, 803 (2003); Murphy v.
Mart Realty of Brockton, Inc., 348 Mass. 675, 679-681 (1965)
(Murphy).
13
Common-law principles apply here because the derelict fee
statute, G. L. c. 185, § 58, enacted in 1971 and amended in
1990, does not apply retroactively to registered land. G. L.
c. 185, § 2. See generally Hanson v. Cadwell Crossing, LLC, 66
Mass. App. Ct. 497, 499-502 (2006); Adams v. Planning Bd. of
Westwood, 64 Mass. App. Ct. 383, 387-391 (2005).
14
While the judge's decision states that the plaintiffs'
ownership of the fee is a stipulated fact, most of the
defendants did not stipulate to such ownership. Indeed, after
the initial decision was issued, a number of the defendants
challenged that assertion. In her order granting final
judgment, the judge clarified that she relied on the common-law
presumption, but did not further explain her reasoning.
16
Although the plaintiffs present it as a "rule of law" and
state that fee ownership was conveyed to Aldrich and the
Waldrons by "operation of law," the common-law presumption that
a grantor of property abutting a way also conveys the fee to the
center of the way is "not an absolute rule of law irrespective
of manifest intention, but is merely a principle of
interpretation adopted for the purpose of finding out the true
meaning of the words used." Crocker v. Cotting, 166 Mass. 183,
185 (1896). "[A]fter reviewing the cases concerning this rule
of presumed intent, the court [explained] that 'the underlying
principle on which they all rest is that the intent of the
parties in each instance was ascertained from the words used in
the written instrument interpreted in the light of all the
attendant facts. That is the general principle governing the
interpretation of deeds.' Simonds v. Simonds, 199 Mass. 552,
554 (1908)." Suburban Land Co. v. Billerica, 314 Mass. at 189,
quoting Erickson v. Ames, 264 Mass. 436, 444 (1928). See
Patterson v. Paul, 448 Mass. 658, 665 (2007). If there is
ambiguity in the deed concerning whether and to what extent an
easement was intended, rather than a grant of the fee, a court
may consider the circumstances existing at the time the deed was
executed to assist in determining the grantor's intent. Queler
v. Skowron, 438 Mass. 304, 311 (2002); Dunham v. Dodge, 235
Mass. 367, 371-373 (1920).
17
To determine whether the defendants have rebutted the
presumption in this case requires a review of the progression of
the development of the registered parcel and the creation of the
plaintiffs' lots.
i. Paglias' lot. As stated, the Paglias' lot, Lot J, was
created by a subdivision shown on the D Plan, filed in
September, 1936, that created five beachfront lots. Lot J is
bordered by Lot I to the east and by the way to the west. On
September 4, 1936, Luscombe and Morley conveyed Lot J, and the
other four lots shown on the D Plan, to Aldrich, the Paglias'
predecessor in interest. The Aldrich deed described Lot J as
being bounded by Cape Cod Bay to the north, "[w]esterly by a 20-
foot right of way, there measuring two hundred eighty feet (280)
feet . . . ; [s]outherly by a 40-foot road [Shore Drive] . . .
and [e]asterly by 40-foot road [also known as Shore Drive]."
Lot J was conveyed "together with rights of way for all purposes
over said roads and rights of way." Aldrich's certificate of
title states that the land "is subject to and has the benefit of
the easements, restrictions and rights set forth in Document No.
8841 [the Aldrich deed] and Certificate No. 3710 [the Luscombe
and Morley certificate] so far as the same are in force and
applicable." The Paglias acquired Lot J by deed dated August
30, 1999. The Paglias' certificate describes the land as "Lot J
Land Court Plan 647-D."
18
ii. Hickeys' lot. The Hickeys' lot, Lot X, was created in
July, 1938, by a subdivision shown on the F Plan. The F Plan
created thirteen beachfront lots. Lot X is bordered on the east
by the way and on the west by Lot Y. The Paglias' lot, Lot J,
also appears on the F Plan, to the east of Lot X; Lots X and J
are shown on the F Plan as separated from each other by the way.
Two other ways to the water, virtually identical to the way at
issue, also appear on the F Plan, between lots N and O and
between Lots Q and R. In 1944, Luscombe and Morley conveyed
lots X and Y to the Waldrons, the Hickeys' predecessors in
interest. The Waldron deed describes the parcel as bounded
northwesterly by Cape Cod Bay, on the northeast by "a way 20
feet wide [and] 275 feet . . . ," southeasterly by another way
[Shore Drive], and southwesterly by Lot Z. The Waldrons'
certificate of title provides that both Lots X and Y have an
appurtenant "[r]ight of [w]ay over the adjacent ways as shown on
plan 647-F" and that the land "is subject to and has the benefit
of the rights and provisions in Certificate of Title No. 3710,
so far as the same are in force and applicable." The Hickeys
acquired lot X by deed dated May 14, 1994. The Hickeys'
certificate of title describes their land as Lot X in Plan 647-F
and provides:
"Said land is subject to and has the benefit of the
rights and provisions in Certificate of Title No. 3710, so
far as in force and applicable.
19
"There is appurtenant to said land a right of way over
the adjacent ways as shown on said plan 647-F."
iii. Defendants' lots. Lots held by sixteen of the
defendants15 were created on the G Plan, filed in May, 1940. The
majority of the lots of the defendants in the first and second
groups appear on that plan. Another nine of the defendants'
lots were created on the M Plan, filed in June, 1947.16 Many of
the lot of the owners in the third group appear on that plan.
The remaining lots held by the defendants were created by plans
that reconfigured specific lots along individual streets on the
G and M Plans.17
15
Roland W. and Martha K. Young (Lot 236), Lewis R. and
Julie A. Piantedosi (Lot 237), Craig P. and Julia H. Eddy (Lot
238), Dudley and Karen Woodward (Lot 242), William T. and Marie
C. Creonte (Lot 244), Frank and Jean Carrick (Lots 245 and 246),
James and Mary Maguire (Lots 257 and 258), and Jane and John
Loiselle (Lot 259).
16
Theodore M. and Kathleen D. Homa (Lot 323), Ronald S. and
Sharalyn Saks (Lot 324), Joseph and Dorothy L. Tosti (Lot 337),
Robert and Patricia M. Becker (Lot 368), and Karen LaFauci (Lot
387).
17
Plan 647-S (October, 1955), created Lot 522, owned by
defendants Paul W. and Susan E. Pietro.
Plan 647-2 (August, 1964) reconfigured certain lots on the
M plan. It shows lots owned by Wesley K. and Rebecca S. Blair
(Lot 465), Ann Christine Tobey, William Banks Tobey, and Mary
Ellen Manock (all having a one-third interest in Lots 466 and
467), Joseph and Geraldine Burnstein (as having a partnership
interest in partnership holding Lot 471), James T. and Mary E.
Moshier (Lot 476), Norman Allentoff (Lot 478), Joseph and
Suzanne Russo (Lot 479), Richard and Elaine Giberti (Lot 488),
20
iv. Interest in the way reserved by grantors Luscombe and
Morley. The reason for the rule of presumed intent has been
said to be that it is not to be presumed that a grantor, having
conveyed lots bounding on a street "under which the land
presumably would be of little value to a private owner, would
not be expected to care much to retain the title after parting
with all of his property on the side of the street." Gray v.
Kelley, 194 Mass. 533, 537 (1907). See Erickson v. Ames, 264
Mass. 436, 443 (1928).
In Suburban Land Co. v. Billerica, 314 Mass. at 189, we
examined certain deeds in a subdivision to determine whether the
developer had intended to convey the fee in particular ways to
lot holders whose lots abutted the ways, where the deeds were
silent on the question of fee ownership. The town argued that
and Joseph J. and Mary G. Rahal (Lot 491).
Plan 647-8 (July, 1969) reconfigured other lots shown on
the M plan and created lots owned by defendants Christopher P.
and Christine M. Tosti (Lot 515), Richard and Marcia O'Shea (Lot
518), Martin and Barbara Jessel (Lot 523), Robert A. Furman and
Carole R. Bohn (Lot 525), and Gary McWilliams (Lot 527).
Plan 647-11 (May, 1973) reconfigured certain lots shown on
the G Plan and created lots owned by Paul J. and Pamela A. Maher
(Lots 533 and 534), Susan M. Hennessey (Lot 535), Andrew and
Catherine Tvirbutas (Lot 538), and Geoffrey L. Mahon (Lots 539
and 540).
Plan 647-15 (August, 1977) reconfigured another group of
lots shown on the G Plan, creating lots owned by defendants John
J., Elizabeth, Kristin M., Susan L., and Michelle T. Walker (Lot
569), and Arthur Maressa (Lot 571).
21
the developer had had no interest to convey at the time it
purported to convey an easement to a water company to install
and maintain a water system, which the successor in interest to
the water company later obtained via a foreclosure deed. Id. at
188. We determined that the presumption that the developer
conveyed the fee to the abutting landowners had been rebutted
because the developer had installed and operated a system of
water pipes beneath the ways at the time of the conveyances of
the lots. Id. at 190. We concluded that the developer would
not have conveyed the ways to the abutting lot holders because
the developer "could not have intended to hamper itself and its
rights by parting with the fee in any part of these streets."
Id. We therefore reversed a decision by the Superior Court that
a successor in interest of the developer had no easement in the
ways. Id. at 194.
Here, likewise, there is clear indication in documents on
file with the land registration office that Luscombe and Morley
did not intend to convey the fee in the way. Rather, they
reserved it for themselves to further their plan of development
of the subdivision. This intent is evident in the language of
the deeds, in the ways laid out on the plans and the plain
interrelationship among the plans, in other documents in the
land registration system indicating the conduct of Luscombe and
Morley and their grantees throughout the forty-year period of
22
development of the 217 acre parcel,18 as well as in Luscombe and
Morley's winding up of ownership interests in the ways after the
subdivision of the parcel was completed.
When the way was created and the first deeds out were
conveyed to Aldrich and the Waldrons, the way is described as
adjacent to or "appurtenant to" their lots, separate and
distinct from the lots themselves. In both deeds, Luscombe and
Morley explicitly granted Aldrich and the Waldrons easement
rights in the way. Clearly treating the way as separate
property, Aldrich's deed and certificate of title provide that
Lot J is conveyed "together with the rights of way for all
purposes over said roads and rights of way [on the D Plan]."19
The Waldron certificate of title provides, "There is appurtenant
to said lots a [r]ight of [w]ay over the adjacent ways as shown
18
The entirety of the 217 acre parcel, shown on plans A, B,
and C, is included in Luscombe and Morley's certificate of
title, Certificate No. 3710. The certificate provides, in part:
"Said land is subject to and has the benefit of all
outstanding rights of way, if any such there be, and so far
as the same are now in force and applicable."
19
In addition to the way, the D plan shows a road that is
now Shore Drive, running east-west parallel to the coast;
another road also now called Shore Drive, running north-south
along the eastern boundary of Lot F, the easternmost lot, and
intersecting with the waterfront road; and, finally, a town road
parallel to the water, further inland, separated from the rest
of the plan by a large section of undeveloped land then owned by
Luscombe and Morley. On the D Plan's eastern boundary, a
reference states, "See Plan No. 646-G, Cert. of Title No. 1689."
23
on said plan 647-F."20 Had Aldrich and the Waldrons held the fee
in the way, such easement rights over the way would have been of
no use. Indeed, the conveyance of such an easement would have
been of no effect; the holder of a fee cannot hold an easement
for access over the fee. Thus, upon conveyance of Lot X and the
ten feet on the western half of the way to the Waldrons, the
easement would have been extinguished. See Goldstein v. Beal,
317 Mass. 750, 754 (1945) (Goldstein), and cases cited. See
also Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383,
390 n.15 (2005); Cheever v. Graves, 32 Mass. App. Ct. 601, 606
(1992). The developers' intent to grant easements, not fees, is
thus even more evident than for the developers in Suburban Land
Co. v. Billerica, 314 Mass. at 190, where the deeds were silent
as to fee or easement rights in the way.
An examination of the plans in Case No. 647 shows that the
parcel is a long, narrow strip along the waterfront, extending
approximately five blocks inland from the shoreline. On all of
the plans, to the east and west of Nobscusset Road, the land is
divided into small residential lots, along ways roughly
paralleling the water. Ways running between waterfront lots,
20
In addition to the way at issue, the F Plan shows two
other ways leading between waterfront lots to the beach, and
shows what is now Shore Drive abutting the southern boundary of
all of the waterfront lots. Shore Drive and Lot J are both
depicted as open-ended; Shore Drive leads off the eastern edge
of the F Plan into what is noted as the D Plan, "filed with
Cert. of Title No. 4063."
24
from the water to a road along the shore, are shown every three
to four house lots west of Nobscussett Road, on the D, F,
G Plans, and to the east of Nobscussett Road, on the B Plan.
See note 5, supra. The way to the waterfront would have been of
no use to Aldrich, the owner of five waterfront lots, or to the
Waldrons, owners of two waterfront lots; all of their lots are
entirely on the waterfront, with lot lines continuing down to
the mean high water mark. The way also would serve no purpose
for any of the other waterfront lots shown on the D and F Plans,
whose lot lines also continue to the mean high water mark. The
way thus created, along with the two other ways between
waterfront lots shown on the F Plan, are, on the face of the
plans, part of an integral scheme of ways in a neighborhood,
providing access to the waterfront, every three or four lots.21
The purpose to provide waterfront access to inland lots is
obvious on the face of the plans, and would have been to those
purchasing the Paglia lot in 1936 and the Hickey lot in 1944.
Retaining the fee in the way provided Luscombe and Morley,
who held property inland of the waterfront lots shown on the D
and F Plans, rights to the waterfront which they could convey to
21
The plans show this continuing pattern of development
notwithstanding the public access available to the beach after
the takings of Bayview Road to the west, Shore Drive, and Common
Landing to the east, and after Luscombe and Morley had deeded
beachfront Lot K, adjacent to Bayview Road, to the town as a
public beach. See note 8, supra.
25
subsequently developed inland lots. See Duddy, supra at 63, 64
(in conveying lots abutting way on first plan, developer was
"careful to retain the fee" in that way, and thereafter conveyed
easement rights over extension of way shown on subsequent plan
to additional lots created on that plan). That Luscombe and
Morley contemplated such further development is clearly
indicated in the reference to the as-then-yet-to-be-filed G Plan
at the eastern side of the D Plan, and in the large section of
undeveloped land they owned south of Shore Drive, that appears
on the D Plan, bounded by a town road. The landowners to whom
Luscombe and Morley later conveyed lots were explicitly granted
easements to use all ways shown on their plans, together with
others, or all ways in the registered land case. Clearly, for
Luscombe and Morley, maximizing the value of the registered
parcel rested in developing inland lots with convenient access
to the water. They would not have hampered themselves in this
pursuit by conveying the entirety of the fee over the way to the
first two purchasers. See Suburban Land Co. v. Billerica, 314
Mass. at 190. Like the developer in that case, the presumption
of intent to convey a fee because the way would have had no
remaining value to Luscombe and Morley after the lots abutting
it were conveyed "is not applicable here, for the fee in the
streets was a valuable adjunct to" Luscombe and Morley's other
land. Id.
26
In addition to the plain language of the Aldrich and
Waldron deeds, and the clear purpose of the way, other documents
in the registry system indicate an intention to convey easements
and to reserve the fee. In 1939, after the conveyance to
Aldrich, and before the conveyance to the Waldrons, Luscombe and
Morley conveyed two other waterfront lots, Lots 233 and 234, the
first lots out on the G Plan, to Joseph Pare, Jr. In 1939,
again before the conveyance to the Waldrons, Luscombe and Morley
conveyed two additional lots on the G Plan, lots 231
(waterfront, abutting the way on the eastern edge of the F Plan)
and 232 (inland) to Joseph Pare, Jr., by a deed stating that the
lots "are subject to and have the benefit of all outstanding
[rights-of way], if any, in-so-far as the same are now of legal
force and effect."
Throughout the course of development, Luscombe and Morley
continued to grant explicit rights in all ways shown on a plan
or to all ways in Case No. 647, indicating a belief that they
had rights to do so; those rights were included on the lot
owners' certificates of title. In similar circumstances of
intended future development by owners of a large parcel, we
noted that a potential purchaser
"reasonably should have been aware that the [developers]
would have to retain title to the proposed way in order to
proceed with the development of the large area of land
beyond their lot. The [developers] were both the owners
and developers of the land and it would be contrary to
27
common sense for [a plaintiff,] one of the original
purchasers of lots north of the developed area, to believe
that no other property was to be developed that would
require the use of the 'proposed street' for access. The
right-of-way granted [to another lot holder], which was
recorded before the date of the deed from the [developer]
to [the plaintiffs], makes it clear that the ownership of
the land within the 'proposed street' and extending beyond
into the undeveloped part of the property was to remain
with the [developers]."
Beattie v. Swanson, 360 Mass. 50, 53 (1971). See Emery v.
Crowley, 371 Mass. 489, 492-493, 494 (1976), quoting Murphy,
supra at 680 (language of deed and plans showed that grantor did
not intend to convey fee in way that crossed another parcel, but
only easement of access to adjoining lot; "rules of construction
are designed to elucidate the intent of parties to written
instruments, . . . and thus look to the instruments themselves
and extrinsic facts, if necessary, to decide if the deeds
involved here pass title to real estate 'abutting' a 'way'");
McGovern v. McGovern, 77 Mass. App. Ct. 688, 700 (2010) ("the
conduct of the parties after the conveyance was consistent with
retention of the fee"). See also Frost v. Jacobs, 204 Mass 1, 5
(1910) (concluding grantors did not intend to convey fee in
passageway where deed conveyed "privilege to the owner of said
lot to use the private way in common with other abutting
owners," retention of fee permitted grantor to grant access to
way and staircase in subsequent sale, and grantee thereafter
conveyed property using same language in subsequent deed).
28
Furthermore, the town acted as though Luscombe and Morley
had retained the fees in the ways. When the town took Bayview
Road in 1937, and the Common Landing at the end of Shore Drive
in 1945,22 and took an easement in Shore Drive itself,23 also in
1945, the town listed in the instruments of taking the lot
22
The Common Landing occupies the northernmost portion of
Shore Drive, terminating in the water, between Lot J on the D
Plan (then owned by Aldrich) and Lot 234 on the G Plan (then
owned by Schweinler). Schweinler and Aldrich are listed in the
instrument of taking as the abutting lot holders; the land in
the way taken is described as "'Common Landing' at the northerly
end of Shore Drive," "by the land of" Aldrich and "by the land
of" Schweinler. Luscombe and Morley are listed as the owners of
the land taken and are awarded damages.
23
The length of Shore Drive from Bayview Road to
Nobscussett Road is approximately 3,600 feet. At the time of
the taking, there were thirteen lot owners, some of whom held
multiple lots abutting Shore Drive, including Aldrich, the
Waldrons, Pare, and Schweinler, and also Luscombe and Morley.
All are noted in the document of taking. The document states
that it takes "land within the side lines of the town way called
Shore Drive." The land taken is detailed, for each lot owner,
as abutting, inter alia, the "northerly," "easterly,"
"southerly," and "westerly" "side line" of the lot along Shore
Drive.
The document of taking states that the town awards damages
to Luscombe and Morley "as damages to the owners of the land for
the taking of this easement." The land taken for which damages
are paid is designated as 144,350 square feet of land, described
in Certificate No. 3170. Dividing approximately 144,350 by the
40-foot width of Shore Drive, Luscombe and Morley were
compensated for the entire approximately 3,600 length of Shore
Drive west of Nobscussett Road, and the abutting lot owners were
not compensated. Pare, the owner of Lot 231, was compensated
for 300 square feet of land that would become an extension of
Shore Drive. At the time of the taking, Shore Drive ended on
the west side of Pare's land; the extension ran across his lot.
Lot 231 was later subdivided into eighteen lots, some of which
are held by defendants in this case.
29
owners abutting those ways, and then compensated Luscombe and
Morley, stated to be the owners of the land in the ways that
were taken, for those takings.
Additionally, in 1982, when winding up after all of the
land had been subdivided and conveyed, Luscombe and Morley
deeded the ways in the subdivision first to the Nobscussett
Realty Trust, a family trust, which then deeded the ways to
James R. Julian and Donald D. Cattanch before the trust was
terminated.24 The deed conveyed to the trust the fee in numerous
named ways, and also conveyed the entire fee in all remaining
unnamed ways in Case No. 647, with the specific exception of the
six ways leading between waterfront lots to the beach shown on
Plans B, D, and F.25 Even after the subdivision was complete and
the other ways had been conveyed expressly to their family
trust, Luscombe and Morley thus reserved for themselves, and
presumably their heirs, the fee interest in the ways to the
beach.
Starting in the 1970s, the deeds to later-conveyed lots
contain an exclusive reservation of rights in the ways; they
grant rights of access over the ways shown on a specific plan or
24
The certificate of title to Julian and Cattanch lists
encumbrances for the takings in Bayview Road, Shore Drive, and
Common Landing, discussed supra.
25
See Guideline 19 of the Land Court Guidelines on
Registered Land, Easements, Restrictions, Covenants and Other
Rights Granted or Reserved in Deed (2009).
30
all plans in the subdivision, and explicitly exclude a fee
interest. The plaintiffs argue that this is an indication that
the developers did not intend to retain rights in fees in the
ways in their conveyances of earlier lots, because they knew how
to do so and would have done so. This more precise language
including the reservation of the fees in the documents beginning
in the 1970s is better explained as reflecting a response to the
derelict fee statute, which was first enacted in 1971. See
G. L. c. 185, § 58. Although that statute does not apply to
land registered prior to its enactment, and thus is not
applicable to any of the lots at issue here, it does apply
prospectively to registered land.
We are not persuaded by the plaintiffs' suggestion that the
way simply ceased to exist after the conveyance of the fee to
Aldrich and the Waldrons. That argument would make a nullity of
a carefully-drafted set of ways on a plan of residential lots,
leading to the waterfront, with undeveloped land clearly
indicated across the street from those lots. Under this view,
the way would exist only during the period when a single lot had
been conveyed. The second conveyance, on the other side of the
way, would extinguish the easement in the way explicitly
conveyed by Luscombe and Morley to Aldrich and the Waldrons.
Based on information available in documents on file with
the land registration office in Case No. 647, the defendants
31
have rebutted the common-law presumption that Luscombe and
Morley intended to convey title to the center line of the way;
we conclude that the developers intended to convey, as set forth
in the deeds and certificates of title, rights of access over
the way to Aldrich and the Waldrons, shared with others. The
documents show that Luscombe and Morley intended to retain the
fee in that way and the other ways on the plans filed in Case
No. 647, and acted consistently with that intent for over forty
years.
b. Easement rights in the way. Even without a fee in the
way, the plaintiffs, as easement holders, have an interest in
preventing use of the way by those without rights of access. In
addition, all of the defendants seek determinations that they
are entitled to use of the way. We turn to consideration of
what rights over the way, if any, are held by the defendants.26
26
We note that the Land Court judge determined that certain
defendants did not hold access rights over the way even where
their lots appear on the G Plan, and notwithstanding her
conclusion that Luscombe and Morley intended to convey access
over the way to all owners of lots on the G Plan, because the
defendants' certificates of title do not mention easement rights
over any ways, or because the certificates describe their source
of title with reference to a certificate for another lot
appearing on the G Plan, without express mention of the G Plan.
However, even on registered land, there is no requirement that
easements appurtenant, benefiting a lot, must be listed on the
certificate of title. See Duddy v. Mankewich, 75 Mass. App. Ct.
62, 64 n.6 (2009) (Duddy), quoting Dubinsky v. Cama, 261 Mass.
47, 56-57 (1927) ("'However desirable it may be that the . . .
certificate of title should disclose the whole state of the
title, including all easements appurtenant,' G. L. c. 185
32
One claiming the benefit of an easement bears the burden of
proving the existence of that easement on the servient estate.
Reagan v. Brissey, 446 Mass. 452, 458 (2006); Boudreau v.
Coleman, 29 Mass. App. Ct. 621, 629 (1990). Where recorded land
is at issue, it is well established that easements to ways shown
on a plan may be recognized based on references to that plan in
a deed. A plan referred to in a deed becomes a part of the
contract so far as may be necessary to aid in the identification
of the lots and to determine the rights intended to be conveyed.
Boston Water Power Co. v. Boston, 127 Mass. 374, 376 (1879).
"'In determining the intent, the entire situation at the time
the deeds were given must be considered." Goldstein, supra at
755, quoting Prentiss v. Gloucester, 236 Mass. 36, 52 (1920).
For land abutting a way, where the deed describes the way as a
boundary and references a plan showing the way, the grantor's
intent to convey an easement over the way is assumed. "[A]
requires only easements to which the registered land is subject
be set out in the certificate of title. Easements [benefiting]
the property need not be noted"). Accordingly, the absence of
any notice on the certificates of certain defendants benefiting
their land is without consequence to the analysis here. A
reasonable purchaser would have discerned the developers' intent
with regard to all lots on the G Plan. See Duddy, supra at 64,
67, 68, 69-70 (concluding all of plaintiffs' lots had right of
access over way, and were burdened by others' rights of access,
where some plaintiffs' deeds and certificates were silent
concerning easement rights, some plaintiffs' deeds contained
grants of access to individual lot owner, and other plaintiffs'
certificates noted easement rights only for benefit of that
plaintiff's lot).
33
right of way shown on a plan becomes 'appurtenant to the
premises conveyed as clearly as if mentioned in the deed.'"
Duddy, supra at 67, quoting Lagorio v. Lewenberg, 226 Mass. 464,
466 (1917). Easements to which a registered parcel is subject,
however, are another matter entirely, and the fundamental issue
in this case.
i. Land registration act. The purpose of the land
registration act is to ensure that holders of land registered
under the act enjoy certainty of title to their property. See
Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 50 (2007);
Doyle v. Commonwealth, 444 Mass. 686, 690 (2005); G. L. c. 185,
§ 57. Every judgment of registration "shall set forth the
estate of the owner and . . . all particular estates, mortgages,
easements, liens, attachments and other encumbrances . . . to
which the land or the owner's estate is subject." G. L. c. 185,
§ 47. "[E]very plaintiff receiving a certificate of title in
pursuance of a judgment of registration, and every subsequent
purchaser of registered land taking a certificate of title for
value and in good faith, shall hold the same free from all
encumbrances except those noted on the certificate, and any of
the [statutorily enumerated] encumbrances which may be
existing . . . ." G. L. c. 185, § 46.
Thus, for registered land to be burdened by an easement,
generally the easement must be shown on the certificate of
34
title. Commonwealth Electric Co. v. MacCardell, 450 Mass. at
50-51. See Jackson, supra at 711; Tetrault v. Bruscoe, 398
Mass. 454, 461 (1986); Goldstein, supra at 757; Dubinsky v.
Cama, 261 Mass. 47, 56-57 (1927). In addition, "[n]o title to
registered land, or easement or other right therein, in
derogation of the title of the registered owner, shall be
acquired by prescription or adverse possession. Nor shall a
right of way by necessity be implied under a conveyance of
registered land." G. L. c. 185, § 53.
Nonetheless, with certain limited but important
distinctions, such as those just noted, registered land is to be
treated in the same manner, and according to the same legal
doctrines, that apply to recorded land. See G. L. c. 185, § 77
(land registration act shall not "change or affect in any way
any other rights or liabilities created by law and applicable to
unregistered land, except as expressly provided in this
chapter"). See, e.g., Goldstein, supra at 755 ("the same
principles that govern the effect to be given a plan in the case
of unregistered land apply where the land is registered");
Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct.
682, 686 (2012) (registration act only changes common law if
intent to do so is clearly expressed).
35
ii. First Jackson exception. In Jackson,27 as here, the
issue concerned access rights to a beach over a way between two
waterfront properties in a subdivision comprised of registered
land. Jackson, 418 Mass. at 705. The certificates of title to
the waterfront lots did not expressly mention an easement over
the way in question for the benefit of the inland lot owners.
Id. at 706. After conducting an examination of other documents
in the land registration office to determine "whether an express
easement exists as a result of the references on the [waterfront
lot owners'] certificates of title to the [w]ay and to plans
showing the [w]ay," id. at 709, we determined that the plans
were referenced in the certificates "principally to provide a
description of the boundaries of the properties," and the way at
issue was "only generally referenced as marking a boundary."
Id. at 710. Accordingly, we concluded that no express easement
existed. Id. at 714.
We recognized, however, that there are two exceptions to
the general rule that an easement burdening registered land must
be set forth explicitly on the certificate of title. Under the
first Jackson exception, "an owner, in limited situations, might
take his property subject to an easement at the time of
27
The plaintiffs contend that Jackson itself is wrongly
decided, and urge that we adopt a stringent interpretation of
G. L. c. 185, §§ 46 and 47, that would eliminate both of the
Jackson exceptions. We decline this invitation.
36
purchase: (1) if there were facts described on his certificate
of title which would prompt a reasonable purchaser to
investigate further other certificates of title, documents, or
plans in the registration system."28 Id. at 711. We therefore
proceeded to determine whether, even though the easement for the
benefit of the inland lot owners was not expressly described on
the certificate of title, "there were facts described on [the
waterfront lot owners'] certificate[s] of title which would
prompt a reasonable purchaser to investigate further other
certificates of title, documents, or plans in the registration
system." Id.
We explained that a reasonable purchaser of registered land
whose certificate of title references a plan "would be expected
to review that plan." Id. We stated further that where a
parcel of registered land involves a lot bounded by a way, and
the deed or certificate of title refers to a plan, a potential
purchaser is on notice that the property is bounded by a way and
that others may have easements in the way. Id. at 712. The
purchaser would "be expected to examine the certificates of
other lot owners in the subdivision to determine whether others
might have an interest in the [w]ay." Id. Because such an
28
The second Jackson exception applies where an owner takes
possession of registered land with actual knowledge that an
encumbrance exists. Jackson, supra at 711. None of the parties
suggests that it has any application here.
37
examination is limited to documents on file in the land
registration office, it is consistent with the purposes of the
land registration act.
After examining additional documents in the land
registration office, including approximately sixty deeds, and
associated certificates and subdivision plans, we concluded that
no easement existed because none of the documents referenced an
easement or a right to use the way in question. Id. at 708,
710. We observed that
"[a] review of the [inland lot owners'] certificates of
title would disclose to [the waterfront lot owners] no
right to use the [w]ay on any certificate. Appurtenant to
each of the [inland lot owners'] lots is a precisely
described right to use only those private ways necessary
for access to that specific lot. Further, as the facts
disclose, the record is devoid of any indication in other
certificates of title, and in deeds, of any rights in the
[w]ay. On the contrary, all the documents consistently
express rights only in private ways considered essential
for access to the lot being conveyed."
Id. at 712. We accordingly concluded that the grantors
specifically intended to convey only limited easement rights
over the particular listed ways necessary for the inland lot
purchasers to reach their lots, and that the requirement of the
first Jackson exception had not been satisfied. Id. at 713.
iii. Application of first Jackson exception to Luscombe
and Morley's conveyances. The plaintiffs maintain that, even if
38
Jackson and its progeny29 were decided correctly, a reasonable
29
More than twenty years after this court's decision in
Jackson, and relying on the first Jackson exception, the Appeals
Court held that a defendant lot owner had easement rights in a
private way abutting the plaintiffs' registered lots, where the
plaintiffs' certificates of title contained no explicit
reference to an easement for the benefit of the defendant. Lane
v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434,
437-438 (2006) (Lane). In that case, the plaintiffs' lots
fronted along the private way, and one side of the defendant's
lot abutted the terminus of the way. Id. at 435. The way
extended approximately thirty feet inside the defendant's lot,
then terminated. Id. at 436. One of the plaintiff's
certificates stated that there was "appurtenant to said land a
right of way . . . , said right to be exercised in common with
all others now or hereafter lawfully entitled thereto." Id. at
438. The other plaintiffs' deed referenced the private way as a
boundary, and both their deed and their certificate of title
referred to a subdivision plan filed in the registration office
of the Land Court. Id. The Appeals Court determined that this
put the plaintiffs on notice that their property was bounded by
a way over which others might enjoy a right of access. Id.
Three years later, again relying on the first Jackson
exception, the Appeals Court determined that the plaintiffs'
lots on registered land, all of which abutted a private road,
were burdened by easements for access by the defendant lot
owner, even though none of the certificates of title in the
plaintiffs' chains of title showed an easement for the benefit
of the defendant's lot. See Duddy, supra at 66-68, 70 n.13.
Each of the plaintiffs' deeds described their land as being
bounded by a private road, and referenced a subdivision plan
showing that road. Id. at 68. Some of the plaintiffs' deeds
included a right to access the road for their own use, and some
plaintiffs' certificates of title included an easement for
access by the lot owner; for other plaintiffs, neither their
deeds nor their certificates mentioned easement rights. Id. at
64. None of the express easements for the plaintiffs' use of
the road mentioned rights for anyone other than the lot owner.
Id. at 64-65. The defendant's lot was created on a later plan,
and abutted the terminus of the same private road, which was
extended on the later plan into other land that had been owned
by the developer. Id. at 63, 65. The court concluded that the
defendant's lot was benefited by a right of access over the
private road, because the road on the plan creating the
39
purchaser in the plaintiffs' positions would not have had reason
to review any documents indicating potential rights of access
over the way by any of the defendants. The plaintiffs contend
that the D and F Plans do not include, reference, or incorporate
the defendants' lots. The plaintiffs maintain that, based on
their certificates, no reasonable purchaser would have been led
to review any plans other than the D and F Plans, or any
certificates of title after the Aldrich and Waldron
certificates, and thus would not have become aware of any
documents indicating the existence of rights over the way other
than to the few waterfront lots shown on the D and F Plans.
Because, they contend, no reasonable purchaser would have had
notice of any possible encumbrance over the way, the Land Court
judge must have relied improperly on a theory of easement by
estoppel30 in reaching her conclusion that any of the defendants
plaintiffs' lots was shown "as proceeding, open-ended, a
measurable distance into [the developer's] remaining land" which
would have required further inquiry. Id. at 67-68.
30
Because the Appeals Court indicated, in both Lane and
Duddy, that, in those circumstances, the court also would have
concluded that easement rights existed based on a theory of
estoppel, we touch briefly on the theory of estoppel in those
cases. See Duddy, supra at 70, n.13; Lane, supra at 438-439.
With regard to recorded land, "'when a grantor conveys land
bounded on a street or way, he and those claiming under him are
estopped to deny the existence of such street or way, and the
right thus acquired by the grantee (an easement of way) is not
only coextensive with the land conveyed, but embraces the entire
length of the way, as it is then laid out or clearly indicated
and prescribed.' Casella v. Sneierson, 325 Mass. 85, 89
40
[(1949)], and cases cited. This rule is applicable even if the
way is not yet in existence, so long as it is contemplated and
sufficiently designated." Murphy v. Mart Realty of Brockton,
Inc., 348 Mass. 675, 677-678 (1965) (Murphy). In Lane, supra at
437, the Appeals Court observed that "undisputed facts" -- the
plaintiffs' and defendants' deeds and plans, on file in the land
registration office -- themselves "established" that the
defendant lot holder had an easement for access over a way
abutting the plaintiffs' lots. The court noted that its
conclusion was "not affected by the fact that the plaintiffs'
titles . . . are registered." Id. at 437. "[T]he estoppel
giving rise to such an easement occurs by virtue of the language
in a deed of conveyance, which language refers to the way as a
boundary." Id. at 439, citing Adams v. Planning Bd. of
Westwood, 64 Mass. App. Ct. 383, 392 (2005).
It is true that in Jackson, supra at 714 n.7, when
discussing Goldstein v. Beal, 317 Mass. 750, 755-756 (1945)
(Goldstein), we noted that "Goldstein explicitly disclaims an
estoppel theory." This, however, is a description of the
holding in Goldstein, which focused on the intent of the
parties. It is not a statement that no easement by estoppel on
registered land could ever arise. Indeed, in Goldstein, we
observed that, "in other circumstances a reference to a plan in
a deed on which a passageway is designated may be sufficient to
create rights in it." Id. at 756, and cases cited.
That being said, we discern no reason why, in principle, in
such limited circumstances as in Lane and Duddy, application of
an estoppel theory to subsequent purchasers would impede the
purposes of the land registration scheme. In each instance, a
seller conveyed registered land abutting a way, the conveyance
described the ways as a boundary, and the deed referenced a
subdivision plan on file in the land registration office showing
the way. See Duddy, supra at 63-64; Lane, supra at 435, 438.
In such circumstances, the deeds and plan necessary to establish
an easement by estoppel are all documents within the land
registration system and also make the showing necessary to
establish the first Jackson exception. We note also that the
Land Court's own guidelines on registered land, setting forth
rules of construction of deeds, state, "Reference to another
instrument or plan incorporates that document into the
description in its entirety." Guideline 2.1.4.2.2(c) of the
Land Court Guidelines on Registered Land (2009). We make no
statement, however, concerning other, broader uses of the term
"estoppel" to include ways other than those abutting the land at
41
hold access rights over the way.
We do not agree that a reasonable purchaser would have so
limited the examination. Purchasers are expected to review the
plan showing the lot in question, and to investigate further
other certificates of title, documents, and plans contained
within the registration system, at the time of their purchase,
to determine both their own rights and whether others have
rights. See Jackson, supra at 711-712; Duddy, supra at 62.
The judge stated that, under the first Jackson exception, a
purchaser of registered land is required to investigate other
documents within the land registration system; at the time of
the plaintiffs' purchases, in 1994 and 1999, the plaintiffs
would have been bound to investigate the F and D plans
referenced explicitly on their certificates; a review of those
plans would have demonstrated the "progression of the
development" and would have required them to review the deeds
and certificates underlying the lots contained on the plans
showing the way; and a review of the defendants' certificates
that reference plans showing the way would have informed the
plaintiffs that the grantors intended to convey easement rights
to those lot owners, even though the easements are not noted on
issue, conveyed by a deed referencing a plan showing those ways.
See Rahilly v. Addison, 350 Mass. 660, 662 (1966); Casella v.
Sneierson, 325 Mass. 85, 89 (1949). See also Jackson, supra at
711, quoting Pearson v. Allen, 151 Mass. 79, 81 (1890).
42
the plaintiffs' certificates. We agree. This is precisely the
analysis undertaken in Jackson, and an examination of the
documents in the land registration office supports the judge's
conclusion.
The Hickey certificate describes their lot as "Lot X on
Plan 647-F," and the Paglia certificate describes their lot as
Lot J on Plan 647-D. Both the Aldrich and Waldron deeds grant
access to all "ways" on their respective plans, and, in the
Waldron deed, specifically to ways adjacent to lot X. Both
deeds state that they are bounded by ways on two sides (one
being the way at issue). Upon a review of the D and F Plans, a
reasonable purchaser of the plaintiffs' lots would have been
informed of the existence of the way, connecting to another,
open-ended, "road," now known as Shore Drive. On the D Plan,
Shore Drive extends into adjacent land referenced as appearing
on the G Plan. On the F Plan, Shore Drive extends into land
referenced as appearing on the D Plan.
A review of the F plan would disclose two other ways to the
water, between two other sets of lots, virtually identical to
the way between lots J and X. Viewed together, the three ways
show a pattern of evenly spaced ways to the water every three or
four lots, on this small strip of beachfront lots. The D and F
plans also show the undeveloped land on the inland side of Shore
Drive across from Lots J and X, also owned by developers
43
Luscombe and Morley. In addition, there is a road abutting Lot
F on the eastern side of the D Plan, and then running south from
Shore Drive, along Luscombe and Morley's undeveloped land, to a
"town road" parallel to Shore Drive, on the southern edge of the
D Plan. The north-south road is too long to show in full on the
D Plan, so a break in the road is indicated, in order to display
the "town road" on the same page. The "town road" is then shown
leading, open-ended, west into the middle of Luscombe and
Morley's undeveloped land. This clearly indicates the intent to
develop all of Luscombe and Morley's undeveloped land inland
from Shore Drive to the town road. Thus, even from an
examination of these two small plans, the network of
interconnecting ways, and the planned development of other
inland lots that would make use of the ways, would have been
immediately apparent.
In addition to the layout of the ways, notations on the
plans would suggest to a reasonable purchaser that other
documents in the land registration system might show that others
had easement rights over the way. The D and F Plans are both
titled "Subdivision of Part of Land shown on Plan 647A, Filed
with Cert. of Title No. 16." A notation on each plan states
that it is a "copy of part of plan" filed in the land
registration office. On its eastern edge, the D Plan
specifically references the G Plan. The G Plan includes open-
44
ended ways leading into other land of Luscombe and Morley,
designated as being part of Certificate No. 3710, that is now
the M Plan. These references, in addition to the references to
the developers' Certificate No. 3710, which is included in the
Aldrich and Waldron certificates31 (and in the Paglia and Hickey
certificates), would have informed a potential purchaser of the
extent of the developers' land, and of the set of potentially
benefited lots.32
A reasonable purchaser, even at the time of the Aldrich
conveyance, thus would have been aware of the progression of
development along the waterfront, and the later progression
inland. This should have alerted a purchaser that there might
have been others who could have rights, similar to his own
rights, over the way adjacent to his lot. We conclude that
these are "facts described on [the] certificate of title which
would prompt a reasonable purchaser to investigate further other
31
Even at the time of the Aldrich conveyance, when the D
Plan was created, the B Plan, referenced in Certificate No.
3710, showed a similar scheme. See note 5, supra.
32
As noted, supra, the Aldrich and Waldron certificates
both state that the land "is subject to and has the benefit of
the rights and provisions in [Certificate No. 3710], so far as
the same are in force and applicable." Among other things,
Certificate No. 3710 states that its land is "subject to and has
the benefit of all outstanding rights of way, if any such there
be . . ." Certificate No. 3710 contains a list of other lots,
beyond those few waterfront lots shown on the bay side of Shore
Drive on the D and F Plans; it lists all first deeds out from
Luscombe and Morley for the entire 217 acre parcel.
45
certificates of title, documents, or plans in the registration
system," Jackson, supra at 711, including the G and M Plans that
contain lots inland from Shore Drive and reference each other.33
Based on the above, we conclude that the judge was correct
in holding that Luscombe and Morley intended to grant access
over the way to all of the lots on the G Plan, and that the
defendants in the first and second groups hold access rights
over the way. See Adams v. Planning Bd. of Westwood, 64 Mass.
App. Ct. 383, 389 (2005); Boudreau v. Coleman, 29 Mass. App. Ct.
621, 629, (1990). See, e.g., Reagan v. Brissey, 446 Mass. 452,
461 (2006) (implied easement rights in parks benefitting lot
owners in a subdivision); Leahy v. Graveline, 82 Mass. App. Ct.
144, 148-149 (2012) (beach rights in back lot owners based on
deeds, plans, and contemporaneous advertisements).
The judge concluded that the remaining lot owners, largely
the owners in the third group whose certificates contain
references to the M Plan or derivative portions of that plan, do
not have easement rights in the way because the plans referenced
33
The plaintiffs argue that a reasonable purchaser should
look no further than the first deed out from the common
developer to his predecessor in interest; if that certificate
shows no reservation of an easement, no other documents need be
examined. But that is not the case. When conducting an
investigation of the registration system, "we ask whether there
were facts . . . available [to the plaintiffs] at the time of
their purchases, that would lead them to discover that their
propert[ies] were subject to an encumbrance, even if that
encumbrance was not listed on their certificates of title"
(emphasis added). Jackson, supra at 711.
46
on their certificates do not show the way and they were not
granted rights over all ways in Case No. 647. Based on the
clear intent of the original developers, as indicated in the
interrelationship of the subdivision plans, the pattern of
conveyance, the deeds and certificates of title expressly
granting access to all ways in the Land Court case or to all
ways on a plan, we conclude that the owners in the third group,
and most of the unclassified owners, see notes 4 and 26, supra,
also hold easement rights over the way.
We note first that the judge had before her three "sheets,"
labeled 674M sheets 1, 2, and 3, each showing portions of the
new lots created on the M Plan. These sheets were stipulated to
by the parties as being copies of documents filed in the
Barnstable Registry District. Although the sheets explicitly
reference the G Plan, they do not show the way itself. An
examination of the M Plan on file in the land registration
office,34 however, shows portions of the D, F, and G Plans in the
34
The M Plan on file with the land registration office is
the plan approved by the Land Court in allowing the subdivision,
see G. L. c. 185, §§ 1, 10, 26-31, 33, 51, 117, of which this
court may take judicial notice. See Land Court Manual of
Instructions for the Survey of Lands and Preparation of Plans
§ 4.1 (2006). See, e.g., id. at §§ 1.1, 1.2, 1.3, 1.5, 2.1.2.1,
2.1.2.2. See also Guideline 5 of the Land Court Guidelines on
Registered Land, Approval by the Engineering Department (2009).
In Duddy, supra at 69 n.12, the Appeals Court suggested,
but did not decide, that for purposes of the documents a
reasonable purchaser should examine, the original grantees would
47
northeastern quadrant of the M Plan. The M Plan includes an
open-ended portion of the way, as well as an open-ended portion
of the neighboring way to the water between waterfront lots N
and O. The M Plan also contains an outline of the area of the
G Plan, to the north of the new lots shown on sheets 1, 2, and
3. The southernmost set of lots created on the G Plan are
indicated on the M Plan as open-sided to the north, just as the
lots on the D and F Plans are indicated as open-sided lots on
the G Plan. Thus, the M Plan, filed by Luscombe and Morley in
the land registration office in June, 1947, seven years after
the filing of the G Plan, clearly establishes their intent to
treat the M Plan and the G Plan as an interrelated whole, with
ways leading into Shore Drive and into the ways to the
waterfront.35
be chargeable with notice of documents filed in the Land Court
registration office in Boston, not just those in the Barnstable
Registry District. The court noted that the "registration
system," as defined in the registration act, encompasses
documents on file in the Land Court, and imputing such notice
would not impose an undue burden on purchasers of registered
land. Id.
35
In Rahilly v. Addison, 350 Mass. 660, 662-663 (1966), a
case involving a petition for registration of a waterfront lot,
we determined that the defendant inland lot owners held an
easement for access to a beach over a private way abutting the
plaintiffs' waterfront lot, where neither the plaintiffs' nor
the defendants' deeds from a common grantor mentioned an
easement over the way. Both the plaintiffs' and the defendants'
deeds, however, contained easement rights to a road paralleling
the water, which intersected with the private way, as well as
another road, perpendicular to the shore road, that crossed the
48
Moreover, simply applying the same rationale as the judge
used in concluding that defendants with certificates referencing
all ways on the G Plan have access rights over the way (which
appeared on the G Plan), all of the defendants whose
certificates reference access rights over the ways on the M
Plan, where the way also appears, have access rights over the
way.
This intent also can be ascertained by examining only the
three M Plan sheets provided to the judge, which, while showing
the new lots, do not include as much of the context showing the
interrelated plans. Nonetheless, each sheet does show ties to
shore road and ended at a different section of the beach. Id.
at 661-662. We determined the common grantor intended the
inland lot owners to have access to and use of the beach area,
and affirmed registration of the plaintiffs' land with the
encumbrance noted for the inland lot owners' access over the
private way. Id. at 662-664. The plaintiffs argued, as do the
plaintiffs here, that their deed was conveyed out from the
common grantor to their predecessor in title several years
before the defendants' deeds were conveyed to the defendants'
predecessors in title, and therefore that the grantor could not
have intended an easement to benefit any of the defendants. Id.
at 663. We concluded that the judge was warranted in finding a
common scheme to benefit all of the lots in the subdivision with
beach access and use of the beach. Id. at 662-663. "The
existence of . . . a building scheme . . . [may] show an
intention that the restrictions imposed upon the several lots
shall be appurtenant to every other lot in the tract included in
the scheme." Id., quoting Snow v. Van Dam, 291 Mass. 477, 481
(1935).
This is not contrary to our observation in Jackson, supra
at 711-712, that a reference to a plan laying out a large tract
would not itself provide each purchaser of a lot on that plan
with a right of way over every road and way laid down. As noted
there, intent is paramount.
49
some portion of the D, F, and G Plans, and ways connecting those
plans. The facts here, and the relationship of the ways on the
G Plan and the M Plan, are similar, in certain pertinent
respects, to the circumstances in Duddy, supra at 62-65. There,
the plaintiffs owned registered lots created on one plan,
fronting on a private road that provided access to a public way.
Id. at 63-64. The defendant owned a lot on a later-created plan
which abutted a later-created portion of that way. Id. at 63,
65. On the plan creating the plaintiffs' lots, the way was
shown as open-ended and extending into other land owned by the
developer of the subdivision. Id. at 68. Some of the
plaintiffs' certificates of title, and some of their deeds,
included an express easement granting the plaintiff lot owner a
right of access over the private road leading to the public way,
and some did not; others were silent as to any easement over the
private road. Id. at 64. None of the easements in any of the
plaintiffs' deeds or certificates mentioned rights over the road
for the benefit of anyone other than the plaintiff lot holder.
Id. at 64-65. Nor did any of the certificates or deeds indicate
that the developer reserved rights in the private road at the
time he conveyed the lots on the first plan, that he might later
use to convey easements to as-yet-undeveloped lots on some
future plan. Id. at 65. In addition, at the time of the
litigation, the private road existed on the ground only as far
50
as indicated on the first plan, which did not show the
defendant's lot. Id.
In concluding nonetheless that the defendant had access
rights over the private road abutting the plaintiffs' lots, the
Appeals Court stated that a review of the first plan "would also
have put these plaintiffs on notice that [the road] continued
onto [the developer's] remaining land," id. at 68, which he
later subdivided in the second plan. Id. at 68-70 & n.13.
Here, similarly, Luscombe and Morley clearly intended that the
lot holders on the M Plan, like the other lot holders on the
G Plan, have access rights over the way.
In addition to determining that there were no easements
over the way for the benefit of the lots created on the M Plan,
the judge concluded also that most of the defendants who own
lots created on the later derivative plans do not hold access
rights over the way. We do not agree. These derivative plans
show small sections of lots on streets that already existed on
the G or M Plans. The plans simply reconfigure certain lots
along an existing way. Each plan shows open-ended ways leading
off the edges (into the continuation of that road on the G or M
Plan), and some also show open-ended partial lots, established
on the G or M Plans, on their boundaries. Plans 647-2, 647-8,
647-11, 647-13, 647-15, 647-S, and 647-W, in particular, show
open-ended portions of Shore Drive. Moreover, the titles of
51
these plans include references stating that they reconfigure
specific noted lots on earlier plans. Under the reasoning
applicable to the defendants holding lots on the G and M Plans,
we conclude that the owners of lots on these plans hold
easements for access over the way.
3. Conclusion. So much of the judgment of the Land Court
declaring that the defendants in the first and second groups
have a right of access over the twenty foot way that runs
between the plaintiffs' lots from Shore Drive to Cape Cod Bay is
affirmed. As to the defendants in the third group, and several
of those who were not classified into any group, the decision
that they do not hold easements for use of the way is erroneous.
The case is remanded for entry of an amended judgment declaring
that the holders of certificates of title nos. 95145, 408557,
144428, 70287, 77871, 178757, 190559, 190691, 110223, 164891,
and 179868 also have the benefit of right of access over the
way.
The remaining portions of the judgment are affirmed.
So ordered.
Appendix.