Opinion
14-P-1386
10-26-2015
ANARPET REALTY CORP. v. STUTZ MOTOR CAR COMPANY, INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Anarpet Realty Corp. (Anarpet), filed a complaint in the Land Court against the defendants seeking a declaration of the rights of the parties and injunctive relief regarding the ownership and use of Green Ledge Street, a private way in Salem, and of a twelve-foot-wide right of way shared by some of the parties' properties. Anarpet appeals from aspects of the Land Court judge's decision in favor of the defendants. Largely for the reasons that the judge set forth in his detailed and comprehensive decision, we affirm in all respects as it concerns Green Ledge Street. With respect to the right of way, which was based on the judge's determination that Anarpet lacked standing, we reverse and remand the case for findings and rulings on the merits of that issue.
For the purposes of this memorandum and order, we refer to the defendants collectively.
A. Ownership of Green Ledge Street. The judge was correct in ruling that the defendants' six lots with frontage on Green Ledge Street -- lots 563A, 564, 565, 566, 575, and 660 -- include a fee interest to the midline of Green Ledge Street and easement rights over its entirety.
Under common-law principles, "where a grantor of land bordering on a street or way owns the fee in the way, and conveys the land described in the deed as bordering on the way, he is presumed to have conveyed to the grantee the fee to the middle of the street or way." Suburban Land Co. v. Billerica, 314 Mass. 184, 188 (1943). Where lots are conveyed by a deed making reference to a plan, and "where the plan referred to in the deed shows the land as bounded on a street this is equivalent to such a description in the deed, and . . . the presumption becomes operative." Id. at 189.
"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. See St. 1971, c. 684, § 2." Hickey v. Pathways Assn., Inc., 472 Mass. 735, 744 n.13 (2015).
Here, the judge meticulously traced the ownership and transfer history of each lot at issue, paying particular attention to the language contained in the deeds that describes the defendants' parcels as being bounded "by Green Ledge Street." Such language is independently sufficient for the presumption to operate.
The presumption, however, "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). Anarpet argues that the circumstances surrounding the conveyance suggest that the original grantor intended to retain ownership and that the judge erred in finding that the grantor intended to relinquish his rights to Green Ledge Street, citing Suburban Land Co. v. Billerica, 314 Mass. at 189-190. We disagree.
The rationale for the presumption is that the original owner of the land comprising the street "would not be expected to care much to retain the title after parting with all of his property at the side of the street." Gray v. Kelley, 194 Mass. 533, 537 (1907). See Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 803 (2003), quoting from Smith v. Slocomb, 9 Gray 36, 37 (1857) ("[T]he public easement so completely takes all that can be made serviceable to the owner, that what remains cannot be considered of much value"). See also Hickey v. Pathways Assn., Inc., 472 Mass. 735, 747 (2015). Here, the judge emphasized that by 1930 the original owner, Frederick H. Griswold, had conveyed away all of his property on both sides of Green Ledge Street. No evidence exists to show that Griswold intended to reserve his fee in the way to further a plan of development of other neighboring parcels, see id. at 747-752, or for some other purpose, such as the operation of a water system beneath the way, see Suburban Land Co. v. Billerica, 314 Mass. at 189-190. Anarpet contends that the presence of ledge on lots 563A, 564, 565, and 566 at the time of the subdivision compels the inference that Griswold intended to retain a fee interest in the way. We detect no error in the judge's rejection of this contention.
B. Easements in Green Ledge Street. The judge also was correct in ruling that the defendants' lots 563A, 564, 565, 566, 575, and 660, together with Anarpet's lot 661, enjoy easement rights over the entire length of Green Ledge Street.
"[W]hen 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."Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-678 (1965), quoting from Casella v. Sneierson, 325 Mass. 85, 89 (1949).
"The rights also apply even if the way under consideration is obstructed, overgrown, and impassible." Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48, 55 (1980). Thus, inability to access the way from the defendants' parcels at the time of the conveyance does not rebut the presumption of the grantor's conveyance of easement rights.
Anarpet argues that the recognition of such easements by estoppel is contrary to the purpose of the land registration act, and that because its land is registered, it had no obligation to investigate facts not within the registration system. Our cases have repeatedly rejected this premise, most recently in Hickey v. Pathways Assn., Inc., 472 Mass. at 756, quoting from Jackson v. Knott, 418 Mass. 704, 712 (1994):
"[W]here 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. 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.'"See Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 437-438 (2006).
Moreover, under G. L. c. 185, § 46, as appearing in St. 1981, c. 658, § 26, the holder of a certificate of title owns the subject land "free from all encumbrances except those noted on the certificate" (emphasis supplied). Anarpet's certificate of title to lot 661 states that the property "is subject to and has the benefit of a right of way in and over Green Ledge Street, a private way, as shown on said plan, in common with others entitled thereto for all purposes for which public ways are or may be ordinarily used." This language additionally put Anarpet on notice that other parcels claimed easement rights in Green Ledge Street, and it would be expected to examine other lot owners' certificates. Further examination would have resulted in finding easement (and ownership) rights to Green Ledge Street in the defendants' properties through the language of the deeds stating they were bounded "by Green Ledge Street."
The fact that the defendants' certificates of title to lots 563A, 564, 565, 566, and 575 do not explicitly mention easements to Green Ledge Street is of no consequence. "[E]ven on registered land, there is no requirement that easements appurtenant, benefiting a lot, must be listed on the certificate of title." Hickey v. Pathways Assn., Inc., 472 Mass. at 753 n.26, citing Duddy v. Mankewich, 75 Mass. App. Ct. 62, 64 n.6 (2009).
C. Overloading and overburdening of Green Ledge Street. We discern no error of law or clearly erroneous findings of fact in the judge's decision regarding the defendants' alleged overloading and overburdening of Green Ledge Street. See Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014) ("Upon appeal, we accept a trial judge's findings of fact unless they are 'clearly erroneous,' and do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge's findings" [citations omitted]).
As to overloading, we agree with the judge's ruling, for the reasons stated at pages 37 through 38 of his decision, that "[i]t does not overload the easement over Green Ledge Street when vehicles cross lot 660 to access lot 589, or when vehicles on lot 589 cross lot 660 to access Green Ledge Street."
As to overburdening, the obligation between common easement holders is that "they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders." Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 797 (2009), citing Restatement (Third) of Property (Servitudes) § 4.12 comment b, at 626-627 (2000). The judge did not err or abuse his discretion in exercising his responsibility to "make determinations as to what is a reasonable use, and what crosses the line into interference." We note that the judge found that certain actions of the defendants on Green Ledge Street crossed the line and enjoined practices such as unloading car carriers on Green Ledge Street, car carriers traveling in reverse down Green Ledge Street, and entering Anarpet's property without permission.
D. Easements in twelve-foot-wide right of way. The judge erred in determining that Anarpet lacked standing to challenge the defendants' alleged overloading and overburdening of the twelve-foot-wide right of way because Anarpet held no fee 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." Hickey v. Pathways Assn., Inc., 472 Mass. at 753. Thus, Anarpet, by virtue of its ownership of lot 567H, which was conveyed with rights to use the right of way, has standing to assert claims of overloading and overburdening as they affect Anarpet's use of lot 567H. Accordingly, we are constrained to remand the issue of the defendants' use of the twelve-foot-wide right of way for findings and rulings on the merits. ,
Because the judge did not reach the merits of Anarpet's claims with respect to the right of way, he did not address the admissions of defendant Stutz Plaisted that "[n]o rights were ever given to Lots 561, 562, 563, 564, 575 and 660 to use the twelve foot right of way," and that "[l]ots 561, 562, 563, 564, 575 and 660 have no rights to use the twelve foot right of way." On remand, the judge should give due consideration these admissions.
Finally, we detect no error in the judge's findings and conclusions with respect to Anarpet's encroachment claim arising from the defendants' installation of electric and telephone wires over lot 661.
Conclusion. So much of the judgment as held that Anarpet lacked standing to challenge the defendants' overloading and overburdening the twelve-foot-wide right of way is reversed, and the case is remanded to the Land Court for consideration on the merits of those claims. In all other respects, the judgment is affirmed.
Stutz Motor Car Company, Inc., Stutz Plaisted, and Plaisted Properties, LLC, purport to appeal from the judge's failure to dismiss Anarpet's complaint on the basis of laches; however, they failed to perfect their cross appeal.
So ordered.
By the Court (Kafker, C.J., Trainor & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 26, 2015.