LEE E. ESTES & another [Note 1] vs. JOHN E. DEMELLO & another, [Note 2] individually and as trustees. [Note 3]

GREEN, J. The defendants appeal from a summary judgment of the Superior Court, declaring that they hold no rights in a way crossing the plaintiffs' property, as shown on a 1971 plan of subdivision. The way was never constructed on the ground in

Page 639

the manner depicted on the plan, a circumstance the motion judge concluded defeated the rights the defendants claim. We reverse.

Facts. The undisputed facts may be summarized as follows, with reference to the sketch plan attached to this opinion as an appendix for assistance in understanding the configuration and spatial relationships of the various parcels.

The DeMellos own property, on which their residence is located, consisting of four contiguous lots in Mattapoisett. They acquired the property under two separate deeds. The first deed, from Alfred E. Faria and Elizabeth F. Faria and dated October 17, 1963, conveyed the largest lot, with its frontage on the northerly side of Acushnet Road (an improved and regularly traveled public way). The second deed, from Alfred E. Faria (Elizabeth having died), was dated January 20, 1972, and conveyed the three smaller lots. The lots conveyed under the 1972 deed had no frontage on Acushnet Road, but were contiguous to the northern boundary of the lot conveyed under the 1963 deed.

The 1972 deed described the land conveyed thereunder as "[b]eginning at a point . . . in the westerly sideline of a proposed way known as Stevens Street as shown on a plan hereinafter described." That plan is a 1971 plan, endorsed as "approval not required" under the subdivision control law, see G. L. c. 41, § 81P, that reconfigured and divided into three lots the lot formerly shown as lot 52 on a subdivision plan of land approved by the Mattapoisett planning board in 1964, and duly recorded with the registry of deeds. [Note 4] Lot 52A comprised the northeastern portion of former lot 52, and lot 52C comprised the southeastern portion of lot 52; lot 52A relied on Steven Street for the frontage required for endorsement of the plan as "approval not required." [Note 5] The 1971 plan was recorded with the 1972 deed.

Page 640

The 1972 deed also contained the following language with reference to Steven Street:

"Subject to the condition that the grantee is aware that 'Stevens Street' is a proposed way and is not in existence and the grantor undertakes noobligation [sic] or makes no representations or warranty that said street will be constructed or that he will begin construction on said street, or that any utilities will be installed in said street, grantor reserves title to said way subject to the grantee's right to use said way in common with others for ingress and egress to the granted premises. And grantor reserves the right to grant easements in common over said way to others or to grant easements to any utility company or to the Town for municipal services over, under or across said way."

In 1986, Faria conveyed to James B. Lanagan, III, approximately 5.2 acres of land, consisting (according to the deed) of "Steven Street, part of Joseph Street and Lots 23, 24, 27, 30, 33, 36, 39, 42, 45, 48, 50, and 53" on the subdivision plan approved by the Mattapoisett planning board in 1964. Though, as noted, the 1986 deed referred to Steven Street by reference to the 1964 plan, it did not state that the conveyance was subject to any rights of way held by other parties in Steven Street. By comparison, the 1986 deed expressly stated that it was subject to two easements held by New Bedford Gas & Edison Light Company.

In May of 1991, Lanagan's development trust gained approval of a subdivision plan which, of relevance to the parties' dispute, shortened the way formerly shown as Steven Street to a

Page 641

cul-de-sac ending 201.67 feet from its intersection with Acushnet Road. That distance is 135.59 feet less than the combined frontage of the DeMellos' property along Steven Street as shown on the 1964 and 1971 plans. The 1991 plan (which referred to the reconfigured way as "Faria's Field Road") created a new "lot 1" served by the way, and included a portion of the former Steven Street within the lot's boundaries. In October of 1991, Lanagan's development trust conveyed to Fairhaven Savings Bank, by deed in lieu of foreclosure, lot 1 and Faria's Field Road. [Note 6] The plaintiffs acquired lot 1 and Faria's Field Road from Citizens Bank of Massachusetts (as successor to Fairhaven Savings Bank) by deed dated April 27, 1992. [Note 7] Faria's Field Road has since been renamed Brook Trout Lane.

Discussion. The motion judge considered whether the DeMellos held an easement either by express grant or by estoppel. On the question of express grant, the judge concluded that the easement granted to the DeMellos under the 1972 deed was subject to a condition subsequent, unlimited in time and uncertain of satisfaction, and was therefore void under the rule against perpetuities. [Note 8] On the question of estoppel, the judge observed that, though the 1972 deed described the land conveyed thereunder as bounded by Steven Street and by reference to the plan showing it, (i) the earlier 1963 deed to the DeMellos included no reference to the way; (ii) subsequent deeds conveying land which included Steven Street did not describe the land as bounded by the way; (iii) Steven Street was never staked out or constructed on the ground; and (iv) the DeMellos have alternative access to their land by means of Acushnet Road. We address each question in turn. [Note 9]

a. Express grant. "The basic principle governing the

Page 642

interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). In addition, "[i]t is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him." Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823, 827 (1984), quoting from Thayer v. Payne, 2 Cush. 327, 331 (1848).

The language of limitation the motion judge construed as imposing a condition on the creation of the DeMellos' rights in the way appears instead merely to disclaim any obligation on the part of the grantor to construct the way. Nothing in the deed purports to limit any use the grantees might make of the way, or states that their rights of ingress and egress (to which the grantor's reservation of the fee was expressly subject) [Note 10] would not arise unless or until the way was built. Similarly, nothing in the deed limited the right of the DeMellos to improve the way themselves, if they chose to do so; the right to use a private way ordinarily "includes the right to make reasonable repairs and improvements." Hodgkins v. Bianchini, 323 Mass. 169, 173 (1948). See Stagman v. Kyhos, 19 Mass. App. Ct. 590, 593-594 (1985).

The effect of the unnecessarily narrow interpretation of the easement grant is exacerbated by the application of the rule against perpetuities to void it. The principles governing interpretation of a deed are similar to those governing contract interpretation. In the case of the latter, "[a]n interpretation which gives a reasonable meaning to all of the provisions of a contract is to be preferred to one which leaves a part useless or inexplicable." Jacobs v. United States Fid. & Guar. Co.,

Page 643

417 Mass. 75, 77 (1994), quoting from Sherman v. Employers' Liab. Assurance Corp., 343 Mass. 354, 357 (1961). See Talbot v. Rednalloh Co., 283 Mass. 225, 230 (1933); Finn v. McNeil, 23 Mass. App. Ct. 367, 372 (1987). Particularly where, as illustrated above, a construction of the grant that triggers application of the rule against perpetuities is unnecessary, a construction giving effect to the grant and avoiding its invalidation is to be favored. [Note 11]

b. Estoppel. "[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). Similarly, "where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan." Goldstein v. Beal, 317 Mass. 750, 755 (1945) (citations omitted). "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., supra at 678. "The rights also apply even if the way under

Page 644

consideration is obstructed, overgrown, and impassable." Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48, 55 (1980).

In concluding that the DeMellos do not hold rights in Steven Street under an easement by estoppel, the motion judge observed that the 1986 deed from Faria to Lanagan did not describe the land conveyed thereunder as bounded by Steven Street, and that the 1963 deed from the Farias to the DeMellos did not refer to Steven Street at all. However, the easement at issue arose for the benefit of the land conveyed under the 1972 deed, so the language of the 1963 deed, concerning other land, is irrelevant; moreover, the subdivision plan which laid out Steven Street was not submitted to the Mattapoisett planning board for approval until 1964. As to the effect of the 1986 deed from Faria to Lanagan, Faria and his grantees (including Lanagan and the plaintiffs as his successors in interest) were estopped to deny the existence of the way from and after the 1972 deed. In any event, at least part of the reason the 1986 deed did not describe the land as bounded by the way is that the land conveyed thereunder included the fee of the way; the 1986 deed did refer to Steven Street by name and by reference to the subdivision plan delineating its precise layout.

The case for estoppel is perhaps even more pronounced in the present case than in the usual circumstances, since Faria relied on Steven Street to provide the frontage required for endorsement of the 1971 plan as "approval not required." Though the 1971 plan noted that lot 52C was to be combined with the adjacent DeMello property (and could thereby rely on its frontage), and lot 52B was to be combined with the Faria lot situated to its west (which also had frontage), lot 49 (with which lot 52A was to be combined) had no frontage on any way other than Steven Street. Accordingly, the plan dividing lot 52A from the larger lot 52 was eligible for endorsement as "approval not required" only by reliance on the frontage furnished to the combined lots 49 and 52A by Steven Street, "a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law." G. L. c. 41, § 81L, twelfth par., cl. (b). The very plan delineating the boundaries of the land Faria conveyed to the DeMellos under the 1972 deed relied on Steven Street to meet the legal requirements applicable

Page 645

to recording both the deed and the plan on which it was based. See G. L. c. 41, § 81X. See also Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599, 603 (1980).

As illustrated by such cases as Murphy, supra, and Canton Highlands, supra, it is of no consequence that Steven Street was not built or staked out on the ground at the time of the 1972 deed. Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 (1926), and Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 (1971), cited by the motion judge as resting on that distinction, involved rights claimed in unimproved ways shown on a recorded plan as extending beyond the plaintiffs' land and leading to no other improved or traveled way. See Wellwood, supra at 355; Kassuba, supra at 728. By comparison, the way in the present case leads directly from the land conveyed under the 1972 deed to the nearest public way, and is the only means to reach the public way from such land without traversing the DeMellos' other land, on which they previously had developed their house and yard. Moreover, insofar as the DeMellos' rights depend on a determination of the intent of the parties, the circumstances bearing on intent are strikingly similar to those considered in Scagel v. Jones, 355 Mass. 208, 210 (1969) (way arose by implication over strip abutting granted premises, even though not designated as way on plan referred to in deed).

Conclusion. The judgment of the Superior Court is reversed. A new judgment shall enter, declaring that the DeMellos have an easement for ingress and egress over the way shown as Steven Street on the 1971 plan, including so much of the improved way now called Brook Trout Lane as is within the limits of Steven Street.

So ordered.

Page 646

APPENDIX.