BEVERLY A. HANSON & others [Note 1] vs. CADWELL CROSSING, LLC, & another. [Note 2]

DREBEN, J. When the plaintiffs, the owners of lots 3 and 4 in the Falcon Heights subdivision in Wilbraham, became aware that lot A, a narrow strip of land situated between and abutting lots 3 and 4, had been approved by the planning board of Wilbraham (planning board) for use as a road to connect a new

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subdivision, Cadwell Crossing Estates, owned by the defendant, Cadwell Crossing, LLC. (Cadwell), to the roads of the Falcon Heights subdivision, they brought this action in the Land Court. A sketch showing a portion of the plan of the Falcon Heights subdivision and a portion of the Cadwell land is attached hereto as an appendix.

The sole issue before us is whether the plaintiffs or Cadwell owns lot A. The plaintiffs claim that lot A was a contemplated way at the time they purchased their lots and that they now own the fee as abutters pursuant to G. L. c. 183, § 58, the derelict fee statute. A judge of the Land Court disagreed and granted Cadwell's motion for summary judgment, ruling that there was no ambiguity in the relevant documents, that none of the recorded documents made any reference to lot A as a proposed way and, as a consequence, the plaintiffs did not own lot A. He refused to allow the plaintiffs to introduce extrinsic evidence to support their claim that lot A was intended as a future way. A judgment entered declaring that G. L. c. 183, § 58, does not apply to lot A and that Cadwell is its owner. This appeal by the plaintiffs followed. We affirm the judgment.

1. Deeds and plans for Falcon Heights and Cadwell Crossing subdivisions. The deed to the Hansons, dated December 28, 1999 from Gregory A. Coons and Amy B. Coons, describes their lot as follows:

"the land situated in Wilbraham, Hampden County, Massachusetts, described as follows:

"Being Lot No. 4 on a plan of land entitled 'Falcon Heights' Definitive Subdivision of Land in Wilbraham, Massachusetts, Hampden County, prepared for Gregory A. Coons & Amy B. Coons dated February 18, 1998, and prepared by Almer Huntly, Jr. & Associates, Inc., recorded with the Hampden County Registry of Deeds in Plan Book 309, Page 41.

"The Grantors herein reserve the fee interest in the roadways known as Autumn Road and Falcon Heights Road, both as shown on the aforementioned subdivision plan recorded in said Registry of Deeds in Plan Book 309, Page 41, and grant to the grantees herein their heirs, successors

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and/or assigns, rights of ingress and egress over said roadways for all purposes for which a roadway is traditionally used."

The deed to the other plaintiff-abutter of lot A, Joseph Gormley, is dated December 17, 2003 [Note 3] and is virtually identical to the Hanson deed except that the land conveyed is described as lot 3 on the same plan. The deeds make no mention of lot A. The plan referred to in the deeds describes lot A as fifty feet wide and containing approximately 5,202 square feet, and labeled "Not a Building Lot."

On January 8, 2004, Cadwell purchased lot A, and on January 9, 2004, Cadwell purchased several parcels north of the Falcon Heights subdivision. It sought approval for a subdivision of its own, and on August 26, 2004, the planning board filed its approval of Cadwell's definitive subdivision plan. The approved plan shows that Cadwell's subdivision is located on approximately 50.6 acres of land and that lot A will become an extension of Falcon Heights Road into Cadwell's subdivision.

2. Discussion. Four days after the planning board filed its approval, the plaintiffs filed this action claiming, as previously indicated, that they own lot A by the application of G. L. c. 183, § 58. That statute is set out in full in the margin [Note 4] and its effect is to strengthen "the common law . . . presumption that 'a

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deed bounding on a way conveys the title to the centre of the way if the grantor owns so far.' " Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 803 (2003) (Rowley), quoting from Gould v. Wagner, 196 Mass. 270, 275 (1907). [Note 5]

Relying on Rowley, supra at 805, the plaintiffs claim that G. L. c. 183, § 58, applies to every deed conveying property which in fact is bounded by a way, "regardless of how it is described in the instrument of its conveyance." They claim, therefore, that the judge erroneously restricted the inquiry to the conveyancing instruments and did not allow them to introduce evidence that lot A was a contemplated way. [Note 6] Rowley, however, as the motion judge ruled, is not apposite. In that case, the defendant, Massachusetts Electric Company, had acquired the interests of a former railroad and proposed building a bicycle path on the railroad bed. The plaintiffs, whose land abutted on the railway, objected and claimed title within it pursuant to G. L. c. 183, § 58. In upholding the plaintiffs' claims, the court rejected the necessity of using prescribed words for the statute's

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application. The defendant, apparently relying on language in Emery v. Crowley, 371 Mass. 489, 493-495 (1976) (see Rowley, supra at 805 n. 11), had argued that because the language of the plaintiffs' deeds described their properties either as "bounded by 'land of the [railroad]' or as 'land now or formerly of said [railroad],' and not as bounded by the 'railway,' § 58 simply [did] not apply." Rowley, supra at 801. In response to this argument, the Rowley court noted that if § 58 were construed as only applying to instruments specifically describing parcels as abutting ways, such construction would defeat the object of the statute. [Note 7] Id. at 804. It was for this reason that the court stated that

"a plain reading of the statute is that it applies to instruments that convey real estate that in fact has frontage along the length of a way or other similar linear monument. There is nothing in the statutory language itself that suggests that its effect is limited only to instruments that describe the real estate conveyed as bounded by a 'way' or other similar linear monument."

Id. at 802. That the court was directing its attention to the form of words used is apparent from its subsequent statements indicating that if the legislative intent had been to limit the statute's effect, that purpose could have been easily accomplished by providing that "[e]very instrument passing title to real estate described in such instrument as abutting a way" instead of the language as enacted. Id. at 802 & n.9. [Note 8]

Moreover, the facts of Rowley were far different from the

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present case. The former railroad had, by filing its location plan, effected "written, permanent record evidence" of the easement acquired. Id. at 799, quoting from Hazen v. Boston & Me. R.R., 2 Gray 574, 580 (1854). Moreover, the railroad's former route was visible on the ground. The "way" (or "other similar monument") was clearly defined.

For G. L. c. 183, § 58, to apply, the way need not be in existence on the ground, as long as it is contemplated and sufficiently designated. Contrary to the plaintiffs' contention, it is not enough that the metes and bounds of a strip are described; "the strip has [to be] sufficiently defined as a proposed street." Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678 (1965). In making that determination, reference may be made to the plan." Ibid. In contrast to the record evidence in Rowley, the documents of record here (deeds and plan) designate no proposed way. They do not indicate that lot A was intended as anything other than a small lot retained by the developer for any number of possible purposes such as open land, additional parking, a road, or other permissible use. [Note 9]

Thus, at the time of the deeds to the plaintiffs, there was neither any suggestion of record nor any indication on the ground to support the claim that lot A was intended as a street or that the plaintiffs had "any interest in [lot A]." See Emery v. Crowley, 371 Mass. at 493. There was no ambiguity in the documents and we see nothing in Rowley, supra, that supports the need for parol evidence. Accordingly we follow "[t]he basic principle governing the interpretation of deeds [namely] that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument[s],

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construed when necessary in the light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 (1998). Here there is no such necessity. "We are able to begin and end our inquiry here by reference to the . . . language . . . as set forth in all the relevant deeds" and plan. Ibid.

Judgment affirmed.

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APPENDIX.