PAUL S. D'ALIO and TAMMY A. D'ALIO v. ANITA K. VOLPE

This action commenced on October 20, 2005, with the filing of a two-count verified complaint by the plaintiffs, Paul S. D’Alio and Tammy A. D’Alio (“plaintiffs”), seeking adjudication of their rights in a portion of a forty-foot wide strip of land depicted as “Proposed (Malquinn Drive) St.” on a September, 1955 plan of land recorded the following year in the Worcester (South District) Registry of Deeds (“Registry”) in Plan Book 219 as Plan 113. The defendant filed her answer on November 9, 2005.

The plaintiffs own of record and reside at a parcel of land located at 15 Malquinn Drive in Hopedale; the defendant, Anita K. Volpe (“defendant”), who is the mother of plaintiff Paul S. D’Alio, owns of record and resides at an abutting parcel of land located at 13 Malquinn Drive in Hopedale. This dispute concerns a strip of land between the parties’ parcels; the location of the record boundary line of the parties’ properties, relative to this strip; and the parties’ rights with respect to the strip. A portion of the strip of land has been and continues to be used by the defendant as a driveway for access to and egress from her residence at 13 Malquinn Drive.

I held a case management conference on January 6, 2006, at which I set out milestones for this case to proceed, directed counsel to notify the parties’ mortgagees of the pendency of this litigation, and also discussed the prospects for consensual resolution. At that conference, counsel for both parties expressed willingness to explore mediation by way of referral to a court-affiliated alternative dispute resolution provider for participation in a mandatory screening session. Counsel were directed make arrangements with a mediation provider of their choosing for such a screening session to take place, and then to report back to the court within one week following the case management conference. No such report was received from counsel, but an entry was made upon the docket in this case, dated March 7, 2006, that the court received a report from REBA Dispute Resolution, Inc., that a mediation screening took place at which the parties declined to participate in further formal dispute resolution proceedings.

Following the case management conference, the defendant filed a motion to amend her answer and assert two additional affirmative defenses. I allowed the defendant’s motion to amend on January 19, 2006. Counsel for the plaintiffs sent notice of this litigation to the plaintiffs’ mortgagee by letter dated January 24, 2006; no motion to intervene or other filing was made by a mortgagee of either of the parties. [Note 1] On June 12, 2006, the plaintiffs submitted a unilateral report on the status of discovery in the case and indicating, generally, that the plaintiffs intended to proceed to trial rather than by way of dispositive motion. In addition, the plaintiffs filed a motion in limine, seeking to limit any testimony to be given at trial by the defendant on the basis of her unwillingness to be deposed. I took no action on the plaintiffs’ motion at that time. The defendant filed a separate unilateral status report on June 14, 2006. In accordance with a notice sent by the court on October 16, 2006, directing counsel to submit a further joint written status report, counsel jointly filed one on October 30, 2006. Counsel submitted a further joint status report on November 29, 2006, upon receipt of which the court scheduled a pre-trial conference. Counsel submitted a joint pre-trial memorandum on January 12, 2007.

I held a pre-trial conference on January 18, 2007. At that time, I heard argument on the plaintiffs’ June 12, 2006 motion in limine, which I denied without prejudice; instead, I gave plaintiffs the opportunity to bring on a motion to compel the defendant’s appearance at a deposition. No motion to compel was filed.

I took a view of the locus on February 16, 2007, in the presence of counsel and some of the parties. The trial in this case was held on February 28, 2007, in Boston. Reporter Karen Smith was sworn to transcribe the testimony and proceedings. Seventeen exhibits were introduced into evidence, and five witnesses testified: plaintiff Paul S. D’Alio; plaintiff Tammy A. D’Alio; Michael J. D’Alio, Jr., the older brother of plaintiff Paul S. D’Alio; Kathryn L. Moisan, the older sister of plaintiff Paul S. D’Alio; and defendant Anita K. Volpe. As directed by the court at the conclusion of the trial, following receipt of the transcript, counsel simultaneously submitted post-trial memoranda.

On all of the testimony, exhibits, stipulations and other evidence properly introduced into evidence, along with the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I make the following findings of fact and rulings of law.

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On October 15, 1956, a plan (“1955 recorded plan”) entitled “Subdivision Plan of Land In Hopedale, Mass. owned by James A. Quinn and Edward J. Malloy, Sept. 1955, Scale: 1"=50', Eastman and Corbett Inc. Civil Engineers, Milford, Mass.” was recorded at the Registry in Plan Book 219 as Plan 113. (A reduced reproduction of the 1955 recorded plan accompanies this Decision as an exhibit.) The 1955 recorded plan depicts a subdivision of eleven lots along a proposed way, forty-feet in width, shown as “Proposed (“Malquinn Drive”) St.” (“Malquinn Drive”). As shown on the 1955 recorded plan, Malquinn Drive runs roughly from west to east, with lots numbered as two, four, six and eight fronting along the northern sideline of the way, and lots numbered one, three, five, seven, nine and eleven fronting along the southern sideline of the way. The lot numbered 10 on the 1955 recorded plan lies at and has frontage along the easternmost end of the way.

The rear, or southernmost, boundary lines of the six odd-numbered lots along the southern sideline of Malquinn Drive, as well as of lot 10, all run along a strip of land oriented from west to east and shown on the 1955 recorded plan as “Worcestor [sic] County Electric Co.” (“Worcester Electric Co. land”). The Worcester Electric Co. land varies in width from north to south from 100 feet to 50 feet. The rear, or eastern-most, boundary line of Lot 10 runs in a curved line along a way shown as “G & U R.R.” (hereinafter referred to as “Grafton & Upton Railroad”).

As shown on the 1955 recorded plan, the proposed Malquinn Drive begins at the eastern sideline of a way running roughly north to south and shown as Hopedale Street. Malquinn Drive is shown as proceeding approximately six hundred feet to the east, then turning right, to the south, (at approximately the easternmost end of the northern boundary of lot 11) along a curve (having an inner radius of 21.70 feet with an inner arc length, along the southern sideline of Malquinn Drive, of 32.32 feet, and an outer radius of 61.70 feet and an outer arc length, along the northern sideline, of 91.89 feet) and then proceeding 69.80 feet to a point where the way terminates at the northern boundary line of the Worcester Electric Company land. According to the 1955 recorded plan, a portion of the forty-foot wide proposed way, running from the point where the west to east portion of the way ends, and the curve to the south begins, and then heads to the southern terminus of the way at the Worcester Electric Co. land, divides lot 11 from lot 10. Lot 11 is shown on the 1955 recorded plan as roughly rectangular parcel, bounded on the east by the forty-foot proposed way. Lot 10, which lies straight ahead at the eastern end of Malquinn Drive, is shown as a somewhat more irregularly-shaped parcel, bounded on the west by the proposed way. Lot 10, the plaintiffs’ lot, is the rearmost lot on Malquinn Drive, furthest from the entrance off of Hopedale Street. Lot 10 actually is shown on the 1955 recorded plan as enveloping the bend in Malquinn Drive, where it turns right and heads south, and is shown as having frontage along the northern and eastern sideline of Malquinn Drive in this area.

Malquinn Drive was constructed and has remained in use at all relevant times in a configuration which differs from the proposed way as shown on the 1955 recorded plan. As Malquinn Drive actually exists on the ground, it does not terminate in a curve to the south, heading in that direction in a forty-foot width between the lots numbered on the 1955 recorded plan as 11 and 10. Instead, as actually paved and on the ground, Malquinn Drive ends in a cul-de-sac having a radius of 30.00 feet, located largely upon the same land as shown on the 1955 recorded plan where the proposed curve to the south was laid out. The cul de sac enlarges the bend in Malquinn Drive to the north and east, effectively taking the area occupied by this enlargement out of what is shown as Lot 10 on the 1955 recorded plan.

By deed (“1956 Quinn and Malloy Lot 11 Deed”) dated October 10, 1956, recorded October 15, 1956 in the Registry at Book 3814, Page 59, James A. Quinn (“Quinn”) and Edward J. Malloy (“Malloy”) conveyed the lot shown on the 1955 recorded plan as lot 11 – the same lot which is now owned by the defendant and located at 13 Malquinn Drive – to Albert R. Buroni and Dena R. Buroni, husband and wife, as tenants by the entirety, and Michael J. D’Alio and Anita K. D’Alio, husband and wife, as tenants by the entirety. The 1956 Quinn and Malloy deed recites, in pertinent part, the following metes and bounds description of lot 11 as shown on the 1955 recorded plan:

Beginning at a stake at the northwest corner of the granted premises, in the southerly line of a proposed street, as shown on ... [the 1955 recorded plan, fully identified]. Said stake is located 510.73 feet northeasterly from the easterly line of Hopedale Street,

THENCE, N. 76° 40' E., along the southerly line of said proposed street, 90 feet to a stake;

THENCE, southeasterly in a curved line having a radius of 21.70 feet, 32.32 feet to a stake in the westerly line of said proposed street;

THENCE, S. 18° 00' E. 69.80 feet to a stake at land of the Worcester County Electric Company;

THENCE S. 72° 00' W., along Worcester County Electric Company land, 109.64 feet to a stake;

THENCE, N. 18° 00' W. 98.75 feet to the point of beginning.

Together with and subject to the right of way (shown on said plan as a proposed street) for general purposes in common with others to use said proposed street.

By deed (“1959 Quinn and Malloy Malquinn Drive Deed”) dated July 23, 1959, recorded July 23, 1959 with the Registry in Book 4042, Page 378, Quinn and Malloy conveyed to the inhabitants of the Town of Hopedale their right, title and interest in the land comprising Malquinn Drive, described, in pertinent part, as follows:

On the easterly side of Hopedale Street and called Malquinn Drive and more particularly bounded and described as follows:

BEGINNING at a concrete bound in the easterly line of Hopedale Street at the northwesterly corner of land of one T. Malloy, said point being 233.12 feet northerly of a Hopedale Highway bound set in said street line;

THENCE N. 72° E. 126.73 feet by said T. Malloy land to a point;

THENCE N. 76° 40' E 474. feet by land of DiNardo, land of Caron, land of Rosati, land of Sannicandro and land of Buroni and D’Alio to a tangent point;

THENCE on a curve to the right with radius of 21.70 feet a distance of 21.57 feet to a point;

THENCE on a curve to the left, with radius of 30 feet and with the center of the circle being 29.01 feet from the said tangent point and with said center being located on the extended center line of the easterly straight portion of this road, a distance of 122.32 feet by land of Malloy and Quinn to a point;

THENCE S. 76° 40' W. 474.29 feet by land of Malloy and Quinn, land of Cardone and other land of Malloy and Quinn to a point;

THENCE S. 72° W. 128.74 feet by last said other land of Malloy and Quinn and land of Brown to a point in the easterly line of said Hopedale Street;

THENCE S. 18° 33' E. 40 feet by said easterly street line to the point of beginning.

Said land to be used by the Town of Hopedale for the usual street purposes.

By deed (“1965 Quinn and Malloy Lot 10 Deed”) dated February 3, 1965, recorded in the Registry on October 12, 1973 in Book 5393, Page 571, James A. Quinn and Dorothy S. Quinn, husband and wife, and Edward J. Malloy and Evelyn E. Malloy, also husband and wife, conveyed to Albert R. Buroni and Dena R. Buroni, and Michael J. D’Alio and Anita K. D’Alio, as joint tenants, the land shown as lot 10 on the 1955 recorded plan and described, in pertinent part, as follows:

Beginning at the northerly corner of the granted premises at a stone bound at the land of The Grafton & Upton Railroad and land of one Ambrogi.

Thence, S 60-38-13 E, along said Railroad land, 106.95 feet to a point.

Thence, southeasterly along a curve having a radius of 996.61 ft., 125.89 ft. along said Railroad land, to land of the Worcester County Electric Company.

Thence, S. 72-00-00 W. along said Worcester County Electric Co. land 234.93 ft. to land conveyed to Buroni & D’Alio.

Thence, N. 18-00-00 W. along said land of Buroni & D’Alio 69.80 ft. to the point of curve.

Thence, continuing along land of Buroni & D’Alio, along a curve to the left with radius of 21.70 ft. a distance of 10.75 ft. to a point.

Thence along Malquinn Drive around the cul-de-sac on a curve to the right with a radius of 30.00 ft. a distance of 122.32 ft. to the point of TANGENT. The center of this curve being 30.00 ft. from the Point of TANGENT on the north side of Malquinn Drive and 29.01 ft. from the Point of TANGENT on the south side of said MALQUINN DRIVE.

Thence, N 13-20-00 W. along Lot 8, 28.39 ft. to land of Ambrogi.

Thence, N 69-15-26 E. along land of Ambrogi 125.81 ft. to the point of beginning.

Being Lot 10, and part of a proposed street shown of “Subdivision Plan of Land in Hopedale, Mass., OWNED BY JAMES A. QUINN and EDWARD J. MALLOY, Sept. 1955, Scale 1"=50' by Eastman & Corbett, Inc., Milford, Mass..

By deed (“1967 Buroni Deed”) dated October 26, 1967, recorded in the Registry on October 15, 1973 in Book 5394, Page 32, Albert R. Buroni and Dena R. Buroni, husband and wife, conveyed to Michael J. D’Alio and Anita K. D’Alio all their right, title and interest in the two parcels of land shown on the 1955 recorded plan as lot 11 (described in the deed as Parcel No. 1) and lot 10 (described in the deed as Parcel No. 2). The 1967 Buroni deed set out a description of the metes and bounds of Parcel No. 1 (shown as lot 11 on the 1955 recorded plan) which was identical in all respects to the description of the land given in the 1956 Quinn and Malloy Lot 11 Deed. Similarly, the 1967 Buroni Deed set out a description of the metes and bounds of Parcel No. 2 (shown as lot 10 on the 1955 recorded plan) which was identical in all respects to the description of the land given in the 1965 Quinn and Malloy Lot 10 Deed.

By deed dated April 29, 1983, recorded in the Registry in Book 8193, Page 134, Michael J. D’Alio, as her former husband, conveyed to Anita K. D’Alio, as his former wife, all his right, title and interest in the land shown as lot 11 on the 1955 recorded plan, having a metes and bounds description which was identical in all respects to the description of the land given as Parcel No. 1 in the 1967 Buroni Deed.

Defendant Anita K. Volpe, using her former surname D’Alio, submitted an application for a variance to the Town of Hopedale Zoning Board of Appeals (“ZBA”), dated October 22, 1984, seeking to build a house on lot 10 (located at 15 Malquinn Drive). According to the variance application, lot 10 was a non-conforming vacant lot, and the defendant proposed using the lot as a gift “to [her] son, Paul, to build a home.” In support of her application, the defendant submitted a letter, stating, among other things, that “the proposed extension of Malquinn Drive would be the frontage.” The ZBA did not grant a variance to build a house on lot 10 at that time.

By deed (“1985 D’Alio Lot 10 Deed”) dated May 23, 1985, recorded in the Registry in Book 8807, Page 294, Michael J. D’Alio and Anita K. D’Alio conveyed to Paul D’Alio and Renee D’Alio, husband and wife, as tenants by the entirety, for nominal consideration the land shown on the 1955 recorded plan as lot 10, “subject to a condition precedent.” The 1985 D’Alio Lot 10 Deed set out a description of the metes and bounds of the land conveyed which was identical in all respects to the description of the land given as Parcel No. 2 in the 1967 Buroni Deed. The 1985 D’Alio Lot Deed provided, among other things, that: “said premises are conveyed subject to a condition precedent that if no house is built on said premises and occupied by the grantee within eighteen months of the date hereof, then title shall immediately revert to the grantors.”

At some point after lot 10 was conveyed to them on May 23, 1985, and on or prior to October 2, 1985, [Note 2] Paul and Renee D’Alio submitted an application for a variance to build a home on the non-conforming lot located at 13 Malquinn Drive. An unrecorded plan (“1985 Unrecorded Plan”) was prepared during that period entitled “Plan of Land In Hopedale, Mass, owned by Paul and Renee D’Alio, Scale 1"=40, September 4, 1985, by Andrews Survey and Engineering Inc., Uxbridge, Mass.,” which also included the caption: “taken from a plan by Eastman & Corbett, Inc., dated September, 1955, recorded in Worcester Dist. Registry of Deeds Pl. Bk. 219, pl. 113". [Note 3]

The 1985 unrecorded plan depicts, among other things, lot 11 and lot 10, as well as the dimensions of Malquinn Drive as it was constructed on the ground – i.e., terminating in a cul-de-sac having a radius of 30.00 feet and an arc length of 121.45 feet. All the dimensions shown on the 1985 unrecorded plan correspond to the dimensions shown on the 1955 recorded plan, with one significant exception: the 1985 unrecorded plan does not depict the forty-foot wide way which comprises the un-built portion of Malquinn Drive, lying to the south of the cul-de-sac. Instead, the 1985 unrecorded plan shows a dimension along the southernmost boundary of lot 10, along the Worcester County Electric Co. land, as having a distance of 274.58 feet and ending (at its western terminus) at the easternmost boundary line of lot 11. [Note 4] The 1955 recorded plan shows the southern boundary line dimension for lot 10, along the Worcester County Electric Co. land, as having a shorter distance of 234.93 feet and ending at the easternmost boundary line of the forty-foot wide way.

By decision dated October 28, 1985, stamped as received by the Hopedale Town Clerk, the ZBA voted to grant the variance. Paul and Renee D’Alio applied for a construction loan, but were not successful in obtaining financing. They were unable to satisfy the condition in the 1985 D’Alio Lot Deed that they build and occupy a home upon lot 10 prior to the expiration of an eighteen month period after the conveyance into them, and title to lot 10 reverted to Michael J. D’Alio and Anita K. D’Alio on December 13, 1986. Paul and Renee D’Alio thereafter divorced. Paul D’Alio later married Tammy A. D’Alio.

By deed (“1989 D’Alio Lot 10 Deed”) dated January 20, 1989, recorded in the Registry in Book 11889, Page 124, Michael J. D’Alio and Anita K. D’Alio conveyed to Paul S. D’Alio and Tammy A. D’Alio as husband and wife, as tenants by the entirety, the land shown as lot 10 on the 1955 recorded plan , subject to the same condition precedent as provided in the 1985 D’Alio Lot 10 Deed. The 1989 D’Alio Lot 10 Deed set out a description of the metes and bounds of the land conveyed which is identical in all respects to the description of the land given in the 1985 D’Alio Lot 10 Deed.

After the conveyance to plaintiffs Paul and Tammy D’Alio, an unrecorded plan (“1989 unrecorded plan”) was prepared, entitled “Building Permit, Plot Plan of Land in Hopedale, Mass., Scale 40 feet to an inch, Date: January 30, 1989, Guerriere and Halnon Inc. Engineering and Land Surveying, Milford-Franklin-Whitinsville.” The plaintiffs obtained a building permit, dated February 2, 1989, to construct a two-story, cape-style single family residence on lot 10, located at 13 Malquinn Drive. At some point during the eighteen months prior to June 24, 1990, the plaintiffs began to occupy their completed home on lot 10. The plaintiffs have occupied their home continuously since the time it was built.

Lot 11 is improved by a two-family residential structure that was constructed between 1956 and 1957. Adjacent to the easternmost side of the house, a driveway occupies most of the width of the disputed forty-foot strip between lots 10 and 11. The driveway was paved within several years after completion of the construction of the house. At the time this litigation commenced, defendant Anita Volpe was residing at lot 11 and occupying the easternmost half of the house closest to the plaintiffs’ property; Jeff D’Alio, the brother of plaintiff Paul D’Alio, was occupying the westernmost half of the house. Although the defendant did not reside at the property continuously from 1985 to October, 2005, I find that the defendant, as well as other occupants of the house at 13 Malquinn Drive, made some use of the full width of the driveway during that period for ingress and egress and parking. The use was not continuous and exclusive, however, particularly as to the portion of the driveway which exists on the easterly half of the forty-foot wide strip. The dispute over the respective rights of the parties in the driveway arose in 2003.

By deed (“2004 Malloy Deed”) dated March 3, 2004, recorded in the Registry in Book 32977, Page 259, Edward J. Malloy conveyed to Anita K. Volpe all of his right, title and interest “in and to a strip of land situated on Malquinn Drive” having the following metes and bounds description:

That portion of Malquinn Drive situated between Lot 10 and Lot 11 [as shown on the 1955 recorded plan] . . .bounded

Easterly by Lot 10 as shown on said plan, a distance of 69.80 feet;

Northerly by a broken line as shown on said plan, a distance of 40.00 feet +/-;

Westerly by Lot 11 as shown on said plan, a distance of 69.80 feet; and

Southerly by land of Worcester County Electric Co., as shown on said plan, a distance of 40.00 feet.

The 2004 Malloy Deed also provided: “this deed is meant to confirm a transfer from Edward J. Malloy to grantee that occurred in or about 1960, but which Deed was never recorded.”

A revised version of the 1989 unrecorded plan was prepared by Guerriere and Halnon, Inc., dated October 8, 2004, showing, among other things, the area comprising the un-built portion of Malquinn Drive, lying to the south of the cul-de-sac, marked as “40' strip staked in field 10/4/2004.”

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Plaintiffs seek a declaration that the southernmost record boundary line of lot 10, along the Worcester County Electric Co. land, runs from the boundary of the Grafton & Upton Railroad land for a distance of 274.93 feet to the easternmost boundary line of lot 11 as shown on the 1955 recorded plan. Said another way, plaintiffs seek declaration that lot 10 includes so much of the disputed forty foot width of the proposed way as shown on the 1955 recorded plan as extends northerly from the Worcester County Electric land to the boundary of the land conveyed to the town by the 1959 Quinn and Malloy Malquinn Drive Deed. It is to this strip of land, forty feet in width and 69.80 feet in length that both sides of this dispute lay claim.

The plaintiffs’ case proceeds on two theories: first, that equity requires the defendant ought to be estopped to deny that she conveyed her interest in the fee in the disputed forty-foot wide strip to the plaintiffs; and second (although the plaintiffs do not expressly pray for such relief), that the 1989 D’Alio Lot 10 Deed contains an inconsistent call, which the court should construe and, in equity, reform by declaring that the call for “thence, S. 72-00-00 W. along said Worcester County Electric Co. land 234.93 ft. to land conveyed to Buroni & D’Alio,” should be changed to read “thence, S. 72-00-00 W. along said Worcester County Electric Co. land 274.93 ft. to land conveyed to Buroni & D’Alio.”

The defendant, on the other hand, asserts three grounds upon which she seeks to have the court enter a declaration that the fee in the disputed forty-foot wide portion of the proposed way shown on the 1955 recorded plan is included in her record ownership of lot 11. First, she argues that the fee in the disputed part of the proposed way remained in developers Malloy and Quinn after they conveyed out lot 10, their remaining interest in Malquinn Drive, as well as lot 11, and Malloy then conveyed the fee to her by the 2004 Malloy Deed. Second, she argues that to the extent the 1989 D’Alio Lot 10 Deed contains a latent contradiction in the 234.93 foot distance given in the call for the record boundary line along the Worcester County Electric Co. land, the court ought to find that on all the evidence, she did not intend to convey the disputed part of the proposed way. Third, alternatively, defendant says she acquired the fee in the disputed part of the proposed way through adverse possession, based on the use of the driveway by occupants of lot 11 between 1985 and October, 2005.

"The basic principle governing the 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." Patterson v. Nicholspaul, 448 Mass. 658 , 665 (2007), quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). "The words themselves remain the most important evidence of intention ... but those words may be construed in the light of the attendant circumstances ...and the objective circumstances to which the words refer.” Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006). [citations omitted] "When the language of the applicable instruments is `clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.' Id.

To determine which party owns the fee in the disputed part of the proposed way, I must first determine who owned the land at the time of the conveyance to the plaintiffs in 1989. General Laws c. 183, § 58, the “derelict fee statute,” provides, in pertinent part:

Every instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . unless (a) the grantor retains other real estate abutting such way . . . in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way . . . as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way . . .between the division lines extended, the title conveyed shall be to the center line of such way . . . as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.

“Section 58 mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way - to the centerline if the grantor retains property on the other side of the way or for the full width if he does not - unless ‘the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.’" Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992). “The statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor.” Id. “The common law presumed that the grantor intended to pass title to the center of the way.” Id.

Here, Malloy and Quinn conveyed lot 11 to the defendant and others by the 1956 Quinn and Malloy Lot 11 Deed, which included in its description of lot 11 several bounds along the proposed way shown on the 1955 recorded plan, as well as the provision “together with and subject to the right of way (shown on [the 1955 recorded plan] as a proposed street) for general purposes in common with others to use said proposed street.” General Laws c. 183, § 58 applies to this conveyance of real estate abutting the portion of the proposed way as shown on the plan, so that the deed included, and passed to the grantees title to, the fee interest of the grantors in the way to the centerline of the way, along its entire length as shown on the 1955 recorded plan. Because Lot 11 on that plan, and as described in the 1956 Quinn and Malloy Lot 11 Deed, bounds on Malquinn Drive to the east (for 69.80 feet), to the north (for 90.00 feet) and, at Lot 11's northeast corner, around the 32.32 foot long curve connecting the other two stretches of Malquinn Drive (and because Malquinn Drive is on the plan a uniform width of 40.00 feet throughout), the 1956 Quinn and Malloy Lot 11 Deed passed title to the twenty feet nearest Lot 11's sidelines on Malquinn Drive in all three stretches of it. I find and rule that the defendant (with her co-grantees, to whose interest she since has succeeded by mesne conveyances), acquired fee ownership of lot 11, as a matter of record title, consistent with this application of the derelict fee statute. This gave these grantees ownership of a Lot 11 which, to the south, extended for a distance of 129.64 feet along the Worcester County Electric Co. land, to the southern terminus of the centerline of the proposed way known as Malquinn Drive.

Malloy and Quinn then conveyed to the Town their right, title and interest in the land comprising Malquinn Drive by the 1959 Quinn and Malloy Malquinn Drive Deed. At that time, the fee in the twenty-foot strip along the entire sideline of Lot 11 on Malquinn Drive had passed, by virtue of the 1956 conveyance, to the then owners of Lot 11, including the defendant who now owns it. I find from the description of the premises used in the 1959 Quinn and Malloy Malquinn Drive Deed that it passes title only to so much of Malquinn Drive as was actually constructed on the ground – i.e., ending in a cul-de-sac having a 30 foot radius. The description of Malquinn Drive in the 1959 deed did not include the portion of the proposed way shown on the 1955 recorded plan to the south of the cul-de-sac. The 1959 deed to the Town operated to convey the fee of the grantors in part of Malquinn Drive; I find and rule that this deed did not convey any part of the leg of Malquinn Drive that projects to the south--the unbuilt portion of the proposed way lying between the cul-de-sac and the Worcester County Electric Co. land. Thus, following the 1959 deed to the Town, the fee of this leg of Malquinn Drive (the unbuilt portion of it) was owned, as to the western half--a strip of a width of 20 feet--by the then owners of Lot 11, and as to the to the eastern half–also a strip of a width of 20 feet–by the original developers, Malloy and Quinn, who then were still owners of Lot 10, as well.

The 1965 Quinn and Malloy Lot 10 Deed, by which James and Dorothy Quinn (“Quinns”), as well as Edward and Evelyn Malloy (“Malloys”), conveyed lot 10 to the defendant and others, contained two contradictions in the descriptions of the bounds: first, the call “thence, S. 72-00-00 W. along said Worcester County Electric Co. land 234.93 feet to land conveyed to Buroni & D’Alio;” and second, the call “thence, continuing along land of Buroni & D’Alio, along a curve to the left with a radius of 21.70 ft. a distance of 10.75 ft. to a point.” The 1955 recorded plan shows a distance of 234.93 feet along the Worcester County Electric Co. land running from the southwestern line of the Grafton & Upton Railroad land in a westerly direction to the eastern sideline of the forty-foot proposed way. On the 1955 recorded plan, the distance of 234.93 feet from the Grafton & Upton Railroad land falls forty feet short of the easternmost boundary of lot 11, as it is drawn on that plan. The critical call here is that the line, although it is said to be 234.93 feet in length, runs to “the land conveyed to Buroni & D’Alio.” Even if I were to apply to the 1956 Quinn and Malloy Lot 11 Deed the common law presumption that the grantor intended to pass title to the center of the way, see Tattan, supra at 243, the distance of 234.93 feet still falls twenty feet short of “the land conveyed to Buroni & D’Alio.” Furthermore, the bound “along a curve to the left with radius of 21.70 ft. a distance of 10.75 ft. to a point” describes the westernmost, or inner sideline of the proposed way shown on the 1955 recorded plan – this description is inconsistent with the 234.93 foot distance given along the Worcester County Electric Co. land, which would bring one only to the easternmost, or outer sideline of the proposed way.

“In the construction of deeds, ‘where the land conveyed is described by courses and distances and also by monuments which are certain or capable of being made certain, the monuments govern, and the measurements if they do not correspond must yield.’” Ryan v. Stavros, 348 Mass. 251 , 258-59 (1964), quoting Temple v. Benson, 213 Mass. 128 , 132 (1912). “It is well established that land of adjoining proprietors may be monuments.” Ryan, supra at 259. Here, I conclude that lot 11, the “land conveyed to Buroni & D’Alio,” is the monument which governs, and which allows me to resolve the variation introduced by the distance given. Regardless of whether I apply the common law presumption (that the grantor intended to pass title to the centerline of the proposed way) to the 1956 Quinn and Malloy Lot 11 Deed, G. L. c. 183, § 58, establishes that the easternmost boundary of lot 11 was the centerline of the proposed way at the time the Quinns and Malloys conveyed out lot 10. By that time, by virtue of the 1956 deed of Lot 11, the owners of that lot held title to the strip which extended twenty feet easterly to the centerline of the short stretch of Malquinn Drive on the 1955 recorded plan. Even if the 1965 Quinn and Malloy Lot 10 Deed sought to convey as part of Lot 10 the entire forty-foot width of the strip of land between Lot 10 and Lot 11, it could not accomplish that goal, because the westerly twenty-foot wide half of that strip had passed to the owners of Lot 11 in 1956. I therefore find and rule that the 1965 Quinn and Malloy Lot 10 Deed conveyed to the defendant and others, as a matter of record title, land which extended for a distance of 254.93 feet along the Worcester County Electric Co. land to the centerline of the proposed way. I further find and rule that after the 1965 conveyance of lot 10, the defendant and others owned the fee in the entire forty foot width of the unbuilt portion of the proposed way shown on the 1955 recorded plan. The Malloy and Quinn interests no longer held any title to the forty foot strip in contention in this case.

I now resolve the inconsistency created by the call in the 1965 Quinn and Malloy Lot 10 Deed for a bound “along a curve to the left with radius of 21.70 ft. a distance of 10.75 ft. to a point.” Because I find that lot 10 was bounded on the west, after the 1965 conveyance, by the centerline of the proposed way, I conclude that the radius of the curve was greater than 21.70 feet, and the distance along the curve was longer than 10.75 feet. Taking the midpoint between the 21.70 foot radius of the inner sideline of the curve and 61.70 foot radius of the outer sideline of the curve, I conclude that the actual radius of the curve (along which lot 10 was bounded by the 1965 conveyance) was 41.70 feet. Therefore, I also conclude that the distance along the curve increased by the length necessary for the bound to reach the center of the cul-de-sac (the point in the Malquinn Drive to which the fee in lot 10 extended, by application of G. L. c. 183, § 58).

I now turn to the conveyance most directly at issue in this case, the 1989 D’Alio Lot 10 Deed. The 1989 deed into the plaintiffs includes the same description of land as the 1965 Quinn and Malloy Lot 10 Deed, the 1967 Buroni Deed and the 1985 D’Alio Lot 10 Deed. The plaintiffs contend that the description, which they argue includes the same latent contradiction as first set out in the 1965 Quinn and Malloy Lot 10 Deed, ought to be construed so as to give lot 10 a bound along the Worcester County Electric Co. land that extends 274.93 feet from the Grafton & Upton Railroad land to the easternmost boundary of lot 11 – which the plaintiffs further contend is the same westernmost sideline of the proposed forty-foot way as shown on the 1955 recorded plan. I do not agree.

The call in the 1989 D’Alio Lot 10 Deed “thence S. 72° 00' 00" W,. along said Worcester County Electric Company land, 234.93 feet to land conveyed to Buroni & D’Alio” does not include a latent contradiction. By operation of the 1956 Quinn and Malloy Lot 11 Deed and the 1965 Quinn and Malloy Lot 10 Deed, and the application to those conveyances of G. L. c. 183, § 58, the “land conveyed to Buroni & D’Alio” included, in 1989, the fee in all of lot 11, lot 10 and the full forty-foot width of the proposed way as shown on the 1955 recorded plan. Therefore, I find and conclude that the measurement of 234.93 feet corresponds to the monument – “the land conveyed to Buroni & D’Alio.” This deed conveyed Lot 10 with a southern boundary distance as it was given on the 1955 recorded plan–234.93 feet from the sideline of the railroad property.

Nevertheless, I find that a subsequent call in the 1989 deed does contain a latent contradiction: “thence continuing along the land of Buroni & D’Alio, along a curve to the left with a radius of 21.70 feet a distance of 10.75 feet to a point.” As discussed above in relation to the same call made in the 1965 Quinn and Malloy Lot 10 Deed, I find that the radius and distance along it describe the westernmost, or inner sideline of the proposed way shown on the 1955 recorded plan – as above, this description is inconsistent with the 234.93 foot distance given along the Worcester County Electric Co. land because the inner sideline of the proposed way lies forty feet to the west. “Where the land conveyed is described by courses and distances and also by monuments which are certain or capable of being made certain, the monuments govern, and the measurements if they do not correspond must yield.” Ryan, supra at 258-59. Here I find and conclude that the monument described in the call, “the land of Buroni & D’Alio,” must govern, and the radius and distance given must yield.

My determination above that the land described by the 1989 D’Alio Lot 10 Deed extends 234.93 feet along the Worcester County Electric Co. land means that lot 10, as described, is bounded on the west by the same line which is shown on the 1955 recorded plan as the easterly sideline of the proposed way. As such, G. L. c. 183, § 58, also applied to the 1989 deed:

“Every instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . unless (a) the grantor retains other real estate abutting such way . . . in which case . . . (ii) if the retained real estate is on the other side of such way . . . between the division lines extended, the title conveyed shall be to the center line of such way . . . as far as the grantor owns.”

I conclude that the 1989 conveyance of lot 10 by the defendant to the plaintiffs granted the defendant’s fee interest in the forty-foot proposed way to the center line of the way. Lot 10's holding extends 254.93 feet along the Worcester County Electric Co. land, including the easternmost twenty feet of the proposed way shown on the 1955 recorded plan.

To resolve the remaining latent contradiction in the radius and distance of the bound “along a curve to the left with radius of 21.70 feet a distance of 10.75 feet to a point,” I refer to my conclusion above regarding the 1965 conveyance of lot 10 into the defendant and others. Because I find that lot 10 is bounded on the west by the centerline of the proposed way, I conclude that the radius of the curve is greater than 21.70 feet, and the distance along the curve is longer than 10.75 feet. Taking the midpoint between the 21.70 foot radius of the inner sideline of the curve and 61.70 foot radius of the outer sideline of the curve, I conclude that the actual radius of the curve is 41.70 feet. Therefore, I further conclude that the distance along the curve must, in this instance as well, be increased by the length necessary for the bound to reach the center of the cul-de-sac (the point in the Malquinn Drive to which the fee in lot 10 extends, by application of G. L. c. 183, § 58).

With the title to the fee of the disputed forty-foot strip thus resolved, I must consider as well whether or not the parties hold rights, outside of their fee ownership in the respective adjoining halves of the strip, to use the half they do not own. Here I need to consider whether or not the parties have rights, based on the longstanding presence of Malquinn Drive on the only recorded plan in existence, the 1955 recorded plan. “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.” Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-78 (1965), quoting Casella v. Sneierson, 325 Mass. 85 , 89 (1949). The decisional law teaches that, ordinarily, one who conveys land shown on a recorded plan used in the conveyancing, which plan shows the land divided into lots with frontage on a way, is estopped to say that the lot owners do not have rights to use the depicted way. This is so even if the way shown on the plan is not in existence at the time of conveyance, so long as it is contemplated and sufficiently designated. Murphy, supra, at 678.

This has become a rule, but it cannot be an absolute rule. The unique facts of the case in front of me cause me to conclude that this is an instance where the Mart Realty rule ought not be employed to establish rights of passage over the entire length of the disputed forty foot wide strip. To do so would mean that not only the parties to this litigation (the current owners of Lots 10 and 11) would have rights of passage over the other’s twenty-foot wide strip. The principle, if applied reflexively here, would lead to the result that all lot owners along the entire length of Malquinn Drive as shown of the 1955 recorded plan would hold similar rights to pass and repass over this forty-foot wide strip. Given that since approximately the late 1950's, Malquinn Drive has ended with a cul-de-sac which does not include any portion of the disputed forty-foot wide strip, has never has been improved to make it capable of being used for passage, and in any event leads only to a dead end at the Worcester County Electric Co. land, application of the principle of Mart Realty would lead to an untoward outcome in this case. This is particularly so with respect to the owners of Lot 10, who, by the time that lot first was conveyed out of the developers’ title, not only were well aware of the termination of the actual roadway in the cul-de-sac, but also took title under a deed that, while it referenced the 1955 recorded plan, also described Lot 10's boundary as running along the circumference of the cul-de-sac. On these facts, it would be inappropriate to establish passage rights slavishly, based only on the 1955 recorded plan’s depiction of Malquinn Drive as extending over the disputed forty-foot wide strip–a picture that never has come to reality in half a century.

Although I decline for these reasons to establish passage rights over the disputed strip based on the recorded plan’s depiction of it as part of Malquinn Drive, this determination is not inconsistent with the analysis I have made of the effect of G.L. c. 183, §58 on the passage of fee title to strip to the two abutting lot owners, each owning to the strip’s centerline. The two legal principles are fundamentally different. The derelict fee statute is a rule used to construe the descriptions in deeds, and is applied rigorously to prevent what otherwise would have happened here–the leaving behind of “derelict” strips of land that are not owned by anyone owning land adjoining. The derelict fee statute needs to be applied in a case such as this one, where the conveyances describe land bounded by a way. The conveyances involved here which are made by reference to a way, treat that way as a linear monument. When the descriptions rely on the way as a linear monument, they run the risk of stranding the fee within that linear monument even if, as to a portion of it, the way has not actually been built. It thus is appropriate to employ section 58 even to a portion of a way not actually paved and in existence on the ground, if the history of the deeds shows that the unbuilt portion of the way has been used descriptively to make conveyance.

What took place shortly before the filing of this case convinces me of the correctness of this conclusion. In 2004, defendant attempted to secure title to the disputed strip by obtaining and recording the 2004 Malloy Deed. Defendant sought out Malloy, apparently one of the individuals who had been involved in the original subdivision in the 1950's. There is nothing in the evidence that shows me whether or not the grantor in that deed is the successor to, and current holder of, all of the interests of the original developers. This exercise demonstrates the difficulty of locating and getting deeds from long-lost parties who once may have laid out a road and conveyed the lots along it. It is for this reason that the derelict fee statute, and its common law predecessor, are critical to head off title complications.

In this case, I conclude that this exercise by the defendant was one of futility, regardless of whether or not her deed in 2004 came from the true holder of all of the interests of the original subdividers. As explained above, neither Malloy nor Quinn retained any interest in the proposed way after the 1959 deed to the Town of the fee in Malquinn Drive to and including the cul-de-sac, and, as to the balance (including what interest they retained in the eastern half of the disputed forty-foot strip), after giving the 1965 Quinn and Malloy Lot 10 Deed.

I turn briefly to the defendant’s claim to have acquired the fee in the disputed portion of the proposed way by adverse possession, through use of the driveway by occupants of 13 Malquinn Drive. To establish title by adverse possession to land owned of record by another, the claimant must show "proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Lawrence v. Concord, 439 Mass. 416 , 421 (2003); Kendall v. Selvaggio, 413 Mass. 619 , 621_622 (1992); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G. L. c. 260 s. 21.

The defendant’s argument of adverse possession simply is not supported by the credible evidence put in at trial. None of the testimony which I credit given at trial by any of the witnesses regarding use of the driveway by occupants of 13 Malquinn Drive was sufficient to permit me to make a finding that the sort of continuous or exclusive use took place which would permit a judgment establishing title by adverse possession. The failure to prove the claim stems from a few insoluble difficulties in the evidence.

First, the testimony was not sufficient to show, as a matter of actual location on the ground, where the activities relied upon for adverse possession actually took place, relative to the record ownership of the properties of the parties, as I have decided them to be (and over time to have been) in this decision. To prevail, the defendant would need to prove use and occupation of the eastern twenty foot strip within the forty-foot wide disputed strip, the portion of it that I have determined is owned now of record by the plaintiffs. Defendant’s use of the other half of the strip, the western twenty feet of it, is not relevant, given that she, at times with others, has been the record owner of this land since the first conveyance of Lot 11 by the developers in 1956. The testimony I credit does not show that the activities relied upon–primarily driving, parking and standing vehicles, in the driveway area took place within the eastern, as opposed to the western half of the disputed strip. It would be, even if a properly pleaded counterclaim for title by adverse possession had been filed, the defendant’s burden to prove specifically the use of the record land of the plaintiffs. There was no credible evidence showing that the activities took place on one side or the other of the line; there was confusion or lack of specificity in the testimony regarding use about just what part of the forty-foot strip was the locus of those activities. For this reason alone, the adverse possession argument fails.

In addition, adverse possession requires exclusivity of use. There is evidence which at least to some degree I credit, that the plaintiffs made some use of the twenty-foot portion of the disputed strip nearest their Lot 10 from time to time, including for the purpose of maneuvering with a boat on a trailer, occasional parking, and other activities. This demonstrate the lack of exclusivity of the defendant’s claimed use of the eastern half of the disputed strip, which was not fenced or even marked off in any way to distinguish it from the western twenty-foot wide portion, belonging to the owners of Lot 11.

Finally, the evidence is without contradiction that the defendant, given the chronology involved in the ownership of the land involved in this case over the years, simply could not have accrued twenty continuous years of possession of the eastern twenty foot wide strip. From the time title to Lot 11 was conveyed to defendant and others in 1956, and they began living on Lot 11, there elapsed only approximately nine years until the developers conveyed to her and others, by the 1965 Quinn and Malloy Lot 10 Deed, title to Lot 10, which, as I have found and ruled, brought with it title to the eastern twenty foot wide strip. From 1965 on, defendant could not have been adversely possessing this strip, because she was by deed an owner of it. It matters not that this deed may not have been recorded until 1973, as she was, as against the record owners who were the grantors in that deed, the holder of title by deed once it was delivered. In any event, the time between 1956 and 1973 is itself too short to give rise to adverse possession.

Defendant remained an owner of the eastern twenty foot wide strip until the first deed to Michael and Anita D’Alio in 1985. At this point, the time for counting continuous possession would need to have begun anew. But there is not from that date forward an unbroken period of twenty years of non-ownership by defendant of the eastern twenty foot wide strip. This is because the condition in the 1985 deed operated to cause record title to Lot 10 to return to the defendant based on her son and daughter-in-law’s failure to build their house timely. It was because of this that it was necessary to reconvey Lot 10 by the 1989 D’Alio Lot 10 Deed, which was dated January 20, 1989. The evidence shows that, for some time during the time between the 1985 and the 1989 conveyances of Lot 10, record title to it was held by the defendant (and another). This means that the period of any adverse use which may have commenced in 1985 was interrupted, and could not have restarted until the recording of the 1989 deed. Because there are fewer than twenty years from that time to the initiation of this litigation, the evidence shows that adverse possession by defendant (and indeed any claim to prescriptive right) cannot succeed.

On all the evidence, I find and rule that defendant holds fee title to the western, twenty-foot wide, half of the disputed forty-foot strip, that plaintiffs hold fee title to the eastern, twenty-foot wide, half of the disputed forty-foot strip, and that neither party has any rights to use the twenty-foot wide strip owned by the other.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 17, 2008