SHAWKEMO DUCKLANDS LLC v. FRANCIS T. SPRIGGS, SYLVIA HOWARD, NATHANIEL LOWELL, BARRY RECTOR, and JOHN McLAUGHLIN, as they are members of the TOWN OF NANTUCKET PLANNING BOARD, and DIANE HALM, TRUSTEE OF SEE TERRIER FARMS TRUST

Plaintiff Shawkemo Ducklands, LLC (“Shawkemo”) filed its unverified Complaint in 07 MISC 355356 on September 21, 2007, appealing pursuant to G. L. c. 41, § 81BB a decision of Defendant Nantucket Planning Board (the “Planning Board”) approving a nine-lot subdivision (the “Subdivision”) off a right of way (“Gardner Road”) in Nantucket, MA, filed by Defendant Diane Halm, Trustee of the See Terrier Farms Trust (the “Trust”). Shawkemo’s Complaint also seeks a declaratory judgment, pursuant to G. L. c. 231A, as to the Trust’s rights in Gardner Road which is located in part on property owned by Shawkemo, and that the Subdivision overburdens Gardner Road. Finally, Shawkemo seeks injunctive relief as to any work proposed to be done by the Trust on property of Shawkemo. The Planning Board filed its Answer on October 16, 2007, and the Trust filed its Answer on October 17, 2007.

Plaintiffs Nantucket Land Council, Inc., Paul Bennett, Richard Glidden, Trustee, Kathleen McGrady, Moors End Farm, LLC, and the Shimmo Association, Inc. (the “Abutters”) (together with Shawkemo, “Plaintiffs”) filed their unverified Complaint in 07 MISC 355513 on September 26, 2007, appealing pursuant to G. L. c. 41, § 81BB the approval of the Subdivision. The Planning Board filed its Answer on October 17, 2007, and the Trust filed its Answer on October 29, 2007.

A case management conference in both cases was held on November 9, 2007, at which time the two cases were consolidated. On March 21, 2008, Shawkemo filed its Motion for Partial Summary Judgment seeking a ruling on the Trust’s rights in Gardner Road with respect to the Subdivision, together with supporting memorandum, Statement of Facts, Appendix, Affidavits of Alison Zieff (two), Diane Holdgate, Stephen M. Slosek, Bracebridge Young, Sarah F. Alger, Paul Bennett, and Edward Woll, Jr., and deposition transcript of Daniel Mulloy (“Mulloy”). On the same day, the Trust filed its Motion for Partial Summary Judgment seeking a ruling that the Trust has a registered access right of way over Gardner Road, and the right to improve Gardner Road and install utilities, together with supporting memorandum, Appendix, and Affidavit of Catherine Flanagan Stover (“Stover”). Shawkemo filed its Opposition on April 17, 2008, together with Motion to Strike Affidavit of Stover and certain exhibits, and Affidavits of Stephen D. Matson, P. E., Bracebridge Young (second), and Edward Woll, Jr. (second). On the same day, the Trust filed its Opposition, together with supporting memorandum and a second copy of Stover’s Affidavit. On May 2, 2008, the Trust filed its Reply Brief, Opposition to Motion to Strike Affidavit of Stover and certain exhibits, and Shawkemo filed its Reply Brief. On May 12, 2008, all motions were heard and taken under advisement. [Note 1]

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Shawkemo owns property located at 7 Shawkemo Road, Nantucket, Massachusetts (“Shawkemo Property”). Shawkemo Property consists of three parcels of registered land (“Parcel One,” “Parcel Two,” and “Parcel Three”) as shown on the following three plans: (1) a plan titled “Plan of Land in Nantucket” dated June 1, 1973, and prepared by Josiah S. Barrett, Surveyor (Registration Plan 38042A) (the “1973 Plan”); (2) a plan titled “Plan of Land in Nantucket” dated May 1931, and prepared by William F. Swift, Surveyor (Registration Plan 14889A) (the “1931 Plan”); and (3) a plan titled “Subdivision Plan of Land in Nantucket” dated June 20, 1977, and prepared by Schofield Brothers, Inc., Surveyors (Registration Plan 13364I). Parcel One is shown on the 1973 Plan, Parcel Two is shown as Lot B on the 1931 Plan, and Parcel Three is shown as Lot 10 on the Plan dated June 20, 1977. [Note 2] Parcel One abuts Gardner Road and Parcel Two contains a portion of Gardner Road, as shown on the 1931 Plan and the 1973 Plan. [Note 3] The 1973 Plan shows the portion of Gardner Road abutting Parcel One as a public road (approximately thirty-three feet wide).

2. Pursuant to Transfer Certificate of Title Number 20598 (the “Shawkemo Certificate”), Registration Case Number 38042, Shawkemo obtained a fee simple interest in Shawkemo Property on January 14, 2003. The Shawkemo Certificate states, in part: “[s]o much of said Lot B as is included within the limits of Gardner Road as shown on [the 1931 Plan] and in other roads and ways approximately shown thereon is subject to the rights of all persons lawfully entitled therein.” The Shawkemo Certificate also states that: “[t]here is appurtenant to said Lot B a right of way over the travelled way shown on [the 1931 Plan] from the southerly corner of said Lot B [Parcel Two] to the Polpis Road.”

3. Diane Halm, as successor trustee of the Trust, owns the property located at 12 Gardner Road (“Trust Property”) which is comprised of approximately twenty-one acres and shown as Lot 2 on a plan titled “Subdivision Plan of Land in Nantucket” dated January 7, 1977, and prepared by Shugrue & Hart Inc., Surveyors (Registration Plan Number 12268B) (the “1977 Plan”). The 1977 Plan shows Gardner Road as thirty-three feet wide. The Trust holds title to Trust Property by virtue of Certificate of Title Number 21215 (the “Trust Certificate”), Registration Case Number 12268, dated April 15, 2004. [Note 4]

4. Trust Property and an adjacent parcel was registered as one lot by Everett U. Crosby (“Crosby”) by Petition for Registration (the “Crosby Petition”) [Note 5] dated June 21, 1927, and Decree of Registration (the “1927 Certificate”) as part of Registration Case Number 12268 dated November 11, 1927, and as shown on “Plan of Land in Nantucket” dated January 18, 1927, and prepared by William F. Swift, Civil Engineer (Registration Plan 12268A) (the “1927 Plan”). The 1927 Certificate states that: “[t]here is appurtenant to the land hereby registered a right of way over said Gardner Road to the Polpis Road . . . all as shown on [the 1927 Plan], in common with others entitled thereto.” Trust Property is shown on the 1927 Plan as being bounded on the north by Gardner Road. The 1927 Plan shows a way titled “Road by the Cabot Farm,” which travels in a generally southerly direction connecting Gardner Road to a way titled “Travelled Road From Town.”

5. The Crosby Petition included notice to those abutters listed in the most recent assessment for taxation prior to such registration, which included Adelaide Hubbard (“Hubbard”), who was listed as owner of Parcel Two. [Note 6] The form that Crosby used for the Crosby Petition contains the following language: “Petitioner claims as appurtenant to the above described land rights or easements as follows,” to which Crosby responded: “Rights of way to the Polpis Road over said way (called Gardner Road), also right of way over the Travelled Road as shown on said plan to Shimmo Pond Road leading to Polpis Road and over said Travelled Road to the Monomoy Road.” Registration Case Number 12268 included correspondence from the Land Court to Mr. Orison V. Hull (a member of the Town of Nantucket Board of Selectmen and the County Commissioner) providing notice that Crosby “requested that the line of the way mentioned therein as a boundary of the land therein described, namely, a way known as as per citation . . . .”

6. Parcel Two was registered by Henry C. Everett (“Everett”), Shawkemo’s predecessor in title, by Decree of Registration dated February 17, 1932 (the “1932 Certificate”), as shown on the 1931 Plan. The 1932 Certificate stated: “So much of the land hereby registered [Parcel Two] as is included within the limits of Gardner Road as shown on [the 1931 Plan] and in other roads and ways as approximately shown thereon is subject to the rights of all persons lawfully entitled therein.”

7. As shown on both the 1927 Plan and the 1931 Plan, Gardner Road runs in a generally east-west direction and bisects Shawkemo Property and Trust Property; the southerly edge of Gardner Road abuts the northerly boundary of Trust Property. While Gardner Road’s position with respect to Shawkemo Property and Trust Property is shown the same on both the 1927 Plan and the 1931 Plan, neither plan specifically identifies Gardner Road’s width. [Note 7] As shown on the 1973 Plan, Gardner Road intersects with Polpis Road (a public way) approximately 686 feet southeast from where Gardner Road bisects Shawkemo Property and Trust Property.

8. On the ground, Gardner Road is an unpaved road of variable width (approximately ten to twenty feet wide) consisting of loose gravel, sand, and dirt. On the ground, Gardner Road’s southern boundary does not run parallel with the southern boundary of Parcel Two (it mildly meanders away from Trust Property’s northern boundary).

9. The Subdivision, as approved by the Planning Board on September 7, 2007, consists of nine total lots (eight buildable and one roadway). Six of the lots in the Subdivision average 43,000 square feet in size, while the other two are approximately 4.05 acres and 9.93 acres, respectively.

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This court must first address certain evidentiary issues raised by Shawkemo that might impact the scope of the summary judgment record. As an introduction to the issues, it is worth reiterating that the status of Gardner Road is the ultimate issue for this court in the case at bar, and this court does not view either Stover’s Affidavit or exhibits J or K to the Trust’s Appendix of Cited Documents as determinative of such issue. That said, in its Motion to Strike or Limit Affidavit of Catherine Flanagan Stover (Nantucket Town Clerk), Shawkemo argues that Stover’s references to “Gardner Road” in paragraphs 3-8 of her Affidavit, without defining such term, are too broad to serve any probative purpose and should, thus, be stricken. In short, this court disagrees with Shawkemo that Stover’s references to Gardner Road are too broad to be relevant, as Gardner Road consistently appears in the same location on numerous plans within the Land Court registration system.

Shawkemo also claims that paragraph 6 of Stover’s Affidavit should be stricken. In paragraph 6, Stover provides her opinion, as Town Clerk, that the status of Gardner Road, as either public or private, is unclear. Shawkemo asserts that such statement has no probative value as to Gardner Road’s public or private status. While refraining from striking such opinion, this court agrees with Shawkemo that paragraph 6 of Stover’s Affidavit does not allow for a conclusion as to whether Gardner Road is a private or public way.

Shawkemo further asserts that paragraphs 8 (referencing County Commissioners’ meeting minutes) and 9 (stating that no other record in the Town Clerk’s office was found) of Stover’s Affidavit are not a “record or return” within the meaning of G. L. c. 82, § 32 and should be stricken. G. L. c. 82, § 32 states that

[w]hen a town way or private way is laid out, relocated or altered by the selectmen or road commissioners or by the county commissioners, they shall in their report or return thereof specify the manner in which such way is laid out, relocated or altered and shall transmit to the town clerk a description of the location and bounds thereof, which shall within ten days be recorded by him in a book kept for that purpose . . . .

However, this court need not investigate the meaning of a “report or return” in context of G. L. c. 82, § 32, for Stover does not assert that the attached minutes of the County Commissioners are a “record or return.” Rather, Stover’s Affidavit says that the meeting minutes are the only documents that she found during her search of the Town Clerk records and that she was unable “to locate any other record in the Town Clerk’s office of which [she is] aware regarding the statute cited.” That said, paragraphs 8 and 9 of Stover’s Affidavit fail to provide significant weight as to whether Gardner Road is a public or private way.

Finally Shawkemo asserts that paragraph 2 of Stover’s Affidavit (stating that the Affidavit was certified per G. L. c. 233, § 79E) should be stricken because it is not a public record within the meaning of G. L. c. 233, § 79E, which states:

If any . . . department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum, writing entry, print, representation or combination thereof of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced . . . , the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, shall be as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not . . . .

This court does not view Stover’s Affidavit itself as a public record; rather the reproductions of official documents that were attached to Stover’s Affidavit are the public records as described in G. L. c. 233, § 79E. This determination furthers neither Shawkemo’s nor the Trust’s position. In light of the foregoing, Shawkemo ’s Motion to Strike or Limit Affidavit of Catherine Flanagan Stover is DENIED.

Shawkemo’s Motion to Strike or Limit Exhibits J and K in the Trust’s Appendix claims that such exhibits are not within the Land Court registration system and irrelevant in determining the bounds of Gardner Road. [Note 8] Shawkemo further argues that such exhibits should be used to support the limited proposition that Gardner Road is not a public way. The Trust contends that these documents are public records and relevant to the question before this court. This court is not persuaded that Exhibits J and K are irrelevant as “[r]elevanc[y] is a broad concept . . . and any information which tends to establish or at least shed light on an issue is relevant.” Adoption of Carla, 416 Mass. 510 , 513 (1993). As such, Shawkemo’s Motion to Strike or Limit Exhibits J and K in the Trust’s Appendix of Cited Documents is DENIED. [Note 9]

Having dealt with Shawkemo’s outstanding evidentiary motions, there remains one final preliminary issue that this court must address prior to turning to the merits of the parties’ partial motions for summary judgment. Consistent with their respective positions on all of the issues in the case at bar, Shawkemo and the Trust assert diametrically opposed perspectives on which of them carries the burden of proof. Shawkemo argues that the burden of proof of establishing an easement over Gardner Road is on the Trust, and cites Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990), for the proposition that “[i]t is axiomatic that the burden of establishing the existence of an easement is on the one claiming the benefit of the easement.” Shawkemo claims that this burden extends also to “proving the nature and extent of any such easement.” Foley v. McGonigle, 3 Mass. App. Ct. 746 , 746 (1975). Contrastingly, the Trust argues that their easement was registered over eighty years ago in the 1927 Certificate and that, pursuant to G. L. c. 185, §45, such registration procedures are binding and closed. As such, the Trust reasons, it is Shawkemo who holds the burden of proof as Shawkemo is appealing the 1927 Certificate as well as the approval of the Subdivision. This court agrees with Shawkemo’s reasoning that “[a]s the party claiming an easement or right of way, it is well settled that [the Trust] bears the burden of proving its existence.” Boudreau, 29 Mass. App. Ct. at 629. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66 (2009), further appellate review pending, FAR-18208. As such, the Trust is beholden to show this court that Trust Property benefits from an easement over Gardner Road.

The central issue in the parties’ cross-motions for partial summary judgment is whether the Trust has the right to access Trust Property over Gardner Road. The Trust claims a registered right of way over Gardner Road to access Polpis Road under the 1927 Certificate. If the Trust does have rights over Gardner Road, this court must then address whether the Trust may improve the road to provide access to the Subdivision and install utilities. [Note 10] I shall address each issue separately.

Existence of Registered Rights in Gardner Road.

As introduced previously, Shawkemo Property consists of three parcels: Parcel One, Parcel Two, and Parcel Three. The focus of the parties’ partial motions for summary judgment rests primarily on Parcel Two. The southwesterly boundary of Parcel Two abuts the northeasterly boundary of Trust Property. It is undisputed that the segment of Gardner Road that abuts Trust Property is located within Parcel Two and that Shawkemo holds the fee interest to this portion of the road.

The Trust relies primarily on the 1927 Certificate, which states that “there is appurtenant to the land hereby registered a right of way over said Gardner Road to the Polpis Road.” [Note 11] The Trust contends that the 1927 Certificate is final and binding on all parties pursuant to G. L. Chapter 185 § 45. Shawkemo challenges both the Land Court registration proceeding and the validity of the alleged easement over Gardner Road. Shawkemo first argues that the 1927 Certificate is not binding upon Shawkemo Property for three principal reasons: (1) Shawkemo Property was outside the Land Court’s jurisdiction when Crosby registered Trust Property; (2) Everett, Shawkemo’s predecessor in title, was not notified as an abutter in accordance with G.L. c. 185 § 39; and (3) Crosby’s 1927 registration proceedings did not comply with the 1913 Manual Instructions for the Survey of Lands and Preparing Plans for the Land Court. Shawkemo further argues that the Trust holds no rights in Gardner Road because no easement is listed on the Shawkemo Certificate.

G.L. c. 185 § 45 addresses the finality of Land Court registration proceedings. Pursuant to this section, “a judgment of confirmation and registration shall be entered, which shall bind the land and quiet the title thereto . . . . It shall be conclusive upon and against all persons . . . whether mentioned by name in the complaint . . . or included in the general description ‘to all whom it may concern.’” The purpose of G.L. c. 185 § 45 and the Land Court registration system is to quiet title and “lend finality to the registration of land.” Whittenberger v. Commercial Credit Corp., 37 Mass. App. Ct. 303 , 306 (1994). It is this policy that the Trust relies upon as a foundation for their argument that the 1927 Certificate is binding upon the parties.

Prior to addressing the Trust’s argument that the 1927 Certificate is binding, Shawkemo mounts a three-part attack on the validity of the 1927 Certificate itself, as applied to Gardner Road. Shawkemo first relies on Grant v. Pizzano, 264 Mass. 475 (1928), in support of its argument that the Land Court’s jurisdiction relative to the 1927 Certificate was limited by the language of the Crosby Petition. [Note 12] In addition to the fact that Grant exists outside of the Land Court registration system, the Crosby Petition included a specific reference to Gardner Road. The Crosby Petition claimed as appurtenant to Trust Property, the “[r]ight of way to the Polpis Road over said way (called Gardner Road) . . . .” In light of the above, Shawkemo’s argument fails on it face.

Shawkemo next challenges the validity of the 1927 Certificate by arguing that Everett (Shawkemo’s predecessor in title) was not served with proper notice of the Crosby Petition. Without expressly stating as such, Shawkemo implies that Everett was the actual owner of Shawkemo Property at that time and not Hubbard, the person who received notice. However, the record does not support such inference. In the Crosby Petition, Crosby identifies Hubbard as an owner of adjoining land. Moreover, the Crosby Petition notes that “[e]xcept where the facts are within the personal knowledge of the petitioner, the owners of adjoining lands are to be taken from the Assessors’ Books for the last assessment for taxes and brought down of record to the date of filing petition.” The record includes a signed certification of the Nantucket Assessor, dated June 14, 1927, that shows Hubbard as the adjoining owner of the parcel of land that is now Parcel Two. Finally, the Land Court registration system also requires both published and posted notice. See G. L. c. 185, §§ 38, 39. [Note 13] Such requirements are valid methods of providing notice. Young v. Tudor, 323 Mass. 508 , 514 (1948); Tyler v. Judge of the Court of Registration, 175 Mass. 71 , 78-79 (1900). Given that the summary judgment record indicates that notice of the Crosby Petition was mailed to Hubbard, and that Shawkemo asserts no deficiencies with respect to the Crosby Petition’s published or posted notice, this court concludes that Shawkemo’s concerns as to notice of the Crosby Petition fail to affect the validity of the 1927 Certificate. [Note 14]

Shawkemo’s final claim against the validity of the 1927 Certificate hinges upon the Crosby Petition Plan. Shawkemo argues that deficiencies in that plan (such as the failure to show ways on the ground and the failure to designate such ways as private or public) violate Land Court engineering guidelines and G. L. c. 185, § 29, and therefore invalidate the entire Crosby Petition with respect to Gardner Road. [Note 15] Shawkemo fails to provide this court with any case law supporting the proposition that a technical defect in engineering guidelines or G. L. c. 185, § 29 invalidates a Land Court Decree issued more than eighty years ago. Beyond that, this court agrees with the Trust that the Crosby Petition was clear in requesting rights over Gardner Road. This conclusion is corroborated by memorialized correspondence from the Land Court to Mr. Orison V. Hull (member of Nantucket Board of Selectmen and the County Commissioner) as part of Registraion Case Number 12268 that provides notice of Crosby’s request to determine the line of the way as mentioned in the Crosby Petition.

Shawkemo reasons that even if the 1927 Certificate is a valid decree, it is not binding on Shawkemo Property as the Shawkemo Certificate fails to list a particular easement benefitting Trust Property over Gardner Road. Shawkemo cites the long-held rule that “[i]n order to affect registered land as the servient estate, an easement must appear on the certificate of title.” Jackson v. Knott, 418 Mass. 704 , 710 (1994) (citations omitted). See also G. L. c. 185, § 46 (stating that holders of a certificate of title take “free from all encumbrances except those noted on the certificate”), G. L. c. 185, § 47 (requiring that all judgments of registration “set forth the estate of the owner and also, in such manner as to show their relative priority, all particular estates, mortgages, easements, liens, attachments and other encumbrances . . . .”). There are, however, two recognized exceptions to this general rule. An owner may take registered property subject to encumbrances at the time of purchase despite a clean certificate of title if: (1) “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; or (2) if the purchaser has actual knowledge of a prior unregistered interest.” Jackson, 418 Mass. at 711. In light of the above, this court must first investigate whether the Shawkemo Certificate (and the 1923 Certificate) set forth, with sufficient particularity, an easement on Gardner Road benefitting Trust Property. If not, this court must review Shawkemo Property’s chain of title to determine whether Shawkemo possessed actual or constructive notice of such an easement.

As previously stated, the Shawkemo Certificate indicates that “[s]o much of [Parcel Two] as is included within the limits of Gardner Road as shown on [the 1931 Plan] and in other roads and ways as approximately shown thereon is subject to the rights of all persons lawfully entitled therein.” While the Shawkemo Certificate includes a general reference that others may have rights in the property, it does not spell out specifically what those rights are as required by G.L. c. 185, §§ 46, 47 and interpreted through case law. See Jackson, 418 Mass. at 710. As such, I agree that an easement benefitting Trust Property over Gardner Road does not appear on the Shawkemo Certificate, as required by G. L. c. 185.

Having found the Shawkemo Certificate facially unencumbered by an easement benefitting Trust Property over Gardner Road, it is necessary to determine whether Shawkemo, nonetheless, took title to Shawkemo Property subject to such easement under a theory of actual or constructive notice. As there is no evidence in the record indicating that Shawkemo took title to Shawkemo Property with actual knowledge of the Trust’s easement in Gardner Road across Parcel Two, this court must investigate whether there were facts within the Land Court registration system available to Shawkemo, as a reasonable purchaser at the time of its purchase, that would lead it to discover that Shawkemo Property was subject to an encumbrance. [Note 16] The Shawkemo Certificate assists this court in this review as it states, in part, that “Gardner Road as shown on [the 1931 Plan] . . . is subject to the rights of all persons lawfully entitled therein.” As discussed, supra, this language is insufficient to serve as notice of a particular encumbrance pursuant to G. L. c. 185; however, such language implies the existence of outstanding rights within Gardner Road. Given the specific language of the Nasser Certificate (the relevant certificate of title at the time Shawkemo purchased Shawkemo Property); the fact that Gardner Road bifurcates Shawkemo Property and Trust Property as shown on the 1931 Plan; the existence of the Crosby Petition and the 1927 Certificate, which was issued less than five years prior to the 1932 Certificate and expressly states the existence of the easement over Gardner Road; and the relative location of Gardner Road and Polpis Road, this court concludes that a reasonable purchaser should investigate whether Shawkemo Property was encumbered by an easement benefitting Parcel Two over Gardner Road. In light of the foregoing, I find that the Trust has the benefit of a registered easement over Gardner Road as access to Polpis Road, as described in the 1927 Certificate.

Location of Access to Gardner Road.

Reasoning that because the Trust’s easement over Gardner Road is not defined by metes and bounds, Shawkemo claims that the Trust’s right, if any, to access Gardner Road is limited to the location on the 1927 Plan where the “Road by the Cabot Farm” crosses Gardner Road (near the northwest corner of Trust Property). Shawkemo concludes that the Trust is trying to move a pre-existing access location without the consent of the servient estate contrary to the rule found in Naumkeag Steam Cotton Co. v. American Glue Co., 244 Mass. 506 (1923). [Note 17] However, this argument by Shawkemo fails to account for the fact that Gardner Road, as shown on the 1927 Plan, is not limited to its confluence with the Road to Cabot Farm; rather, the 1927 Plan shows Gardner Road as abutting almost the entire length of the northern boundary of Trust Property. Also, both the 1927 Certificate and the 1932 Certificate reference the Trust’s rights in terms of the whole of Gardner Road (not limited to a portion of the way). The 1927 Plan effectively fixed the location of the Trust’s easement to the entire road. “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.” Goldstein v. Beal, 317 Mass. 750 , 755 (1945). “It has been said . . . that a right of way shown on a plan becomes ‘appurtenant to the premises conveyed as clearly as if mentioned in the deed.’” Duddy, 75 Mass. App. Ct. at 67 (quoting Lagorio v. Lewenberg, 226 Mass. 464 , 466 (1917)). In light of the above, I find that the Trust’s registered easement in Gardner Road applies to all of Gardner Road as Gardner Road is shown on the 1927 Plan and 1931 Plan.

Scope of the Easement Within Gardner Road.

As this court has determined that the Trust holds a registered easement to use Gardner Road for access to Polpis Road, it is necessary to address the Trust’s argument that such interest includes the right to improve Gardner Road. Shawkemo asserts that the Trust’s easement is limited to Gardner Road as it existed on the ground when the easement was created. The Trust states that its easement includes the right to pave and regrade Gardner Road, but it provides no details of the extent of such improvements. In their summary judgment briefs, both parties acknowledge that the application of common law principals allowing a dominant estate reasonable use of an easement over a servient estate is an issue of fact beyond the scope of this decision. [Note 18]

Installation of Utilities.

Having determined the existence and the general location of the Trust’s easement over Gardner Road, the final inquiry for this court is to determine whether the Trust may install utilities on Gardner Road pursuant to G.L. c. 187, § 5. [Note 19] G.L. c. 187, § 5, as effective April 15, 2009, states, in part:

The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways; . . .

Shawkemo contends that G.L. c. 187, § 5 should not apply to the present case, relying on their previously addressed argument that Gardner Road, as built, does not abut Trust Property’s northern boundary. Specifically, Shawkemo argues that the 1931 Plan shows the “Traveled Way” on Parcel Two as not touching Trust Property. However, only a portion of the “Traveled Way” does not abut Trust Property as shown on the 1931 Plan. Moreover, as discussed, supra, the 1927 Plan establishing the easement rights for Trust Property, shows all of Gardner Road as abutting Trust Property. The Trust’s rights are not limited by the mere fact that Gardner Road’s use, on the ground, may have been such that its southern boundary does not coincide with Parcel Two’s entire southern boundary. [Note 20] As such, Shawkemo’s argument that G. L. c. 187, § 5 does not apply fails.

That said, the applicability of G. L. c. 187, § 5 is contingent upon the fact that such utilities “do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways.” Whether the Trust’s proposed utilities will interfere with or are inconsistent with the existing use of Gardner Road is unclear. [Note 21] In light of the above, a determination that the Trust has the right to install utilities in, on, along, under and upon Gardner Road pursuant to G. L. c. 187, § 5 is beyond the scope of this decision.

As a result of the foregoing, I DENY Shawkemo’s Partial Motion for Summary Judgment and ALLOW the Trust’s Partial Motion for Summary Judgment, consistent with this decision.

The parties shall attend a status conference on Tuesday, November 3, 2009, at 11:00 A.M. to discuss the remaining issues in this case. Judgment to issue upon the resolution of these remaining issues.

Alexander H. Sands, III

Justice

Dated: October 13, 2009