THE HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, INC. v. LAURA POSTEN, WILLIAM J. BRIDGEN, LEONARD S. SNYDERMAN, and JOHN MARTTILA

The Holy Spirit Association for the Unification of World Christianity, Inc. (Holy Spirit Association / plaintiff) takes issue with those of its neighbors who wish to park their motor vehicles on a portion of Spruce Court, a private way in the Beacon Hill neighborhood of Boston, Massachusetts. Spruce Court, a way that is twenty feet wide, extends easterly from Spruce Street before terminating in a dead end. The Holy Spirit Association property is located to the south of Spruce Court. To the north of Spruce Court are parcels belonging to the defendants, Laura Posten, William J. Bridgen, Leonard S. Snyderman, and John Marttila (defendants). Ten feet of the southern half of Spruce Court running lengthwise, the portion directly abutting the plaintiff's property, has been designated as a fire lane. Parking is therefore prohibited in that portion so designated.

The defendants park their vehicles along the other side of Spruce Court running lengthwise, i.e. the northerly portion which abuts their properties.

In its Complaint for trespass and nuisance, the plaintiff claims that it possesses a fee interest in the entirety of the disputed portion of Spruce Court, referred to as the Extension of Right of Way (Extension). Plaintiff contends that the defendants possess, at most, an easement over the Extension and that by parking on the way, they regularly interfere with plaintiff's fee interest therein.

For their part, the defendants claim a fee interest in the northerly half of the Extension together with the concomitant right to park thereon. In their Answer and Counterclaim, the defendants also claim to have extinguished any easement rights that the plaintiff may have had over the northerly portion of the Extension where the defendants park their vehicles. However, this claim has not been advanced or addressed by either party in their Motion for Summary Judgment, and shall, as a consequence, be treated as waived for purposes of this Motion.

The parties agree that the question of title in the Extension may be resolved by examining the effect of a deed from the White Realty Trust to Peter N. Petritis, the defendants' predecessor in title, dated September 27, 1962 (Petritis Deed). [Note 1] Before the Petritis Deed was executed, the White Realty Trust held title to an expanse of land encompassing what is now both the plaintiff's as well as the defendants' parcels.

The Petritis Deed describes the parcel it conveys as bounded southerly "by the Northerly line of that portion of said passageway 20 feet wide which is marked on the plan hereinafter referred to, "extension of Right of Way" fifty and 17/100 feet"" That Deed also contains language expressly setting forth the right of the grantee, grantor, and others to "use in common" the Extension of Right of Way.

For the reasons that follow, this court concludes that the defendants possess a fee interest in the northern half of the Extension. This court further concludes that the defendants may park upon the northern half and that in doing so they commit neither a trespass nor a nuisance.

Background

The plaintiff obtained title to the premises known and numbered as 46-47 Beacon Street, Boston, [Note 2] by virtue of a deed recorded with the Suffolk Registry of Deeds (Registry) on December 30, 1976 at Book 8924, Page 470.

The defendants hold title to the property on the side of Spruce Court opposite that of the plaintiff. The defendants Laura Posten and William J. Bridgen took title to the premises at 7 Spruce Court by virtue of a deed recorded with the Registry on January 19, 2000 at Book 24608, Page 112. The defendant John Marttila took title to the premises at 5 Spruce Court by virtue of a deed recorded with the Registry on October 14, 1997 at Book 21807, Page 316. The defendant Leonard S. Snyderman took title to the premises at 3 Spruce Court by virtue of a deed recorded with the Registry on September 29, 2004 at Book 35567, Page 88.

Prior to the foregoing conveyances, The White Realty Trust (Trust) held title to a large parcel (White Parcel) which encompassed all of these properties. The Trust took title to the White Parcel by virtue of a deed from Public Garden Realty Corp. dated August 30, 1962 and recorded with the Registry at Book 7676, Page 70.

The Trust subdivided the White Parcel by plan dated July 2, 1962 (1962 Plan) recorded contemporaneously with the Petritis Deed. The 1962 Plan split the White Parcel into Lot A, what is now plaintiff's property at 46-47 Beacon Street, and Lot B, situated to the north of Lot A. Lot B includes that portion currently known and numbered as 3 Spruce Court, 5 Spruce Court and 7 Spruce Court, respectively, the defendants' properties. Depicted on the 1962 Plan, between Lot A and Lot B, is a twenty (20) foot wide "passageway", now known as "Spruce Court." A portion of Spruce Court, labeled "Extension of Right of Way," is that portion of the way that is currently at issue. White conveyed Lot B to Peter N. Petritis (Petritis) by deed dated September 27, 1962. The Petritis Deed describes Lot B as being bounded on the south by "the Northerly line of that portion of said passageway 20 feet wide which is marked on the [1962] plan, "Extension of Right of Way", fifty and 17/100 feet; . . .." Further, it grants the following:

The right to use in common with the grantor and all other persons entitled thereto the passageway 20 feet wide, the "Extension of Right of Way" and the "Passageway" as shown on said plan, for all purposes for which passageways are now or may hereafter be commonly used in said Boston, including the right to install, lay, maintain and use therein and thereover pipes, wires and conduits for sewer, water, gas, steam, electricity, telephone and similar services.

Petritis is the common grantor of the defendants' predecessors in title. [Note 3]

White conveyed a one half undivided interest in Lot A to Louis Siagel by deed dated August 31, 1964 and recorded with the Registry on September 22, 1964 at Book 7885, Page 346 'siagel Deed). The Siagel Deed described the premises as the property conveyed to Public Garden Realty Corp., White's predecessor in title, while excluding the premises conveyed by White to Petritis. White conveyed his remaining one-half undivided interest in Lot A to Louis Siagel by a deed dated June 10, 1965 and recorded with the Registry on June 11, 1965 at Book 7958, Page 297.

The southern ten (10) feet [Note 4] running the length of Spruce Court has been designated by the City as a fire lane along which parking is prohibited.

Mark N. Sherman and Chris Ann Sherman 'shermans) have title to Lot B3, part of Lot B as depicted on the 1962 Plan and conveyed from Trustee White to Petritis under the Petritis Deed. [Note 5] Pursuant to a document styled "Grant of Easement" dated April 30, 2008 and recorded with the Registry on June 12, 2008 at Book 43668, Page 176, the Shermans, for consideration paid:

HEREBY GRANT and RELEASE, on behalf of ourselves and any person claiming thereunder, to [the Defendants], any CLAIM of right by the Grantors to park motor vehicles on land of the Grantees . . . or on the 47.17 foot portion of the twenty (20) foot passageway shown on [a plan dated January 14, 1967 and recorded at the Registry at Book 8094, Page 80] that borders said land of the Grantees on Spruce Court, including any CLAIM of right by the Grantors to object to, or interfere with, parking by the Grantees on said land or on said portion of said passageway, consistent with the rights of persons entitled to pass and repass on Spruce Court.

Procedural History

Plaintiff filed its Complaint on December 19, 2008. In that Complaint, the plaintiff sets out two counts, one is a claim of trespass and the other a claim of nuisance. See Complaint, pp. 4-6. Both counts seek an order "enjoining and prohibiting the Defendants . . . from parking on the "Extension of Right of Way" and from otherwise obstructing and interfering with the "Plaintiff's use of the Plaintiff's Property," as well as monetary damages. Id.

The defendants answered and filed a counterclaim on January 12, 2009, seeking a declaration of their ownership in the northerly half of the Extension, a declaration that they have extinguished plaintiff's easement to use the way in the area where defendants have customarily parked their motor vehicles, and a declaration that they may continue to park their vehicles on the northerly half of the way without interfering with the plaintiff's right of passage in the remainder of the way. See Answer and Counterclaim, pp. 6-7. The plaintiffs answered the counterclaim on January 29, 2009.

On June 6, 2009, defendants filed their Motion for Summary Judgment and Memorandum of Law, seeking dismissal of the plaintiff's claims and declarations that they own the northerly half of the disputed right of way and that they may continue to park their cars there without interfering with the plaintiff's right of passage in the remainder of the disputed right of way

On August 4, 2009, plaintiff filed its Motion for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment, as well as its Memorandum of Law.

On September 2, 2009, defendants filed their Memorandum of Law in Opposition to plaintiff's Cross-Motion for Summary Judgment. On October 9, 2009, plaintiff filed its Reply Brief to Defendants' Opposition to plaintiff's Motion for Summary Judgment.

Thereafter, on October 22, 2009 the motions were heard and taken under advisement.

Discussion

A. Summary Judgment Standard

Summary judgment is to be granted when "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." See Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.) (citing Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993)).

To meet its burden, the moving party need not proffer affidavits or other similar materials negating the opponent's claim. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 713 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis, 410 Mass. at 711 (citing Celotex Corp., 477 U.S. at 322); See also Lane v. Zoning Bd. of App. of Falmouth, 65 Mass. App. Ct. 434 , 440 (2006) (reasoning "[b]ecause the defendants met their burden to show an absence of evidence in support of plaintiff's case, the burden shifted to the plaintiffs to proffer evidence supporting their position") (citing Kourouvacilis, 410 Mass. at 411). Thus, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment is satisfied." Kourouvacilis, 410 Mass. at 713 (quoting Celotex Corp., 477 U.S. at 323-324). [Note 6]

A corollary to the moving party's burden is that the court is to "make all logically permissible inferences" from the facts in the non-moving party's favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, "the right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision." Caitlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Once the moving party has met its burden, in order to withstand summary judgment, the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988) (citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985)). "In determining whether a factual dispute is "genuine," the Court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party." Steffen v. Viking, 441 F. Supp. 2d 245, 250 (2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Although the court may not pass on the credibility of witnesses or weigh the evidence, Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987), Mass. R. Civ. P. 56 (c) does permit it to dispose of controversies, if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law. On the present record, this court concludes that there is no genuine dispute of material fact as to the issues addressed and resolved herein. Consequently, this matter is ripe for summary judgment.

B. Application of the Derelict Fee Statute (M.G.L. c.183, § 58)

The defendants assert a fee interest in a portion of the Extension citing the Derelict Fee Statute, G.L. c.183, § 58. See Defendants' Memorandum, pp. 9-11. Section 58 provides in relevant part as follows:

Every instrument passing title to real estate abutting a way . . . 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 real estate is on the same side, . . . or (ii) if the retained real estate is on the other side of such way . . ., 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 sideline.

Section 58 "sets out an authoritative rule of construction for instruments passing title to real estate abutting a way." Emery v. Crowley, 371 Mass. 489 , 492 (1976). Rules of construction are "designed to elucidate the intent of parties to written instruments." Id. Although amended as recently as 1973, the statute has been found to have retroactive effect. Rowley v. Mass. Electric Co., 438 Mass. 798 , 803 (2003).

Under common law, a "deed bounding on a way convey[ed] the title to the centre of the way if the grantor own[ed] so far." Gould v. Wagner, 196 Mass. 270 , 275 (1907). This rule of construction was presumed triggered by "the mention of a way as a boundary in a conveyance of land . . ., [but] could be overcome by clear proof of a contrary intent of the parties from the language of the deed and the attendant circumstances surrounding the conveyance." Silva v. Planning Bd. of Somerset, 34 Mass. App. Ct. 339 , 343 (1993) (citing Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679-681 (1965)) (citations omitted).

The Derelict Fee Statute goes further, "embod[ying] an even stronger presumption in favor of vesting title in abutters than the common law rule that it superseded." Rowley, 438 Mass. at 804 (citing Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992)). The only exception provided by the statute is if the "instrument evidences a different intent by an express exception or reservation . . . ." The grantor's intent may not be proven through the use of extrinsic evidence. Tattan, 32 Mass. App. Ct. at 243-244.

In conveying land to the defendants' predecessor in title, the Petritis Deed describes the conveyance as bounded by the Extension. It is undisputed that the grantor retained the fee interest in "Lot A", on the opposite side of the Extension. Therefore, the conveyance under the Petritis Deed included any interest the grantor possessed in the Extension to the center line, absent an "express exception or reservation" in the instrument "evidenc[ing] a different intent." See .G.L. c.183, § 58.

The plaintiff asserts that the "clear intent on the part of the grantor" in the Petritis Deed "was to reserve the fee ownership in the Extension of Right of Way." See plaintiff's Memorandum, p.16. The basis for the plaintiff's argument is the language in that deed explicitly conveying "the right to use in common with the grantor and all other persons entitled thereto the [Extension] for all purposes . . . by which passages are commonly used . . . including [utilities]." The plaintiff argues this language "can only mean an intent to preserve the fee . . . for the Plaintiff and none other[,]" as any other interpretation would render the language unnecessary. See plaintiff's Memorandum, p.14.

Despite the plaintiff's efforts to infer intent from the language of the Petritis Deed itself, the Derelict Fee Statute allows avoidance of the transfer of the fee interest to the mid-point of the way, solely through an "express exception or reservation." An explicit description in the deed of the right of the grantee to use land in common with the grantor and others, is not an express exception or reservation evidencing intent to retain a fee interest. In Tattan v. Kurlan, 32 Mass. App. Ct. 239 (1992), the court examined several deeds which conveyed, along with land abutting a proposed way, "the right, in common with others, to pass and repass over all streets as shown on [the] plan." Id. at 241. In its decision holding that the grantees' successors in interest were the owners in fee simple to the middle of the roadways, the court stated that the deeds "did not contain the requisite express exceptions or reservations evidencing an intent on the part of the grantors to retain the fee in the . . . roadways." Id. at 247. [Note 7] The Tattan case resembles that at bar, insofar as the parties in both argued the inapplicability of the Derelict Fee Statute, pointed to language in the relevant deed and asserted that the grantees possessed no more than an easement in the way. Notwithstanding, the Tattan Court held that the deed conveyed a fee simple interest to the mid-point of the way.

To support its case that the deed falls within the § 58 (b) [Note 8] exception to the Derelict Fee Statute, the plaintiff relies upon this court's ruling in Del Torchio v. Movali, 2009 WL 391623 (Mass. Land. Ct.). In Del Torchio, the deed at issue contained similar language concerning an abutting right of way, i.e. it recited that the grantee acquired "[t]ogether with the right to use, in common with others entitled thereto, the [Right of Way] for all purposes for which public ways are commonly used . . .." Id. at 3.

However, plaintiff's reliance upon DelTorchio is misplaced. There, the court found "clear evidence of contrary intent in the . . . [Del Torchio] source deed." It based this conclusion, in large measure, upon language describing the disputed way as existing "over remaining land of grantor." The court concluded that this phraseology was indicative of the grantor's intent to retain the fee in the way. Id. at 15. This court analogized such language to that found in Emery. There, the disputed parcel was described as "other land of the grantor" and "land of Elsie C. Emery," demonstrating that the conveyance at issue, fell squarely within the §58 (b) exception. See also Emery, 371 Mass. at 491. Critically, the language relied upon by the court in Del Torchio to distinguish it from Tattan, is wholly lacking in the case at bar.

The Petritis Deed, in conveying land abutting the Extension and evidencing no intent to retain the fee interest in the way by express exception or reservation, served to convey title to the Extension to the mid point thereof.

C. Parking Rights

The owner of a fee to the mid-point of the way is "entitled to make any use of their property which does not interfere with any rights . . . others may have in the road." Brassard v. Flynn, 352 Mass. 185 , 189 (1967). Any such use would include the parking of motor vehicles on that portion of the way, so long as such parking does not create a "substantial obstruction," impairing the rights of ingress and egress which others may have in the road. Id.

The defendants argue that vehicles parked on the northerly half of the Extension will not obstruct passage over the way, as the southerly half is required to remain open to traffic. Defendants' Memorandum, pp. 12-13. The southerly half has been designated as a fire lane by the City of Boston Fire Department, requiring an open width of at least ten feet, violations of which are subject to a $100 fine. Boston City Ord. §6-6.3(h). Furthermore, drivers are not permitted to "stop, stand, or park any vehicle at any curb adjacent to . . . the entrances of a church . . . or any place of public assemblage." City of Boston Traffic Rules & Regulations, Article IV, §3.1. [Note 9]

The plaintiff "does not dispute the legal presumption that the owner of property has the right to park on its property." Plaintiff's Memorandum, p.16 (emphasis added). It concedes that "[t]he owner in fee of the 'Extension of Right of Way,' . . . has every right to park on the disputed area." Id.

Therefore, as the defendants own a fee interest to the center line of the Extension, and as parking on that portion of the way will not substantially obstruct the plaintiff's right of ingress and egress, the defendants may park on that portion of the Extension in which they own a fee interest.

D. Claims for Trespass and Nuisance

"A trespass occurs when a person invades another's interest in the exclusive possession of land while a nuisance is an interference with the use and enjoyment of land." Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 90-91 (2005).

"A person in the actual occupation of land may maintain trespass against any person except the real owner, or the person having a right of possession." New England Box Co. v. C&R Constr. Co., 313 Mass. 696 , 707 (1943). Where it is clear that the defendants own a fee in the northerly half of the Extension, the plaintiff may not maintain an action in trespass against the defendants for parking thereon.

An action in nuisance, however, may be brought against a property owner for actions undertaken on his or her own property. "A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on his property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another." Doe v. New Bedford Housing Auth., 417 Mass. 273 , 288 (1994).

The plaintiff's nuisance argument focuses on the manner in which the defendants' parking is alleged to interfere with the "legitimate parking rights of the plaintiff, creating a nuisance by preventing [plaintiff] from parking its vehicles along the 'Extension of Right of Way'." plaintiff's Memorandum, pp.18-19. That the plaintiff has a fee interest in the southerly half of the Extension and a corresponding right to park along the southerly half of the way is uncontested. If there were no regulatory restrictions on the southerly portion of the way, there may be a factual issue as to whether the exercise of the right to park by either the defendants or the plaintiff on their respective sides would result in a substantial interference with the right of ingress and egress of the other. In this case, however, it has been made clear that parking on the southerly portion of the way is prohibited by the City of Boston under its Ordinances as a fire lane, and under its Traffic Rules, as being adjacent to the entrance of a church or place of assemblage. See Boston City Ord. §6-6.3(h); See also City of Boston Traffic Rules & Regulations, Article IV, §3.1.

In sum, the restrictions upon the plaintiff's ability to park on the southerly side of the Extension derive not from the actions of the defendants, but from the imposition of municipal ordinances. Consequently, this court is unable to conclude that the defendants' exercise of their right to park along the northerly half of the way, constitutes a nuisance of the sort suggested by the plaintiff.

Accordingly, it is hereby

ORDERED that defendants' Motion for Summary Judgment be and hereby is

ALLOWED to the extent that this court determines that defendants own a fee interest in the northerly half of Spruce Court to the extent it abuts their properties, and that defendants have a right to park their vehicles upon that portion of the way without interfering with the plaintiff's right of passage in the remainder of Spruce Court.

ORDERED that plaintiff's Cross Motion for Summary Judgment be and hereby is

DENIED insofar as this court determines that defendants' parking on the northerly half of Spruce Court which abuts their properties, does not constitute a trespass nor does it, under the current regulatory restrictions in the way, constitute a nuisance.

SO ORDERED.

By the Court. (Grossman, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: March 17, 2010.