In this case, the court must decide whether easement rights to use certain ways exist in favor of the registered land owned by the defendants, and burdening the registered land of the plaintiff, even though the claimed easements are not set forth on the relevant certificates of title. The parties asserting these easement rights in and to the contested ways, which plainly exist on the ground, say these rights arose based on the longstanding depiction of these ways on registered land plans, and the use of the contested ways as boundaries of the registered land parcels when they have been described by the relevant deeds and certificates of title. To decide this threshold question, the court needs to consider the current state of the decisional law regarding the opportunity, as matter of law, for easements over registered land to arise in this manner. Said another way, this case calls on the court to determine if the settled law applicable to land whose title has not been registered, which even in the absence of any express written easement, establishes easement rights for the benefit of lots within a subdivision, where a plan used in the creation of those lots shows them fronting on a way, does or does not apply (and result in an easement right) where the title to the lots involved has been registered and confirmed by this court.
The case is before the court on the motion by plaintiff Anarpet Realty Corp., (Anarpet) for partial summary judgment as to Count II of Anarpets complaint, and summary judgment as to Counts I and II of the amended counterclaim of defendants Stutz Motor Car Company, Inc., Stutz Plaisted, individually, and Stutz Plaisted as Trustee of Stutz Realty Trust (collectively Stutz defendants). Count II of Anarpets complaint seeks judgment declaring that certain lots held by the Stutz defendants do not enjoy a right of way easement across Green Ledge Street and a certain twelve foot wide private way, both located in Salem, Massachusetts, all as more fully described below, except for those particular easement rights expressly listed on the relevant certificates of title. Counts I and II of the Stutz defendants counterclaim seek a converse declaratory judgment: that certain lots owned by the Stutz defendants enjoy right of way easements over Green Ledge Street and the twelve foot private way, notwithstanding that the relevant certificates of title issued to Anarpet and the Stutz defendants do not explicitly make any mention of the easements claimed by the Stutz defendants.
The court held a hearing on the motions for summary judgment. Following the hearing, the court invited Anarpet and the Stutz defendants to review this courts decision in Duddy v. Mankewich, Misc. No. 281211, (May 29, 2008) (Lombardi, J.), and the decision of the Appeals Court reviewing the judgment in that case, reported at 75 Mass. App. Ct. 62 (2009), and to file supplemental briefs. Counsel have done so, and the court now decides the pending motions.
Based on the summary judgment record submitted, the following facts appear to be undisputed:
1. Anarpet, under certificate of title number 41821, dated February 11, 1972, is the owner of Lot 661 (Lot 661") located on the northerly side of Green Ledge Street, as shown on Land Court Plan 11802-26 (dated February 17, 1966) which lot is subject to and has the benefit of an express right, in common with others, to use Green Ledge Street. Anarpets certificate of title for Lot 661 contains the following notation: The above described land is subject to and has the benefit of a right of way in or over Green Ledge Street, a private way, as shown on said plan, in common with others entitled thereto for all purposes for which public ways are or may be ordinarily used. (All of the land involved in this action has had its title registered and confirmed by this court, and the relevant certificates of title and plans of registered land are on file at this courts Essex (South District) Land Registration District (District)).
2. Anarpet, under certificate of title number 47686, dated March 23, 1978, is the owner of Lot 567H (Lot 567H") located to the north of and partially abutting a twelve foot wide way as shown on Land Court Plan 11802-2 (dated July 23, 1951) which lot is subject to and has the benefit of an express right, in common with others, to use the twelve foot wide way. Anarpets certificate of title for Lot 567 H contains the following notation:
There is appurtenant to the above described land a right to use said way, leading to Highland Avenue, for all purposes for which a right of way may be used as described in a deed from Wilfred Pelletier et ux to James George, dated November 30, 1951 and filed as Document #64566 in said Registry. Document #64566 contains the following language, in pertinent part: With the right to use for all purposes for which a right of way may be used a way twelve (12) feet in width and shown in said plan...
3. Stutz Plaisted, one of the Stutz defendants, is the owner of Lots 564, 565 and 566 (Lots 564, 565 and 566") located on the southerly side of Green Ledge Street as shown on Land Court Plan 11802-D (dated May 5, 1928). Lot 564 is held under certificate of title number 32399, dated January 21, 1963. Lot 565 is held under certificate of title number 53990, dated October 9, 1984. Lot 566 is held under certificate of title number 70961, dated August 3, 1989. The certificates of title pertaining to these lots do not contain an express grant of an easement for the use of Green Ledge Street or the twelve foot wide way. [Note 1]
4. Stutz Plaisted, one of the Stutz defendants, under certificate of title number 32399, dated January 21, 1963, is the owner of Lots 561 and 562 (Lots 561 and 562") located on the northerly side of Delcampo Avenue and south of Green Ledge Street (separated from Green Ledge Street by Lot 564) as shown on Land Court Plan 11802-D, dated May 5, 1928. The certificates of title pertaining to these Lots do not contain an express grant of easement for the use of Green Ledge Street or the twelve foot wide way.
5. Stutz Plaisted, one of the Stutz defendants, under certificate of title 32399, dated January 21, 1963, is the owner of Lot 563A (Lot 563A) located on the northerly side of Delcampo Avenue, the southerly side of Green Ledge Street and to the west of Highland Avenue as shown on Land Court Plan 11802-L, dated February 19, 1947. The certificate of title pertaining to this Lot does not contain an express grant of easement for the use of Green Ledge Street or the twelve foot wide way.
6. Stutz Plaisted, one of the Stutz defendants, under certificate of title 64074, dated December 31, 1993, is the owner of Lot 575 (Lot 575) located on the northerly side of Green Ledge Street and the westerly side of Highland Avenue as shown on Land Court Plan 11802-9, dated October 5, 1957. The certificate of title pertaining to Lot 575 does not contain an express grant of easement for the use of Green Ledge Street or the twelve foot wide way.
7. Stutz Plaisted, one of the Stutz defendants, under certificate of title 68473, dated September 25, 1997, is the owner of Lot 660 (Lot 660) located on the northerly side of Green Ledge Street as shown on Land Court Plan 11802-26, dated February 17, 1966, which is subject to and has the benefit of an express right, in common with others, to use of Green Ledge Street. The certificate of title pertaining to Lot 660 does not contain an express grant of easement for the use of the twelve foot wide way.
8. Stutz Plaisted, one of the Stutz defendants, under certificate of title 60312, is the owner of Lot 589 (Lot 589") located on the southerly side of a twelve foot wide way as shown on Land Court Plan 11802-15, dated May 31, 1960, which is subject to and has the benefit of an express right, in common with others, to use of the twelve foot wide way. The certificate of title pertaining to Lot 589 does not contain an express grant of easement for the use of Green Ledge Street.
9. No owner of any Lot referenced above has an expressly stated right to use either the twelve foot wide way or Green Ledge Street on its respective certificate of title except as stated above.
10. The Lots involved in the pending motions, owned by Anarpet and the Stutz defendants, are all land the title to which was originally registered and confirmed by this court in Registration case 11802. The Lots show on various plans, issued over the years, showing the division of the land in the original plan authorized and approved by this court in that registration case, Plan 11802-A, dated October 11, 1926, and received and filed in the District March 6, 1928. The land at issue here is all derived from that land shown with the letter C on this initial plan. Neither Green Ledge Street nor the twelve-foot wide way show up on Plan 11802-A.
11. On Plan 11802-D, dated August 31, 1928, filed with the District on May 5 of that year, Green Ledge Street, in substantially its current configuration, appears. Green Ledge Street, forty feet in width, is shown running from Highland Avenue on the northwest to recorded land of the Almy Trust to the southwest. Sheet 1 of this D plan shows the division of the land labeled C on Plan 11802-A. On Plan 11802-D, the land to the north of Green Ledge Street is divided into various lots which extend from Green Ledge Street on the south to Swampscott Road on the north. Delcampo Street, which also connects Highland Avenue with the Almy holding, lies southerly of Green Ledge Street and northerly of Swampscott Road. The twelve-foot wide way does not appear on Plan 11802-D.
12. The twelve-foot wide way appears, in part, on Plan 11802-2, dated November 29, 1951, and received and filed in the District on December 11 of that year. This plan shows the way, twelve feet in width and 347.34 feet in length, extending from Highland Avenue on the northwest to the northeasterly corner of Lot 567H, where the way terminates on this plan.
13. The full length of the twelve-foot wide way, as it now is laid out, shows on Plan 11802-9, dated October 4, 1957, and filed in the District on October 8 of that year. Plan 11802-9 shows the first leg of the twelve-foot way as on Plan 11802-2 now extended by a second leg, 219.98 feet in length, taking off from the prior terminus of the 347.34 stretch at the corner of Lot 567H, and heading at a different angle, slightly more to the north, in the direction of, but not quite reaching, the Almy Trust land.
14. Both Green Ledge Street and the twelve-foot wide way appear to retain these locations, dimensions, and configurations, throughout the subsequent plans approved by the court in this registration case, although various of the lots in their vicinity are reconfigured and renumbered on the ensuing plans.
* * * * *
Summary judgment is appropriate where there are no genuine issues of material fact and the record before the court entitles the moving party to judgment as a matter of law. Wheatley v. American Tel. & Tel. Co., 418 Mass. 394 , 397 (1994); Mass. R. Civ. P. 56(c). The moving party bears the burden of showing, by credible evidence, that there are no triable issues of fact. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In deciding motions for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Id.
The issue for the court to decide is whether any of the Lots owned by the Stutz defendants has the benefit of an easement in Green Ledge Street or the twelve foot wide way, other than those easements expressly set out in the relevant certificates of title. This question implicates powerful competing concerns. On one hand there is the strong preference of the law for certainty in registered land titles, which would counsel that rights of passage not set out expressly in the relevant deeds and certificates ought not be recognized. On the other hand, there is the goal of vindicating the rights of owners of lots along ways shown on recorded plans to have use of the depicted ways to reach those lots, a principle which respects the intention of those who laid out the lots along the ways that they serve the lots, and which favors access to the lots, rather than leaving them landlocked.
There also is the reality that, when the land involved does not have a registered title, the law firmly recognizes access based on the presence of ways shown on recorded plans. When parties deal with registered land, subject to certain limited but important exceptions, they are to deal with it in the same manner, and according to the legal doctrines and methods, as apply to recorded land. The question for the court is whether or not one of those exceptions prohibits recognizing easements to use ways depicted on recorded plans where the land involved has a registered title, and the plans involved are plans in the registration system.
The parties asserting the easement . . . have the burden of proving its existence. Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Accord Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 (2006). The Stutz defendants bear the burden of proving that those of their lots which lack an express registered right of easement to use Green Ledge Street and the twelve-foot wide way nevertheless have the benefit of an easement of access across the portions of those ways shown on the relevant plans as adjoining those Lots.
The principal reason for establishing a land title registration system pursuant to G. L. c. 185 is to provide individuals with a means of ensuring that titles to land are indefeasible and certain. Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48 , 50 (2007). The general rule for registered land is that each landowner holds a certificate of title free from all encumbrances except those noted on the certificate . . . . G. L. c. 185, § 46. In addition to describing the registered land and the estate of the owner, a judgment of registration and subsequent certificates of title must include all . . . easements . . . and other encumbrances . . . to which the land or the owners estate is subject . . . . G. L. c. 185, § 47. See e. g. Tetrault v. Bruscoe, 398 Mass. 454 , 461 (1986); Popponesset Beach Assn, Inc. v. Marchillo, 39 Mass. App. Ct. 586 , 588 (1996).
However, the analysis in the governing cases is not that rigid. Our appellate courts have concluded that the statutory scheme set out in G. L. c. 185 does not protect all purchasers in every circumstance. Doyle v. Commonwealth, 444 Mass. 686 , 692-693 (2005). The Doyle court came to this conclusion after reviewing the two exceptions to G. L. c. 185, § 46, articulated in Jackson v. Knott, 418 Mass. 704 (1994). In Jackson the Supreme Judicial Court held that:
If an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if 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.
Id. at 711.
The first exception set out by the court in Jackson, which was well cognizant of the policy behind G. L. c. 185, §46 favoring certainty of registered titles, nevertheless recognizes that a purchaser of registered land has some obligation to investigate facts described in or disclosed by the relevant certificates of title, plans and related papers imbedded in the records of the registered land system. Id. A certificate of title may, and often does, reference a plan or some other document previously filed within the registration system. This court approves sequential plans showing division over time of the land originally registered, see G.L. c.185, §§ 51, 65, and each of the approved plans in the sequence of division are part of the registration system, and maintained not only by the courts central Surveying Division, but also by the registration districts of the court, where the plans are filed with the certificates of title and used to describe the land addressed by them. A purchaser of registered land is expected to review those plans and documents to the extent relevant. The contents of registered land plans approved by the court concerning the land being acquired effectively constitute a part of the certificate of title as if expressly stated on the certificate. If a plan is referred to in the certificate of title, the purchaser would be expected to review that plan. 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. Jackson v. Knott, 418 Mass. 704 , 711 (1994), quoting Labounty v. Vickers, 352 Mass. 337 , 344 (1967).
There is a second exception in Jackson, which requires that the purchaser of registered land acquire in good faith, absent knowledge of an unrecorded interest or right in the registered land, if the purchaser is to avail himself or herself of the benefit of a registered title free from all encumbrances except those noted on the certificate of title. Jackson v. Knott, 418 Mass. 704 , 713 (1994). A purchaser who takes title to registered land with actual knowledge of a prior interest not noted on the certificate of title cannot, in good faith, claim to hold that title free from all encumbrances except those noted on the certificate of title. Id, citing Killam v. March, 316 Mass. 646 , 651. This so-called second exception is not really implicated in the pending motions before the court. There is no contention by the Stutz defendants that they have (other than as already noted on the certificates of title and not in contest) rights of easement in either the twelve-foot wide way or Green Ledge Street based on some executed and delivered, but as yet unregistered, instrument.
The real question is whether the presence of these two ways on the various Land Court plans in case 11802, all firmly planted in the registration system, without any further written conveyance affirmatively setting up an easement right, can be used to establish the Stutz defendants rights to use those ways. The answer to this question turns on whether or not the first exception set out in Jackson encompasses the right of one registered land holder to use for passage a way shown on a registration plan, and belonging to another registered land holder, based solely on the depiction of the ways on those plans as providing access to the lots shown on the plans at or prior to the time of purchase of those lots. If all that this court had to guide it was the Supreme Judicial Courts decision in Jackson, it would hold that no easement over registered land could arise in this fashion. But subsequent decisions out of the Appeals Court, relying upon and expounding the meaning of Jackson, show that such an easement legally may arise from the depiction of the ways on registered land plans, and that the Stutz defendants contention to that effect has merit.
The Stutz defendants argue that their Lots 563A, 564, 565, 566, 575 and 660 enjoy an appurtenant right to use Green Ledge Street, and that Lot 589 enjoys an appurtenant right to use the twelve foot wide way, all based on the long-standing presence of these two ways depicted in their current layout on multiple plans within the registration system, and more specifically, within the plans in Registration case 11802, by which the current Stutz lots, or their predecessors, were laid out and conveyed with frontage on these ways.
The Stutz defendants do not argue that they are entitled to rights in these ways due to their presence on the ground, or to any history of use of them. This theory is unavailable in the case of registered land. G.L. c. 185, §53 provides: No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land. And the fact that Anarpet may have known that its land was being used by the Stutz defendants in a manner consistent with, and suggestive of, an easement is not sufficient to charge Anarpet with actual knowledge of an easement, where the parties agree that no express easement instrument exists. Commonwealth Elec. Co. v. MacCardell 450 Mass. 48 , 54 (2007).
It is, however, well settled that 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 (1965), quoting Casella v. Sneierson, 325 Mass. 85 , 89 (1949). Casella in turn describes this as a familiar rule, id., and for this proposition cites to numerous opinions of the Supreme Judicial Court, including several of considerable longevity. In Murphy, the SJC observed that [t]his principle of estoppel seems to have become a rule of law rather than a mere canon of construction. 348 Mass. at 678, quoting Teal v. Jagielo, 327 Mass. 156 , 158 (1951).
If the land in the case at bar had not had its title registered and confirmed, this familiar rule would end the contention that there was no easement benefitting the Stutz lots based on the plans used to convey those lots. They appear to fit within the Murphy rule and so would derive their passage rights based on the conveyances according to the plans depicting the disputed ways and the lots along them. However, given that the title to all the land in this case has been registered, the application of the rule requires further review of the decisional law.
In Jackson, supra, at n.7, the Supreme Judicial Court, dealing with a claim of right to use for beach access a particular strip or Way shown on a large plan of lots of registered land, said: It is also contended that the defendants are estopped to deny the existence of an easement based on the notice provided by the existence of the Way on the plan. However, we have never applied to registered land an estoppel theory not based on actual notice. The [Land Court] judge stated that Goldstein v. Beal, 317 Mass. 750 (1945) supports the possibility of the creation of an easement by estoppel on registered land based on a plan. This is not so. The principal focus in Goldstein ... is on the intention of the parties, a factor which does not concern estoppel. Goldstein explicitly disclaims an estoppel theory. ... The Jackson court reversed the Land Courts judgment, which had recognized the rights of various land owners to use the portion of the registered land which constituted the disputed Way.
The Supreme Judicial Court in Jackson acknowledged that the owners of the fee in the Way both knew, from the descriptions in their certificates, that their lots abutted the Way. It would be reasonable to expect them to review the plan referred to in their certificates which shows the Way between the two lots. Because the Way is shown on the plan, [the owners of the Way] would also be expected to examine the certificates of other lot owners in the subdivision to determine whether others might have an interest in the Way. ... Id. at 712. The court determined, however, that these claimed easements did not burden the title to the Way after noting that, although the plan became incorporated in the certificate of title and the relevant conveyance documents, it is important to remember that reference to a plan like [the plans in this case], laying out a large tract, does not give every purchaser of a lot a right of way over every street laid down upon it. Pearson v. Allen, 151 Mass. 79 , 81 (1890). ...
Jackson appears to teach two lessons of value in the resolution of the pending motions. First, the observation of the court in note 7 suggests that easements in registered land ought not arise based on an estoppel theory absent actual notice. To the extent that the Land Court in Jackson had recognized rights to use the registered land Way based on its presence on the plans, and in reliance on a theory of estoppel, the Supreme Judicial Courts note suggests this was not a correct approach.
The SJC also held that the plan at issue in Jackson was simply not one on which it would be proper to issue a judgment that the claimants held, based on the plan, rights to use the disputed Way. This was because the land shown on the Jackson plan was too large, encompassing many lots of many owners, and over which ran many ways. It was not possible to draw the conclusion that all lots on the plan of this large tract enjoyed rights to use all the ways the plan depicted.
Of these two principles explained in Jackson, only the first, that addressing the availability of estoppel theories for recognition of easements in ways shown on plans of registered land, is of concern in the case at bar. The second principle, that a large tract plan does not necessarily give rise to rights to use all the depicted ways, is not implicated in the case now before this court, simply because the small and compact scale of the affected land, with the Stutz lots aligned along relatively short and well-defined stretches of the two ways at issue, does not pose the same concern which existed in Jackson.
If Jackson were the last word available to this court, it would likely rule that the Stutz defendants theory--that they hold easement rights based on the history of conveyances of their lots according to registered land plans showing these lots (or their predecessors) fronting on the two disputed ways--was not well founded.
This is because the line of cases set out in Murphy, and giving rise to the rule there stated, do seem to ground themselves on principles of estoppel. Estoppel is the operative word used in these many decisions to explain the rule and its reason. See, eg., Casella, 325 Mass., at 89: 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 at 90: When a grantor conveys land, bounding it on a way or street, he and his heirs are estopped to deny that there is such a street or way. This is not descriptive merely, but an implied covenant of the existence of the way, quoting from Tufts v. Charlestown, 2 Gray 271 , 273 (1854). As was said in Tufts, id.: The description of the way, in the deed, as a contemplated passage way, shows the agreement of the parties, that there should be such a passage way, as distinctly as if it had been already laid out; and has the like effect, by way of covenant and estoppel, as a description of a way already laid out. The point of this rule, which has become authoritative in the title law of the Commonwealth, at least in the case of unregistered land, is that those who convey lots according to a plan showing a way in and out of those lots cannot later set up the defense that there was not an express written easement created for the benefit of those lots. One who conveys in this manner will not be heard to deny the obvious intention shown by the plan used in the establishment of the lots--that the parties expected to use the way on which the lots front to reach them. The landowner who tries to advance such a defense will be estopped from doing so. Otherwise, an inequity will take place, and intended rights of access and passage may go unvindicated and unexercised.
The reticence of the Jackson court to approve of the use of an estoppel theory in the case of registered land titles also reflects the laws strong preference for explicit notation on the current registered land certificates of title of any encumbrance affecting the land. If the right to use a way shown on a plan derives only from the plans and the orientation (and chronology of conveyance) of the lots fronting on those ways as shown on the plans, there will not be, absent some request by an interested party for amendment of the certificates of title, see G.L. c. 185, §114, any way to look at the current certificate and see any notation of the encumbrance.
For these reasons, most conveyancers dealing regularly with registered land titles took from Jackson the instruction that the venerable rule set out in the Murphy case did not apply to registered land. No matter how clearly the plans, documents and certificates of title in the registration system showed a Murphy fact pattern, most practitioners would not have concluded that easements burdened the ways shown on the registered land plans without an express easement being noted.
Then came Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 (2006). This was a dispute requiring adjudication whether or not the plaintiffs, who owned a way shown on registered land plans (across which a developer sought to pass to permit development of a parcel of land having frontage on the way) owned the way subject to an easement in favor of the developer. All the relevant land titles had been registered. The Appeals Court cited directly to the holdings in Murphy v. Mart Realty and Casella v. Sneierson for the proposition that [w]hen a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way.... 65 Mass. App. Ct. at 437.
The Lane court directly addressed the application of this rule to the registered land involved in the case. This conclusion is not affected by the fact that the plaintiffs titles to lots 10 and 11 are registered. As a general proposition, holders of a certificate of title take free from all encumbrances except those noted on the certificate, ... and a decree of registration shall set forth ... all particular ... easements ... to which the land or the owners estate is subject. Jackson v. Knott, 418 Mass. 704 , 710 (1994). There are, however, exceptions to the above principle. ... [quoting from Jackson at 711.] 65 Mass. App. Ct. at 437. The Appeals Court in Lane went on to hold that the first Jackson exception applied, and led to the imposition of the easement across the way for the developers benefit, because, as to these plaintiffs, 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. Id., at 437-438. The Appeals Court noted that the deed to one plaintiffs lot referred to the road as a boundary. In addition, the deed and certificates of title refer to a subdivision plan .... This placed the grantees on notice that their property was bounded by a way in a subdivision, and that others might have rights in the way by which they would be bound. ... Id. at 438.
The Lane court comfortably applied the Murphy rule to the registered land involved. The Lane court did so drawing from the principles in Jackson v. Knott, to which the Lane court paid great attention. The Lane court did not see in what it authorized--the imposition of passage rights over a way with a registered land title, based on the plans, certificates and other documents in the registration system, and without an express easement--as at all in conflict with Jackson. The Lane court did not perceive any difficulty in taking this approach based on note 7 of Jackson, to which the Lane court did not directly refer, but about which it of course was well aware. The inescapable conclusion is that the Lane decision treated the admonition in note 7 of Jackson as not covering the fact pattern in Lane, or, at a minimum, that the Appeals Court in Lane considered Jacksons note 7 as dictum, not essential to the holding in Jackson, which rested, after all, on the breadth of the plan there, which prevented any recognition of easement rights in the way in dispute.
The Appeals Courts Lane decision was the subject of a request to the Supreme Judicial Court for further appellate review. That request was denied. 448 Mass. 1106 (2007). If the Supreme Judicial Court felt that its holding in Jackson was at odds with that in Lane, it would have taken the case for further review.
The Appeals Court again faced a similar question in the recent case of Duddy v. Mankewich, 75 Mass. App. Ct. 62 (2009). The Appeals Court there reversed a judgment of the Land Court declaring that the defendants registered land had no easement over the portion of a private way that fronted on the plaintiffs lots, title to which also was registered.
The Appeals Court held that there were sufficient facts described on the parties certificates of title to have prompted the plaintiffs to investigate the question of passage rights over the disputed way, given the state of the facts shown by documents, certificates and plans within the registration system. In Duddy, as in Jackson, Lane, and the case at bar, there was no express easement at all. The rights claimed, and in Lane and Duddy recognized by the Appeals Court, derived from inferences fairly drawn from the state of the plans and other registered land filings. Fully mindful that [i]n the absence of an express easement, the theories available to impose an easement or right of way on registered land are limited as registration of land ... provides certain protections, 75 Mass. App. Ct. at 66, the Appeals Court nevertheless concluded that easements had arisen without express documentation, based on facts properly considered under the first Jackson exception. Id. Given the deficiencies in the certificates in failing to note any encumbrances and the express reference to the D plan, the plaintiffs would have been obligated to review the D plan to determine both their own rights over Harbor Heights Road and whether others had rights over the road. 75 Mass. App. Ct. at 67.
The Duddy court, unlike the panel which decided Lane, did not expressly rest its decision on the rule set out in cases like Murphy and Casella. But the Duddy opinion does rely squarely on closely related cases, see those cited at 75 Mass. App. Ct. at 67, which stand for the essential proposition that rights may and do arise to use ways shown on plans used to convey lots along those ways, where there is no express grant or reservation of any easement. The cases relied upon in Duddy impose easements without express instruments, where land is conveyed with reference to a plan, if an easement is clearly intended by the parties to the deed. The Duddy court quoted from Lagorio v. Lewenberg, 226 Mass. 464 , 466 (1917) for the proposition that a right of way shown on a plan becomes appurtenant to the premises conveyed as clearly as if mentioned in the deed. 75 Mass. App. Ct. at 67. These authorities, the Appeals Court concluded in Duddy, are available to, and govern the easement rights and obligations of, holders of land with registered titles.
The Duddy court explicitly acknowledged the steps registered landowners are required to take to investigate, within the registration system, the presence of rights of way across their land, even to the point of chaining back from a recent iteration of a Land Court plan to a former one, or forward to a later plan. The argument that easements could not be recognized simply because they were not noted on the relevant certificates of title was expressly rejected: ...[T]he plaintiffs insist that the absence of an encumbrance noted on their certificates of title should be strictly construed to prohibit the defendant from using Harbor Heights Road to access his lots. We disagree. Review of the D plan would also have put these plaintiffs on notice that Harbor Heights Road continued into Davidsons remaining land. Notwithstanding the plaintiffs assertions to the contrary, the D plan clearly depicts Harbor Heights Road as proceeding, open-ended, a measurable distance into Davidsons remaining land. ... The plaintiffs would have been obligated to search the registration system for certificates or plans to determine whether others have rights over Harbor Heights Road. Further inquiry would have led to the I plan. To the extent the D plan left room for doubt, the I plan would have clarified the grantors intent and provided notice to the plaintiffs that the lots depicted on the I plan rely on Harbor Heights Road for access to the public way. The rights claimed by the defendant would be no different than the rights claimed by the plaintiffs. 75 Mass. App. Ct. at 68.
As in Lane, the Supreme Judicial Court declined to grant further appellate review in Duddy. 455 Mass. 1104 (2009).
Anarpet makes much of the uncertainty that Anarpet says would infect registered land titles if the Stutz defendants are correct, and registered land may be subjected to easement rights based on the transfer of lots along ways shown on registration plans, consistent with the approach that would apply if the title were unregistered. This argument has some appeal, at least at its surface. A rule which insists that no easement may burden registered land without a definitive easement emblazoned on the relevant certificates of title does promote certainty of title, and convenience and comfort for those who examine it. But there are several responses to this argument that lead this court not to employ it in the decision of the motions now pending.
First, the argument has been considered and rejected by two panels of the Appeals Court. The Land Court must follow the law as handed down by the appellate courts. This court must do so in this instance, understanding that the Appeals Court both in Lane and Duddy did not see the problem of some degree of imprecision, based on the absence of an express notation on a certificate of title, as a reason not to recognize easement rights in registered land--when the relevant documents available in the registration system show that the easement exists nevertheless.
Also, it might be that the long-standing rule, that set out in Murphy, and applied firmly to registered land in Lane, in fact promotes, rather than impairs, certainty. If the Murphy rule applies to registered land generally, and leads to the conclusion that easement rights, even though not the subject of any written instrument, exist over ways shown on registered land plans when the Murphy fact pattern presents itself within the registration systems records, then landowners may have the certainty of knowing that their lots benefit from easement rights even without being able to point to a deed or certificate of title creating or memorializing the right. Of course, landowners may still want to have their right to pass established by this court, and then be ordered noted on the relevant certificate of title, likeliest in a proceeding subsequent to registration, see G.L. c. 185, §114. Doing so would dispel any doubt about the provenance of and entitlement to the right, and would insure that later owners of the land involved would have the courts determination permanently noted on the certificate before they purchased.
Applying the Murphy rule more or less equally to registered and unregistered land is consistent with the tenet of the registration act that to the extent it is possible to do so without compromising the attributes of registered land, differences should be kept to a minimum between transactions involving registered and unregistered land. An owner of registered land may convey, mortgage, lease, charge or otherwise deal with it as fully as if it had not been registered. G.L. c. 185, §57. That is not to say, however, that application of the Murphy rule would be on all accounts the same for registered land as unregistered. As Lane and Duddy make abundantly clear, proof of the right to use ways over registered land must derive only from the certificates, plans, and other documents in the registration system.
There remains the need to determine, as to each of the lots of Anarpet and the Stutz defendants involved in this litigation, whether the principles outlined in this Order lead to the recognition of the easement rights claimed by the defendants in Green Ledge Street and the twelve-foot wide way. Although the court will provide counsel a short opportunity to present their clients respective views on this, there does not appear to be any great reason for doubt. The record does not support any contention that the plaintiff or any relevant predecessor in title acquired and registered deeds to the Anarpet lots prior to the development of Green Ledge Street. It was there all along, back to the 11802-D plan in 1928, and it exists on the current plan in substantially, if not exactly, the same configuration.
The lots owned by the Stutz defendants which have, according to the Land Court approved plans in the record, direct frontage on Green Ledge Street, would appear entitled to the benefit of rights of passage, in common with others, over Green Ledge Street: Lots 563A, 564, 565, 566, 575, and 660, notwithstanding that most of them lack an express easement noted on either their outstanding certificates or those of the plaintiff. Under at least some of the doctrines the court relies upon, the right to use the ways shown on the plans is not per se dependent on the necessity of the access; the right may exist even if there is another route into a given lot. And the right is not necessarily defeated by a showing that some lesser rights were memorialized in the conveyancing documents. In the case of Lot 589, the record appears to support the Stutz defendants contention that that parcel holds a right to use the twelve-foot wide way on which the land fronts on all the relevant Land Court plans.
The court is mindful, nevertheless, that the Duddy decision of the Appeals Court placed emphasis on the intention of the parties to the relevant title transactions, and, in finding intention to have an easement right, drew support from a variety of factors shown by the record, including, in part, the absence of reasonable alternative access. 75 Mass. App. Ct. at 68. The court also is mindful that in Duddy the Appeals Court had in front of it not rulings on motions under Rule 56, but rather a decision on a case stated.
The court will ask counsel to confer promptly, to see if and how they now may concur, in light of the rulings made in this Order on the pending motions, about which lots of the Stutz defendants do and do not hold appurtenant rights to use the disputed ways, subject, of course, to all rights to have those rulings reviewed on appeal following judgment. Counsel also are to address with each other their readiness to proceed to have the court resolve all issues not the subject of the rulings made in this Order, including, for example, any claims of overburdening or other overuse of easements, and whether the courts determination of those issues would require trial or submission of a record to the court on a case stated. Within twenty-one days of the date of this Order, counsel are to file with the court a joint written report giving their joint or several positions.
It is ORDERED that plaintiffs Motion for Partial Summary Judgment is DENIED, and that the Stutz defendants Motion for Partial Summary Judgment is GRANTED. It is established in this case that the lots of the Stutz defendants are not legally incapable of holding appurtenant easements of passage over Green Ledge Street and the twelve foot wide way based on the fact that the titles to the parties lands have been registered and confirmed by this court, and on the lack of express notation of easement rights on several of the outstanding certificates of title. It is further
ORDERED that the Stuz defendants motion to strike the supplemental affidavit of plaintiff is ALLOWED, the affidavit having been filed untimely and without leave, and not being in proper evidentiary form. The rulings made in this Order on summary judgment would not have been different had the challenged affidavit been in the record, however. It is further
ORDERED that within twenty-one days of the issuance of this Order, the parties, by their counsel, are to file with the court the joint written report called for in this Order.
By the Court. (Piper, J.)
Deborah J. Patterson
Dated: October 12, 2010
[Note 1] Lots 565 and 566 enjoy the express right to install water and sewer facilities in Green Ledge Street.