JOSEPH E. TONELLO and TINA L. TONELLO vs. CORINE M. PILOTTE, CHARLOTTE HILL, BRENDAN C. AIGUIER, ELISE M. DONAHUE, BRADLEY W. MARSH, CAROLYN M. MARSH, CALVIN W. STURGE, GERALDINE STURGE, WILLIAM SHAUGHNESSY, SHARON N. CHASE, THOMAS A. CHASE, DINO PACINI, ELIZABETH PACINI, THOMAS J. O’KEEFE, II, WILLIAM SHAUGHNESSY, KATHERINE SHAUGNESSY, KATHERINE A. SHAUGNESSY, as TRUSTEE of CHELSEA ANN SHAUGHNESSY MINORS TRUST, and KATHERINE A. MARBLE, as TRUSTEE OF KRISTY LEE MARBLE MINORS TRUST

Plaintiffs filed their unverified Complaint on January 8, 2007, seeking, pursuant to G. L. c. 240, § 6-10, to remove a cloud on title relative to the use of a portion of Wood Street (the “ROW”) which abuts their property located at 19 Lake Street, Halifax, Plymouth County, Massachusetts (“Plaintiff Property”), based on their adverse possession of such ROW. [Note 1] Defendants William Shaughnessy, Katherine Shaughnessy, Katherine A. Shaughnessy, as Trustee of Chelsea Shaughnessy Minors Trust, and Katherine A. Marble, as Trustee of Kristy Lee Marble Minors Trust (the “Wamsutta Avenue Shaughnessys”) filed their Answer and Counterclaim on January 30, 2007, alleging that Plaintiffs do not own the ROW, the ROW is a public way and a public access to a great pond, and that they have prescriptive rights in the ROW. [Note 2] Defendant Corine M. Pilotte (“Pilotte”) filed an Answer on February 2, 2007. [Note 3] On February 6, 2007 Defendants Dino and Elizabeth Pacini (the “Pacinis”) filed their Answer. [Note 4] Defendants Bradley and Carolyn Marsh (the “Marshs”) filed their Answer on February 7, 2007. [Note 5] On February 8, 2007 Defendant Thomas J. O’Keefe II (“O’Keefe”) filed his Answer. [Note 6] Defendants Brendan C. Aiguier and Elise M. Donohue (“Aiguier/Donohue”) filed their Answer and Counterclaim on March 5, 2007, alleging easements by implication and prescription. [Note 7] Plaintiffs filed their Reply to the Counterclaim of Aiguier/Donohue on March 30, 2007, and their reply to Counterclaim of the Shaughnessys on April 5, 2007. A case management conference was held on April 13, 2007. On May 16, 2007, Defendants Calvin W. Sturge, Geraldine H. Sturge, Sharon N. Chase and Thomas A. Chase were defaulted. [Note 8] Plaintiffs, Aiguier/Donohue and the Marshs filed a Stipulation on January 15, 2008, in which Plaintiffs gave Aiguier/Donohue and the Marshs permissive walking access to East Monponsett Lake over the ROW for certain purposes. Defendant Charlotte Hill (“Hill”) filed an Appearance on August 21, 2007, and an Answer and Counterclaim and Crossclaim on July 10, 2008, alleging easements by implication and prescription. [Note 9] The parties attended a pre-trial conference on September 14, 2009, at which this matter was converted to a summary judgment on title issues, and O’Keefe was defaulted.

On October 14, 2009, Defendants Hill, Aiguier/Donahue, the Marshs, the Pacinis, and the Wamsutta Avenue Shaughnessys filed their Motion for Partial Summary Judgment, together with supporting memorandum and Statement of Facts. Plaintiffs filed their Opposition on November 16, 2009, together with supporting memorandum and Affidavit of Robert W. Galvin, Esq. On November 30, 2009, the above-referenced Defendants filed their Reply, together with Affidavit of William Shaughnessy. A hearing was held on the partial summary judgment motion on February 10, 2010. At that time, the parties decided to continue the hearing until Monponsett could be served and attend the hearing. Monponsett filed an Answer and Counterclaim on March 12, 2010. Plaintiffs filed their Reply on July 9, 2010. A second pre-trial conference was held on October 14, 2010, at which this matter was converted back to a summary judgment. On November 15, 2010, Hill, the Wamsutta Avenue Shaughnessys, and Monponsett (the “Litigating Defendants”) filed a second Motion for Partial Summary Judgment, together with supporting memorandum and Appendix. Plaintiffs filed their Opposition and Cross-motion for summary judgment on December 15, 2010, together with supporting memorandum. On January 14, 2011, the Litigating Defendants filed their Reply. A hearing was held on all motions on March 19, 2011, and the matter was taken under advisement. I find the following material facts are not in dispute:

1. A plan titled “Plan E, Monponsett Lake and Land Company Halifax, Plymouth Co. Mass.” dated July 1888, and prepared by A. H. French (the “1888 Plan”) and recorded with Plymouth County Registry of Deeds (the “Registry”) at Plan Book 1, Page 42, shows a subdivision of property on East Monponsett Lake.

2. Jacob W. Wilbur (“Wilbur”) conveyed Lot 1528 as shown on the 1888 Plan to James F. Gallagher by deed dated August 23, 1888, and recorded with the Registry on September 5, 1888, in Book 564, Page 367. This deed references the 1888 Plan.

3. Wilbur conveyed Lot 1529 as shown on the 1888 Plan to Terence Gallagher by deed dated August 23, 1888, and recorded with the Registry on September 5, 1888, at Book 564, Page 371. This deed references the 1888 Plan. Lot 1529 abuts the ROW.

4. Plaintiffs own Plaintiff Property (Lots 1528 and 1529 on the 1888 Plan) by deed of Vincent J. Tonello and Ann L. Tonello to them dated December 31, 1991, and recorded with the Registry at Book 10677, Page 260. Plaintiff Property is known as 19 Lake Street, Halifax, MA.

5. Wilbur conveyed Lots 1530 and 1531 (the “Lake Street Shaughnessy Property”) as shown on the 1888 Plan to Fannie J. Fisher (“Fisher”) by deed dated August 23, 1888, and recorded with the Registry on June 29, 1904, at Book 584, Page 335 (the “Fisher Deed”). This deed references the 1888 Plan. Lot 1530 abuts the ROW. The Lake Street Shaughnessy Property is known as 17 Lake Street, Halifax, MA.

6. Denise M. Murphy conveyed Lots 1530 and 1531 on the 1888 Plan to Defendant William Shaughnessy (“Lake Street Shaughnessy”) by deed dated December 1, 2006, and recorded with the Registry at Book 33768, Page 322. [Note 10]

7. Lake Street Shaughnessy conveyed “[a]ll my right, title and interest in and to that portion of Wood Street situated between Lot 1530, being land of the Grantor herein, and Lot 1529, being land of the Grantee herein, all as shown on [the 1888 Plan]” to Plaintiffs by deed dated June 22, 2009. [Note 11]

8. Wilbur conveyed “all the streets” on the 1888 Plan to The Monponsett Improvement Association by deed dated September 18, 1890, and recorded with the Registry on October 31, 1891, at Book 622, Page 493. [Note 12] This deed states that Monponsett “agrees as a part of the consideration of this deed to hold said property for the benefit of the lot owners.” [Note 13]

9. The ROW has never been constructed.

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The sole issue for purposes of these summary judgment motions is the status of legal title to the ROW. [Note 14] Plaintiffs claim to own the fee interest in the ROW through the Derelict Fee Statute. The Litigating Defendants claim that Monponsett owns the fee interest in the ROW by deed. [Note 15]

G. L. c. 183, § 58 (the Derelict Fee Statute) states as follows:

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

It is uncontested that in August 1888 Wilbur owned Plaintiff Property, the Lake Street Shaughnessy Property, and the ROW. On August 23, 1888, Wilbur deeded Lot 1529 to Plaintiffs’ predecessor in title. On the same day he deeded Lot 1530 to Lake Street Shaughnessy’s predecessor in title. In neither deed did he retain any interest in the ROW. Under the Derelict Fee Statute, it appears clear that each of the deeds, no matter which was deeded first (the deed to Plaintiff Property was recorded first), included the fee to one-half of the ROW.

The Litigating Defendants argue that since the Fisher Deed was not recorded until 1904, Monponsett did not have knowledge of the transfer when it received the deed of the streets from Wilbur in 1890. Case law holds that when a deed is transferred but not recorded, it passes title to the grantee but is not binding on the rest of the world unless they have knowledge of the transfer. See Earle v. Fiske, 103 Mass. 491 , 492 (1870), which states,

A deed duly signed, sealed and delivered is sufficient, as between the original parties to it, to transfer the whole title of the grantor to the grantee, though the instrument of conveyance may not have been acknowledged or recorded. The title passes by the deed, and not by the registration. No seisin remains in the grantor, and he has literally nothing in the premises which he can claim for himself, transmit to his heir at law, or convey to any other person. But when the effect of the deed upon the rights of third persons, such as creditors or bona fide purchasers, is to be considered, the law requires something more, namely, either actual notice, or the further formality of registration, which is constructive notice.

See also Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501 , 549 n.51 (1997) (stating that in cases “involving real property title disputes . . . the rule is that the party claiming under an unrecorded deed must prove that the subsequent purchaser had actual knowledge or notice of such a deed”); G. L. c. 183, § 4, which states, “a conveyance of an estate in fee simple . . . shall not be valid as against any person, except a grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it . . . is recorded in the Registry of Deeds for the county or district in which the land to which it relates lies.” Otherwise, if a bona fide purchaser has no such actual or constructive notice, he has valid title as against the prior grantee. See Flannagan v. Keefe, 250 Mass. 118 , 122 (1924) (“If one purchases real estate in good faith for value, in ignorance of an infirmity in the title, the validity of his title will not be affected by what he afterwards learns respecting such infirmity.”). The summary judgment record is devoid of any evidence of knowledge of Monponsett as to the Fisher Deed (or of any facts known by Monponsett at the time). [Note 16] As a result, I find that Monponsett had no knowledge of the Fisher Deed, and as a result, the Fisher Deed had no effect as to Monponsett and did not grant the fee interest in one-half of the ROW to Fisher. Consequently, the deed from Wilbur to Monponsett granted the fee interest in one-half of the ROW to Monponsett.

As a result of the foregoing, I ALLOW IN PART AND DENY IN PART the Litigating Defendants’ Motion for Partial Summary Judgment and ALLOW IN PART AND DENY IN PART Plaintiffs’ Cross-Motion for Summary Judgment.

The parties shall attend a status conference on June 17, 2011 at 10 AM to determine the next step in the litigation. [Note 17] This court shall issue a judgment after the remainder of the case is resolved through either settlement or further litigation.

Alexander H. Sands, III

Justice

Dated: May 20, 2011