REG 38473

September 11, 1975

Barnstable, ss.

Sullivan, J


Thelma G. MacDonald of Brewster, in the County of Barnstable, the petitioner [Note 1] and Charles T. Wood, the respondent own adjoin- parcels of land in said Brewster, he with his wife Elinore M. Wood, as tenants by the entirety. The petitioner and the respondent each acquired title from Mildred Crowell, the common owner of both of their parcels who first conveyed to the petitioner by deed dated May 7, 1966 and duly recorded in Book 1335, Page 631 [Note 2] [Petitioner's Exhibit No. 9; Abstract, sheet 23] and thereafter to the respondent and Mrs. Wood by deed dated July 12, 1968 and duly recorded in Book 1407, Page 197 [Petitioner's Exhibit No. 11; Abstract, sheet 25].

In Petitioner's Exhibit No.9 the petitioner's property is described in part as northwesterly by an ancient way. In Petitioner's Exhibit No. 11 the land of the respondent and his wife is described by a running rather than the bounding description used in the deed to the petitioner. The crucial portion of the description in their deed runs:

"THENCE 59.02 feet, more or less, across the southerly boundary line of a way as shown on said plan (a reference to Land Court Subdivision Plan No. 15834B);

THENCE in a straight line being an extension of the easterly line of said way, 145 feet, more or less, to a point;

THENCE in a straight line 70 feet, more or less, to a point in Slough Road at a county highway boundary marker which point is 30 feet, more or less, to the point of beginning;

THENCE along Slough Road 30 feet, more or less, to the point of the beginning."

The common boundary between the land of the petitioner and the Woods is described as "an ancient way" in the first deed to the petitioner and as an extension of the easterly line of way shown on said Land Court plan in the first deed to the respondent and his wife.

After both the above-mentioned deeds had been executed and delivered confirmatory deeds were executed by Mildred Crowell to both the petitioner and the respondent. That to the petitioner was dated September 11, 1969, duly recorded in Book 1448, Page 1196, [Petitioner's Exhibit No.10; Abstract, sheet 24] and made no change material to this case but simply corrected the name of the pond on which the premises abut from Slough Pond as set forth in Petitioner's Exhibit No. 9 to Walkers Pond. A confirmatory deed was also delivered by Mildred Crowell to Mr. and Mrs. Wood, this being the year previous to the delivery of Petitioner's Exhibit No. 10 (the confirmatory deed to the petitioner) and only shortly after the delivery of the original deed to the Woods. The confirmatory deed was dated August 16, 1968, was duly recorded in Book 1410, Page 431 and recites that it was given to correct a misdescription in the July 12, 1968 deed [Petitioner's Exhibit No. 12; Abstract, sheet 26]. The confirmatory deed revised the last three courses quoted above to read as follows:

"THENCE running by a travelled way 130 feet, more or less, to land of the Town of Brewster;

THENCE North 55º 57' 55" West 91 feet, more or less, by land of town to a county bound in the east side of Slough Road;

THENCE by said road 27.04 feet to the place of beginning."

This deed describes the common boundary as "a travelled way." In fact, however, so far as the issues in this case are concerned, the rights of the parties were established with the execution and delivery of the original deed by the common grantor to Mrs. MacDonald. Nonetheless, the language in this confirmatory deed does buttress the conclusion reached herein.

The original petitioner filed a petition on July 17, 1974 in this Court to register her title to a parcel of land on Walkers Pond in said Brewster shown on the filed plan. Additions and corrections were subsequently made to the filed plan on prints filed on September 17, 1974 and November 6, 1974. The petitioner thereafter moved to amend the petition by substituting a description which followed the latter print and which included the claim of an appurtenant right of way to use, in common with others entitled thereto, the ancient way bounding the premises on the west for all purposes for which public streets are commonly used in the Town of Brewster. This motion was duly allowed on November 19, 1974.

Other than an answer by the Commonwealth of Massachusetts in which objection was made to the registration unless in the decree of registration the petitioner's land is made subject to the rights of the public in Walkers Pond, a Great Pond, only the respondent answered. The Commonwealth's objections have been removed by a stipulation as to public rights in the Great Pond.

The respondent's answer in effect denied the existence of any way at or near the location described in the petition, denied that any such way ever existed for all purposes for which public streets are commonly used in the Town of Brewster and denied that the petitioner's ownership extended to the center line of the area over which she claims such a right of way. The answer also denied that the petitioner's premises had frontage on Slough Road. The petitioner has admitted the latter to be the case so that the only issues to be decided are whether there is a way in existence over which the petitioner has rights, and if there is such a way, what is the extent of the petitioner's right to use it, and whether her ownership extends to the center line thereof.

A trial was held at the Land Court on March 21, 1975. A stenographer was appointed to record the testimony. All exhibits are incorporated herein by reference for the purpose of any appeal.

The only witness for the petitioner was Edwin A. Young, a registered professional engineer and land surveyor who is office manager of Cape Cod Survey Consultants, which prepared the filed plan. Mr. Young testified as to seven photographs which he had taken and which were admitted without objection by counsel for the respondent. The photographs which are respectively Petitioner's Exhibits Nos. 1 and 3 to 8 inclusive were tied into Petitioner's Exhibit No. 2A on which the witness had noted the location from which each photograph was taken and the direction in which he faced while doing so. The photographs show a well travelled dirt road of the approximate width shown on the amended filed plan leading from what is now land of the Town of Brewster in a general northerly direction to the premises shown on Land Court Subdivision Plan No. 15834B [Petitioner's Exhibit No. 13]. The witness a1so testified as to the description in the deeds to the parties and his interpretation of them in supervising the preparation of the filed plan. Some question was raised on cross-examination as to the type of soil in the way and the growth on each side of it and the degree, if any, by which the surveyors cut back any overgrowth. There was no serious question raised, however, as to abandonment by the petitioner of any rights she might have therein.

The respondent and his wife were the only witnesses for the respondent and their testimony related primarily to conversations with the petitioner as to her possible purchase of a right of way through land of Mr. and Mrs. Wood to Slough Road.

During the trial counsel for the respondent offered in evidence not only the decree in Land Court Registration Case No. 15834 but also the abstract and papers therein [Respondent's Exhibit No. 1]. Counsel for the petitioner originally objected but thereafter withdrew his objections to the admission thereof during the trial, and they have been considered by the Court in reaching this decision. In addition to the exhibits already mentioned there was also introduced in evidence as Petitioner's Exhibit No. 14 a plan prepared for the respondent entitled "Plan of Land in West Brewster Mass. for Chas. P. & Elinor M. Wood" dated July, 1968, by Crowell & Taylor Corp. [Note 3] The description in the confirmatory deed to the Woods following this plan which varies from the filed plan, as amended, primarily in including all of the travelled way within the respondent's parcel, but both the surveyor who prepared the filed plan and the surveyor who prepared the said exhibit located the way on the ground in the same place within a matter of inches. Other exhibits included the filed plan as amended and the abstract [Petitioner's Exhibit Nos. 16 and 15].

It is evident from Land Court Subdivision Plan No.15834A [Respondent's Exhibit No. 2] that the premises registered in that case were crossed by at least two ways (or one way with a partially oval configuration). The southerly end of this way is shown on the decree plan as crossing the southerly boundary of Lot B onto land of Mildred Crowell, the predecessor in title of the parties to this proceeding. The decree in said case makes "so much of said parcels B and C as is included within the limits of the way approximately shown o said plan - subject to the rights of all persons lawfully entitled thereto in and over the same." The decree also includes the following paragraph:

"There is appurtenant to said parcel C a right of way over land of said Mitton, of said Howland et al and said Crowell southerly and southwesterly over the way as approximately shown on said plan to the Town Road."

The respondent relies on this language and on affidavits in the abstract in said case as evidence that the ancient way referred to in the deeds from Crowell were for the benefit of land of the petitioners in Land Court Registration Case No. 15834. The decree in said case established that there is appurtenant to so much of the land registered in said case as was shown as Parcel C on the decree plan the right to use the way shown on the decree plan. This does not mean, however, that this right was exclusive and that the owner of the underlying fee over which the way passed did not also have the right to use the way. This being so the present case falls within the well established rule which was cogently restated in Frawley v. Forrest, 310 Mass. 446 , 451 (1941) as follows:

When a grantor conveys land as bounded by a street or way, this is not merely a description by the grantor, and his heirs and those claiming under him are estopped to deny that there is a street or way to the extent of land so bounded on the way, and the grantee acquires by the deed a perpetual easement and right of passage on, upon and over it. This is a right, not only coextensive with the land conveyed, but for the entire distance of the way, as it is then actually laid out or clearly indicated and prescribed. Oldfield v. Smith, 304 Mass. 590 , 595-596, and cases cited. Such a deed gives the grantee rights by estoppel not only in that part of the passageway that lies opposite his land, but also, by necessary implication, to such outlet or termination as will make the way available for its intended purpose. If nothing else is contained in the deed to define it, the extent of the grantee's rights beyond the limits of his land will depend upon, and may be shown by, extrinsic facts, as they existed at the time of the conveyance (citations omitted).

This rule also applies to instances where the grantor bounds the premises by the line of the way. See Casella v. Sneirson, 325 Mass. 85 , 89-90 (1949).

In both deeds to the original petitioner the grantor bounded the property by an ancient way. The respondent argues that this reference in the description was merely to establish the boundary with the ancient way being used as a monument and that therefore this case does not fall within the usual rule that such a description carries the fee to the middle line of the way and gives the grantee the right to use the way as then laid out. I find, however, that the adjective was used in a sense descriptive of the way as it was then located on the ground and had been for many years, that the grantor under whom the respondent now claims owned the fee underlying the way and the land on both sides thereof at the time of the initial conveyance to the petitioner which preceded that to the respondent and his wife by some twenty-six months, and there is nothing in the present facts to lead to the application of a rule different from that set forth in the Frawley case.

Both deeds to the original petitioner describe the westerly boundary of the property as being Slough Road and the southwesterly boundary as land of the Town of Brewster. Pursuant to the authority granted by St. 1949, c. 420 the Barnstable County Commissioners took in fee a parcel of land on Slough Road for the laying out of a right of way for public access to Walkers Pond and to provide parking facilities contiguous to said right of way. The instrument of taking is duly recorded in Book 802 at Page 258 and appears at sheet 21 of the abstract. The plan referred to in this 1952 taking appears at sheet 22 of the abstract and shows a well-defined way crossing land of Mildred Crowell and land taken by the County to Slough Road. The taking was well before the conveyance to the original petitioner, and apparently the draftsman had this in mind in bounding the granted premises on land of the town, but seemingly mislocated it inasmuch as the description in both the 1966 deed and the confirmatory deed has also and wrongly bounded the locus on Slough Road. The petitioner admits that the locus has no frontage on the public way. The petition as amended, claimed only the right, in common with others entitled thereto, over the ancient way bounding the parcel on the west. It did not specifically claim a private right to cross the land of the Town of Brewster distinguishable from the rights of the public generally, and no determination is made herein of the petitioner's right to use the way southerly of his southerly boundary.

The deeds to the petitioner bounded the property "by" the ancient way. The common grantor had title to the fee of the way between the property of the parties at the time when the first deed out was delivered, and the use of the word "by" in the description is presumed to mean that title is conveyed to the middle of the way, subject to the rights of others to use it. There is nothing in the evidence to rebut this presumption. Brassard v. Flynn, 352 Mass. 185 , l88-189, and cases cited. See also G. L. c. 183, §58. Upon all the evidence I therefore find and rule that the petitioner has a right of way over the way as shown on the filed plan, as amended by Petitioner's Exhibit No. 2, and that the petitioner has title to the southeasterly one-half of the way adjoining the locus.

I do not find, however, that the appurtenant right is broad enough to include all purposes for which public streets are commonly used in the Town of Brewster as claimed by the petition, as amended. There was no express grant of the right of way in the deeds, and the right arises only by implication. The Frawley decision seems to make it clear that the right of way acquired by estoppel is a perpetual easement and right of passage, not the broader right of way for all purposes which would include the right to install utilities. This is so even when a general right of way is given by grant as appears in a series of decisions by the Supreme Judicial Court which are cited in a previous decision of this Court, Nantucket Conversation Foundation, Inc. v. Russell Management, Inc., Miscellaneous Case No. 68262, affirmed 2 Mass. App. Ct. 868 (1974). See also St. 1973, c. 918.

On all the evidence I find and rule that the substituted petitioner is entitled to a decree of registration to the premises described in the petition and shown on the filed plan, both as amended, together with the benefit of the appurtenant right to use the way shown on said plan and subject to such other matters as are disclosed by the examiner's abstract and which are not an issue here.

Decree accordingly.


[Note 1] At the trial on March 21, 1975 counsel for the petitioner filed a suggestion of her death on January 19, 1975 and a motion by Suzanne McPeck to be substituted as petitioner; she, having been duly appointed by the probate court as executrix of the will of the petitioner on March 11, 1975, the motion was allowed by the Court.

[Note 2] All "book and page" references are to the Barnstable County Registry of Deeds.

[Note 3] Counsel for the petitioner agreed at the trial to introduce the plan at the request of respondent's counsel on condition that the record show that he was not offering it as an accurate representation of any interest.