REG 264-S

January 5, 1976

Norfolk, ss.

Sullivan, J


The petitioner, Joseph E. Brett of Quincy, in the County of Norfolk, is the registered owner named in and present holder of Certificate of Title No. 31168 (Exhibit No. 1) issued by the Norfolk County Registry District and covering Lot 305 on Land Court Subdivision Plan 264A[1], a copy of a portion of which is filed in said Registry District with Certificate No. 18 (Exhibit No. 3). The Memorandum of Encumbrances which forms a part of the petitioner's certificate bears the notation, among others, of Document No. 296502 described as a "Grant" running in favor of "Robert B. Lyons et ux Dorothea L. Lyons". The notation further continues "Rt of way. See Doc. Pl. with Doc." The respondents, Robert B. Lyons and Dorothea Louise Lyons, also of said Quincy are the persons described in the Memorandum of Encumbrances as the beneficiaries of a grant of a right of way. Mr. and Mrs. Lyons own an adjoining parcel of registered land shown as Lot 304 on Exhibit No. 3 and covered by Certificate of Title No. 30737; title to a portion of their land is not registered, their entire piece, both registered and unregistered, being shown on Exhibit No. 2 to which reference is hereafter made.

Document No. 296502 [Note 1] was executed on November 22, 1968, recorded with Norfolk Deeds on November 22, 1968 in Book 4558, page 557 (Exhibit No. 5) and registered shortly thereafter on November 29, 1968. Recently a controversy has arisen between the parties as to whether the petitioner in executing this instrument conveyed to the respondents an easement or the fee in a twenty foot wide strip of said Lot 305 adjacent to the rear or northerly line thereof. The petitioner therefore brought a bill into this Court to amend his certificate of title by adding thereto a statement that said Document No. 296502 is an appurtenant right only.

The respondents filed an answer denying that the petitioner intended to convey only a right of way to them and alleging that the petitioner at all times intended and did convey to the respondents the fee simple to the land described in Exhibit No. 5 and that "the words 'right of way' were inserted in said Document No. 296502 by the petitioner for the purpose of creating a restriction that no building or structure would be erected on said parcel...."

A trial was held at the Land Court on October 31, 1975 at which a stenographer was appointed to record the testimony. All exhibits are incorporated herein for the purpose of any appeal.

On all the evidence I find the following facts:

On the petitioner's Lot 305 there is now, and was in 1968, located a commercial block consisting of a variety store and a package store. The respondents had for many years lived in a residence on adjoining land. This structure was moved in the late Sixties, and a small apartment building erected on respondents' land. The properties of both the petitioner and the respondents front on West Squantum Street, a heavily traveled thoroughfare in the City of Quincy, and they are within a short distance of the Montclair School, a public grammar school. The respondents planned to provide access for their tenants to the parking lot at the rear of the apartment by a driveway entering West Squantum Street next to the stores on Lot 305. A variance for this purpose had been obtained from the Board of Appeals (Exhibit No. 14) and the City had commenced work on the curb cuts. The area between the two buildings were the driveway originally was contemplated is shown on Exhibits No. 8 and 10. The petitioner objected to this location, either for reasons of safety, as he testified, or of interference with his customers' and suppliers' parking, as the male respondent testified. As an alternative he proposed furnishing access to the respondents' land from Harriet Avenue, a side street which bounded the petitioner's land on the east, across the rear of Lot 305 to the apartment site, in lieu of the driveway out to the main street, and the respondents accepted.

The parties entered into an agreement dated November 21, 1968 (Exhibit No. 4) in a stationer's form of purchase and sale agreement covering a parcel of land twenty feet in width adjoining the northerly boundary line of Lot 305 and extending from Harriet Avenue to the respondents' Lot 304 on said plan 264A [Note 1]. The agreement did not specifically recite that an easement only was to be sold in such parcel, but rather under the heading "Special Provisions" recited "It is specifcally (sic), provided that no use shall be made of the said property other than as a driveway allowing access to and from Harriet Avenue and the parking area at the rear of the premises located at No. 211 West Squantum Street, North Quincy". The agreement mad provision for only a nominal purchase price of One Dollar ($1.00) but it imposed on the "buyer" an obligation to grade and black top not only the twenty feet wide strip but the remainder of the lot "for the purpose of making said premises suitable as a parking area with the boundaries of said parking area and driveway to be clearly delineated, on or before June 1, 1969."

Pursuant to this agreement the petitioner and the respondents executed Exhibit No. 5 which is a standard printed form of quitclaim deed in which the area in dispute is described by metes and bounds; however, the instrument then continues: "It is specifically provided that no use shall be made of the said property other than use as a driveway allowing access to and from Harriet Avenue and the parking area at the rear of the premises located at no. 211 West Squantum Street". Delivered with Exhibit No. 5 was a plan entitled "Plan of Land Showing Right-of-Way Quincy Massachusetts" dated September, 1968 (Exhibit No.2) on which the disputed parcel is denominated "20' RIGHT OF WAY 20'" and is set off from the remainder of Lot 305 by dotted lines. After the delivery by the petitioner to the respondents of the grant and plan at the office of a local bank, without counsel present, a representative of the respondents took them to Dedham for recording and registration. The respondents fulfilled their obligation to grad and hard top the petitioner's premises, and apparently by agreement lines for parking spaces were painted in the twenty foot wide area (Exhibit No. 11) leaving little of the driveway area for passage. Access to the respondents' property seemingly therefore has been over the remainder of Lot 305. A certificate of title for the premises has never been issued to the respondents, and the City of Quincy has continued to assess the real estate taxes on all of Lot 305 to the petitioner.

Upon all the evidence I find and rule that the petitioner conveyed to the respondents an easement to use the twenty foot wide strip of Lot 305 for access to and egress from Harriet Avenue and the respondents' premises and retained title to the fee of the right of way. Although the wording of the agreement and grant are couched in phrases more properly employed for a conveyance, the entire course of conduct between the parties leads to the conclusion each party intended only that right of way was to be granted with the result that an unsatisfactory means of access to the respondents' parking lot was to be eliminated by use of a portion of the petitioner's premises, the new driveway benefiting all parties to the transaction. See Dakin v. Savage, 172 Mass. 23 , 27. While counsel for the respondents argues that a conveyance of the fee was had subject to a restriction that it be used only as a driveway, such a restriction would remain in force only for a period of thirty years when the owner would be free to use it for whatever purpose the laws then might permit. G. L. c. 184, Sec. 27. There seems to be no reason why the petitioner for no consideration other than the improvement of his remaining yard would have conveyed to the respondents more than an easement which is all they required for access and which they might continue to use forever for such purpose. Moreover, the male respondent is knowledgeable in the area of real estate and must be assumed to have examined the plan delivered with Exhibit No. 5 on which the area is clearly called a right of way, and the plan is so titled.

Under the Land Registration system the conveyance of a portion of the registered land requires the preparation of a Subdivision Plan in accordance with Land Court standards and its filing with the Land Court Engineers who then approve the description in any proposed deed before it will be accepted for registration in any local Registration District. Conversely and easement affecting registered land may be filed without a plan; if a plan is filed, however, it need not be approved by the Land Court Engineers. Exhibit No. 2 is not a Subdivision Plan prepared so far as appears in accordance with Land Court standards, but rather is a plan showing the location of the right of way, not a new lot. No certificate of title evidencing ownership could be issued to respondents without the preparation of a new and more complete plan nor could the Registry District accept the instrument as a deed without approval of the Land Court Engineers. The Registry District construed Exhibit No. 5 as an easement, as had the City of Quincy, and I concur in their decisions. This conclusion also gives weight to all the language used by the draftsman of the deed.

The petitioner has prayed that his Certificate of Title No. 31168 be amended by a statement confirming that the petitioner is the owner in fee simple of all the land described therein subject to said right of way. I hold that no such amendment is necessary since said Certificate presently so provides. Certificate of Title No. 30737 in which the respondents are named as the registered owners does not include any reference to the right appurtenant thereto to use the driveway across Lot 305. Upon request of the respondents filed with the Recorder within twenty days, the Norfolk County Registry District will be ordered to add this notation. I hold also that the easement is appurtenant to the respondents' unregistered land adjoining Lot 304 and comprising a part of the premises in question.

Decree accordingly.


[Note 1] A copy of this document as filed with the Norfolk County Registry District of the Land Court was not introduced into evidence, but counsel agreed in open court that it was the same as the recorded copy.