MISC 73708

March 8, 1976

Plymouth, ss.

Sullivan, J.


The individual plaintiffs, James J. Lunny, III and Linda M. Lunny, of Halifax, in the County of Plymouth, are the registered owners named in and present holders of Transfer Certificate of Title No. 50741 issued by the Plymouth County Registry District of the Land Court (Exhibit No. 10) to them and covering Lot 2 on Land Court Subdivision Plan No. 436[E] (the "Plan"), which is Exhibit No. 3. All references herein to the registration of instruments are to said Registry District. Rockland Credit Union is the holder of a mortgage covering the Lunnys' premises which is registered as Document No. 148968 and noted on said Transfer Certificate of Title No. 50741. It was joined with its consent as a party plaintiff upon the motion of the defendants. The individual defendants, Joseph W. Klaus, Jr. and Jean M. Klaus, also of said Halifax (the "defendants") are the owners of Lot 1 on the Plan which is described in Transfer Certificate of Title No. 47675 (Exhibit No. 8) in which Mr. and Mrs. Klaus are described as the registered owners. The other defendant, [Note 1] is the holder of a mortgage covering said Lot 1 which is registered as Document No. 137398 and noted on said Transfer Certificate of Title No. 47675. A copy of the Plan is attached hereto as Exhibit A for the sake of clarity.

The Plan shows a "WAY" twenty feet in width running westerly from the easterly sideline of Monponsett Street across Lots 1 and 4, as shown thereon, to the easterly line of Lot 2 (the "WAY"). The Way is adjacent to the northerly boundary of Lots 1 and 4 and its southerly line is indicated by dashed lines. The plaintiffs' certificate of title refers to the Plan, but it does not specifically set forth any appurtenant right to use the Way. The defendants' certificate of title, on the contrary, contains the following language:

"There is appurtenant to said lot a right of way over the 20' strip along the northerly side of Lot 4 to and from Monponsett Street as shown on said plan #436E, as set forth in a certain deed from Anthony Cimorelli to Joseph W. Klaus, Jr. et ux, dated August 18, 1971, filed as document #137397."

The certificate makes no specific reference, however, to rights in that part of said strip located on Lot 1 to which said lot may be subject.

The plaintiffs filed a complaint in this Court on October 4, 1974 for Declaratory Relief under G.L. c. 231A in which they alleged that the Way is the only means of access by land to their premises, that they have an easement for all purposes for which ways are used over the Way shown on the plan, and that an actual controversy exists. The relief requested included an injunction against interference with the plaintiffs' use of the Way and damages from such interference. The defendants' answer pleaded the statute of frauds, denied that the Way was the sole access to the plaintiffs' premises and that the plaintiffs had a right to use it and as a counterclaim alleged continuing trespass by the plaintiffs and their invitees for which damages were sought as well as relief from parking by the plaintiffs on land of the defendants. The plaintiffs seasonably filed an answer to the counterclaim.

When this case was reached for trial, it was agreed by the parties to postpone the question of an award for damages until a decision on the merits and to submit the matter for determination by the Court upon a consideration of the following documentary evidence, all of which are copies of the original instruments or plans:

Exhibit 1: Transfer Certificate of Title No. 25947 issued to Anthony Cimorelli and Elena Cimorelli, and covering Lots 1, 2 and 4 on Subdivision Plan No. 436E, . cancelled on August 3, 1967.

Exhibit 2: Plan entitled “Subdivision Plan of Land in Halifax, Mass.” dated July 28, 1955, by Robert G. McGlone, filed with the Land Court as Plan No. 436E.

Exhibit 3: Land Court Subdivision Plan No. 436E.

Exhibit 4: Transfer Certificate of Title No. 40723, issued to Anthony Cimorelli, also covering Lots 1, 2 and 4 and cancelled on April 7, 1972.

Exhibit 5: Deed from Anthony Cimorelli to James Joseph Lunny, III dated January 29, 1971 and registered as Document No. 133704.

Exhibit 6: Transfer Certificate of Title No. 46613 issued to James Joseph Lunny, III, covering Lot 2, and cancelled February 26, 1973.

Exhibit 7: Deed from Anthony Cimorelli to Joseph W. Klaus, Jr. and Jean M. Klaus dated August 18, 1971 and registered as Document No. 137397.

Exhibit 8: Transfer Certificate of Title No. 47675, issued to Joseph W. Klaus, Jr. and Jean M. Klaus, and covering said Lot 1.

Exhibit 9: Transfer Certificate of Title No. 48839 issued to Michael J. Perroni and Michael J. Perroni, Jr. and covering said Lot 4.

Exhibit 10: Transfer Certificate of Title No. 50741 issued to James J. Lunny, III and Linda M. Lunny and covering Lot 2.

The present controversy arises from the failure of the draftsman of the deed from the common grantor, Anthony Cimorelli, to James Joseph Lunny, III (Exhibit No. 5) to set forth therein an appurtenant right to use the Way. [Note 2] The Certificate of Title which thereupon was issued to Mr. Lunny on February 3, 1971 described the property by metes and bounds and concluded with a reference to the Plan. It did not refer to the Way. An examination of the subdivision plan to which reference is made in both Exhibits No. 5 and No. 6 makes it apparent that access from Monponsett Street to Lot 2 must be over the way shown on the plan. This way commences at the street line and continues across Lot 4 and Lot 1 to the easterly line of Lot 2. [Note 3] It is important to observe that the Way does not stop at the easterly boundary of Lot 1 but continues across it to Lot 2. From this and from the lack of any other access of record to Lot 2, I find that the parties to Exhibit No. 5, upon which the rights of the plaintiffs [Note 4] depend, intended that there be appurtenant to Lot 2 a right to use the Way. Is there anything inherent in the registration system which bars recognition of this intention? It is true, as the Supreme Judicial Court has recently stated, that registered land is "protected to a greater extent than other land from unrecorded and unregistered liens, prescriptive rights, encumbrances and other burdens". Peters v. Archambault, 361 Mass. 91 , 93 (1972). The defendants rely heavily on G. L. c. 185, Sec. 46 which provides that "every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted in the certificate" and other exceptions not here relevant. Section 53 of Chapter 185 also provides that no easement by prescription may be acquired in registered land nor a right of way by necessity be implied under a conveyance thereof.

Conversely, it is well settled that 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. The same principles of construction apply to registered as to unregistered land. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Under the circumstances of this case I find that the reference to the Plan in the certificate of title incorporated the Plan and the Way shown thereon into the certificate and constituted a grant of the right, as appurtenant to Lot 1, to use the Way shown on the Plan. This reference also was constructive notice of the plaintiffs' rights as to which the defendants were put on notice. See Dubinsky v. Cama, 261 Mass. 47 (1927). In addition, the deed to the defendants and the certificate of title issued to them also incorporated the Plan therein by reference and indeed made specific reference to the Way. It then was incumbent upon the defendants to examine the Plan to see the extent of the way and to ascertain what rights appurtenant to other lots there might be therein. The fact that the disputed area crosses Lot 1 and is clearly labeled Way is determinative of this issue.

The defendants have argued that if the Court should find the plaintiffs to have a right of way over Lot 1, this right should be limited to the traveled portion of the strip and not be construed, as coexistent with the Way, as shown on the Plan. Since the certificate of title must be read with the Plan, however, this argument must fail. I find and rule that the plaintiffs' rights are in the Way, as shown on the Plan, not in a strip of less width.

The plaintiffs claim that the right of way which is appurtenant to Lot 2 should be construed as being for all purposes, a phrase limited customarily is construed as including the right to install utilities, whereas the defendants argue that it should be limited to the right of passage. It is settled case law in Massachusetts that a general right of way is limited to purposes of travel. See Crullen v. Edison Elect. Illum. Co., 254 Mass. 93 , 94, 1924.5). Ampagoomian v. Atamian, 323 Mass. 319 (1948). Ward v. McGlory, 358 Mass. 322 (1970). This rule has now been changed by statute as to easements created after its effective date. See St. 1975, c. 610. Whether the General Court intended that the 1975 legislation be applied to easements granted prior to its effective date and if so, whether this constitutionally may be done need not be considered in the present case in which the constitutional question has not been argued. It seems clear from the designation "20' Right of Way" on Exhibit 2, the language of the grant to the defendants and the apparent location without the limits of the Way of the utilities serving the properties of both the plaintiffs and the defendants that it was the intention of the common grantor that the conveyance be limited to a general right of way only, as that term has been interpreted prior to the recent statutory change, and I so find. Such a right of way does not include any right to park motor vehicles on any part of Lot 1 including so much thereof as is located within the Way; rather the plaintiffs' rights are limited solely to the right to pass and repass on foot and in vehicles throughout the Way, so as shown on the Plan. The plaintiffs are not to make any other use of the remainder of Lot 1 and the defendants are not to interfere in any manner with the plaintiffs' use of the Way, as delineated herein.

The defendants contend that if the plaintiffs have the right to use the Way, they also have a duty to maintain and repair it. It is clear that the defendants, as the servient owners, have no duty to keep the Way in good condition. Archambault v. Williams, 359 Mass. 742 (1971). It has frequently been stated that the dominant owner has the right to make reasonable repairs and improvements which it has been said follows "from the general principle that 'when an easement or other property right is created, every right necessary for its enjoyment is included by implication' (citations omitted)". Guillet v. Livernois, 297 Mass. 337 , 340 (1937). This right must be exercised, however, with due regard to the rights and interests of others. The plaintiffs, for example, may not intentionally damage the surface of the soil of the Way. While it is well established that the plaintiffs have the right to make the Way passable, the question as to their further duty to maintain the Way, once their use of it has commenced, is not as free from doubt. The correct rule would seem to be that this burden does fall on the plaintiffs. See Prescott v. Williams, 46 Mass. 429 (5 Metc. 429), 435 (1843). Flanagan v. Welch, 220 Mass. 186 , 191 (1915). New York Central R. R. v. Ayer, 242 Mass. 69 , 74-75 (1922). To the extent that the plaintiffs and defendants each may have a similar right over so much of the Way as is located in Lot 4, the burden of maintenance and repair is to be shared equally by the parties to this proceeding.

Judgment accordingly.

Exhibit A

Subdivision Plan


[Note 1] The corporate defendant was properly served with notice but filed neither an appearance nor an answer. References herein to the plaintiffs or defendants are to the individual parties rather than the corporate mortgagees, unless the context otherwise requires.

[Note 2] Rather, the deed described the granted premises as being Lot 2 on Land Court Subdivision Plan 436E "to which plan references may be had for a more particular description of Lot 2."

[Note 3] Apparently no controversy exists between the plaintiffs and the defendants herein and the owners of Lot 4 as to the respective rights of the parties in that part of the way which is located on Lot 4. Since the owners of said lot were not made parties to this proceeding, no determination is made herein as to rights in that part of the Way located on Lot 4.

[Note 4] Subsequently, Mr. Lunny conveyed Lot 2 to himself and his wife, as tenants by the entirety, from which their present outstanding certificate (Exhibit No. 10) was issued. However, the plaintiffs' rights in relation to their grantor Mr. Cimorelli and his successors in title, were established upon the registration of Exhibit No. 5.