CANTON HIGHLANDS, INC. and HELEN A. COHEN v. MICHAEL J. CONNOLLY, JR., ROSA CONNOLLY, FRANCIS A. SEARLE, JR., RICHARD J. MAHONEY, JR. and ELEANOR R. MAHONEY.

Petitioners in this action seek to amend their certificates of title to eliminate a right of way which passes through their properties. Respondents claim rights of way over said way.

Trial was held on August 24. An agreed statement of facts with twelve accompanying exhibits was submitted. The agreed statement of facts which the Court adopts as its findings of fact, provides:

1. The Petitioner, Canton Highlands, Inc., is the owner of a parcel of land located in Canton, Massachusetts, and being shown as Lot 140 on Land Court Plan No. 12219K, approved by the Land Court in 1973. Said lot is located on the Westerly side of Trayerwood Drive, an existing paved road which runs generally in a North-South direction and which connects with High street at its northernmost extremity. High street is a public way running in an East-west direction.

2. Helen A. Cohen is the owner of Lot 143 as shown on Plan No. 12219K, which lot is located on the Easterly side of Trayerwood Drive, opposite Lot 140.

3. A copy of Plan No. 12219K is attached to this Agreed Statement of Facts as Exhibit 1 and is incorporated by reference.

4. Plan No. 12219K shows a "way" running in an East-West direction, transversing Lot 140, Trayerwood Drive, and Lot 143. This "way" is shown on Exhibit 1A, being outlined in red and designated with an X. The way was first created on Land Court Plan No. 12219D which plan was approved by the Land Court in 1938. Plan No. 12219D is attached to this Agreed Statement of Facts as Exhibit 2 and incorporated by reference. The way which is shown on Exhibit 1A is also shown on Exhibit 2, as outlined in red and designated with an X. It is this "way" that the Petitioners seek to eliminate, to the extent that the way transverses their lots.

5. The Respondent, Francis A. Searle, Jr., is the owner of Lot 36, as shown on Land Court Plan No. 12219K (Exhibit 1A). Lot 36 has a single family dwelling located on it, and the lot has legal frontage on Trayerwood Drive and access thereto.

6. The Respondents, Michael and Rosa Connolly, are the owners of Lot 37 on Plan No. 12219K (Exhibit 1A). Lot 37 also has a single family dwelling located on it and the lot has legal frontage on Trayerwood Drive and access thereto.

7. The Respondents, Richard J. Mahoney, Jr. and Eleanor R. Mahoney, are the owners of Lots 3 and 11, as shown on Land Court Plan No. 12219K (Exhibit 1A), which lots were originally created by Land Court Plan No. 12219D (Exhibit 2). Lot 3 has a single family dwelling located on it and said lot has legal frontage on High street and access thereto. Lot 11 contains approximately 8,250 square feet. The land of the Petitioners and all of the Respondents are in a single family residence zone. In 1958, the Canton zoning by-law was amended so as to increase the lot area requirement from 7,500 square feet to 15,000 square feet. Since 1953 to the present, including the time when the zoning by-laws were amended in 1958, Lots 3 and 11 were held in common ownership.

8. The larger overall parcel, of which all of the lots shown on Plan No. 12219K are a subdivision, was origin- ally registered in 1929 as shown on Land Court Plan No. 12219A, which plan is attached hereto as Exhibit 3 and incorporated by reference.

9. The chronology of the subdivision of the tract of land shown on Plan No. 12219A is as follows:

a. The land shown on Plan No. 12219A was originally registered in 1929 by Dennis G. Trayers. The land was subsequently subdivided into several relatively large parcels.

b. In 1938, a portion of the tract was subdivided into house lots as shown on Plan No. 12219D. The "way" which the Petitioners seek to eliminate was created by this plan. The lots shown on Plan No. 12219D have been superimposed upon Plan No. 12219A as shown on Exhibit 4, attached hereto and incorporated by reference.

c. Of the lots shown on Plan No. 12219D, lots 1, 2, 3, 4, 10, 11, 12, 13 and 14 were sold prior to the effective date of Plan No. 12219K.

d. In 1973, John W. Keith Builders, Inc. purchased the remaining lots shown on Plan No. 12219D as well as the greater portion of the adjoining land which is shown on Plan No. 12219B, attached hereto as Exhibit 5 and incorporated by reference. The lots on Plan No. 12219D purchased by John w. Keith Builders, Inc. were re-configured and shown as part of Plan No. 12219K. The lots shown on Plan No. 12219D have been superimposed on Plan No. 12219K as shown on Exhibit 6, attached hereto and incorporated by reference. At the time it acquired the aforementioned land John W. Keith Builders, Inc. acquired Lots 4 and 10 from Helen Cohen and her now deceased husband, and in return for this transfer, conveyed to the Cohens Lots 142 and 143, as shown on Plan No. 12219K, for the purpose of giving John W. Keith Builders, Inc. adequate land for a curb cut at the connection of Trayerwood Drive and High street.

10. At the time of the creation of Way X (as shown on Exhibits 1A and 2) in 1938, the way was not staked out or constructed on the ground, and since 1938 to the present, including all times when conveyances were made to the Respondents, said way has never been constructed on the ground. Said way has never been used as a way for vehicular traffic by the Respondents; or anyone else, and said way is not necessary to give access to any of the Respondents' homes. At present, there is natural growth, including trees and bushes over Lot 143, including the area of Way X.

11. The way which is shown on Plan No. 12219K (Exhibit 1) as running southwesterly from High Street along the Northwesterly boundaries of the lots which abut the Westerly side of Trayerwood Drive and which is designated on said plan as "Way (40.00' wide)" is not now nor has it ever been constructed on the ground. This way has never been used as a way for purposes commonly used in the Town of Canton, and was not a constructed way at the time of the execution of the deeds to any of the Respondents.

12. The way which is shown on Plan No. 12219K (Exhibit 1) as running in a North-South direction on the Easterly side of Lots 3, 11, 36 and 37 is not now nor has it ever been constructed on the ground. This way has never been used as a way for vehicular traffic and was not a constructed way at the time of the execution of the deeds to any of the Respondents.

12A. At the time of the conveyance to the Respondents Searle and the Connollys, the ways named on Plan 12219K, namely, Trayerwood Drive, Kathryn Lane, Robbin Road and Kristin Lane, were all constructed.

13. At the time of the subdivision approval process of the current subdivision, no bonds or covenants were required by the Canton Planning Board pursuant to the subdivision control law for the completion of Way X or the ways referred to in paragraphs 11 and 12.

14. In January of 1976, John W. Keith Builders, Inc. conveyed all of the lots on Plan No. 12219K which it then owned to the petitioner, Canton Highlands, Inc., including Lots 36, 37 and 140. The certificate of title of Canton Highlands, Inc. is attached to this Agreed Statement of Facts as Exhibit 7 and contains the following language: "The above described land is subject also to the right to use the streets and ways, shown on said plan filed with certificate No. 97122, as set forth in Document No. 356928." The plan referred to by said language is Plan No. 12219K. Document No. 356928 is the deed from John W. Keith Builders, Inc. to Canton Highlands, Inc.

15. In September of 1976, Canton Highlands, Inc. sold Lots 36 and 37 as shown on Plan No. 12219K to William F. Carey. The deed from Canton Highlands, Inc. to William F. Carey is attached as Exhibit 8 and contains the following language: "Excepting and excluding from the above registered land the fee in Trayerwood Drive adjacent thereto, but together with the right to use the streets and ways as shown on said plan in common with others lawfully entitled thereto."

16. In May, 1977, Carey sold Lot 37 to the Respondents, Michael and Rosa Connolly. The Connolly certificate of title is attached as Exhibit 9 and contains the following language: "Excepting and excluding from the operation of this certificate so much of the fee and soil in said Trayerwood Drive as lies opposite said Lot 37. There is appurtenant to the above described land the right to use the streets and ways shown on said plan, as set forth in Document No. 363455." The plan which this language refers to is Plan No. 12219K 17. In September, 1977 Carey sold Lot 36 to the Respondent, Francis Searle. The deed from Cary to Searle is attached hereto as Exhibit 10. Said deed contains the following language: "Said Lot 36 is subject to the easements and restrictions of record, if any, insofar as the same are in full force and applicable." This deed does not contain the same language as in the Connolly certificate of title which is set forth in paragraph 16.

18. Both the Respondent, Searle, and the Respondents, Connollys, purchased their land from William F. Carey, and not from Canton Highlands, Inc., and none of said Respondents dealt in any way with Canton Highlands, Inc. with regard to the purchase of their lots.

19. In 1970, the Respondents, Richard and Eleanor Mahoney, purchased Lots 3 and 11, as shown on Plan No. 12219D. Lot 11 is described as being bounded Easterly by the way referred to in paragraph 12 and Southerly by Way X, according to Plan No. 12219D. The Mahoney certificate of title is attached hereto as Exhibit 11 and contains the following language: "There is appurtenant to said lot numbered 11 the right to use the whole of the way shown on plan filed with certificate number 13067, in common with others lawfully entitled hereto." Said way referred to in this language is the way shown on Plan No. 12219A, running in a southwesterly direction from High street, and designated on said plan as being 40 feet wide. Otherwise, the Mahoney certificate of title makes no reference to the right to use any other way.

20. The certificate of title of the petitioners, Helen A. Cohen is attached hereto as Exhibit 12. This certificate contains the following language: "Said lot numbered 143 is subject to a Way shown on said plan." The plan referred to is 12219K.

The testimony of the seven witnesses who testified did little to add to or detract from the agreed statement of facts. There was some evidence that the Connollys and Mr. Searle relied upon there being a right of way over Way X as a means of preventing anybody from building on Lot 143 which jutted in front of lot 36. In addition there was some evidence that some slight use had been made of Way X during the last winter for the parking of automobiles during the heavy snow. In the view the Court has taken of the case, however, these items make no difference.

All exhibits are incorporated herein for the purpose of any appeal. Briefs were submitted on August 24 and oral arguments were heard on August 31, 1978.

The claims of each respondent will be dealt with separately.

1. Respondents Connolly

Respondents Connolly are the owners of lot 37 shown on exhibit 1. Their certificate of title, exhibit 9, states:

There is appurtenant to the above described land the right to use the streets and ways shown on [plan 12219k]....

Way X is clearly shown in its entirety on plan 12219K. However, petitioners argue that the Connollys' grantor did not intend to convey his appurtenant right of way over way X because such a way is useless to lot 37 and sought to so prove at trial.

The petitioner relies on Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 (1971) in support of its argument that extrinsic evidence of the parties' intentions and the circumstances at the time of the grant is admissible. In the Akeson case, a petition to register land, the respondents, owners of registered land abutting petitioner's land to the north, claimed rights of way over the paper extension of ways into the land sought to be registered. The streets in question were constructed as they abutted respondents' land but not southerly throughout petitioner's. The respondents' certificate of title stated that rights to use the ways in question were appurtenant to the respondents' lots. The decree plans showed basically the registered parcels and the abutting ways without any indication of the extent of the ways. Respondents claimed their certificate had the effect of express grants of rights of way over the entire length of the ways including the paper extensions. The Court held it was proper to admit extrinsic evidence to determine the intent of the parties as to the extent of the grantees' (respondents') rights beyond the limits of their own land. The Court concluded that as the paper extensions had never been laid out or used and as respondents had adequate and convenient access apart from the paper ways, the respondents had not sustained their burden of proving a grant by implication over said extensions.

Unlike the certificates involved in the Akeson case, the Connollys' certificate of title defines the appurtenant rights of way by reference to a specific plan and this plan shows the way in question, way X, in its entirety. In these circumstances there is not the ambiguity present in the Akeson case which allows consideration of extrinsic evidence.

Thus the Court concludes the Connollys' certificate of title is unambiguous and that the Connollys, as owners of lot 37, have a right of way over way X. Thus petitioners are not entitled to have way X eliminated as an encumbrance to their certificates of title.

2. Respondent Searle

Respondent Searle is the owner of lot 36 which borders in part on Way X. The Court concludes respondent Searle has a right of way over Way X by operation of G. L. c. 183, §15 which provides that appurtenances of the granted estate pass to the grantee unless excluded by deed. searle's grantor, William F. Carey, acquired lot 36 from the petitioner Canton Highlands, Inc. by deed dated September 29, 1976. Exhibit No. 8. This deed grants "the right to use the streets and ways as shown on [Land court Plan No. 12219K] in common with others lawfully entitled thereto." For the same reasons as discussed in connection with respondents Connolly, the Court construes the above language as an unambiguous grant of a right of way over Way X. As there is no language in the deed from Carey to Searle, exhibit no. 10, excluding the right of way over Way X, it passed under G. L. c. 183, §15 to respondent Searle.

3. Respondents Mahoney

Respondents Mahoneys' certificate of title to lots 3 and 11 describes their property as bounded easterly by a way and southerly by a way, the latter being Way X. (Exhibit No. 11). The respondents, invoking the principles of estoppel by deed and easement by implication through a deed's reference to a plan, argue that they have a right of way over the entire length of Way X.

While these principles apply not only to ways already in existence but also to unconstructed ways if clearly indicated on a plan referred to in a deed, Casella v. Sneierson, 325 Mass. 85 (1949), the principles are not without limitation. Where the way does not connect directly or indirectly with a public way, an easement by implication has not been recognized. Wellwood v. Havrah Mishna Anshi Sphard Cemetary Corp., 254 Mass. 350 (1926). The determination whether an easement by implication exists beyond the limits of the parcel in question depends upon the surrounding circumstances existing at the time of the conveyance. Casella at 91.

While the above cited cases have involved the interpretation of deeds, the same principles are applicable to the interpretation of the Mahoneys' certificate of title. Dubinsky v. Cama, 261 Mass. 47 , 53 (1927). Thus, the Court proceeds to a consideration of the surrounding circumstances.

Lots 3 and 11 were originally created by Land Court Plan No. 12219D, exhibit 2. Agreed Statement #7. This plan dated June 15, 1938 clearly shows Way X. Lots 3 and 11 are contiguous, lot 3 bordering on High Street, a public way, and lot 11 bordering lot 3 on the north, a paper way on the east, Way X on its south, and lots 142 and 143 on its west. Thus lot 11 abuts no constructed way and is for practical purposes landlocked. Lots 3 and 11, as well as the other lots concerned in this litigation, are zoned for single family residences. While lot 11, which contains approximately 8,250 square feet, has not satisfied the Canton zoning by-law minimum area requirement for single family dwellings since it was amended in 1958 increasing the area requirement from 7,500 square feet to 15,000 square feet, the fact that lot 11 may not be used for residence purposes and does not need access for that purpose does not derogate from the necessity of the paper ways as access to lot 11 for other purposes. While in practical terms it may be unlikely that lot 11 will ever be held in ownership separate from lot 3, lot 11 is capable of a separate legal existence. Way X leads directly from lot 11 to a constructed road, Trayerwood Drive, which was cleared for construction in the fall of 1972. (Testimony of Mr. Trayers). The Court concludes there is appurtenant to lot 11 a right of way over Way X. This right of way is not limited to the portion of Way X east of Trayerwood Drive because of the following circumstances.

The Mahoneys certificate of title provides:

There is appurtenant to said lot numbered 11 the right to use the whole of the Way, shown on plan filed with Certificate No. 13067, in common with others lawfully entitled thereto.

The plan filed with Certificate No. 13067 is the 12219A plan, exhibit no. 3. Exhibit No. 3 does not show Way X or the paper way to the east of lot 11. It does show the paper way which runs in a southwesterly direction from High Street and now borders lots 133-141. Way X runs between this latter paper way on the west and the paper way on the east. The Mahoneys' certificate of title expressly grants as appurtenant to lot 11 a right of way over this westerly paper way. Agreed statement #19. The express grant of this latter right of way makes no sense unless it was contemplated lot 11 would have access to reach it. As Way X provides this access, leading directly from lot 11 to the westerly paper way, the Court concludes that there is appurtenant to lot 11 a right of way over the entire length of Way x.

Petitioners are not entitled to have Way X eliminated as an encumbrance from their certificates of title and the petition is dismissed.

Decree accordingly.