ROGER S. HENRY, ELIZABETH B. HENRY vs. ELIZABETH R. PHILLIPS, ROBERT A. BENDER, PHOEBE BENDER

This petition was brought by Roger S. Henry and Elizabeth B. Henry under the provisions of G. L. c. 185, §1 (a) to register and confirm their title free of any easements to a certain parcel of land containing 13,188 square feet of land, more or less (locus) in Siasconset, Nantucket Island, Nantucket County, Massachusetts as shown on the plan filed with the petition.

Each of the above named respondents filed answers claiming title to a part of the locus sought to be registered and to an easement over another part.

The case was heard on June 22, 1977, at the Courthouse in Nantucket. A stenographer was duly sworn to record and transcribe the proceedings. Five witnesses testified, and five exhibits were introduced into evidence, which are incorporated herein for the purpose of any appeal. On the same date, in the presence of the parties and counsel, the Court viewed the locus. Subsequently, the deeds in respondent Phillips' chain of title were incorporated into the record by agreement of the parties.

The locus is shown on the plan marked Appendix A [Note 1] as Lot 6 and the entire circular driveway including the island. It is a part of a larger area originally from two separate chains of title which came together in Mary E. Giffin by the following deeds:

"Deed from Thomas H. Giffin (Mary's husband) dated January 21, 1916, and recorded in Book 99, Page 588 [Note 2] (Abstract, Sheet 7);

Deed from Henry C. Everett, Trustee under the will of Lydia Coffin Everett dated October 11, 1922 and recorded in Book 100, Page 337. (Abstract, Sheet 10);

Deed from Levi S. Coffin, Orville Coffin, Robert E. Clark and Florence C. Clark dated October 9, 1922 and recorded in Book 100, Page 338. (Abstract, Sheet 12)"

In 1930, this property of Mary E. Giffin was resurveyed and a new plan entitled "Plan of Land in Siasconset, Nantucket Island, Massachusetts Surveyed for Thomas H. Giffin, Scale 20 feet to an inch, January 1930" by J. H. Robinson, Surveyor was recorded on September 18, 1931 in Book of Plans 9, page 51. (See Exhibit No. 3).

On February 24, 1930, Mary E. Griffin conveyed the land described as "being Lot 6 shown on a plan made by J. H. Robinson, Feb., 1930, to be recorded with Nantucket County Deeds" [Note 3] to Patrick R. Burke and Margaret J. Burke, husband and wife as tenants by the entirety, by a deed recorded in Book 105, page 212. (Abstract, Sheet 17) The property was described as follows:

"the land in said Nantucket with the dwelling house and all other buildings thereon, situated in the village of Siasconset, being Lot No. 6 shown on a plan made by J. H. Robinson, Feb. 1930, to be recorded with Nantucket County Deeds, bounded and described according to said plan as follows: beginning at a pipe bound on the North and East side of a driveway and at the Southwest corner of the land hereby conveyed; thence in a Northerly direction and in the line of a driveway, 82.89 feet to a pipe bound; thence in a general Northwesterly direction and following the circumference of a circle and driveway with a radius of 23.62 feet, 23 feet, more or less to a pipe bound; thence in a Northerly direction 12.65 feet to a pipe bound; thence in an Easterly direction, 87.22 feet to a pipe bound; thence in a Southerly direction and in the line of a driveway 50 feet to a pipe bound; thence in a general Southwesterly direction and following the circumference of a circle and driveway, with a radius of 80 feet, 110 feet, more or less to the point of beginning. Being a portion of the property conveyed to me by Thomas H. Giffin by deed dated 1-21-16, recorded with Nantucket Deeds Bk. 92 Pg. 588 and by deed from Henry C. Everett, Trustee dated 10-11-22 and by deed from Levi S. Coffin et al by deed dated 10-9-22 both recorded with said deeds Bk. 100 Pgs. 337 & 338." (Emphasis added).

This lot is shown as Lot 6 on Appendix A and does not include any of the circular way or island.

This same description of Lot 6 was used in the deed from Patrick R. Burke et ux to Margaret J. Corrigan and Louise E. Barnicle as joint tenants dated November 17, 1960 and recorded in Book 120, Page 476 (Abstract, Sheet 19) and again in the deed from Louise E. Barnicle (the surviving joint tenant) to petitioners dated May 26, 1971 and recorded in Book 135, Page 642 (Abstract, Sheet 20). The grantor in each instance used the language as underlined - "in the line of a driveway" and "following the circumference of a circle and driveway" - to describe Lot 6 as it bounds the circular drive as shown on Appendix A. In addition the language "in the line of a driveway" and "following the circumference of a circle and driveway" was used to describe Lot 6 as it borders the Roadway as shown on Appendix A.

Under the general rule of construction applicable prior to the passage of G. L. c. 183, §58, this description bounding by the sideline of the driveway and roadway would ordinarily indicate the grantor did not intend to part with title to any portion of the way. Casella v. Sneierson, 325 Mass. 85 , 89 (1949); Wood v. Culhane, 265 Mass. 555 (1929). Thus, under this rule, the grantee, the petitioners and their predecessors in title, would receive no fee interest in the circular driveway but would obtain a right of way over the entire length of the driveway. Casella v. Sneierson, at 90.

However, rules of construction are designed to ascertain the intent of the parties to written instrument and while the above rule operates in the absence of evidence indicating a contrary intent, it remains open to the Court to look to extrinsic circumstances in order to determine the intent of the parties. Emery v. Crowley, 371 Mass. 489 , 76 Adv. Sh. 2786, 2790 (1976); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 680 (1965).

Thomas Giffin, the husband of the original grantor in petitioners' chain of title, Mary Giffin, constructed the house on Lot 6. This house has an entrance facing the circular drive. There was testimony the petitioners and petitioners' predecessors in title used the driveway for parking and that a predecessor, Mr. Burke, maintained the grass in the center area. These surrounding circumstances as they shed light on the parties' intent are as consistent with the grant of an easement as with the grant of a fee interest in the driveway. Thus, the evidence is insufficient to avoid the application of the general rule of construction that bounding by the sideline of a way conveys no fee interest in the way. Thus, apart from the effect of c. 183, §58, the Court would construe the deeds in petitioners' chain of title to Lot 6 to convey a fee interest only to the sideline of the driveway as indicated on the plan plus a right of way over the entire driveway.

What effect does c. 183, §58 passed as c. 684 of the Acts of 1971 and amended by c. 185 of the Acts of 1873 have? If the conveyance of Lot 6 had been made on or after January 1, 1972 when the above Acts went into effect, the conveyance clearly would be subject to it.

The pertinent parts of the statute are as follows:

"Every instrument passing title to real estate abutting a way....shall be construed to include any fee interest of the grantor in such way...unless (a) the grantor retains other real estate abutting such way,...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...as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way...between the division lines extended, the title conveyed shall be to the center line of such way...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."

But does the fact that the conveyance was made on May 26, 1971, prior to the January 1, 1972 effective date of this act make any difference? Section 2 of both Chapter 684 of the Acts of 1971 and Chapter 185 of the Acts of 1973 specifically make provision for instruments executed before the effective date. Thus, Section 2 of Chapter 185 provides that

"Section fifty-eight of chapter one hundred and eighty-three of the General Laws, as amended by section one of this act, shall take effect as of January the first, nineteen hundred and seventy-two and shall apply to instruments executed on and after said effective date and to instruments executed prior thereto, except that as to such prior executed instruments this act shall not apply to land registered and confirmed under the provisions of chapter one hundred and eighty-five of the General Laws before said effective date or to the extent that any person or his predecessor in title has changed his position as a result of a decision of a court of competent jurisdiction". (Emphasis supplied).

The land involved here was not registered or confirmed under the provisions of G. L. c. 185, prior to January 1, 1972. Nor is there any evidence that any person has changed his position as a result of a court decision.

The retroactive features of this statute as passed were specifically provided for in this legislation, and there has been no challenge to the possible unconstitutionality of such provisions here. In addition, although it is not clear that this issue was raised in the Supreme Judicial court in the case of Emery v. Crowley, 76 Adv. Sh. 2786, 2791, there is no indication that this problem troubled that court therein. The Land Court, therefore, will follow the statute as specifically set out until directed otherwise by higher authority.

G. L. c. 183, §58 sets forth an authoritative rule of construction for instruments passing title to real estate abutting a way. While this statute changes a specific rule of construction by in effect decreeing that a grantor utilizing a description bounding by a sideline, without more, did not intend to reserve his fee interest in the way, the Court does not perceive the statute as changing general principles of construction. Hence, extrinsic evidence heretofore admissible to elucidate the intent of parties to written instruments is still admissible. Thus, the intent of the parties to a written instrument that the grantor retain his fee interest in a way may be shown by an express exception or reservation or by extrinsic circumstances heretofore admissible, see, for example, Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 680 (1965), to overcome the presumption created by this specific rule of construction, c. 183, §58. However, the presumption may not be overcome alone by bounding a sideline. In this case the extrinsic circumstances are not sufficient to overcome the presumption.

Thus, the Court concludes that c. 183, §58 operates on the deeds in petitioners' chain of title to Lot 6 to convey a fee interest in the driveway from the easterly line of the driveway as it abuts Lot 6 to the center of the way, together with a right of way over the entire driveway.

What is the way here? Is it the whole of the circular drive measured from the easterly line bordering Lot 6 westerly to the westerly line of the way bordering Lot 2 including the island? Does it include the area to the south of the island before reaching the line of the "Roadway" extended? And likewise does it include the whole area to the north of the island?

The J. H. Robinson Plan (Exhibit No. 3) shows the circular drive in solid lines and the island enclosed therein in solid lines. It shows dotted lines, however, bisecting the island in a north-south direction running between two "pipe bounds" on the island and extending north to a "pipe bound" in the way and south to intersect a dotted line marking the northerly line of the "Roadway". At the point where both the east and west outer lines of the circular drive begin to curve are found "pipe bounds", each 23.62 feet east and west respectively from the "pipe bound" in the way to the north of the island.

There is no specific mention of the "island" in any chain of title. The only mention of the roadways and the circular drive is in a deed from Norman P. Giffin and his wife Zenne W. Giffin to Charlotte G. King dated September 5, 1952 and recorded in Book 113, Page 60. (Abstract, Sheet 23) The Court concludes that the island is meant to be a part of the circular drive so-called. The dotted center line on the Robinson plan reinforces the Court's belief that this was considered to be one area called the circular drive and denotes the extremes of the ownership of the abutting owners. Thus, the Court finds that the circular drive area including the island encompasses the way.

On the death of Mary E. Giffin on September 2, 1940 the area shown on Appendix A except for Lot 6 was willed to her husband, Thomas H. Giffin. (Abstract, Sheet 21A).

On January 22, 1946 Thomas Giffin conveyed Lot 2 by deed recorded in Book 110, page 611 to Cora Stevens. Lot 2 went through several other conveyances eventually being conveyed to respondent Elizabeth R. Phillips, by deed dated November 12, 1965, recorded in Book 123, page 427. (Exhibit No. 4). In each of the deeds Lot 2 was described as follows:

"NORTHERLY: by Lot No. 4 on said Plan, sixty-three (63) feet;

EASTERLY: by a Way, sixty-three and 81/100 (63.81) feet;

SOUTHEASTERLY: by said Way in a curve line as shown on said Plan;

SOUTHERLY: by a Roadway, sixty-eight and 68/100 (68.68) feet;

WESTERLY: by Sankaty Avenue, eighty-five (85) feet."

This description is different from the description used in conveying Lots 6, 4, 5 and 8 as the line bordering the circular drive is described as "Easterly by a way 63.81 feet; Southeasterly by said way in a curve line as shown on said plan". Thence the lot is bounded "by a Roadway" on its South and "by Sankaty Avenue..." on its west. Using accepted methods of construction the use of the words "by a way" would ordinarily convey the fee to the middle of the way plus a right of way over the remainder of the way. Knapp v. Reynolds, 326 Mass. 737 (1951). Again, extrinsic circumstances, the use of the area made by grantees in the chain of title to Lot 2 and the fact that the house on Lot 2 as built by Thomas Giffin has an entrance facing onto the circular driveway, are as consistent with an intent to grant a fee interest as a right of way and thus there is insufficient evidence to overcome the effect of the applicable rule of construction. Thus, under the construction to be placed on the deed to Phillips prior to the passage of G. L. c. 183, §58, the designation "by the way" conveys ownership of the fee to the middle of the way plus a right of way over the remainder.

Whether this construction agrees with that called for under G. L. c. 183, §58 depends upon the construction of the deeds in the chain of title to Lot 6. Had the latter been construed as conveying no fee interest in the way, then the entire fee in the way at the time just prior to the conveyance out of Lot 2 would have remained in Thomas Giffin. Consequently, applying c. 183, §58 to Lot 2, the deed to Lot 2 would have to be construed to include any fee interest in the way along the length of Lot 2. G. L. c. 183, §58 (a) (i). This would mean the owners of Lot 2 would own the fee in the way from the way's westerly boundary to its easterly boundary, i.e., Lot 6, northerly to the extension of the division line between lots 2 and 4. However, the Court has already concluded that c. 183, §58 must be applied to the deeds in the chain of title to lot 6. Hence the Court concludes that respondent Phillips owns the fee to the center line of the circular drive and in addition has a right of way over the remainder of the way.

Thomas H. Giffin died on April 14, 1946. He devised his real property to his children, Norman P. Giffin and Charlotte G. Giffin (Charlotte G. King) "to be equally divided between them, share and share alike." (Abstract, Sheet 22A).

Norman P. Giffin and his wife Zenne W. Giffin conveyed the northerly portion of Lot 8 as shown on Appendix A

"Together with all of our right, title and interest in the roadways and circular drive as shown on plan of John H. Robinson dated Jan. 1930 and recorded in Nantucket Registry of Deeds."

to Charlotte G. King by a deed dated September 5, 1952, recorded in Book 113, Page 600. (Abstract, Sheet 23) According to the testimony of Norman P. Giffin, he sold the remaining Siasconset property to his sister, Charlotte King. (Tr. 14). Thus Charlotte King was the owner of the remaining relevant lots herein in question, lots 4, 5 and 8 plus the fee in that portion of the way not conveyed with lots 6 and 2.

Charlotte G. King next conveyed Lots 4, 5 and 8 as shown on Appendix A to respondents Robert A. and Phoebe Ann Bender, husband and wife as tenants by the entirety by a deed dated March 14, 1964 and recorded in Book 125, page 530. (Exhibit No. 5) The description reads as follows:

"Starting at a point on Sankaty Ave at the S.W. corner of Lot #4 on plan hereinafter referred to, thence running:

Northerly, 134.83 feet to a pipe bound; thence running

Easterly, 114.25 feet to a pipe bound; thence running

Southerly, 92.24 feet to a pipe bound; thence running

Westerly, 87.22 feet to a pipe bound; thence running

Southerly again, 12.65 feet; thence running following the curve of a private way to a pipe bound at the S. E. corner of said lot #4; thence running

Westerly again, 63.00 feet to the point of beginning.

Being shown as Lots #4-5 and #8 on plan of land of Thomas H. Giffin dated January 1930 and recorded at the Nantucket Reg. of Deeds in Plan Book 9 Page 51. There is appurtenant to said Lot #8 the right to use the Private Way from Sankaty Ave. as shown on said Plan."

Thus, the Westerly frontage on Sankaty Avenue runs from the Southwest corner of Lot 4 "northerly to a pipe bound"; the easterly frontage on the right of way shown on the plan runs from a pipe bound "southerly to a pipe bound". The portion bordering the circular drive to its south is bounded "thence running following the curve of a private way to a pipe bound at the Southeast corner of Lot 4." No mention was made of any right to use the circular drive or Sankaty Avenue itself, but this latter was presumably a public way. As appurtenant to Lot 8, though, was "the right to use the private way from Sankaty Avenue..."

The principles relative to the interpretation of this deed are the same discussed in reference to the deeds in the chain of title to lot 6. Under the rule of interpretation applicable before the passage of c. 183, §58, the deed to lots 4, 5 and 8 would convey no fee in the circular drive but would convey a right of way over it. Though again, as in the case of deeds to lot 6, the Court finds the deed to lots 4, 5 and 8 to have been carefully drafted so that under the then accepted rule of construction the ways would be excluded, there is no "express exception or reservation" of the way by the grantor and hence c. 183, §58 must be applied. Thus, as the grantor King retained no other real estate abutting the circular drive after the conveyance out of lots 4, 5 and 8, the deed to lots 4, 5 and 8 must be construed to include the remaining fee interest in the circular drive. In addition Bender has a right of way in common with owners of lots 6 and 2 over the entire driveway. Lefavour v. McNulty, 158 Mass. 413 (1893).

Thus, when Charlotte G. King conveyed the circular drive area to petitioners by deed dated June 28, 1972 and recorded in Book 138, page 103 (Abstract, Sheet 24) she owned no interest in it and thus the petitioners took nothing by it.

The Court rules that petitioners have title proper for registration and confirmation to the area outlined in green and shown on Appendix B subject to rights of way as described in this decision in the owners of lots 2, 4, 5 and 8 over the circular drive and further subject to any matters disclosed by the abstract which are not here in issue. The Court orders that the petition for registration as to the remainder of the locus be severed and dismissed.

Decree accordingly.

Appendix A

Appendix B