MARY M. PAQUIN vs. JOHN R. ANSCHUTZ and MADELEINE W. ANSCHUTZ.

Petitioner and respondents are the owners of registered land in Yarmouth, Massachusetts. Respondents claim the right to use petitioner's lot B for the purpose of bathing, boating, and launching boats. While this easement is noted on respondents' certificate of title, it is not noted on petitioner's. On November 24, 1976 the respondents filed an adverse claim, setting forth this easement over lot B, by Document No. 216003 for notation on petitioner's Certificate of Title No. 33222. The petitioner in this action seeks to have the Court cancel the registration of this adverse claim and in addition prays that the respondents be assessed double costs because the adverse claim is invalid, and frivolous or vexatious.

Trial was held on this matter on June 16, 1978. Two witnesses testified and nine exhibits, incorporated herein for the purpose of any appeal, were introduced. The parties submitted a stipulation of agreed facts which the Court incorporates into its findings of fact. Both parties filed briefs on July 10, 1978.

The Court finds the following facts.

1. On May 24, 1949, Certificate of Title No. 10549 was issued in the name of Josephine G. Lambert (Exhibit No. 5) which described in one parcel therein Lots A, B, C and D on Land Court Plan No. 15857A. The certificate stated that appurtenant to Lot C therein was a right of way to Willow Street not in issue herein, and Lots B and D were made subject to public rights below high water mark, again, not in issue herein.

2. On July 26, 1950, a deed from Josephine G. Lambert to John R. Anschutz and Madeleine W. Anschutz as tenants by the entirety conveyed Lot 5 shown on a subdivision plan of Lots A and C, being Land Court Plan No. 15857B, (Exhibit No. 1). This deed contained the following paragraph:

"There is granted as appurtenant to the above conveyed premises, the right to use, in common with others now or hereafter entitled thereto, for the purpose of bathing, boating and launching boats, Lots B and D, and any accretion thereto, shown on L. C. Plan 15857-A"

A memorialization of this conveyance was placed on the "Memorandum of Encumbrances" attached to Certificate of Title No. 10549 (Exhibit No. 5) on August 29, 1950, as follows:

"Lot No. 5 on plan filed with Certificate No. 11994 and this Certificate cancelled as to such lot see ctf. 11994, B 82 P 94."

3. On August 29, 1950, Transfer Certificate of Title No. 11994 describing Lot 5 was issued to John R. Anschutz and Madeleine W. Anschutz as tenants by the entirety. This transfer certificate contained the language quoted in Paragraph 2 above granting appurtenant rights over Lots B and D (Exhibit No. 2).

4. On December 1, 1950, Josephine G. Lambert conveyed to John R. Anschutz and Madeleine W. Anschutz, as tenants by the entirety, Lot 6 on Land Court Plan No. 15857B (Exhibit No. 3). This deed likewise contained the provision for appurtenant rights over Lots B and D as set forth in Paragraph 2 herein. A memorialization of this conveyance was placed on the "Memorandum of Encumbrances" attached to Certificate of Title No. 10549 (Exhibit No. 5) on January 24, 1951, as follows:

"Lot No. 6 on plan filed with Certificate No. 11994 and this certificate cancelled as to such lot see ctf. 12450 B 86 P 70."

5. On January 24, 1951, Transfer Certificate of Title No. 12450 was issued to the said John R. Anschutz and Madeleine H. Anschutz as tenants by the entirety, which certificate contained the language quoted in Paragraph 2 above, granting appurtenant rights over Lots B and D (Exhibit No. 4).

6. On March 25, 1953, Josephine G. Lambert conveyed Lot B as shown on Land Court Plan 15857-A to Samuel P. Strickland, Jr. and Dorothy A. Strickland. This deed did not contain any language to indicate that Lot B was subject to the rights granted to the Anschutzes to use Lot B for "bathing, boating and launching boats" as set forth in the deeds and certificates of title to them, (Exhibits No. 1, 2, 3 and 4).

7. On May 13, 1955, Samuel P. Strickland, Jr. and Dorothy D. Strickland conveyed Lot B to Michael J. and Doris M. Nordozzi with no language in said deed to indicate that said Lot B was subject to use for "bathing, boating and launching boats."

8. On September 29, 1962, Doris M. Worthington (formerly Doris M. Nordozzi) conveyed her interest in Lot B to her former husband, Michael J. Nordozzi, again with no mention of Lot B being subject to any rights of use in others.

9. On July 30, 1964, Michael J. Nordozzi conveyed Lot B to Joseph E. and M. Marguerite Paquin with no mention of Lot B being subject to any rights of use in others.

10. Certificate of Title No. 33222 was issued in the names of the Paquins with no language contained therein to indicate that it was subject to any rights in the owner of Lots 5 and 6 to use Lot B for "bathing, boating or launching of boats."

11. On July 7, 1973, Joseph R. Paquin died, leaving Mary M. Paquin as the sole owner of Lot B.

12. In September, 1975, a letter was sent by Mark S. Anschutz to Mary M. Paquin (Exhibit No. 8) pointing out that respondents Anschutz claimed the right to use Lot B for "bathing, boating and launching boats" and asking for cooperation in their use of this right.

13. On September 25, 1975, Mary M. Paquin answered the letter from Anschutz above, referring it to later consideration (Exhibit No. 9).

14. On November 24, 1976, an adverse claim was filed against Mary M. Paquin by John R. and Madeleine W. Anschutz (EXhibit No. 7).

This case presents somewhat of a novel situation as we have two innocent parties vying with each other.

On the one hand, on July 26, 1950 respondents Anschutz purchased Lot 5 from Lambert who held title to the whole tract in issue under Certificate of Title No. 10549. Included in the deed thereto, and on the transfer certificate of title No. 11994 subsequently issued to respondents, was a provision for an easement over Lots B and D for the purpose of "bathing, boating and launching boats." On December 1, 1950, Lot 6 was likewise conveyed by Lambert to respondents Anschutz in the same manner (see paragraphs 4 and 5). Over the years respondents Anschutz made use of the easement for "bathing, boating and launching boats" over Lot B. In September 1975 (see paragraph 12), their right to use Lot B having been questioned, they sent a letter to petitioner Paquin pointing out their rights over Lot B, then owned by Paquin. On November 24, 1976 respondents Anschutz filed an adverse claim against Paquin, setting forth their claimed easement over Lot B. In turn, Paquin brought this action to cause the cancellation of this adverse claim on Paquin's Certificate of Title No. 33222.

On the other hand, the Paquins purchased Lot B from Nordozzi on July 30, 1964 (see paragraph 9) by deed with no mention therein of any easement over Lot B for "bathing, boating and launching of boats." Certificate of Title No. 33222 was issued to Paquin, again with no notice of easement. Nordozzi had purchased Lot B (along with his former wife - see paragraph 8) from Samuel P. Strickland, Jr. and Dorothy D. Strickland on March 13, 1955 (see paragraph 7) with no notice of easement thereon. The Stricklands in turn had purchased Lot B from Lambert by deed on March 25, 1953 without there being any mention of an easement over it "for bathing, boating and launching boats" (see paragraph 5). Lambert's Certificate of Title No. 10549 had a memorialization of the prior conveyances of Lot 5 and Lot 6 to respondents Anschutz as set forth in paragraphs 2 and 4: "Lot No.5 (6) on plan filed with certificate No. 11994 and this certificate cancelled as to such lot, see ctf. 11994, B. 82, P. 94 (ctf. 12450, B. 86, P. 70)." (See paragraphs 2 and 4).

It is settled that one purchasing registered land with actual knowledge of an interest which burdens his land but which is not noted upon his certificate of title holds the land subject to said interest. Killam v. March, 316 Mass. 646 (1944). Though the Court has found no case involving registered land where it has been held that constructive notice will bind a purchaser even though the interest is not noted upon his certificate, the Court sees no reason for treating this differently than unregistered land and therefore will hold that such notice will bind a purchaser. See Pingree v. Coffin, 12 Gray 288 , 306 (1851). The Court finds that petitioner did not have actual knowledge of respondents' claimed bathing, boating and launching rights.

Paquin claims her lot is not subject to the claimed easement for "bathing, boating and launching of boats" relying on G. L. c. 185, § 46 which provides in part:

Every petitioner receiving a certificate of title in pursuance of a decree of registration, and 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 on the certificate, and any of the follow- ing encumbrances which may be existing. (Emphasis added).

Paquin claims she is a "purchaser of registered land taking a certificate of title for value and in good faith" within the meaning of § 46. She took title by deed from Michael J. Nordozzi (see paragraph 9) with no mention being made in the deed of any easement over Lot B for "bathing, boating or launching of boats." A transfer certificate of title, No. 33222, was issued in her name (see paragraph 10) again with no notice of the above easement. Reference was made to Land Court Plan No. 15857A but again this showed no easement over Lot B, except for an 8' way from River street to Bass River which petitioner does not dispute and which is not the easement to use Lot B for "bathing, boating or launching of boats" in issue here. Whether or not the petitioner had constructive notice here depends upon whether or not she had a duty to examine the Lambert Transfer Certificate of Title No. 10549. If she had examined the certificate presumably she would have discovered the reference to the deeds to Lot 5 and 6 on the encumbrance sheet and had she checked these further would have discovered the easement over Lots B and D. Certainly, petitioner had the duty of examining the certificate of title of Nordozzi, (not in evidence). Presumably this Nordozzi certificate contained the same information as the Transfer Certificate of Title No. 33222 issued to the petitioner (paragraph 10 herein). nLis certificate would not give the peti- tioner constructive or actual notice of the easement over Lots B and D. Samuel P. Strickland, Jr. and Dorothy D. Strickland, petitioner's and Nordozzis' predecessors in title, did have a duty to examine the Lambert Certificate of Title No. 10549. Had they looked at the Lambert certificate of title they would have found the notation of the conveyance of Lot 5 and Lot 6 thereon. Had they then looked at the instruments conveying these lots 5 and 6 they would have found the easement over Lots B and D. Thus, the Stricklands would have had constructive notice. But did the peti- tioner, removed as she is from the Stricklands, have constructive notice? Under the provisions of G. L. c. 185, § 46 "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 on the certificate..." (emphasis added). There was no notice of this easement over Lot B on the transfer certificate held by Nardozzi. Reference to the plan referred to in this certifi- cate and deed would not give any additional notice. Hence, from the Nordozzi certificate of title there was no constructive notice to Paquin.

The respondents argue that the petitioner had constructive notice of the easements in Lots B and D because the registration of the deeds to the respondents Anschutz was constructive knowledge to the world under the provisions of c. 185, § 58 which reads as follows:

Every conveyance, lien, attachment, order, decree, instrument or entry affecting registered land, which would under other provisions of law if recorded, filed or entered in the registry of deeds, affect the land to which it relates, shall, if registered, filed or entered in the office of the assistant recorder of the district where the land to which such instrument relates lies, be notice to all persons from the time of such registering, filing or entering.

They further argue that the second and third sentences of the first paragraph of Section 59 which reads as follows:

all interests in registered land less than an estate in fee simple shall be registered by filing with an assistant recorder the instrument which creates or transfers or claims such interest and, except as hereinafter provided, by a brief memorandum thereof made by an assistant recorder upon the certificate of title, signed by him. A similar memorandum shall also be made on the owner's duplicate.

do not help the petitioner. They reason that section 59 was satisfied by the notation on the encumbrance sheet of the Lambert certificate of title of the registration of the deeds of Lots 5 and 6 to the respondents Anschutz. They rely on New York Life Insurance Company v. Embassy Realty Company, Inc., 293 Mass. 352 (1936) in claiming that Mrs. Paquin has constructive notice. But in that case the respondents were found to have had constructive notice because their own certificate of title contained a reference to a document, upon examination of which the respondents could have gained notice of the prior encumbrance. There is no such reference in the present case.

The holding of Guillette v. Daly Dry Wall, Inc., 367 Mass. 355 does not pertain here either. That case involved recorded deeds, to lots in a subdivision, given to both plaintiff and defendant by the same grantor. Both plaintiff's and defendant's deeds contained references to the same plan. The present case involves registered land owned by a petitioner who is three transfers removed from the common grantor of petitioner and respondents.

Should the Court respect the Anschutz certificate of title providing for the easement over Lots B and D? Or should the Court respect the Paquin certificate of title which has no notation of this easement over Lot B thereon?

Ordinarily, it would seem that the Court should respect the certificate that is first in time, which of course is that of Anschutz, unless some reason can be found not to do so. The respondents Anschutz had exercised their easement over Lot B for some twenty-five years through Lot B's six changes of ownership. There was no evidence of a blocking off of this easement and since this is registered land it could not be terminated by adverse use anyway. Thus all things being equal the Anschutzes should prevail.

However, persuasive as these arguments are in favor of the Anschutzs' claim, there is a drawback to finding for them. They took the first deed from Lambert to Lot 5 on July 26, 1950 (paragraph 2) which contained the grant of easement over Lot B. When the respondents Anschutz took the second deed to Lot 6 from Lambert on December 1, 1950, they then had a duty to check Lambert's certificate of title. Had they done so then, they would have discovered that the certificate and the encumbrance sheet contained no notation of an easement over Lot B but merely a notation of the conveyance of Lot 5 itself. This should have warned them that this easement was not properly protected. That was the time that they should have acted and insisted that their adverse claim be noted under the provisions of section 59. At that time a simple request to the assistant recorder at the registry then would have accomplished this purpose. If the request to register their claim were not granted, they had their right under G. L. c. 185, §112 or to correct the certificate of title under §114. Instead they waited twenty-six years to file their claim.

The Court knows of no way to terminate an express easement as has been set forth before. The respondents had used the beach in front of Lot B and had crossed Lot B to get to it for many years. However, it is not clear that the owners of Lot B did not consider that they had given the Anschutzes permission and that the latter's use was permissive. The Anschutzes allowed twenty-six years to elapse after taking title to Lot 6 before doing anything to perfect their easement. They knew that Paquin and her predecessors had built upon Lot B and did nothing or said nothing about their easement. Now it is patently unfair to allow them to come in at this late date to enforce their easement. Paquin and her predecessors relied on her certificate of title on which no easement appeared. The Court rules that the Anschutzes are now estopped from asserting their claim to the easement.

It may well be that the case of Overly v. Loring, 344 Mass. 188 (1962) is in point. In that case in an allegation of inaccuracy a demurrer was overruled and the case proceeded. The Court stated however, that if contributory negligence could be proven the claim would be defeated.

Based on the foregoing reasons the petitioner's request for the cancellation of the registration of the respondents' adverse claim, Document No. 216003, on petitioner's Certificate of Title No. 33222 registered in Book 259, Page 72, Barnstable Registry District is granted. The Court adjudges that respondents' adverse claim was a novel issue, was not frivolous or vexatious and refuses to assess costs.

Decree accordingly.