MARGARET A. KELLETT and JANE RICH v. CHARLES J. CAVALARO, EILEEN J. CAVALARO, LYNN INSTITUTION FOR SAVINGS, GUY LENTO, MARIE LENTO, FRANK CREMAROSA, ANTHONY FILIPPIS, PASQUALE SANTILLI and PATRICK DESALVATORE, Trustees of Wildewood Realty Trust, WILDEWOOD GREEN BELT CORPORATION, TOWN OF LYNNFIELD.

This is a complaint brought by Margaret A. Kellett of Lynn in the County of Essex and Jane Rich of Portland in the State of Connecticut to remove a cloud on their title to Lots 1, 2A and 3A as shown on a plan entitled "Plan of Land in Lynnfield, Mass., dated June 17, 1977, revised March 2, 1978, by Hayes Engineering, Inc.," recorded with Essex South District Deeds [Note 1], Plan Book 147, Plan 33 (the "Plan") (Exhibit No. 1). The cloud is alleged to be a way shown as Lincoln Road on an early subdivision plan entitled "Plan of Land in Lynnfield, Mass. owned by Rickard F. Walsh," dated July 22, 1914 by W. H. Spear, recorded at the beginning of Book 2275 (Exhibit No. 2) and also shown on the Plan. Of the defendants named in the complaint as having a possible interest in Lincoln Road, answers were filed on behalf of the Town of Lynnfield which in due course was defaulted, Wildewood Realty Trust and Wildewood Green Belt Corporation which have entered into a stipulation with the plaintiffs, and Charles J. Cavalaro and Eileen J. Cavalaro of said Lynnfield, who are the only defendants remaining in the case.

A trial was held on February 22, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on April 19, 1979.

On all the evidence I find the following:

1. Charles J. Coburn was a predecessor in title of both the plaintiffs and the Cavalaros. By deed dated June 25, 1914 and recorded in Book 2268, Page 258 (Exhibit No. 8), Mr. Coburn conveyed to Rickard F. Walsh a two and one-half acre tract of land in Lynnfield and took back a purchase money mortgage covering the same premises dated July 16, 1914 and recorded in Book 2268, Page 259 (Exhibit No. 9).

2. As mentioned above, a subdivision plan of the tract was prepared for Mr. Walsh, and he subsequently conveyed Lots 16 and 17 thereon to Jonas Shure. The deed evidencing one conveyance was dated July 16, 1914 and recorded in Book 2269, Page 273 (Exhibit No. 7). The other was not introduced into evidence. A confirmatory deed of Lot 16 from Walsh to Shure dated August 10, 1914 was recorded in Book 2269, Page 387 (Exhibit No. 6). The July deed made no reference to the ways on which the property bounded, but it did refer to "a plan of land to be recorded." The August deed made more specific reference to Pillings Pond, the plan which is Exhibit No. 2 and the ways. This deed also contained the following language:

With all right and privilege in said Walsh Road which is to remain open and free to lots adjoining. Also rights in Lincoln Road.

3. Coburn executed partial releases of Lots 16 (Exhibit No. 10) and 17 (Exhibit No. 11) which did not refer to the lot numbers or ways but did incorporate by reference a plan of the Walsh lots to be recorded.

4. Thereafter in 1918 the mortgage from Walsh to Coburn was foreclosed, and the mortgaged premises purchased by Coburn. (Exhibits No. 14 and 15). Coburn subsequently conveyed the two and one-half acre tract, less the Shure lots, to James E. Rich, under whom the plaintiffs claim (Exhibit No. 12) by deed dated May 23, 1918 and recorded in Book 2392, Page 577. Lots 16 and 17 by mesne conveyances were purchased by the Cavalaros. The deeds in their chain include "rights in Lincoln Road" other than the deed to them from Guy Lento et ux dated October 5, 1967 and recorded in Book 5537, Page 331 (Exhibit No. 3) in which no mention of such rights is made.

5. Lincoln Road as it appears on the recorded plans was intended to run from land now of Wildewood Realty Trust across Walsh Road. The parties are in agreement that any rights in that portion of Lincoln Road lying northeasterly of Walsh Road have been abandoned. That portion of the way deadends at land of a third party, and its continued paper existence would serve no purpose. It is the portioin of the paper way lying southwesterly of Walsh Road which is in contention. At the view an examination of the locus made it apparent that the way has never been laid out on the ground and exists on paper only although doubtless it has been used over the years to reach the pond, presumably by the members of the general public on foot. From Walsh Road to Pillings Pond the layout of so-called Lincoln Road is overgrown with trees and obviously has not been used by anyone on a regular basis under claim of right, either on foot or in a motor vehicle. There also is a large outcropping of rock on the plaintiffs' land, but this appears to be southeasterly of the paper street. Near Walsh Road there is an indication of use, but the tracks swing at a different angle than Lincoln Road and obviously represent an area used for parking when the cottage located on Lot 1 on the Plan was rented.

6. The property of the defendants is fenced so at present there is no access from their premises directly to Lincoln Road, but the defendants can drive from Walsh Road onto Lincoln Road adjacent to their northwesterly boundary.

The significant course in the description of the defendants' chain of title runs "Southwesterly on Lincoln Road to Lot #15." On the 1914 plan, incorporated by reference in the deeds, Lincoln Road is clearly designated. Moreover, "all rights in Lincoln Road" are granted. It is a well established rule in Massachusetts that a description which bounds property on, by or by the side line of a way is effective to give the grantee an easement in the way. Delconte v. Salloum, 336 Mass. 184 , 187-188 (1957); Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949); Patterson v. Simonds, 324 Mass. 344 , 352 (1949). And, where a plan is referred to in the deed, as here, "the plan must be considered as a part of the deed, so far as is necessary to aid in description and identification of the easement." Dubinsky v. Cama, 261 Mass. 47 , 53 (1927). Thus, in the instant case, we have an easement by grant that is delineated on Exhibit No. 2. And, once created, G.L. c. 183, §15 operates to transfer the easement, whether or not mentioned in later conveyances, unless the contrary is stated. Garrity v. Snyder, 345 Mass. 121 , 124 (1962). Section 15 provides that:

In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.

Once an easement is created, the grantor and his successors are estopped to deny its existence and the grantee acquires a perpetual easement and right of passage over the right of way. In Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965), a case in many respects similar to the instant one, the original owners of a tract of land had recorded a plan showing a proposed street. They retained some lots abutting the way and conveyed other abutting lots. For many years, the right of way remained undeveloped; it was not staked out, and was covered with stones, rocks, trees and shrubs. However, when the easement holders later filled, graded and black- topped the strip of land, the servient tenement owners questioned the existence of the easement. The Murphy court succinctly stated the rules of law as follows:

"when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Casella v. Sneierson, 325 Mass. 85 , 89, and cases cited. This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated. Tufts v. Charlestown, 2 Gray 271 , 273. Ralph v. Clifford, 224 Mass. 58 , 60. Casella v. Sneierson, 325 Mass. 85 , 90. Olson v. Arruda, 328 Mass. 363 . This principle of estoppel "seems to have become a rule of law rather than a mere canon of construction." Teal v. Jagielo, 327 Mass. 156 , 158.

In determining whether the strip has been sufficiently defined as a proposed street, reference may be made to the plan filed .... "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." Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp. 254 Mass. 350 , 354. Goldstein v. Beal, 317 Mass, 750, 755. Here the proposed street was adequately designated in the plan. We are of the opinion, therefore, that the deeds to the ... [original grantees] created an easement of way in the strip which bounded the land granted (lots 1, 2 and 3). The grantor is estopped as against the ... [original grantees] and their grantees from denying the existence of such easement over the grantor's land within the limits of the way. Once the easement was created it passed to succeeding grantees by virtue of G.L. c. 183, §15, whether or not it was mentioned in the deeds.

Id. at 677-78. To the same effect are Frawley v. Forrest, 310 Mass. 446 , 451 (1941), and Oldfield v. Smith, 304 Mass. 590 , 595-96 (1939).

Nonetheless, the grantee does not necessarily have a right by implication to use the entire right of way on which his property abuts. As Murphy reiterates, it is in every case a question of the intention of the parties. Both Lots 16 and 17 have frontage on Pillings Pond so there has been no necessity for the defendants or their predecessors to use Lincoln Road for access to and egress from the recreational area. It may well be, however, that the future will require access to and egress from the defendants' property by way of that part of Lincoln Road on which the defendants' land abuts. By virtue of the rule discussed in Murphy, title to the middle line of Lincoln Road is in the defendants for the thirty feet in length adjacent to the boundary of Lot 16, and they have the right to use said thirty feet of the way for all usual purposes throughout its entire width. However, the defendants' rights do not include right to park vehicles on any part of the way. See Delconte v. Salloum, supra at 190. It is for this reason and because of the continued existence of a portion of the way that the parties may wish to consider an agreement by which the plaintiffs and the defendants each would retain fee simple title to the one-half of the way adjacent to their respective properties free from any rights of others therein.

On all the evidence the Court finds and rules that the defendants own the fee to the middle line of that portion of Lincoln Road adjacent to land of the defendants, that the plaintiffs and the defendants have the right to use said portion of Lincoln Road to Walsh Road for all purposes for which streets or ways commonly are used in Lynnfield but not for parking, that no third party (other than one claiming through the parties) has any rights therein, and that it was not the intention of the grantor to grant rights in that part of Lincoln Road running from the northwesterly corner of Lot 16 to Pillings Pond and, if it were, nonuser for sixty-five years constitutes an abandonment.

It is settled law in this Commonwealth that failure to use a way alone is not enough to evidence an abandonment. To effect an abandonment, mere nonuse is insufficient unless accompanied by a clear intention to abandon.

It is true, as a general rule, that an interest in real estate cannot be conveyed except by a deed; but it is well settled that an owner of a right of way or other easement may, without deed, abandon his right so as to relieve the servient estate of the incumbrance. Dyer v. Sanford, 9 Met. 395 . Mere non-user, even for twenty years, will not conclusively show an abandonment of a right of way; but when the owner of the dominant estate, to which a right of way over a servient estate is appurtenant, does some acts inconsistent with the continued existence of the way, with the intention to abandon and extinguish his easement, it operates as a present abandonment; and it is a question for the jury to determine whether such intention existed.

King v. Murphy, 140 Mass. 254 . (1885); accord, Sindler v. William M. Bailey Co., 348 Mass. 589 , 592-93 (1965); Desotell v. Szczygiel, 338 Mass. 153 , 158-59 (1958); Delconte v. Salloum, supra at 188; Dubinsky v. Cama, supra at 57; Dana v. Valentine, 5 Met. 8 , 13-14 (1842). Nonetheless, on the facts of this case where the way never was constructed, has been long overgrown by trees, no use thereof has been made for well over half a century and the laws governing subdivisions have changed so that even Walsh Road which only has a dirt surface is unusual, enough has been shown to warrant such a finding.

The plaintiff has requested the Court to make certain findings of fact and rulings of law. Requests No. 1, 5, 6, 7, 10, 14, 15 and 16 are granted, and the others are denied in the light of this decision.

Judgment accordingly.