MOE MALTZMAN vs. CITY OF REVERE, GEORGE BARISANO and THE FIRST BAPTIST CHURCH OF REVERE.

This is a proceeding pursuant to G. L. c. 185, §1 (a) brought by Moe Maltzman of Revere in the County of Suffolk to register and confirm his title to parcel 4 as shown on the filed plan (Exhibit No. 11) in this registration case. Originally the petitioner sought to register and confirm only his title to parcels 1, 2 and 3 on said plan, and parcel 4 was added by amendment after the filing of the petition. When a contest arose as to the title to the latter parcel, the Court allowed a motion to sever (and retain) parcels 1 to 3 inclusive from the present proceeding, and they now are the subject of a separate case, Registration Case No. 39985.

Parcel 4 with which we are here concerned is that part of Beverly Street, an admittedly private way, on which parcels 2 and 3 abut, and the petitioner claims title thereto by implication. He also claims that he holds title free from any rights or easements of others therein by virtue of the physical situation on the ground.

George Barisano, an abutter, and The First Baptist Church of Revere, Massachusetts, Inc., the owner of land on Beverly Street, answered, both objecting to the petitioner's claim to own the fee of Beverly Street free from the rights of others to use it. It is the City of Revere, however, which has been the principal opponent of the petitioner's claim. The City's answer alleged that:

a) "Beverly Street is a private way laid out in the City of Revere since 1911;

b) City of Revere has sewer and water mains in Beverly Street; and

c) the City of Revere has an 'ownership easement and right' in said Beverly Street."

A trial was held at the Land Court on June 8 and July 2 and 3, 1979 at which a stenographer was appointed to record the testimony with all exhibits introduced in evidence being incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on July 3.

On all the evidence I find and rule as follows: the lots comprising parcels 1 to 3 inclusive are shown in part on a plan entitled "Plan of Oak Island Grove Revere Owned by John E. V. Hayden and John H. Kelley, Trustees," dated September, 1906, by E. G. Mann C. E., recorded with Suffolk Deeds, [Note 1] Book 3230, Page 620 (Exhibit No. 3), on a second plan entitled "Plan of Land at Oak Island Revere, Mass.," dated July 1909, by F. P. Hall, C. E., recorded in Book 3414, Page 77 (Exhibit No. 4), on a third plan entitled "Plan of Land at Oak Island Grove belonging to Walter H. Gleason, Trustee," dated September 1912, by F. P. Hall, (Respondents' Exhibit No. 28), and on a fourth plan entitled "Plan of House Lots at Oak Island Revere," dated May 1913, by F. P. Hall, recorded at the end of Book 3743 (Exhibit No. 5); the three earliest of such plans show Beverly Street running from Oak Island Street to Newport Street, although on the 1912 plan the name of Newport Street has been changed to North Shore Road, whereas the 1913 plan denominates Newport Street as "State Highway;" the records of the City Clerk of the City of Revere include a list of public and private ways in the City of Revere as of January 1, 1946; Beverly Street is listed therein as a private way, laid out in 1911, running from 90 Oak Island Street to 880 North Shore Road with a width of 40 feet and a length of 318 feet (Exhibit No. 9); it has never been accepted by the City of Revere and is characterized by it as a private way; the Commonwealth of Massachusetts in 1934 reconstructed North Shore Road, which work included the installation of a center strip; the plan (Exhibit No. 10) entitled "The Commonwealth of Massachusetts Department of Public Works Record Plan and Profile of State Highway in the City of Revere No. Shore Rd. & Vet's of Foreign Wars Highway" refers to 1913, 1916 and 1932 layouts, a 1934 construction and 1936 reconstruction; a notation on the plan as well as an inspection at the view reveal a guardrail (Exhibit No. 12) along the southeasterly sideline of North Shore Road from Argyle Street northeasterly to a point northeasterly of the intersection of Beverly Street; the level of the state highway is six feet above the level of the petitioner's land and Beverly Street; Newport Street, predecessor to North Shore Road, was at the same grade as Beverly Street; there is a high embankment overgrown with grass and other weeds along the side of North Shore Road; there are one or two overgrown paths through nature's entanglement leading from Beverly Street or adjoining land of the petitioner up to North Shore Road; the paths indicate that occasionally pedestrians have taken a short cut through the underbrush to and from Beverly Street and North Shore Road; it is impossible to drive a car from Beverly Street to the state highway both because of the grade and the guardrail (Exhibits Nos. 12 and 13); as a practical matter Beverly Street dead ends at the embankment for the state highway and has for over forty years; while it would appear from the filed plan that Beverly Street intersects North Shore Road, the grade of the state highway and the guardrail prevent access to it; a water gate, a hydrant and water and sewer pipes have been installed by the City of Revere in Beverly Street; most of the installation appears to have taken place about 1922 (with water service to the houses on Beverly Street connected at varying periods of time); the water gate came somewhat later, probably about 1939; the City has no easement by grant or taking to maintain said pipes and appurtenances, but the petitioner is willing to grant to the City a right to maintain them; wires for electricity, telephone or cablevision run from a pole on North Shore Road to houses at 22 and 24 Beverly Street; the parties have stipulated that the City of Revere held title by virtue of a series of tax takings to parcel 4 and abutting lots 49, 50 to 52 inclusive, part of lot 53, part of lot 50 and lot 501 until the conveyance by it to Peter E. and Julia R. Masella on June 3, 1959 by deed dated June 3, 1959 and recorded in Book 7400, Page 365 (Exhibit No. 2); said deed from the City to Masella did not reserve an easement to maintain said pipes and water gate; both the deed from the City of Revere to Masella and from Masella to the petitioner dated March 22, 1962 and recorded in Book 7633, Page 148 (Exhibit No. 1) describe the granted premises as being situated on the appropriate side of the street in question, for example, "the northerly side of Beverly Street;" there is no description of the granted premises by metes and bounds in either of said deeds; the City has installed both a street sign and a sign bearing the legend "dead end" at or near the junction of Beverly Street and Oak Island Street (Exhibit No. 14); Beverly Street was hardtopped in 1961, and the paving continued approximately ten feet into parcel 4; and the City of Revere accepted G. L. c.40, §6F pertaining to the repair of private ways on September 1, 1953 (Exhibit No. 16).

The burden is on the petitioner to prove his title to parcel 4 free from any rights of others therein. [Note 2] Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). The City argues that it acquired title to the fee in Beverly Street by the takings which it made for the nonpayment of real estate taxes of the lots abutting thereon, and the petitioner has stipulated to this. The City also argues, however, that the deed out from it to Mr. and Mrs. Masella (Exhibit No. 2) did not convey the fee in Beverly Street inasmuch as there are references therein to the "side" of the street. It is well settled in Massachusetts that a description which bounds "by a way" generally carries the fee to the center line thereof if the way belongs to the grantor, Smith v. Haddad, 1 Mass. App. Ct. 637 (1973), affirmed 366 Mass. 106 (1974); there is a strong presumption to this effect grounded upon the intent of the parties, Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 680 (1965), but it is not an absolute rule of law, Beattie v. Swanson, 360 Mass. 50 (1971).

The decisions historically have been ambivalent as to whether the same rule applies when the draftsman runs his course by the "line" of a way. A conveyance of property bounded by the side of the way generally does not convey the fee to the middle of the way. See Casella v. Sneierson, 325 Mass. 85 , 89 (1949); Gray v. Kelley, 194 Mass. 533 , 538 (1907); McKenzie v. Gleason, 184 Mass. 452 , 456-57 (1904). Such a conveyance, however, has sometimes been construed as conveying the fee to the middle of the way. See Brassard v. Flynn, 352 Mass. 185 , 188 (1967); Everett v. Fall River, 189 Mass. 513 (1905); O'Connell v. Bryant, 121 Mass. 557 , 558 (1877); White v. Godfrey, 97 Mass. 472 (1867). Whatever may have been the rule in the past, G. L. c. 183, §58 makes it clear that the so-called "dangling fee" will pass to the grantee unless "the instrument evinces a different intent by an express exception or reservation and not alone by bounding by a sideline." We need not reach the City's position that a 1971 statute cannot be applicable to a deed executed in 1959, for as used in the description in the deeds in the case now before us, the words to which the City points as having been intended as the boundary clearly seem to me to be indicative only of the location of the property and nothing more. O'Connell v. Bryant, supra. Accordingly, I find and rule that title to parcel 4 is in the petitioner.

There remains the further question as to whether the petitioner's title is free from easements. The petitioner during the trial offered to grant to the City of Revere a right to maintain, repair and replace its existing pipes, hydrant and water gate in the locus. I have no doubt that the City has a prescriptive right to such an easement for its use clearly has been "open, notorious, continuous and adverse for a period of twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). G. L. c. 187, §2. If there ever had been a continuing trespass, see Van Szyman v. Auburn, 345 Mass. 444 (1963), it has now ripened into a prescriptive easement. It is true that the City subsequently acquired title through a tax taking to the fee, but a finding of merger is not required as a matter of law. A merger has always been determined to be a matter of intent and where, as here, title to the fee and easement were acquired separately, I hold that there was no merger and that the easement survived the sale. O'Malley v. Commissioner of Public Works of Boston, 340 Mass. 542 , 545-46 (1960). The City relies heavily on the case of Suburban Land Co., Inc. v. Billerica, 314 Mass. 184 , 189 (1943) as establishing its position that fee to Beverly Street was not conveyed. In Suburban Land Co. it was held that a developer which operated a water system beneath a street presumably would have elected to retain title to the fee of the street in selling lots abutting thereon as a matter of convenience in operating the water system. In the present case I find no such intention on behalf of the municipal draftsman to retain the fee for the City. The City's opposition to the petitioner's claim, other than for such easements, is difficult to understand. There is no claim that Beverly Street is a public way, and its private nature was recognized by the City's answer and its position during the trial.

The persons owning land which abutted on Beverly Street originally acquired the right by implication to use the street for access to, and egress from, both Newport Street and Oak Island Street. See Murphy v. Mart Realty of Brockton, Inc., supra at 677-78. Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354. These rights were lost, however, when the Commonwealth constructed North Shore Road. The evidence established that the abutters still sporadically cut through parcel 4 to reach North Shore Road, but this use appears both from the testimony at the trial and the view to be casual and very occasional. The construction of the present state highway in the early 1930's effectively shut off Beverly Street to vehicular traffic. The guardrail was constructed by the Commonwealth and the grade of the street raised some six feet of that above Beverly Street. It is apparent, therefore, that these acts by the sovereign in effect led to a forced abandonment or extinguishment of the right to use this end of the street by the abutters. The case of Brooks v. West Boston Gas Co., 260 Mass. 407 (1927) makes it clear that action by a third party may terminate an easement as well as that taken by the owner of the dominant tenement. See also Central Wharf v. India Wharf, 123 Mass. 567 (1878); Makepeace Bros. v. Barnstable, 292 Mass. 518 , 525 (1936). Abandonment, of course, is a question of intent, and the courts have considered extreme situations such as that illustrated by Parlante v. Brooks, 363 Mass. 879 (1973) and found that the evidence fell short of establishing such an intent. As Parlante makes clear, mere non-user of an easement does not itself constitute abandonment; to the same effect is Desotell v. Szczygiel, 338 Mass. 153 , 158-59 (1958). I find in the present case, however, that the easement was extinguished, because after the action of the Commonwealth, it was incapable of being used for the purpose for which it was created. First National Bank of Boston v. Konner, Mass. (1977). [Note 3]

While at the time that the lots now ovmed by the respondents (other than the City of Revere) were conveyed out, it seems clear that it was the intention of the grantor that the landowners were to have the use of Beverly Street to pass and repass both to Oak Island Street and Newport Street, the Commonwealth effectively ended that intention when it reconstructed North Shore Road. The owners' appurtenant right then became limited to the right to use that portion of Beverly Street running from their respective estates to Oak Island Street. There is no reason to hold that parcel 4 is still subject to an easement for the benefit of the lots abutting on Beverly Street.

Exhibit No. 16 sets forth an ordinance of the City which required approval of the planning board to lay out, relocate, alter or construct a private street or way. The applicability of this provision to the problem before us has not been argued by the City, and it must be deemed waived; however, the public weal does not appear to be adversely affected by terminating Beverly Street at the easterly property line of the petitioner rather than at North Shore Road. In some undeveloped suburban areas the construction of a turnaround at the end of a dead end street would be the usual requirement of a planning board before the approval of a new development under the Subdivision Control Law (G. L. c. 41, §81Q) would be granted. In the present case no argument was made based on planning board requirements, and since the street now ends abruptly, a perpetuation, albeit shortened, does not seem critical.

At the conclusion of the petitioner's evidence the City of Revere moved for a directed verdict which was denied. Subsequently, the City moved to renew its motion for a directed verdict, and this motion is now denied.

The petitioner requested the Court to make certain rulings of law. The petitioner's requests numbers 1, 2, 4, 5, 7, 8 and 9 are hereby granted, and the others denied.

The City of Revere made 118 requests for findings of fact; to the extent that these are consistent with the findings hereinbefore made, they are granted; otherwise such requests are denied as being either inconsistent with the findings which I have made or immaterial. The City has also made 33 requests for rulings of law. I hereby grant requests numbers 1, 2, 3, 4, 5 and 33, and the others are denied.

On all the evidence I find and rule that the petitioner has title to parcel 4, as well as parcels 1, 2 and 3 covered by Case No. 39985, that the petitioner is entitled to a decree registering and confirming his title to parcel 4, subject to an easement of the City of Revere to maintain, repair and replace sewer pipes, water gate and the hydrant now located on parcel 4 and subject also to such matters as may appear in the abstract of title and are not in issue here, but free from any rights on behalf of third parties to use said parcel 4 other than the City's easement.

Decree accordingly.