NORTH ATTLEBOROUGH INDUSTRIAL DEVELOPMENT CORPORATION, vs. VIRGINIA K. DOYLE, DONALD DOYLE, BERNARD BROWN, EDNA I. BROWN, COMMONWEALTH OF MASSACHUSETTS, MASSACHUSETTS ELECTRIC COMPANY and NEW ENGLAND POWER COMPANY.

On June 22, 1979 North Attleborough Industrial Development Corporation ("NAIDC") filed a petition with the Land Court to confirm its title to the land comprising Phase Two of a proposed industrial development in North Attleborough in the County of Bristol. An answer was filed by the Commonwealth of Massachusetts and by the respondents, Donald Doyle and Virginia K. Doyle. The Town of North Attleborough also appeared and answered, but it has since withdrawn. Massachusetts Electric Company and New England Power Company appeared but only to see the final decree.

A trial was held at the Land Court on November 7, 1980 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence at the trial were incorporated herein for the purpose of any appeal.

At the trial the sole issue in dispute was the right, as appurtenant to the land marked "Donald & Virginia K. Doyle, Plat 36, Lot 1" as shown on sheet 4 of the filed plan, to cross Parcel 8, as shown on said plan, to reach the cart path shown thereon and to use said cart path for access to and egress from the premises and Towne Street, a public way, shown on the key plan (sheet 1 of the filed plan). The filed plan, consisting of five sheets, was marked Exhibit No. 1 at the trial. In their answer the Doyles raised several objections to the confirmation proceedings, but at the trial it was agreed that the only issue remaining in the case was whether these respondents had a right of way across land of the petitioner to which any decree should be subject. The Doyle title was not an issue, and the Court makes no finding as to it.

Margaret M. Cronin, a Land Court examiner who had prepared the abstract (Exhibit No. 2), testified at the trial. In the abstract which she prepared and submitted to the Court she reported no right of way of record as appurtenant to the Doyle premises; after the present issue arose, Miss Cronin testified that she did additional work at the Registry of Deeds. From the records which predated her original work she then found that the land claimed by the Doyles as well as the adjoining land of the petitioner was owned at one time by Homer Daggett and land to the south thereof by one Harvey Daggett. Subsequently the Daggetts became insolvent, and their assignees sold several parcels of land including the Doyle piece. [Note 1] The language of the deeds conveying such lots is not crystal clear. The deed from the assignees to one Jackson, a predecessor in title to the Doyles, was dated February 21, 1852 but not recorded until October 11, 1859 in Book 249 at Page 87. [Note 2] In this deed appears the recital "The said premises being hereby subjected to right of way in the proprietors of lot next east of this sold by us to Thomas Towne to and from the said highway in the usual cart way." By a deed also dated February 21, 1853 but recorded somewhat more expeditiously on July 11, 1854 in Book 217, Page 127, the assignees sold to Harvey Daggett a portion of Parcel 8. This parcel abuts the Doyle piece on the west, and it is across it that the respondents Doyle claim a right of way. The deed out to Daggett indeed recites "The said premises being subject to a right of way in the usual cart road for the owners of any of the lots sold by us out of the real estate adjoining of the said Homer M. Daggett and for their heirs and assigns." The Doyles would fall into this category. The Land Court examiner further testified that the parcel shown on Chalk D, a plan entitled "North Attleboro Industrial Park, Phase 2," as belonging to the "YMCA" also was sold by the assignees to a Thomas Towne subject to and with the benefit of the right of way in the usual cart path. The "Y" parcel immediately abuts the Doyle piece to the east. The parcel adjoining the "YMCA" land on the east, shown on Chalk D as belonging to Frederick C. and Virginia M. Graham, was sold subject to and with the benefit of a right of way to the mill road, now known as Towne Street, and a parcel shown on Chalk D as belonging to Susan Gardner and Edwin Cummings, Jr. was sold subject to and with the benefit of a right of way in the usual cart path.

It is apparent from the language of the deeds to which the attention of the Court was directed at the hearing that at the time of the sale by the assignees there were existing cart roads on the ground which crossed the land now of the Doyles and abutters to the east and west and presumably joined a cart path in the general location of that in existence today on land now of the petitioner to the west of the Doyle premises.

At the trial the petitioner did not introduce copies of the deeds which the Land Court examiner located in doing her additional title work, and the respondent Doyles were content to rely on the testimony of Mr. Doyle as to the route by which access had been had to the Doyle parcel. In the brief which was filed with the Court on behalf of the respondent Doyles two of the deeds referred to above were attached for the Court's assistance, but they were not introduced into evidence. However, once a petitioner files a plan with the Court on which a cart path appears, then the petitioner, in this case NAIDC, has the burden of proving that no rights presently exist therein and that any rights of record or otherwise had been abandoned. This burden has not been met. Conversely, the burden would seem to rest with the respondents Doyle to establish access from the Doyle parcel to the cart path shown on the plan. However, in considering the existence of such rights, the Court is free to consider all evidence introduced, whatever its source; even without the written instruments before the Court the testimony of the Land Court examiner is very helpful in determining whether the petitioner's predecessors in title had granted any rights of way. While the deeds referred to by the Land Court examiner in her testimony were inconsistent in their references to the rights of way, sometimes speaking in terms of a parcel only being subject to a way, and in other instruments referring also "to the benefit" thereof, it seems only logical to the Court that viewed as an entirety the grantors intended that the parcels conveyed out were to have the benefit of any way crossing each lot and those in proximity thereto as well as being subject thereto. The deeds out therefore are to be construed together in this respect.

In addition to the records which are before it the Court took a view of the premises in the presence of counsel on December 30, 1980. NAIDC already has constructed a new road which does not show on the filed plan but which the Court followed in reaching the premises from Wendy Drive, a public way. The southwesterly corner of the Doyle property is about two hundred feet from the new road and its northerly line is approximately the same distance from the southerly line of the new road. It is approximately 155 feet from the southwesterly corner of the Doyle land to the cart path shown on the filed plan. At the view it was apparent that there was a well defined cart path running generally in a northwesterly-southeasterly direction from Landry Avenue, a public way which is only now being constructed, and terminating at a house lot which is on the northerly side of said Towne Street, a public way which separates Phase One and Phase Two of the industrial park and has been cut off by Interstate Route 95 at its easterly end. There is no way of establishing the age of the cart path or whether it in fact is the one referred to in the chain of title. It appears to have been blocked recently in certain sections by the industrial development. It is approximately eight to ten feet wide and is still readily observable on the ground.

There is no indication on the ground, however, as to where access from the Doyle premises and lots to the east thereof cross Parcel 8 to pick up the cart path. Since at the present time there is no clue from the situation on the ground as to where access might have been located, it seems logical to place it at a point running from the southwesterly corner of the Doyle lot in a straight line to the cart path. This is where Mr. Doyle testified access had been had to the Doyle parcel. This would be the closest point to the present cart path and has been cleared to some extent by the surveyors in preparing various engineering data for the petitioner. The right of way from the Doyle premises to the cart path is determined to be ten feet wide and is to run parallel to the southerly line of Parcel 8 bounded southerly thereon to the cart path. At this point the cart path is very close to the new road. The cart path having been blocked by the petitioner and ultimately by a third party, the petitioner has, in effect, relocated the original way which was never defined clearly in the documents by the construction of the new road. Accordingly, I find and rule on all the evidence that the right appurtenant to land of the respondents Doyle to pass and repass, on foot and in vehicles, which by virtue of G. L. c. 187, §5 has become a general right of way for all purposes, is to run westerly from the southwesterly corner of the Doyle premises adjoining the southerly line of Parcel 8, and ten feet in width, to the cart path and then at the election of the petitioner either is to continue westerly to the new road or is to follow the cart path in a southwesterly direction until it intersects the new road. A decree may be entered confirming the petitioner's title to the land shown on the filed plan as of 10:00 A.M. on the twenty-eighth day of September, 1979 subject to said right of way and to such other matters as appear in the abstract and are not in issue here.

Decree accordingly.