CHARLES B. LOCKWOOD vs. MARTIN D. MALNATI, SR., IRENE MALNATI, MARTIN D. MALNATI, JR., FRANCIS D. MALNATI and JOESPH A. MALNATI.

The Plaintiff brought this action under the provisions of General Laws Chapter 231A and Chapter 240, §§6-10 seeking 1) a declaratory judgment as to the ownership of certain land located in Richmond, Berkshire County, Massachusetts and 2) injunctive relief restraining the defendants, their agents, servants, employees, and persons under their control from trespassing on or over said land. Plaintiff claims title to the disputed land by conveyance from the Town of Richmond.

By way of answer defendants claim that the Town conveyed the disputed property to plaintiff and that defendants have acquired title to the disputed property by adverse possession.

A hearing on the matter was held on April 16, 1981 in Pittsfield and a view was taken on the same day. Six exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

The Court finds the following facts:

1. The parties have stipulated that Swamp Road [Note 1] was laid out in 1827 in part as shown on Appendix A attached hereto, [Note 2] it in turn being Exhibit 4 herein. It intersected an ancient road shown as March Hare Road on Appendix A in a "V" type intersection. It was further agreed that plaintiff's surveyor would testify that the 1827 layout through the swamp which became "Old Swamp Road" was laid out entirely over land owned by plaintiff's predecessor in title.

2. In February of 1958 and thereafter plaintiff Lockwood was the owner of land in the Town of Richmond, Berkshire County, Massachusetts both east and west of Swamp Road as shown on Appendix A. Plaintiff's land to the north is bounded by land of defendants' predecessors in title and shown as "Martin D. Malnati" on Appendix A.

3. In February of 1958 and thereafter the land marked "Martin D. Malnati" on Appendix A was owned by Martin D. Malnati and Irene Malnati, defendants' predecessors in title and shown as Lot B on Land Court Plan 8148A under Transfer Certificate of Title No. 2160. Parcel B is bounded in the certificate of title as "Easterly by a road 1285.08 feet." This road is March Hare Road and its intersection with Swamp Road as shown on Appendix A. (accent added).

4. At the annual town meeting of the Town of Richmond held on February 17, 1958 Article 17 of the warrant was approved by the voters. This article read "To see if the town will vote to abandon roads discontinued as a result of the relocation of certain sections of Swamp, Summitt and Canaan roads and to authorize the selectmen to give deeds to the landowners adjoining these sections conveying to them the abandoned portions of the road adjoining their property." (Exhibit 1)

5. The County Commissioners evidently laid out Swamp Road in August 1958 as shown on a plan not in evidence but attached to the complaint as Exhibit 3 thereto, filed with both the Clerk of Courts for Berkshire County and the Town Clerk of Richmond. A portion of this plan as laid out is the basis for the sketch shown as Appendix A. It shows Swamp Road intersecting with March Hare Road in a "T" type intersection.

6. By deed dated November 27, 1959 (Exhibit 2) the Town of Richmond purported to convey to plaintiff "A parcel...,located on the westerly side of Swamp Road...as presently located and shown on a plan hereinafter set forth. Said parcel is bounded on the East by the Westerly line of Swamp Road as presently located and on the West by other land of the Grantee herein. Meaning and intending to convey..."all of that portion of Swamp Road which was abandoned by the Grantor herein as shown on a plan..." (sic) The plan referred to is that set forth in paragraph 5 herein. The deed is limited to the abandoned portion of Swamp Road only and not to March Hare Road. The parcel is shown as cross-hatched on Appendix A.

7. By deed dated May 2, 1972, recorded in the Berkshire Middle District Registry of Deeds, Book 923, Page 311, Martin D. and Irene Malnati of Richmond, Berkshire County, Massachusetts, conveyed certain land to their children, the present defendants, Martin D. Malnati, Jr., Francis D. Malnati, and Joseph A. Malnati. This deed included unregistered land and registered land shown as Parcel B, on Land Court Plan 8148A, less that portion heretofore conveyed and of no relevance herein shown on Land Court Plan 8148B. The deed was recorded but not registered as it should have been. This omission was rectified with its registration on May 28, 1981 and the issuance of Transfer Certificate of Title 5273.

8. Chronologically, the next event in the chain of events was the recording by plaintiff on April 27, 1977 of the eighteen year old deed to him by the Town of Richmond, dated November 28, 1959, Exhibit 2. (See paragraph 6 herein).

9. On December 20, 1977 the plaintiff posted and served on defendant Martin Malnati a notice under General Laws Chapter 187, §3 to prevent the acquisition of easements by prescription or otherwise over the land abandoned by the Town due to the relocation of Swamp Road and claimed to be owned by him under the deed. (Exhibit 2).

The plaintiff specifically makes three claims to the area shown on Appendix A abandoned by the town in the relocation. Plaintiff first claims to be the owner in fee simple of "the easterly one-half of the former layout of said roads northerly of said southerly line of the defendants." Presumably this is the area shown on Appendix A outlined in red. The second claim is to "the entire former layout of said Swamp Road northerly of said southerly line of defendants Malnati." This is outlined in blue on Apendix A. The third claim is to the ownership of the former layout of March Hare Road and Swamp Road southerly of the southerly line of defendants Malnati extended easterly. No issue as to the plaintiff's ownership of this third area has been raised herein. No issue has likewise been raised as to the validity of the abandonment herein and the Court presumes it was properly done.

The plaintiff claims ownership of the three areas under its deed from the town of Richmond set forth in paragraph 6 herein. The defendants argue that the town by its vote on February 18, 1958 authorized the conveyance of only "portions of the road adjoining their property" to abutting owners and that the deed to the plaintiff contains additional areas not so authorized.

There is no evidence that the town ever had title to the fee of March Hare Road and Swamp Road. The parties agreed that if the plaintiff's surveyor had testified he would state that the 1827 layout of Swamp Road was over land of plaintiff's predecessor in title. This would indicate ownership of the plaintiff in the areas marked 1 and 2 on Appendix A. In addition, the plaintiff argues that the petition of defendants' predecessors in title to register the Malnati parcel in Land Court Case 8148 described the parcel to be registered as running by the "line" of the way and that as a result only the area to the line of the way was registered, not that portion to the middle of the way. However, in refutation of this claim, the Court would point out that under paragraph 7 of the petition in Land Court Case 8148 petitioners in fact claimed to own in fee simple to the middle line of the public way; that the judge's order bound the parcel "by" the way; that the description of the premises in the decree and in the plaintiff's predecessors' original certificate of title, No. 537 likewise bounds this parcel "by" the way. When land is described as being bound "by" a way the law presumes it to be the intention of the grantor to convey the fee of the land to the middle line of the way. Knapp v. Reynolds, 326 Mass. 737 (1951). Thus, the Land Court in Land Court Case 8148 determined that defendants Malnatis' predecessors' title extended to the mid-line of March Hare Road and Swamp Road at their intersection as shown as Lots 1, 2 and 3 on Appendix A. Since the present defendants are successors in title to the petitioners in the registration case, they would have title here. This would refute the claim of plaintiff to the title to the mid-line of March Hare Road and the intersection of Swamp Road under its deed, as title thereto had already been determined by the Land Court.

The Court thus finds and rules that the Town of Richmond had at most an easement in March Hare Road and Swamp Road. The fee to the westerly one-half of March Hare Road and the north- westerly portion of Swamp Road and its intersection with March Hare Road was in the defendants' predecessors in title, subject to the rights of the public in and over the same and with the right in them to use the remaining one-half of the road in conjunction with the public. This was the situation as it prevailed at the time of the abandonment in August, 1958.

The town voted on February 17, 1958 to deed land to be abandoned by the relocation of Swamp Road, among others to the adjoining owners. By its deed dated November 28, 1959 the town attempted to do this. The town however had at best only an easement over March Hare Road and Swamp Road at their intersection. When it abandoned its easement it had nothing left to convey as the title remained where it was - in the defendants' predecessors in title.

The deed from the town (paragraph 6 herein) purported to convey only that portion of Swamp Road that was abandoned. This is also all that was authorized to be conveyed by the town meeting vote (See paragraph 4). March Hare Road was mentioned neither in the abandonment nor in the vote of the town meeting authorizing a conveyance. But it matters not because actually after the abandonment of the easement by the town it had nothing to convey.

The Court rules that the defendants being the successors in title to the title holders in 1958, hold title to the whole of the westerly one-half of March Hare Road being Lots 1 and 3 on Appendix A and to the small portion of Swamp Road shown marked as 2 thereon.

There is thus no reason to consider further any rights of defendants so far as rights of way to and from the southwesterly portion of their land as shown on Appendix A. Owning title they of course had and have a perfect right to use the land in any way they wish.

The Court makes no ruling on the question raised by defendants of the deed being defective because the town officials exceeded their authority in its drafting.

Judgment accordingly.

exhibit 1