JOHN A. DEERY, JOANELLA DEERY, EDWARD J. RILEY and MARGARET L. RILEY vs. DAVID V. FOSTER and ROSIE URANGA FOSTER.

By their Amended Complaint, the plaintiffs, John A. Deery and Joanella Deery, seek a determination of the rights of thedefendants, David V. Foster and Rosie Uranga Foster, in Sean's Way, as shown on Land Court Subdivision Plan No. 6656M (Exhibit No. 15), a copy of which is attached here. Said plan has already been reproduced in the case of Marblehead v. Deery, 356 Mass. 532 (1969). The Land Court Engineers have indicated on the plan the location of unregistered Lot 15B referred to in the decision. At the oral arguments on March 30, 1982 scheduled after the transcript of the trial became available, counsel for the plaintiffs presented a motion to intervene as parties plaintiff made by Edward J. Riley and Margaret L. Riley. The defendants not opposing the motion, it is hereby allowed.

The defendants' answer claims the right to use Sean's Way as appurtenant to three parcels of land owned by them in Marblehead, in the County of Essex, and affirmatively alleges unclean hands and estoppel as defenses.

A trial was held at the Land Court on January 27, 1982 at which a stenographer was appointed to record and transcribe the testimony. Five witnesses were called by the plaintiffs. Twenty­eight exhibits were admitted into evidence of which the partiesstipulated to the admission of Exhibits Nos. 1 to 15. Three additional plans and an application for building permit were marked for identification, but excluded by the Court. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence, I find and rule as follows:

1. The plaintiff, John A. Deery, Jr., a real estate attorney employed by a national corporation, acquired title by deed from Naumkeag Trust Company dated November 6, 1959 and registered with the Essex South Registry District of the Land Court as Document No. 91252 (Exhibit No. 18) to three parcels of registered land, one shown as Lot 5 on Land Court Subdivision Plan No. 6656-J (Exhibit No. 13), and the other two as Lots 10 and 11 on Land Court Subdivision Plan No. 6656-L (Exhibit No. 14). The Registry District then issued to Deery Certificate of Title No. 28946 (Exhibit No. 1) which covered said three lots and which is still outstanding as to Lot 13 on the plan mentioned in paragraph 2.

2. Deery then combined said three lots and created a subdivision shown on the ''M" plan. The plan on which the Court's plan was based, was approved by the Marblehead Board of Survey on July 6, 1960 as appears in the decision of the Supreme Judicial Court.

3. Deery and Barbara A. White, who was then the owner of unregistered land shown on a plan entitled "Subdivision of Land of B. White", dated January 31, 1975 by W. T. Foss Co., recorded with Essex South Registry of Deeds as Plan No. 44 of 1975 (Exhibit No. 12) together also with unregistered Lot 15B as shown on a plan entitled "Land of White Harbor Avenue and Sean's Way", dated March 11, 1960 by W. T. Foss Co., recorded with said Deeds as Plan No. 123 of 1960 (Exhibit No. 11), entered into an exchange of land.

4. Deery conveyed to White Lot 15A as shown on the ''M" plan, title to which is registered by deed dated January 5, 1961 (Exhibit No. 5). The deed contained the following express grant of easement:

"There is also hereby granted the rght and easement to use Sean's Way as shown on said plan, insofar as it may adjoin the granted premises or be situated between the granted premises and Harbor Avenue, in common with others entitled thereto for the purpose of passing and repassing on foot and by vehicle to Harbor Avenue, all as appurtenant to all land now owned by the Grantee situated in said Marblehead."

The deed was registered on June 9, 1964 and Certificate of Title No. 34053 was issued to White covering said Lot 15A.

5. By deed dated May 15, 1964 and recorded with said Deeds on June 9, 1964; White conveyed to Deery said Lot 15B (Exhibit No. 22), title to which is unregistered.

6. It is unclear from the evidence whether Exhibit No. 5 was delivered close to the date which it bears of January 5, 1961 or to the date of its registration, June 9, 1964 (G. L. c. 183 §5). It is clear from the evidence that the consideration for each deed was the mutual exchange, and that was not completed until 1964. The late registration may be an explanation for the fact that Deery granted mortgages to Salem Savings Bank and Naumkeag Trust Company, both dated May 16, 1961 and registered on said date which included Lot 15A as a portion of the mortgaged premises even though said mortgages were executed after the date of the deed to White. Accordingly, it seems likely that the deed to White was delivered just prior to its registration and that White did not keep it off the records unreasonably.

7. Prior to the registration of the White deed, Deery conveyed out Lot 12 on the "M" plan to Michael Chitro by deed dated October 10, 1960 and registered on October 21, 1960 as document No. 94840. The deed (Exhibit No. 2) bounded by the line of Harbor Avenue and ''by Sean's Way" as did Certificate of Title No. 29948 (Exhibit No. 3) issued to Chitro and now cancelled. The certificate makes no mention of title being subject to the rights of all entitled to Sean's Way. Lot 12 through a series of mesne conveyances is now owned by Owen E. Hearty and Eileen B. Hearty, under Certificate of Title No. 38460 (Exhibit No. 4).

8. The outstanding certificate of Title No. 38460 covering said Lot 12 also bounds by Sean's Way and contains no express mention of rights therein.

9. Prior to the registration of the deed to White, Deery conveyed Lots 14 and 15 on the ''M" plan to Michael Chitro (Exhibit No. 7) by deed dated February 19, 1962 and registered as document No. 100241. Chitro subsequently conveyed Lot 15 to the plaintiffs Riley by deed dated April 29, 1963 (Exhibit No. 19) who hold title thereto under Certificate of Title No. 32647 dated April 29, 1963. (Exhibit No. 9). Outstanding Certificate of Title No. 49142, standing in the name of Nechal V. Tejwani covers Lot 14 (Exhibit No. 8).

10. The record does not so indicate, but it would appear tha t the plaintiffs Riley now are the record owners of Lot 15B.

11. In 1976 Orrin P. Rosenberg, the then Chief Title Examiner of the Land Court, responded by letter (Exhibit No. 27) to an inquiry from the registered land office in Salem relative to Lot 15A described in White's Certificate of Title No. 34053 as follows:

"It was conveyed to her by John A. Deery, Jr., and purports to convey to Mrs. White a right of way in Sean's Way for the benefit of all the land now owned by the grantee. Since Deery had previously conveyed a fee portion of the way in the aforesaid Sean's Way, he can not grant that appurtenant right to Mrs. White, and she can not have it. She has a right by implication in the way appurtenant only to Lot 15A.

This right can not appear in her certificate unless she has a grant from all the abutters of Sean's Way, and you are perfectly right in not including that right in her certificate."

12. At the trial, Mr. Rosenberg testified that in his opinion, the White Certificate of Title was limited to an implied right, as appurtenant to Lot 15A, to use Sean 's Way since he construed the deed from Deery to Chitro conveying Lot 12 as conveying the entire fee in Sean's Way adjacent to Lot 12 to the grantee.

13. Since Mr. Rosenberg's 1976 letter, the present owners of Lot 12, Owen B. Hearty, et ux, have conveyed to the defendants an easement, as appurtenant to Lots A, B and 15A as shown in the 1975 plan referred to in paragraph 3, to use Sean's Way for all purposes for which ways are commonly used in the Town of Marblehead.

14. The defendants are the present owners of said Lots A, B and 15A and currently are constructing a home thereon. The deed to the defendants is from Barbara E. White, is dated May 19, 1980, is recorded in Book 6702, Page 779 and is registered as document No. 174466. The two unregistered lots, A and B, are shown on a plan entitled "Subdivision of Land of B. White", dated January 31, 1975 by W. T. Foss Co., and recorded as plan No. 44 of 1975 in Book 6127, Page 1 (Exhibit No. 12) involving the rights of the parties. The defendants' Certificate of Title covering Lot 15A is No. 49895.

15. The twenty foot way referred to in the documents is not co-extensive with Sean's Way. It originally was part of Lot 5 on Land Court Subdivision Plan No. 6656K for the benefit of Lot 10 on the "L" plan. In an appropriate proceeding, it might be possible to amend the present certificates to eliminate rights which have been superceded.

The plaintiffs seek to have this Court determine that the defendants only right to use Sean's Way is as appurtenant to Lot 15A, a small triangular parcel; they contend that the defendants cannot drive onto their adjoining unregistered land from Lot 15A, that construction vehicles cannot use Sean's Way to reach the defendants' unregistered Lot A, and that the defendants can use Sean's Way only for ingress to and egress from said Lot 15A. They seek to have this Court determine the rights and obligations of the parties with respect to the use of Sean's Way. The defendants claim the opposite to be the case.

The case, therefore, presents four questions for decision:

(a) the ownership of the fee of Sean's Way adjacent to Lot 12;

(b) the effect of the grant by Deery to the defendants;

(c) the necessity that the owners of Lots 14 and 15 join in any grant to owners of Lots without the subdivision before the latter can use Sean's Way; and

(d) the extent of the right, if any, of the defendants to use said way, including any right to use utilities.

It is elementary law that the owners of registered land hold title subject only to the matters set forth in their certificates of title and those enumerated in Chapter 185 §46. Nonetheless, the same rules of construction are employed in determining the legal consequences of language used in decrees of this court, deeds of registered land or certificates of title as in comparable situations concerning land the title to which is unregistered. As was said in Goldstein v. Beal, 317 Mass. 750 (1945) at page 755:

"In general the same principles that govern the effect to be given a plan in case of unregistered land apply where the land is registered. Dubinsky v. Cama, 261 Mass. 47 , 53. These principles are now well established. The difficulty is in applying them to a particular set of facts."

In construing a description which bounds "by" a privae way without an express reservation of the fee, there is a strong presumption that the mention of a way as a boundary in a conveyance of land is presumed to mean the middle of the way if the way belongs to the grantor. Smith v. Hadad, 366 Mass. 106 , 108 (1974) S.C. 1 Mass. App. Ct. 637 (1973) Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679-681 (1965), and cases cited. Brassard v. Flynn, 352 Mass. 185 , 188 (1967). Beattie v. Swanson, 360 Mass. 59 , 52 (1971). Such a grant by implication includes the right to use the way, and the conveyance of the fee to one-half of the way is subject to the rights of others owning lots on the plan to use it.

The factors relied on by the plaintiff Deery in our case to show he retained the fee are very similar to those in Murphy and in Lemay v. Furtado, 182 Mass. 280 (1902), cited therein. There, as here, the grantor claimed to have continued to have paid the taxes, there was reliance on the length of frontage on an abutting street which did not carry to the middle of the way, there was testimony by the grantor that there was no intention to convey to the center of the way. Even though the basic question is to ascertain the intent of the parties as manifested by the written instrument and the attendant circumstances, the subsequent unilateral testimony of one's subjective intent is entitled to little weight. If it were not for the absence of necessary parties, the Heartys, I would find and rule that the presumption has not been overcome and title to the middle of Sean's Way adjacent to Lot 12 passed to Chitro and to his successors in title. Conversely, I would find that Deery did retain title to the easterly half of the fee in Sean's Way between the northerly tip of Lot 15A and Harbor Avenue. Today the entire fee adjacent to Lot 12 would have been conveyed with the lot as provided in General Laws, Chapter 183 Section 58. [Note 1] However, St. 1971, c. 684 which introduced the dangling fee legislation to our jurisdiction provided that it was not to operate retroactively so far as registered land was concerned. [Note 2] Thus, I would hold that Deery, if the question were open, does retain title to a portion of the fee as noted above.

However, I feel it inappropriate to rule definitively on title to the fee in Sean's Way in the present case. Owen E. and Eileen B. Hearty are not parties to this litigation and a determination binding as to them as to the state of the title to Sean's Way cannot now be made without their presence. However, it makes no difference to the rights of the defendants whether the Heartys, Deery or all of them own the fee. The defendants have an easement from all of them of the right to use Sean's Way, and it ill becomes the plaintiff Deery to dispute his own grant. Indeed, I hold that the conveyance of Lot 15A to the defendants' predecessor and Lot 15B to Deery were one transaction, that White acted in reliance on the conveyance to her and that Deery is estopped in this proceeding to question it. The plaintiffs Riley may fall somewhat into the same category inasmuch as the addition of Lot 15B to the property which they presently own apparently created a "buildable" lot within the meaning of the Marblehead zoning by-law, but in the absence of evidence as to this zoning requirement, I make no ruling thereon. The fact that the Certificates of Title are silent both as to the grant of rights in Sean's Way and to the fact that title to the fee therein is subject to such rights is immaterial. Implication of law governs.

The real question of substance is whether the grant by Deery (and the Heartys) of the right to use Sean's Way as appurtenant to land without the subdivision is effective as against the owners of Lots 14 and 15 shown on the ''M" plan. [Note 3] It is well settled, of course, that the owner of the fee which is subject to an easement retains all rights therein not inconsistent with the grant of the easement. Healey v. Smith Carriage Co., 265 Mass. 203 (1928). Western Mass. Electric Co. v. Sambo's of Mass, Inc., Mass. App. Ct. 1979) [Note 4] A second and related principle is that the usual easement is not exclusive. An application of these principles in the present case leads to the conclusion that Deery and the Heartys having title to the fee of the relevant part of Sean's Way had the right to give an easement of use as appurtenant to land without the subdivision. Particularly is this true in the present case where any increase in traffic engendered thereby will not pass by the homes of others with the right to use Sean's Way and any duty of repair fails where the law leaves it, that is, upon those making use of Sean's Way. Both Greene v. Canny, 137 Mass. 64 (1884) and Butler v. Haley Greystone Corporation, 347 Mass. 478 (1964) S.C. 352 Mass. 252 (1967) are distinguishable. In the present case, there is no reason not to give full effect to Deery's grant to White. This is in accordance with the language of Justie Cutter in Marblehead v. Deery, supra, where he said at page 537:

"The new subdivision in 1960, the approval of Sean's Way at Deery's request, and the subsequent conveyances of lots 11 and 12 created a new relationship of Deery's dwelling to the neighboring ways, so that the proximity of the house to a new way open to public use (underlining added) (a way within the definition of "street" in the by-law) materially changed the use of the premises to one now not in conformity with the by-law. In 1960 the use of the house was, and for some time had been, in conformity with the by-law. It was not a nonconforming use. It has now become an unprotected nonconforming use. See Howland v. Acting Superintendant of Bldgs. & Inspector of Bldgs. of Cambridge, 328 Mass. 155 , 159-160, Alley v. Building Inspector of Danvers, 354 Mass. 618 ."

In the recent case of Myers v. Salin, 13 Mass. App. Ct. 127 (1982), there was a similar factual situation with a claim made and rejected as to overburdening the easement. There it was said:

"There is no evidence that the plaintiff Dow has placed any undue burden on the easements, despite the fact that he lives in a house on a parcel adjacent to the narrow parcel to which the easements created by the Whittington deeds are appurtenant. Compare Brassard v. Flynn, 352 Mass. 185 , 189-190 (1967). It will be time enough to consider whether he in fact overburdens the easement when and if he makes a more significant or any unreasonable use of the beach rights or of the extension of Bradford Road."

The defendants admit that construction vehicles have used Sean's Way to reach their land, conduct about which the plaintiffs complain. The defendants also admit that there is access from Harbor Avenue, but this is relevant only in cases of an easement by necessity not claimed by the defendants and is of no moment here. The Deery easement is of the right to pass and repass, by foot and by vehicle, that given by the Heartys is to use for all purposes. Use for a limited period of time by heavy vehicles is not proscribed as an overburdening under the circumstances here. See Pion v. Dwight, Mass. App. Ct. (1981). [Note 5] Any repairs necessitated by such use, of course, would have to be made by the defendants at their expense.

The defendants seek to have this court rule that they have a right to tie into the utilities located in Sean's Way. G. L. c. 187 §5 gives the owner of real estate abutting on a private way who has an existing right of ingress and egress upon such way the right by implication to place, install or construct in, on, along, under and upon said way, pipes, conducts manholes and other appurtenances necessary for the transmission of gas, electricity, telephone and water service subject to certain safeguards as spelled out in the statute. In Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., Mass. (1980) [Note 6] where the retrospective operation of the statute was upheld, Justice Abrams strongly suggested that the common law rule as to use of a way for underground utilities may no longer be suitable to present day conditions. I need not reach the point not reached by Justice Abrams in the present case, however, for the rights of the defendant fall within the plain language of section 5. I, therefore, find and rule that the defendants may use the way for the installation of the services enumerated in the statute and subject to the provisions thereof. The defendants have alleged that there are utilities already situated in Sean's Way and seek the right to tie into them. If such utilities and their appurtenances were installed by or for the account of Deery and at his expense, the defendants cannot tie into them without Deery's consent. Absent that the defendants will have to make arrangements with the appropriate providers for the installation of conduits to serve their land.

The plaintiffs filed a request for eighteen findings of fact. I grant Requests No. 2, 3, 4, 5, 6, 9, 15, and 16; and I deny Requests No. 7, 8, 10, 11, 12, 13, 14 and 18. Request No. 1 as modified to accord with the decision in Marblehead v. Deery is granted. There is insufficient evidence to rule on Request No. 17. The plaintiffs also requested nineteen rulings of law. Requests No. 2, 4, 5, 6, 14, and 15 are granted, and the remainder are denied.

Therefore, on all the evidence, I find and rule as follows: there is appurtenant to the land of the defendants shown as Lot 15A on Land Court Subdivision Plan No. 6656M and as Lots A and B on Exhibit No. 12, the right to use Sean's Way on the "M" plan for access to and egress from said land and Harbor Avenue, including the right to install the services enumerated in G. L. c. 187 §5 and subject to the provisions thereof. However, the defendants cannot tie into the existing pipes and conduits without the consent of Deery, but may install their own pipes, conduits and appurtenances therein. I have thought it appropriate on this record to define the rights of the defendants in terms of the Deery rather than the Hearty grant.

Judgment accordingly.

exhibit 1