ENTERPRISE PUBLISHING COMPANY vs. ABDELLA MAREB.

Plaintiff's complaint and defendant's answer thereto both seek declaratory and injunctive relief and damages against the other regarding title to and use of Joslyn's Lane in the City of Brockton, Massachusetts. The case came on to be heard and was submitted to the Court by both parties on May 6, 1982, on an agreed stipulation of facts together with the submission of twenty-seven exhibits, all of which are incorporated herein for the purpose of any appeal. The Court took the matter under advisement after hearing oral arguments.

The issues to be resolved are the ownership and rights of the parties in and to and in and over Parcel E and E1 on Appendix A attached hereto. [Note 1]

A photograph underlined in red introduced into evidence as Exhibit XXVIII shows the problems better than words can describe them. As may be seen on this photograph the defendant has developed Lot B on Appendix A as a parking lot, with the paved parking area being set off into parking places for automobiles. The photograph shows Joslyn's Lane outlined in red bordering the Enterprise building to its north. Joslyn's Lane shown as E1 and E on Appendix A is 20 feet in width. The northern ten feet is shown on the photograph bordering the Enterprise building completely unobstructed. The southern ten feet shown as E1 on Appendix A is shown on the photo as completely landscaped and part of a park established by the redevelopment authority. The southern ten feet shown as E to the north of Parcel B on Appendix A is shown with cement parking blocks along the mid-line of the way and with the northerly third of some fifteen parking spaces extending into the area. To the west an area is delineated in red corresponding in general to the area set forth as "Right of Way" on Appendix A.

The Court finds the facts to be as follows:

1. The Enterprise Publishing Company of Massachusetts, Plaintiff in this action, is a corporation duly established under the laws of the Commonwealth of Massachusetts with its principal place of business at 60 Main Street, Brockton, Massachusetts.

2. Plaintiff is the owner in fee of Parcel A on Appendix A at 60 Main Street, Brockton, Plymouth County, Massachusetts. Plaintiff's title came from a deed from the Enterprise Publishing Company, a Delaware corporation, to it dated March 17, 1915, and recorded at the Registry of Deeds in Plymouth (hereinafter "the Registry") in Book 1217, Page 127 (Exhibit I). [Note 2]

3. Defendant, Abdella Mareb, is an individual who owns three contiguous parcels of land located to the south of Plaintiff's land. Parcel "B", as shown on the attached Appendix, was purchased from the Brockton Redevelopment Authority by deed dated March 31, 1981, and recorded in Book 4975, Page 67 (Exhibit II). Parcel "C", as shown on the attached Appendix, was purchased on December 5, 1978, from David P. Schultz and Harold L. Schultz and is recorded in Book 4596, Page 243 (Exhibit III). Parcel "D", as shown on the attached Appendix, was purchased by two deeds, one dated July 5, 1968, and recorded in Book 3523, Page 257 (Exhibit IV), and the other dated April 14, 1969, and recorded in Book 3523, Page 258 (Exhibit V).

4. Between and adjacent to the land of the parties is a parcel of land twenty (20) feet in width and commonly known as Joslyn's Lane. The lane is listed by the City of Brockton Department of Engineering as a private way, and there never have been formal proceedings to make it a public way. In its current configuration it is shown as Parcel "E" on the attached Appendix.

5. Plaintiff claims title in fee to Joslyn's Lane under the following chain of title:

a. Deed of Elisha Joslyn to Theodore S. Bailey dated May 1, 1889 and recorded in Book 579, Page 103 (Exhibit VI).

b. Deed of Theodore S. Bailey to Francis E. White dated May 7, 1890 and recorded in Book 597, Page 448 (Exhibit VII).

c. Deed of Francis E. White to Thomas Tripp dated November 1, 1893 and recorded in Book 659, Page 335 (Exhibit VIII).

d. Mortgage deed of Thomas Tripp to Francis E. White dated November 1, 1893 and recorded in Book 662, Page 506, the mortgage then being assigned to Walter E. Trufant (Exhibit IX).

e. Foreclosure deed to Walter E. Trufant dated June 29, 1898 and recorded in Book 765, Page 359 (Exhibit X).

f. Deed of Walter E. Trufant to Enterprise Publishing Company dated February 11, 1909 and recorded in Book 1015, Page 394 (Exhibit XI).

g. Deed of Enterprise Publishing Company to Plaintiff dated March 17, 1915 and recorded in Book 1217, Page 127 (Exhibit I). (See paragraph 2 herein.)

6. The City of Brockton determined that this general downtown area was substandard and/or decadent and became interested in the redevelopment of certain land. The City proposed a project under the Urban Renewal statutes of this state, Chapter 121B, known as the Mainbrook Project.

7. On March 8, 1979, the Brockton Redevelopment Authority, acting under the Urban Renewal statutes, took a parcel of land known as Plot 1 by an Order of Taking recorded at the Registry in Book 4642, Page 117. (Exhibit XII).

8. On July 13, 1978, the Brockton Redevelopment Authority, acting under the Urban Renewal statutes, took another parcel of land known as Plot 354 by an Order of Taking recorded at the Registry in Book 4493, Page 281. (Exhibit XIII).

9. In furtherance of the Mainbrook Project, the City and the Brockton Redevelopment Authority purported to acquire an area of approximately five hundred thirty (530) square feet from the Plaintiff by deed dated October 3, l980, and recorded in Book 4888, Page 311, (Exhibit XIV), said parcel being the southern half of Joslyn's Lane, from Main Street east a distance of fifty-two and 57/100 (52.57) feet. The City and the Authority then set aside and dedicated as a memorial park part of the land acquired by the taking dated July 13, 1978, and all of the land deeded by the Plaintiff, this park being shown as Parcel "F" on the attached Appendix. (See Exhibits XV and XVI).

10. The City and the Authority then set aside a part of the land acquired by the two takings in order to widen Centre Street. This parcel is shown as Parcel "G" on the Appendix.

11. The remainder of the land acquired by the two Orders of Taking was sold to the Defendant by deed dated March 31, 1981, and referred to in Paragraph 3 above. (Exhibit II).

12. The deed of the Redevelopment Authority to Defendant provides that the land demised,

"...contains a 25' right of way ... for the benefit of the Brockton Enterprise Publishing Company and other abutters ... [and] further contains a 12 foot water easement for the benefit of the Brockton Enterprise Publishing Company ..."

The deed also states,

"The grantee, his heirs, and assigns and the property described herein are subject to the terms and restrictions of the land disposition agreement to be recorded herewith."

The Agreement was recorded in Book 4975, Page 045. (Exhibit XVII)

13. On October 8, 1981, the Redevelopment Authority deeded the reserved easement rights, referred to in Paragraph 12 above, to the Brockton Enterprise Publishing Company "in consideration of an amount less than one hundred dollars" (one [$1] dollar was actually paid) and in "consideration of the grantee's participation in an urban renewal project called the Korean Vietnam Memorial Project that is part of the Mainbrook Project". The deed was recorded in Book 5066, Page 125. (Exhibit XVIII)

14. Defendant claims the entire fee in Joslyn's Lane in all places where it abuts the land purchased from the Redevelopment Authority. Defendant has placed parking blocks on the southerly half of Joslyn's Lane and the front of some cars protrude, at times, into the northerly half of the Lane. Defendant has indicated possible criminal prosecution if Plaintiff attempts to remove the parking blocks.

15. Defendant claims that the reserved easements for the Plaintiff also have no force and effect, and the deed allegedly conveying those rights is similarly a nullity. Defendant has asserted that he is entitled to bar Plaintiff from any exercising of its right of way or water-easement rights and will do so at his option. Such action would seriously disrupt and irreparably harm Plaintiff.

16. Joslyn's Lane (also known as Joslyn's Court and in 1873 as Express Ave.) is located near the intersection of two principal streets in the center of Downtown Brockton (See Exhibit XIX, XX, portion of City maps dated 1857 and 1873, and Exhibit XXI, the City Assessor's map).

17. The first reference to the way in a recorded instrument located by the parties is 1830 in Book 169, Page 63 (Exhibit XXII) by which time the way had been established.

18. In 1886 the City of Brockton installed a storm drainage system in the North-South portion of Joslyn's Lane (See Exhibit XXIII).

19. Later the City of Brockton installed a water line in Joslyn's Lane.

20. In 1899 the City of Brockton built a sewer line in Joslyn's Lane (see Exhibit XXIV and XXV).

21. In 1926 the City of Brockton installed a storm drainage system in the East-West portion of Joslyn's Lane for a distance of 191 feet (see Exhibit XXIII).

22. In 1948 the City of Brockton established a public parking lot adjacent to Joslyn's Lane. (See Exhibit XXVI).

23. This parking lot was further expanded in 1953 (See Exhibit XXVII).

24. Since 1953 Joslyn's Lane has been used by some people for access to and from the public parking lot, although public entrances and exits were, and still are, located on Ward and Montello Streets, both being public ways.

25. Several years ago signs were affixed to some buildings in Joslyn's Lane, some of which signs remain today, which read "No parking anytime - Police Department."

26. The Police Department, and the Highway Department, which previously erected signs and regulated parking, list Joslyn's Lane as a private way and have no record of a City vote to prohibit parking on this way. The current City ordinance listing roads on which parking is banned does not list Joslyn's Lane.

27. Nevertheless, the posted "No parking" signs were enforced by having citations issued and fines collected through the Brockton District Court by the City.

28. The loading door for the Enterprise Building is located directly North of the right of way and Plaintiff uses the right of way both for the movement of vehicles and, at times, for parking trucks while they unload.

29. When trucks are parked in the Lane as they are unloading they block entry from the Lane to the parking area. When the trucks park in the right of way as they are unloading they may block access to Defendant's parking lot depending upon the length of the truck, how far back it parks, how close to Defendant's building the truck is parked and whether a car is parked on the Westerly line of the right of way adjacent to Centre Street.

30. The Defendant has placed a trash dumpster in the Land behind his building, shown as Parcel "C" on the attached Appendix.

I. Was Joslyn's Way a public way on July 13, 1978 and on March 8, 1979 when the Brockton Redevelopment Authority took the areas shown on Appendix A as parcels "B" and "F"?

The Appeals Court held in the case of Fenn v. Middleborough, 7 Mass. App. Ct. 80 (1979) that since 1846 it has only been possible to create a public way by a laying out by public authority as prescribed by G. L. c. 82, S. 1-32 and by prescription. Prior to 1846 a way could become public by dedication by the owner to public use, permanent and unequival, coupled with an express or implied acceptance by the public. There is no evidence that Joslyn's Lane was dedicated prior to 1846 or laid out under the statutory authority before or after 1846. Thus, the only way it can be a public way is by prescription.

The Fenn case further sets forth "that the creation of a public way by adverse use depends on a showing of 'actual public use, general, uninterrupted, continued for [the prescriptive period]' (citations omitted). It is sometimes said that to establish such adverse use 'the further fact must be proved, or admitted, that the public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.' (citations omitted). Other cases indicate that the necessary adversity and lack of permissiveness may be inferred by the finder of fact from the uninterrupted use by the public, unexplained, for the prescriptive period" citations omitted. Fenn v. Middleboro, supra, at page 84.

Joslyn's Lane is shown on Appendix A as E and E1. Title to this way is traced from 1889 by mesne conveyances to the plaintiff in 1915 and has been held by the plaintiff up to the events in question here. (See Paragraph 5 herein). The defendants herein claim that Joslyn's Lane was a public way and that the Redevelopment Authority took it by virtue of the takings set forth in paragraph 7 and 8 herein. These takings took the parcels shown as F and B on Appendix A "including the fee, if any, in all public streets, highways and public ways in said area or areas or contiguous and adjacent to the property."

The Redevelopment Authority certainly did not believe that they had taken the fee in Joslyn's Lane in the takings, (Exhibit XII and XIII), for if they had they would not have acquired that area shown as E1 on Appendix A from the plaintiff nearly two years after the taking, (Exhibit XV), and then deeded it to the city for part of a park. The plaintiff certainly believed it owned Joslyn's Lane, tracing its title back to 1889. It is hard to believe that the defendant could ever believe that he could possibly be the owner of Joslyn's Lane as even a cursory look at the title of the Redevelopment Authority would disclose that in the plans upon which the description for the takings were made, Joslyn's Lane was shown as "Private". The description in the deed to the defendant, (Exhibit II), from the Redevelopment Authority referred to a plan, (Exhibit XVI), which shows the area of Parcel E as "Joslyn's (Enterprise Publishing Co.) Lane." There was constructive if not actual notice to the defendant of the fact that Joslyn's Lane was not considered a public way by the authority. Under these circumstances it is difficult to see how the defendant could consider it other than as a private way.

The defendant argues that Joslyn's Lane is located in downtown Brockton and shown on city maps of 1857 and 1873 (paragraph 16), that there is a reference to a way in this location as early as 1830 (paragraph 17), that the city installed a storm drainage system in a portion of it in 1886 (paragraph 18) and a water line at a later date (paragraph 19) and a sewer line in 1899 (paragraph 20) another storm drainage system in a portion of Joslyn's Lane in 1926 (paragraph 21). Further the defendants argue that the city established a public parking lot adjacent to the locus in 1948, later expanded in 1953 and that Joslyn's Lane has been used by some people for access to and from the parking lot. No parking signs have been erected and presumedly parking has been enforced through the Brockton District Court (paragraphs 25, 26 and 27).

The Court concedes that there has been use of this area. Parcel E itself from its earliest mention herein in 1889 has been and is subject to various easements (See Exhibit VI) held by various others for drain pipes for surface water, for storm pipes to be laid therein, for a cesspool and its maintenance and repair among other things. Certainly others had easements over this area but this does not mean that it is a public way. The use of the way for installations by the City of Brockton for various purposes as set forth in the previous paragraph are not necessarily inconsistent with its being a private way. The public used the way to some degree at least for ingress and egress from the public parking lot but it should be pointed out that there was other access to this parking lot also. The burden is on the defendant to show that this is a public way and the Court remains unconvinced that it is.

The Court thus rules that Joslyn's Way was not a public way when the takings were made by the Brockton Redevelopment Authority (Exhibits XII and XIII). Hence the fee to Joslyn's Lane was not included in its deed to the defendant, (Exhibit II) and remains in the plaintiff. The Court rules that even though the deed to the defendant, (Exhibit II), recites in its description that it is "by Joslyn's Lane, a private way as shown on said plan" the defendant was granted only to the southerly line of Joslyn's Lane. The Court rules that the provisions of Chapter 183, Section 58 do not apply here inasmuch as the grantor, the Brockton Redevelopment Authority, had no fee interest in Joslyn's Lane. The Court further rules that the parking blocks placed by the defendant along the mid-line of Joslyn's Lane must be removed as obstructions of the way. The argument of defendant that he may maintain these is fallacious as he has no title to the way and at best has a right of way over the same together with others having such rights of way. Defendant has no right to block the way with the parking blocks and has no right to block the way by using it for the parking of automobiles in conjunction with his parking lot.

II. Did the plaintiff acquire a right of way and a water easement over parcel B as shown on Appendix A?

The Court answers this in the affirmative.

The law in this commonwealth has been and still is that a stranger to a deed can acquire no rights under a reservation in a deed which accrues to the grantor. Haverhill Savings Bank v. Griffin, 184 Mass. 419 (1903). The defendant signed an agreement (Exhibit XVII) with the Redevelopment Authority dated March 31, 1981, the same date as the deed to the defendant. It should be noted that the "Agreement" was recorded first, ahead of the deed, on April 7, 1981. Section 19 of the "Agreement" entitled "Special Provisions" contained three paragraphs, the second of which is as follows:

The purchaser herein agrees that the property described as Disposition Parcel 33 will be further subject to a twenty-five (25) foot right of way for the benefit of the Brockton Enterprise Company and others, and also a twelve (12) foot water easement which will pass through Disposition Parcel 33 as a fire service water line for the Enterprise Publishing Company. The hereinabove described encumbrances as shown on the plan of land previously recorded.

Thus, the defendant was technically upon constructive notice that the conveyance to him was to be subject to the 25 foot right of way and the water line easement for the benefit of the Enterprise Publishing Company. The Court finds that these rights were reserved to the Redevelopment Authority. In addition the defendant was on actual notice as the deed to him, (Exhibit II), contained the following paragraph:

"The grantee, his heirs, assigns and the property described herein are subject to the terms and restrictions of a land disposition agreement to be recorded herewith."

This being so the defendant knew that the parcel conveyed to him had certain rights excepted or reserved to the plaintiff. It would appear that these rights were excepted by the Authority, which retained a portion of its former estate. Ashcroft v. Eastern R Company, 126 Mass. 196 , (1878). Thus, even though under "this stranger to a deed" doctrine set forth above no rights accrued to the plaintiff by this deed to the defendant these rights remained in the grantor Redevelopment Authority. To this effect, the plaintiffs cite the old case of Besson v. Frito, XIII Metcalf 523 (1847). Chief Justice Shaw stated therein "Now, though a party cannot show title in himself by a reservation in a deed between others, to which he is not a party, yet such reservation will prevent the reserved part from passing to the grantee and constitute a good reservation to himself." Besson, supra at 525. Therefore, the Redevelopment Authority retained its rights to the right of way and for the water easement until they later conveyed the same to the Plaintiff by deed, (Exhibit XVIII).

It may well be that there was a common scheme here, well known to the defendants, see Rohilly v. Addison, 350 Mass. 660 (1966). It may also be argued that defendant should be estopped from setting forth its claims to be free from these easements due to the provisions in his deed.

The Court rules that the plaintiff has title to Joslyn's Lane subject to the rights of others as set forth in the seven deeds listed in paragraph 5 herein and to rights of way in defendant among others; in addition the Court rules that Lot B, deeded to the defendant on March 31, 1981 and recorded in Book 4975, Page 67, as shown on Appendix A is subject to a right of way and a water easement in favor of plaintiff as set forth in the deed from the Redevelopment Authority to plaintiff, dated October 8, 1981, recorded in Book 5066, Page 125.

The Court orders the defendant to remove the parking blocks in the mid-line of Joslyn's Lane and orders both plaintiff and defendant to refrain from obstructing Joslyn's Lane by the parking of vehicles thereon.

Judgment accordingly.

exhibit 1