MICHAEL F. CARR and SUZANNE M. CARR vs. PAUL McNALLY, BARBARA McNALLY, LAWRENCE SCOTT and KATHERINE SCOTT.

Michael and Suzanne Carr, the plaintiffs, brought this action for declaratory judgment under G.L. 231A seeking a determination of their rights and interest in a certain way known as both the "Meadowbrook Road Extension" and the "unnamed way." [Note 1]

This cause came on to be heard on April 27, 1987, was argued by counsel and briefs were filed. Twenty exhitiits were received into evidence and are incorporated herein for the purposes of any appeal.

In consideration of the foregoing, I find as follows:

l. On October 1, 1957, Clarence and Mildred Gray ("Gray") conveyed all their land in Sherborn with the exception of a parcel containing about five acres, not material hereto, to Luciano and Pia Nicolai ("Nicolai") by deed recorded in the Middlesex South Registry of Deeds, [Note 2] Book 9032, Page 217 (Exhibit 2) and shown on a plan entitled "Plan of Land in Natick and Sherborn, Property of Clarence B. Gray," dated June 14, 1955, (Exhibit 3) and a plan entitled "Plan of Land in Sherborn and Natick, Property of Clarence B. Gray," dated June 24, 1957 (Exhibit 4).

Clarence and Mildred Gray reserved to themselves for the benefit of their adjoining land in Natick, "a temporary easement for passage to and from said Coolidge Street [in Sherborn] on foot and with vehicles on a course and location to be designated by the grantees or their successors in title, said easement to terminate forthwith without further acts of the parties at such time as the grantees or their successors in title may record a plan of the granted premises designating a passageway from said Coolidge Street to said Natick premises of the grantor . . ."

2. On September 1, 1959, Gray conveyed 31.7 acres of land in Natick adjacent to the Sherborn property to Nicolai by deed recorded in Book 9448, Page 564 (Exhibit 5) as shown on aforesaid Exhibit 3.

3. This conveyance to Nicolai extinguished by merger the easement reserved by Gray in the 1957 conveyance as Nicolai now owned both the Sherborn property and the adjoining Natick property.

4. In 1961, Nicolai subdivided his Sherborn property, by plan approved by the Sherborn Planning Board on August 3, 1961. Said plan is entitled "Cedar Acres, Plan of Land in Sherborn, MA." (Exhibit 1) and is recorded in Book 9875, Page end and establishes the location of Meadowbrook Road Extension.

5. On October 31, 1962, Nicolai conveyed a 1.17 acre lot, lot 5 on the subdivision plan, to William and Mary Polletta ("Polletta") by deed recorded in Book 10210, Page 523 (Exhibit 6). Such conveyance describes the Westerly and Northwesterly boundaries "by the line of said Meadowbrook Road and by the line of an unnamed way on said Plan, measuring respectively, 53.88 feet and 248.50 feet" and further grants "all rights of way, privileges and easement in and over said unnamed way and Meadowbrook Road, for all purposes for which streets and roads are commonly used in the Town of Sherborn, to and from Coolidge Street, in common with others entitled thereto." Polletta was the predecessor in title to the defendants Lawrence and Katherine Scott ( "Scott"). [Note 3]

6. On Octoher 28, 1964, Nicolai conveyed Lot 4 on said plan, a 1.36 acre lot, to Arthur LaConte, Trustee ("Laconte") by deed recorded in Book 10680, Page 12 (Exhibit 7). The deed describes the Southeasterly and Southerly boundary by the Northwesterly line of an unnamed way on said Plan and by the line of said Meadowbrook Road, the second course being on a curving line, measuring respectively, 246.46 feet and 64.78 feet" and further grants the same easement across the unnamed way as in the Polletta deed. LaConte was the predecessor in title to the defendants Paul and Barbara McNally ("McNally").

7. On January 19, 1966, Nicolai conveyed all the land in both Natick and Sherborn acquired from Gray in the aforesaid transactions to Luciano and Pia Nicolai, Trustees of the L & N Trust, by deed recorded in Book 11033, Page 140 (Exhibit 10). This conveyance included the fee in the Meadowbrook Road Extension subject to the above easements.

8. In 1971, the Town of Sherborn accepted as a public way Meadowbrook Road and "Meadowbrook Road Extension."

9. On August 7, 1979, by deed recorded in Book 13757, Page 231 (Exhibit 12), the L & N Trust conveyed the 31.7 acres in Natick together with an additional parcel off but not adjacent to Moore Street to Michael and Suzanne Carr ("Carr"), the plaintiffs in this action. Said property was conveyed "subject to and with the benefit of easements and restriction of record in so far as the same are now in force and applicable."

10. On January 14, 1986, the Town of Sherborn, discontinued "Meadowbrook Road Extension" as a public way, from a point 943 feet more or less easterly of Coolidge Street, and northerly 280 feet more or less to the Natick town line. This action, as a practical matter discontinued Meadowbrook Road Extension in its entirety.

Defendants argue that the Derelict Fee Statute, c. 183, §58, vests ownership in them over the Meadowbrook Road Extension. However, the specific language of the deeds to Polletta and LaConte creates easements over Meadowbrook Road Extension and accordingly demonstrates that the grantor did not intend that the fee pass to defendants, therefore the Derelict Fee Statute is inapplicable. Emery v. Crowley, 371 Mass. 489 (1976).

A reading of the foregoing deeds may appear to leave the fee in Meadowbrook Road Extension in the L & N Trust. The 1962 and 1964 deeds to Polletta and Laconte, respectively contain language granting an easement, not a fee in Meadowbrook Road Extension. The 1979 deed to plaintiffs makes no specific mention of Meadowbrook Road Extension for the obvious reason that at this time it was a public way. However, even when a public way is established, "the owner of the fee retains his ownership of every valuable interest in the land..." subject to the public easement. Opinion of the Justices to the House of Representatives, 208 Mass. 603 , 605 (1911); Moran v. Gallagher, 199 Mass. 486 , 487 (1908). Upon the discontinuance of the public way, title remains vested in the owner. Boston v. A. W. Perry, Inc., 304 Mass. 18 , 22 (1939); Downey v. Bay State Street Railway, 225 Mass. 281 , 284 (1916). See Schuffels v. Bell, 21 Mass. App. Ct. 76 , 78 (1985). Clearly, the defendants as successors in title to Polletta and LaConte have the benefit of an easement over Meadowbrook Road Extension and while the deed to plaintiffs did not specifically mention rights in the Meadowbrook Road Extension, a reading of the deeds, a review of the plans, and consideration of the circumstances indicate that the L & N Trust intended to convey all of its interests in the Natick land to the plaintiffs together with all rights appurtenant thereto including the fee in the way. To find otherwise would leave the fee to the Meadowbrook Road Extension in the Trust as likely its only asset with little value to the Trust or its beneficiaries. Accordingly, I find the fee to the Meadowbrook Road Extension to be in the plaintiffs subject to the above stated rights of the defendants.

In any event, an easement by necessity arises in favor of plaintiffs. Without the benefit of the way, the Natick property, at the time of the conveyance was landlocked. It is well established that "the law presumes that one will not sell land to another without an understanding that the grantee shall have a legal right of access to it, if it is in the power of the grantor to give it. . ." New York & N.E. R. Co. v. Board of Railroad Commissions, 162 Mass. 81 , 83 (1894); Davis v. Sikes, 254 Mass. 540 , 546 (1926).

Notwithstanding the foregoing, the facts and circumstances further establish an easement by implication, an interest recognized in land formerly in common ownership, when use of one part of the land was made for the benefit of another part up until the time of the severance of ownership, and when the use of one part is both reasonably ascertainable and reasonably necessary for the engagement of the other part. Flax v. Smith, 20 Mass. App. Ct. 149 , 152 (1985); Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 (1933); Sorel v. Boisjolie, 330 Mass. 513 , 516 (1953); Cummings v. Franco, 335 Mass. 639 (1957); Perodeau v. O'Connor, 336 Mass. 472 , 474-475 (1957).

On the basis of the foregoing, I rule as follows:

1. The 1979 deed from the L & N Trust to plaintiffs conveyed the fee in Meadowbrook Road Extension to plaintiffs, subject to the easements of the defendants and upon the discontinuance of Meadowbrook Road Extension, such title remained in plaintiffs.

2. In the alternative, the plaintiffs have acquired either an easement by implication or necessity over Meadowbrook Road Extension.

Judgment accordingly.