LOUIS L. LUNETTA and MARY L. LUNETTA vs. CAPCO REALTY, a Limited Partnership, F.I.R.S. REALTY TRUST, ANTHONY F. CAPODILUPO, Individually and as Trustee of F.I.R.S. Realty Trust et al.

The plaintiffs herein seek a declaratory judgment as to the interests of the parties in North Hanover Court ("Court") located in Boston, Massachusetts, between land of the plaintiffs and defendants. The defendants have counterclaimed requesting that a permanent injunction issue to enjoin the plaintiffs from overburdening North Hanover Court and from interfering with the defendants' use thereof.

A trial was held on March 2, March 9 and April 30, 1987 at which a stenographer was sworn to record and transcribe the testimony. Nine witnesses testified and eighteen exhibits were introduced into evidence; all exhibits are incorporated herein for the purpose of any appeal. Oral arguments were heard on October 6, 1987.

Based upon the above, I find as follows:

1. The plaintiffs are owners of property 1ocated at 230-236 Hanover Street, Boston, described in Transfer Certificate of Title No. 84483 and shown on Land Court Plan No. 32503A.

2. Anthony F. Capodilupo, Trustee of F.I.R.S. Realty Trust, is the owner of property located at 210-228 Hanover Street, Boston, described in Transfer Certificate of Title No. 94956 and shown on Land Court Plan No. 4944A.

3. The European Restaurant, Inc., lessee, occupies the defendants' property at 214-220 Hanover Street, Boston.

4. North Hanover Court, the "locus," runs between the aforementioned plaintiffs' and defendants' property and is shown on both Land Court Plans 32503A and 4944A.

5. The Transfer Certificate of Title No. 84483 pertaining to the land owned by the plaintiffs states that the land is bounded and described as follows:

... Southwesterly by the middle of North Hanover Court, nineteen and 68/100 (19.68) feet; Southeasterly by a line in said North Hanover Court, one and 73/100 (1.73) feet; Southwesterly by the middle of said North Hanover Court; fifty-five and 30/100 (55.30); Northwesterly by a line crossing said North Hanover Court and by land now or formerly of Dasinta Marietti, twenty-four and 47/100 (24.47) feet; ... Southeasterly by said Marietti land and by a line crossing said North Hanover Court, twenty-four and 24/100 (24.24) feet; Southwesterly by the middle line of said North Hanover Court, twenty-three and 40/100 (23.40) feet; Northwesterly by a line crossing said North Hanover Court and by land now or formerly of Home for Destitute Catholic Children, twenty-four and 50/100 (24.50) feet; Southwesterly by the middle line of said North Hanover Court, fifty-eighth hundredths (0.58) of a foot; ... All of said boundaries are determined by the Court to be located as shown upon plan numbered 32503-A....

6. In addition to the foregoing, the plaintiffs' certificate contains the following:

So much of said land as lies within the limits of North Hanover Court, as shown on said plan, is subject to the provisions that same is to be kept open for the benefit of estates bordering thereon, as set forth in a grant from James J. Donnelly et al to Giuseppe Zermani, dated June 4, 1898, duly recorded in Book 2532 Page 526.

So much of the land as is included within the limits of North Hanover Court as shown on said plan is subject to the rights of all persons lawfully entitled thereto in and over the same.

There is appurtenant to the land above described rights in and over said North Hanover Court, shown on said plan, in common with all those lawfully entitled thereto....

7. Transfer Certificate of Title No. 94956 pertaining to the land owned by the defendants states that the land is bounded and described as follows:

Northeasterly eighty-four and 28/100 (84.28) feet;

Northwesterly three and 46/100 (3.46) feet, and

Northeasterly twenty and 16/100 (20.16) feet by North Hanover Court;

All above described bounds are shown on Plan No. 4944A.

At issue herein is a determination of the rights of the parties established by the language of the pertinent provisions of both certificates. To properly interpret these provisions, it is necessary to review the language of the original certificates and decrees, i.e., 4944 which registers title to land bounded "by" North Hanover Court and 32503 which registers title to land bounded "by the middle line" of North Hanover Court. It is the plaintiffs' belief that by the decree of 4944, the defendants' rights in land stop at and do not include any fee or rights in North Hanover Court and that accordingly there is a parcel of land of undetermined ownership between the two parcels. The plaintiffs allege they are the owners of this unregistered portion of North Hanover Court.

This interpretation is incorrect. The proper language used to arrive at such a result would be either "by the line of North Hanover Court" or "by land of ..., being the southwesterly sideline of North Hanover Court."

The language "by" a street, way or in this instance "by North Hanover Court" indicates that: (1) the area is a way in which some extent of fee incident to the registration may exist although its full extent and survey lines are not being fully determined; and (2) the area is a way over which locus has implied rights in common with others. The difference between the decrees in 4944 and 32503 is that the Court expressly determined the extent of the fee in North Hanover Court for decree 32503, whereas it did not do so in decree 4944. While the normal inference is that properties abutting a way opposite one another own to the middle line, this is only true if certain facts showing that the line was in fact elsewhere do not rebut this inference. There was apparently sufficient ambiguity in the title search to 4944 to preclude any language other than "by" North Hanover Court.

I take judicial notice of materials submitted to the Court in connection with Land Court decrees 509, 1606, 4944 and 32503. The parcels involved in 509 and 1606 abut and have similar bounds on North Hanover Court, as do 4944 and 32503. Materials in these aforementioned abstracts indicate that at all times covered by the period of these title searches, North Hanover Court was, at least as far as a point approximately at land of one Rand, located beyond the defendants' property, in fact, "a passageway," "a common passageway," "a passageway common to all," or had all parcels bounded "by" or "on" a passageway. I also take judicial notice of a series of deeds dated 1773 and 1774 in Suffolk Deeds Books 123, 124 and 125 by which one Benjamin Dolbeare, as Administrator of the Estate of Nathaniel Loring, conveyed out several parcels of land on Middle Street (now Hanover Street) and a passageway (now North Hanover Court). The parcels described in some of these deeds (a) (Book 125, Page 129 to Robbins) the Vickery portion of 4944, (b) (Book 123, Page 93 to Pulcifer) the Fopiano portion of 32503, and (c) (Book 123, Page 89 to Isaac Rand, Jr., see also Book 196, Page 136 mtg.) a large portion of the rest of 32503, are clearly germane to the issues at hand and indicate that land on both sides of what is now North Hanover Court was in 1773 in one Nathaniel Loring, that the bounds of these parcels were conveyed "by" a passageway identifiable as North Hanover Court and that all of these parcels had rights in the passageway including certain specific rights not herein relevant.

Deeds out of a common grantor which abut on opposite sides of a way result in the conclusion that the fee goes to the centerline or middle line absent specific evidence to the contrary. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679-680 (1965); Ralph v. Clifford, 224 Mass. 58 , 60 (1916); Boston v. Richardson, 95 Mass. 146 , 154-155 (1866). Without addressing the issue of the extension of the original North Hanover Court into land of others not parties herein, I find that North Hanover Court, from Hanover Street bounding the plaintiffs' and defendants' land (where 32503 and 4944 abut between land of the plaintiffs and defendants) is a common passageway open to all abuttors and subject to (in addition to any specific ascertainable rights) implied rights for all purposes for which such ways are used. I also find that as to this area, the defendants have the fee to the center of the way subject to the rights of others lawfully entitled thereto. The exact determination of rights in the "Court" beyond the area of the plaintiffs' and defendants' land has not been requested and would best be determined within the framework of a supplemental registration petition to the Land Court.

In light of all the above and the requests of the parties for a specific determination of rights, I find and rule that the parties have the following rights and obligations over North Hanover Court:

1. The right to pass and repass along North Hanover Court by the plaintiffs, their heirs, assigns, agents, tenants and servants and by the defendants, their heirs, assigns, agents, tenants and servants and to make use of North Hanover Court for all purposes for which ways are used in the City of Boston subject to the rights of all other persons lawfully entitled thereto and in over North Hanover Court; and

2. The right of both the plaintiffs and defendants to use North Hanover Court to make and receive deliveries by vehicles not exceeding nine feet in width with delivery time not to exceed ten minutes and at all such times said vehicles must be attended by a person who shall remove such vehicle immediately upon the request of an individual lawfully entitled to pass and repass over said North Hanover Court; and

3. The right of the plaintiffs to retain the various cement or stone structures in the form of barriers alongside their building; and

4. The obligation of the plaintiffs to remove both the fence constructed across North Hanover Court and the wooden beam extending from the plaintiffs' fire escape to the surface of the "Court," but the plaintiffs may maintain the fire escape above a height of nine feet; and

5. The right of the defendants to retain and use the coal chute now converted into a bulkhead; and

6. The obligation of the defendants to remove the dumpsters from North Hanover Court and to cease the placement of trash or trash receptacles along the "Court;" and

7. The obligation of both the plaintiffs, their heirs, assigns, agents, tenants and servants and the defendants, their heirs, assigns, agents, tenants and servants to keep North Hanover Court free of all structures not expressly allowed herein and free from all conduct which impedes the rights of others to pass and repass over North Hanover Court.

I have made the aforementioned seven rulings based on the evidence presented and have allowed the bulkhead and cement structures and fire escape to remain as I have found no evidence to rebut an assumption that these structures were in existence at the time the registration decrees issued. The plaintiffs, defendants and the tenants of the defendants have made numerous requests for findings of fact and rulings of law. I have not attempted to rule on each of said requests as I have made my own findings on facts which I deem material and on the law I believe is applicable.

Judgment accordingly.