FRANCIS K. CARPENTER vs. STEPHEN R. KARP, et al, Trustees, et al.

Francis K. Carpenter, the registered owner named in and present holder of Certificate of Title No. 7197 issued by the Nantucket Registry District of the Land Court covering Lot 85 on Land Court Plan No. 11461M, seeks in this proceeding to have stricken from her certificate of title the language "subject to the rights of those entitled in the 'Travelled Road From Town' which runs along the easterly side of said lot" and also to have the Court determine that no rights of persons other than the plaintiff exist in the portion of the "Travelled Road From Town" which lies within Lot 85. A copy of Land Court Subdivision Plan No. 11461-M showing Lot 85 and the "Travelled Road From Town" is attached hereto as Appendix A. The Court gave notice to the owners named in certificates of title covering lots within the various subdivisions of the land registered originally in Case No. 11461; the number of parties to whom notice was sent was extensive.

The immediate abutters to the locus, Samuel Kissell and Margaret A. Kissell whose property also is affected by the same reference, filed an appearance and answer, but these were withdrawn prior to the trial. Notice was not given to others within the neighborhood who may also have rights in the road based on a report by a Land Court Examiner that he found no such persons. However, the Court all owed the owners of the property abutting the locus on the northeast and southwest to file a late answer. These parties are Fidelity Bank of Philadelphia, Catherine C. Nasser, Everett U. Crosby, as they are Executors of the Estate of Arthur U. Crosby, Mrs. Nasser and Mr. Crosby as tenants in common, and Catherine C. Nasser individually.

The plaintiff claims that any rights in the old road have been abandoned, and for this reason she seeks to have it eliminated. The defendants, on the other hand, allege that they are the owners of Lots 1 and 2 as shown on Land Court Plan No. 12268-8 and described in Certificate of Title No. 2104 issued by said registry district. They further allege that their property is bounded in part by said road, that the road was in existence prior to May 16, 1925, and that they have rights to use it. They did not allege in their answer, but the evidence showed that the defendant Everett U. Crosby also owns registered land off Gardner Road which he contends may be reached from said Lot 1 over the "Travelled Road From Town".

The parties being unable to resolve their difficulties, a trial was held at the Land Court on February 10 and 11, 1988 at each of which sessions a stenographer was appointed to record and transcribe the testimony. 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 titles of Ms. Carpenter, the plaintiff, and of the Crosby defendants derive from Everett U. Crosby, the common owner at one time of Lot 78-1 as shown on Reg. Plan 11461C, and that entire parcel registered in Case No. 12268 which is still owned by members of the Crosby family.

2. The decree in Land Court Case No. 11461 registered title in William F. Macy, Trustee, to the land shown on Land Court Plan No. 11461A (Exhibit No. 29) other than the lot marked A thereon. The decree provided as follows:

So much of the above described land as is included within the limits of the roads, as shown on said plan, is subject to the rights of all persons lawfully entitled thereto in and over the same; and there is appurtenant to said land the right to use Gardner Road, Shimmo Pond Road to the Polpis Road, Cathcart Road, the Travelled Road From Town, and the Road By The Cabot Farm to the Monomoy Road in common with others entitled thereto.

The roads shown on said plan included the "Travelled Road From Town" ("the Road"). The decree was dated August 4, 1926 (Exhibit No. 58). The following month the decree entered in Registration Case No. 11660 (Exhibit No. 59). This decree is subject to the rights of all persons lawfully entitled thereto in North Road, and the land registered thereby has the same appurtenant right as in the other case (Exhibit No. 57). As previously mentioned, title to a portion of the land registered in Case No. 11461 passed to the senior Everett U. Crosby in about 1927 (Exhibit No. 16) and was held by him until about 1953 when it was conveyed to one of the plaintiff's predecessors in title (Exhibit No. 17).

3. Everett U. Crosby registered title to the adjoining premises in Land Court Case No. 12268 with the decree therein being dated November 11, 1927 (Exhibit No. 57). Said premises are shown on Plan No. 12268A (Exhibit No. 27) and subsequently were conveyed by Everett U. Crosby to Arthur U. Crosby and Emily M. Crosby, husband and wife as tenants by the entirety, by deed dated November 9, 1934, which was registered as Document No. 2104 (Exhibit No. 12). The decree provided that so much of the land as was included within the limits of the roads shown on the decree plan was subject to the rights of all lawfully entitled in and over the same and stated the following appurtenant right:

There is appurtenant to the land hereby registered a right of way over said Gardner Road to the Polpis Road, and a right of way over the Travelled Road to Shimmo Pond Road to said Polpis Road, and over said Travelled Road to Monomoy Road, all as shown on said plan, in common with others entitled thereto.

The deed from Everett U. Crosby to Arthur and his wife contains exactly the same language as the decree. A copy of the plan, 12268A, is attached hereto as Appendix B and it shows the Road running from Gardner Road in the north to Shimmo Pond Road and beyond to the south.

4. In the years since the registration of the premises of which plaintiff now owns a portion, there have been many conveyances and consequently many transfer certificates of title issued to successors in title to William F. Macy. These transactions uniformly provided that the land conveyed thereby had the same appurtenant rights as set forth in the decree and was subject to the rights of way over the roads on which the granted premises abutted.

5. The plaintiff's chain of title as exemplified by Exhibits Nos. 16-24, inclusive, specifically made the premises subject to rights in the road marked "Travelled Road From Town". The deed to the plaintiff from John R. Hesse, et al, dated August 1, 1974 and registered as Document No. 5732 (Exhibit No. 23) provides that "said lot 85 is subject to the rights of those entitled in the 'Travelled Road From Town' which runs along the easterly side of said Lot, and is subject to the right to use the driveway in the location as shown on said plan from Brewster Road to lot 84 in favor of lot 84." The rights relative to the driveway are not in issue here. The certificate of title which was issued to Francis K. Carpenter (Certificate No. 7197, Exhibit No. 24) contains the same language.

6 . In 1967 a predecessor in title of the plaintiff, one Archer B. desCognets, the then registered owner of Lot 78-1 (Exhibit Nos. 19 and 20) as shown on Land Court Plan No. 11461-C (of which the plaintiff's Lots 84 and 85 once were a part; See Exhibit No. 31), petitioned the Court to approve a new subdivision plan, No. 11461-L (See Exhibit Nos. 4 and 25). In the petition it was alleged that the "Travelled Road Frorn Town" which was shown as a dotted line crossing the southerly portion of the petitioner's property did not appear from evidence on the ground to ever have been in the location shown on the September 30, 1927 plan, No. 11461-C. Conversely, it was alleged that the evidence on the ground showed the road to be in the location on the ground shown on what is now the "L" plan, and it was prayed that this plan be approved with the "Travelled Road From Town" in the location shown thereon. Such a decree was issued and the plan approved (Exhibit No. 25). The "L" plan shows the road abutting the land of the defendants at several points and for some distance. The plan which had been filed with the Court when the defendants' land was registered (Land Court Plan No. 12268A, Exhibit No. 56) like the earlier 11461 plans showed the "Travelled Road" entirely on the land first registered (Reg. No. 11461). This was corrected in 1968 by the approval of the "L" Plan with the petition having been supported by an affidavit of a prominent surveyor that said Road was well defined on the ground as shown on the July 11, 1967 plan. For another rendering of the Road in earlier years, there is a plan entitled "Plan of Land in Shimmo" (Exhibit No. 26) which gives its approximate location.

7. The plot plan filed by or on behalf of the plaintiff with the application for a building permit for a garage (Exhibit No. 52) recited that "This Road will be left open at all times", a reference to the way here in dispute. In fact the plaintiff's garage as constructed blocks the way (See plot plan prepared for prospective buyer, Exhibit No. 43) and the attached greenhouse would prevent access along the respective lot lines of the parties in one area. In addition, the plaintiff has constructed fences with gates which block the use of the way by barring access at each end of her property.

8. The plaintiff's home and grounds appear to be a show place, and the latter have been attractively landscaped. Unfortunately the record rights in her lot 85 have been ignored. The plaintiff, and a witness who had accompanied her to Lot 85 prior to her purchase, both testified that the property was overgrown with brush and impassable except with difficulty on foot although the plaintiff did recall that there were at that time two ruts which ran along the side of the property. Ms. Carpenter further testified that the parents of the individual defendants and their predecessors in title had been aware of the construction which was taking place on Lot 85 and made no protest and, indeed, complimented the plaintiff.

9. Defendant Everett U. Crosby testified that he had visited Nantucket, and the land which he claims to be the dominant estate, as early as 1938 and that the Crosby family used the Road not only to go over its southern branch [Note 1] to Nantucket Village but northerly to reach the shore at the end of Gardner Road and later the family's other property at Pimny's Point on Nantucket Harbor. He testified that his family always had used the road to go in both directions and that the only maintenance they had ever had to do from the late 30's to the early 1950's was to cut a bank and fill in holes. In more recent years they kept down growth by occasional pruning and by going over the road with cars and trucks. The Crosbys also erected a fence which followed the course of the road along its easterly edge but was not much maitained after the early 1950's.

10. The northerly part of Mr. Crosby's property is wet so if in the future he should wish to subdivide his premises to provide a separate lot for a family member, the wetlands would bar a road thereon. Accordingly he is interested in retaining the right to use the Road to reach the rear of his own lot as well as his other registered land.

The plaintiff claims that the owners of the other lands which were registered in the same proceeding as locus have abandoned their right to use the "Travelled Road From Town" shown on the 11461 series of plans, that there is no other party entitled to the benefit of the rights therein to which the registration decree was subject and that the owners of the land now of the defendants were entitled only to use the Road to go in a southerly direction and not in any event to go northerly across what is now land of the plaintiff.

The law in Massachusetts is well settled that mere non-user does not constitute abandonment and that there must be some further manifestation of an intent never again to use a way before abandonment may be found. Sindler v. Wm. M. Bailey Co., 348 Mass. 589 , 592-593 (1965) citing Desotell v. Szczygiel, 338 Mass. 153 , 158 (1958); Compare First National Bank of Boston v. Konner, 373 Mass. 463 , 467-468 (profit a prendre). The language in the decree in Case No. 11461 was intended to preserve the rights of those in Nantucket, who had acquired an easement across the long expanse of land registered therein to use what appears to have been some type of ancient way to reach Nantucket Village from the district known as Shimmo. If the decree had not been so subject, such rights would have been cut off. The defendants have stronger rights in the Road than the general public since they own property declared by the Court in 1968 to abut the way and indeed have a registered right to use at least some of the Road. See, Dubinsky v. Cama , 261 Mass. 47 (1927) and Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965). Finally, there are those who are successors in title to William F. Macy, Trustee, the owner in whose name title was registered originally. There would, of course, be no easement in one portion of such land for the benefit of another until there was a severance of ownership. Once the latter occurred, however, and the assistant recorder in Nantucket issued Certificates of Title with the appurtenant right to use the Road set forth therein, such right was created for the benefit of each of said subdivision lots.

It is not clear to the Court that once such a right has been registered the owners of it can lose it by abandonment. See Abdullah v. Nabhan, 5 Mass. App. Ct. 764 , 765 (1977) (discussing prescriptive easements and actual notice); Compare Andover v. DeVries, 326 Mass. 127 (1950) (unregistered easement valid). Obviously by analogy to a registered fee interest they can not lose it by the exercise of adverse possession by the owner of the servient tenement. G.L. c. 185, §57; Killam v. March, 316 Mass. 646 , 649 (1944) (and cases cited); Compare Cities Service Oil Co. v. General Dynamics Corp., 14 Mass. App. Ct. 131 (1982), app. den. 387 Mass. 1102 (1983) (extinguishment by federal taking). Similarly, it is my opinion that without a written release or perhaps an uncontroverted strong course of conduct unequivocally demonstrating abandonment, an appurtenant registered right cannot be lost. This is true even though generally, in matters not in conflict with the provisions of General Laws, chapter 185, the same principles govern the construction of registered and unregistered rights. Dubinsky v. Gama, 261 Mass. at 53. The fact that none of such owners remain in the case is not material. Where the land is registered, the Court cannot denigrate rights previously established by decree whether or not the principals see fit to come forward and defend their position. The plaintiff emphasizes that the land of the defendants as originally decreed in Reg. No. 12268 was subject to rights in the way referred to as the "Road by the Cabot Farm" appurtenant to the land registered in this case, of which the plaintiff now owns a portion, that therefore the plaintiff had the benefit of the right to use this way and it has heretofore been stricken upon supplemental petition to eliminate a paper road filed in Reg. Case No. 12268 by Arthur U. Crosby and Emily M. Crosby and allowed on May 13, 1977. It indeed has been the policy of the Court in the past under appropriate circumstances to strike "subject rights' in ways or to relocate them when there appears to be no party affected thereby. However, where there has been litigation and the Court's attention has been directed to rights registered as they were in the matter now before me, I am of the opinion that in the case of a way which has been shown to have existed on the ground and in which appurtenant rights have been registered, affirmative action by those holding the benefit of such right is necessary to eliminate them.

The plaintiff argues that the particular defendants who own the abutting property have only the right to use the Road to proceed to Nantucket Village and not for northerly passage to Gardner Road, but that if their right were at any time more extensive, then it has been abandoned. The right granted by the senior Everett Crosby to Arthur Crosby and his wife was framed in terms of an express grant to go in a southerly direction. Yet it is not clear that this commences only at what now is called Brewster Road and continues only in a southerly direction; usual construction of such appurtenant language would at least include the right to proceed from any point where the Road touches the 12268 land and then continue southerly. Indeed once the Court determined at the behest of the plaintiff's predecessor that the Road belonged in a more easterly location which touched the land of the defendants, I find and rule that this was and had in fact always been the correct location of the Road and that the defendants were entitled to use the Road to and from any adjoining portion of their land. Moreover, in addition to a registered right to proceed in a southerly direction, the defendants also have the benefit of an unregistered right to proceed northerly on the road, the normal rule where premises abut on a way. E.g., Goldstein v. Beal, 317 Mass. 750 , 755 (1945). In addition, the defendant Crosby's testimony as to the use of the Road brings the 12268 land within the "subject" clause of the earlier case which I have not heretofore discussed. The senior Everett Crosby also owned the land, a portion of which now belongs to the plaintiff, until 1953 (Exhibit Nos. 16 to 24 and 31) and any rights in one for the benefit of the other as set forth in the registration decree presumably merged when he acquired title to both, and those rights of record for the benefit of the land of the defendants were resurrected by Everett Crosby's deed out in 1934 to Arthur and Emily Crosby (Exhibit No. 12). This would not bar, however, the showing as to use of the Road in a northerly direction when there was a severance of ownership.

The only defendants who did appear are those whose position is spelled out at length in this decision. They do not insist that the garage be moved from its location astride the Road. Rather they would be satisfied to have the greenhouse attached to the garage removed and the Road relocated to run over the ten (10) feet between the garage and the lot line. As shown on the "M" plan, attached hereto as Appendix A, the Road enters from Brewster Road, and then curves to the north cutting across the southeasterly corner of the plaintiff's lot 85 until it meets the common boundary. The point of entry is to remain the same with the Road, as relocated, passing in front of the garage in such a way as to permit cars and pedestrians to pass between the garage and the lot line and to thereafter continue along the Road as presently delineated.

On all the evidence, I therefore find and rule that the plaintiff, at her expense, is to remove the greenhouse and is to have an appropriate plan prepared showing the relocation of the Road in accordance with the provisions of this decision. I further find and rule that the defendants and all others similarly entitled, have the right to pass and repass, on foot and in vehicles, over the "Travelled Road From Town" as shown on Land Court Subdivision Plan 11461M and as relocated to follow the above­described route; that the plaintiff either is to remove the gates barring entry to the Road at each end of her property or is to furnish to each person entitled at his request a key to open any lock.

Judgment accordingly.

exhibit 1

exhibit 2