The petitioner brings this action pursuant to G.L.c. 185, §l (k), G.L. c. 240, §6, and G.L. c. 231A, § 1, to quiet title and to obtain a declaration of rights in regard to the premises at 1145-1149 Dorchester Avenue in Boston, Suffolk County, Massachusetts. The facts are not in dispute and both the plaintiff and the defendant-intervenor, Colonel Daniel Marr Boys and Girls Club (the "Club"), have each filed a motion for summary judgment. I am granting the intervenor's motion and denying that brought by the plaintiff. The relevant facts are as follows:
1. The plaintiff, Vincent A. Arcieri, Jr., in his individual capacity, [Note 1] acquired title to the premises from the Vincent Arcieri Trust by deed dated February 28, 1977 and recorded with Suffolk Deeds Book 8937, Page 420.
2. Both deeds provide that "the strip of land fifteen and five-tenths feet wide and about 182.02 feet long on the southwesterly side of the granted premises is to be forever kept open as and for a common passageway for general use of the abutters thereon except for the abutters on the southerly side thereof."
3. The 15.5 foot passageway historically has been called Dunn's Court and rights therein were originally created by reservation in a deed from John F. Rogers, et al, to Isaac H. Dunn, dated June 5, 1886 and recorded with said Deeds Book 1727, Page 71, conveying Lot 14 on the plan by L. Briggs & Co. Surveyors, dated September 29, 1873. A copy of an earlier plan, dated September 2, 1869, by L. Briggs entitled "Plan of House Lots on Dorchester Avenue, Savin Hill Avenue and Pleasant St." showing lots 1-17 was submitted by the petitioner in support of his motion. Dunn's Court is not shown on this plan, but Lot 14, which is shown with frontage on Dorchester Avenue and as adjoining Lot 8 on the west, is the land from which the plaintiff's property has been carved.
4. The Club has succeeded to the title to that portion of Lot 8 which was later created by subdivision in 1911 by a plan entitled "Land in Dorchester" dated September 6, 1911 by Silverman Engineering Co. and which is shown thereon as Lots C, D, E and F. Dunn's Park as shown on the 1911 plan bisected the former Lot 8 running east/west to Pleasant Street on the west and Dunn's Court on the east. Dunn's Court then ran from Dunn's Park to Dorchester Avenue, although it is now alleged that the defendant's building sits on the former Lot 8 in such a way as to block any use of Dunn's Park.
5. In 1917, the owners of lots abutting on Pleasant Street, Dorchester Avenue, Dunn's Court and other area ways, in consideration of their "desire" that a public street be laid out in place of a private way known as Deer Street which abutted Dunn's Park on the east, released to the City of Boston their rights in Deer Street which apparently then was laid out as a public way.
Plaintiff contends that the land of the Club no longer abuts Dunn's Court and that, accordingly, any right to use the Court pursuant to the original reservation as an abutter on the northerly side has terminated. The Club on the other hand contends that the conveyances to it from the City of Boston on which its title rests, carried with them the fee to Deer Street and that it therefore remains an abutter to Dunn's Court. I accept neither of these arguments, for in my opinion the decisive factor is the determination of who the abutters were in 1886 when Dunn's Court originally was created. Rights were expressly granted to the northerly abutters along the Court and there is no doubt that the then owner of Lot 8 fell into this category. The defendant has succeeded to ownership of Lot 8, and accordingly has the right to use the way unless it has been lost by abandonment, exercise of adverse rights by the plaintiff or otherwise, none of which has been alleged. E.g., Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421-423 (1979). The plaintiff's position is that the creation of the public way made use of the private way unnecessary and that rights therein have therefore been lost. The defendant-intervenor argues, on the contrary, that such right remains appurtenant to its property and affords the most direct route for the members of the Club to reach Dorchester Avenue. On well settled principles of real estate law, I agree with the Club that its appurtenant right to use Dunn's Court has not been lost, and therefore it is
ADJUDGED and ORDERED that the defendant-intervenor's motion for summary judgment be, and it hereby is, allowed and a determination is to be entered that there is appurtenant to so much of the land of the defendant-intervenor as is included within Lot 8, a right to use the 15.5 foot wide passageway referred to in the 1886 deeds of John F. Rogers, et al, to Isaac H. Dunn and as shown on the plan dated December 13, 1971 entitled "City of Boston - Public Works Department - Engineering Division - Taking Plan: Deer St."
By the Court
[Note 1] As trustee of the Vincent Arcieri Trust, the plaintiff purchased the premises originally from David Bass by deed dated May 11, 1972 and recorded with Suffolk Deeds Book 8533, Page 178.