The plaintiffs brought this action requesting a declaratory judgment as to the ownership of a parcel of land measuring approximately 50 feet by 50 feet located at the northwesterly end of a 50 foot right of way as shown on a plan entitled "Compiled Plan of Land in the Town of Scituate, Massachusetts; Cornet Stetson Road; dated June 30, 1980" recorded in Plymouth County Registry of Deeds, [Note 1] Book 21, Page 854 ("1980 plan"). They also request a judgment declaring that a 1987 deed from the defendants Chase to the defendants Hopkins purporting to convey this same 50 foot by 50 foot area be declared a nullity. The controversy arises from the plaintiffs' deed in which the description of the property is ". . .lot 2A on a plan. . ." which plan includes the disputed area followed by a running description which omits the disputed parcel.
This cause was submitted by the parties on an agreed statement of facts which included exhibits. These exhibits are incorporated herein for the purpose of any appeal.
The agreed facts may be summarized as follows:
1. The locus in question was originally contained within a 17.34 acre lot owned by R. Stevens Callender, Jr. and Charlotte K. Callender ("Callender") as shown on a plan entitled "Compiled Plan of Land on Cornet Stetson Road, Scituate, dated July 21 1964, Loring H. Jacobs Surveyor" ("1964 plan") recorded as Plan 545 of 1964.
2. On July 23, 1973, Callender conveyed a 19,242 square foot parcel of land to the Community Montessori School, Inc. by deed at Book 3924, Page 681. This parcel is a strip of approximately 50 feet in width running 370.36 feet along the southeasterly line of Lot 2A on the 1980 plan and gave the school an additional 50 feet of frontage on the 50 foot wide right of way as shown on said plan.
3. On April 1, 1980, Callender conveyed the remainder of the 17.34 acre lot to the defendants Allan H., Jr. and Shelley S. Chase ("Chase") by deed recorded at Book 4810, Page 466.
4. On June 30, 1980, the defendants Chase divided their property into Lots lA and 2A as shown on a plan entitled "Compiled Plan of Land in the Town of Scituate, Mass., dated June 30, 1980, Loring H. Jacobs Co." ("1980 plan") recorded in Plan Book 21, Page 854.
5. On August 8, 1980, the defendants Chase conveyed Lot lA shown on the 1980 plan to the defendants Robert E., II and Jennie M. Blake Hopkins ("Hopkins") by deed recorded at Book 4860, Page 347.
6. On June 7, 1983, the defendants Chase conveyed Lot 2A as shown on the 1980 plan to the plaintiffs, William H. and Patricia A. Vreeland ("Vreeland") by deed recorded at Book 5371, Page 341.
7. On May 8, 1987, the defendants Chase deeded to the defendants Hopkins an undivided one-half interest in the 50 foot by 50 foot area shown on the 1980 plan by deed recorded in Book 7688, Page 76.
The description in the deed to the plaintiffs referred to in finding no. 6 above is as follows:
A certain parcel of land situated off of the northwesterly side of Cornet Stetson Road, Scituate, Plymouth County, Massachusetts shown as Lot 2A on a plan of land entitled "Compiled Plan of Land in the Town of Scituate, Massachusetts, Cornet Stetson Road", prepared for Allan H. Chase, 132 Cornet Stetson Road, Scituate, Mass. Surveyor, Loring H. Jacobs Co. A Division of Boston Survey Consultants, Inc., 690 Main Street, Norwell, Scale l" = 80', June 30, 1980, recorded with Plymouth County Registry of Deeds as Plan #449 of 1980.
Said lot is more particularly bounded and described as follows . . .
Southeasterly by land of The Community Montessori School as shown on said plan 370.36 feet;
Southeasterly again by Right of Way as shown on said plan 50 feet;
Westerly by a curved line by Lot 1 as shown on said plan 165 feet, more or less; 68 feet, more or less; 101 feet, more or less; and 36 feet, more or less;
Lot 2A is also conveyed subject to and with the benefit of the perpetual right of easement for passage as described in deed of R. Stevens Callender, Jr. and Charlotte K. Callender to Allan H. Chase, Jr. and Shelley S. Chase, dated April 1, 1980 and recorded with Plymouth County Registry of Deeds Book 4810, Page 466.
As stated previously, the plan referred to in the deed includes the 50 foot by 50 foot parcel in Lot 2A and there is no dispute that the boundary description omits the parcel from Lot 2A.
The law is clear that "a plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights to be conveyed." Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678 (1965) citing Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354; Goldstein v. Beal, 317 Mass. 750 , 755. It is also settled that "a deed will be construed most strongly and most favorably to the grantee;" Krinsky v. Hoffman, 326 Mass. 683 , 688 (1950).
The defendants ask the Court to find that an ambiguity exists and to rule that the metes and bounds description controls, thus giving ownership to the 50 foot by 50 foot parcel to the defendants Chase. Such a ruling would leave the defendants Chase having conveyed out Lots lA and 2A and retaining only the 50 foot by 50 foot parcel with no other property in the immediate vicinity. As the Court noted in Ryan v. Stavros, 348 Mass. 251 , 259 (1964), "it is proper to consider the improbability that a grantor who conveyed all her adjoining land would seek to retain such a relatively useless strip." It would also seem logical that if Chase had intended to retain the disputed parcel, they would have included in the plaintiffs' deed an easement thereover for access to the right of way as they did in the Hopkins' deed.
Having considered the briefs, exhibits and pleadings submitted, I find and rule that the plaintiffs acquired the fee in the 50 foot by 50 foot parcel by their deed from Chase referred to in finding no. 6 above. The ownership is subject to a perpetual right and easement for passage by foot or vehicle for the benefit of the owners of Lot 1A as set forth in the deed from Chase to Hopkins referred to in finding no. 5 and the Community Montessori School, Inc. I further find and rule that the deed dated May 8, 1987 from the defendants Chase to the defendants Hopkins attempting to convey an undivided one-half ownership interest in the 50 foot by 50 foot area is a nullity.
[Note 1] All instruments referred to herein are recorded at this registry.