DAVID B. ARNOLD III vs. CHARLES DEMARKLES and DORIS DEMARKLES

The plaintiff herein seeks a permanent injunction enjoining the defendants from erecting a fence such as to interfere with the plaintiff's access to his property by way of Dean Road, a private way in North Quincy, Norfolk County, Massachusetts. The plaintiff claims ownership of Dean Road subject to the rights of certain others in and over Dean Road by virtue of a deed from Muriel Crossman ("Crossman").

This case was submitted on an agreed statement of facts and oral arguments were held on March 7, 1988. After considering pleadings, affidavits, briefs and arguments of counsel, I find the following:

1. The plaintiff is the owner of property at 250 Bellevue Road, North Quincy, Massachusetts by virtue of a deed dated May 25, 1975 from the estate of Jessie B. Mellor recorded in the Norfolk County Registry of Deeds in Book 5605, Page 12. The metes and bounds description of his property does not mention Dean Road nor is this property registered land.

2. The defendant Doris Demarkles is the ower of property at 26 Dean Road, North Quincy, Massachusetts described in Transfer Certificate of Title No. 78121 and shown as Lot B4 on Land Court Plan No. 1963-32 filed with Certificate of Title No. 36138. Said parcel is bounded and described "by Dean Road, shown on the plan hereinafter referred to; . . . so much of the above described land as is included within the limits of Dean Street and the Way, shown on said plan, is subject to the rights of all persons lawfully entitled thereto in and over the same."

3. Crossman was the owner of a parcel described in Transfer Certificate of Title No. 26587 and shown as Lot B on Land Court Plan Nos. 1953A and 1964A. Lot B was subdivided into Lot B1 and B2 with Dean Road for access. Lot B2 was later subdivided into B3 and B4 as shown on Land Court Plan No. 1963-32 (Appendix A). Crossman conveyed out portions of Lot B to various individuals and on July 8, 1965 conveyed Lot B4 to the defendant Doris Demarkles.

4. On or about November 23, 1987, Crossman granted to the plaintiff all of her right, title and interest in Dean Road described in Transfer Certificate of Title No. 26587 as shown on Land Court Plan No. 1963-32 "including without limitation the Grantor's entire right, title and interest in and to all or any portions of the fee in the roadbed in Dean Road" and "also including without limitation rights and easements in common with others entitled thereto in and over Dean Road to use the same for all purposes for which public or private ways are now or may hereafter customarily be used in the City of Quincy." A new Certificate of Title No. 127688 will be issued to the plaintiff for his interest in Dean Road upon the filing of a plan as referred to below.

The defendants maintain that at the time of Grossman's deed in November of 1987 to the plaintiff, she no longer had right, title or interest in Dean Road and thus the deed is meaningless. They assert that the Crossman deed to the defendant Doris Demarkles in 1965 conveyed Crossman's entire interest in Certificate of Title No. 26587.

At issue is the title to Dean Road. In 1940, Crossman purchased a large parcel of land shown as Lot B on Land Court Plan No. 1963A and 1964A dated October, 1907. In February of 1942, Crossman submitted a subdivision plan dividing Lot B into two separate lots and laying out Dean Road. This plan was approved March 3, 1942 as Land Court Plan No. 1963-21 and endorsed "separate certificates of title may be issued for lots B1 and B2." On March 5, 1942, Crossman conveyed Lot B1 to Richard N. and Esther Johnson and a separate certificate issued for Lot B1. Crossman did not receive a new certificate, rather her Certificate No. 26587 was endorsed "this certificate cancelled as to such lot" (referring to Lot B1). In December of 1947, Crossman submitted a second subdivision plan dividing B2 into Lots B3 and B4. This plan was approved December 12, 1947 as Land Court Plan No. 1963-32 and endorsed "separate certificates of title may be issued for lots B3 and B4." On December 12, 1947, Crossman conveyed Lot B3 to Elizabeth Holmes and a separate certificate issued for Lot B3; again, Crossman's Certificate of Title No. 26587 was noted as "this certificate cancelled as to such lot." On July 8, 1965, Crossman conveyed Lot B4 to the defendant and again a separate certificate issued for Lot B4 and her certificate was noted "this certificate cancelled as to such lot." The Memorandum of Encumbrances attached to Crossman's Certificate of Title No. 26587 was never cancelled.

Both parties agree that G.L. c. 183, §58 which would now include the grantor's fee interest in an abutting way in such deed is not here applicable as the conveyance from Crossman to the defendant Demarkles predates the enactment of the statute, and G.L. c. 183, §58 is not retroactive as to registered land. See Chapter 684 of the Acts and Resolves of 1971 and Chapter 185 of the Acts and Resolves of 1973.

It is a well settled rule of construction that where a deed describes the granted premises as bounded by a way, the grantor is presumed to have conveyed the fee to the center of the way. Murphy v. Mart Realty, 348 Mass. 675 , 680 (1965); Erickson v. Ames, 264 Mass. 436 , 442 (1928); Pinkerton v. Randolph, 200 Mass. 24 (1908).

The plaintiff agrees with this principle and asserts that while the defendants own to the center line with a right to pass and repass across Dean Road, the northeasterly half of Dean Road has been deeded to the plaintiff by Crossman. The defendants assert that Crossman deeded her entire interest and if she had not, common conveyancing standards would require limiting language to have been used. Clearly, this is not so under the Land Registration system.

Under the Land Registration system, the conveyance of a portion of registered land requires the preparation of a subdivision plan in accordance with Land Court standards and its filing with land Court Engineers who then approve the description in any proposed deed before it will be accepted for registration in any local registry district. The Norfolk County Registry District has accepted the deed from Crossman to the plaintiff as conveying her right, title and interest to Dean Road (such interest being the ownership of the northeasterly half of Dean Road) and Certificate of Title No. 127688 will be issued to the plaintiff upon presentation of a plan delineating the area conveyed. I concur with the decision of the Norfolk County Registry District to accept the deed.

G.L. c. 185, §65 sets forth the procedure for the registration of title where the deed conveys only a portion of the registered fee as follows:

. . . If the land described in a certificate of title is divided into lots, designated by numbers or letters, with measurements of all the bounds, and a plan of said land has been filed with the recorder and verified pursuant to section fifty-one, and a certified copy thereof is recorded in the registration book with the original certificate when the registered owner makes a deed of transfer in fee of one or more of such lots, the assistant recorder may, instead of cancelling such certificate and entering a new certificate to the grantor for the part of the land not included in the deed of transfer, enter on the original certificate and on the owner's duplicate certificate a memorandum of such deed or transfer, with a reference to the lot or lots thereby conveyed, as designated on said plan, and stating that the certificate is cancelled as to such lot or lots. Every certificate with such memorandum shall be as effectual for the purpose of showing the grantor's title to the remainder of the land not conveyed as if the old certificate had been cancelled and a new certificate of such land entered; and such process may be repeated so long as there is convenient space upon the original certificate and the owner's duplicate certificate for making such memorandum of sale of lots.

Based upon the applicable caselaw and the provisions of the Land Registration system, I find and rule that the defendant Doris Demarkles, by virtue of her deed, has the ownership to the center line of the southwesterly half of Dean Road immediately abutting Lot 84 with a right to pass and repass across the entire road subject to the rights of others lawfully entitled thereto. The plaintiff by virtue of his deed from Crossman has the fee ownership to the center line of the northeasterly half of Dean Road with a right to pass and repass across the northeasterly half of Dean Road subject to the rights of others lawfully entitled thereto to pass and repass across Dean Road.

Accordingly, I rule that the defendants are prohibited from erecting a fence or obstruction along the forty-five foot portion on the northeasterly side of Dean Road fronting on Bellevue Avenue and are also required to remove any existing fence, fence posts or obstructions along the entire northeasterly half of Dean Road. The defendants, their agents, servants and assigns are hereby prohibited from interfering with or obstructing the rights of anyone lawfully entitled to pass and repass over Dean Road and are also prohibited from interfering with or obstructing the right of the plaintiff, his agents, servants or assigns from using the northeasterly half of Dean Road. I further rule that the plaintiff, his agents, servants and assigns are hereby prohibited from interfering with or obstructing the rights of the defendants, their agents, servants and assigns or others lawfully entitled thereto from passing and repassing over Dean Road.

Judgment accordingly.

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