REG 4696-S

July 27, 1988

Middlesex, ss.



The plaintiff herein is the registered owner of land at 848 Central Street, Framingham, Massachusetts shown as Lots 14, 15, 17, 18, 21 and 22 on Plan No. 4696E and seeks in this proceeding to have all Certificates of Title covering lots shown on Plan No. 4696E amended so as to eliminate the "proposed streets" in this subdivision delineated on said Plan. A copy of Land Court Subdivision Plan No. 4696E showing the "proposed streets" and lots is attached hereto as Appendix A. The Court gave notice to the eleven owners named in the certificates of title covering said lots.

The plaintiff obtained the consent of eight of the eleven owners of lots abutting on said streets to the Complaint for Approval of Plan and Petition to Amend Certificates of Title. Three of the abutters have not given their consent; two have filed answers objecting to said Amendment and have entered into a stipulation of facts with the plaintiff. The third abutter who was defaulted at the original hearing has since stated her objection in person and by letter to the Court.

A hearing was held December 8, 1987 and a stipulation of facts was filed. The plaintiff has submitted requests for findings of fact, rulings of law and an order for judgment.

The plaintiff claims that the proposed streets are not necessary to provide owners of any lot shown on Appendix A with access to a public street and are not necessary to any lot owners' enjoyment of his or her land. The plaintiff further asserts that none of the certificates of title issued contain any reservation of easement over the proposed streets and that therefore, the proposed streets should be eliminated. The lot owners who have objected assert that by implication and by the usual rules of construction, they have rights of ingress and egress over the proposed streets with a right to use them for all purposes for which streets and ways are commonly used, and that the plaintiff's complaint be dismissed.

On all the evidence, I find and rule as follows:

1. The plaintiff is the owner of property described in Certificates of Title No. 136566, 162928 and 178455 and shown as Lots 14, 15, 17, 18, 21 and 22 on Appendix A. These lots are bounded in part by two "proposed streets" as shown on Appendix A.

2. Defendant Laurits N. Flem, Jr. ("Flem") is the owner of property described in Certificate of Title No. 169282 and shown as Lot 20 on Appendix A.

3. Defendants Florence L. Crosby and Helen F. Crosby ("Crosby") are the owners of property described in Certificate of Title No. 59322 and shown as Lot 10 on Appendix A.

4. Defendants Patricia Hand Strayton, Jennifer A. Strayton and Melissa M. Strayton ("Strayton"), as Trustees of the Eighty Kellogg Street Realty Trust are the owners of property described in Certificates of Title No. 174325 and shown as Lots 12 and 13 on Appendix A.

5. The lots shown on Appendix A result from an original registration in 1914. Land Court Subdivision Plan No. 4696E (Appendix A) is a subdivision of the original lot and is based on a plan filed with the Court in 1919; it was at this time that the proposed streets were created.

6. All of the lots within the subdivision as shown on Appendix A (other than Lot 18) are bounded in part by a proposed street.

7. The proposed streets have never been accepted as public ways within the Town of Framingham and do not now exist as ways on the ground.

8. In April of 1986, the plaintiff filed with the Land Court a "Petition to Amend Certificates of Title and a Complaint for Approval of Plan." With the petition, the plaintiff filed a plan entitled "A Land Court Plan of Land in Framingham, Mass., Petitioner: Learning Center for Deaf Children, Inc., Scale 1" = 50', March 27, 1986, Schofield Brothers, Inc." ("Proposed Plan") which eliminates the proposed streets shown on Appendix A.

The plaintiff argues that no express grant or reservation of an easement over the proposed streets is contained in any of the certificates of title. Clearly, this is not the case. All of the defendants' certificates of title describe their individual lots as bounding "by a Proposed Street as shown on said plan" (referring to Plan No. 4696E). With such a description, the plan is incorporated into the certificate of title as much as if attached thereto, and the rights of passage over the proposed streets referred to and shown on the plan are appurtenant to the defendants' lots and all other lots within the subdivision. Dubinsky v. Cama, 261 Mass. 47 54-55 (1927).

The issuance of certificates of title in conformity to the plan and its accompanying decree had the effect of creating the rights involved in this litigation by express grant, to use the terminology of real estate law before the adoption of the system of registration of titles now set forth in G.L. c. 185; and hence whether they continue to be or are now necessary for the enjoyment of the land of the defendants, is not of consequence. Dubinsky at 55-56.

It is the position of the plaintiff that because the certificates of title for land within the subdivision make the lots "subject to a well easement as set forth in a deed given by Charles Browne to Lothrop Wight dated April 10, 1850, recorded with Middlesex So. District Deeds, Book 586, Page 82. . ." that an express reference should have been made on the certificates of title in order to grant rights over the proposed streets. This argument also must fail.

The requirement of G.L. c. 185, §47, as to the contents of the decree of the Land Court and of the several sections concerning the certificate of title, contains no reference to easements appurtenant to the land. It is only easements to which the registered land is subject which must be set out in the decree and certificate of title. However desirable it may be that the decree and the certificate of title should disclose the whole state of the title, including all easements appurtenant, that does not appear to be the mandate of the Legislature as shown in G.L. c. 185. Dubinsky at 56. It also is not the common Land Court practice; the Court interprets a conveyance of a lot on a subdivision plan as including the fee to the middle line of the way abutting said lot subject to the rights of all those entitled in the way and with the benefit of the right to use the way(s) as shown on the Land Court plan. This is the same rule applicable to unregistered land. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 680 (1965).

In Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 (1980), the plaintiff attempted to eliminate rights in a way shown on a plan within a registered land subdivision. In determining the rights of the defendants Mahoney to the subdivision's paper ways, the Appeals Court determined that as the certificate of title described the parcel as bounded by a way on the K plan, the Mahoneys had appurtenant rights along the entire length of the way.

The rights exists even if there are other ways, public or private, leading to the land (New Enland Structural Co. v. Everett Distilling Co., 189 Mass. 45 , 152 [1905]), and the rights are coextensive with the entire length of the way as actually laid out or as clearly indicated and prescribed. Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949); This remains the case even if the way is not in existence, so long as it is sufficiently designated on a plan. The rights also apply even if the way under consideration is obstructed, overgrown, and impassable. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965). Canton Highlands, Inc. at 55.

The present action is similar in facts to Canton Highlands, yet it is not discussed or distinguished by the plaintiff. The plaintiff Learning Center sets forth much of the same reasoning for eliminating the proposed streets including their reliance on Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 (1971) and Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 (1926) as did the plaintiffs in Canton Highlands. As the Appeals Court has clearly distinguished these cases in Canton Highlands, Inc., I do not attempt to do so here. See Canton Highlands, Inc. at 51-52, 56.

Finally, the plaintiff requests this Court to apply the reasoning of the Supreme Judicial Court in Goldstein v. Beal, 317 Mass. 750 (1945). In Goldstein, a subdivision plan of registered land contained an eleven foot passageway running between two lots and one building encroached onto the passageway. The Supreme Judicial Court noted that the original decree of registration "created no easements or rights with reference to the eleven-foot passageway" yet went on to clarify this finding stating "so long as there was a common ownership of the two parcels there could be no easement in favor of one lot operating as a burden on the other (citations omitted)." Goldstein at 754. The Goldstein court continues on to distinguish its decision based upon the facts:

In the case under consideration the passageway in question never in fact existed on the land. At the time of the severance of the common ownership above referred to, the buildings had been erected in their present position, and the passageway outlined on the plan could not have come into existence in fact without removing nearly six feet of the building now owned by the defendant. We are aware that in other circumstances a reference to a plan in a deed on which a passageway is designated may be sufficient to create rights in it. See Lagorio v. Lewenberg, 226 Mass. 464 ; Dubinsky v. Cama, 261 Mass. 47 . Goldstein at 765.

I find and rule that in the action herein, the circumstances are such that the reference "by a proposed street" as shown on Plan No. 4696E noted on every certificate of title issued for lots within the subdivision is sufficient to and does create rights in the proposed streets. I further rule that each lot owner within the subdivision has the fee interest to the center line in the proposed street as it bounds his or her lot with a right to pass and repass by foot or vehicle over the entire length of the proposed streets and a right to improve the entire length of either or both of the proposed streets shown on Appendix A should he or she so choose. See Carpenter v. Karp, Land Ct. Misc. No. 11461-S, July 8, 1988 (Sullivan, C. J.).

Based on the objections of the three abutters and the evidence presented, I therefore rule that the plaintiff's Complaint for Approval of Plan and Petition to Amend Certificates of Title is hereby denied. This Court is bound by Mass. G.L. c. 185, §114 which addresses the Procedure for the Amendment of Alteration of Certificates of Title and concludes:

. . . this section shall not authorize the court to open the original judgment of registration, and nothing shall be done or ordered by the court which shall impair the title or interest of a purchaser holding a certificate for value and in good faith, or his heirs or assigns, without his or her written consent.

I further rule that upon the presentation to this Court of a written release of all lot owners within the subdivision to the elimination of the proposed streets, this complaint may be reconsidered.

The plaintiff has made numerous requests including findings of fact, rulings of law and an order for judgment. I have not attempted to rule on each individually as I have made own findings on the facts I deem material and the law I believe is applicable.

Judgment accordingly.

exhibit 1

Appendix A