JEFFREY C. STEUART and MARY E. STEUART vs. WILLIAM H. REESE, MARY L. REESE, SUSAN V. GRANT, MATTHEW J. PAYNE, JR., LEONA T. PAYNE, JOE E. SKINNER and JANET L. SKINNER.

By this action, filed on December 22, 1986, Jeffrey C. and Mary E. Steuart ("Plaintiffs") seek to establish their rights in a certain forty (40) foot wide private way located in Reading, Massachusetts, commonly referred to as Wales Avenue. As shown on a plan entitled "Plan of Reading Acres", dated August 1915, recorded at the Middlesex South District Registry of Deeds, [Note 1] Plan Book 236, Plan 36, ("Plan of Reading Acres") (Exhibit No. 1), Wales Avenue runs in an easterly direction from Martin Road to Hurlburt Road. Specifically, the Plaintiffs herein request that the Court order the Defendants Reese and Grant to remove from Wales Avenue any and all obstructions which they have caused to be placed thereupon, and to issue a further order permanently restraining the Defendants Reese, Grant, Payne and Skinner, and their successors in title, from barricading, obstructing or in any way interfering with the Plaintiffs' use of Wales Avenue as a means of access, by foot or by vehicle, from the aforesaid Martin Road to their property located at 8 Hurlburt Road ("Locus").

The Defendants Payne and Grant filed answers to the Plaintiffs' complaint on February 2, 1987, the Paynes including therein a cross claim against the Reeses, Skinners and Grant seeking relief identical to that prayed for by the Plaintiffs in their complaint. Thereafter on November 21, 1988, the Defendants Skinner filed their answer, including therein the same cross claim against the Defendants Reese and Grant. An answer was filed by the Defendants Reese on November 30, 1988.

A trial was held in the Land Court on November 30, 1988, at which time all testimony was tape-recorded and later transcribed. Five witnesses testified and fourteen exhibits were introduced into evidence. One chalk was presented to assist the Court. All exhibits and chalks are incorporated herein for the purpose of any appeal. On December 22, 1988, the Court, in the presence of counsel, viewed Wales Avenue in relation to the parties' respective properties.

On all of the evidence, I make the following findings of fact:

1. As it appears on the 1915 Plan of Reading Acres, Wales Avenue is a forty (40) foot wide private way running from Martin Road, easterly to Hurlburt Road. On the ground, Wales Avenue is essentially a gravel roadway of varying widths for a distance of approximately 150 feet westerly, at which point it narrows to a wooded path of varying widths and courses for a distance of 100± feet. A row of stones extends across at least a portion of Wales Avenue where such roadway narrows to a wooded path. I find said row of stones, however, to be of an insufficient nature to create any viable interference with passage and repassage over Wales Avenue.

2. Prior to its registration in 1982 (See Land Court Registration Case No. 40288) by one Alma E. Gardner ("Gardner"), the parcel of which Locus constitutes a part consisted of Lots No. 274 through 282, and Lots No. 313 and 314 on the Plan of Reading Acres, ownership of the same including the right to pass and repass without obstruction or interference, by foot or by motor vehicle, along and over Wales Avenue for purposes of ingress to and egress from Locus, subject only to similar rights held by other persons in and over the same.

3. By Final Decree of the Land Court in Registration Case No. 40288, Gardner registered title to 15,650± square feet of land shown on the Plan of Reading Acres as Lots No. 278 through 281 and a portion of Lot No. 282 and Wales Avenue; as registered, Locus appears on Land Court Plan No. 40288A, dated June 29, 1979. Gardner's registration petition thus resulted in the extinguishment of a portion of Wales Avenue. I note, however, that such registration of title had no effect whatsoever upon the pre-existing rights of Gardner or other persons to pass and repass over and along Wales Avenue as it extends from Locus to Martin Road.

4. The Plaintiffs acquired title to Locus, as registered, by Transfer Certificate of Title No. 17082, dated June 1, 1984 (Exhibit No. 2). Locus is described in the Plaintiffs' Certificate using the following boundary description:

Southeasterly by Hurlburt Road, one hundred forty and 86/100 feet;

Southwesterly by land now or formerly of Matthew J. Payne, Jr. et a1, one hundred ten and 06/100 feet;

Westerly by said land now or formerly of Matthew J. Payne, Jr. et al and in part by the end of Wales Avenue, seventy-five and 32/100 feet;

Northerly by land now or formerly of Alma E.Gardner, one hundred and twenty-five feet;

Easterly by the end of Wales Avenue, forty feet; and

Northerly by Wales Avenue forty-one and 25/100 feet (Emphasis added).

5. The Defendants Grant, Skinner, Reese and Payne own lots abutting Wales Avenue, which lots are numbered 15A, 16, 18 and 19 respectively on a plan entitled "Location Survey, Martin Road and Wales Ave.", dated November 28, 1988 ("Location Survey Plan") (Exhibit No. 12). Additionally, as shown on the Plan of Reading Acres, the Grants own Lots No. 266 and 267, the Skinners own Lots No. 253 through 262 and the Reeses own Lots No. 268 through 273, all of which lots are descriptively bounded on or by Wales- Avenue. (See Exhibits No. 8, 9 and 13). The evidence before the Court is insufficient, however, to establish which of the additional lots shown on this plan are presently owned by the Defendants Payne or if, pursuant to the Payne deed, such land is also descriptively bounded on or by Wales Avenue.

6. By deed dated August 4, 1947, recorded at Book 7168, Page 393 (Exhibit No. 9), the Reeses acquired title to property located at 21 Martin Road. From 1947 to the present, the Reeses have used that portion of Wales Avenue situated on the northerly side of their property, measuring 125± feet in length as shown on the Location Survey Plan, for purposes of accessing their driveway. During this time, the Reeses have also maintained such portion of Wales Avenue by plowing it of snow in the winter months.

7. The Defendant Grant, individually, acquired title to 25 Martin Road by deed dated March 24, 1981, recorded at Book 14261, Page 397 (Exhibit No. 13). She has resided on the property with her family since December of 1966, the premises having been originally conveyed to Grant and her husband as tenants by the entirety on December 22, 1966. Since at least 1947, the Grants or their predecessors in title have used that portion of Wales Avenue situated on the southerly side of their home, measuring approximately twenty (20±) feet in width by one hundred (100±) feet in length, as a side yard. As shown on the Location Survey Plan, the land situated in front of Lot 15A, which is enclosed within the parameters of hedges and a stone wall, constitutes said side yard area. From 1966 to the present, the Grants have used this area of Wales Avenue primarily for outdoor activities (i.e , cookouts, entertaining guests, etc.). Additionally, the Grants, as well as their predecessors in title, have maintained this area by mowing the grass, gardening and planting shrubbery.

The aforesaid stone wall has stood in its present location since at least 1947, the Grants having attended to its general maintenance since 1966 and, at some time after 1966, increased its height by approximately one foot. Additionally, in 1985, the Grants removed the hedges running along the Wales Avenue side of their property and planted fruit trees, bushes and flowers in their place. Over the years, the Grants have further utilized a portion of Wales Avenue as a driveway for purposes of accessing the parking area in the rear of their home.

Pursuant to Massachusetts General Laws Chapter 183, section 58, where a grantor conveys property bounded on or by a private way, he transfers title to the middle line of the way. The grantor and those persons claiming under him are thus estopped to deny the existence of such way and the grantee thereby acquires an appurtenant right to use the entire distance of the way, as it appears on the plan, if any, referred to in the deed of conveyance or as it is actually laid out. Farnsworth v. Taylor, 75 Mass. (9 Gray) 162, 166 (1857); Oldfield v. Smith, 304 Mass. 590 , 595-596 (1939); Goldstein v. Beal, 317 Mass. 750 , 755 (1945); Casella v. Sneierson, 325 Mass. 85 , 89 (1949); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987). This well-established rule of construction applies even if the way in issue is not yet in existence, so long as it is sufficiently contemplated and designed. Ralph v. Clifford, 224 Mass. 58 , 60 (1916); Casella at 90; Olson v. Arruda, 328 Mass. 363 , 365 (1952); Murphy at 680.

The evidence before the Court reveals that the Plaintiffs and Defendants, Reese, Grant and Skinner, hold title to lots which are descriptively bounded on or by Wales Avenue. The incompleteness of the remaining evidence in the record precludes a similar finding as to the Defendants Payne. Further, as Wales Avenue has been depicted on plans dated as early as 1915, referred to in deeds and used periodically by abutting and neighboring landowners since at least the 1940's, I find said way to be contemplated and sufficiently designated for purposes of calling the aforementioned principles of construction into effect. An application of said principles to the instant facts thus warrants a finding that the Plaintiffs and Defendants, Reese, Grant and Skinner, hold the fee to the center line of Wales Avenue, as well as the appurtenant right to pass and repass without obstruction, except as set forth below, either by foot or by vehicle, over and along the entire distance of the same, subject only to like easement rights in other persons similarly situated. Boland v. St. John's Schools, 163 Mass. 229 , 236 (1895). Further, in light of the rule that once an easement or right of way is created, every right necessary or incidental to its enjoyment is included by implication, Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934); Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937), I find that the right of way held by the Plaintiffs and Defendants, Reese, Grant and Skinner, carries with it the right to make reasonable repairs and improvements to Wales Avenue at their own expense.

The evidence before the Court further reveals that since at least 1947, the Grants and their predecessors in title have used that portion of Wales Avenue described in Finding No. 7, above, in a manner which has been open, notorious, continuous, exclusive and adverse as to persons lawfully entitled to pass and repass over and along the way. I thus find accordingly that, under the doctrine of adverse possession, the Grants have also acquired a fee simple interest in this portion of Wales Avenue. Ottavia v. Savarese, 338 Mass. 330 , 332 (1959); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Ryan v. Stavros, 348 Mass. 251 , 262 (1964). I decline to make a similar finding with respect to the Defendant Reeses, as their use of that portion of Wales Avenue described in Finding No. 6, above, is a use consistent with the rights of passage and repassage which they presently hold in Wales Avenue.

Insofar as certain of the Defendants may herein assert that any right of way held by the Plaintiffs over and along Wales Avenue has been extinguished by the existence of a row of stones across a portion of Wales Avenue for a period in excess of twenty years, and by abandonment on the part of the Plaintiffs, I note that easements so created by deed may not be extinguished by mere nonuse, Lemieux v. Rex Leather Finishing Corp., Mass. App. Ct. 417, 421-422 (1979), and that an intent to abandon the easement is required to prove abandonment, the same being evidenced most clearly by a determination to never again make use of the easement. Desotel v. Szcygiel, 338 Mass. 153 , 159 (1958); Delcante v. Salloum, 336 Mass. 184 , 188 (1957); Emery v. Crowley, 371 Mass. 489 , 495 (1976). Here, the introduction of evidence as to use of Wales Avenue by the parties and other neighboring landowners effectively precludes a finding of any intent to abandon such right of way. Moreover, I note, as I have previously found, that a view of said row of stones reveals it to be of an insufficient size and nature to effectively obstruct or interfere with existing easement rights in Wales Avenue.

I thus rule in summary that the Plaintiffs and Defendants, Reese, Grant and Skinner, hold the fee to the center line of Wales Avenue, as well as the right to pass and repass without obstruction, except as set forth herein, either by foot or by vehicle, along and over the entire length of the same, subject only to like easement rights in other persons similarly situated, and the right to make reasonable repairs and improvements to Wales Avenue at their own expense. I rule further that, under the doctrine of adverse possession, the Defendant Grant has acquired a fee interest in that portion of Wales Avenue located on the southerly side of her property, measuring approximately twenty (20±) feet in width by one hundred (100±) feet in length, as shown on the Location Survey Plan.

The Plaintiffs and Defendant Grant have submitted requests for findings of fact which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made my own findings as to those facts which I deem most pertinent hereto.

Judgment accordingly.