MISC 125226

February 27, 1989

Barnstable, ss.



Robert J. Gingras ("Plaintiff") commenced Miscellaneous Case No. 125226 on October 22, 1987 seeking thereby a declaration, pursuant to G.L. c. 231A, §1, of the rights and other relations which he and Allan T. and Mary L. Duffy ("Defendants") possess in a certain ten (10) foot wide, unimproved private way ("Way") 1ocated in Dennis, Massachusetts and shown on Land Court Plan No. 12850-B (Exhibit No. 1), dated March 14, 1931, which plan is filed with Certificate of Title No. 2654 in the Barnstable County Registered Land Section, and further seeking damages incurred by the Defendants' construction of a fence along the northwesterly portion of the Way, as well as an Order requiring the fence's removal.

A trial was held in the Land Court on September 7, 1988 at which a stenographer was appointed to record and transcribe the testimony. Three witnesses testified and thirteen exhibits were introduced into evidence, such exhibits having been incorporated herein for the purpose of any appeal.

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

1. The Plaintiff is the owner of certain registered land located in Dennis, Massachusetts, shown as Lots No. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 14 on a Land Court plan numbered 12742-B (Exhibit No. 2), entitled "Subdivision of Lot C shown on Plan 12742-A3" and dated December 4, 1930. Plan No. 12742-B depicts Lots No. 3, 4 and 5 as fronting on a certain twenty (20) foot wide private way to the northwest and as abutting Lot "D" to the southeast. The Plaintiff also owns Lots No. 22, 23 and 24 as shown on a Plan No. 12850-B (Exhibit No. 1), dated March 14, 1931. Plan No. 12850-B appears to be a subdivision of former Lot "D" on Plan No. 12742-B and establishes the subject ten (10) foot wide way. The Way runs along the northwesterly line of former Lot "D", abutting the aforesaid Lots No. 3, 4 and 5. Lots No. 22, 23, 24, 25 and 26 all front on the southeasterly side of the Way. The Plaintiff holds title to the foregoing lots by Transfer Certificate of Title No. 71125 (Exhibit No. 4), dated July 8, 1977. Since 1977, the Plaintiff has used the entire premises as summer apartment rental property.

2. The Defendants own certain registered land in Dennis, Massachusetts which is situated adjacent to the Plaintiff's property abutting the ten (10) foot way and shown as Lots No. 25 and 70 on a plan numbered 12850-J [Note 1] (Exhibit No. 3), entitled "Subdivision Plan of Land in Dennis" and dated February, 1972. The Defendants hold title thereto by Transfer Certificate of Title No. 53933 (Exhibit No. 9), dated February 28, 1972. Such Certificate describes the land owned by the Defendants, in part, as follows:

[the] northwesterly portion of a 10 foot Way . . . as shown on . . . plan 12850-B . . ., subject however to any and all rights of those lawfully entitled thereto in and over the same.

3. The Way to which both parties claim title is a ten (10) foot wide unpaved, private way with a beach sand surface (See Exhibits No. 10A and 10B). As stated in Finding No. 1, above, the Way is situated in between Lots No. 1, 2, 3, 4, 5 on Plan No. 12742-B, although not shown thereon, and Lots No. 22, 23, 24, 25 and 26 on Plan No. 12850-B.

4. On May 7, 1964, a case was commenced in the Barnstable County Superior Court between Marion L. Femia, the Defendants' predecessor in title who owned Lots No. 5, 6, 25, and 26 on Plan No. 12850-B, and Domenic Saccocia, et al, the Plaintiff's predecessor in title who owned Lots No. 3 through 14 on Plan No. 12742-B, and Lots No. 22, 23 and 24 on Plan No. 12850-B, concerning the parties' respective rights in the Way. See Femia v. Saccocia, Superior Court No. 27705.

On June 1, 1966, a Final Decree ("Decree") on the matter was entered by Gourdin, J., ordering, in summary, as follows:

a.) That the defendants . . . their agents and servants . . . are hereby forever enjoined and restrained from:

1. . . . using that section of the . . . way lying Northwesterly of Lots 25 and 26, . . . on Plan No. 12850-B. . . .

2. . . . using in any manner the said . . . way lying Northwesterly of Lots 22, 23, 24, 25 and 26 as shown on . . . Plan No. 12850-B except to use said way as a means of ingress and egress from and to the fifteen (15) foot way to Cape Cod Bay, and the limits of the defendants lots 22 thru 24.

3. . . . interfering with the erection and maintenance by the plaintiff of a fence along the Northwesterly side of said . . . way.

Said Decree was never recorded in any Registry nor noted on either the Femia or Saccocia Certificate of Title. Further, it does not appear on either the Plaintiff's or Defendants' Certificate of Title.

5. From 1977 to late 1986 or early 1987, the Plaintiff housed his office, garage, supply room and laundry facilities on Lots No. 23 and 24. During this time, the Plaintiff and his guests crossed over the Way as access between Lots No. 3 through 5 and Lots No. 22 through 24, but particularly from Lot No. 3 across to Lot No. 24 and vice versa. Further the Plaintiff maintained the Way by such means as hiring a contractor each year to clear away the excess sand which accumulated over the winter months.

6. In about June of 1986, the Defendant, Mr. Duffy, informed the Plaintiff that henceforth, he, the Plaintiff, would have to pay him an annual fee of $1,250.00 for use of the Way. The Plaintiff refused to consent to such an arrangement and in about November of 1986, the Defendants erected a post and plank fence along the northwesterly boundary of the Way, opposite Lots No. 22, 23 and 24, as shown on a plan entitled "A Wall and Fence Location in Dennis, Mass. Off Mandigo Road", dated June 18, 1987 (Exhibit No. 13). The southwesterly portion of said fence abuts an existing concrete wall which runs from Lot No. 70 to a portion of Lot No. 3. The concrete wall was constructed in the summer of 1982 through the joint financial efforts of the Plaintiff and the Defendant, Mr. Duffy (See Exhibit No. 12). In addition, the parties agreed to share the cost of the wall's maintenance. The wall was constructed with an opening providing access to the Plaintiff's lots situated northwesterly of the Way. In September of 1987, however, the Defendants caused a three foot wide opening in such wall to be blocked (See Exhibit No. 11).

7. Subsequent to the Defendants' construction of the post and plank fence, the Plaintiff relocated his office, supply room and laundry facilities for the accommodation of those guests no longer having convenient access thereto on account of such fence.

In the present action, the Defendants contend that they are the lawful owners of the full fee interest in the Way, pursuant to the Decree entered in Femia v. Saccocia. Conversely, the Plaintiff claims ownership of that portion of the Way which runs adjacent to Lots No. 22, 23 and 24. An examination of their respective Certificates of Title, and the plans referred to therein, reveals the following:

1. The Plaintiff holds title to Lots No. 22, 23 and 24, said Lots No. 22 and 23 being bounded, "Northwesterly by [the] Way 10 feet wide, eighty-seven and 28/100 (87.28) feet" and Lot No. 24 being bounded, "Northwesterly by [the] Way 10 feet wide, forty-five (45) feet".

2. The Defendants hold title to Lot No. 25, which lot is bounded "Northwesterly by [the] Way 10 foot wide, forty­five (45) feet" and Lot No. 70, which is bounded, "Northwesterly by said . . . Way, forty-seven and 18/100 (47.18) feet." The Defendants further own the "Northwesterly portion of [the] 10 foot way . . . subject however to any and all rights of those lawfully entitled thereto in and over the same."

The law is well-settled that the title of those persons who have acquired land bounded on or by a street or way runs to the center line of the way and carries with it the right to use the way along its entire length. 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). Accordingly, as the parties herein own parcels which are descriptively bounded by the Way, they hold equal rights of unobstructed passage and repassage over the entire distance of such Way as it is actually laid out. Casella at 89-90; Murphy at 677-678; Canton Highlands, Inc. v. Searle, 9 Mass. 48 , 54-55 (1980). Said rights are unlimited as to direction, with the instant parties having the right to pass and repass laterally, as well as longitudinally. The Defendants' contention that their ownership of the northwesterly portion of the Way justifies their construction of a fence therein is therefore misplaced. As stated above in Finding No. 4, the judgment rendered in the Femia matter was never noted on any Certificate of Title as is required by G.L. c. 185, §91 to affect registered land. Such judgment was thus binding only upon the parties thereto and is without effect upon the rights of either the Gingrases or Duffys in the Way. [Note 2] Moreover, the Defendants' contention overlooks completely the limiting language in their Certificate of Title, namely that they hold such title to the Way subject to the rights of all other persons lawfully entitled to use the same. Clearly, the foregoing rules of law categorize the Plaintiff as a person so entitled to use the Way. I therefore hold that as the Defendants, by express grant, own the northwesterly section of the Way adjacent to lots No. 25 and 70, and while the Plaintiff owns that portion of the Way running adjacent to lots No. 22, 23 and 24, said parties hold title thereto subject to the rights which each may possess to pass and repass, without interference, across and along the entire length of the Way. I also conclude that inasmuch as the Plaintiff's ownership of Lots No. 23 and 24 includes rights of passage across the Way to Lot No. 3 and to his other property adjacent thereto, and as the Plaintiff uses Lots No. 23 and 24 for the office and facilities which are essential or incidental to the operation of his summer rental business, those guests of the Plaintiff who may happen to be staying on the northwesterly side of the Way have the implied, if not express, permission of the Plaintiff to enjoy similar rights of unobstructed passage, provided such passage is exercised for access to Lots No. 23 and 24. I further rule that, based on the aforementioned prinicples of law, the Defendants must remove both the fence which they have located in the Way and the barrier which they have caused to be positioned at the opening in the concrete wall.

In consideration of the foregoing, I rule that the Defendants hold title to the northwesterly half of the Way immediately abutting Lots No. 25 and 70 and that the Defendants and those claiming under them have the right to pass and repass across and along the entire distance of the Way, subject to the rights of others lawfully entitled thereto. The Plaintiff has the fee ownership to the center line of the southeasterly half of the Way adjacent to his property. In addition, the Plaintiff and those claiming under him have the right to pass and repass across and along the entire length of the Way, subject to the rights of those lawfully entitled thereto, all as set forth above. Accordingly, as the Defendants have caused both the post and plank fence and the blockage in the concrete wall to be placed in the northwesterly half of the Way, they must be and hereby are ordered to remove such obstructions within ninety (90) days of the entry of a final judgment herein. I further rule that, due to such unlawful use of the Way by the Defendants, the Plaintiff has suffered damages in the amount of $1,000.00.

The Plaintiff and Defendants have submitted requests for findings of fact, which I have considered. Certain of these requests have been incorporated herein. I have taken no action on the remainder, as I have made my own findings as to those facts which I deem pertinent.

Judgment accordingly.


[Note 1] In 1972, Lot No. 26 and a portion of Lot No. 6, as shown on Plan No. 12850-B, were subdivided, thereby resulting in the creation of Lot No. 70 as shown on Plan No. 12850-J.

[Note 2] I do not decide herein whether the Barnstable Superior Court had jurisdiction over the Femia action, said action having involved registered land and having been adjudicated prior to the enactment of G.L. c. 185, §l (a l/2) and the decision of the Supreme Judicial Court in Tetrault v. Bruscoe, 398 Mass. 454 (1986).