The Plaintiffs commenced Miscellaneous Case No. 126981 on March 3, 1988 seeking a declaration, pursuant to G.L. c. 231A , of the rights which all of the parties to said action possess in and over two (2) certain private ways located in the City of Waltham, Massachusetts ("City") known as Chesterbrook Road and Stanley Road (collectively referred to as "Ways"), which Ways are shown on two (2) plans entitled "Plan of House Lots on Part of the Estate of Robert Treat Paine", dated November, 1911 (Exhibit No. 3) ("1911 Plan") and May, 1912 (Exhibit No. 9) ("1912 Plan"), and recorded in the Middlesex South District Registry of Deeds, [Note l] respectively, at Plan Book 202, Plan No. 40 (A of 1 and B of 2) and Plan Book 212, Plan No. 27. A copy of the 1912 Plan is attached hereto for reference.
A trial was held at the Land Court on October 20, 1988, at which four (4) exhibits were introduced into evidence (Exhibits "A", "B", "C" and "D") and three (3) chalks were presented to assist the Court. As the parties filed a Joint Stipulation of Facts (Exhibit "A"), with some sixty-eight (68) stipulated exhibits submitted therewith, oral arguments on the matter were waived. All exhibits and chalks are incorporated herein for the purpose of any appeal and certain of the stipulated facts are included in the findings set forth below. The Court, in the presence of counsel, viewed the subject area on October 21, 1988.
On all of the evidence, I find the following facts:
1. The Plaintiffs are the record owners of certain lots ("Plaintiffs' Lots") located off of the subject Ways in Waltham, said lots being depicted on the 1911 Plan, the 1912 Plan and a plan entitled, "Plan Showing Subdivision of a Part of the Estate of Robert Treat Paine", dated June 1922 and recorded at Plan Book 312, Plan No. 24 (Exhibit No. 25) ("1922 Plan"). These lots are identified with particularity in further findings made below.
2. The Defendants are the record owners of a certain tract of land containing approximately 30 acres ("Locus"), as shown on Sheet No. 33 of the City of Waltham Assessors' Maps (Exhibit No. 68).
3. The Plaintiffs' Lots and the Locus were originally part of a large parcel of real estate owned by one, Robert Treat Paine.
4. On December 14, 1891, Lowell Clark conveyed approximately 38 and 41/100 acres of land located in Waltham ("Paine Estate") to Robert Treat Paine ("Paine"), said transfer being evidenced by a deed recorded at Book 2087, Page 114 (Exhibit No. 1). This land is shown on a plan entitled "Plan of Land in Waltham owned by Lowell Clark", dated December 8, 1891 and recorded at Plan Book 72, Plan 35 (Exhibit No.2).
5. On August 11, 1910, Paine died leaving five (5) children, Robert Treat Paine (Jr.), George Lo Paine, Ethyl Lo Paine, Lydia Lo Cummings and Edith P. Storer (collectively referred to as "Heirs"), and no widow.
6. On August 11, 1910, the Paine Estate was subdivided, said subdivision being depicted on the 1911 Plan and showing the subject Ways as the means of access within the subdivision and out to Lexington Street. At this time, the Paine Estate held title to the subject Ways.
7. By deed dated October 7, 1911 and recorded at Book 3647, Page 171 (Exhibit No.4), the Heirs conveyed the land shown as Lots No. 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39 on the 1911 Pl an and 1912 Plan to Ellen M. and Arthur G. Childs, as Trustees under the will of William G. Childs.
8. On November 14, 1911, the Heirs granted to the City the right to lay and maintain water pipes in and through the Ways, said grant being evidenced by an instrument recorded at Book 3658, Page 462 (Exhibit No. 5).
9. By deed dated December 19, 1911 and recorded at Book 3758, Page 261, the Heirs conveyed Lots No. 1, 2 and 3, as well the lot identified as "Lot No. 1" on the 1911 Plan and 1912 Plan, to Lewis S. Hardy (Exhibit No. 6).
10. On December 20, 1911, the Heirs transfer red the lots shown as Lots No. 40, 41 and 42 on the 1911 Plan and 1912 Plan to Harriett V., Ida E. and F. Josephine Hall, said deed being recorded at Book 3661, Page 371 (Exhibit No. 7).
11. By deed dated December 20, 1911 and recorded at Book 3763, Page 569, the Heirs conveyed the parcel identified as "Sold to Alfred Emerson" on the 1911 Plan and 1912 Plan, to Alfred Emerson (Exhibit No. 8).
12. In 1912, the Heirs further subdivided a portion of the Paine Estate, said subdivision being shown on the 1912 Plan. The Defendants presently own, inter alia, the two (2) unnumbered lots marked "Reserve" appearing on the 1912 Plan at the northerly end of Chesterbrook Road, adjacent to Lot No. 62.
13. By deed dated September 20, 1912 and recorded at Book 3749, Page 155, the Heirs conveyed the land shown as Lots No. 21, 22 and 23 on the 1911 Plan and 1912 Plan to Walter S. Viles (Exhibit No. 10).
14. By deed dated April 1, 1913 and recorded at Book 3778, Page 582, the Heirs sold the lots identified as Lots No. 59, 60 and 61 on the 1911 Plan and 1912 Plan to Etta L. Rollins (Exhibit No. 11).
15. By deed dated April 1, 1913 and recorded at Book 3786, Page 401, the Heirs conveyed Lots No. 62, 63 and a small triangular strip of land adjoining the northerly corner of Lot No. 62, as shown on the 1912 Plan, to Clinton T. Turner (Exhibit No. 12).
16. By deed dated September 24, 1914 and recorded at Book 3932, Page 267, the Heirs conveyed Lot No. 58, as shown on the 1911 Plan and 1912 Plan, to Etta L. Rollins (Exhibit No. 13).
17. By deed dated March 25, 1916 and recorded at Book 4045, Page 22, the Heirs conveyed Lots No. 17, 18 and 19, as shown on the 1911 Plan and 1912 Plan, to Charles E.D. Moore (Exhibit No. 14).
18. By deed dated April 1, 1916 and recorded at Book 4045, Page 23, the Heirs conveyed Lots No. 81 and 82, as shown on the 1912 Plan, to Edith P. Storer (Exhibit No. 15).
19. By deed dated September 8, 1916 and recorded at Book 4088, Page 553, the Heirs conveyed Lot No. 64, as shown on the 1912 Plan, to Bert B. and Alice L. Richards (Exhibit No. 16).
20. By deed dated September 2, 1918 and recorded at Book 4231, Page 329, the Heirs conveyed Lots No. 43 and 44, as shown on the 1911 Plan and 1912 Plan, to F. Josephine and Ida E. Hall (Exhibit No. 17).
21. By deed dated May 19, 1919 and recorded at Book 4263, Page 572, the Heirs conveyed Lots No. 13, 14, 15 and 16, as shown on the 1911 Plan and 1912 Plan, to Charles A. and Iva J. Ohnemus (Exhibit No. 18).
22. On December 19, 1919, the Heirs conveyed Lots No. 78, 79 and 80, as well as two (2) lots located southerly of Lot No. 80 and marked "Reserve" on the 1912 Plan, to Leslie E. Blake, said deed being recorded at Book 4326, Page 288 (Exhibit No. 19).
23. On December 19, 1919, the Heirs conveyed Lots No. 4, 5, 6, 7, 8, 9, 10, 11 and 12, as shown on the 1911 Plan and 1912 Plan, to Lewis S. Hardy, said deed being recorded at Book 4360, Page 215 (Exhibit No. 20).
24. By deed dated April 5, 1921, the Heirs conveyed a certain parcel of land to Chester M. and Dorothy R. Dunham, which deed is recorded at Book 4428, Page 461 (Exhibit No. 21). This parcel is shown as Lots No. 89, 90, 91, 92 and 93 on the 1922 Plan.
25. By deed dated September 1, 1921 and recorded at Book 4527, Page 204, the Heirs conveyed Lots No. 45, 46 and 47, as shown on the 1911 Plan and 1912 Plan, to F. Josephine and Ida E. Hall (Exhibit No. 22).
26. On October 1, 1921, the Heirs granted to the City an easement to lay and maintain drains and sewers in and through the Ways, as far as said Ways extend, as shown on the 1911 Plan. Said instrument is recorded at Book 4471, Page 384 (Exhibit No. 23).
27. By deed dated October 1, 1921, the Heirs conveyed Lot No. 83, as shown on the 1912 Plan, to Edith P. Storer, said deed being recorded at Book 4473, Page 387 (Exhibit No. 24).
28. In 1922, the Heirs further subdivided the Paine Estate, said subdivision being shown on the 1922 Plan (Exhibit No. 25).
29. On June 26, 1922, the Heirs conveyed Lots No. 65, 66, 67, 68 and 69, as shown on the 1912 Plan, to Bert B. and Alice L. Richards, which deed is recorded at Book 4537, Page 200 (Exhibit No. 26).
30. By deed dated July 28, 1922, the Heirs conveyed Lots No. 84, 85, 86 and 87, as shown on the 1912 Plan, to James Neil. Said deed is recorded at Book 4539, Page 561 (Exhibit No. 27).
31. By deed dated July 28, 1922, the Heirs conveyed Lots No. 74, 75, 76 and 77, as shown on the 1912 Plan, to Alexander F. Rowe, said deed being recorded at Book 4540, Page 191 (Exhibit No. 28).
32. By deed dated September 7, 1922, the Heirs sold Lots No. 54, 55, 56 and 57, as shown on the 1911 Plan and 1912 Plan, to Joseph H. Dillon. Said deed is recorded at Book 4558, Page 420 (Exhibit No. 29).
33. By deed dated October 3, 1922, the Heirs conveyed Lots No. 48, 49 and 50, as shown on the 1911 Plan and 1912 Plan, to Clifford A. Ohnemus, said deed being recorded at Book 4570, Page 334 (Exhibit No. 30).
34. On October 20, 1922, the Heirs conveyed Lot No. 95, as shown on the 1922 Plan, to Charles W. Potter and William B. Comstock, said deed being recorded at Book 4566, Page 91 (Exhibit No. 31).
35. On October 20, 1922, the Heirs conveyed land shown as Lot No. 88 on the 1922 Plan to Roger J. Guthrie. Said deed is recorded at Book 4566, Page 502 (Exhibit No. 32). Lot No. 88 appears on the 1912 Plan as an unnumbered lot containing approximately 8,740 square feet plus a portion of an adjacent lot marked "Reserve" on the 1912 Plan.
36. By deed dated October 3, 1922 and recorded at Book 5373, Page 582 thereafter on July 3, 1929, the Heirs conveyed Lots No. 70, 71, 72 and 73, as shown on the 1912 Plan, to William M. Wilson. Said deed is recorded at Book 5373, Page 582 (Exhibit No. 33).
37. By deed dated March 31, 1923, the Heirs conveyed Lots No. 94 and 94B, as shown on the 1922 Plan, to Helen L. Rutter. Said deed is recorded at Book 4616, Page 309 (Exhibit No. 34).
38. By deed dated March 31, 1923 and recorded at Book 4616, Page 310, the Heirs conveyed the land shown as Lots No. 51, 52 and 53 on the 1911 Plan and 1912 Plan to Helen L. Rutter. Said deed is recorded at Book 4616, Page 310 (Exhibit No. 35).
39. On May 9, 1924, Edith P. Storer ("Storer") died.
40. By deed dated October 30, 1925, the heirs of Storer ("Storer Heirs") conveyed the land depicted as Lots No. 81, 82 and 83 on the 1912 Plan to George A. Patterson. Said deed is recorded at Book 4918, Page 105 (Exhibit No. 36).
41. By deed dated May 17, 1928, Lewis S. Hardy conveyed a parcel of land on Chesterbrook Road to Lucy M. Alcock, said deed being recorded at Book 5246, Page 417 (Exhibit No. 37). [Note 2]
42. By deed dated May 17, 1928, the remaining Heirs, together with the Storer Heirs, conveyed to Lucy M. Alcock a right of way over a parcel of land situated towards the northerly end of Chesterbrook Road "to be used as an extension of said Chesterbrook Road and Stanley Road", as shown on the 1912 Plan, and an easement to be used by her with the above-described extension of Chesterbrook Road as appurtenant to the land purchased on the same day by her from Lewis S. Hardy. This deed is recorded at Book 5246, Page 417 (Exhibit No. 38). The Defendants presently own, inter alia, the parcel of land described in this deed.
43. John H. Storer, the widower of Edith P. Storer, died on December 25, 1935, leaving his six (6) children as his heirs at law.
44. By deed dated April 29, 1939, the remaining Heirs, together with the remaining Storer Heirs, conveyed a parcel of land in Waltham to William J. Stober, said deed being recorded at Book 6332, Page 525 (Exhibit No. 39). Excluded from said grant, however, is a parcel of about nine (9) acres which had been previously conveyed, (i.e., the lots and roads shown on the 1911 Plan, the 1912 Plan and the 1922 Plan).
45. On April 29, 1939, William J. Stober mortgaged the parcel described in Finding No. 44, above, to Theodore L. Storer, said mortgage being recorded at Book 6332, Page 530 (Exhibit No. 40).
46. By deed dated June 28, 1943, George Davis, Administrator of the Estate of Frances Josephine Hall, conveyed Lots No. 40, 41, 42, 43, 44, 45, 46 and 47, as shown on the 1911 Plan and 1912 Plan, to Karl L. and Marion C. Hohmann. Said deed is recorded at Book 6690, Page 421 (Exhibit No. 41).
47. By Order approved on December 28, 1955, the City took an easement over the parcel owned by William J. Stober and described above in Finding No. 44, for water, sewer and drainage purposes, said Order being recorded at Book 8650, Page 251 (Exhibit No. 42). This parcel is shown as Parcel "B" on a plan entitled "Plan Showing Location of Easement for Water, Sewer and Drainage Purposes to be Taken by the City of Waltham over Private Land", dated June 1955, and recorded as Plan No. 45 of 1956 (Exhibit No. 43).
48. By deed dated December 12, 1957, William J. Stober conveyed the parcel referenced above in Finding No. 44 to Theodore L. Storer, said deed being recorded at Book 9076, Page 166 (Exhibit No. 44).
49. On May 11, 1965, Theodore L. Storer conveyed the Locus, which constitutes a portion of the parcel conveyed to him by William J. Stober, to the Defendants as joint tenants. Said deed is recorded at Book 10817, Page 036 (Exhibit No. 45). A copy of the purchase and sale agreement relevent to such conveyance is included herein as Exhibit No. 45 (a).
50. By deed dated June 21, 1966, the Defendants transferred the Locus to Jane B. Herbert, said deed being recorded at Book 11196, Page 101 (Exhibit No. 46).
51. By deed dated June 21, 1966, Jane B. Herbert reconveyed the Locus to the Defendants as tenants in common. Said deed is recorded at Book 11196, Page 104 (Exhibit No. 47).
52. By Order adopted by the City Council on May 8, 1967 and approved by the Mayor on May 15, 1967, the City took, by eminent domain, approximately 3.79 acres of the Locus. Said Order is recorded at Book 11326, Page 420 (Exhibit No. 48). The property which constitutes the subject of the taking is shown on a plan entitled "Plan of Land Easterly of Kennedy Junior High School off Lexington Street, Waltham, Mass. to be Taken by the City of Waltham for Educational Purposes", dated May, 1967 and recorded as Plan No. 557 (A of 2) of 1967 (Exhibit No. 48(a)) ("1967 Plan"). The City also took an easement over a portion of the Locus for sewer and drainage purposes, said Order being recorded at Book 11835, Page 256 (Exhibit No. 49). The easement taken by the City is shown on the 1967 Plan.
53. The area representing that portion of the Locus which is now owned by the Defendants is outlined in the color red on a City Assessors' Plan (Exhibit No. 50); (See also Exhibit No. 68). The area is also shown on a plan entitled "Plan Showing Location of Easement for Sewer and Drainage Purposes to be Taken by the City of Waltham over the Land of Various Owners" dated February, 1970 and recorded as Plan No. 482 (E of 12) of 1970 (Exhibit No. 51).
54. The Plaintiffs, David and Faith Boudreau, are the successors in title to land shown as Lot No. 88 on the 1922 Plan, said conveyance being reflected in a deed dated July 22, 1980 and recorded at Book 14016, Page 007 (Exhibit No. 52).
55. The Plaintiffs, John and Connie Corbett, are the successors in title to Lots No. 78, 79 and 80, plus two (2) additional lots located southerly of said Lot No. 80 marked "Reserve", as shown on the 1912 Plan. This transfer is evidenced by a deed dated March 3, 1980, recorded at Book 13914, Page 051 (Exhibit No. 53).
56. The Plaintiffs, Richard and Sandra Gullotti, are the successors in title to Lots No. 54, 55, 56 and 57, as shown on the 1911 Plan and 1912 Plan, said conveyance being evidenced by two (2) deeds, one dated September 1, 1969 and the other dated October 25, 1967. These deeds are recorded, respectively, at Book 11386, Page 430 and Book 11415, Page 738 (See Exhibits No. 54 and 55.)
57. The Plaintiff, Alden Johnson, is the successor in title to "Lot No. 1" shown on the 1911 Plan and 1912 Plan, as reflected in a deed dated November 15, 1982 and recorded at Book 14788, Page 502 (Exhibit No. 56).
58. By deed dated April 1, 1960, the Plaintiffs, John and Margaret McCusker, acquired title to the land depicted as Lot No. 95 on the 1922 Plan. Said deed is recorded at Book 9569, Page 524 (Exhibit No. 57).
59. By deed dated June 12, 1961 and recorded at Book 9824, Page 588, the Plaintiff, Janice Powers, became the successor in title to Lots No. 62, 63 and a sliver of the lot marked "Reserve" on the 1912 Plan (Exhibit No. 58).
60. The Plaintiffs, Daniel and Kathy Pratt, are the successors in title to Lots No. 84, 85, 86 and 87 on the 1912 Plan, said conveyance being reflected by a deed dated December 14, 1985 and recorded at Book 16649, Page 354 (Exhibit No. 59).
61. The Plaintiffs, James and Marie Regan, are the successors in title to Lots No. 89, 90, 91, 92 and 93 on the 1922 Plan, said conveyance being reflected by a deed dated September 20, 1962 and recorded at Book 10127, Page 354 (Exhibit No. 60).
62. By deed dated December 22, 1961 and recorded at Book 9958, Page 540 (Exhibit No. 61), the Plaintiffs, Jay and Jean Wilson, became the successors in title to Lots No. 74, 75, 76 and 77 on the 1912 Plan (Exhibit No. 61).
63. The Plaintiffs, Eugene and Lillian Zubrinski, are the successors in title to Lots No. 81, 82 and 83, shown on the 1912 Plan, by virtue of a conveyance to them as reflected in a deed dated October 1, 1962 and recorded at Book 10143, Page 066 (Exhibit No. 62).
64. The Plaintiff, Gladys Morton, is the successor in title to Lots No. 51, 52 and 53 shown on the 1911 Plan and 1912 Plan, said conveyance being reflected by a deed dated February 27, 1935 and recorded at Book 5924, Page 33 (Exhibit No. 63).
65. The Plaintiffs, John and Flo Clancy, are the successors in title to the parcel identified as "Sold to Alfred Emerson" on the 1911 Plan and 1912 Plan, said conveyance being evidenced by a deed dated July 14, 1959 and recorded at Book 9415, Page 569 (Exhibit No. 64).
66. By deed dated December 30, 1985 and recorded at Book 16675, Page 105, the Plaintiffs, Charles and Marilyn Maillet, became the successors in title to Lots No. 70, 71, 72 and 73, as shown on the 1912 Plan (Exhibit No. 65).
67. The Plaintiff, Connie Gabrielli, is the successor in title to Lots No. 64, 65 and 66, as shown on the 1912 Plan, said conveyance being evidenced by a deed dated May 24, 1962 and recorded at Book 10042, Page 484 (Exhibit No. 66).
68. By deed dated December 20, 1950, the Paine Estate conveyed a parcel of land situated on Beaver Street in Waltham, consisting of approximately 68.83 acres, to Theodore L. Storer. In exchange therefor, Theodore L. Storer granted a life estate to Robert Treat Paine, said deed and life estate being recorded at Book 7686, Page 515 (Exhibit No. 67).
69. The only deeds conveying land out of the original Paine Estate which expressly reserve rights over the subject Ways are the deeds referred to above in Findings No. 7 (Exhibit No. 4), 13 (Exhibit No. 10) and 15 (Exhibit No. 12). [Note 3]
70. The City has at all material times repaired and plowed the Ways, and collected trash from houses situated along the Ways, without special charges or assessments.
At issue herein is a determination of the parties' respective legal rights in and over the private ways known as Chesterbrook Road and Stanley Road. The Plaintiffs claim fee ownership in the Ways, including the exclusive right to use the Ways for access and egress from their properties to Lexington Street, the nearest public way, while the Defendants assert, in common with such other persons who may be lawfully entitled to the same, the right to use the Ways for access and egress from the Locus to Lexington Street.
A general rule with respect to the instant matter is that, where the language of the conveyance expresses no contrary intent relative to the way, the title of those persons who acquire land bounded on or by the way runs to the center line of the way and carries with it the right to use the way along its entire length. See Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987); Emery v. Crowley, 371 Mass. 489 , 493-4 (1971); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679-680 (1965); Casella v. Sneierson, 325 Mass. 85 , 89 (1940); Ralph v. Clifford, 224 Mass. 58 , 60 (1916); City of Boston v. Richardson, 95 Mass. 146 , 154-155 (1866). This rule has been codified by General Laws Chapter 183, section 58 which provides in pertinent part as follows:
Every instrument passing title to real estate abutting a way (emphasis added), whether public or private, . . . shall be construed to include any fee interest of the grantor in such way. . . ."
In this context, the words "real estate abutting a way" have been construed to mean "land on the same side as the way in question" and "land on the other side of such way", said land having frontage along the length of the way. See G.L. c. 183, ยง58(a) (i) and (a) (ii); Emery at 494. Inasmuch as the statute is silent with regard to real estate located at the end of the way, such real estate must be deemed land which does not abut the way. Emery at 494. Accordingly, as the initial subdivisions of the Paine Estate, which are shown on the 1911 and 1912 Plans, resulted in the conveyance of certain parcels descriptively bounded on Chesterbrook Road and/or Stanley Road, the Plaintiffs, Boudreau, Corbett, Gullotti, Powers, Pratt, Wilson, Zubrinski, Morton, Clancy, Maillet and Gabrielli, and the Defendants, as successors in title to certain of the subdivision lots which are descriptively bounded on Chesterbrook Road, hold fee ownership to the center line of said Way, as it is abutted by their lots. Moreover, as Chesterbrook Road and Stanley Road are shown on the Plans as accessing the subdivision lots, these parties and their successors in title have an appurtenant right to use these and all other Ways depicted on the 1911 and 1912 Plans for those purposes which streets and ways are commonly used in the City of Waltham, subject only to similar rights on the part of the other owners of the subdivision lots.
The Defendants' rights in the Ways are, however, limited to rights of access and egress to the two (2) lots owned by them at the northerly end of Chesterbrook Road, adjacent to Lot No. 62, marked "Reserve" on the 1912 Plan. Hence, the Defendants may elect to construct single-family residential dwellings on, or make other use of, these parcels, provided they are presently able to meet local zoning requirements. [Note 4] Inasmuch as the remainder of the land now owned by the Defendants abuts Chesterbrook Road at only its northerly and southerly ends, ownership of said portion of the Locus carries no ownership of the Ways nor rights of access and egress therein. Moreover, as persons having a right of way appurtenant to one or more specified lots cannot lawfully use the way to pass to or from another parcel owned by them which is adjacent or beyond the land to which the way is appurtenant, Murphy at 679; Mannering's Case, 290 Mass. 517 , 520 (1935), the Defendants are not entitled to pass through the "Reserve Lots" for purposes of accessing their remaining part of the Locus. The undesireable result of giving the Defendants such a form of access to the Locus would be an overburdening of the parties' aforesaid easement rights in the Ways. See Brassard v. Flynn, 352 Mass. 152 (1967). Moreover, even assuming arguendo that the Defendants could utilize the "Reserve Lots" for purposes of reaching the balance of the Locus, it is questionable that they could meet the dimensional requirements for a right of way in the City of Waltham. (See Footnote 3).
Based on the principles enunciated above, the Plaintiff, Alden Johnson, as successor in title to "Lot No. 1" on the 1911 Plan and 1912 Plan has no standing to assert record ownership rights in, nor record rights to pass and repass over, the Ways. Johnson succeeded in ownership to a portion of land severed from the estate of Lewis S. Hardy. As shown on the 1911 Plan and 1912 Plan, said land is not bounded by the Ways nor does it have frontage on them. In fact, by severing this tract of land from the original parcel, Hardy appears to have rendered it landlocked. Although the facts as stipulated in Finding No. 41, above, do not clarify the identity of the parcel to which they refer, it appears that, in 1928 Hardy conveyed "Lot No. 1" to Lucy M. Alcock, with the Paine and Storer Heirs simultaneously granting Alcock a right of way over land at the northerly end of Chesterbrook Road "to be used as an extension of said Chesterbrook and Stanley Road" and an easement to be used with said extension as appurtenant to her land. I find both the extension and easement granted to Alcock by the Heirs to be of no effect. At this time, the Heirs' ownership interest, if any, in the Ways was limited to fee ownership to the middle of the Ways abutting their remaining subdivision lots, with rights, in common with the other subdivision lot owners, to use the Ways for purposes of accessing such lots. The Heirs could not effectuate such a grant to Alcock, particularly insofar as their prior deeds out reserved no such express rights in the Ways and since at the time of the Alcock conveyance, their fee interest in the Ways was for the most part in other owners. Similarly then, the Defendants, as the present owners of the land over which the alleged Alcock right of way runs, may claim no rights in the Way through these two 1928 conveyances. In ruling that the Plaintiff, Johnson, has no express easement rights in the Ways, I note that an easement by necessity or prescription may exist. Insofar as the Plaintiffs have not introduced sufficient evidence to warrant either finding, however, I decline to so find here.
The aforementioned facts further indicate that the Paine Heirs held title to the subject Ways as of August 11, 1910 when the Paine Estate was initially subdivided. Thereafter, on October 7, 1911, the Heirs began to sell off the subdivided lots, certain of said lots abutting on the Ways. This process of deeding out the individual lots eventually resulted in the Heirs' complete surrender of ownership in the Ways, particularly insofar as the actual deeds out expressly reserve only rights in the grantors to construct and maintain Stanley Road; they omit, entirely, any mention of a reservation of rights in the grantors to use or to extend Chesterbrook Road. Consequently, the Heirs' subsequent extension of Chesterbrook Road, as depicted on the 1922 Plan, is invalid insofar as it accesses Chesterbrook Road and Stanley Road, and inasmuch as the Heirs' interest, if any, in Chesterbrook Road was then limited to the right to pass and repass along the same for purposes of accessing their remaining subdivision lots, together with a fee interest to the center line of Chesterbrook Road adjacent to such remaining lots. The Plaintiffs, McCusker and Regan, therefore lack express rights in and over the Ways despite their owning lots which appear on the 1922 Subdivision Plan. Similarly, they are without standing to assert fee ownership in the Ways. In ruling as I do, however, I do not preclude the possibility that these parties may have acquired prescriptive rights in the Ways.
The Defendants' primary contention is that, under the doctrine of presumed intention, they enjoy an implied easement over the Ways for the benefit of the entire Locus. They assert that the evidence before the Court "overwhelmingly" supports this conclusion. I find the confidence with which the Defendants assert this argument to be misplaced. The law is well-settled that the origin of an implied easement must be found in the presumed intention of the parties to be gathered from the language of pertinent instruments when read in light of the circumstances attending their execution, the physical condition of the premises and the knowledge which the parties had or with which they are chargeable. Flax v. Smith, 20 Mass. App. Ct. 149 , 153 (1985) ; Labounty v. Vickers, 352 Mass. 337 , 347 (1967) ; Perodeau v. O'Connor, 336 Mass. 472 , 474 (1958). The record does not affirmatively establish that the intent of the Paine Heirs in 1911 and 1912 was to further subdivide and develop the Locus as the Defendants now propose to do. Indeed, a view of the general topography of the subject area justifies, equally, the conclusion that the Paine Heirs had no intent to subdivide and develop the remainder of the Paine Estate. This conclusion finds support in the fact that all large tracts of real estate are not devoted exclusively to development, the same being illustrated by, for example, the Lyman Estate located within close proximity to the Locus. I further find the conclusion that the Paine Heirs did not intend to use the Ways for purposes of servicing a later subdivision to be supported by the fact that, as both parties note in their respective arguments, access to the remaining portion of the Locus was originally achieved by alternative means, namely by Beaver Street, a public way in the City of Waltham (See Exhibit "B") and possibly at one time by Lexington Street, via land not included in the subdivision.
In consideration of the foregoing, I rule that inasmuch as the Plaintiffs, Boudreau, Corbett, Gullotti, Powers, Pratt, Wilson, Zubrinski, Morton, Clancy, Maillet and Gabrielli are the record owners of lots which front along and are bounded by Chesterbrook Road, they hold fee ownership to the center line of said Way. Further, as both Chesterbrook Road and Stanley Road are depicted on the relevant subdivision plans as servicing their lots, these Plaintiffs enjoy an appurtenant right to pass and repass along the entire length of said Ways for purposes of access and egress from their lots to Lexington Street. Similarly, as the Defendants are the record owners of the two (2) "Reserve Lots" which are described herein as fronting along and abutting on Chesterbrook Road, they hold like ownership rights, and rights of passage and repassage, in and over the Ways.
Accordingly, the Defendants' use of the Ways is limited to purposes of reaching the "Reserve Lots" from Lexington Street; they may not surcharge these easement rights by using the Ways for purposes of reaching the balance of the Locus which is situated beyond the "Reserve Lots". In addition, insofar as the Plaintiffs, McCusker and Regan, own lots which are bounded by an extension of Chesterbrook Road, as shown on a later subdivision plan, and as the Paine Heirs created said extension at a time when they had reserved no such rights in the Way which would justify their act, these Plaintiffs enjoy neither ownership rights in, nor rights of passage and repassage over, Chesterbrook Road or Stanley Road. In so ruling, however, I do not foreclose the possibility that the Plaintiffs, McCusker and Regan, have acquired these rights by prescription. Finally, as the Plaintiff, Johnson, is the successor in title to "Lot No. 1", which lot remains unaffected by the earlier transfer of easement rights in the Ways, he enjoys no rights of ownership in, nor rights of passage and repassage over, the Ways. In so ruling, however, I note that an easement by necessity or prescription in the Ways may exist for the benefit of the Plaintiff, Johnson.
Judgment accordingly.
FAITH BOUDREAU, DAVID BOUDREAU, CONNIE CORBETT, JOHN CORBETT, RICHARD GULLOTTI, SANDRA GULLOTTI, ALDEN JOHNSON, JOHN McCUSKER, MARGARET McCUSKER, JANICE POWERS, DANIEL PRATT, KATHY PRATT, MARIE REGAN, JAMES REGAN, JAY WILSON, JEAN WILSON, EUGENE ZUBRINSKI, LILLIAN ZUBRINSKI, GLADYS MORTON, JOHN CLANCY, FLO CLANCY, CHARLES MAILLET, MARILYN MAILLET and CONNIE GABRIELLI vs. MARTIN J. COLEMAN, JR., GEORGE A. COLEMAN and JAMES F. STANTON.
