FREDERICK S. KIRBY vs. JAN F. STEELE-PERKINS and PATRICIA M. STEELE-PERKINS.

Frederick S. Kirby ("Plaintiff") filed this action in the Hampden Superior Court on September 22, 1987 ("Superior Court Case No. 87-1749") seeking a declaration, pursuant to G.L. c. 231A, that Jan F. and Patricia M. Steele-Perkins ("Defendants") do not hold fee ownership in and over a fifty (50) foot wide private way in the City of Westfield, Massachusetts, known as Toledo Avenue, and that those owners of property abutting Toledo Avenue at its easterly and westerly boundaries hold an easement by prescription, or otherwise, to traverse Toledo Avenue. The Plaintiff also seeks a permanent injunction enjoining the Defendants and their agents from maintaining a fence or other obstruction across Toledo Avenue, and from interfering with the right of the public, including the abutters on the westerly side of Toledo Avenue, to travel across Toledo Avenue, as well as an Order requiring the removal of any fence erected on the same by the Defendants or their agents. The Plaintiff further seeks an award of damages for the Defendants' interference with his advantageous business relations and their interference with his civil rights under G.L. c. 12, §II (H) and (I), as well as their causing a nuisance to his ability to use and enjoy the land located on the westerly side of Toledo Avenue and their slandering title to Toledo Avenue by impeding access to the same by the abutters on the westerly side of Toledo Avenue.

On September 22, 1987, the Plaintiff moved for a preliminary injunction enjoining the Defendants and their agents from continuing to maintain any fence or other obstruction on Toledo Avenue, or from interfering with the right of the public, including the abutters on the westerly side of Toledo Avenue, to travel across the same, and seeking an Order requiring the Defendants' removal of the fence erected by them across Toledo Avenue. This motion was denied by Sweeney, J. on October 2, 1987.

The Defendants filed their answer and counterclaim in Superior Court Case No. 86-1749 on February 17, 1988, seeking therein the issuance of a permanent injunction enjoining the Plaintiff, his agents and /or employees, from altering, in any way, the natural condition of Toledo Avenue. The Plaintiff filed a motion to transfer the case to the Land Court, which motion was allowed by Alberti, J. on March 2, 1988. The case was entered in the Land Court and docketed as Miscellaneous Case No. 127055.

Day one of trial was held in the Land Court, sitting at Westfield District Court, on July 29, 1988. The Court, in the presence of counsel, also viewed the subject property at this time. The trial continued and was concluded at the Land Court in Boston on October 12, 1988; a stenographer was appointed to record and transcribe the testimony at both sessions. Fifteen (15) witnesses testified and forty-two (42) exhibits were admitted into evidence. All exhibits are incorporated herein for the purpose of any appeal.

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

1. Toledo Avenue is a fifty (50) foot wide private way in the City of Westfield, Massachusetts (See Exhibit No. 33, 51). As shown on a map entitled, "Official Map of Westfield, Massachusetts, 01085", dated May 15, 1980 and revised in September, 1985, Toledo Avenue runs in a northeasterly direction from Cycle Street to East Silver Street, both of which are public ways, and parallel to Lozier Avenue and Cleveland Avenue, which, as shown on this map, are located westerly of Toledo Avenue. A view of the subject area reveals that Toledo Avenue is paved for a distance of approximately three (3) car-lengths at its southerly end towards Cycle Street. This paved portion of Toledo Avenue is used on occasion by the Colombia Manufacturing Company, Inc. and surrounding neighbors for parking purposes. The balance of Toledo Avenue, extending northerly to East Silver Street, remains in an unimproved, overgrown state, narrowing to a foot path of approximately two (2) to three (3) feet in width.

2. By deed dated August 31, 1896 and recorded in the Hampden County District Registry of Deeds, [Note 1] William Seth Bush ("Bush"), the Defendants' predecessor in title, conveyed a portion of a large tract of land in Westfield, Massachusetts to James Noble, Jr. ("Noble, Jr."), the Plaintiff's predecessor in title. This land is shown as Toledo Avenue, excluding the parcel marked "Fowler", on a plan entitled "Plan of Lots belonging to the Cycle Heights Co. located in Westfield, Mass.", dated May, 1897 ("1897 Cycle Heights Plan") (Exhibit No. 1), and on an earlier plan entitled "Plan of Property of the Cycle Heights Co. in Westfield, Mass.", dated October, 1826 (Exhibit No. 2). The 1897 Cycle Heights Plan is attached hereto for reference. This conveyance was made upon the following express conditions:

. . . the said Noble shall within five years from the date hereof, lay out, open and construct upon that portion of the conveyed premises included between the easterly line of the conveyed premises and a line parallel thereto and at all points fifty feet distant therefrom, a sufficient and properly constructed public highway . . . for public travel . . . If such highway be not laid out . . . within five years from the date hereof, then the property and the premises hereby conveyed shall revert to the said Bush, his heirs, representatives and assigns to have and to hold to them forever . . . This conveyance is made upon the further condition that (emphasis added) until such time as the highway . . . shall be opened and laid out, the said Bush, his heirs and representatives shall have free and undisturbed occupancy and possession of the said premises and the right to use the same in any manner, free from all and any payment of rent.

Pursuant to the terms of the foregoing conveyance, the reverter clause was to take effect, if at all, on August 31, 1901.

3. By deed dated September 26, 1896, Noble, Jr. conveyed the aforementioned property to a straw by the name of Carroll H. Pratt ("Pratt"), subject to the conditions and agreements contained in the Bush to Noble, Jr. deed (Exhibit No. 14). That same day, Pratt executed a deed (Exhibit No. 13) of the same to Charles H. Parsons, Robert A. Knight, Ralph P. Alden, Louis F. Newman and Charles J. Moore ("Trustees"), as Trustees of the Cycle Heights Company, subject to the conditions and agreements set forth in the Bush to Noble, Jr. deed.

4. By deed dated November 27, 1899 (Exhibit No. 12), Bush conveyed the remaining fee in Toledo Avenue, shown as the parcel marked "Fowler" ("Fowler Parcel") at the southerly end of Toledo Avenue on the 1897 Cycle Heights Plan, to Noble, Jr., Gustavus I. Hays, Fred E. Say, Charles Moore and himself, as Trustees of the Cycle Heights Company, said Trust being established under a Declaration of Trust dated September 26, 1896 (See Exhibit No. 25). [Note 2]

5. By deed dated October 18, 1910 (Exhibit Nos. 10 and 11), Noble, Jr., G. I. Hays and James M. Noble, being a majority of the Trustees, conveyed a parcel of real estate identified as Lots No. 3, 4, 6, 8, 10, 12, 14, 18, 21, 22, 23, 25, 27, 29, 31, 32, 34, 36, 41, 42, 44, 46, 48, 50, 52, 54, 56, 57, 58, 59, 60, 62, 64, 66, 68, 70, 76, 78, 79, 80, 81, 82, 83, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 and 60 1/2 on the 1897 Cycle Heights Plan, to Virginia Noble. Included in this conveyance is the Fowler Parcel (See Finding No.4), as well as all of the Trustees' rights in, to and over Toledo Avenue.

6. The last recorded instrument in Bush's chain of title which references Toledo Avenue is a mortgage from Bush to the Woronoco Savings Bank, dated Apri1 27, 1914, which describes one of the two mortgaged parcels as "commencing at an iron monument in the easterly line of Toledo Avenue (emphasis added) . . . " (Exhibit No. 23).

7. By a later unrecorded instrument dated August 13, 1987 (Exhibit No. 39), Salvatore Antico granted to the Plaintiff, for the sum of one dollar ($1.00), an Option to Purchase ("Option") certain real estate identified as Lot No. 73 on Lozier Avenue and Lots No. 83 through 92 on Toledo Avenue, described in a deed from Mario A. Marinette, Public Administrator of the Estate of John Gurkoski, to Salvatore Antico, dated May 27, 1987 (Exhibit No. 9) and shown on the 1897 Cycle Heights Plan. Said conveyance expressly includes the transfer of "any and all rights of the Grantor in Toledo Avenue."

8. By deeds dated January 19, 1988 (Exhibits No. 7 and 8), the Plaintiff, for consideration of $1.00, purchased Lots No. 83, 84, 85, 86, 87, 88, 89, 90, 91 and 92 on Toledo Avenue, and for consideration of $109,999.00, purchased Lot No. 73, or as it is more commonly referred, 10 Lozier Avenue, said latter conveyance being made to the Plaintiff's daughter, Lynn S. Canty, as Grantee.

9. The Defendants are presently the record owners of a parcel of land consisting of 4.4 acres, known as 81 East Silver Street, said conveyance being evidenced by a deed from Frederick J. and Aurora B. Curran, dated June 14, 1983, and described, in part, as "commencing at an iron monument in the easterly line of Toledo Avenue and supposed to be in the easterly line of East Silver Street." This parcel is depicted as the land marked "Bush" on the 1897 Cycle Heights Plan.

10. In about June of 1987, the Defendants caused chain link fences to be erected across the northerly and southerly ends of Toledo Avenue. In addition, by letter dated July 22, 1987 (Exhibit No. 40), the Defendants, through counsel, informed Salvatore Antico, the Plaintiff's immediate predecessor in title, of their claim of ownership to Toledo Avenue.

11. On January 7, 1988, James McConchie and Elizabeth Avery, purportedly the heirs of Bush, granted to the Defendants all of their right, title and interest in the fifty (50) foot strip of land shown as Toledo Avenue, being a portion of the premises owned by Bush at the time of his death and that portion which remained after the heirs of Bush conveyed the parcel, which is described in a deed dated April 5, 1933 (Exhibit No. 19), to John P. Collins (See Exhibit No. 41). Thereafter, on January 24, 1988, John P. Collins conveyed all of his right, title and interest in the same to the Defendants (Exhibit No. 42). [Note 3]

The primary matter before the Court involves a determination of the parties' respective rights in Toledo Avenue. The Plaintiff argues that, through his chain of title, he has acquired rights to pass and repass along Toledo Avenue for purposes of gaining access from his subdivision lots to East Silver Street and/or Cycle Street, while the Defendants contend that, through their chain of title, they have acquired exclusive fee ownership of Toledo Avenue. I find and rule that the Plaintiff holds fee ownership to the center line of Toledo Avenue as it bounds his subdivision lots, as well as a right to pass and repass over the remainder of Toledo Avenue for purposes of accessing such lots from East Silver Street and/or Cycle Street, while the Defendants have, at the very least, acquired an easement by implication over Toledo Avenue. I do not, however, find there to be sufficient evidence upon which to rule that the public, or the property owners abutting along the easterly and westerly boundaries of Toledo Avenue, have acquired an easement by prescription over Toledo Avenue. Moreover, I find there to be insufficient evidence as to the issue of damages, and accordingly, decline to rule thereon.

The mere reference in a deed to a lot number and a bounding street or way, as shown on a recorded plan, does not as a matter of law give the grantee an easement, or ownership rights, in all of the ways shown thereon. Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 , 727 (1971) ; Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926); Prentiss v. City of Gloucester, 236 Mass. 36 , 52-53 (1920). Such a determination must be made after ascertaining the intent of the grantor, as evidenced in the relevant deeds and the circumstances in which they were made. Ibid. In the present matter, the evidence before the Court reveals that the original transfer of rights in Toledo Avenue from Bush to Noble, Jr. was expressly predicated upon Noble, Jr.'s laying out, opening and constructing thereupon a "public highway". In order to prevent a reversion of the property to Bush, this condition of the conveyance was to be fulfilled by August 31, 1901. The record is devoid of evidence as to what type and character of way would qualify as a "public highway" between 1896 and 1901, however, I take judicial notice of the fact that the specifications necessary for laying out, opening and constructing any way in the late 1800's to early 1900's, such as road width and pavement, would be less stringent than would be the case today. Accordingly, I find the evidence to be supportive of Noble, Jr.'s compliance with the requirements for Toledo Avenue as set forth in the 1896 conveyance, thereby causing such way to rise to a level exceeding a mere paper street. Testimony, deeds and plans offered at trial reveal that Toledo Avenue is, and has been, visible and capable of being located on the ground since at least the early 1900's. Certain witnesses testified to the use of horses and horse-drawn wagons on Toledo Avenue during the early and mid-1900's. In addition, the testimony of one witness revealed that Toledo Avenue could have then accommodated passage by a horse and buggy. I find that such testimony further supports the conclusion that Noble, Jr. complied with the condition that he lay out, open and construct what is now Toledo Avenue. A mortgage executed and recorded by Bush in 1914 even locates one of the mortgaged parcels in relation to "Toledo Avenue", indicating that Bush believed the conditions as to the construction of Toledo Avenue had been met. Inasmuch, however, as the record fails to establish that Toledo Avenue has been laid out by public authorities in a manner prescribed by G.L. c. 82, §1-32, or has been made public by prescription, or was, prior to 1846, dedicated by its owner to public use, permanently and unequivocally, coupled with an express or implied acceptance by the public, Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 84 (1979) ; W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19 (1979), I find that Toledo Avenue remains a private way.

Having thus concluded that Noble, Jr., the original grantee of Toledo Avenue in the Plaintiff's chain of title, fulfilled the aforementioned condition precedent to his acquiring fee ownership in such way, and hence that he has conveyed the same to his successors in title, I apply the well­settled law of this Commonwealth that, unless a contrary intention in the grantor is shown, where one conveys property bounded by a private way, he transfers title to the middle line thereof, G.L. c. 183, §58, and rule, accordingly, that the conveyance of Lots No. 83 through 92 to the Plaintiff resulted in the transfer to him of the fee to the center line of Toledo Avenue as it bounds said lots, as well as the right to pass and repass without obstruction, either by foot or by vehicle, along the entire length of Toledo Avenue. Brennan v. Decosta, 24 Mass. App. Ct. 968 (1987) and cases cited. The Plaintiff's ownership of the fee in this half of Toledo Avenue is, however, subject to the existence of a like easement on the part of such other persons as may have rights to enter upon and use the way. Boland v. St. John's School, 163 Mass. 229 , 236 (1895). I note that this established principle of law is applied hereto even despite the Defendants' assertion that Toledo Avenue was never placed into physical existence by Noble, Jr., as its operation depends only upon the way's having been contemplated and sufficiently designated. Ibid. Insofar as the way has been depicted on plans, referred to in deeds and used periodically by abutting and neighboring landowners since at least the early 1900's, I find the principle to be applicable here.

In view 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, Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937); Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934), I find further that the Plaintiff's right to use Toledo Avenue in the manner set out above carries with it the right to make reasonable repairs and improvements to the way at his own expense. I find such a determination of rights in the Plaintiff to be warranted herein, particularly insofar as the record reveals that the condition of Toledo Avenue is such that it is presently unsafe for most forms of vehicular passage. See Walker v. E. William & Merrill C. Nutting, Inc., 302 Mass. 535 , 543 (1939); Guillet v. Livernois, 297 Mass. 337 , 341 (1937). Additionally, I note that the Plaintiff's right of way over Toledo Avenue also gives him the right to install utilities therein, or thereupon as the case may be, for purposes of servicing the subdivision lots. See G.L. c. 187, §5; Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 , 217 (1980).

Based on the foregoing, record title to Toledo Avenue rests with the Plaintiff. By applying the doctrine of presumed intention to the instant facts, however, I find that the Defendants have acquired at least an implied easement over Toledo Avenue.

Implied easements, whether created by grant or by reservation, find their origin in the presumed intention of the parties, to be gathered from the language of the relevant 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); Sorel v. Boisjolie, 330 Mass. 513 , 517 (1953); Krinsky v. Hoffman, 326 Mass. 683 , 687-688 (1951); Dale v. Bedal, 305 Mass. 102 , 103 (1940). The language in the 1896 Bush to Noble, Jr. transfer of rights in Toledo Avenue reads, in part, as follows:

. . . the said Noble shall within five years from the date hereof, lay out, open and construct . . . a sufficient and properly constructed public highway . . . for public travel . . . until such time as the highway . . . be opened and laid out . . . the said Bush, his heirs and representatives shall have free and undisturbed occupancy and possession [and right to use] the [same] in any manner, free from all and any payment of rent.

A reasonable interpretation of the foregoing terms justifies the conclusion that Bush's intention was to preserve rights in Toledo Avenue for himself, his heirs, representatives and assigns. First, Bush emphasized that the way which Noble, Jr. lay out, open and construct be "public", for "public travel". Inasmuch as the term "public", as used in this context, refers to use by persons in general, Bush intended that he and such others as are mentioned in the conveyance be given rights to use Toledo Avenue. Such conclusion is reinforced further by the terms of the transfer relative to the reverter clause and those pertaining to Bush's exclusive rights in the way pending Noble, Jr.'s fulfillment of the express condition of the conveyance. In accordance therewith, I thus rule that such a preservation of rights in Toledo Avenue constituted a factor in the 1896 conveyance to Noble, Jr. and that, based thereupon, the Defendants, as successors in title to Bush, have acquired an easement by implication over Toledo Avenue. However, inasmuch as the Defendants' easement rights are subject to like easement rights in the Plaintiff, the Defendants must be and hereby are ordered to remove, within thirty (30) days from the entry of a final judgment herein, any and all obstructions which they have caused to be erected across Toledo Avenue.

The Plaintiff further seeks a determination that the abutters along the easterly and westerly boundaries of Toledo Avenue, as well as the general public, have acquired rights to use Toledo Avenue by prescription. I do not so find here. It is familiar law that a right of way may be acquired by prescription through twenty (20) years of uninterrupted, open, notorious and adverse use. Glenn v. Poole, 12 Mass. App. Ct. 292 (1981); Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Nocera v. DeFeo, 340 Mass. 783 (1959). In the present action, testimony offered at trial reveals that, from the early 1900's to some time in the 1970's, use of Toledo Avenue by neighboring landowners and the general public included occasional passage by horses and horse-drawn wagons, taking walks, exercising dogs, picking wild flowers and berries and riding dirt bikes and snowmobiles. In addition, there was testimony relative to Toledo Avenue's being snow plowed periodically by one of the Plaintiff's predecessors in title. Accordingly, I find that the testimony, when considered collectively, falls short of establishing continued, prescriptive use of Toledo Avenue for the requisite period of time. The uses described by the witnesses span many years, but were spasmodic, of uncertain duration, and sparse at best. Thus, as the testimony proffered at trial is not dispositive of the issue, I decline to rule that either the abutters on the easterly and westerly boundaries of Toledo Avenue or the general public have acquired a prescriptive easement over Toledo Avenue.

In consideration of the foregoing, I rule in summary that the Plaintiff holds fee ownership to the center line of Toledo Avenue as it abuts Lots No. 83 through 92, as well as the right to pass and repass without obstruction along the entire length of Toledo Avenue for purposes of accessing these lots from East Silver Street and/or Cycle Street, said rights being subject to like easement rights on the part of the Defendants.

The Defendants have acquired at least an easement by implication over the full length of Toledo Avenue, but as said right is subject to like easement rights in the Plaintiff, the Defendants must be and are hereby ordered to remove, within thirty (30) days from the entry of a final judgment herein, any and all obstructions which they have caused to be erected across Toledo Avenue. I further rule that there is insufficient evidence to establish that the general public, including the property owners abutting along the easterly and westerly boundaries of Toledo Avenue, have acquired prescriptive rights in and over Toledo Avenue. Finally, I rule that the evidence is also insufficient as to the issue of damages.

Judgment accordingly.

exhibit 1