Home JOHN E. KUCHINSKI vs. JOHN R. SHARRY, FRANCIS HOLLOWAY and PAUL X. TIVNAN, as they are the County Commissioners of the County of Worcester and WALLACE E. JOHNSON, CARL A. LICOPOLI, MICHAEL A. CHIZY and FRANCIS A. GATTO, as they are members of the Board of Selectmen of the Town of Sutton.

REG 10420-S

August 2, 1990

Worcester, ss.



On July 29, 1988, the Plaintiff, John E. Kuchinski, the owner of certain registered land in the Town of Sutton ("Town"), filed the complaint in this matter by which he seeks a determination that a purported taking by the Worcester County Commissioners on June 3, 1933, recorded in the Worcester Registry in Book 2584, Page 531, against one Emelie Makaravic, the Plaintiff's predecessor in title, was of no effect as to the Plaintiff's land, and further, seeks a determination that the boundaries of his land are as shown on Land Court Plan No. 10420A ("Plan"). The County Commissioners have failed to file an answer and have been defaulted.

The principal concern of the Town appears to be the determination of a public right to use the westerly leg of a "Y" intersection of "Burnap Road" and the road shown on said Plan as "Boston and Hartford Turnpike", sometimes known as the Central Turnpike. Said "Y" is shown on the 1933 taking layout, although it is not a part of the alleged taking. Moreover, it is not shown on the Plan.

The Plaintiff and Defendant Town have entered into an Agreed statement of Facts, together with a Statement of Disputed Facts. In addition thereto, both counsel have presented oral arguments and briefs. I have taken note of the Agreed Statement and arguments, together with the title abstract and plan on file with the original registration. The Agreed Statement and exhibits thereto are incorporated herein for the purpose of any appeal. The agreed facts, which I rely upon here, are as follows:

1. All of the Defendants have been properly served with notice of this action.

2. The Plaintiff claims title to the land as described in Transfer Certificate of Title No. 5229, dated February 14, 1957 and shown on Land Court Plan No. 10420A. The original certificate in the registration is No. 1408, dated March 19, 1926.

3. On or about June 3, 1933, the then County Commissioners of Worcester County took action to layout, relocate and alter certain portions of the Central Turnpike in the Town of Sutton, and to take, for the purpose thereof, a certain parcel of land belonging to Emelie Makaravic, the Plaintiff's predecessor in title. Said taking was recorded in the Worcester District Registry of Deeds in Book 2584, Page 531 (Exhibit I to Agreed Statement). Said taking was never filed for registration in the Worcester Registry District of the Land Court.

4. The Boston Hartford Turnpike is also known as the Central Turnpike.

5. The location and area of the property which was the subject of the 1933 taking is a triangular parcel consisting of approximately 10,900 square feet, situated between the Central Turnpike and two legs of the "Y" intersection of Burnap Road, as shown on a 1933 county layout plan, a portion of which is Exhibit J to the Agreed Statement.

6. The land shown as the westerly leg of the intersection of Burnap Road, and the land adjacent to it on either side, extending to the easterly leg of said intersection, is shown on Land Court Plan No. 10420A as land owned by the Plaintiff.

7. Burnap Road, including the westerly leg of the "Y" intersection, has been increasingly used by the public, and maintained and improved by the Town of Sutton.

8. The actual boundaries of the Central Turnpike were not determined in this registration. The certificates provide that "so much of the land hereby registered as is included within the limits of Boston and Hartford Turnpike, as shown on said plan is subject to the rights of all persons lawfully entitled thereto in and over the same."

As to the purported 1933 taking by the County Commissioners, G.L. c. 79, §4 clearly requires that takings of registered land be filed for registration in the proper registry district. There is no dispute that the subject land was registered prior to the 1933 action nor that the Commissioners neglected to comply with the statute. Accordingly, I rule that the Plaintiff holds his land free and clear of the purported 1933 taking.

The Plaintiff further seeks a determination of the boundaries of his land. Although not specifically raised in the complaint, the parties now appear to question the status of the westerly leg of the "Y" intersection. On the agreed facts before the Court I am unable to make such a determination as to the "Y", but do find and rule that the Plaintiff's land is as shown on Land Court Plan No. 10420A, but that such land is subject to the encumbrances of record, including rights in the Boston and Hartford Turnpike, and any other highway, town way or private way laid out under G.L. c. 82, §21, or its predecessor statute, along with any other applicable statutory conditions.

While it appears that the "Y" intersection has been in existence for some time, there is no evidence before the Court as to the nature and/or extent of its use or actual physical condition in 1924, the date of the original petition, nor is there sufficient evidence from which to determine the nature or extent of the layout, if any, of Burnap Road.

Should the Plaintiff wish to have the Court determine the actual location of his land or any specific boundary thereof, it will be necessary for him to bring a supplementary petition for such purpose, together with a plan which conforms to present Land Court engineering standards.

Judgment accordingly.