JOSEPH W. CARTER and IRENE M. CARTER vs. MICHAEL T. SHONYO, JUDITH SHONYO, FIRST COLONIAL BANK FOR SAVINGS and LYNN WATER AND SEWER COMMISSION.

By complaint filed on December 12, 1985, amended on December 27, 1988, [Note 1] the Plaintiffs, Joseph W. and Irene M. Carter ("Plaintiffs"), seek the entry of an order directing the Defendants, Michael T. and Judith Shonyo (collectively referred to as "the Shonyos"), to remove from the way known as Stonewood Lane in the City of Lynn (at times referred to as "the Way"), that portion of their residence which encroaches thereupon, as well as the earth, boulders and any other materials which, after February 26, 1982, they caused to be placed on such Way as it abuts the Plaintiffs' land and beyond. The Plaintiffs also seek the entry of an order directing the Shonyos to refrain from interfering, in any way, with the Plaintiffs' exercise of their alleged easement rights up, over and along the full width of the Way, and further directing them to restore the land within said Way, which abuts the Plaintiffs' land and beyond, to its condition as of February 26, 1982. In addition, the Plaintiffs seek compensation for any and all damages which they have suffered as a result of the Shonyos' alleged trespass upon, and interference with, the Plaintiffs' land as it abuts the Way and their rights therein.

On August 16, 1988, the Plaintiffs filed a motion for summary judgment, which motion was denied without prejudice on November 28, 1988. The matter proceeded to trial on September 21 and 22 of 1989, at which times the Court appointed a stenographer to record and transcribe the testimony and evidence. Thirteen (13) witnesses testified and thirty-five (35) exhibits, all of which are incorporated herein for purposes of any appeal, were accepted into evidence.

Upon consideration of all of the evidence, I find as follows:

1. The Plaintiffs Carter reside at 20 Bradford Road in Lynn ("Carter Parcel"). The Defendants Shonyo reside at 30 Bradford Road in Lynn ("Shonyo Parcel"). As shown on an unrecorded plan entitled "Plan of Land in Lynn, Mass.", dated July 9, 1987, revised on September 18, 1989 ("Carter Survey Plan") (Exhibit No. 20), the Carter Parcel, consisting of 9,803 square feet of land, lies to the east of the Shonyo Parcel, which, as depicted thereupon, consists of 12,600 square feet of land. The disputed area, which lies in between the Carter and Shonyo properties, is identified on this plan as "Paper Street & 50' Wide Utility Easement (Disputed Area) 6373 S.F." The term "Paper Street" refers to the gravel portion of the aforesaid Stonewood Lane. As shown on this plan, the northerly portion of the Shonyos' residence encroaches upon Stonewood Lane by approximately ten (10) feet and the southerly portion thereof encroaches upon the Way by about twelve (12) feet.

2. The Carter Parcel, Shonyo Parcel and Stonewood Lane originally comprised a portion of a larger tract of land owned by F. Virginia Hitchings. On May 18, 1946, this tract of land was conveyed to Thomas Copeland ("Copeland") by deed recorded at Book 3489, Page 144 in the Essex South District Registry of Deeds [Note 2] (Exhibit No. 8).

3. The first conveyance which Copeland made out of the aforesaid tract of land was by a deed to Dorothy H. Tarr, dated August 15, 1950, recorded at Bopk 3762, Page 128 ("Copeland-Tarr Deed") (Exhibit No. 4). By said conveyance, Dorothy A. Tarr acquired title to a parcel of land, bounded and described as follows:

SOUTHWESTERLY by Stone Wood Lane (emphasis added) a distance of seventy-three and 56/100 (73.56) feet;

NORTHWESTERLY by Stone Wood Lane (emphasis added) by the arc of a circle having a radius of seventy-six and 95/100 (76.95) feet a distance of one hundred ten and 94/100 (110.94) feet;

NORTHEASTERLY by land of Tarr one hundred forty (140) feet; and

SOUTHEASTERLY by land of Copeland eighty-five and 78/100 (85.78) feet.

This land, which is shown on a plan entitled "Plan-For-Sale-Of­Land Situated in Lynn, Mass.", dated May 15, 1950, recorded at Book 3762, Page 128 ("1950 Plan") (Exhibit No. 2), is now the Carter Parcel.

4. By instrument dated December 31, 1955, recorded at Book 4254, Page 32 (Exhibit No. 10), Copeland entered into an agreement with the City of Lynn to "prepare and open for public travel and locate STONEWOOD LANE for a distance of Three Hundred Forty-Five and 55/100 (345.55) Feet southerly from Standish Road", all as shown on an unrecorded plan entitled "Plan and Profile for Acceptance", dated December 20, 1955 (Exhibit No. 11). Copeland subsequently carried out the terms of this agreement, but this section of Stonewood Lane was never paved thereafter.

5. In 1956, Copeland further subdivided the tract of land referred to above in Finding No. 2., said subdivision being laid out on a plan entitled "Plan of Land in Lynn Made for Thomas Copeland", dated February 20, 1956, recorded at Plan Book 87 as Plan 82 ("Copeland Subdivision Plan") (Exhibit No. 12). As shown thereupon, and as testified to by Land Court Title Examiner, Henry H. Thayer, the Shonyo Parcel, as described in the Shonyo deed discussed below, is comprised of Lots No. 5 and 6, which abut Stonewood Lane on its southwesterly side, and so much of said Way as lies southerly of a line drawn across the Way at approximate right angles from the most northerly corner of Lot No. 5.

6. On March 8, 1957, Copeland conveyed certain property, including the Shonyo Parcel, to Copeland Realty Co., Inc. This conveyance is evidenced by a deed recorded at Book 4352, Page 83 (Exhibit No. 9).

7. By an Order of Taking dated September 24, 1957, recorded at Book 4408, Page 318 (Exhibit No. 13), the City of Lynn took a sewer and drainage easement over the full fifty (50) foot width of Stonewood Lane, where such Way intersects with Bradford Road. As shown on a plan entitled "Plan of Proposed Easement for Sewer and Drainage Purposes in Lynn, Mass.", dated July 24, 1957, recorded at Book 4408, Page 318 (Exhibit No. 14), the sewer line was subsequently installed underground, along the center line of Stonewood Lane. One manhole was also installed along the sewer line within said Way. (See also Exhibits No. 21A, 21B and 25).

8. As of 1966, that portion of Stonewood Lane which appears on the Carter Survey Plan, and which constitutes the disputed area herein, was a gravel roadway. At that juncture where Stonewood Lane passes in front of the Warry property, which property is located southerly of the Carter Parcel (See Carter Survey Plan), however, the surface of such Way is paved. As the grade of Stonewood Lane, for its entire length, was then level with that of Copeland Road, automobiles occasionally used the gravel portion of Stonewood Lane as a shortcut to Bradford Road (See Exhibits No 17A, 17B and 18).

9. On February 26, 1982, Copeland Realty Co., Inc. conveyed the Shonyo Parcel to the Defendants Shonyo, by deed recorded at Book 6914, Page 742 (Exhibit No. 15). As referenced therein, the Shonyo Parcel is shown on a plan entitled "Lynn, Mass. Plan of Land Owned By: Copeland Realty Co., Inc.", dated November 11, 1981, recorded at Book 6914, Page 742 ("Copeland Realty Plan") (Exhibit No. 3). Although no reference to Stonewood Lane is made in the description of this property, the deed states that the Shonyo Parcel contains 19.080 square feet of land and that the conveyance to the Shonyos is subject to "an easement to the city of Lynn for sewer and drain purposes as shown on said plan". The plan shows Stonewood Lane to be fifty (50) feet in width, but identifies the easement therein to be only thirty (30) feet in width.

10. At the time the Shonyos purchased their parcel of land from Copeland Realty Co., Inc., brush and trees had grown into the disputed area. Despite this natural growth in vegetation, however, the gravel portion of Stonewood Lane was apparent, as was its constant elevation (See Exhibits No. 26A, 26B and 26C).

11. On March 30, 1982, the Shonyos applied for a building permit for the construction of a single-family, wood frame dwelling on their land (See Exhibit No. 16). The application was granted by the Lynn Building Department on October 12, 1982.

12. In late 1982 or early 1983, the Shonyos commenced construction work on their property. During the course thereof, neighbors and abutters, including the Carters' predecessors in title, Dorothy and Stuart Tarr, protested the encroachment onto Stonewood Lane and questioned the Shonyos' right to perform work in the disputed area. Despite these verbal protests, however, the Shonyos completed construction of their residence, which structure, as shown on the carter survey Plan (See Finding No. 1), encroaches upon the disputed area of Stonewood Lane by at least ten (10) feet, and, accordingly, also encroaches upon the city of Lynn's fifty (50) foot wide sewer and drainage easement (See Exhibit No. 19B). Further, during their construction, the Shonyos filled the disputed area with earth and raised the elevation therein by approximately four (4) feet. In addition thereto, the Shonyos planted flowers and bushes in the disputed area, and positioned boulders and railroad ties therein. (See Exhibits No. 19A, 19C, 27A through 27C, 28A through 28L, 29A, 29B, 32A through 32C and 33A through 33C). These obstructions collectively resulted in the elimination of passage by vehicles through this area.

13. By deed dated January 23, 1984, recorded at Book 7321, Page 156 (Exhibit No. 7), Dorothy H. Tarr conveyed two parcels, one of which is the Carter Parcel, to herself and her husband, Stuart A. Tarr. This deed recites the same description as found in the earlier Copeland-Tarr Deed and contains the same reference to the 1950 Plan.

14. The Plaintiffs acquired title to the carter Parcel on August 10, 1984, said conveyance being evidenced by a deed from Dorothy H. and Stuart A. Tarr, recorded at Book 7499, Page 458 (Exhibit No. 1). This deed also recites the same description as contained in the Copeland-Tarr Deed and contains the same reference to the 1950 Plan.

15. In October of 1984, the Plaintiffs were issued a foundation permit for their proposed residence. Construction on the Carter Parcel was commenced some time thereafter.

16. As a result of the Shonyos' construction of a residence on their property, and the related alterations and improvements made upon such land and the abutting Way, specifically the aforementioned rise in elevation of the Way, the Plaintiffs are unable to access the rear of their property by vehicle.

It is a well-settled rule of this Commonwealth that, where the language of a conveyance expresses no contrary intent relative to a certain way, the title of those persons who acquire land bounded on or by such way runs to the center line of the way and carries with it the right to use the way along its entire length. City of Boston v. Richardson, 95 Mass. 146 , 154-155 (1866); Ralph v. Clifford, 224 Mass. 58 , 60 (1916); Casella v. Sneierson, 325 Mass. 85 , 89 (1940); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679-680 (1965); Emery v. Crowley, 371 Mass. 489 , 493-494 (1971); Brennan v. DeCosta, 24 Mass. App. 968 (1987). This rule of law has been codified by G.L. c. 183, §58, which provides in relevant part as follows:

Every instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way. . . .

This rule applies even if the way in question is not physically in existence, so long as it is contemplated and sufficiently designated. Ralph v. Clifford, 224 Mass. 58 , 60 (1916); Casella at 90; Olson v. Arruda, 328 Mass. 363 , 365 (1952); Murphy at 680; Brennan at 968.

In the instant matter, the Plaintiffs hold title to a parcel of land which is descriptively bounded by Stonewood Lane (See Finding No. 3). The evidence reveals that said Stonewood Lane has been referred to in deeds and depicted on plans which date back as early as 1950. In addition, Stonewood Lane has been recognized by the City of Lynn since at least 1955 (See Finding No. 4). Testimony and evidence offered at trial further reveal a recognition of such Way by members of the general public. Specifically, the evidence indicates that, from the 1960's to the time of the Shonyos' construction in late 1982 or early 1983, abutting and neighboring landowners used the Way, in its entirety, by foot and/or by vehicle. In consideration thereof, I thus find that Stonewood Lane is a sufficiently contemplated and designated way in the City of Lynn. Further, applying the aforementioned principles to these facts, I find that the Plaintiffs hold the fee to the center line of Stonewood Lane, as well as the appurtenant right to pass and repass, by foot or by vehicle, without obstruction or interference, over and along the full length of such Way, as it existed prior to the Shonyos' construction, subject only to like easement rights in other persons similarly situated. Boland v. St. John's Schools, 163 Mass. 229 , 236 (1895). Additionally, as the law states that, once such a right of way or easement 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 Plaintiffs' rights in Stonewood Lane carry with them the further right to make reasonable repairs and improvements thereto, at their own expense.

As to the Defendants Shonyo, I find that, at the time Copeland Realty Co., Inc. made a conveyance of the Shonyo Parcel to them, the only rights said grantor possessed in Stonewood Lane were the right to convey the fee to the center line thereof (ie. by a conveyance of the Shonyo Parcel which contained the descriptive language "bounded by [or 'bounded on'] Stonewood Lane"), and to convey the appurtenant right to pass and repass along the entire distance of such Way, by foot or by vehicle, without obstruction or interference, subject only to like rights of passage in other persons similarly situated. In contravention of these stated rights, however, the deed to the Shonyos indicates that Copeland Realty Co., Inc. conveyed 19.080 square feet of land to them. Testimony offered at trial reveals that the amount of land conveyed included Lots No. 5 and 6, which were owned by Copeland and, which as shown on the Copeland Subdivision Plan, abut Stonewood Lane on its southwesterly side, as well as that portion of Stonewood Lane which lies southerly of a line drawn across said Way at approximate right angles from the most northerly corner of Lot No. 5. On its face, this conveyance attempts to transfer to the Shonyos the entire fee interest in Stonewood Lane as it abuts their property, in its entirety. As of 1982, however, this interest was held in part by the Tarrs, the Plaintiffs' predecessors in title. I thus find that the only rights which the Shonyos acquired in Stonewood Lane by operation of the conveyance to them, was the fee to the center line of the Way, as well as the appurtenant right to pass and repass, either by foot or by vehicle, without obstruction or interference, over and along said Way, subject to like easement rights in other persons similarly situated.

There are certainly instances where attendant circumstances mitigate against persons being compelled to remove major structures, or portions thereof. I do not, however, find such circumstances to be present in the matter herein. A customary and prudent examination of the Shonyos' chain of title would have readily revealed the discrepancies between the 1981 Copeland Realty Plan (Exhibit No. 3) and the earlier recorded plan entitled "Plan­For-Sale-Of-Land Situated in Lynn, Mass." (Exhibit No. 2). The recorded instruments notwithstanding, the Defendants Shonyo received further notice of their potential, and actual, title problems from various neighbors during the initial phases of their construction.

In consideration of the foregoing, I find that the Defendants Shonyo must be and hereby are ordered to commence removal, within sixty (60) days from the entry of a final judgment herein, after all appeals have been resolved, and to diligently pursue such removal thereafter until completed, of any and all obstructions which they have caused to be placed in the disputed area, insofar as these obstructions may interfere with the Plaintiffs' right to pass and repass, by foot or by vehicle, without obstruction or interference, over and along the entire length of said Way. The Defendants Shonyo are also ordered, within this time, to restore the grade of the disputed area so as to provide the Plaintiffs with safe and convenient access to the rear of their property, by foot or by vehicle. I decline to grant the Plaintiffs' request for damages, insofar as I find insufficient evidence in the record to warrant such a finding.

Judgment accordingly.