STEVEN P. HIBBERT, NOELLE MONTAGU and SHIRLEY ANNE LOTUFF vs. DON M. KROHN and JANIS L. REINHARDT.

This is a matter commenced by a complaint dated May 5, 1989, in which the Plaintiffs seek a determination as to whether or not the Defendants have a right to use a certain right of way and a private way, all lying wholly within a subdivision of registered land. Plaintiff, Steven P. Hibbert, further seeks, in the event it is determined that no such rights exist, that the Court amend his Certificate of Title (No. 107160) by striking therefrom the clause setting forth a right of way in favor of the Defendants, abutting unregistered land.

This matter came on for hearing on the Plaintiffs' Motion for Summary Judgment on January 18, 1990. After hearing arguments of counsel and reviewing the pleadings, memoranda, affidavits and other pertinent documents, I find there to be no issue of material fact and that accordingly, this case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P. Community National Bank v. Dawes, 369 Mass. 550 (1976).

I find the following facts to be pertinent and undisputed:

1. The Plaintiffs are the owners of land in a subdivision located in the Town of Orleans. All of the subdivision appears to be registered and is shown on Land Court Plan No. 11919B dated May 1926. The specific lots owned by the Plaintiffs are shown on Plan No. 11919E, dated October 1950, as Lot 25, Hibbert, Lots 23 and 24, Lotuff and Lot 5, Montagu.

2. The Defendants are the owners of a lot of unregistered land shown on a plan entitled "Plan of Land in Orleans, Mass. as surveyed for Richard P. Rita", dated September 1972, and recorded with the Barnstable Registry of Deeds in Plan Book 289, Page 100. The lot is shown as containing 8,954 square feet ± and abutting the aforesaid Lot 25.

3. In 1973, by Document No. 179818, Lot 25 was conveyed to Richard P. Rita. By said conveyance, Rita acquired, along with said lot, a fee ownership in Doane Terrace, a private way, running to the center thereof as the Terrace abuts said Lot 25, together with a right appurtenant to said lot to pass and repass over the remainder of said Terrace to a public way via Cummings Road and the private way. Such rights are subject to the rights of certain others to pass and repass thereover.

4. At the time of the aforesaid acquisition, Rita also owned the unregistered lot referred to in Paragraph 2.

5. In 1976, by Document No. 215937, Rita conveyed Lot 25 to a predecessor in title to the Plaintiff Hibbert. Said conveyance contained the following words of reservation:

Reserving to Richard P. Rita a right of way for all purposes for which rights of way are used in the Town of Orleans over a strip of land 20' in width, . . . by the division line between Lot 24 and Lot 25 . . . .

Said reservation is incorporated into Hibbert's Certificate of Title.

6. Plaintiff, Shirley Anne Lotuff, acquired title to Lots 23 and 24 in 1982, as evidenced by Certificate No. 89032. Plaintiff, Noelle Montagu, acquired Lot 5 in 1985, as evidenced by Certificate No. 104476. Both Plaintiffs own to the center line of Doane Terrace. Inasmuch as these lots front Doane Terrace, the Plaintiffs also have a fee interest to the center line of said Terrace, appurtenant to their lots and subject to the rights of certain others to pass and repass over said Terrace and Cummings Road.

7. In 1977, Rita conveyed the unregistered lot to the Defendants, Krohn and Reinhardt, by deed recorded with the Barnstable Registry of Deeds in Book 2608, Page 217. This deed contains the following language:

Together with easements reserved by Richard P. Rita in a deed to Peter Duhamel et ux (Doc. 215937) over Lot 25 as shown on Land Court Plan 11919-E.

8. The Defendants have crossed over Lot 25 to access the rear of their property via Doane Terrace since about 1977.

The reservation contained in Document No. 215937 was obviously intended to provide access from Rita's unregistered lot to a public way via Doane Terrace and Cummings Road. At that time, the only rights Rita had in Doane Terrace were, however, those of access, appurtenant to Lot 25, and as such they could not be enlarged and transferred to provide access for his adjacent unregistered land. Accordingly, I find and rule that the right in the nature of the easement over regisered land, which right Rita attempted to convey by that Document, was and is incapable of being exercised for the purpose for which it was created, due to the nature and extent of Rita's rights in Doane Terrace at the time of said attempted creation. Such easement rights are therefore to be considered as etinguished. Comeau v. Manzelli, 344 Mass. 375 , 381 (1962) citing Makepeace Bros., Inc. v. Barnstable, 292 Mass. 518 , 525.

I further find and rule as follows:

1. The Defendants have no rights to the easement as described in Document No. 215937 or to Doane Terrace.

2. Certificate of Title No. 107160 is to be amended striking therefrom the words "said land is subject to the reservations set forth in Document No. 215937."

By the Court