WILLIAM SILVA and HELENA SILVA vs. AMADEO VITIELLO, IRENE VITIELLO and CITY OF SOMERVILLE.

The plaintiffs, William and Helena Silva, the owners of the premises known as 9 Mardel Circle in the City of Somerville, are engaged in a controversy with the owners of the adjoining property at 24 Spring Street, the defendants, Amadeo Vitiello and Irene Vitiello, who live at a third property, also on Spring Street, over the extent of the plaintiffs' rights in so-called Mardel Circle. There has been no change in the ownership of the parties' properties for many years, a frequent cause of litigation like this. Its roots doubtless stem from the density of the neighborhood with at least three houses situated on what were once two lots in common ownership, and the practices of the tenants of the respective parties may have contributed to the antagonism mirrored in these proceedings. Both the houses on the properties of the plaintiffs and the defendants are multifamily. By their bill of complaint the plaintiffs seek a judicial determination as to their rights in Mardel Circle and the adjoining land of the defendants and seek to have the defendants ordered to remove a fence which roughly parallels the northeasterly line of land of the defendants and of Mardel Circle. In addition, the plaintiffs seek to have the defendants permanently enjoined from interfering with their rights in the right of way and with any street sign erected by the City of Somerville to denote Mardel Circle. The plaintiffs also seek to have the City ordered to erect and maintain a sign at the intersection of Mardel Circle and Spring Street.

A trial was held at the Land Court on November 3, 1989 at which a stenographer was appointed to record and transcribe, the testimony. Fourteen exhibits, one with two parts, were introduced at trial. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The plaintiff called as witnesses J. Mark Haney, a Land Court title examiner, Thomas M. Killion, a registered land surveyor, and William Silva, a plaintiff. The defendant called F. Thomas Donahue, Director of Engineering for the City of Somerville, Amadeo Vitiello, a defendant, David Vitiello, his son, David Pladzcewicz, M.D., his son-in-law, and Katherine Vitiello, DDS, his daughter. The parties entered into a stipulation of facts which was marked as Exhibit lA.

Based upon the stipulation and also on all the evidence I find and rule as follows:

1. William F. Bennett was a predecessor in title of both the plaintiffs and the defendants, and the owner of Lots 2 and 3 as shown on a plan entitled "Plan of Estate in Somerville surveyed for Joseph J. Giles" dated May 1986, by Charles D. Elliott, recorded with Middlesex (South District) Registry of Deeds (to which all recording references herein refer) in Plan Book 48 as Plan 43 (Exhibit No. 9).

2. In 1908 Mr. Bennett granted to the City of Somerville by instrument dated October, 1908 and duly recorded in Book 3398, Page 483 the right to lay and maintain a water main in Mardel Circle, a private street or way, from Spring Street, a public way, for a distance of approximately one hundred thirty-five (135) feet, as shown on a plan annexed thereto (Exhibit No. 8). The plan is sketched at the end of the instrument creating the easement and is recorded with it; it shows Mardel Circle as a shaded area eight (8) feet in width extending from Spring Street a distance of about one hundred forty feet to the rear lot line of the Bennett premises. The easement ends five (5) feet short said lot line. Only the house at 24 Spring Street appears on the plan.

3. The records of the Engineering Department list Mardel Circle as a private way.

4. On Mr. Bennett's death his sons subdivided the property into three lots, and since Somerville has not officially accepted the Subdivision Control Law (i.e. G.L. c. 41 §8K to §81GG inclusive) no planning board approval was required.

5. The land now of the plaintiffs was the first lot to be conveyed out by the Bennett heirs and that of the defendants, the last of the three conveyances.

6. The deed to the plaintiffs' predecessor in title Joseph B. Edwards was dated June 15, 1954 and duly recorded in Book 8289, Page 254 and conveyed Lot B on a plan (the "Plan") by J. Donnell Sullivan, duly recorded as Plan No. 1148 of 1954, a copy of which is attached hereto as Exhibit A. (Exhibit No. 2) Interestingly, but not material to this dispute, the plan shows Mardel Circle as ending one foot short of the rear line of the properties of the parties to this litigation. (Exhibit No. 3)

7. The deed to Edwards bounded Lot B in part by Lot A so the deed did not convey any of the fee of Mardel Circle as shown on the Plan, but it did grant this express right to use the way:

This conveyance is made together with the right to use a passageway, in common with the grantors, their heirs and assigns, a strip of land 8 feet in width, extending northwesterly from said Spring Street, shown on said plan as "Mardel Circle 8' Right of Way".

8. The second deed out from William F. Bennett, Jr., et al ran to Edward J. Sweeney, et ux dated November 29, 1956 and duly recorded in Book 8864, Page 361 and conveyed Lot C on the Plan. (Exhibit No. 7) The present owner of Lot C is not a party to this litigation, there is a driveway from Spring Street directly into his premises, and he does not use Mardel Circle. This deed runs northwesterly along the easterly line of Mardel Circle and grants a right therein only by implication.

9. The plaintiffs' chain of title is set forth in the stipulation and shows four conveyances intervening between the deed to Mr. Edwards and that to the plaintiffs. The deed to the plaintiffs from Edward J. Sweeney, et ux (also the owners of Lot C) was dated October 18, 1976 and recorded in Book 13077, Page 1343. The record suggests no dispute as to use by the plaintiffs and those claiming under them of the right of way by motor vehicles until recently. There was testimony which I do not credit that permission was asked of the defendants by the plaintiffs or their invitees or predecessors to drive a car to drop groceries, for example, over Mardel Circle.

10. The third and last deed out to the defendants from William F. Bennett, Jr., et al duly recorded in Book 9707, Page 454 conveyed lot A to the defendants.

11. The defendants' son David erected a chain link fence four feet high and two and one-half feet within the record boundary line of Mardel Circle, angled so that at plaintiffs' driveway the fence is approximately one-half foot within the way, and originally running from Spring Street to the rear of Lot A with a gate at the entrance to the Mardel Circle house. The plaintiffs rolled the fence back at their driveway and caused the driveway on their land, Lot B, to be paved. The fence remains from Spring Street to the southerly corner of the plaintiffs' lot and from the walk to the plaintiffs' front door to the westerly corner of the lot. The fence wrongfully bars the plaintiffs' access to and from Lot B and Mardel Circle, but the plaintiffs have not complained about its maintenance in such location.

12. It is approximately eighty-three and one-half feet from Spring Street to the southerly corner of the plaintiffs' lot. It was William Silva who hardtopped the driveway along the southeasterly boundary of his land. It was the defendants who hardtopped Mardel Circle and an adjoining four feet which formerly was the site of a sidewalk parallel to the house at 24 Spring Street.

13. The plaintiffs both drive into their driveway and back into it. The plaintiffs also have a large car of American make. It accordingly is very difficult for them either to back into or back out of the driveway without passing over the land of the defendants. This encroachment appears to be de minimis. It also would be less likely to occur if the fence was properly located on the boundary line between the Sweeney's Lot C and the defendants' Lot A and the fence pole at the southerly corner of the plaintiffs' land and the two fence poles at the opposite side of the driveway were removed.

14. The City of Somerville at the request of the plaintiffs has twice erected a street sign. The first occasion was the summer of 1986 and within three weeks the sign disappeared. The City then put up a second sign in December of the same year. The defendants' daughter Linda then started to shake the sign and threatened the installation of a gate across Mardel Circle into the yard of her father's property. She patently did not recognize the existence of Mardel Circle. The police were called, but did not attempt to resolve the dispute. The City then removed the sign until the resolution of this controversy by the Court.

15. Tenants of each of the parties wrongfully have parked in the right of way.

16. There was no evidence of the use made by the residents of 24 Spring Street and 9 Mardel Circle at the time of the Bennett deeds out of Mardel Circle.

The principal issue in this action is to determine the intent of the parties in construing the phrase "the right to use as a passageway, . . . a strip of land 8 feet in width . . . shown on (the) (P)lan as 'Mardel Circle 8' Right of Way'" as used in the deed from William F. Bennett, Jr. et al to the predecessors in title of the plaintiffs. Since this conveyance was prior in time to the deeds of Lots B and C out to third parties, the successive owners of those properties, including the defendants, are bound thereby.

The plaintiffs primarily are interested in having the Court construe the language of the grant to Edwards as encompassing the right not only to pass and repass on foot, but also in vehicles. The defendants counter that the plaintiffs' rights are limited to foot passage. The early decisions of the Supreme Judicial Court offer support for both positions. Cf. Cotting v. Murray, 209 Mass. 133 (1911) and Perry v. Snow, 165 Mass. 23 (1895).

The draftsperson who created the rights in Mardel Circle would have avoided the problem of construction by making clear the intention of the parties as to the extent of the rights in the way. Absent this and with the principle in mind that an instrument is construed most strongly against the grantor, I interpret the language of the grant to include the right to pass and repass over the eight foot way in vehicles as well as on foot. Indeed in the 1950's it would have been very unusual to limit a right of way to foot passage only since the automobile even then had become such a sine que non of American life. If the grantors had intended to limit the rights conveyed by the deed, it would have been a simple matter to say so. The decedent William F. Bennett, under whom the parties claim, apparently created Mardel Circle to obtain the installation of a water main to serve his properties and from which the parties all benefit.

The plaintiffs' house is set back over eighty-three (83) feet from the public way and it is inconceivable to me that the parties to the deed out intended the owners from time to time to park their cars on Spring Street and walk to their home. Rather as they have "by deed existing rights of ingress and egress" upon a private way they also have the benefit of the right to install utilities created by the General Court. G.L. c. 187, §5 as most recently amended by St. 1988, c. 344, §6. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 (1980).

The question remains as to whether the plaintiffs may cross the line of the eight foot wide way in backing in or out of their driveway. It would be possible with a car the size of a volkswagen to negotiate the turn without crossing onto the defendants' remaining land or doing so in a de minimis fashion. However, in 1954 American cars were much larger than today, and the parties must have intended that the plaintiffs would be able to cross over the line of the way to a slight extent to negotiate the turn in and exit from the driveway. The fence post at the southerly corner of the plaintiffs' land appears to impede the turn and must be removed closer to Spring Street. The fence at its Spring Street end encroaches in the right of way by over two feet. Rather than requiring this end of the fence to be removed and relocated, I find and rule that it may be maintained in its present location so long as the existing fence stands. However, the plaintiffs' right to a way at least eight feet wide cannot be diminished so this eight­feet of distance is to be measured from the fence. As a practical matter the defendants have paved an additional four feet adjoinng Mardel Circle so I would view an occasional intrusion thereon by the plaintiffs as harmless, especially in light of plaintiffs' right to eight feet of passage.

Since the paintiffs have the right of ingress and egress from Lot B onto the eight foot way at any point, the fence erected by the defendants must be removed, if the plaintiffs so request, from the plaintiffs' driveway northwesterly to the end of Mardel Circle. There being a hedge on the plaintiffs' side of the fence they may elect not to have the fence taken down except perhaps near their front steps.

The way may be used by all the parties for ingress and egress and always is to be kept open. No one is to park therein without the consent of his neighbor.

Finally the defendants have been responsible for the City of Somerville removing the Mardel Circle sign which the plaintiffs wish to have erected to notify their invitees as well as emergency personnel of the location of their house. This is their right, and despite the protestations of the defendants' family there is a Mardel Circle. If it is the policy of the City of Somerville to erect signs denoting a private way, and this does seem to be the case, then the City should erect such a sign at the plaintiffs' request.

On all the evidence I therefore find and rule that the plaintiffs have the right to pass and repass, both on foot and in vehicles, over the eight feet of Mardel Circle plus at the Spring Street end thereof, over an additional two to four feet and at the driveway such land as may be necessary to enter and exit therefrom. I also find and rule that the defendants must remove the fence posts located on either side of the plaintiffs' driveway portions of their fence as plaintiffs may request and that they must not interfere with the plaintiffs' use of the way nor with the installation of a street sign for Mardel Circle. I further find and rule that there shall be no parking in the way. Finally I find and rule that the City of Somerville is to erect a sign for Mardel Circle, private way, if it is the general policy of the City to do so, and the fence is only to be removed or replaced by authorized representations of the City.

Judgment accordingly.

exhibit 1