The plaintiffs filed this action May 19, 1989 seeking a judgment that they hold their title to a certain parcel of land in the City of Marlborough, Middlesex County, and said Commonwealth, free from any claims to that portion of their land that had been previously designated as Red Spring Drive, a so-called paper street, as shown on plans of land entitled, "Section A of Red Spring Acres in Marlborough, Mass.", dated February 26, 1960 and recorded with the Middlesex South District Registry of Deeds in Book 9560, Page End, and "Section B of Red Spring Acres in Marlborough, Mass.", dated March 24, 1960 and recorded with said Deeds in Book 9635, Page 515.
The only defendant to answer the complaint was Lucy K. Gaynor, Trustee of Gayson Realty Trust, who filed an answer on June 15, 1989. On February 9, 1990 an Agreed Statement of Facts was filed and the matter proceeded to a hearing on oral arguments on June 20, 1990, at which time said proceedings were electronically recorded.
On all of the evidence I find and rule as follows:
1) Prior to 1976, Lucy K. Gaynor and Mary A. Hodgson, as Trustees of Gayson Realty Trust (Trustees) owned Lot 22 abutting Red Spring Drive as shown on the aforementioned plan (Section B).
2) By deed dated April 22, 1976 and recorded with said deeds in Book 13162, Page 200, Woodrow E. Wilson and Muriel, I. Wilson (Wilsons), owners of Lot 2 on said plan (Section A), conveyed to the Trustees their fee interest in Red Spring Drive. Lot 2 abuts Lot 22 and the deed stated that the purpose of the conveyance was ". . . to enable the grantees, their successor and assigns to reach Lot 22 . . ."
3) By deed dated November 30, 1984 and recorded in Book 15925, Page 278, the Trustees conveyed Lot 22 to Richard P. Sharon, et als (Sharons); this conveyance was silent as to their fee interest in Red Spring Drive.
4) On May 19, 1989, the Sharons Conveyed all of their fee interest in Red Spring Drive to the Plaintiffs, predecessors in title (See Book 19828, Page 530).
The issue raised in this case is whether the deed from the Trustees to the Sharons conveyed the fee in Red Spring Drive, which the Trustees had acquired from the Wilsons.
The Court finds that it did. Generals Laws c. 183, §58, as amended, ". . . sets out the authoritative rule of construction for instruments passing title to real estate abutting a way. Emery v. Crowley, 371 Mass. 489 , 492. (1976). The statute states in part that, "every instruments passing title to real estate abutting a way,. . ., shall be construed to include any fee interest of the grantor in such way,. . ." with two exceptions. (Emphasis added)
The first exception arises if, ". . . the grantor retains other real estate abutting such way. . ." At the time of the conveyance of Lot 22 to the Sharons, the Trustees did not retain any land abutting Red Spring Drive.
The second exception arises when the ". . . instrument evidences a different intent by an express exception or reservation. . ." The deed to the Sharons is silent as to any intent to except or reserve any interest in Red Spring Drive.
Since the Trustees' conveyance does not fall within either exception, the deed to the Sharons and the subsequent deeds to the plaintiffs conveyed the Trustees' fee interest in Red Spring Drive.