LASELL COLLEGE and MICHAEL F. IODICE, Trustee of MJ Realty Trust II vs. STEPHEN J. LEONARD and DEBORAH P. WABER.

By complaint filed with this Court on December 5, 1989, Lasell College ("Lasell") and Michael F. Iodice, Trustee of MJ Realty Trust II ("Iodice") (collectively referred to as "Plaintiffs"), seek a declaration under G.L. c. 231A, that, pursuant to the decrees entered in Land Court Registration Cases No. 14291 and 14565, they have the right to construct, pave, maintain and use the entire length and width of a forty (40) foot wide paper street located off of Grove Street in Newton, known as Seminary Avenue ("Seminary Avenue" or "the Way"), for all purposes for which public ways in Newton are used, and that Stephen J. Leonard and Deborah P. Waber ("Defendants"), owners of property abutting the Way, located at 248 Grove Street ("248 Grove Street" or "Defendants' property"), have no rights therein, by adverse possession or otherwise, and accordingly, may not interfere with the Plaintiffs' rights in the Way. The Plaintiffs further seek a determination, pursuant to G.L. c. 240, §16, that any cloud on their title, which has been raised by the Defendants' claim of ownership to a portion of the Way, be removed, and that the Court award them costs, damages and interest, as is deemed appropriate.

On December 2, 1989; the Defendants filed an answer in which they asserted the following affirmative defenses: 1) that so much of Seminary Avenue as borders their property is not registered land; 2) if Seminary Avenue was ever registered land, such registration was and remains defective; 3) the registration cases pleaded by the Plaintiffs are insufficient to allow them to construct, pave, maintain and use the whole of Seminary Avenue for all purposes for which ways are used in Newton; 4) the Plaintiffs' alleged rights in Seminary Avenue are barred by the Statute of Frauds; 5) any easement which allegedly may have existed in Seminary Avenue has been abandoned by the Plaintiffs; 6) the Plaintiffs are estopped, on grounds of nonuse, from asserting that a right of way exists in Seminary Avenue; 7) no easement by necessity exists in favor of the Plaintiffs' in that part of Seminary Avenue abutting the Defendants' property because alternative access exists to the Plaintiffs' respective properties and 8) any easement alleged by the Plaintiffs in Seminary Avenue is invalid on the grounds that the uses of said easement are not specified.

The parties provided the Court with certain stipulations of uncontested facts on February 28 and July 13 of 1990.

Prior to the commencement of trial, the Defendants filed a motion to dismiss the Plaintiffs' complaint on the grounds that that portion of the Way which abuts 248 Grove Street is not registered land and that any easement claimed by the Plaintiffs over such Way is either unregistered or has been extinguished by abandonmnt. The motion was taken under advisement. At this time, a motion was also brought by the Plaintiffs to revise the stipulation of Uncontested Facts which was filed on February 28, 1990, so as to delete therefrom the allowing statement:

[Lasell's current] plans [for its property] call for construction of a $50,000.000+ continuing care retirement community with 198 units and a 40 bed nursing home. Lasell's land is currently zoned partly single residence 1 and partly single residence 3.

The Defendants opposed the motion on the grounds that, although this project was initially disapproved by the Newton Board of Aldermen, Lasell currently has a motion for reconsideration pending before such Board. The Court then entered a ruling that, pursuant to G.L. c. 231A, it would determine the parties' respective rights in the Way, but not necessarily in connection with Lasell's plans to construct a life care facility on its land.

The matter was tried on July 13, 1990, at which time the Court appointed a stenographer to record and transcribe the testimony. Three (3) witnesses testified and ten (10) exhibits, all of which are incorporated herein for purposes of any appeal, were admitted into evidence. The Plaintiffs' case-in-chief consisted of the introduction of Land Court Registration Cases No. 14565, Winslow E. James, Petitioner, and 14291, Winslow E. James, Petitioner, as well as other related miscellaneous instruments and documents (See Exhibit No. 1). The Defendants presented testimony from Stephen J. Leonard. At the conclusion thereof, the Plaintiffs moved for a directed verdict on the grounds that the Defendants had failed to prove their affirmative defenses. This motion was taken under advisement. The Plaintiffs then called Robert Stoller, Esq., Trustee of Lasell College, and John Snow, a predecessor in title to 248 Grove Street, as rebuttal witnesses.

On all of the evidence, and the facts as stipulated, I find as follows:

1. As laid out, Seminary Avenue is forty (40) feet in width, containing a short, paved section, and is unpaved, or unimproved, along the remainder of its length.

2. On August 1, 1977, the Defendants acquired title to a parcel of improved, nonregistered real estate, located at 248 Grove Street, by a deed from Michael A. and Marilyn J. McCarthy, recorded at Book 13251, Page 248 in the Middlesex South District Registry of Deeds (Exhibit No. 5). As set forth in this deed, the Defendants' property contains 17,520 square feet and is bounded southwesterly by Seminary Avenue, 192 feet.

3. As shown on a plan entitled "Enlarged Plan, Grove Street and Seminary Avenue", dated February 27, 1990 ("the Plan") (Exhibit No. 3), the Defendants' property consists of a large lot, improved with a single-family residence with frontage on the easterly side of Grove Street and the unimproved, northeasterly side of the Way, and a smaller lot located in the rear thereof, also having frontage on the unimproved, northeasterly side of the Way.

4. At the time of their purchase of 248 Grove Street, the Defendants had knowledge that Lasell and Iodice owned adjacent land and that certain third parties, including Lasell, held rights in Seminary Avenue.

5. Lasell is the owner of several parcels of undeveloped land, containing 13.4 acres, which, as partially shown on the Plan, lie adjacent to the eastern boundary line of the Defendants' property and abut the unimproved, northeasterly side of the Way. Two (2) of Lasell's parcels are registered land ("the Lasell Parcels").

6. Lasell's ownership of its two (2) registered parcels is evidenced by Transfer Certificate of Title No. 114065. These parcels were registered to E. James Winslow on September 30, 1931, in Registration Case No. 14565. The Original Certificate of Title, No. 33672, describes the two (2) parcels of land as being bounded "by Seminary Avenue" and expressly states that "there is appurtenant to said land the right to use the whole of said Seminary Avenue in common with others entitled thereto". Land Court Plan No. 14565-A, the decree plan approved by the Court in Registration Case No. 14565, shows this land as Lots A and B, located on opposite sides of the Way, as it turns northerly at a point well beyond the Defendants' property, and shows the Way as extending out to Grove Street (See Exhibit No. 1).

I find that, from the express language contained in the original Certificate of Title, and included thereafter in Lasell's Transfer Certificate of Title, Lasell acquired a registered easement, appurtenant to so much of its land as is contained in Lots A and B on Land Court Plan No. 14565-A, to use the entire distance of Seminary Avenue in common with other persons similarly entitled thereto.

7. Iodice is the owner of registered land located at 264 Grove Street ("the Iodice Parcels"). This land is presently improved with a 126-unit garden apartment complex. As shown on the Plan, Iodice's property contains frontage on the easterly side of Grove Street and on the unimproved, southerly side of the Way.

8. The Iodice Parcels which border the Way were originally registered by E. James Winslow in 1930, in Registration Cases No. 14291 and 14292. The original Certificate of Title issued in Case No. 14291 describes the property as three (3) parcels, two (2) (Parcels B and C) of which are bounded "by Seminary Avenue". It also expressly provides that "there is appurtenant to said land rights of way in said way in Seminary Avenue to Grove Street in common with others entitled thereto". Land Court Plan No. 14291-A shows Iodice's property as Parcels A, B and C, all on the same side of the Way, and shows the Way as extending to Grove Street (See Exhibit No. 1).

I find that, from the express language of this Original Certificate of Title, which language is also contained in Iodice's Transfer Certificate of Title, Iodice holds a registered easement, appurtenant to the land registered in Land Court Registration Case No. 14291, over the whole of the Way, subject to like easement rights in other persons who may be similarly situated.

9. The Original Certificate of Title issued in Registration Case No. 14292 describes this particular portion of the Iodice Parcels as being located at the intersection of Grove Street and the Way, and being bounded by the southerly line of Seminary Avenue. The Certificate is silent as to any appurtenant easement over seminary Avenue. Land Court Plan No. 14292-A shows the Way as extending to Grove Street (See Exhibit No. 1).

10. Although the Defendants' predecessor in title, who owned the property at 248 Grove Street when the aforesaid registration decrees were entered, was given notice of Winslow's registration proceedings for the Lasell and Iodice Parcels, no objections thereto were ever filed with the Land Court.

11. In 1966, Iodice constructed a six (6) foot stockade fence from the southerly corner of Grove Street, along the southerly side of the Way. This fence is standing at present.

12. As shown on the Plan, and as evidenced by testimony and exhibits offered at trial, the area which the parties dispute herein is comprised of the unimproved portion of the Way, extending easterly from Grove Street up to, and including, that portion of the Way which is presently occupied by a wood shed and a fenced-in dog pen ("Disputed Area" or "Area").

13. Since approximately 1968, the Defendants and/or their predecessors in title have used a portion of the Disputed Area as a driveway to 248 Grove Street. As shown on the Plan, this driveway area lies southerly of the property, at the corner of Grove Street and the Way. The Defendants have paved this area with bituminous concrete.

14. From June of 1968 to 1972, the Snow family ("Snows") owned and resided at 248 Grove Street (See Exhibit No. 9). During their period of ownership, the Snows were aware that Lasell and Iodice held certain rights in the Way. During this time, the Snows constructed a stockade fence in the Disputed Area, which fence runs parallel to Grove Street,. extending from the southeriy side of the residence on the property to the southerly side of the Way and for a short distance beyond. The fence had a gate which was occasionally locked. The fence and lock, however, were installed to prevent persons using the nearby MBTA terminal, and strangers, from using the Way, rather than to prevent such use by the Plaintiffs. The Snows also erected a fenced-in dog pen and a wood shed in the Disputed Area and, on occasion, parked their vehicles in the Area as well. The fence, dog pen and shed are still standing (See Exhibit No. 3).

The foregoing facts reveal that Lasell, Iodice and the Defendants all acquired title to parcels of land, either registered or nonregistered, which are described in their respective instruments of conveyance as being "bounded by Seminary Avenue" and, in the cases of the Lasell Parcels and certain of the Iodice Parcels, are also described as having the appurtenant right to use the whole of Seminary Avenue in common with others similarly entitled thereto. The evidence also indicates that both the paved and unpaved, or unimproved, portions of the Way have been depicted on plans dating back as early as 1893 and that the unimproved portion of the Way has been used by various persons, for varous purposes, since at least 1968. Additionally, testimony and evidence presented at trial show that, although so much of the Way as bounds the parties' respective properties is unimproved, this portion of the Way has been contemplated and sufficiently designed. In consideration thereof, and noting that no contrary intent is expressed in the parties' respective instruments of conveyance, I rule that the Plaintiffs and Defendants each hold the fee to the middle line of the Way as it abuts their properties and that each holds an appurtenant right to pass and repass, by foot or by vehicle, over and along the entire distance of the Way, and to park along such Way, so long as these acts do not obstruct or interfere with the rights which other persons similarly situated may hold therein. See Boland v. St. John's Schools, 163 Mass. 229 , 236 (1895); Ralph v. Clifford, 224 Mass. 58 , 60 (1916); Goldstein v. Beal, 317 Mass. 750 , 755 (1945); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987). Insofar, however, as persons having a right of way appurtenant to one or more specified lots cannot lawfully use the way to pass to or from other parcels owned by them, located adjacent to or beyond the land to which the way is appurtenant [Note 1], Murphy at 679, I further rule that the Plaintiffs and Defendants are prohibited from surcharging their easement rights in Seminary Avenue by using such Way to pass through to other lots located adjacent thereto, for purposes of access to or egress from such other lots, unless it be established that such other lots qualify the Plaintiffs or Defendants as "others similarly entitled thereto". Brassard v. Flynn, 352 Mass. 185 , 190 (1967). I also rule that, by implication, these parties hold every right necessary or incidental to their enjoyment of the Way, including the right to make reasonable repairs and improvements thereto, at their own expense. See Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934); Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 298 Mass. 513 , 514 (1937). Further, in accordance with G.L. c. 187, §5, the parties also have the right, by implication, to place, install or construct in, on, along, under and upon the Way pipes, conduits, manholes, and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct the Way and provided that such use of the Way does not interfere with or be inconsistent with the existing use of the Way by others. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 , 217 (1980).

The Defendants contend that the Plaintiffs cannot hold any rights in the disputed portion of the Way, inasmuch as they, the Defendants, have acquired title thereto on the basis of adverse possession. The evidence before the Court reveals that, in 1930 and 1931 respectively, the Iodice and Lasell Parcels were registered to one E. James Winslow. By the Land Court decrees entered in these proceedings, there was registered as appurtenant to the Lasell Parcels, and certain of the Iodice Parcels, the right to use the whole of Seminary Avenue "in common with others entitled thereto". The Defendants' then predecessor in title was duly notified of the registration proceedings in both instances, but, at no time prior to the entry of the decrees, or within one year thereafter, as required by G.L. c. 185, §45, did they file any objections thereto. Accordingly, the issuance of the judgments of registration to the Plaintiffs' predecessors in title became binding on the Defendants' then predecessor in title, as well as his successors. G.L. c. 185, §45; Studley v. Kip, 245 Mass. 242 , 243 (1923); Tetrault v. Bruscoe, 398 Mass. 454 , 459-460 (1986). Any rights of ownership adverse to the Plaintiffs' rights, as they are set forth herein, which the Defendants may now claim in the Disputed Area of Seminary Avenue were thus extinguished by the entry of these registration decrees. Tetrault at 463.

In addition to the foregoing, I note that, inasmuh as the Plaintiffs' hold registered easements over Seminary Avenue, as disclosed on their respective Certificates of Title, the evidence which the Defendants have presented as to prescriptive and adverse use of the Disputed Area of Seminary Avenue is of no effect. G.L. c. 185, §53; Dubinsky v. Cama, 261 Mass. 47 , 58 (1927). Accordingly, decline to find that the Defendants have acquired title to the Disputed Area on the basis of adverse possession. See Gadreault v. Hillman, 317 Mass. 657 , 651 (1945); Ryan v. Stavros, 348 Mass. 251 , 262 (1964).

In support of their motion to dismiss the Plaintiffs' complaint, the Defendants allege that that portion of the Plaintiffs' respective properties which abuts Seminary Avenue is not registered land and that any easement which they may hold over and along Seminary Avenue is either unregistered or has been extinguished by abandonment. Insofar as I have found that both Lasell and Iodice own registered land abutting the Way and that, as disclosed on their respective Certificates of Title, each holds a registered, appurtenant easement to use Seminary Avenue in its entirety, I dismiss the Defendants' motion as to such claim. As to the Defendants' contention that any easement which Lasell and Iodice may hold over and along Seminary Avenue has been abandoned, I find that, on the evidence before the Court, the Defendants have failed to set forth a valid case of abandonment. Generally speaking, acts inconsistent with the continued existence of a way, combined with an intent to abandon and extinguish an easement over such way, will operate as an abandonment of easement rights therein. See Desotell v. Szczygiel, 338 Mass. 153 , 158 (1958). Mere nonuse of an easement will not, however, prove abandonment. Dubinsky at 57; Desotell at 159. From the instant facts, I find that, at best, the Defendants have proven that there has been little, if any, use of Seminary Avenue by the Plaintiffs since at least 1968. However, insofar as such dsregard or ignorance of known easement rights will not, in and of itself, establish an intention to relinquish and surrender the same, Dubinsky at 57, I decline to find an abandonment of easement rights on the part of the Plaintiffs. Accordingly, I dismiss the remaining portion of the Defendants' motion as well.

In consideration of the foregoing, I rule in summary that, as owners of land, either registered or nonregistered, abutting Seminary Avenue in Newton, the Plaintiffs Lasell and Iodice, and the Defendants Leonard and Waber, hold the fee to the middle line of such Way and that each has the right to pass and repass, by foot or by vehicle, over and along the entire length and width of said Seminary Avenue, and to park vehicles along Seminary Avenue, all without obstruction or interference, subject only to like easement rights in other persons similarly entitled thereto, and that they may, at their own expense, make reasonable repairs and improvements thereto, including constructing or installing utilities in, on, along or under Seminary Avenue, provided such improvements do not unreasonably interfere with or obstruct the use of such Way by other persons entitled thereto. The parties may not, however, surcharge these easement rights in Seminary Avenue by using such Way to pass through their land lying appurtenant thereto, for purposes of access to or egress from other lots, if any, which are owned by them and which lie adjacent to or beyond these appurtenant parcels, except as such lots may qualify the Plaintiffs or Defendants as "other persons similarly entitled thereto". I further rule that, on all of the evidence before the Court, including the express language of the Plaintiffs' respectve Certificates of Title, the Defendants Leonard and Waber have not acquired title to the Disputed Area of Seminary Avenue on the basis of adverse possession, nor have they proven that the Plaintiffs' easement rights in such Way have been extinguished by abandonment.

In so ruling, I dismiss the Plaintiffs' request for costs, damages and interest.

Judgment acordingly.