MISC 135662

June 18, 1991

Norfolk, ss.



The plaintiff Josephine M. Donahue of Canton, in the County of Norfolk, formerly of Stoughton in said County originally filed a complaint in the Stoughton Division of the District Court alleging that the defendant McDonald's Corporation ("McDonald's") had dug up the plaintiff's right of way and easement without her consent. The plaintiff further alleged that the defendant had torn up a portion of the plaintiff's lawn in the rear of the building owned by her at 980 Central Street in said Stoughton and had overburdened her easement which allegedly reduced the value of the plaintiff's property and cost her "great anguish of mind". The complaint subsequently was amended to include an allegation that the action of the defendant amounted to a taking in fee which is inconsistent with the original theory of the complaint that the plaintiff had only an easement in the area of the right of way. Finally the plaintiff's complaint was amended once again to add to the damages originally sought a prayer for the removal of the defendant and its encroachments from the plaintiff's property. The complaint subsequently was transferred by the defendant to the Norfolk County Superior Court, transferred back to the District Court by a justice of the Superior Court, re-transferred to the Superior Court and finally, by joint motion of the parties pursuant to the provisions of G.L. c. 212, §26A, transferred to the Land Court.

The gravamen of the plaintiff's action is the lease by a third party to the defendant McDonald's of a forty (40) foot wide right of way adjacent to the plaintiff's residential rental property for a second entrance to the defendant's restaurant situated around the corner on Washington Street (Route 138) in Stoughton. The dispute centers on certain encroachments constructed by the defendant or at its direction in the 40 foot wide right of way, the use of the way for access to an additional parking lot constructed pursuant to the lease to the defendant by the third party defendant and the nature of the plaintiff's interest in the right of way. The plaintiff introduced evidence at the trial as to the flooding of the backyard of her property, but there was no expert testimony as to causation. Additionally, there is no count in the complaint for damage arising from the flooding which the plaintiff attributes to the construction of the parking lot.

A trial was held at the Land Court on February 26, February 28 and March 1, 1991 at each of which sessions a stenographer was sworn to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial John F. Donahue, Jr. and James Joseph Donahue, both sons of the plaintiff, the plaintiff, George Ugo, whose father was a predecessor in title of the parties, Michael Marsh, an attorney specializing in conveyancing matters, Sidney L. Boorstein, the franchisee of the defendant and Neil Caswell, a tenant of the Donahue property at 980 Central Street were witnesses called by the plaintiff. There also was introduced a video interrogation of Jacques Landry, formerly a senior construction engineer, for the defendant. The defendant called as witnesses Thomas Brown, a partner in a large Boston law firm specializing in real estate transactions, Arthur Giangrande, of Designs State Survey, Inc., a registered professional engineer and registered land surveyor who supervised various surveys of the property for the defendant and Robert DiCarlo, an employee of Seaman Bratko Corporation. After the close of the defendant's testimony the plaintiff called John Donahue as a rebuttal witness.

On all the evidence I find and rule as follows:

1. The area in dispute, the 40 foot wide strip of land which gives rise to the present controversy, is part of a complex owned for many years by members of the Ugo family. There is attached hereto as Appendix "A" a copy of Exhibit No. 32 entitled "Site Construction Plan, Parking Area Expansion, McDonald's Restaurant, 422 Washington Street Stoughton, Massachusetts." Shown on this plan is the property at the northeasterly corner of the complex now owned by Frederick C. Smerlas which originally was the home of George Ugo, his wife Marjorie and their family of five girls. Subsequently it has served as a real estate office and as a newspaper office with an apartment in the basement. Adjacent to this property, which is numbered 968 Central Street, is the locus and on the westerly side thereof is the plaintiff's 8,000 square foot lot with frontage on Central Street of 80 feet and a depth of 100 feet. Not part of the Ugo holdings, and thus unable to use as appurtenant thereto the right of way, is a Shell gasoline station, adjacent to the plaintiff's land, with which company the plaintiff has been negotiating for the lease of her premises. Southerly of these three properties is an additional lot owned by Mr. Smerlas (who is not a party to this litigation) which has been demised to the defendant. Immediately westerly thereof and sharing a common corner with Shell and the plaintiff is property leased for the operation of a Dunkin Donuts shop by the Ugo Realty Trust. The remainder of the Ugo holdings is leased to the defendant for one of its restaurants; the main entrance to the restaurant is from Route 138 and its original parking lot is behind the restaurant, primarily reached from the state highway.

2. The Ugo properties as shown on a plan entitled "Plan of Property Belonging to Ugo and Theresa Giacinto [Note 2] Stoughton, Mass." dated July 27, 1935 by Walter G. Pratt, surveyor, and recorded with the Norfolk County Registry of Deeds (to which Registry allrecording references herein refer) as Plan No. 338 of 1935. The large parcel shown on said plan was conveyed by Katie A. Evans to Giacinto Ugo and Theresa Ugo, husband and wife as tenants by the entirety, by deed dated July 19, 1935 and recorded in Book 2074, Page 597 (Exhibit No. lB). After mesne conveyances which are immaterial here Mr. Ugo conveyed to the plaintiff and her former husband the land shown on a plan entitled "Plan of Property in Stoughton, Mass. Belonging to Giacinto Ugo" dated November 10, 1949 by Walter G. Pratt and recorded as Plan No. 126 of 1950 in Book 2888, Page 356. The deed from Mr. Ugo to the defendant and her former husband was dated January 30, 1950 and conveyed to them the premises shown on said plan and described as being 80 by 100 feet.

3. There are two provisions in the deed which give rise to the present controversy. The deed bounds "southeasterly one hundred (100) feet by a right of way forty (40) feet wide as shown on said plan." The deed also contains this language, "together with and subject to rights of way for all usual purposes in common with others lawfully entitled thereto, into and over said forty (40) foot right of way as shown on said plan." At the time, as noted above, Mr. Ugo owned all of the land shown on Appendix "A" attached hereto. He subsequently conveyed the property at the northeasterly corner of his parcel to his son George M. Ugo and Marjorie I. Ugo, husband and wife as tenants by the entirety by deed dated July 13, 1950 and recorded in Book 2930, Page 258 (Exhibit No. lF). The description in the deed was a running description and the boundary on the right of way ran "thence northwesterly by other land of this grantor ninety and 88/100 (90.88 feet)." The deed also contained this grant of an appurtenant right: "Together with a right of way over the land of this grantor situated on the westerly side of the described premises, being forty (40) feet in width and running one hundred (100) feet southerly from the southerly side of said Central Street."

4. Over the years there have been many real estate transactions relating to the property shown on Appendix "A" which are not material here. These included the lease to the defendant of its restaurant and parking lot on Route 138. Other than the Donahue conveyance, ownership of the tract remained in members of the Ugo family until the Smerlas conveyance.

5. George M. Ugo and Marjorie I. Ugo conveyed to Frederick C. Smerlas by deed dated October 3, 1981 and recorded in Book 5938, Page 505 the parcel of land situated on Central Street in said Stoughton shown as Lot A-1 on a plan entitled "Plan of Land in Stoughton, Mass. Owned by George M. and Marjorie I. Ugo" dated September 10, 1981 by Hayward-Boynton & Williams, Inc. and recorded as Plan No. 987 of 1981 in Book 5938 at Page 505. Lot A-1 as shown on the 1981 plan includes within its boundaries the 40 foot wide right of way now in litigation. Frederick C. Smerlas, by lease dated August 5, 1983, leased this property to McDonald's (Exhibit No. lQ). The original description in the lease was in error in that it included therein the premises already demised to McDonald's for the existing restaurant building on Washington Street and the parking lot in the rear thereof. The corrected description in the lease describes the leased premises as consisting of the parcel shown as Lot 1 on a plan entitled "Topographic and Lease Plan of Land" dated December 12, 1983, by Somerville Engineering, Inc. (Exhibit No. 3) together with a right of way over the strip of land 40 feet in width. Lot 1 and the 40 foot wide strip together constitute Lot A-1 conveyed to Smerlas.

6. When the Donahue house was built, it was the only residence in the neighborhood and indeed presumably the only building in the vicinity, and the plaintiff was reluctant to move there. However, Mr. George Ugo was building a home for his family on Central Street, and the promise of neighbors apparently convinced her to agree to the purchase of the new home just constructed by the Ugos. The family lived in the property at 980 Central Street from 1950 to 1964 and occupied the first floor and the basement with there being a rental apartment on the second floor. The Donahues moved out of the property to another house in Stoughton in 1964, and the plaintiff herself lived there for the last time in 1969 having returned there in 1967 for a two year period. Her son John F. Donahue, Jr. moved back in 1976 for a year, and his brother lived there at approximately the same time. George Ugo and his family lived at this time in the property at 968 Central Street, and George kept a truck for his construction business and equipment which related to it in the rear of the property. Access to and from Central Street and the rear of the Ugo premises was over the 40 foot wide strip.

7. The large area of vacant land in the rear of 968 Central Street had been retained by Mr. Ugo, Sr. to be conveyed to his children as sites for future homes, and he created the right of way to afford access to the back lands as well as providing the Donahues with an access to their backyard. The vacant land in back was used primarily for a garden and for the parking of the Ugo construction vehicles. Eventually it became an unsightly property and somewhat of a mud hole. Rubbish, brush and trees created an entanglement and an eyesore. Both Central Street and land of the Town of Stoughton which abuts the then Ugo holdings on the east are higher than the parking lot or the backyard of the Donahue property. Indeed, the lowest point of the surrounding area appears to be the point where the Shell, Dunkin Donuts and Donahue lands meet, the approximately southwest corner of the plaintiff's land.

8. During the years that the Donahues' children grew up in the house, and this would be primarily from 1950 to 1964, the children played in the 40 foot wide strip. The youngsters had a basketball hoop attached to the Ugo property, and emulation of Celtic stars occupied the children during their younger years. Members of the Ugo and Donahue family parked therein. Both families plowed the snow during the blizzard of 1978. Over the years motor vehicles belonging to family members or tenants of the two abutting properties were parked there.

9. At some period the 40 foot wide strip was paved. Mr. Donahue worked for the Massachusetts Department of Public Works, and one of the contractors working on a state highway in the vicinity apparently was the source of the asphalt which was used to surface the right of way. Mr. and Mrs. Donahue and Mr. and Mrs. Ugo did the actual work in spreading the asphalt. Other than this surfacing there is no evidence as to any improvements made therein.

10. Some time in 1969 a friend of the Donahue boys hit the retaining wall beside the Ugo home, and this indiscretion resulted in an attempt by Mr. Ugo to block off the right of way with a sawhorse and I-beam (Exhibit Nos. 6A and 6B), and elicited a letter from the plaintiff's then attorney objecting to the shutting off of the right of way. The obstructions were subsequently removed.

11. In the early 1980 's the franchisee of the McDonald's restaurant, Mr. Sidney Boorstein, and a McDonald's regional manager drove around this part of Norfolk County and noticed the vacant lot adjacent to the Route 138 restaurant. The property, the right of way and the rear portions of the Donahue and Smerlas lots were described as a mud hole, mostly dirt with high weeds and trees. They did observe the cars parked along the sides of the 40 foot wide strip and in the rear of the Donahue house. The premises were an eye sore, but they had the potential of providing an additional entrance to and exit from McDonald's restaurant where the traffic occasionally backed up on Washington Street. In addition, the improvements which the defendant contemplated would improve the setting for its existing facility.

12. Construction started in the summer of 1984 and was completed roughly two months later. The work which was done included the removal of a fence between the Smerlas lot and the existing McDonald's parking lot to afford access to the construction vehicles, the clearing of the brush, dirt and debris from the Smerlas lot, the surfacing of the entire Lot 1, the removal of the existing black top on the 40 foot wide strip and its resurfacing with the creation of seven foot wide raised strips along each side of the right of way, grassed over and landscaped with shrubs and flowers planted therein with a curbing between the travelled way and shoulders. There is one light within this area, and a small entrance and exit sign at the point where the strip meets Central Street. Markings on the pavement divide the 26 foot remainder of the right of way direction wise and arrows indicate the direction of the traffic flow. After the receipt of another letter from the then attorney for the plaintiff about blocking of access, the defendant arranged to have an entrance created to the plaintiff's backyard from the redesigned right of way. A similar right of way had been planned for the rear yard of the ral estate office across the right of way. The access into the yard slopes somewhat precipitously, and the plaintiff's property needs grading to avoid damage to the undercarriage of cars entering the Donahue backyard from the forty foot wide strip.

13. At the request of officials of the Town of Stoughton a contract between the defendant and Seaman Bratko Corporation was amended by a change order for the installation of a drain from a point immediately south of the southeasterly corner of the Donahue property to a dry well in the parking lot. The Engineering Department of the Town approved the site construction plan for the parking area expansion. The plan shows the dry well, but it does not show the drain which was constructed at the defendant's expense (see Exhibit No. 32).

14. In 1989 the rear of the plaintiff's property was flooded, but this apparently is the only time that such an event has occurred from 1985 to the present. There was no evidence as to the rainfall at the time of the problem or any expert testimony as to its cause. The topographical materials introduced into evidence show that there is a variation between the low point at the rear of the plaintiff's house, the street level and the level of the town property to the east of about six feet. The parking lot now is pitched to the catch basins to avoid flooding therein. There is no evidence that the grade of the parking lot was raised, only that loam was placed on the shoulders of the strip. The paving, a permissive improvement, may be responsible for the problem in entering the back yard.

15. As stated above, the project took approximately two months to complete. The work commenced by the existing restaurant and proceeded in the direction of the plaintiff's property. At this stage when the right of way was being resurfaced, the curbing, shrubs and grass added and the markings put on the surface, the right of way was blocked for at least part of the day, between the early morning hours when the tenants left for work, and 3:00-4:00 P.M. when they usually returned. There obviously were some days, however, when access to the backyard was completely blocked and the tenants were required to park on the front lawn. It is unclear from the testimony how long the strip was the subject of the contractor's attention. Work began at the southerly end of the property and moved northerly.

16. The defendant or its contractor did no work on the plaintiff's property. The curb cut into the Donahue backyard essentially is on the forty foot wide strip, and the culvert is on property leased to the defendant.

17. The plaintiff's sons prior to the commencement of the work took down a fence which had run along the southerly boundary as it needed repair and left it rolled up in a corner. They claimed that the contractor's equipment swept it up and disposed of it. That has not been established by the evidence, but even if this happened, the fence appears of little value.

18. Frederick C. Smerlas is either the owner of the entire fee in the 40 foot wide right of way or the fee to the center line thereof with the right to use all of the so-called right of way as appurtenant to the property acquired by him originally owned by Giacinto and Theresa Ugo. He is not a party to this litigation so there can be no determination as to the title to the fee which binds him.

There is a doctrine in this Commonwealth that the conveyance of a property bounded by a street or way carries the fee to the middle line of the way with the right to use it as appurtenant to the granted premises. The rule is set forth in Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965), with quotations from other cases, as follows:

'when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of said street or way, the right thus acquired by the grantee (an easement of way) is not only co­extensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.' (citation omitted) This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated. (citation omitted) This principle of estoppel 'seems to have become a rule of law rather than a mere cannon of construction'. (citation omitted)

This portion of the Murphy opinion is devoted to the question as to whether a right of way was granted to the developer, and there is no dispute on that issue here. It is clear that there is appurtenant to the plaintiff's property the right to use the 40 foot wide strip called "right of way" in the deed to her and her former husband. The real question in this case is whether the conveyance to the plaintiff conveyed a fee to the middle of the strip. This does not necessarily impact the consequence that the parties attributed to it at the trial since even if the plaintiff merely has a right to use the 40 foot wide strip, there is much authority that she has the right to use each portion of it. See Gray v. Kelley, 194 Mass. 533 (1907). The cases do establish that a description which bounds by a way in a conveyance of land is presumed to convey title to the fee to the middle of the way with a right to use the entire way so long as the way belongs to the grantor. Murphy, supra at page 680. The rule is applicable whether the way is public or private and presumably also to a "right of way" as given in the boundary in the present case although it is less clear in such an instance. [Note 3] However, in all cases "the basic question remains one of ascertaining the intent of the parties as manifested by the written instrument and the attendant circumstances" (citations omitted). Id. The same rule was applied in Brassard v. Flynn, 352 Mass. 185 (1967).

On this aspect of the case the evidence showed that the common grantor owned a large tract of land to which the way afforded access from Central Street. The grantor originally intended that members of the family share residences in this area, but other than the conveyance to George Ugo and his wife, those plans did not come to fruition. The family did, however, develop the entire parcel commercially, and control of the way was essential. The deed to the property at 968 Central Street described the 40 foot wide strip as being land of the grantor. The real estate taxes covering this piece (that is, the forty feet) have always been paid by the record owners from time to time of the back land. The Donahue piece has never been assessed more than as a parcel containing 8,000 square feet. The language in the deed to the plaintiff and her former husband is ambiguous. It bounds by the right of way and grants the right to use it. The deed contains the language "together with and subject to rights of way for all usual purposes in common with others lawfully entitled thereto, into and over said forty (40) foot right of way as shown on said plan." There would have been no necessity of referring to the words "and subject to" if the fee was not intended to run to the middle of the way other than to make to clear the grant was not exclusive. On the other hand if the grant of a fee were intended, then the grantor clearly should have reserved the right to use the way for all purposes as appurtenant to the remainder of his land. This was not done. There now is the statutory preference set forth in G.L. c. 183, §58, but this is intended principally to cure a different problem. See Emery v. Crowley, 371 Mass. 489 (1976).

In the light of the large area retained by the senior Ugos, the reference in the description to "right of way" rather than "way", the payment of tax bills by those claiming under Giacinto Ugo and the language of the deed out to George M. and Margaret I. Ugo, I conclude that fee to the entire right of way remained with the grantor at the time of the conveyance to the Donahues that gave them a right to use said way for all purposes. The ambiguity in the language of the deed authorizes an examination of the conduct of the parties to reach a proper construction of the grant, and I find and rule that the fee was retained when the easement was granted to the plaintiff and her husband. Indeed her position in the correspondence from her former attorney and the complaint confirms this construction. As was said in Beattie v. Swanson, 360 Mass. 50 , 53 (1971) it would be contrary to common sense for the Donahues, the first Ugo grantees, to have thought otherwise.

The evidence clearly shows that members of George Ugo's family and of the plaintiff's family parked their cars within the 40 foot right of way over a period of many years. Although the Donahue premises basically have been rented from the late 1960's on, the tenants appear to have continued this practice of parking on the way. Presumably the reason for the grant of a right of way was to afford access to the backyard where the original parties to the deed doubtless contemplated that either a garage might be built or a parking lot laid out as has now been done behind the former Ugo house on the opposite side of the 40 foot wide strip. While the vacant lot remained empty, however, the natural thing to do, and the avenue of least resistance, was to leave one's car in the strip, and twenty years' use unexplained does by implication give a prescriptive right to continue to do so. Alternatively the grant of a right of way for all purposes may include the right to park therein, particularly if it is forty feet in width. See Brassard v. Flynn, supra.

The cases make it clear that one who has a right to use a way has a right to use each portion thereof while the owner retains the right to use the fee in any way not inconsistent with the grant. Tehan v. Security National Bank, 340 Mass. 176 , 186 (1959), Western Massachusetts Electric Co. v. Samba's of Massachusetts, Inc., 8 Mass. App. Ct. 815 , 818 (1979), Merry v. Priest, 276 Mass. 592 , 600 (1939). The cases also establish that one who has the benefit of an easement has a right to improve the land over which it passes. Guillet v. Livernois, 297 Mass. 337 , 341 (1940). This would apply to the defendant claiming under Mr. Smerlas. Since Smerlas, the fee owner, also has the right to use the "Right of Way", he was entitled to lease it to the defendant which needs no like grant from the plaintiff. There was no overburdening of the easement by using the strip for access to and from the existing McDonald's restaurant and parking lot since at the time of the creation of the easement all of the land was owned by the senior Ugos. The only parcel not conveyed by Katie Evans was the location of the Shell station, and accordingly, this property cannot use the right of way, but everyone else can. It is not clear that trucks servicing McDonald's come in from Central Street, but since George Ugo for many years used the strip for access to and from the rear of his home for his construction vehicles, the size of the vehicles cannot be a valid issue here. Moreover, the property was zoned for nonresidential uses when the plaintiff acquired title to her home, and it continues to be so zoned. It is clear that it does not overburden the easement for it to be used to afford access to commercial uses on the property formerly owned in common. I further find and rule that commercial uses of the remaining Ugo land having been contemplated, the increase in volume is not an overburdening.

By narrowing the travelled way from 40 feet to 26 feet with lawn along each side and shrubs and other beautification, the defendant, at least as between the plaintiff and the defendant without estopping the owner of the property, interfered with the plaintiff's right to use the entire 40 feet for access to and egress from the rear of her premises. The defendant also partially blocked the access to the rear of the plaintiff's property during the period of construction for a portion of some days and all of other days with the evidence not definitely establishing the length of the period. Finally, the plaintiff has been prevented from parking along the sideline and parallel to her lot line since early 1985. However, the work which the defendant has done has improved the appearance of the properties and has converted a mud hole into a more rewarding commercial use. The overall appearance of the neighborhood now as compared to that prior to 1984 may have increased the value of the plaintiff's property, not diminished it. That remains to be decided in the damage portion of this trial.

I also find and rule that it would be inappropriate to require that the way be restored to its former condition by a mandatory injunction, particularly since the plaintiff is negotiating to convert her premises into a similar operation. I therefore decline to issue an injunction (which would not have been available in any event in the district court) but rather rule that any recovery by the plaintiff will be limited to damages.

There is no count in the complaint, as amended, relative to flooding. The evidence at the trial established that the lowest point of the neighborhood and the one most subject to flooding was near the southwest corner of the plaintiff's property. The topography of the area naturally leads to this result, and the one incident of deep flooding may be attributed to natural causes. In any event Massachusetts has recently changed from the common enemy rule to the reasonable use doctrine in refereeing disputes between adjoining owners. Tucker v. Badoian, 376 Mass. 907 , 916-917 (1978). The doctrine is discussed in Triangle Center v. Department of Public Works, 386 Mass. 858 (1982). It was most recently applied in von Henneberg v. Generazio, 403 Mass. 519 (1988). The key to determining the question seems to be whether the person improving his own properties acts unreasonably. On all the evidence here I find that the defendant did not.

The action having been bifurcated and the liability aspect now having been concluded, a trial may be held on damages suffered by the plaintiff, if any, from the narrowing of the way. It has been usual in this department to wait until the appeal process as to liability has been concluded before scheduling a trial on the issue of damages, but a conference with the parties will be scheduled to determine procedure.

Judgment accordingly.

exhibit 1

Appendix A


[Note 1] The third party complaint was dismissed with prejudice by the filing of a stipulation of dismissal.

[Note 2] The correct names of the property owners were Giacinto and Theresa Ugo, the title of the plan reflecting the confusion by the surveyor of the surname and family name of Mr. Ugo.

[Note 3] As to the application of G.L. c. 183, §58 to a "passageway", see Cumbie v. Goldsmith, 387 Mass. 409 , 411 n. 7 (1982).