RULE PAINT AND CHEMICAL, INC. v. JOHN C. WRIGHTSON, DOROTHY WRIGHTSON, JUDITH CHAMBERLAIN, BERYL WONSON and THOMAS SEXTON.

This case involves a contested complaint to register title to a parcel of land, pursuant to G.L. c. 185, on Rocky Neck in Gloucester, Massachusetts ("the locus"). The locus consists of approximaely 43,600 square feet of land and is more particularly described in the Complaint for Registration and shown on Land Court Plan 40914-A2. The part of the locus which is in dispute in this proceeding is the westerly most portion of a private way called Horton Street ("the Horton Street lot"). The plaintiff, Rule Paint and Chemical, Inc. ("Rule Paint"), denies the rights of anyone in or over the Horton Street lot and therefore seeks to have this portion of Horton Street within the locus eliminated.

The defendants, John C. Wrightson and Dorothy W. Wrightson ("the Wrightsons"), filed an answer, later amended, claiming fee ownership to the center line of the Horton Street lot where Horton Street abuts their property. The Wrightsons also objected to the plaintiff's claim to eliminate any portion of Horton Street within the locus, as well as the claims which relate to the use of Horton Street or to the ownership of any part of Horton Street and the plaintiff's claim of right and appurtenant easement to use Horton Street extending beyond the locus. Defendants Beryl E. Wonson, Judith Chamberlain and Thomas J. Sexton also objected to the complaint, claiming the right to pass and repass over the entire length of Horton Street, including that portion of Horton Street within the locus which the plaintiff seeks to eliminate. In addition, defendants Eleanor Farrell, Terry Martinetti, Carin Warner Martinetti, Elizabeth Williams and Theodore Williams filed answers objecting to the complaint, but were defaulted for their failure to appear for the taking of their depositions.

The plaintiff also claims the right and easement, as appurtenant to the locus, to use a portion of Horton Street as shown on Land Court Plan 40914-A3 from the locus out to Clarendon Street for all the usual purposes of a way in common with others entitled thereto. The easement as described in an amended complaint is as follows:

A 50 foot wide portion of Horton Street shown on sheet 2 of said plan as Horton Street (Private--50 Ft.,Wide) Record Right of Way Claimed and the 15 foot wide portion shown on sheet 1 of said plan as the paved portion of the right of way described as 15 Foot Wide (Pavement Width) Right of Way Claimed; and with respect to any portion of such way which lies below the mean high water line as now or hereafter determined, subject to the rights of the public and the Commonwealth of Massachusetts in and to the tideland areas, and provided however, in no event shall the petitioner's registered easement rights extend beyond the mean low water mark as now or hereafter determined.

Five days of trial were held at which a stenographer was appointed to record and transcribe the testimony. Six witnesses testified, six chalks were used and 44 exhibits were introduced into evidence, which are incorporated herein for the purposes of any appeal. One other exhibit was marked for identification only. A view of the locus and surrounding area was taken in the presence of counsel.

After the trial had concluded, Catherine Swauger and Joyce McAuliffe ("the movants"), the owners of property at 23 Horton Street, moved to set aside the default which had been entered against their predecessor in title, Tech Aid, Inc. (who had not answered) and to allow the late filing of their answer to the plaintiff's complaint. Swauger and McAuliffe also moved to intervene as of right in this action, asserting an interest relating to the property which is the subject matter of this case. The movants objected to the complaint, claiming that in 1986 they purchased their property at 23 Horton Street together with the fee to the center of Horton Street beyond the locus. The movants also claimed the right to use Horton Street for the usual purposes of a way in common with others lawfully entitled thereto. The plaintiff opposed both motions.

After negotiations, the plaintiff and the movants entered into a stipulation of settlement whereby the movants "assented to the dismissal of their motions (sic)". The plaintiff granted to the movants a negative easement in and over that portion of the plaintiff's claimed easement over Horton Street which abuts the movants' property. The negative easement area is shown of Land Court Plan 40914-A3 and designated thereon as "Negative Easement Area."

The negative easement agreement provides that in the event that the plaintiff engages in any construction on Horton Street, the road would not be widened to greater than the 26 foot minimum width requirement of the Planning Board Rules and Regulations or the minimum width required by any other Municipal Regulations governing the subdivision of land in Gloucester, Massachusetts. The plaintiff also agrees not to construct or use the 24 feet on the northeasterly side of the negative easement area directly adjacent to the movants' property except for temporary purposes during constructon or maintenance of the way. Furthermore, the plaintiff agrees not to construct any new structures in the negative easement area and to refrain from interfering with the movants' maintenance of any existing structures in that area.

The stipulation provides that it will only take effect when and if a final decree (sic) issues approving the plaintiff's complaint to register land or approving that portion thereof which grants appurtenant rights in the right of way area of Horton Street traversing the movants' property at 23 Horton Street. The negative easement is to be incorporated and cited in any decree of registration and included and identified in any plans approved by the Land Court Engineering Department. If a final decree does not issue, the agreement and grant of negative easement will be null and void and of no further force and effect.

Based on all the evidence, I find the following to be the facts:

1/ The locus is a parcel of land containing approximately 43,600 square feet which is situated on Rocky Neck in Gloucester, Massachusetts. The locus is shown on Land Court Plan 40914-A2 and designated thereon as "Area = 43,600 S.F. Above Mean Low Water."

2/ Plaintiff's predecessor in title, Tarr & Wonson, Ltd., ("Tarr & Wonson") acquired title to the locus by means of three deeds which conveyed three separate lots. The first lot ("lot 1"), which consists of a parcel of land on which a paint factory is situated, was conveyed to Tarr and Wonson by Augustus H. Wonson and Addison P. Wonson by deed dated March 4, 1893 and recorded at Book 1370, Page 113, Essex County Registry of Deeds (Southern District). [Note 1] Lot 1 is shown on the reduction of Land Court Plan 40914-A2 which is attached hereto as Appendix A. The lot designations 1, 2 and the Horton Street lot, have been inserted by the Court on Appendix A solely for purposes of illustration.

The second lot ("lot 2"), which consists of the flats abutting lot 1 & the Horton Street lot, was conveyed to Tarr and Wonson by Katherine Gertrude Wonson by deed dated June 14, 1954, recorded at Book 4075, Page 354. Lot 2 is shown on the reduction of Land Court Plan 40914-A2 which is attached hereto as Appendix A.

The third lot ("the Horton Street lot"), which consists of the westerly most portion of Horton Street, was conveyed to Tarr and Wonson by the heirs of Augustus H. Wonson by a release deed dated August 1, 1925, recorded at Book 2650, Page 418 ("the 1925 release deed"). In this deed, the grantors released to Tarr and Wonson all the right, title and interest which they had in Horton Street. However, they reserved for those among themselves still possessing land on Rocky Neck and their heirs and assigns, the right to use Horton Street for all the usual purposes of a way as appurtenant to their lands. As of the date of this reservation, the property on Rocky Neck retained by any of the grantors consisted of an area of flats which was bordered on the south by Horton Street, lots at 4 and 6 Valatie Street, a lot at 6 Terrace Street, lots at 42 and 46 Rocky Neck Avenue, lots at 1 and 3 Clarendon Street (now owned respectively by the defendants Beryl Wonson and Judith Chamberlain) and one of the lots now owned by the Wrightsons, which lot is described in Land Court Certificate of Title 51551 and designated therein as the "First Parcel". The Horton Street lot is shown on a reduction of Land Court Plan 40914- A2 which is attached hereto as Appendix A.

3/ The plaintiff acquired these three parcels from Tarr and Wonson by deed dated December 7, 1979, recorded at Book 6661, Page 73.

4/ Horton Street is a private way which is shown on plans of Rocky Neck and on the file plan as being approximately 50 feet wide. [Note 2] As it exists on the ground, however, Horton Street is paved only to a width of approximately 15 feet.

5/ The defendants stipulated in open Court that they objectd only to the registration of any portion of Horton Street within the locus. They did not, however, stipulate that the plaintiff had shown registerable title to any land described in their complaint.

6/ All of the defendants derive title to their respective land from the common grantor, Augustus H. Wonson; "or his heirs, either by deed or under the will of Augustus H. Wonson.

7/ The defendant Wrightsons are the owners of three registered parcels of land as described in Land Court Certificate of Title No. 51551. The first of these parcels is shown on Land Court Plan 40914-A2 and is designated thereon as "Lot A, L.C. Plan 15009A, Cert. 9615, John D.W. Wrightson" ("lot A").

8/ The Wrightsons' predecessor in title to lot A as of 1882 was Catherine Story. Lot A was conveyed to Catherine Story by Augustus H. Wonson by deed dated July 21, 1882, recorded at Book 1091, Page 135. The deed described the lot, in part, as "running by the southerly side of [the road leading to Wonsons Copper Paint Factory]." This road was later named Horton Street. By deed dated March 15, 1906, recorded at Book 1818, Page 95, the children of Catherine Story conveyed all of their right, title and interest in Rocky Neck, excepting lot A, to Susan E. Wonson and reserved to themselves the right to pass and repass from lot A to Clarendon Street and Rocky Neck Avenue in and over Horton Street. The heirs of Catherine Story later conveyed lot A to Arthur Story Wonson by deed dated September 18, 1931, recorded at Book 2897, Page 236. This deed similarly described the parcel as "running by the southerly side of (the road leading to Wonsons Copper Paint Factory]", which road is now Horton Street.

9/ In late 1931, Arthur Story Wonson sought to register the land he owned on Rocky Neck, including lot A, in Land Court Registration Case No. 15009. [Note 3] The description of the land in the registration petition bounds lot A by Horton Street. In response to this petition, Sarah E. Wonson, Arthur Story Wonson's sister­in-law, filed an answer in which she denied his exclusive ownership of Horton Street as well as his express right to use Horton Street.

10/ A document entitled "Stipulation", signed by the attorneys for Arthur Story Wonson, Tarr and Wonson and the heirs of Augustus H. Wonson, was filed in Registration Case No. 15009. The stipulation, which was not recorded or filed in the Registry of Deeds, provided as follows:

It is hereby mutually stipulated and agreed that the northerly boundary of the petitioner's land is the southerly side line of Horton Street, as shown on plan filed with said petition, and that the petitioner has no interest in that part of Horton Street lying westerly of the westerly side line of the way shown on said plan and designated thereon Wonson Street, and that there is not, as appurtenant to the petitioner's land, any right to use, for any purpose, that part or portion of said Horton Street lying west of said Wonson Street.

11/ A decree of registration was issued to Arthur Story Wonson in Registration Case No. 15009 on June 27, 1932. The stipulation was not referenced in the decree. The decree describes Lot A as bounding northerly by land formerly of Augustus H. Wonson and not by Horton Street. In addition, the decree is silent as to any rights in the portion of Horton Street lying west of Wonson Street as appurtenant to the registered land, undoubtedly because Arthur Story Wonson stipulated that he had no such rights. Furthermore, the decree plan, Land Court Plan 15009A, does not show that portion of Horton Street lying west of Wonson Street. Rather, it shows Horton Street ending at the junction of Wonson and Horton Streets. Land Court Plan 15009A shows Lot A as bounding northerly by land formerly of Augustus H. Wonson.

12/ The second registered parcel of land owned by the Wrightsons is shown on Land Court Plan 40914-A2 and is designated thereon as "L.C. Plan 11346A, Cert. 6669, John D.W. Wrightson", (the "Wrightson lot"). The Wrightsons' predecessors in title to the Wrightson lot as of 1925 were the heirs of Augustus H. Wonson. The deed from the heirs of Augustus H. Wonson into Fannie Nauss, dated October 5, 1925, recorded at Book 2662, Page 539, provided that "No right as appurtenant to the [Wrightson lot] or any part thereof, to use that parcel of said Horton Street upon which [the Wrightson lot] abuts, or which lies westerly of [Wonson Street] is hereby conveyed." The conveyance to Fannie Nauss occurred two months after the heirs of Augustus H. Wonson had previously released to Tarr and Wonson all the right, title and interest they had in Horton Street, by deed dated August 1, 1925. Fannie Nauss was issued a Decree of Registration on May 10, 1927. The decree made no mention of any rights in the westerly most portion of Horton Street as appurtenant to this land.

13/ The third registered parcel which the Wrightsons own is shown on Land Court Plan 15009B and is designated thereon as lot "B-2".

14/ The Wrightsons took title to all three registered parcels in 1982 after a series of mesne conveyances. In the Wrightsons' deed and certificate of title, lot A is described as bounded northerly by "land formerly of Augustus Wonson." In addition, the deed and certificate are silent as to any rights in the Horton Street lot, as appurtenant to lot A.

15/ Defendant Judith Chamberlain lives at 3 Clarendon Street on Rocky Neck. She has owned her home at 3 Clarendon Street since 1959 when she inherited it from her aunt, Alice M. Sanders. Alice Sanders was one of the grantors in the 1925 release deed to Tarr and Wonson to whom the appurtenant right to use Horton Street for all the usual purposes of a way was reserved. At the time of the release deed, Alice Sanders held a life estate in what is now 3 Clarendon Street under the 1894 will of Augustus H. Wonson. Sanders' interest became a full fee when the remaindermen released their interest in the property to her by deeds dated October 30, 1925, recorded at Book 2663, Page 101 and November 7, 1925, recorded at Book 2663, Page 100.

Chamberlain, the daughter of Arthur Story Wonson, has lived on Rocky Neck for most of her life. During the period from 1918 (when she was born) until 1946 (when she moved away from Rocky Neck for a number of years), Chamberlain made "quite a few'' uses of Horton Street. She used Horton Street to visit her father at the paint facory (which is now located on the locus) where he worked. In addition, she used Horton Street to reach the rocky area to the west of the paint factory ("the rocky area"). In this rocky area, Chamberlain recalled picnicking and playing on the rocks, as well as swimming and fishing off the rocks. She saw other members of the Wonson family making similar uses of Horton Street during the years 1918-1946. In particular, she recalled picnicking and swimming with her brother and his wife. These uses were not limited to the summertime and occurred in the winter as well.

From 1946 until 1959, Chamberlain did not live on Rocky Neck. She did, however, visit frequently on weekends, holidays and for several weeks during the summer. On these visits, she used Horton Street to visit her brother who worked at the paint factory. In addition, she went to the rocky area to watch boats, look for birds, watch fireworks or "anything that was going on at that time."

Chamberlain moved back to Rocky Neck in 1959 when she inherited her present home at 3 Clarendon Street. Since that time she has continued to use Horton Street for various purposes: to visit her brothers when they worked at the paint factory, to reach the rocky area to look at the view and watch boats, birds or fireworks. She walks on Horton Street to the rocky area, sometimes accompanied by her grandson, approximately once a week.

Chamberlain's property at 3 Clarendon Street does not abut Horton Street but it is one of the parcels which has the benefit of the appurtenant right to use Horton Street for all the usual purposes of a way that was reserved in the 1925 release deed. Chamberlain does not need to use Horton Street for access to her property because she has access to the public ways over Clarendon Street, which is a public way.

16/ Defendant Beryl E.Wonson lives at 1 Clarendon Street on Rocky Neck. In 1925, this property was owned by Addison P. Wonson who was one of the grantors of the 1925 release deed to whom the appurtenant right to use Horton Street for all the usual purposes of a way was reserved. By deed dated March 7, 1929, recorded at Book 2798, Page 371, Addison P. Wonson conveyed the property to Eleanor B. Farrell, who in turn conveyed it to herself, Bertha E. Farrell and Stanton Farrell by deed dated September 8, 1956, recorded at Book 4306, Page 336. Beryl and her husband, Gardiner Wonson, purchased the property as tenants by the entirety from the Farrells in 1961. This deed was dated June 2, 1961 and recorded at Book 4776, Page 246. There is no mention of any appurtenant rights to use Horton Street in the deed to Beryl and Gardiner Wonson. Beryl Wonson became the sole owner of 1 Clarendon Street when her husband died in 1984.

Beryl Wonson first became familiar with the Rocky Neck area in 1946 when she met her husband, Gardiner Wonson, who was born and raised on Rocky Neck. When they were first married in 1949, Beryl Wonson used Horton Street to visit her husband who worked at the paint factory. They also took walks to the rocky area. From the time Beryl and Gardiner Wonson purchased their home at 1 Clarendon Street in 1961 until the mid-1970s, they used Horton Street to reach the rocky area to view "things that were going on in the harbor." From the mid-1970s until 1982, the Wonsons used Horton Street to reach the rocky area where they picnicked and swam. Beryl Wonson stopped picnicking on the rocky area in 1982 when her husband became ill, but she continues to use Horton Street to reach the rocky area several times a week. Such use is not seasonal, although it is more frequent in the summer.

Wonson's property at 1 Clarendon Street does not abut Horton Street but it is one of the parcels which has the benefit of the appurtenant right to use Horton Street for all the usual purposes of a way that was reserved in the 1925 release deed. Wonson does not need to use Horton Street for access to her property because she has access to the public ways over Clarendon Street.

17/ Defendant Sexton lives at 26 Horton Street on Rocky Neck. Sexton owns this house lot as well as the upland and flats directly across Horton Street from his home. With respect to both lots, Sexton is the successor in title to Edward D. Allen. The Wonson heirs conveyed the house lot at 26 Horton Street to Allen by deed dated December 31, 1919, recorded at Book 2444, Page 235, together with the express right to use Horton Street to pass and repass from the public highway to the granted premises. The upland lot was conveyed to Allen by the same grantors by deed dated May 31, 1920, recorded at Book 2459, Page 280. This lot was conveyed together with the appurtenant right to use Horton Street for the usual purposes of a way. After a series of subsequent transfers, Sexton purchased the property in 1970 from H.B. Porter. This deed was dated September 18, 1970 and was recorded at Book 5713, Page 373. In the deed from Porter to Sexton, the language conveying the appurtenant rights to both parcels varies somewhat from language used by the Wonson heirs in the original deeds to Allen, but the easements thereby conveyed to Sexton with respect to the use of Horton Street do not differ in substance from those conveyed to Allen.

Sexton has lived in his home on the house lot at 26 Horton Street since approximately 1980. In 1984 or 1985, Sexton developed a parking area on Horton Street next to his house. He is not able to turn his car around in front of his house because Horton Street is only paved to a width of approximately 15 feet. Nor can he drive onto the upland lot across the street from his house and turn his car around because said lot is solid rock. Sexton finds it necessary to drive from the public way down Horton Street, past his two lots to the western portion of Horton Street, turn his car around on the Horton Street lot and then drive back and park his car in his parking area.

In a registration proceeding, the burden of proof is upon the plaintiff to establish title to the locus. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). Rule Paint had the burden of proving its exclusive title to the Horton Street lot and the Wrightsons claim the fee to part of the Horton Street lot. The Wrightsons also claim, as appurtenant to lot A, the right to pass and repass over Horton Street from their land to Clarendon Street and Rocky Neck Avenue. The defendants Sexton, Chamberlain and Wonson claim appurtenant rights to pass and repass over the entire length of Horton Street, including the Horton Street lot.

Considering the sequence of the conveyances of lot A and the Wrightson lot to the Wrightsons' predecessors, I find and rule that the Wrightsons own no portion of the fee in Horton Street coextensive with the ownership of their land. [Note 4] The Wrightson lot was conveyed by the Wonson heirs to Fannie Nauss two months after the said heirs had released all their right, title and interest in Horton Street to Tarr and Wonson. Accordingly, no fee interest in Horton Street could have passed with the Wrightson lot to Fannie Nauss by virtue of this conveyance.

Nor did the Wrightsons' predecessor in title to lot A, Catherine Story, acquire a fee interest in the Horton Street lot under the 1882 deed conveying lot A to her. Absent language to the contrary, a deed which bounds property "on" or "by" a way conveys the fee to the middle of the way if the way belongs to the grantor at the time of the conveyance. Casella v. Sneierson, 325 Mass. 85 , 89 (1949). The deed from Augustus H. Wonson to Catherine Story does not bound lot A on or by Horton Street. Rather, the deed describes lot A as "running by the southerly side of [Horton Street]" (emphasis added). A deed containing a description which bounds property "on" or "by" the side line of a way ordinarily indicates that the grantor did not intend to convey the fee in any part of the way. Casella v. Sneierson, 325 Mass. at 89. The reference to a side line evidences that no ownership is granted beyond the boundary named. McKenzie v. Gleason, 184 Mass. 452 , 458 (1904).

Extrinsic evidence may be considered to ascertain the intent of the parties in light of the attendant circumstances at the time of a conveyance. Frawley v. Forrest, 310 Mass. 446 , 451 (1941), Erickson v. Ames, 264 Mass. 436 , 444 (1928). In this proceeding, however, no evidence was presented which indicates that Augustus H. Wonson intended to grant a fee in Horton Street to Catherine Story. Therefore, it is reasonable to infer that the reference in the deed to the "southerly side" of Horton Street was intended to have its usual effect. Consequently, the description in the deed to Catherine Story did not convey a fee in Horton Street to her. The Wrightsons, whose title stems from Catherine Story, acquired no better right.

The description in the 1882 deed to Catherine Story bounding lot A by the side line of Horton Street did, however, convey an easement in Horton Street because a deed bounding property by the side line of the way operates to give the grantee an easement in the way. Casella v. Sneierson, 325 Mass. at 90. Because lot A abuts the Horton Street lot, the easement acquired under this deed would necessarily include a right of way over this portion of Horton Street. This easement was conveyed to Arthur Story Wonson when he purchased lot A in 1931 because his deed also bounded the property conveyed by the southerly side of Horton Street.

In 1931, Arthur Story Wonson petitioned the court in Land Court Registration Case No. 15009 to register lot A as bounded by Horton Street. In response to an appearance and objection by his sister-in-law in that case, Arthur Story Wonson entered into a stipulation, dated April 25, 1932, filed with the documents in that case, in which he stipulated that he had no appurtenant right to use that portion of Horton Street lying west of Wonson Street. The stipulation was not recorded or filed in the Registry of Deeds and was not referenced in the registration decree which issued on June 27, 1932. The decree bounds lot A by "land formerly of Augustus Wonson" and does not grant any rights in the Horton Street lot as appurtenant to lot A. The certificate of title to lot A contains similar language.

From the face of the registration decree and the certificate of title, there is no indication that Arthur Story Wonson had any rights in the western portion of Horton Street, including the Horton Street lot. This does not mean, however, that Arthur Story Wonson lost his appurtenant easement by virtue of the decree alone. Although easements to which the registered land is subject must be set out in the decree and certificate of title, there is no requirement that easements appurtenant to the registered land must be similarly disclosed. Dubinsky v. Cama, 261 Mass. 47 , 56 (1927).

The next issue to be resolved is whether the stipulation signed by Arthur Story Wonson resulted in the extinguishment of his easement in the western portion of Horton Street, including the Horton Street lot. If it did not have this effect, then the Wrightsons have an easement in the western portron of Horton Street, including the Horton Street lot, as appurtenant to lot A. Both by statute and case law, when property is conveyed, an appurtenant right automatically passes with the title to the property even if such a right is not mentioned in the deed or, if the land is registered, in the certificate of title. See, G.L. c. 3, §15, Dubinsky v. Cama, 261 Mass. at 56.

The Wrightsons contend that because the stipulation did not convey Arthur Story Wonson's easement in the western portion of Horton Street, including the Horton Street lot, to anyone, it was ineffective to extinguish this easement. While it is generally true that an interest in real estate can only be conveyed by a deed, the owner of the dominant estate may abandon an easement without the necessity of a deed. King v. Murphy, 140 Mass. 254 (1885). Whether an easement has been abandoned is a question of intention. Sindler v. William M. Bailey, Co., 348 Mass. 589 , 592 (1965). "[T]o show abandonment there must be evidence of a present intent to relinquish the easement or a purpose inconsistent with its further existence." Les v. Alibozek, 269 Mass. 153 , 158-9 (1929). In the stipulation, Arthur Story Wonson states that he has no interest in that portion of Horton Street lying westerly of Wonson Street and that there is not, as appurtenant to lot A, any right to use that portion of Horton Street. I therefore rule that the stipulation is a clear manifestation of Arthur Story Wonson's intent to abandon his easement in the western portion of Horton Street, including the Horton Street lot, and that therefore, he abandoned said easement.

The Wrightsons further contend that, because the stipulation was not recorded or filed in the Registry of Deeds, it should not be effective against them because they purchased lot A without notice of the stipulation. However, the stipulation need not have been so recorded or filed in order for Arthur Story Wonson's abandonment of the easement in the western portion of Horton Street, including the Horton Street lot, to be effective. The Supreme Judicial Court has held that the abandonment of a right of way was properly shown by acts by the former owner of a right of way, which acts did not appear of record, and that the abandonment was effective even though it did not appear of record. Westcott v. New York and New England Railroad Company, 152 Mass. 465 , 468 (1890). Although Westcott concerned the abandonment of a right of way over a strip of land, not the abandonment of an easement, the abandonment of an easement can be similarly shown by "acts which do not appear as of record", such as the stipulation by Arthur Story Wonson which clearly indicates his intention to abandon the easement.

Furthermore, there is nothing in the Wrightsons' deed and certificate of title to lot A, nor in the deeds of the owners of lot A prior to the Wrightsons, which suggests that the owner of lot A has any rights in the western portion of Horton Street, including the Horton Street lot. In the Wrightsons' deed and certificate of title to lot A, lot A is bounded not by Horton Street, but by land formerly of Augustus Wonson. These instruments give no indication that the western portion of Horton Street exists. In addition, the Wrightsons' deed and certificate of title refer to Land Court Plan 15009A, which is the decree plan in the registration of lot A, Land Court Registration Case No. 15009. On Land Court Plan 15009A, lot A is bounded by land formerly of Augustus Wonson and does not show the western portion of Horton Street. Therefore, the Wrightsons' deed and certificate of title, as well as Land Court Plan 15009A, provide further support that Arthur Story Wonson had abandoned his easement in the western portion of Horton Street, including the Horton Street lot, and that consequently, his successors in interest, the defendants Wrightson, the present owners of lot A, have no such easement. At the time the Wrightsons acquired title to lot A in 1982, there was sufficient information on file in the public records which, with a careful search, should have put them on notice of the likelihood of Wonson's abandonment of the easement in the western portion of Horton Street. Accordingly, I rule that the Wrightsons do not have an easement, as appurtenant to lot A, to use the western portion of Horton Street, including what has been referred to in this decision as the Horton Street lot.

The defendants Chamberlain and Wonson both claim the right to use the entire length of Horton Street, including the Horton Street lot, for the usual purposes of a way. Chamberlain and Wonson each now own parcels of land formerly possessed by grantors of the 1925 release deed to Tarr and Wonson at the time the deed was executed. The grantors of the release deed reserved to those among themselves possessing land on Rocky Neck at the time of the release, and their heirs and assigns, the right to use Horton Street for all the usual purposes of a way as appurtenant to their lands. I rule that Chamberlain, as the heir of Alice Sanders, and Wonson, as the successor in interest of Addison P. Wonson, have whatever rights their predecessors in title had by virtue of the reserved rights in the 1925 release deed.

The nature and scope of the reserved right to use Horton Street for "all the usual purposes of a way" must next be determined. The Massachusetts Supreme Judicial Court has, on one occasion, interpreted the right to use a private way for the "usual purposes of a way" as granting the owner of a lot abutting the way only a right of way to reach the public avenue. City of Revere v. Noonan, 331 Mass. 49 , 50 (1954). In Noonan, the Court was asked to ascertain what was intended by the grant of this right of way. Id. at 50. Because the respondent owned a lot on the corner of the way, the Court found that she would have no practical use for a right of way which extended farther down the street than her corner lot. Id. This was considered to be an important factor in limiting her right of way. Id.

The plaintiff would have this Court interpret the holding in Noonan as narrowly defining the "usual purposes of a way" as only providing a right of access to public ways. This is too limited an interpetation. In Noonan, the Court considered the fact that the respondent had no practical use of a right of way over the entire way to be just a factor (albeit, an important one) in determining the intent at the time the right of way was granted. Id. at 50. Under the plaintiff's reading of Noonan, Chamberlain and Wonson would have no "practical" use of a right of way over Horton Street because their lots do not abut Horton Street and the use of Horton Street is not necessary for them to gain access to the public ways.

Such an analysis, however, ignores both the circumstances surrounding the execution of the 1925 release deed and the language used in other deeds out of the Wonson heirs during this same time period. Only two of the lots which were owned by the grantors at the time of the release abutted Horton Street. These were the Wrightson lot and a lot consisting of upland and flats bordered on the south by Horton Street, part of which is now lot 2 of the plaintiff's land. [Note 5] The remainder of the property owned by the grantors did not abut Horton Street. Moreover, the Horton Street lot was not necessary for access from any of these remaining lots to the public ways. A ruling that the grantors' intent, in reserving the right to use Horton Street for the usual purposes of a way, was merely to provide access to the public way would render the reservation meaningless as appurtenant to these parcels. It is unlikely that the grantors would have reserved to themselves a hollow right.

An examination of the language in other deeds by which the Wonson heirs conveyed land abutting Horton Street supports the conclusion that the grantors intended to reserve to themselves and their successors in interest more than just access to the public ways. In some of these deeds, the grantors did expressly limit the grantees' rights to use Horton Street. The 1925 deed of the Wrightson lot to Fannie Nauss specifically provided that no right to use the western portion of Horton Street was conveyed as appurtenant to that lot. In addition, deeds to Carlton N. Parsons and Freeman W. Hodson, both dated December 30, 1920, conveyed only the right to pass and repass from the granted premises over Horton Street to the public ways. In contrast, in 1919, the Wonson heirs deeded land abutting Horton Street to the Gloucester Fish Company together with the right to use Horton Street for any purpose for which public ways are ordinarily used. The Wonson heirs limited the right to use Horton Street in some deeds but not in others.

The reservation in the 1925 release deed does not limit the right of way to a particular purpose. If the grantors had wanted to limit the right reserved, they could have used language similar to that employed in the above deeds. Furthermore, it does not seem unreasonable that the grantors would have reserved to themselves and their successors in interest appurtenant rights in Horton Street which were more extensive that the rights which they had granted to others. The evidence shows that some of the members of the Wonson family walked to the western end of Horton Street, over the Horton Street lot, to picnic and to fish or swim off of the rocks. They may well for themselves and their successors in interest have desired to continue to do so and sought to secure this right by the 1925 reservation. Based on the foregoing, I rule that the reservation in the 1925 release deed of the right to use Horton Street for the usual purposes of a way does not limit the right to use Horton Street only for access to public ways. Therefore, I rule that Chamberlain and Wonson, as owners of land which had the benefit of the reserved rights, have the appurtenant right to use the entire length of Horton Street, including the Horton Street lot, for the usual purposes of a way.

The defendant Sexton also claims an appurtenant right to use the entire length of Horton Street. Sexton owns two lots which abut Horton Street, both of which were conveyed with appurtenant rights to use Horton Street. The right appurtenant to his house lot at 26 Horton Street, where he resides, is an express right to pass from the public highway over Horton Street to the granted premises. The right to use Horton Street in connection with Sexton's house lot is specifically limited to gaining access to the public way. Consequently, I rule that Sexton has no right to use the Horton Street lot as appurtenant to his property at 26 Horton Street.

Sexton's second lot is directly across Horton Street from his house lot. This upland lot was conveyed to Sexton's predecessor in title, Allen, with the right to use Horton Street for the usual purposes of a way. The lot was conveyed to Sexton with a similar right. As previously discussed, the right to use a way for the usual purposes of a way should not necessarily be interpreted as merely providing a right of access to public ways, particularly where, as in this case, Sexton as the owner of the upland lot has found it necessary to use the entire length of Horton Street. The plaintiff suggests that because the right appurtenant to the house lot was expressly limited to a right of access to a public way, it is unlikely that the Wonson heirs intended to grant to Allen a more extensive right to use Horton Street as appurtenant to the smaller upland parcel. If, however, the Wonson heirs intended to grant the same rights as appurtenant to each parcel, they could have used the same, or at least similar, language in both deeds. They did not. Therefore, I rule that Sexton has the right to use the entire length of Horton Street, including the Horton Street lot, for the usual purposes of a way as appurtenant to his upland lot.

Based on the foregoing, I find and rule that the plaintiff has established registerable title to the locus. Said judgment of registration is to be subject to the rights of the above named defendants to use the Horton Street lot as specifically set forth and to such other matters as are disclosed in the examiner's abstract which are not in issue. I also rule that the plaintiff has established the appurtenant right and easement to use a portion of Horton Street as described in its amended complaint. Accordingly, the judgment of registration shall incorporate and cite the negative easement agreement between the plaintiff and the movants, Joyce McAuliffe and Catherine Swauger.

Judgment of registration to issue accordingly.

exhibit 1