JOHN J. McGRATH and ELIZABETH P. McGRATH vs. JANET CARLINO and ROBERT C. DYER.

The plaintiffs John J. McGrath and Elizabeth P. McGrath [Note 1] have filed a complaint pursuant to the provisions of G.L. c. 185, §lA to register their title to a parcel of land containing approximately 1.5 acres off Wayne Avenue in Braintree in the County of Norfolk. The locus is situated at the end of Sheridan Road, a private way, and consists of the fee in a portion of Sheridan Road which the plaintiffs claim has been abandoned and Lots Nos. 58 to 66 and 87 to 96 inclusive as shown on a plan entitled "Plan of Lots in So Braintree Mass owned by the Braintree Land Association C.P. Andersen Trustee" dated July 1, 1896 by O.L. Reed, Surveyor, and recorded with Norfolk Deeds (to which registry all recording references herein refer) as Plan No. 851 of 1896 in Plan Book 19 (see Abstract Exhibit No. 2, Sheet 19). The premises also are shown on a plan entitled "Plan of Land Sheridan Road in Braintree, Mass. (Norfolk County) prepared for Daniel McGrath, Braintree, Mass." dated June 19, 1987 by Boston Survey Consultants and fled with the Land Court as Plan No. 42170-A (Exhibit No. 1).

Much of the evidence at the trial focused on issues raised by the neighborhood during the Conservation Commission hearings, the Zoning Board of Appeals hearings and the Planning Board hearings. The ZBA granted a variance to allow use of the premises for the construction of three separate homes whereas the Planning Board refused to approve either the preliminary or definitive subdivision plans, and an appeal to the Department of Environmental Protection was required to obtain a superceding order. However, the issues which concern the municipal authorities other than the Planning Board's questions as to the sufficiency of the title of the plaintiffs to the locus and their right to use Sheridan Road fall within different areas of the law than that now before the Court. The only overlapping perhaps is as to the applicability of the subdivision control law, and under the provisions of G.L. c. 41, §81FF that relationship is not a problem. I find, on the grounds hereinafter set forth at length, that the plaintiffs have title sufficient for registration to the land shown on the file plan, and that they have an appurtenant right of way over the remainder of Sheridan Road. However, the plaintiffs mistakenly claimed title to a small rectangle, still properly part of Sheridan Road, approximately 35.02 feet by 15.04 feet which is bounded northerly by the middle line of Sheridan Road, easterly by the easterly end of Sheridan Road as shown on the registration plan, southerly by the locus and westerly by the land of the defendant Robert C. Dyer extended to the southerly line of the subdivision lots owned by the plaintiffs on the southerly side of Sheridan Road.

A trial was held at the Land Court on June 4, 6, 7 and 10, 1991 and a view was taken by the Court in the presence of counsel on June 10, 1991. At the trial the witnesses for the plaintiffs included John J. McGrath, Elizabeth McGrath, Kenneth A. Tocci, the Land Court examiner, John J. McGrath, Jr., James McGrath, Daniel McGrath, David Crispin, a registered land surveyor with the firm of Boston Survey Consultants, Wayne DelPico, a friend of one of the younger McGraths and Thomas McGrath. The defendants called as witnesses Robert E. Dyer, Robert E. Dyer, Jr., Richard M. Parsons, a former chairman of the Braintree Planning Board, William L. Ewing, Paul Carlino, the former husband of the defendant Janet Carlino, Janet Carlino, Joan Giglio, Charles Paul Graziano and Katherine Graham. The latter three parties are abutters who own properties on Butler Road, a road shown in the same subdivision as Sheridan Road but which has heretofore been developed.

On all the evidence I find and rule as follows:

1. The plaintiffs obtained title to the locus through two deeds from the Town of Braintree acting through its Board of Selectmen, one dated October 22, 1962 recorded in Book 4033, Page 605 (Exhibit No. 2, Sheet 11) and the other dated October 24, 1950 and recorded in Book 2964, Page 429 (Exhibit No. 2, Sheet 15).

2. The 1962 deed conveyed to the McGraths Lot 63 to 66 on the 1896 subdivision plan referred to above and the second deed conveyed to them Lots 58 to 62 and 87 to 96 also shown on the original subdivision plan.

3. The Town of Braintree had acquired title to the premises by so-called low value tax takings, the administrative method of foreclosing the taxpayer's right of redemption to lands without sufficient value to warrant Land court proceedings.

4. The deeds were silent as to the appurtenant right to use Sheridan Road as shown on the subdivision plan, and they similarly did not expressly include the fee in the road.

5. The subdivision plan shows remarkable sophistication for an 1896 plan drawn it appears without a field survey for the end of each of the subdivision roads, that is, Sherman Road, Butler Road, Sheridan Road and Logan Road show a small area at their westerly ends excluded from the street which effectively curtails any implication rights by the owners of abutting land to use the subdivision roads and at the same time negates any rights in the owners of the lots shown on the plan to cross into the abutting properties. The small rectangular parcel at the end of Sheridan Road which abuts Lots 58 and 96 on the plan has been acquired by the Town of Braintree, but the Town claims no rights in that portion of Sheridan Road which lies westerly of its land shown on the file plan.

6. Mr. and Mrs. McGrath's residence is on Butler Road, and title to it is registered. Butler Road was a part of the 1896 subdivision and the McGrath property there adjoins the locus. The McGraths moved to Butler Road in 1948 and have lived there in the ensuing period of time. At some point Mr. McGrath became disabled, and the financial burdens which this occasioned as well as the necessity of providing for his family of ten children negated any ability on the plaintiff's part to develop the land acquired from the Town of Braintree in 1950 and 1962. The children are grown now, and among their occupations one is a certified public accountant and another an electrician. The financial constraints which prohibited the construction of two additional homes for members of the family are gone.

7. Since their acquisition of the lots on Sheridan Road the McGraths over the years have constructed two small barns and corrals attached thereto for stabling of the horses and ponies owned by the children. The enclosures intruded on Sheridan Road. The McGraths also had a garden on a portion of the locus and the children played among themselves and with contemporaries over their childhood years. The total number of horses owned by the family during this time frame was 6 together with a pony. At one time as a Town of Braintree license evinced the family had two horses, but generally there was one son with a single horse. Sheridan Road was used to walk the family dog, to ride the horse or pony, to provide access to school and as a haven for riding homemade minibikes and the like.

8. The property adjoining the end of the 1896 subdivision became a large farm known as the Graziano farm. The farm no longer exists, and that portion thereof adjacent to the locus has been developed for homes. The land across from the residential development is said to belong to Braintree Hospital. There is a steep drop in grade between the westerly boundary of locus and the adjacent residential community and the line is marked by a stone wall with large granite boulders. It would be impossible now to pass from Wayne Avenue, a public way off Sheridan Road, over Sheridan Road to the site of the old Graziano farm. Sheridan Road was used occasionally by parties seeking to obtain manure from the McGraths, either chicken or horse, but the use by these parties was as invitees of the McGrath family.

9. Over the years the owners of the properties abutting Sheridan Road at its terminus with Wayne Avenue, that is, Robert C. Dyer and Janet Carlino have made some use of Sheridan Road. The Carlino land was registered in Case No. 33299 and the decree bounds the land by Sheridan Road and makes the title "subject to the rights of all those lawfully entitled thereto, in and over the same." The decree also grants an appurtenant right to use Sheridan Road as shown on the decree plan which continues the road westerly of the Carlino lot by an indefinite line.

10. The language in the Land Court decree, while not expressly limiting the right to use Sheridan Road to that part of the road abutting the Carlino land and leading to Wayne Avenue, was so intended. There was no reason for the appurtenant right to continue westerly of the Carlino land since Sheridan Road was a dead-end street.

11. The Town of Braintree owns land abutting the Carlino premises and has the right to use Sheridan Road from the westerly line of its premises to and from Wayne Avenue. Similarly, Robert C. Dyer owns the land on the northerly side of Sheridan Road and has the right to use Sheridan Road from his westerly line easterly to and from Wayne Avenue. This includes the rectangular piece of Sheridan Road included within the locus on the file plan but which is to be shown as part of Sheridan Road on the decree plan. [Note 2]

12. Paul Carlino erected a chain link fence which encroaches on Sheridan Road as shown on the file plan. Various witnesses placed the erection of the fence anywhere from 1966 to the early 1970's. Irregardless of the fence Mrs.Carlino holds title to one­half the fee in Sheridan Road to its center line subject to the rights ot others to use it. The dispute at the trial centered on the loss of such right by the plaintiffs due to Mrs. Carlino's adverse possession, the erection of a fence. The complaint to register title was filed with the Land Court on September 28, 1987 and the filing thereof stopped the running of the adverse possession clock. Thus the contest at the trial over the date on which the chain link fence was erected is important only if the fence predated September 28, 1967. I find that it did not, and thus Mrs. Carlino does not have title to the small triangular wedge of Sheridan Road by virtue of adverse possession free of rights therein since there has not been a twenty year period of occupation. However, even more importantly, I find and rule that the fence was placed incorrectly and not with an intention to acquire title even if rights therein now could be barred. The Land Court decree registered the Carlino title to the center line of Sheridan Road as it abuts what is now Mrs. Carlino's home but subject to the rights of others to use Sheridan Road. It is very doubtful whether once such subject rights had been registered they can be cut off by prescription, but that need not be decided here.

13. A plan entitled "Plan of Land in Braintree, Mass. Site Features showed in Road Area" dated March 20, 1991 by Harold A. Donahoe, Jr. (Exhibit No. 57) shows some of the physical features in Sheridan Road. At the view taken by the Court I did not see any area which properly could be denominated "parking area" as it appears on the Donahoe plan. There are trees within Sheridan Road, some there naturally and some planted by Mr. Dyer since the McGrath plans became known, and boulders had been placed within the layout of Sheridan Road as well. There are no obstacles to the use of Sheridan Road, however, which cannot easily be removed by a bulldozer. Moreover, those that were placed there by man are not done in such a way as to bar the use of the road, that is, as a fence parallel to Wayne Avenue, but they were placed instead perpendicular to the street running along the way's length. It is unclear how long a period has elapsed since the Dyer trees were planted, but it is less than twenty years. Some previous ventures into horticulture by Mr. Dyer were sold to those in the neighborhood and did not remain in place for at least twenty years. Finally, the Dyer beehive, raspberries, vegetable garden and the like are all without Sheridan Road.

14. There was testimony by the neighbors that they had used Sheridan Road to gain access to land to the west for hunting and for walking in the woods, but whatever use may have been made in the past has now terminated by the construction of the residential development to the west and the acquisition of all the abutting interests by the McGraths. It is worthy of note that at some time trespassers used to proceed from the direction of Butler Road in the southerly direction across what is now the McGrath property, Sheridan Road and the Graham parcel, title to which has also been registered in this Court, but so far as appears no one tried to claim rights in the Graham land when the Graham development commenced.

There has been no use by others of the portion of Sheridan Road within the locus for more than twenty years openly, uninterruptedly and adversely to the McGraths under a claim of right. Similarly, there have been no actions which bar the use by adverse possession of the McGraths' appurtenant right to use Sheridan Road for all purposes to and from Wayne Avenue nor have the McGraths abandoned this right.

The law is well settled that the conveyance of a lot by reference to a recorded plan includes the right to use the ways on which such lot abuts, as well as conveying the fee to the center line of the way. Rahilly v. Addison, 350 Mass. 660 , 662 (1966); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965). At one time such a right would have been limited to a right to pass and repass but since the adoption of Chapter 187, section 5 a right of way is viewed as co-extensive with the right to use for all purposes (see also Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 (1980)). The title of the plaintiffs to the land acquired by them from the Town of Braintree has not been attacked in this proceeding. The defendants only have questioned ownership of the fee in Sheridan Road free from the rights of others therein, but I find and rule that the other owners of lots abutting on Sheridan Road and indeed within the development had only the right to go from their lots to Wayne Avenue, there being no reason for them to proceed in the opposite direction, the street being a dead-end way. The abutters hotly contested the right of the McGraths to use Sheridan Road although many of the neighbors own lots fronting on other subdivision streets which remain private ways and which they must use to reach Wayne Avenue.

An appurtenant easement of record is not lost by mere nonuser but only by clear affirmative evidence of abandonment or the elimination of rights therein by adverse possession. There was no such evidence here, and no physical steps were taken by the defendants to actually bar the use of Wayne Avenue. The neighbors had earlier objected to the construction of two additional homes in the neighborhood on the grounds of wetland and flooding. The idea that the right to use Sheridan Road might have been lost by adverse possession appears to have been furnished by a lawyer who is also a funeral director in Braintree. However the idea may have occurred, I question that there has been any longstanding attempt to bar the use of Sheridan Road and find and rule that this is a more recent claim not made in good faith.

On all the evidence therefore I find and rule that the plaintiffs or their successors in title as evidenced by the title rundown to be furnished by the Land Court examiner have sufficient title for registration to the land shown on the file plan except the small rectangular piece thereof within Sheridan Road as described above together with the right to use Sherdan Road for all purposes for which streets or ways commonly are used in said Braintree between the locus and Wayne Avenue and free from the rights of others within that part of former Sheridan Road encompassed by the locus. Any matters revealed by the abstract and not in issue here will be dealt with by the Court.

Judgment accordingly.