MICHAEL WILD and REBECCA WILD BAXTER, as Trustees of Wild Realty Trust vs. VINCENT CONSTANTINI, as Successor Trustee of the Herring Creek Farm Trust.

1. Plaintiffs, Trustees of Wild Realty Trust, seek an order directing the amendment of Certificate of Title No. 3758 (which reflects Plaintiffs' ownership of land off Slough Cove Road in Edgartown (the "Wild Property")), to reflect that the Wild Property has the benefit of an appurtenant right of way across the entire length of Defendant's adjoining property ("Herring Creek Farm") which lies between the Wild Property and Slough Cove Road. Additionally, Plaintiffs seek a correlative order directing the amendment of Certificates of Title No. 5746 and 5859 (which reflect Defendant's ownership of Herring Creek Farm), to reflect that Herring Creek Farm is encumbered by Plaintiffs' right of way.

2. Plaintiffs filed a petition to amend the certificates in May 1989, pursuant to G. L. c. 185, §114. Defendant moved to dismiss the petition. No action was taken on that motion. Plaintiffs moved for summary judgment pursuant to Mass. Rules Civ. Proc. 56. The motion was argued by counsel on December 17, 1991. Three Affidavits were filed, one by Gregory Bialecki, Esq. (one of Plaintiffs' attorneys), one by Rebecca Wild Baxter (one of the Trustees of Plaintiff) (both for Plaintiffs); and one by Richard M. Golder, Esq., a Land Court Examiner, for Defendants.

3. Plaintiffs, Michael Wild and Rebecca Wild Baxter, as Trustees of Wild Realty Trust, are owners of the Wild Property. The Wild Property includes Lots A5 and B2 as shown on Land Court Plan 13419D. The Wild Property does not abut any public way.

4. Defendant, Vincent Constantini, as successor Trustee of the Herring Creek Farm Trust, is the current owner of Herring Creek Farm, as evidenced by Certificate of Title No. 5746.

5. Ronald and Dorothy Wild, predecessors in title to the Wild Property, at one time owned contiguous land extending from the Wild Property to Slough Cove Road, a public way in Edgartown. By two deeds (the "Wild Deeds") dated June 20, 1947 to B. Harrison Cohan and Hildegarde N. Cohan (the "Cohans"), Dorothy and Ronald Wild conveyed title to their land lying between the Wild Property and Slough Cove Road. The first deed conveyed registered land shown as Lot B1 on Land Court Plan No. 13419D (the "First Herring Creek Farm Parcel") and the second conveyed the unregistered land later to become Lot 1 on Land Court Plan No. 34423A (the "Second Herring Creek Farm Parcel"). In each deed, Dorothy and Ronald Wild reserved "to the grantors a right of way, over the ways as now travelled to their remaining land, to be used in common by the grantors and others now or hereafter entitled thereto." These reserved rights are noted on Certificates of Title No. 1352 and 2402, issued to the Cohans in connection with the First Herring Creek Farm Parcel.

6. On March 26, 1966, the Cohans filed a petition with this Court, Case No. 34423, to have title to the Second Herring Creek Farm Parcel registered, in which the Cohans acknowledged that the Second Herring Creek Farm Parcel was:

Subject to rights of way for all purposes, as shown on said plan, said rights of way being more particularly described as follows: Right of way, 15 feet wide, shown on said plan as lying approximately along the Northerly boundaries of the above described premises, and running from Slough Cove Road to lands of . . . Ronald Wild et ux. . .

The published notice for the proceeding, as well as notices mailed to interested parties, contained that language.

7. I have attached a copy of a plan prepared by counsel for Plaintiffs. This shows the properties involved. The 15 foot wide right of way just referred to (the "Right of Way") is comprised of the four parts labelled "Segment 1", "Segment 2", "Segment 3" and "Segment 4", respectively. The rights appurtenant to the Wild Property within the Right of Way are referred to hereinafter as the "Wild Right of Way".

8. On or about February 5, 1970, Monte J. Wallace and Neil W. Wallace (the "Wallaces"), as trustees of an unnamed Trust dated November 4, 1969, acquired title to the First Herring Creek Farm Parcel (except for portions thereof not relevant to these proceedings) and to the Second Herring Creek Farm Parcel. The Wallaces shortly thereafter conveyed, for nominal consideration, title to the Herring Creek Farm Parcels to themselves as trustees of Jenkins Point Trust (later re-named Herring Creek Farm Trust). The Wallaces became substituted petitioners in Case No. 34423. The Wallaces did not attempt to amend that portion of the registration petition which acknowledged the Wild Right of Way. The Wallaces filed in the case an affidavit of the Cohans which among other things acknowledged that the Second Herring Creek Farm Parcel was subject to "rights of way attributable to parcel A5 and B2, Land Court 13419C shown on the Plan". Those parcels are the Wild Property.

9. The Cohans and Wallaces, as petitioners and substituted petitioners in Case No. 34423, did not request, nor did the then owners of the Wild Property consent to, any modification or termination of the Wild Right of Way. The decree in Case No. 34423 states:

The land hereby registered is subject to rights of way appurtenant to adjoining land as set forth in the decree in Registration Cases No. 13419 and No. 30952, so far as now in force and applicable.

The parties agree that Registration Case No. 30952 is not relevant to these proceedings.

10. There are no rights of way literally established by or incorporated in the original decree in Registration Case No. 13419 which burden the land at issue in Registration Case No. 34423.

11. The parties through their counsel have stipulated that there is no genuine issue as to any material fact in these proceedings and that the Wild Right of Way does exist over Segment 1 of the Right of Way. Counsel have also agreed on the authenticity of Exhibits A through P to Mr. Bialecki's Affidavit; those exhibits are primarily copies of various registered documents and plans.

12. The Cohans conveyed the First Herring Creek Farm Parcel as two separate lots, one of which now appears on Certificate of Title No. 5746 (Lot 42 on Land Court Plan 13419-2) and one on Certificate of Title No. 5859 (Lot 27 on Land Court Plan 13419X). Segment 1 of the Wild Right of Way lies within the southwesterly portion of Lot 42. Certificate of Title No. 5746 expressly notes that Lot 42 is subject to "rights of way, easements and restrictions contained in a deed from Marshall Nelson Cohan, et al, Executors under the Will of Hildegarde N. Cohan, being Document No. 14943." (thus including Segment 1). As stated above, the Wild Right of Way has been stipulated as to Segment 1.

13. Segment 3 of the Right of Way lies between Lot 27 and Lot 42. The respective descriptions of these lots describe them as being bounded (northwesterly and southeasterly, respectively) by a fifteen foot wide way. The respective Land Court Plans also show this way. In contrast to the Certificate for Lot 42, there is no reference to the Wild Right of Way in Certificate of Title No. 5859, relating to Lot 27.

14. On these facts I rule that Lot 27 is subject to Segment 3 of the Wild Right of Way. The problem here is that reference to the Wild Right of Way, noted on the Cohan's Certificates of Title, was not carried forward to the Certificate for Lot 27, No. 5859. However, looking at Certificate 5746, issued earlier, for Lot 42 and at document 14943, referred to therein, one finds that the Wild Right of Way is expressly referred to and examination of Land Court Plan 13419-2 with respect to Segment 1 shows Segment 1 leading to Segment 2, which in turn leads to Segment 3. Even before examining the Plan for Lot 27 then, a common owner of Lots 42 and 27 is made aware of three of the four components of the Wild Right of Way. Examination of Plan 13419X for Lot 27 reveals Segment 3. Persons holding under Certificate of Title No. 5859 are put on notice of a right of way and charged with looking further. Myers v. Salin, 13 Mass. App. Ct. 127 , 137 (1982). No more investigation than the Cohan's Certificate of Title is needed to reveal all.

15. Segments 2 and 4 involve different facts. The Second Herring Creek Farm Parcel was unregistered land, encumbered by the Wild Right of Way. The then owners, the Cohans, petitioned to register the Second Herring Creek Farm Parcel, expressly recognizing the Wild Right of Way. Defendant (by Mr. Constantini's predecessor Trustees) acquired title and took over the registration case, without objection as to the Wild Right of Way, indeed expressly recognizing it in the Affidavit referred to at paragraph 8 above. The decree in the registration case said that the Second Herring Creek Farm Parcel was "subject to rights of way appurtenant to adjoining land as set forth in the decree in Registration Case...13419...so far as now in force and applicable." Segments 2 and 4 are shown on the Decree Plan in the registration of the Second Herring Creek Farm Parcel (Plan 34423 A, sheets 2 and 3). None of this is contested.

16. The Decree in Registration Case 13419 is the registration on March 12, 1931 of three adjoining parcels of land, Lots A, B and C on Land Court Plan 13419A. Of the three lots, Lot C is to the north of Lot B and Lot A to the west of Lot B. Lot B itself contains the First Herring Creek Farm Parcel -- Lot B has been subdivided and its Lot B-1 is the First Herring Creek Farm Parcel, as can be seen on the attached plan. As stated, there is nothing in the decree in Case 13419 about the Wild Right of Way, nor is there any right of way shown leading away from Lot B on the decree plan (none of that is surprising, since the Wild Right of Way was not created until 1947).

17. I conclude that the Second Herring Creek Farm Parcel is subject to the Wild Right of Way. The language in the decree in Case 34423, quoted at paragraphs 9 and 15 above, must mean something. Defendant would have it read as follows: "The Second Herring Creek Farm Parcel is subject to rights of way appurtenant to adjoining land as set forth in the decree in Registration Case 13419 if there happen to be any rights spelled out there and if there aren't, it isn't subject to any rights of way." This is an unlikely reading. The important point is that Defendant is told that his land is subject to appurtenant rights of way benefitting adjoining land and he is pointed to a place to find those - Case 13419 - even if it takes a little digging; this combined with the fact that his own Decree Plan shows significant portions of the Wild Right of Way (the others, Segments 1 and 3, being shown on his other Certificate of Title).

18. Defendant should not be allowed to seize on ambiguity in his Certificate of Title to destroy theretofore valid and acknowledged rights. Defendant knew of the Wild Right of Way and acknowledged it in Defendant's registration filings. Defendant made no move to extinguish it. Defendant is not a bona fide purchaser (even assuming such a purchaser would survive the requirements of inquiry notice which would be triggered by the recitation in the decree and the existence of way on his Land Court Plans). To adopt Defendant's position would be to allow the Wild Right of Way to be extinguished without notice to its holders.

19. Further, this matter fits within the logic of Feldman v. Souza, 27 Mass. App. Ct. 1142 (1989) and the cases cited there. It appears from the uncontested Affidavit of Rebecca Wild Baxter that from the summer of 1969 through the summer of 1970 she lived at her home on Plaintiffs' property and used the Wild Right of Way "on a regular, if not daily basis". I find that the owners of the Herring Creek Farm Parcels had actual knowledge of the Wild Right of Way. That knowledge is also established by their submission of the Cohan Affidavit, referred to above.

20. Defendant points to the following from G. L. c. 185, §114: "but this section shall not authorize the court to open the original judgment of registration, . . .", citing Hill v. Taylor, 319 Mass. 5 (1944) for the same proposition. Feldman was a petition to modify under §114, as here, but the relief was granted. Admittedly, in Feldman, the court was dealing with a purchaser of registered land and could therefore point to the first paragraph of G. L. c. 185, §46 and its reference to purchasers for value and in good faith. I do not, however, understand the law to be that a different standard applies to a petitioner for registration with knowledge. I conclude that granting the relief requested by Plaintiffs will not constitute an opening of the original judgment, since it already includes reference, if indirect, to the Wild Right of Way. The relief requested is an elaboration only.

21. Plaintiffs' and Defendant's Certificates of Title are to be amended to reflect the Wild Right of Way burdening the Defendant's property and benefitting Plaintiffs'.

Judgment accordingly.

exhibit 1