PATSY C. MOSCHETTO, JOHN R. MOSCHETTO and THOMAS MOSCHETTO vs. COMMONWEALTH OF MASSACHUSETTS, MARY F. SHELDON and EVERETT D. SHELDON.

Plaintiffs seek to have title to a 9.3 acre parcel in the Town of Methuen ("Locus") confirmed. Abutting property owners, Mary F. and Everett D. Sheldon (the "Sheldons"), claim rights in two private ways running through Locus and two drainage rights. I find in favor of Plaintiffs.

Land Court Examiner, Wayne L. Belair, Esq., in his Abstract (the "Abstract"), reported that Plaintiffs have good title, proper for registration.

A trial was held on August 22, 1991. The Sheldons appeared pro se. Ten Exhibits were introduced into evidence and all of them are incorporated in this Decision for purposes of any appeal. Exhibit 1 is the Abstract. Part of the proceedings were taped, but no transcription of the tape has been made. I viewed Locus and its immediate surroundings on March 4, 1992.

Both Defendants and Edward Sheldon, a son of Defendants, testified.

I find and rule as follows:

1. As shown by the petition plan (the "Confirmation Plan"), Locus is six sided, including 460 foot frontage on the southerly side of Armstrong Avenue, a way shown as being public along at least Locus' frontage. From the northwesterly corner, it extends southeasterly 500 feet along Meriline Avenue, a private way. From the northeasterly corner, it extends southeasterly from Armstrong Avenue approximately 181 feet, and then runs northeasterly approximately 355 feet along Burrill Avenue, a private way. From Burrill Avenue, it runs southeasterly approximately 445 feet along Wingate Avenue, a private way. Its southeasterly bound runs approximately 885 feet along Riverview Boulevard, a private way running along the Merrimack River according to the Confirmation Plan, but not existing in fact. Locus and the property owned by the Sheldons (the "Sheldon Property") are shown on the attached sketch.

2. Pine Grove and Burrill Avenues, both private ways, run through Locus according to the Confirmation Plan, parallel to each other, in an east-west direction from Wingate Avenue to Meriline Avenue . All these ways are shown on the sketch. Plaintiffs seek to have any rights of passage over Pine Grove and Burrill Avenues eliminated. Their status on the ground is discussed below.

3. Part of Locus derives from a plan entitled "Bradley Golf Club Terrace No 2. Methuen Mass Owned by J. W. Wilbur" dated January 15, 1908 (Exhibit 7, the "1908 Plan") recorded at Essex North District Registry of Deeds (to which all recording references in this Decision apply) at Plan Book 1. The balance of Locus derives from a plan entitled "Bradley Terrace Methuen, Essex County, Mass. owned by J. W. Wilbur Co, Inc. Formerly Owned by Bradley" dated August 2, 1924 (Exhibit 6, the "1924 Plan") recorded at Plan Book 563. The division line separating the areas shown on the two plans is referred to hereinafter as the "Plan Line" and is shown on the sketch.

4. The 1908 Plan was recorded May 5, 1908. The area shown on it (i.e., the area bounded by Bradley Avenue and Riverview Boulevard, the Plan Line and the irregular line north of Armstrong Avenue) is divided into many small lots, numbered 346 to 642. The area just to the west of Bradley Avenue is labelled "Bradley Golf Club Terrace No. 1", indicating yet another subdivision. Just over the Plan Line to the east the 1908 Plan merely states "Bradley".

5. The 1924 Plan shows an area bounded on the west by the Plan Line, on the south by Riverview Avenue (sic), on the east by Wingate Avenue, and on the north by the northerly line of a series of lots which abut Armstrong Avenue to the north. Just to the west of the Plan Line, the 1924 Plan states "Bradley Golf Club Terrace No 2." Armstrong, Burrill and Pine Grove Avenues are shown on the 1924 Plan as leading over the Plan line onto Bradley Golf Club Terrace No. 2 for about 50', to the margin of the 1924 Plan.

6. Plaintiffs seek in particular to have title confirmed free of any rights of passage or drainage which were retained in a deed dated July 23, 1936, from J.W. Wilbur Co., Inc., to Rosario and Nellie Spina (Sheets 57 and 57A of Exhibit 1, the "Wilbur/Spina Deed"), in Plaintiffs' chain of title, recorded at Book 599, Page 586. The Wilbur/Spina deed conveyed Lots 22 through 49 as shown on the 1924 Plan, being the part of Locus shown on the 1924 Plan.

7. Rights specifically reserved in the Wilbur/Spina Deed are as follows (references to numbered lots are to the lots as shown on the 1924 Plan).

Lots 43 to 49: The right is reserved to use a strip of land ten feet wide across the rear of these lots for the purpose of a way.

Lots 34 and 35: The right is reserved to maintain a drainage ditch across the rear of these lots.

Lot 24: The right is reserved to maintain a drainage ditch from the southerly corner of the lot to a point on the northeasterly line thereof, which point is about 25 feet from the rear line of the lot; and from that point to Burrill Avenue.

8. The Sheldons claim the right to use Burrill Avenue from Wingate Avenue to Meriline Avenue and the right to use Pine Grove Avenue, the "right of way", "gravel path" and "drain easement" included within Locus. I take the quoted references to refer to the areas so labelled on the Confirmation Plan.

9. At trial all parties stipulated that title to Locus is in Plaintiffs and that the only contested issues are the rights of the Sheldons to use Burrill and Pine Grove Avenues and their right to the drainage easement shown on the Confirmation Plan. The parties also stipulated that none of the easements listed in the Certificate of Opinion in the Abstract (Exhibit 1) are relevant except for Sheet 57-57A (the Wilbur/Spina Deed).

10. The Sheldons point to two 1933 deeds (the "Wilbur/DeCaro Deeds") alleged to be in their chain of title, from J.W. Wilbur Co., Inc., one Exhibit 3, recorded at Book 572, Page 301, and the other, Exhibit 4, recorded at Book 571, Page 538, both running to Rosario and Remica DeCaro. Together those deeds conveyed the Sheldon Property, being 14 lots numbered 8 through 21 on the 1924 Plan. The Sheldons claim more currently under a deed from the DeCaros (Exhibit 9) to Deborah A. Sheldon, at Book 1434, Page 327, and finally a deed from her to the Sheldons (Exhibit 10) at Book 2681, Page 105.

11. The Sheldons contend they have record rights, first by virtue of the Wilbur/Spina Deed in Plaintiffs' chain of title. The three specific rights referred to in paragraph 7 above relate only to lots within the area conveyed by the Wilbur/Spina Deed and not any area outside of it. The right of way referred to runs parallel to Pine Grove Avenue midway between it and Riverview Avenue, far removed from the Sheldon Property, and the Sheldons offer no suggestion why their land should benefit from those rights or evidence that they do as a matter of law. They offer no evidence of acquisition of any of those rights by prescription. I rule that they do not benefit from any right of way easement under the Wilbur/Spina Deeds.

12. As to the two drainage rights, there is a 10' drainage easement shown on the 1924 Plan at the westerly edge of Lots 22 and 35, running between Burrill and Pine Grove Avenues, shown by a dotted line on the sketch. This leads me to suspect that the reference in the Wilbur/Spina Deed to Lots 34 and 35 is a mistake, and should be to Lots 22 and 35. The other drainage ditch in the Wilbur/Spina Deed leads across Lot 24, which fronts on the southerly side of Burrill Avenue; it does not show on the 1924 Plan. The Sheldon Property was deeded out (the Wilbur/DeCaro Deeds, 1933) before Locus (1936) and there is no grant of any drainage rights in the Wilbur/DeCaro Deeds. There is no evidence of any drains or drainage ditches installed on the ground. It may as well be that the two drainage rights were meant to drain from south to north as vice-versa. I rule that the Sheldon Property does not benefit from any drainage rights, under the Wilbur/Spina Deeds or otherwise.

13. However, the Wilbur/Spina Deed also includes the following in the conveyance:

Together with the fee insofar as the said party of the first part has the right so to convey the same, of all the streets and ways shown on said plan, in common with the owners of the other lots shown on said plan and subject to the right of all the said lot owners to make any customary use of said streets and ways. (emphasis added)

14. The identical language (except referring to "the said corporation" instead of "the said party of the first part") appears in both the Wilbur/DeCaro Deeds (the Sheldon Property). Does this language in these various deeds afford Defendants the rights they claim?

15. Locus and its neighboring properties are reached from Merrimack Street (Route 110) by way of Meriline Avenue. That is a hot-topped road with houses on either side. As it approaches Locus, the houses cease but Meriline Avenue continues to the edge of the Merrimack River. Locus lies to the east of Meriline Avenue as it approaches the River. Most of Locus has been stripped of vegetation, graded and prepared for construction since the date of the Confirmation Plan. Two structures and fences shown on the Confirmation Plan have been removed. Just as Meriline Avenue approaches Locus, Armstrong Avenue branches off to the left. Armstrong Avenue is now paved until it reaches the Sheldon Property.

16. If Pine Grove Avenue existed on the ground, nothing remains of it after the recent site preparation work. Burrill Avenue is an unpaved track leading westerly off Wingate Avenue along the southeasterly side of the Sheldon Property. As it reaches the southeasterly boundary of the Sheldon Property, Burrill Avenue, as a paper street, continues across Locus to Meriline Avenue. On the ground, as it passes through Locus, some of Burrill Avenue remains, showing itself as a track with two ruts. Vegetation partially obscuring Burrill Avenue, as shown in the photographs (Exhibits 5A through 5E), has been removed by the site preparation work. Wingate Avenue is a somewhat larger way, unpaved.

17. There is a cellar hole in the northwest corner of the Sheldon Property, just off Armstrong Avenue. That was a residence owned by Mrs. Sheldon's parents, which burned about ten years ago. That residence was reached from Meriline Avenue by way of Armstrong Avenue and had an Armstrong Avenue address. Armstrong Avenue is the natural access to Meriline Avenue from the Sheldon Property. The Sheldon Property has been otherwise vacant.

18. I will assume the Sheldons have title to the Sheldon Property, although they have not made a full case for that.

19. The Abstract (Exhibit 1) and other evidence show that the area shown on the 1908 Plan, the area to the west of the Plan Line, was plotted and sold off several decades earlier than the area shown on the 1924 Plan. The earlier area was called "Bradley Golf Club Terrace No. 2)" (No. 1 being still further to the west). The Abstract does not include all the deeds out from the J.W. Wilbur Co., Inc. but by 1920 much of Bradley Golf Club Terrace No. 2 had been conveyed out, with the balance having been conveyed by 1924 and 1932 at the latest. Further title work would probably show that Wilbur had conveyed out all the parcels by 1920, but the point is moot.

20. What is important is that by the time Wilbur came to convey to the Sheldons' predecessors in 1933 (the Wilbur/DeCaro Deeds), Wilbur no longer held title to the area west of the Plan Line. Nowhere in the Abstract is there any indication of a retention by Wilbur of any right to grant rights benefitting property off the 1908 Plan. Therefore no one claiming under the 1924 Plan has rights over the streets shown on the 1908 Plan.

21. This situation has had the benefit of judicial scrutiny before. Darman v. Dunderdale, 362 Mass. 633 (1972) is the advocate's dream, a case squarely on point, indeed one of eerie similarity. There we have property in Weymouth, but the same developer, Wilbur, an overall area developed in phases, with companion plans, and deeds containing exactly the same language as quoted above at paragraph 13. The case also involved a registration petition with an abutter claiming rights of way. The Supreme Judicial Court held for the petitioner, finding, among other things, that the rights of the abutter were limited to areas shown on the later plan.

22. The Sheldons, therefore, have no rights in either of Burrill or Pine Grove Avenues west of the Plan Line, unless they obtained them by prescription. The Sheldons and their son testified as to use of Burrill Avenue (but not Pine Grove). What appeared from their testimony is occasional use of Burrill Avenue, apparently in order to reach Meriline Avenue and then turn left to reach the river. Usual access to the Sheldon Property was by way of Armstrong Avenue and thence north on Meriline Avenue, which is not an issue here. The Sheldons did not meet their burden of showing frequency of use sufficient to establish rights over Burrill Avenue (or Pine Grove Avenue) by prescription.

23. Petitioner does not contest the Sheldons' right to use Burrill Avenue east of the Plan Line (i.e., the portion of Burrill Avenue not included in Locus). But what about the portion of Pine Grove Avenue east of the Plan Line, the portion of Pine Grove Avenue shown on the 1924 Plan? Do the various deeds give the owners of the Sheldon Property the right to proceed southerly down Wingate Avenue to Pine Grove Avenue and then take a right turn onto Pine Grove only to dead-end where Pine Grove Avenue meets the Plan Line? I find and rule that they do not. The manifest intent of the language in the deeds, when viewed in the context of just the 1924 Plan, is to provide access for the lots on the 1924 Plan over the sheets necessary to reach a public way, that is Merrimack Street, by way of Wingate Avenue (it isn't clear when Armstrong became public) and perhaps rights to reach the river, again by way of Wingate Avenue. See Wellwood v. Harrah Mishna Anshi Cemetery Corp., 254 Mass. 350 (1926), Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 (1971). I am not forced by the deed provisions to reach the implausible result of finding record rights in the easterly portion of Pine Grove Avenue, and I do not.

24. The Sheldons do not have any rights in Locus, except such rights as they may have in the streets bordering Locus.

25. The Commonwealth filed an Answer raising various defenses. At trial the Commonwealth's attorney stipulated that the Commonwealth's only concern was to be sure that no persons having rights in Burrill or Pine Grove Avenues lost those rights in such a manner that they could enforce a claim against the Assurance Fund under §§ 99-101 of Chapter 185. I find and rule, first, that there are no such persons and, second, that as this is a confirmation (as opposed to a registration) proceeding, the Assurance Fund is not at issue. I therefore rule against the Commonwealth on the various points raised by it.

26. A decree may be entered confirming the title of Plaintiffs to Locus, subject to such matters as may appear in the Abstract and are not in issue here.

Judgment accordingly.

exhibit 1