JOSEPH D. COLLINS v. MASSACHUSETTS DEPARTMENT OF CONSERVATION AND RECREATION

Introduction

In 1831 the Legislature established an entity known as the Boston and Worcester Railroad Corporation (Railroad / BWRR) and authorized it to construct a railroad from Boston to Worcester. See Boston Water Power Co. v. Boston and Worcester R.R. Corp., 40 Mass. 360 , 364 (1839) (“[B]y their act of incorporation, the rail road corporation were authorized and empowered to locate, construct, and finally complete a rail road in or near the city of Boston, and thence to any part of the town of Worcester, in such manner and form as they should deem to be most expedient . . . .”).

The BWRR was the third railroad chartered in New England, incorporated after the Boston & Lowell Railroad and the Boston & Providence Railroad. See R.D. Karr, The Rail Lines of Southern New England, 278 (1995). Construction of the BWRR began in Boston during the summer of 1832 and the railroad was operational by 1835. Id. at 279.

The BWRR ran west from Boston through the Back Bay, Brookline, Allston, Brighton, Newton, Wellesley, Natick, Framingham, and Westboro to Worcester. Id. at 277. By the 1850’s, the Railroad had six secondary branch lines that provided service to towns located off the mainline. Id. at 283. One of these secondary branches was the Newton Lower Falls Branch which connected the Lower Falls communities of Newton and Wellesley to the BWRR mainline at Riverside Station. See id. at 276-77. The branch consisted of only two stations, one at Pine Grove Street in Newton Lower Falls, and one over the Charles River at Washington Street in Wellesley. Id.

John D. Collins (plaintiff) owns a parcel of land in the City of Newton that directly abuts a portion of the former Newton Lower Falls Branch (right of way). The plaintiff’s lot is known and numbered as 18 Neal Street, is improved by a single-family dwelling, and is bounded on its northwestern side by the right of way for a distance of 141 feet.

The defendant in this action, the Massachusetts Department of Conservation and Recreation (Commonwealth) is an agency of the Commonwealth of Massachusetts. The Commonwealth possesses a deed granting it the Railroad’s property interest in the right of way. The deed was granted in 1982 to the Massachusetts Metropolitan District Commission by the Penn Central Corporation.

The right of way is a single and continuous parcel of land, 3,910 feet in length, and includes a rail-bridge over the Charles River. The deed contains a use restriction that prohibits the Commonwealth from using the parcel of land as a transportation corridor, a utility corridor, or a right of way. In hopes of utilizing the land, the Commonwealth is in the preliminary stages of designing a bicycle and pedestrian pathway that will allow public access from the MBTA Riverside Station in Newton through Newton Lower Falls, over the Charles River, to Washington Street in the town of Wellesley. The plaintiff argues that the Commonwealth may not use the right of way abutting his property for such a purpose.

On August 7, 2009, the plaintiff filed a verified complaint seeking a declaratory judgment under G.L. c. 231A. The plaintiff avers that by deed or by virtue of G.L. c. 183, § 58, the Derelict Fee Statute, he is the owner in fee to the center line of the right of way that abuts his property. Additionally, the plaintiff alleges that the restriction in the Commonwealth’s deed prohibits it from utilizing the right of way as a bicycle and pedestrian pathway.

On October 6, 2009 the Commonwealth moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6). This court denied the motion on May 27, 2010. On June 6, 2010, the Commonwealth filed its answer to the plaintiff’s verified complaint. The plaintiff subsequently filed an Emergency Motion for a Temporary Restraining Order seeking to enjoin the Commonwealth from rehabilitating the railroad bridge that is part of the right of way. That request was heard and denied by the court on July 27, 2010.

On April 13, 2011 the plaintiff filed a motion for summary judgment. The Commonwealth responded on July 14, 2011 with an opposition and cross-motion for summary judgment. Oral arguments on the motions were heard on January 25, 2012 and taken under advisement.

Summary Judgment Standard

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). A fact is genuinely in dispute only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248 (1986). Material facts are those that might affect the outcome of the case under governing law. Id. The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

On the present record, this court concludes that there is no genuine dispute of material fact as to the fee ownership in the right of way. Consequently, that matter is ripe for summary judgment. However, there remain unresolved issues of fact which must be resolved before this court can address the deed restrictions and their enforcement. Therefore, that issue is not now ripe for summary judgment.

For the reasons discussed below, the plaintiffs’ motion for summary judgment will be denied while the defendants’ cross-motion for summary judgment will be allowed in part and denied in part.

Background

The plaintiff owns the property known and numbered as 18 Neal Street in the Newton Lower Falls section of the city of Newton. That property, improved with a single-family residential dwelling, directly abuts the railroad right of way on its northwestern boundary for a distance of approximately 141 linear feet. The plaintiff’s deed, obtained in 2001, describes his northwestern boundary as being “the center of said railroad one hundred and forty-one and 16/100 (141.16) feet.”

The right of way, known as the former Newton Lower Falls Branch, consists of a single and continuous parcel of land, 50 feet wide, 3,910 feet in length, and includes a railroad bridge over the Charles River. The right of way runs from said railroad bridge, through the Newton Lower Falls section of Newton, to Route 128. In 1982, Penn Central granted a deed to the Commonwealth that conveyed all of the railroad’s rights and interest in the right of way. The Commonwealth asserts that the Penn Central deed conveyed the fee interest in the entire right of way. As a consequence, it is in the preliminary stages of converting the right of way into the Riverside Rail Trail (pathway). The pathway will connect a trail from Washington Street in Wellesley to the Newton Lower Falls’ railroad bridge over the Charles River and run north along the right of way to a bridge over Route 128, with a terminus at the Riverside MBTA station.

The common predecessor in title for both the plaintiff and the Commonwealth is Lemuel Crehore (“Crehore”). Crehore owned a large area of land abutting the Charles River in Newton Lower Falls during the early nineteenth century. Each party’s chain of title is derived from Crehore. Each will be discussed in turn.

Commonwealth’s Chain of Title

On October 6, 1846, Crehore and his wife deeded to the BWRR a strip of land about 50 feet wide bounded by their own property on both the north and south, being 1848 feet long, and running from the Charles River in a southeasterly direction to the property lines of Edward Warren and Robert Slack. The deed recites as follows:

Know all men by these presents, that…I Lemuel Crehore of Newton in the County of Middlesex and Commonwealth of Massachusetts in B.W.R.R consideration of three hundred dollars to me paid by the Corporation “Boston and Worcester Rail Road Corporation” the receipt whereof is hereby acknowledged do hereby give grant bargain sell and convey to the said corporation a certain strip of land in said Newton over which said Corporations Newton Branch Rail Road lies bounded as followed: Northwest and Southwest by my own land upon lines parallel to the centre line of said Branch Rail Road and each of them one and a half rods distant therefrom Northeast by Charles River about fifty one feet and Southwest by land of Edward Warren forty seven feet six inches and by land of Robert Slack of Weston about seven feet meaning to convey a strip of land about one hundred and twelve rods long and three rods wide. Reserving to myself passway at grade across said strip and said Branch Rail Road at such point of the same as shall be mutually convenient which said passway shall be constructed and forever maintained by said corporation at their expense for the use and benefit of myself my heirs and assigns for farming purposes. To Have and to Hold the above granted premises with the privileges and appurtenances thereto belonging to the said Corporation and their successors and assigns to their use and behoof forever…I the said Lemuel Crehore for myself and my heirs executors and administrators do covenant with said Corporation their successors and assigns that I am lawfully seized in fee of the aforegranted premises that they are free from all incumbrances that I have good right to sell and convey the same to the said Corporation as aforesaid and… I will and my heirs executors and administrators shall warrant and defend the same to the said Corporation their successors and assigns forever against the lawful claims and demands of all present, it being understood and agreed that said Corporation shall make keep and maintain at all times hereafter a good and sufficient wall or walls fence or fences on the boundary lines between my own lands aforesaid and the premises above granted which fences and walls shall be forever kept and made at the expense of said Corporation their successors and assigns. In witness whereof, I the said Lemuel Crehore with my wife in token of her relinquishment of her right to dower in said premises have… set our hands and seal this, day of, in the year of our Lord one thousand eight hundred and forty six.

The Railroad filed location plans for the Newton Lower Falls Branch in the spring of 1847 and subsequently recorded the Crehore deed on August 3, 1847. In 1867, the Boston and Albany Railroad Company became the successor to the BWRR. See St. 1867, c. 270. Ultimately in 1968, the Penn Central Company obtained the right of way. [Note 1] In 1982 the Penn Central Company conveyed its interest therein to the Metropolitan District Commission (MDC).

The deed grants all Penn Central’s right, title, and interest in a railroad bridge crossing the Charles River from Wellesley to Newton Lower Falls and the right of way extending from said railroad bridge in a northeasterly direction 3,910 feet across Newton Lower Falls to Route 128. The deed also contains a “covenant and restriction that no part of the premises hereinabove described shall be used as, or made a part of, a transportation, communication, electrical or other corridor or right of way.” The plaintiff, the Massachusetts Department of Conservation and Recreation (DCR) is the successor agency to the MDC. As such, DCR has succeeded to the interest of the MDC in the right of way.

Plaintiff’s Chain of Title

The plaintiff’s parcel in Newton Lower Falls abuts the right of way and was once owned by Crehore. After Crehore’s death, his estate was probated and his real property was partitioned in 1873. The Suffolk Probate Court appointed three commissioners and charged them to divide the lands belonging to Crehore’s devisees. The commissioners split up the land into separate lots; their report was subsequently confirmed by the Suffolk Probate Court.

One of the partitioned lots was conveyed to the Crehore Children. [Note 2] This lot included the plaintiff’s present parcel; it directly abutted the railroad tracks on its northwestern side. The lot is described as: “beginning at the point where the centre line of the Newton Branch Railroad meets” its neighbor’s southwestern boundary. All deeds in the plaintiff’s chain of title from this point forward describe the northwestern boundary as being the center line of the right of way.

The Crehore Children conveyed the western half of this lot, which encompasses the plaintiff’s present day parcel, to Lillian Ford and Charles F. Ford. In return, the Fords granted a mortgage on the property to Morton Crehore for the sum of $2,300 on June 14, 1894. On November 2, 1895, Morton Crehore filed a notice of foreclosure against the property. Part of the property, which included the plaintiff’s present day parcel, was conveyed to Jacob Beers by foreclosure deed on November 13, 1895. Jacob Beers conveyed the lot back to Charles Ford on November 13, 1895. Charles Ford subsequently conveyed a portion of his lot that contains the plaintiff’s present day parcel to Jane Sears on November 8, 1897.

Jane Sears conveyed what was to become the plaintiff’s current parcel to William B. Saunders on March 28, 1899. William B. Saunders, in turn, conveyed the said parcel to Lorenzo Kreekels on November 2, 1910. Lorenzo Kreekels conveyed the property to John Collins on September 13, 1912. Upon his death, John M. Collins devised the parcel to his daughter, Marjorie Collins on November 23, 1948. Marjorie Collins conveyed the property to the plaintiff, Joseph Collins and Mary Collins, as joint tenants, on June 22, 1995. Mary Collins conveyed her interest in the property to the plaintiff by deed on May 5, 2001. The plaintiff is the current owner of this property.

Discussion

A party seeking declaratory judgment under G.L. c. 231A must "set forth a real dispute caused by the assertion by one party of a legal relation or status or right in which he has a definite interest and the denial of such assertion by the other party, where the circumstances . . . indicate that, unless a determination is had, subsequent litigation as to the identical subject matter will ensue." Hogan v. Hogan, 320 Mass. 658 , 662 (1947). “[A]n express purpose of declaratory judgment is to “‘afford relief from . . . uncertainty and insecurity with respect to rights, duties, status and other legal relations.’” Boston v. Keene Corp., 406 Mass. 301 , 304-05 (1989), quoting G.L. c. 231A, § 9. A declaratory judgment will preclude future claims among the parties to the action. See Patterson v. Paul, 448 Mass. 658 , 668 (2007) (“An action for declaratory relief will preempt future litigation among the affected parties by resolving any uncertainties about their rights and obligations.”).

In the instant case, the plaintiff claims partial ownership in a way in which the Commonwealth claims exclusive rights of ownership. In addition, the plaintiff asserts the right to enforce the restrictions set forth in the Commonwealth’s deed. Therefore, this court has jurisdiction to enter a declaratory judgment to the extent deemed appropriate. See G.L. c. 231A, § 1.

To this end, the court will first determine who owns the fee in the right of way that directly abuts the plaintiff’s property. If the restriction does in fact prohibit a bicycle and pedestrian pathway, the court will consider whether the plaintiff possesses standing to seek enforcement of the said restrictions. If necessary, the court will then construe the relevant deed restriction.

Ownership in the Right of Way

At the time of the Crehore deed in 1846, a railroad corporation typically acquired land in one of two ways: (1) it could purchase land from the owner by conveyance; or (2) it could take land by filing a location plan with the county commissioner and pay damages to the owner. See Rev. St. c. 39, § 55 (1836) (“Every rail road corporation may purchase or otherwise take any land or materials, necessary for the purpose of making or securing their rail road . . . .”); Agostini v. North Adams Gas Light Co, 265 Mass. 70 , 72 (1928) (“[A] railroad corporation was authorized to lay out its road not exceeding five rods in width and to "purchase or otherwise take any land.”). When a railroad acquired land by conveyance, it derived title from the grantor’s deed. See Nye v. Taunton Branch R.R. Co., 113 Mass. 277 , 279 (1873) (“When [a railroad obtains land by a conveyance], it derives its title solely from the deed; if the deed is without restriction, reservation or condition, the corporation may convey the land, if no longer necessary for its purposes.”). When a railroad acquired land by taking, it obtained a permanent and exclusive easement right in the property until such use was abandon and the easement extinguished. See Proprietors of Locks & Canals v. Nashua & Lowell R.R. Co., 104 Mass. 1 , 9 (1870) (“[H]owever extensive the right which the corporation thus takes by its location, it is not a fee, nor a freehold estate, but an easement only; not a corporeal interest, but an incorporeal right. Its right of occupation, however exclusive, is incidental only, and as a means of exercising the privileges and performing the functions defined by its charter”).

A railroad executed a taking by filing a detailed description of the location with the county commissioner. Agostini, 265 Mass at 72 (“The taking is accomplished by filing with the county commissioners of each county a description of the location in that county.”); New York Central R.R. Co. v. Swenson, 224 Mass. 88 , 91 (1916) (“Where land or interests therein are taken by eminent domain, the description in the instrument of taking should be as definite and certain as is necessary for a conveyance of land by deed.”); Glover v. Boston, 80 Mass. 282 , 288 (1866) (“The appropriation of private property to the public use, which is one of the highest acts of sovereign power, should not be accomplished by the use of ambiguous or uncertain language.”); Hazen v. Boston & Maine R.R., 68 Mass. 574 , 580 (1854) (“The filing of the location is the act of taking the land.”). The corporation or land owner could then petition the county commissioner to assess damages for the taking. See Rev. St. c. 39, § 56 (1836); New York & N.E.R. Co. v. Bd. of Railroad Com’rs, 162 Mass. 81 , 84 (1894) (“When land is taken for a railroad . . . it is the duty of the county commissioners, on application, . . . to estimate the damages . . . . “); White v. New York & New Eng. R.R, 156 Mass. 181 , 185 (1892) (”The railroad company could have relied upon location and the rights acquired under it leaving [the land owner] his petition for damages . . . .”).

The first method “is simply an authority to buy and hold land for certain purposes, as a natural person may do; the other puts the land into the possession of the corporation by the exercise of the power of eminent domain.” Nye, 113 Mass. at 279. The differences between the two methods are clear because “[t]he proceedings are entirely distinct, the rights acquired are different, and it does not change the character of the deed, because the land could have been taken against the will of the grantor.” Nye, 113 Mass. at 279.

The Right of Way was Conveyed to the BWRR

In this case, the railroad obtained a deed for Crehore’s land. There is a conveyance for consideration from Crehore to the BWRR acknowledged before the filing of the location. See Nye, 113 Mass. at 279. Nothing on the record indicates that Crehore petitioned the county commissioner for damages. New York & N.E.R. Co. v. Bd. of Railroad Com’rs, 162 Mass. 81 , 84 (1894).

Therefore the BWRR acquired Crehore’s property by conveyance. The plaintiff contends that the land was already “taken” and subject to damages before Crehore conveyed the deed. The deed conveyed “a certain strip of land . . . over which said Corporations Newton Branch Rail Road lies . . . .” The language suggests that the BWRR had already constructed or surveyed the railroad at the time of the conveyance.

However, the filing of the location with the county commissioner governs when land is taken. Hazen, 68 Mass. at 580 (“The filing of the location is the act of taking the land.”). Additionally, even if construction or surveying the rail road constituted a taking, it would not change the fact that there was a deed from Crehore to the BWRR. A deed supercedes a location if there is any conflict between the two. See Putnam Furniture Building v. Commonwealth of Massachusetts, 323 Mass. 179 , 182 (1948) (“[I]f there is any difference [between the taking and the deed] . . . we should proceed on the theory that the deed governs.”); White v. New York & New Eng. R.R, 156 Mass. 181 , 185 (1892) (”The railroad company could have relied upon location and the rights acquired under it leaving [the grantor] his petition for damages and a crossing. It did not see fit to that but it elected to take a deed from him with full covenants of seisin and warranty.”). Consequently, the BWRR acquired its rights in Crehore’s land by conveyance and not by taking. Thus, the extent of the BWRR ownership in the strip of land is derived solely from the Crehore deed. Nye, 113 Mass. at 279 (“When [a railroad obtains land by a conveyance], it derives its title solely from the deed . . . .”).

The Deed Conveyed Crehore’s Fee Interest in the Right of Way

The general rule of construction with respect to the interpretation of deeds is that every deed is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in light of the material circumstances and pertinent facts known to them at the time it was executed. See Commercial Wharf East Condominium Assn. v. Waterfront Parking Corp., 407 Mass. 123 , 131 (1990) (“Deeds should be construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant. The intent of the parties is gleaned from the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time the deed was executed.” (citations omitted)). Applying this rule to the aforesaid deed, Crehore conveyed his fee interest in the right of way to the BWRR in 1846. The Crehore deed is a warranty deed that contains granting and habendum clauses, an easement over the right of way, a promise to erect and maintain a fence around the right of way, a relinquishment of the wife’s dower rights, and present and future covenants. See Mcrae v. Pope, 311 Mass. 500 , 504 (1942) (“[The deed] recites that the conveyance is with "Warranty covenants," and, after a description of the premises conveyed . . . A deed in this form has the force and effect of a deed in fee simple with full covenants of warranty”); New York & N.E.R. Co. v. Bd. of Railroad Com’rs, 162 Mass. 81 , 83-84 (1894) (holding that conveyances to railroads by warranty deeds are to be treated like any other conveyance of property).

The granting clause of the deed states “I Lemuel Crehore . . . do hereby give grant bargain sell and convey to the said corporation a certain strip of land.” The plaintiff argues that the granting clause, viewed in light of the material circumstances at the time of delivery, is not enough to convey the fee in the land. The court agrees that the granting clause alone might not have sufficed to convey the fee in the strip of land. However, as stated above, the Crehore deed is comprised of additional elements, as well.

The Crehore deed to BWRR contains a habendum clause. At the time of the grant by deed, a habendum clause was necessary for the grantor to convey more than a life estate in the deed. See Bean v. French, 140 Mass. 229 , 231 (1884). The purpose of a habendum clause “is to declare and fix the nature and extent of the interest or title conveyed by the deed.” Elwell v. Miner, 342 Mass. 450 , 454 (1961), citing Pratt v. Sanger, 4 Gray 84 , 86 (1855); Brooks v. West Boston Gas Co., 260 Mass. 407 , 409 (1927) (“It is the function of the habendum to declare the extent of the estate conveyed.”). The Crehore deed to BWRR habendum clause states “[t]o have and to hold the above granted premises with the privileges and appurtenances thereto belonging to said Corporation and their successors and assigns to their use and behoof forever.” This language has been found by the Supreme Judicial Court to convey a fee interest. Brooks v. West Boston Gas Co., 260 Mass. 407 , 409 (1927) (“The habendum of the deed reads: ‘To Have and to Hold the above granted premises, with the privileges and appurtenances thereto belonging to the said [grantee], his heirs and assigns, to his & their use and behoof forever.’ . . . The habendum conveys a fee.”).

The Crehore deed also contains an easement, a relinquishment of dower rights, and present and future covenants. [Note 3] Based on the express wording of the deed, the Crehore deed conveyed a fee simple interest to the BWRR and not an easement. See Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 131 (1972) (“In interpreting a deed, we seek, in so far as established rules of construction permit, to give effect to the intent of the parties as manifested by the words used.”); Battelle v. New York, New Haven, and Hartford R.R. Co., 211 Mass. 442 , 444 (1912) (“If it was the grantor's purpose to have the title of the land she was selling revert to her unless the use of the property for railroad purposes should be perpetual, she naturally would have inserted in the deed a technical common law condition . . . .”).

The plaintiff argues that the amount of monetary consideration paid by the BWRR indicates that the deed conveyed no more than an easement. [Note 4] However, this argument overlooks the fact that Crehore choose to convey his land by the terms of the deed to the BWRR instead of petitioning the county commissioner for damages. See White, 156 Mass. at 185 (”The railroad company could have relied upon location and the rights acquired under it leaving [the grantor] his petition for damages and a crossing. It did not see fit to that but it elected to take a deed from him with full covenants of seisin and warranty.”); Nye, 113 Mass. at 279 (“[I]t does not change the character of the deed, because the land could have been taken against the will of the grantor.”). Further, Crehore obtained additional consideration for the conveyance of his land when the BWRR granted him “passway at grade across said strip and said Branch Rail Road at such point of the same as shall be mutually convenient which said passway shall be constructed and forever maintained by said corporation at their expense for the use and benefit of myself my heirs and assigns for farming purposes.” [Note 5] Considering the material circumstances of the parties at the time of conveyance, this appurtenant easement was of great value. See Hillman v.Roman Catholic Bishop of Fall River, 24 Mass. App. Ct. 241 , 243 (1987) (“Quite correctly the judge construed the instrument of conveyance by considering its language as illuminated by the circumstances attendant upon its drafting and delivery.”).

Crehore was the owner of a large tract of land that was divided in half by location of the railroad. He would have had great difficulty reaching his northern tract of land without this crossing that was to be maintained at the expense of the BWRR. Therefore, the passway over the right of way and the BWRR’s obligation to maintain said passway was a part of the consideration for the conveyance. [Note 6] Cf. Childs v. Boston and Maine R.R., 213 Mass. 91 , 93 (1912) (“[T]he stipulation in the instrument . . . indicate[s] that the performance of it by the [Railroad] was a substantial part of the consideration for the conveyance. The grantor was the owner of a farm, which has been divided by the placement of the railroad. Access from one part to another of his farm which theretofore had been free was seriously interfered with by the railroad location. Unless provision was made for the crossing, the value of his land would be greatly diminished.”).

This court concludes therefore that the Crehore deed to BWRR was a warranty deed that conveyed Crehore’s fee interest in the strip of land. See New York & N.E.R. Co. v. Bd. of Railroad Com’rs, 162 Mass. 81 , 83-84 (1894) (holding that conveyances to the railroad by warranty deed are to be treated like any other conveyance of property). The Commonwealth is the successor to those property rights derived from Crehore’s 1846 conveyance.

The Commonwealth Holds the Entire Fee Interest in the Right of Way that Abuts the Plaintiff’s Property

The plaintiff contends that regardless of the Commonwealth’s claim, his chain of title is more than adequate to establish ownership to the centerline of the right of way abutting his property even though the Commonwealth has put forth a superior claim to title. As discussed supra, Crehore conveyed his fee interest in the entire right of way to the BWRR in 1846 and the Commonwealth traces its interest in the right of way to that conveyance.

For his part, the plaintiff traces his interest in the right of way to the 1873 Suffolk Probate Partition. However, the partition action could not grant an interest in property that was no longer held by the Crehore Estate. See Bevilacqua v. Rodriquez, 460 Mass. 762 , 771 (2011) (“The effectiveness of the quitclaim deed to [the grantee] thus turns, in part, on the validity of his grantor's title.”); Bongaards v. Millen, 440 Mass. 10 , 15 (2003) (“Where, as here, the grantor has nothing to convey, a mutual intent to convey and receive title to the property is beside the point. The purported conveyance is a nullity.”).

The Commonwealth thus holds superior title. See Sheriff's Meadow Foundation, Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269-70 (1987) (“The plaintiff's burden requires the plaintiff not merely to demonstrate better title to the locus than the defendants possess, but requires the plaintiff to prove sufficient title to succeed in its action.”); Spillane v. Adams, 76 Mass. App. Ct. 378 , 381-82 (2010) (“[The plaintiffs] contend that this lineage is more than adequate to establish ownership, citing G. L. c. 93, § 70, and the title requirements of the Real Estate Bar Association. In the absence of countervailing evidence they would be correct, but here they are confronted with a claim predating theirs by several centuries.). As a consequence, the Commonwealth holds the entire fee in the right of way as it abuts the plaintiff’s property.

Finally, the plaintiff argues that he holds the fee to the centerline of the right of way by operation of the Derelict Fee Statute (G.L. c. 183, §58) and Rowley v. Massachusetts Electric Co. [Note 7] This argument is without merit. The Derelict Fee Statute “sets out an authoritative rule of construction for instruments passing title to real estate abutting a way.” Emery v. Crowley, 371 Mass. 489 , 492 (1976). The statute “mandates that every deed of real estate abutting a way include the fee interest of the grantor in the way – to the centerline of the road if the grantor retains property on the other side of the way or for the full width if he does not . . . ." Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 243 (1992) (emphasis added). [Note 8]

In this case, however, Crehore conveyed the fee interest in the right of way to the BWRR, retaining no interest in the way. Consequently, the Derelict Fee Statute had no application to any subsequent conveyance. See Adams v. Planning Board of Westwood, 64 Mass. App. Ct. 383 , 389 (2005) (“However, since the [the grantor] no longer held any interest in the fee of the disputed way, the derelict fee statute had no effect on the interests conveyed under the 1959 deed to [the grantee].”). Therefore, the plaintiff did not obtain a fee interest in the right of way that abuts his property by operation of the Derelict Fee Statute. Rather, as noted, the Commonwealth secured title to the right of way subject to certain deed restrictions.

Penn Central Deed Restriction

The Penn Central deed to the Commonwealth contains a restriction to the effect “that no part of the premises hereinabove described shall be used as, or made a part of, a transportation, communication, electrical or other corridor or right of way.”

The plaintiff contends that the restriction is a conservation restriction that completely prohibits the Commonwealth from developing the land underlying the right of way. See G.L. c. 184, §§ 31-33. In the alternative, the plaintiff asserts that the private restriction still prohibits the use of the right of way as a pathway under G.L. c. 184, §§26-30. For its part, the Commonwealth asserts that the restriction is not a conservation restriction but private restriction that cannot be enforced by the plaintiff. Additionally, the Commonwealth argues, even if the plaintiff were able to enforce the restriction, the language should be interpreted to allow the use of the parcel as a pathway in light of the circumstances surrounding the deed.

In 1961, the Legislature modified the common law with respect to the enforcement of restrictions on real property. Brear v. Fagan, 447 Mass. 68 , 73 (2006) (“The legislative history reinforces the conclusion that the Legislature intended to modify the common law with respect to enforcement of restrictions on land. The various reforms set forth in G. L. c. 184, §§ 26-30, were first enacted in 1961 (St. 1961, c. 448, s. 1) . . . .”). “The legislation was explicitly designed to supplant those common-law rules with clearer, more definitive, and more efficient methods of resolving the enforceability of land restrictions. ”Brear, 447 Mass. at 73. General Laws c. 184, §§ 26-30 govern private restrictions while G.L. c. 184, §§ 31-33 govern public restrictions. Weston Forest & Trail Association, 66 Mass. App. Ct. at 661 (“In passing the Conservation Restriction Act, G. L. c. 184, §§ 31-33, the Legislature recognized, and sought to protect, the public benefits of conserving land and water in their "natural, scenic or open condition" by government bodies and qualified charitable corporations or trusts.”, quoting G. L. c. 184, § 31).

The Penn Central Deed Restriction is Not a Conservation Restriction as Defined by G.L. c. 184, § 31

The plaintiff argues that the Penn Central deed restriction is a conservation restriction pursuant to G.L. c. 184, § 31. That provision defines a conservation restriction in the following terms:

[A] right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use, or to forbid or limit any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs or other vegetation, (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition, (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or (g) other acts or uses detrimental to such retention of land or water areas.

G.L. c. 184, § 31, par 1.

The Penn Central deed restriction does not conform to this definition. The deed restriction includes no requirement that the land remain predominantly in a natural, scenic, open condition or that it be set aside for recreational purposes. [Note 9] Compare Weston Forest & Trail Association, Inc, 66 Mass. App. Ct. at 661 (“The stated purpose of the restriction was ‘to insure the preservation of the property in its present, predominantly natural and undeveloped condition’”, citing G. L. c. 184, § 31); Chatham Conservation Foundation, Inc., 56 Mass. App. Ct. at 590 (“The stated purpose of the restriction was to ‘preserve the premises as nearly as may be in the natural state in which they now are.’”, citing G. L. c. 184, § 31).

Beyond the specified limitations, the Commonwealth is free to use the land for any other lawful purpose. Interpreting every constraint on the development and use of land as a conservation restriction would lead to an “absurd result.” See Kline v. Shearwater Assn., Inc., 63 Mass. App. Ct. 825 , 831 (2005) (“[Restrictions] have to be construed with a view of avoiding results which are absurd, or inconsistent with what was meant by the parties to or the framers of the instrument.”). At best, the deed restriction prohibits the Commonwealth from utilizing the land in a way deemed adverse to Penn Central’s interests as defined in the deed. Therefore, the restriction is not a conservation restriction; General Laws c. 184, §§ 23, 26-30 will control whether and to what extent the plaintiff may enforce said restriction.

By its express terms, the restriction in the Penn Central deed is not a conservation restriction; it is a private restriction.

The Plaintiff Possesses Standing under G.L. c. 184, § 27 (a) (2) to Enforce the Restriction

The statute governs what parties benefit from a restriction in a deed or other instrument. Brear, 447 Mass. at 73 (“Thus, with respect to the identification of the beneficiaries of land restrictions, § 27 (a) requires specificity and supplants the common-law rule that allowed identification to be a matter of inference.”). General Laws c. 184, § 27, reads in pertinent part as follows:

No restriction imposed after December thirty-first, nineteen hundred and sixty- one shall be enforceable: (a) unless the person seeking enforcement . . . (2) is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought . . . .

This provision grants standing to an owner of property that adjoins a burdened parcel of land to enforce a restriction in its deed. Rosenfeld v. Zoning Bd. of Appeals of Mendon, 78 Mass. App. Ct. 677 , 682 (2011) (“G. L. c. 184, § 27(a) (2), should be interpreted in accordance with the latter of the two alternatives identified in Brear: that an owner of land that adjoins the restricted land is entitled to enforce a deed restriction, whether or not the instrument imposing the restriction contains an express statement that the adjoining land is intended to benefit from the restriction.”).

While the plaintiff does not own any portion of the right of way, his property is adjacent to the defendant’s parcel on its western boundary for 141 feet. Thus, under G.L. c. 184, § 27 (a) (2), the plaintiff is afforded standing to enforce the deed restrictions in the Penn Central Deed. See Rosenfeld, 78 Mass. App. Ct. at 682.

Whether the Restriction Actually and Substantially Benefits the Plaintiff’s Parcel is a Question of Fact

“No restriction shall in any proceeding be enforced or declared to be enforceable . . . unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming the right of enforcement.” G.L. c. 184, § 30. [Note 10] Whether the restriction actually and substantially benefits the plaintiff’s parcel is a question of fact. See Connaughton v. Payne, 56 Mass. App. Ct. 652 , 657 (2002) (“The judge’s findings as to the existence of an “actual and substantial benefit” for the defendants, . . . arising from the 1965 restriction, are not without reasonable support in the record.”); Walter v. Atwood, 47 Mass. App. Ct. 508 , 513 (1999) (“We must accept the judge’s finding of fact unless they are clearly erroneous. Here, the trial judge found that the plaintiff was actually and substantially benefited by the restriction at the time of trial.”). There is nothing in the summary judgment record that indicates what benefit, if any, the plaintiff’s property would enjoy from enforcement of the restriction. Neither party has addressed this issue in their briefs. Therefore, the matter is an unresolved question of fact that cannot be determined on summary judgment.

Moreover, neither party has argued what effect G.L. c. 184, § 23 will have on the Penn Central deed restriction. See Jones v. Murphy, 60 Mass. App. Ct. 1 , 4 (2003) (“‘[A] restriction unlimited as to time expires in 30 years, and cannot be extended by a notice of restriction under § 27.’”, quoting Mendler, Massachusetts Conveyancers' Handbook § 14:3.02, at 330). As a result, these remaining matters cannot be resolved at this juncture.

Conclusion

In view of the foregoing, this court concludes as follows:

(a) The Commonwealth possesses the entire fee interest in the right of way abutting the plaintiff’s property.

(b) The deed restriction at issue does not constitute a conservation restriction pursuant to G.L. c. 184, § 31.

(c) The plaintiff possesses standing pursuant to G.L. c. 184, § 27 (a) (2) to seek enforcement of the restriction.

(d) Whether the restriction actually and substantially benefits the plaintiff’s parcel is a genuine issue of material fact that cannot be resolved on summary judgment.

(e) Whether and to what extent the term limitation provisions of G.L. c. 184, § 23 impacts the deed restriction here at issue, has not been fully argued and so will not be resolved herein.

(f) The construction of the restriction itself, will await resolution of (d) and (e) supra.

Accordingly, it is hereby

ORDERED that the plaintiffs’ Motion for Summary Judgment be, and hereby is, DENIED. It is further

ORDERED that the defendants’ Cross-Motion for Summary Judgment be, and hereby is, ALLOWED IN PART insofar as this court determines that the Commonwealth owns the railroad right of way that abuts the plaintiff’s parcel in fee simple. It is further

ORDERED that the defendants’ Cross-Motion for Summary Judgment be, and hereby is, DENIED IN PART insofar as this court determines that there remain genuine issues of material fact as regards the plaintiff’s right to enforce the relevant deed restriction. It is further

ORDERED that the questions whether the plaintiff’s property actually and substantially benefits from the deed restriction, and the manner in which G.L. c. 184, § 23 may effect such enforcement, two issues not briefed on summary judgment, shall await resolution pending a trial on the merits.

SO ORDERED

By the court (Grossman, J.)