JOHN E. DENARDO and JEANNE L. DENARDO v. CHANDLER BOSWORTH, et al.

In 1925, a plan entitled “Scorton Dunes East Sandwich Mass. Belonging to Homestead Trust – S.D. Hannah Trustee Buzzard Bay Mass. Scale: 1 in. = 100 ft. Aug – 1925” (the “Scorton Dunes Plan”) was recorded in the Barnstable Registry of Deeds (“registry”) at Plan Book 14, Page 147. The Scorton Dunes Plan shows a parcel of land in Sandwich along Cape Cod Bay, divided into lots and ways. One of those ways leads to Cape Cod Bay and is named “Beach Way.” John E. Denardo and Jeanne L. Denardo own a lot along Beach Way and the beach at Cape Cod Bay which was formerly part of lots 1 and 2 on the Scorton Dunes Plan, and Thomas DeLoughrey owns a lot along Beach Way which formerly formed the bulk of the remainder of lots 1 and 2. Joanne Eudy and Dan Eudy own a lot on the other side of Beach Way, consisting mostly of the former lot 8 on the Scorton Dunes Plan. Catherine Johnson owns lots 32 and 33 as shown on the Scorton Dunes Plan; Gabriele N. Sullivan and Derek Sullivan own lot 36. Johnson and the Sullivans claim that they have the right to pass over and park on Beach Way and to use the beach in front of the Denardos’ property. The Denardos, the Eudys, and DeLoughrey claim that they own the entire fee in Beach Way where it abuts their properties and that Johnson and the Sullivans have no right to use Beach Way or the beach. These parties have brought cross-motions for partial summary judgment in these consolidated cases on the issue of whether Johnson and the Sullivans have record rights to use Beach Way and/or the beach. For the following reasons, the court finds that Johnson and the Sullivans have the right to use Beach Way, in common with others for all purposes for which ways in the Town of Sandwich are used, along the portion of Beach Way abutting the properties owned by DeLoughrey and the Denardos, including the right to use the portion of the beach on Cape Cod Bay that is within the layout of Beach Way. Because issues of fact remain as to (a) what rights, if any, Johnson and the Sullivans have to use the portion of Beach Way owned by the Eudys, (b) what rights, if any, they have to park on Beach Way, and (c) whether and to what extent they have rights under the so-called Ladenburg Restrictions, including rights to use the ways and the beach, the court denies the remaining cross-motions for partial summary judgment.

Procedural Background

The procedural history of these consolidated cases is complex. The history of each case prior to consolidation is set forth separately below, with the after-consolidation history following.

06 MISC 324036. The plaintiffs John E. Denardo and Jeanne L. Denardo filed their complaint in this action on May 31, 2006, naming as defendants Chandler Bosworth, Karen Juros, Gabriele Sullivan, Van Johnson, James McLoughlin, and David Sullivan. The plaintiffs’ motion for preliminary injunction was denied on July 31, 2006. Karen Juros filed her answer and counterclaim on July 17, 2006. Gabriele and David Sullivan filed their answer on July 18, 2006 along with Gabriele Sullivan’s counterclaim and the Sullivans’ third party complaint naming Ronald J. Lowenstein as third party defendant. James McLoughlin filed his answer and counterclaim on August 7, 2006. The plaintiffs answered the Juros, Sullivan, and McLoughlin counterclaims on August 7, 2006. A case management conference was held on August 14, 2006.

Chandler Bosworth’s default was entered on October 12, 2006. On November 22, 2006, the plaintiffs moved for partial summary judgment on the claims in their complaint that the defendants are not proprietors of private ways under G.L. c. 84, § 12. On December 5, 2006, Lowenstein moved to dismiss the third party complaint against him; that motion was allowed on June 2, 2008. On June 26, 2008, the court allowed the plaintiffs’ motion for summary judgment, declaring that the defendants are not proprietors. Juros withdrew her counterclaim on January 29, 2009. On March 9, 2009, Catherine Johnson was substituted as defendant and plaintiff-in-counterclaim for Van Johnson, and this action was consolidated with 07 MISC 346353.

07 MISC 346353. The plaintiffs Thomas DeLoughrey, Judith DeLoughrey, and Dan Eudy filed their complaint in this action in Barnstable Superior Court on September 14, 2004, naming as defendants Karen Juros, John Juros, John Doe, Jane Doe, and the Cranberry Trail Association. They filed their amended complaint on September 24, 2004, adding as defendants Van Johnson, Catherine Johnson, Derek Sullivan, and Gabriele N. Sullivan. The Sullivans filed their answer and counterclaim on November 3, 2004, and the Johnsons filed their answer and counterclaim on November 10, 2004. The plaintiffs answered the Sullivans’ and the Johnsons’ counterclaims on November 12, 2004. The Juroses filed their answer and counterclaim on November 23, 2004, and the plaintiffs answered on March 22, 2005. On May 16, 2005, the plaintiffs stipulated to the dismissal of the defendants John Doe, Jane Doe, and the Cranberry Trail Association. The plaintiffs filed a motion for summary judgment on September 30, 2005, which was denied on January 12, 2006. The parties’ joint motion to transfer the case to the Land Court was allowed on April 5, 2007.

This case was entered in the Land Court as case no. 07 MISC 346353 on April 30, 2007. A case management conference was held on September 17, 2007. On October 17, 2007, the plaintiffs filed their second amended complaint, in which the named plaintiffs were Thomas DeLoughrey and Dan Eudy. The Juroses filed their “Objection” to the second amended complaint on November 13, 2007; this pleading was deemed an answer by order of the court on January 22, 2008. The Sullivans filed their answer and counterclaim on November 16, 2007, and the Johnsons filed their answer and counterclaim on November 20, 2007. The plaintiffs answered the Sullivans’ and the Johnsons’ counterclaims on December 5, 2007.

On December 3, 2007, the Sullivans moved to join as additional plaintiffs Donna Chiesi-Hoyt, Melvin Hoyt, and the Denardos; the motion was allowed on December 13, 2007. The plaintiffs filed their third amended complaint on March 26, 2008, adding Joanne Eudy as a plaintiff. The Sullivans filed their answer and counterclaim on April 11, 2008; the plaintiffs answered on April 29, 2008. The Johnsons filed their answer and counterclaim on April 29, 2008; the plaintiffs answered on May 5, 2008. The Juroses filed their answer and counterclaim on June 23, 2008; the plaintiffs answered on July 9, 2008. On June 27, 2008, the Sullivans filed their third party complaint, naming as third party defendants the Denardos, Donna Chiesi-Hoyt, and Melvin Hoyt. The Denardos answered the third party complaint on July 25, 2008. The defaults of Donna Chiesi-Hoyt and Melvin Hoyt were entered on January 29, 2009. On March 9, 2009, Catherine Johnson was substituted as defendant and plaintiff-in-counterclaim for Van Johnson, and this action was consolidated with 06 MISC 324036.

Consolidated cases. On March 13, 2009, plaintiffs DeLoughrey and the Eudys moved for judgment on the pleadings on Count I of their third amended complaint against the Juroses, and moved to strike the Juroses’ counterclaim. The motion for judgment on the pleadings was allowed and the motion to strike denied on April 22, 2009. The court entered partial judgment on May 29, 2009. The partial judgment allowed the motion for judgment on the pleadings and declared that the Juroses hold no rights in Beach Way for any purposes. [Note 1]

At this stage of the consolidated actions, the status of the parties’ respective claims is as follows. In 06 MISC 324036, judgment has been entered in favor of the Denardos and against the Juroses, the Sullivans, McLoughlin, and Johnson on the Denardos’ complaint, declaring that these defendants are not proprietors. As a result of this declaration, the claims in the counterclaims of the Sullivans, McLoughlin, and Johnson seeking a declaration that David Sullivan is the duly elected Surveyor with authority to issue assessments and that the proprietors may issue beach stickers have been dismissed. Defendant Bosworth’s default in that action has been entered, but no default judgment has been entered against him. The Juroses’ counterclaim has been withdrawn. The Sullivans’ third party complaint against Lowenstein has been dismissed. In 07 MISC 346353, the claims against defendants John Doe, Jane Doe, and the Cranberry Trail Association have been dismissed. Judgment has been entered in favor of DeLoughrey and the Eudys and against the Juroses on the third amended complaint and the Juroses’ counterclaim, declaring that the Juroses have no rights in Beach Way. The Juroses are therefore no longer parties in these cases. Third party defendants Donna Chiesi-Hoyt and Melvin Hoyt have been defaulted, but no default judgment has been entered against them.

Remaining in these cases are the following claims: In 06 MISC 324036, the Sullivans have brought counterclaims against the Denardos for (a) a declaration that they have an express or prescriptive easement to use and park on Beach Way (Count I), (b) nuisance (Count IV), (c) trespass/interference with easement rights (Count V), and (d) injunctive relief (also designated Count V). Johnson and McLoughlin have brought counterclaims against the Denardos for (a) a declaration that they have an express or prescriptive easement to use and park on Beach Way (Count I), (b) nuisance (Count II), and (c) trespass/interference with easement rights (Count III). In 07 MISC 346353, DeLoughrey and the Eudys in their third amended complaint seek a declaration that Johnson, the Sullivans, and McLoughlin have no right to travel across, use, or park on Beach Way, and seek to enjoin these defendants from destroying plaintiffs’ property or traveling upon or otherwise using Beach Way. In their third amended counterclaims, Johnson and the Sullivans seek a declaration that they have record, implied, or prescriptive easements to travel upon, use, and park on Beach Way and use the beach in front of the Denardo property, and an injunction enjoining DeLoughrey and the Eudys from interfering with that use. In their third-party complaint against the Denardos, Johnson and the Sullivans seek the same declaration and injunctive relief as in their third amended counterclaim.

On November 16, 2009, the Denardos filed the Motion of John E. Denardo and Jeanne L. Denardo for Summary Judgment as to Defendants, Catherine Johnson, Gabrielle Sullivan, Derek Sullivan and David Sullivan (the “Denardo summary judgment motion”), along with their statement pursuant to Land Court Rule 4, their memorandum of law, and the Affidavit of Richard M. Golder, Esq. Relative to Rights of Catherine Johnson and Gabrielle Sullivan, Derek Sullivan and David Sullivan in Beach Way (“Golder Affidavit”). On November 17, 2009, DeLoughrey and the Eudys filed Plaintiffs DeLoughrey and Eudy’s Motion for Summary Judgment Regarding the Deeded Rights of the Johnson, McLoughlin and Sullivan Defendants (the “DeLoughrey/Eudy summary judgment motion”), along with their memorandum of law, in which they rely on the Golder Affidavit.

On November 16, 2009, Johnson and the Sullivans each submitted their Trial Submission, consisting of representative recorded instruments and other documents, along with the Affidavit of Bernard T. Kilroy (“Kilroy Affidavit”) and the Affidavit of Theodore A. Schilling as Expert Witness (“Schilling Affidavit”). On January 15, 2010, the Sullivans filed Defendant Gabriele N. Sullivan and Derek Sullivan’s Reply to Plaintiff’s Trial Submissions, along with the Affidavit of Theodore A. Schilling as Expert Witness (the “Second Schilling Affidavit”), and Johnson submitted Defendant Catherine Johnson’s Reply to Plaintiffs’ Trial Submissions, along with the Affidavit of Bernard T. Kilroy, Esq. Relative to Rights of Catherine Johnson in Beach Way (the “Second Kilroy Affidavit”). The same day, the Denardos submitted the Reply of John E. Denardo and Jeanne L. Denardo to Submissions of Gabrielle N. Sullivan, Derek Sullivan and Catherine Johnson.

At a June 29, 2010 status conference, the parties agreed that their submissions would be treated as cross-motions for partial summary judgment on the issue of whether Johnson and the Sullivans had record title in Beach Way, and that the cross-motions would be decided without a hearing. After the retirement of the Hon. Charles W. Trombly, these consolidated cases were assigned to the Hon. Robert B. Foster. The court held a status conference on February 27, 2012 to discuss the status of the cross-motions, which had not been decided at the time of Judge Trombly’s retirement. The parties agreed that the motions remained before the court. [Note 2] The court instructed Johnson and the Sullivans to submit formal motions for summary judgment, along with any memoranda of law, and gave the plaintiffs the opportunity to file reply briefs. On March 26, 2012, Johnson filed Defendant/Third Party Plaintiff Catherine Johnson’s Motion for Partial Summary Judgment (the “Johnson summary judgment motion”), her statement pursuant to Land Court Rule 4, her memorandum of law, and her response to the plaintiffs’ Land Court Rule 4 statement. The same day, the Sullivans filed Defendants/Third Party Plaintiffs Gabriele N. Sullivan and Derek D. Sullivan’s Motion for Partial Summary Judgment (the “Sullivan summary judgment motion”), their statement pursuant to Land Court Rule 4, their memorandum of law, and their response to the plaintiffs’ Land Court Rule 4 statement. On April 2, 2012, the Denardos filed their reply memorandum of law, their response to Johnson’s and the Sullivans’ Land Court Rule 4 statements, the Supplemental Affidavit of Richard M. Golder, Esq. Relative to Rights of Catherine Johnson and Gabrielle [sic] Sullivan, Derek Sullivan and David Sullivan in Beach Way (the “Second Golder Affidavit”), the Affidavit of Jeanne L. Denardo (“Denardo Affidavit”), and an attested copy of the Town of Sandwich Protective Zoning By-Law November 2011. The same day, DeLoughrey and the Eudys filed a notice that they join in the pleadings filed by the Denardos. The court heard argument on the cross-motions for partial summary judgment on April 10, 2012, and took the motions under advisement.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where, as here, the parties have presented cross-motions relying solely on undisputed recorded instruments, the court may interpret the meaning of these instruments, including the intent of the parties to the instruments, as a matter of law. World Species List—Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009); Rivers v. Warwick, 37 Mass. App. Ct. 593 , 596 (1994); see Asian Am. Civic Ass’n v. Chinese Consolidated Benevolent Ass’n of New Eng., Inc., 43 Mass. App. Ct. 145 , 148 (1997).

Factual Background

Based on the record, the court finds the following undisputed facts:

As discussed above, in 1925, the Scorton Dunes Plan was recorded in the registry at Plan Book 14, Page 147. It was re-recorded in the registry at Plan Book 35, Page 73. A revised version of the Scorton Dunes Plan, showing the parcels owned by the parties to this motion, is attached. The Denardos own the parcel shown as “Denardo” on the revised Scorton Dunes Plan, by a deed from Ibis Kramer dated August 23, 1984 and recorded in the registry at Book 4234, Page 337 on August 31, 1984 (the “Denardo Property”). DeLoughrey owns the parcel shown as “DeLoughrey” on the revised Scorton Dunes Plan, by a deed from Ronald Wilson and Judith Ann Avnet dated and recorded in the registry at Book 12972, Page 294 on April 27, 2000 (the “DeLoughrey Property”). The Eudys own the parcel shown as “Eudy” on the revised Scorton Dunes Plan, consisting of lot 8 on that plan (or lot 10 as shown on the 1974 Ladenburg Plan, see infra), by a deed from the Stewart Family Limited Partnership dated and recorded in the registry at Book 13373, Page 031 on November 17, 2000 (the “Eudy Property”).

The Sullivans own the parcel shown as “Sullivan” on the revised Scorton Dunes Plan, consisting of lot 36 on that plan, by a deed from Gabriele N. Sullivan to Derek D. Sullivan and Gabriele N. Sullivan as joint tenants dated and recorded in the registry at Book 15327, Page 1 on July 1, 2002 (the “Sullivan Property”). Lot 36 was divided into lots 1, 2, and 3 as shown on a plan entitled “Plan of Land Cranberry Trail in Sandwich Massachusetts Date: June 29, 2004,” endorsed as “Planning Board approval under the Subdivision Control Law not required” on June 29, 2004 and recorded in the registry at Plan Book 592, Page 20 on June 30, 2009. Gabrielle [sic] Sullivan and Derek Sullivan conveyed an undivided ½ interest in lot 2 of that plan to Derek D. Sullivan and an undivided ½ interest in lot 2 to Gabrielle [sic] N. Sullivan and David D. Sullivan, husband and wife as tenants by the entirety, all as joint tenants, by a deed dated July 6, 2009 and recorded in the registry at Book 23871, Page 335 on July 8, 2009.

Johnson owns the parcel shown as “Johnson” on the revised Scorton Dunes Plan, consisting of lots 32 and 33 on that plan, by a deed from Julie C. Molloy, trustee under the will of Junia Curtin, to Van Johnson and Catherine Johnson dated April 11, 2003 and recorded in the registry at Book 16745, Page 283 on April 14, 2003 (the “Johnson Property”). Van Johnson died on September 17, 2007; his death certificate was recorded in the registry at Book 22728, Page 123 on March 5, 2008.

The DeLoughrey, Denardo, Eudy, Sullivan, and Johnson Properties are part of the approximately 53.4 acre parcel of land on Scorton Neck in Sandwich abutting Cape Cod Bay that is shown on the Scorton Dunes Plan. That parcel was conveyed from John F. Carleton, Isabel F. Carleton, Annie E. Foxcroft, and Francis A. Foxcroft to Samuel D. Hannah and Henry K. Hannah, trustees of the Homestead Trust (the “Homestead Trust”) by a deed dated January 11, 1916 and recorded in the registry at Book 337, Page 598 on January 17, 1916 (the “Carleton Deed”). The Carleton Deed describes the parcel by metes and bounds. The Carleton Deed grants to the Homestead Trust a right of way, in common with the grantors and others, over the land to the south to and from the State Highway.

The conveyed land is also shown on a plan entitled “Plan Showing Land of the Homestead Trust Cape Cod Bay, East Sandwich formerly owned by John F. Carleton & Others Scale 1” – 100’ Jan. 1916 Barry and Gurney Civil Eng’rs Buzzards Bay, Mass.,” recorded more or less contemporaneously in the registry at Plan Book 4, No. 7 (the “1916 Barry & Gurney Plan”). The 1916 Barry & Gurney Plan shows the same parcel as the Scorton Dunes Plan, but without the ways or lots that are delineated on the latter plan. A plan entitled “Plan showing Location of Road in East Sandwich, Mass. for the Homestead Trust John P. B. Ellis Sept. 1, 1918 Bourne, Mass. Scale: 1 in. = 100 ft.” was recorded in the registry at Plan Book 9, No. 43 (the “1921 Detail Plan”). The 1921 Detail Plan shows lots 1, 2, and 3 as they will appear on the 1925 Scorton Dunes Plan as well as a section of ways called Carleton Place and Maple Road. The 1921 Detail Plan contains the following: “Note: Lots No. 1 – 2 – 3 ‘Maple Road’ and ‘Carleton Place’ added to plan in 1921.”

The Homestead Trust conveyed a parcel of its property to Gertrude E. Cornish by a deed dated July 25, 1921 and recorded in the registry at Book 382, Page 76 on August 8, 1921 (the “Cornish Deed”). The conveyed parcel is shown as lot 3 on the 1921 Detail Plan and the Scorton Dunes Plan. The Cornish Deed recites that lot 3 is conveyed “[t]ogether with a right of way over the existing road to the State Highway. Also with a right to use the beach on [the 1916 Barry & Gurney Plan] in common with others. Reserving to the grantor, his successor and assigns a right to use the beach in front of the herein conveyed premises.”

The Homestead Trust conveyed a parcel of its property to Cyrus W. Jones by a deed dated September 19, 1923 and recorded in the registry at Book 399, Page 378 on October 10, 1923. The conveyed parcel is shown as lot 7 on the Scorton Dunes Plan, and was conveyed with “a Right of Way for all purposes, over said Carleton road, southwesterly and southerly to the State Highway, to be exercised in common with all others who have a legal right thereto.”

The Scorton Dunes Plan was recorded in 1925. It subdivides the property into lots 1-38 and the ways that exist today and that are at issue in this case. The Scorton Dunes Plan names Carleton Road, Oak Place, Maple Place, and Beach Way. Those ways and lots 1, 2, and 3 are consistent with the ways and lots shown on the 1921 Detail Plan. Beach Way runs from an intersection with Carleton Road and Oak Place, at the western corner of the triangular “Park” shown on the plan, along lots 12, 11, 10, 9, 8, 2, and 1 to Cape Cod Bay. Lot 3 is shown as belonging to “Cornish” and lot 7 as belonging to “Jones.”

Between 1926 and 1936, the Homestead Trust conveyed lots 4, 5, 6, 10, and 16 to various grantees. No rights or easements in the ways shown on the Scorton Dunes Plans were granted or reserved in the deeds for these conveyances. By a deed dated September 13, 1937 and recorded in the registry at Book 568, Page 267 on July 24, 1940, the Homestead Trust conveyed lots 31 and 34 on the Scorton Dunes Plan (the lots now owned by defendant McLoughlin) to the Trustees of Union Chapel Christian Church. This deed provided: “There is conveyed herewith a right of way in common with all others who have a legal right thereto, over the ‘Carlton [sic] Road’ shown on [the Scorton Dunes Plan], to a public road; and over said Carleton Road and ‘Beach Way’, shown on said plan, to Cape Cod Bay.”

A plan entitled “Plan of Lot 3, Scorton Dunes, Sandwich. Scale: 1” = 100’ Dec. 15, 1958 Newell B. Snow, R.L.S. Buzzards Bay, Mass.” was endorsed as “approval under the subdivision control law is not required” on December 26, 1958 and was recorded in the registry at Plan Book 146, Page 39 on February 16, 1959 (the “1958 Plan”). The 1958 Plan shows lots 1 through 6 on the Scorton Dunes Plan, along with Beach Way, Maple Place, and the triangular “Park.” It also shows a section of Carleton Road. The 1958 Plan names this section of road “Cranberry Trail formerly Carleton Road.”

On November 23, 1968, Junia H. Curtin, the trustee of Homestead Trust, conveyed to Richard L. Ladenburg all the remaining lots held by the Homestead Trust along with one held by her individually. By a deed dated November 23, 1968 and recorded in the registry at Book 1420, Page 746 on November 26, 1968, Curtin as trustee of the Homestead Trust conveyed to Ladenburg lots 1, 2, 8 through 15, 17 through 29, 32, 33, and 35 through 38 as shown on the Scorton Dunes Plan, along with “whatever interest the Grantor has as such Trustee in Lot 30 and whatever interest the Grantor now has or will have as such Trustee in Lots 31 and 34.” The deed conveyed the lots “together with the right to use all ways shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto.” The deed also provided the conveyance was “[s]ubject to and with the benefit of all easements, restrictions and encumbrances of record.” By a second deed also dated November 23, 1968 and recorded in the registry at Book 1420, Page 748 on November 26, 1968, Curtin, individually, conveyed lot 10 to Ladenburg, “together with the right to use all ways on [the Scorton Dunes Plan] for all purposes for which ways are commonly used. Said right to be exercised in common with all others lawfully entitled thereto. Subject to and with the benefit of all easements, restrictions and encumbrances of record.” [Note 3] These two deeds will be referred to collectively as the “1968 Curtin Deeds.”

By a deed dated December 24, 1973 and recorded in the registry at Book 1985, page 129 on December 31, 1973, Ladenburg conveyed to Curtin lots 9, 10, 17, 18, 21, and 22 as shown on the Scorton Dunes Plan, “together with the right to use all ways shown on said plan for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto.”

By a deed dated and recorded in the registry at Book 2047, page 258 on May 31, 1974, Ladenburg conveyed to Helen A. Ladenburg lots 13, 14, and 15 as shown on the Scorton Dunes Plan, “together with the right to use all ways shown on said plan for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto.”

By a deed dated July 5, 1974 and recorded in the registry at Book 2081, page 219 on August 9, 1974, Ladenburg conveyed to Lisa Anne Ladenburg lots 35 and 37 as shown on the Scorton Dunes Plan. The deed recites that the conveyance is “[s]ubject to and with the benefit of all easements, restrictions and encumbrances of record if any there be.” It further recites: “There is appurtenant to said lot [sic] the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich” (the “Ladenburg Deed”).

Immediately following the Ladenburg Deed in the registry, at Book 2081, Page 220, appears an instrument entitled “Restrictions and Easements for Subdivision of Land in Sandwich, Mass., Owned By Richard L. Ladenburg” (the “Ladenburg Restrictions”). The Ladenburg Restrictions are unsigned. In the margin is a reference to the Scorton Dunes Plan. The recording date of August 9, 1974 is stamped on the last page of the Ladenburg Restrictions; no recording date is stamped anywhere on the Ladenburg Deed. The Ladenburg Restrictions provide that “[a]ll lots as shown on the plan of the subdivision above mentioned” shall be used for residential purposes; that no structure can be built without the approval of Ladenburg or his successors and assigns; that no construction can take place in July and August; that no livestock, animals or poultry can be kept on the lots; and that no business, trade or manufacturing activity can be conducted on the lots. In addition to these restrictions, the Ladenburg Restrictions provide, in relevant part, as follows:

5. All lot owners in the said subdivision as shown on the plan thereof, shall share a right of way over Cranberry Trail to the beach. The use of the beach by all the said lot owners shall be restricted to that area of the beach lying in front of lots 1 and 2 on said plan, and between the low water mark and the place where the bottom of the beach bank slope meets the beach.

6. Said premises are conveyed together with a right of way over the ways as shown on said plan for all purposes for which ways may be used in the Town of Sandwich, provided, however:

(a) the grantor reserves for himself and his successors and assigns, as appurtenant to all of the remaining land of the grantor the right to use said ways in common with the grantees and others entitled to use the same, for all purposes for which streets may now or hereafter customarily be used in said Sandwich.

(b) the grantor reserves for himself and his successors and assigns (1) the right from time to time to grant to any other person or persons the right to use said ways, in common with the grantees and others from time to time entitled to use the same, for all purposes for which streets may now or hereafter customarily be used in said Sandwich, . . . – provided, however, that the rights reserved to the grantor and his successors and assigns under this sub-paragraph (b) shall be exercisable only by the grantor and others to whom said rights may be specifically assigned . . . .

By two deeds, each dated August 26, 1974 and recorded serially in the registry at Book 2088, Pages 345 and 346 on August 27, 1974, Ladenburg conveyed the remainder of the lots he held to Curtin. These were lots 1, 2, 8, 11, 12, 19, 20, 23 through 30, 32, 33, 36, and 38 as shown on the Scorton Dunes Plan (he had conveyed lots 9, 10, 17, 18, 21, and 22 to Curtin in the December 1973 deed referenced above). Lots 1 and 2 are what are now the DeLoughrey and Denardo Properties. Lot 8 is the Eudy Property. Lots 32 and 33 are the Johnson Property, and lot 36 is the Sullivan Property. Each deed provided: “There is appurtenant to said lots the right to use the ways as shown on said plan in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich.” The conveyance was subject to and with the benefit of easements, encumbrances, and restrictions of record. These two deeds will be referred to collectively as the “1974 Ladenburg-Curtin Deeds.”

The same day, Curtin gave a mortgage to Ladenburg, recorded in the registry at Book 2088, Page 347, encumbering lots 1, 2, 8, 11, 12, 19, 20, 29, 30, 32, 33, 36 and 38, which also recited: “There is appurtenant to said lots the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich.” A discharge of the mortgage, dated February 21, 1975, was recorded in the registry at Book 2154, Page 160 on February 25, 1975.

On November 25, 1974, Ladenburg executed and recorded in the registry two deeds—one at Book 2124, Page 018 and one at Page 019. The Page 018 deed conveyed lots 23-28 to Curtin, and the Page 019 deed conveyed lots 1, 2, 8, 11, 12, 19, 20, 29, 30, 32, 33, 36 and 38 to Curtin. Each deed states that it “is to confirm a prior deed dated August 26, 1974 from Richard Ladenburg to Junia H. Curtin wherein the middle initial of Richard Ladenburg was inadvertently omitted,” referring to the 1974 Ladenburg-Curtin Deeds. Each deed repeats the reference to the right to use the ways on the Scorton Dunes Plan with others legally entitled thereto and that it is subject to and with the benefit of easements, encumbrances, and restrictions of record. Each adds the following: “Subject also to restrictions recorded with said Deeds in Book 2081, Page 220.” This is a reference to the Ladenburg Restrictions. These deeds will be referred to collectively as the “1974 Confirmatory Ladenburg-Curtin Deeds.”

A plan entitled “Plan of Land in East Sandwich, Mass. for Richard Ladenburg Scale 1” = 100’ Date: March 23, 1972 Charles N. Savery, Inc. Registered Engineers & Land Surveyors” was endorsed by the Sandwich Planning Board as approval not required on December 24, 1974 and recorded in the registry at Plan Book 290, Page 94 on December 26, 1974 (the “1974 Ladenburg Plan”). The 1974 Ladenburg Plan reconfigured lots 1, 2, and 8 through 28 as shown on the Scorton Dunes Plan. Lots 1 and 2 were combined to form a lot 7 (which would ultimately be divided again to form the Denardo and DeLoughrey Properties), and lot 8 (the Eudy Property) was renumbered as lot 10. The Plan names the ways as “Oak Place,” “Maple Place,” “Beach Way,” and “Cranberry Trail (formerly Carleton Road),” and appears to show Cranberry Trail as splitting at the “Park” and extending to either side of Maple Place, with Beach Way beginning somewhere along the renumbered lot 10.

At the time of the recording of the 1974 Ladenburg Plan, Curtin owned the lots shown as lots 1, 2, 8 through 12, and 17 through 28 on the Scorton Dunes Plan (lots 2 through 10 on the 1974 Ladenburg Plan), and lots 29, 30, 32, 33, 36, and 38 as shown on the Scorton Dunes Plan. Thus, at that time, among the lots owned by Curtin were the lots that would become the Eudy, DeLoughrey, Denardo, Sullivan, and Johnson Properties. Curtin’s lots continued to be conveyed after the recording of the 1974 Ladenburg Plan. In most of those conveyances, the deeds recited that the lots were conveyed with the right to use the ways as shown on the Scorton Dunes Plan or the 1974 Ladenburg Plan in common with all others legally entitled thereto, or similar language to the same effect. The Eudy, DeLoughrey, Denardo, Sullivan, and Johnson Properties were conveyed as follows.

The Eudy Property. By a deed dated July 8, 1978 and recorded in the registry at Book 2758, Page 129 on August 1, 1978, Curtin conveyed the Eudy Property (lot 8 on the Scorton Dunes Plan and lot 10 on the 1974 Ladenburg Plan) to William Stewart and Mary Ellen Stewart. The deed referred to the 1974 Ladenburg Plan. It states: “There is appurtenant to said lot the right to use the ways as shown on [the 1974 Ladenburg Plan] for all purposes for which ways are commonly used in the Town of Sandwich. There is appurtenant to said lot the right to use that area of the beach lying in front of Lot 7, as shown on [the 1974 Ladenburg Plan], between the low water mark and the place where the bottom of the beach bank slope meets the beach.” The deed further provides that the conveyed lot “is subject to” the Ladenburg Restrictions. Finally, the following paragraph appears on the deed but is crossed out:

The grantor reserves the right to grant as appurtenant to not more than fifty (50) of her lots, nine (9) of which are shown on the [1974 Ladenburg Plan], the right to use the ways as shown on said plan for all purposes for which ways are used in the Town of Sandwich, and the right to use that area of the beach lying in front of Lot 7, as shown on said plan, between the low water mark and the place where the bottom of the beach bank slope meets the beach.

As discussed above, by a deed dated and recorded in the registry at Book 13373, Page 031 on November 17, 2000, the Stewart Family Limited Partnership conveyed lot 10 as shown on the 1974 Ladenburg Plan, the Eudy Property, to Dan R. Eudy and Joanne L. Eudy. The deed recites: “Said premises are conveyed subject to and with the benefit of all rights, restrictions, reservations, easements, appurtenances and rights of way of record, insofar as the same are still in force and applicable.”

The DeLoughrey and Denardo Properties. By a deed dated and recorded in the registry at Book 3229, Page 315 on January 23, 1981, the administrators of the estate of Junia Curtin (the “Curtin Estate”) conveyed lots 1 and 2 as shown on the Scorton Dunes Plan (which included what would become the DeLoughrey and Denardo Properties) to Paul A. Kramer. For each of the lots, the deed recites that the lot is “[s]ubject to and with the benefit of all easements, restrictions and encumbrances of record and at law, if any there be,” and that “[t]here is appurtenant to said lot the right to use the ways and beaches as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways and beaches are commonly used in the Town of Sandwich.”

A plan entitled “Plan of Land in Sandwich, Mass. Scale: 1 Inch = 40 Feet January 9, 1981 C-898 Cape Cod Survey Consultants a Division of Boston Survey Consultants, Inc. 76 Enterprise Road Hyannis, Mass. Owner: Paul Kramer” (the “1st 1981 Kramer Plan”) was endorsed by the Sandwich Planning Board as approval not required on February 6, 1981 and recorded in the registry at Plan Book 349, Page 64 on February 11, 1981. The 1st 1981 Kramer Plan divides lots 1 and 2 as shown on the Scorton Dunes Plan (lot 7 on the 1974 Ladenburg Plan) into new lots 1 and 2, each of which has frontage on Beach Way. The 1st 1981 Kramer Plan shows not only the layout of Beach Way, but also the location of the actual way within the layout, marked as “Dirt Road (PRIVATE).” A plan dated December 21, 1981, entitled “Plan of Land in Sandwich, Mass. Prepared for Paul Kramer” (the “2nd 1981 Kramer Plan”) was endorsed by the Sandwich Planning Board as approval not required on January 6, 1982 and recorded in the registry at Plan Book 360, Page 37 on January 7, 1982. The 2nd 1981 Kramer Plan further divides the new lots 1 and 2 shown on the 1st 1981 Kramer Plan into lots 1A, 1B, 2A, and 2B. [Note 4] Lot 1A is the DeLoughrey Property, and Lot 2A is the Denardo Property. Each of those lots has frontage on Beach Way, which is again shown on the 2nd 1981 Kramer Plan with the location of the actual way within the layout marked as “Dirt Road (PRIVATE).”

The DeLoughrey Property. By a deed dated January 28, 1982 and recorded in the registry at Book 3430, Page 268 on February 2, 1982, Paul A. Kramer conveyed lot 1A as shown on the 2nd 1981 Kramer Plan, the DeLoughrey Property, to William P. Fenton and Wha Ja W. Fenton. The deed recites: “The granted premises are conveyed with the right, as appurtenant thereto, to use, in common with all others legally entitled thereto, the beach areas of Lots 2A and 2B as shown on [the 2nd 1981 Kramer Plan] for beach purposes, and to use said Beach Way and all other streets and ways shown on said plan, and all ways and beaches shown on [the Scorton Dunes Plan], for all purposes for which ways, streets and beaches are from time to time used in the Town of Sandwich.”

By a deed dated January 7, 1984 and recorded in the registry at Book 3991, Page 224 on January 19, 1984, William P. Fenton and Wha Ja W. Fenton conveyed lot 1A to Johan Willem Roell. The deed recites: “The above described premises are conveyed subject to and with the benefit of all rights, rights of way, easements, appurtenances, reservations and restrictions of record insofar as the same are in force and applicable.”

A handwritten “Certificate of Waiver,” executed by Ladenburg and dated October 15, 1987, was recorded in the registry at Book 5976, Page 303 on October 16, 1987. The Certificate of Waiver recites that Ladenburg waives the restrictions set forth in paragraph 2 of the Ladenburg Restrictions as they apply to lot 1A of the 2nd 1981 Kramer Plan, the DeLoughrey Property. Paragraph 2 of the Ladenburg Restrictions requires Ladenburg’s approval of any structure to be built on the lots subject to the Restrictions. By a deed dated the same day, October 15, 1987, and recorded in the registry at Book 5976, Page 304 on October 16, 1987, Johan Willem Roell conveyed lot 1A to John Namnoum. The deed recites: “The above described premises are conveyed subject to and with the benefit of all rights, rights of way, easements, appurtenances, reservations and restrictions of record insofar as the same are in force and applicable.”

By a deed dated and recorded in the registry at Book 8044, Page 002 on May 29, 1992, John Namnoum conveyed lot 1A to Ronald Wilson and Judith Ann Avnet. The deed recites: “The above described premises are conveyed subject to and with the benefit of all rights, rights of way, easements, appurtenances, reservations and restrictions of record insofar as the same are in force and applicable. Subject to and together with all rights, easements, restrictions, reservations and encumbrances of record.”

As discussed above, by a deed dated and recorded in the registry at Book 12972, Page 294 on April 27, 2000, Ronald Wilson and Judith Ann Avnet conveyed lot 1A, the DeLoughrey Property, to Thomas J. DeLoughrey and Judith M. DeLoughrey. The deed contains no recitals regarding easements, restrictions, or rights of way.

The Denardo Property. By a deed dated February 3, 1982 and recorded in the registry at Book 3471, Page 172 on April 28, 1982, Paul A. Kramer conveyed lot 2A as shown on the 2nd 1981 Kramer Plan, the Denardo Property, to Paul A. Kramer and Ibis C. Kramer. The deed recites: “The granted premises are conveyed with the right, as appurtenant thereto, to use in common with all others legally entitled thereto said Beach Way and all other streets and ways shown on [the 2nd 1981 Kramer Plan], and all ways and beaches shown on [the Scorton Dunes Plan], for all purposes for which ways, streets and beaches are from time to time used in the Town of Sandwich, and also the right as appurtenant thereto to use the beach area of the said Lot 2B for beach purposes only.”

By a deed dated August 23, 1984 and recorded in the registry at Book 4234, Page 337 on August 31, 1984, Ibis C. Kramer conveyed lot 2A, the Denardo Property, to John E. Denardo and Jeanne L. Denardo. The deed recites: “The granted premises are conveyed with the right, as appurtenant thereto, to use in common with all others legally entitled thereto said Beach Way and all other streets and ways shown on [the 2nd 1981 Kramer Plan], and all ways and beaches shown on [the Scorton Dunes Plan], for all purposes for which ways, streets and beaches are from time to time used in the Town of Sandwich, and also the right as appurtenant thereto to use the beach area of the said Lot 2B for beach purposes only.”

The Sullivan Property. By a deed dated and recorded in the registry at Book 4181, Page 143 on July 17, 1984, the Curtin Estate conveyed lot 36 as shown on the Scorton Dunes Plan, the Sullivan Property, to Thomas F. Shanley and Patricia M. Shanley. The deed recites: “Subject to and with the benefit of all easements and encumbrances of record. There is appurtenant to said lot the right to use the ways as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich.”

As discussed above, by a deed dated and recorded in the registry at Book 15327, Page 1 on July 1, 2002, Gabriele N. Sullivan conveyed lot 36 on the Scorton Dunes Plan, the Sullivan Property, to Derek D. Sullivan and Gabriele N. Sullivan. The record does not reflect the chain of title between the 1984 conveyance of lot 36 to the Shanleys and the conveyance to Gabriele N. Sullivan. The deed recites that Gabriele N. Sullivan’s title comes from a deed recorded in the registry at Book 15304, Page 208. The deed further recites: “There is appurtenant to said lot the right to use the ways as shown on [the Scorton Dunes Plan] in common with others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich. The above premises are conveyed subject to and with the benefit of any and all rights, rights of way, easements, reservations and restrictions of record insofar as the same may be in force and applicable.”

The Johnson Property. By a deed dated November 2, 1988 and recorded in the registry at Book 6507, Page 201 on November 3, 1988, the Curtin Estate conveyed lots 32 and 33 as shown on the Scorton Dunes Plan, the Johnson Property, to Richard L. Ladenburg, Trustee under the Will of Junia H. Curtin. The deed recites that the conveyance is made “together with the right to use all ways as shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Subject to and with the benefit of all easements, restrictions and encumbrances of record.”

As discussed above, by a deed dated April 11, 2003 and recorded in the registry at Book 16745, Page 283 on April 14, 2003, Julie C. Molloy, Trustee of trust created under the will of Junia H. Curtin, conveyed lots 32 and 33 as shown on the Scorton Dunes Plan, the Johnson Property, to Van Johnson and Catherine Johnson. The conveyance is made “together with the right to use all ways shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto. Subject to and with the benefit of all easements, restrictions and encumbrances of record.”

Discussion

The question presented in these cross-motions is whether the Sullivans and Johnson have deeded, record rights to use Beach Way and other ways shown on the Scorton Dunes Plan and to use the beach that sits on Beach Way and in front of the Denardo Property. [Note 5] Record rights to use those ways and that beach, if any, are to be found in the chain of title of DeLoughrey, the Denardos, the Eudys, the Sullivans, and Johnson. Such rights would take the form of an easement—that is, “an interest in land which grants to one person the right to use or enjoy land owned by another.” Commercial Wharf E. Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). Deeded rights to use Beach Way and the other ways are easements because these ways are privately owned. Under the Derelict Fee Statute, each owner of a lot shown on the Scorton Dunes Plan owns the fee in the portion of the way abutting his or her lot to the centerline of the way. G.L. c. 183, § 58. It is the burden of the Sullivans and Johnson, as the parties claiming the benefit of the easement, to demonstrate that the deeds create the claimed easements. Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 684 (2012); Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66 (2009).

The principles for interpreting the deeds and other instruments in the chain of title are similar to those for interpreting contracts. Estes v. DeMello, 61 Mass. App. Ct. 638 , 642 (2004). The meaning of the deed, “derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). Any interpretation should give reasonable meaning to all the provisions of the deed rather than leave some part of the deed useless or inexplicable. Estes, 61 Mass. App. Ct. at 642.

Rights in Beach Way Abutting the DeLoughrey and Denardo Properties. The grants in the chain of title of DeLoughrey, the Denardos, the Sullivans, and Johnson express the intent and the authority to grant each of these lot owners the right to use the ways shown on the Scorton Dunes Plan, including Beach Way, in common with others. The lots at issue were all conveyed to the common grantor Ladenburg by the 1968 Curtin Deeds. Those deeds conveyed the lots “together with the right to use all ways shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto.” This language created an easement appurtenant to all the lots to use the ways on the Scorton Dunes Plan, including Beach Way.

“The principle of construction governing the interpretation of deeds is that where mention is made of an easement as an incumbrance or as an appurtenance of the land conveyed and reference is made in the deed to a plan, the plan must be considered as a part of the deed, so far as is necessary to aid in description and identification of the easement.” Dubinsky v. Cama, 261 Mass. 47 , 53 (1927); see Labounty v. Vickers, 352 Mass. 337 , 344 (1967). Thus, a conveyance that includes the right to use a way shown on a specified plan in common with others grants and reserves an easement to use that way for the benefit of all the lots shown on the plan that are held or conveyed by the common grantor. Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 50-51 (1980); Sova v. Randazza, 13 LCR 425 , 427 (2005).

The Canton Highlands decision is instructive. In that case, a certificate of title to a lot in a subdivision made a parcel subject to the right to use the streets and ways shown on the registration plan (referred to as the "K plan") in common with others, and another parcel was granted the right to use those streets and ways. Canton Highlands, Inc., 9 Mass. App. Ct. at 50. The lot subject to the right was sold to the defendant subject to easements of record. Id. The Appeals Court held that the owners of the benefited lot possessed “rights in the way by reason of an express grant referenced to a plan which clearly delineates the length and breadth of the easement. . . . The judge correctly ruled that the grant was unambiguous in its terms and that the easement granted was precisely formulated on the K plan.” Id. at 51. Here, as in Canton Highlands, the grantor made all the lots subject to the right to use ways in common with others, with reference to a plan showing the ways that is incorporated into the deed. All the lots conveyed in the 1968 Curtin Deeds, including the lots at issue, were granted with and were subject to the right to use the ways shown on the Scorton Dunes Plan, including Beach Way.

Because the 1968 Curtin Deeds also vested title to the relevant lots in a common owner, Ladenburg, this easement to use the ways in common with others merged with respect to the DeLoughrey, Denardo, Sullivan, and Johnson Properties. Williams Bros., 81 Mass. App. Ct. at 684; Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 498 (2008). The easement could not be revived by simply severing the dominant and servient estates; it had to be granted anew when the estates were conveyed. Williams Bros., 81 Mass. App. Ct. at 684-685; Cheever v. Graves, 32 Mass. App. Ct. 601 , 607 (1992). Here, the easement to use the ways was unambiguously granted anew in subsequent conveyances with respect to nearly all of the lots conveyed to Ladenburg in the 1968 Curtin Deeds, including the DeLoughrey, Denardo, Sullivan, and Johnson Properties. In the December 24, 1973 conveyance of lots 9, 10, 17, 18, 21, and 22, the May 31, 1974 conveyance of lots 13, 14, and 15, and the July 5, 1974 conveyance of lots 35 and 37, Ladenburg included language conveying the lots together with the right to use all the ways shown on the Scorton Dunes Plan in common with others for all purposes for which ways are commonly used. Ladenburg included language to the same effect in the 1974 Ladenburg-Curtin Deeds and the 1974 Confirmatory Ladenburg-Curtin Deeds, which included lots 1, 2, 8, 32, 33, and 36—all the lots at issue here.

The Curtin Estate conveyed what are now the DeLoughrey and Denardo Properties, then lots 1 and 2 on the Scorton Dunes Plan, to Paul Kramer in 1981. That conveyance specifically provided that the lots had the benefit of “the right to use the ways and beaches as shown on [the Scorton Dunes Plan] in common with all others legally entitled thereto for all purposes for which ways and beaches are commonly used in the Town of Sandwich.” This grant was sufficient to give those properties the right to use the ways on the Scorton Dunes Plan, including Beach Way, and to reserve to the other lots still held by the Curtin Estate, including the Sullivan and Johnson Properties, the right to use those ways. Subsequent conveyances of those lots either repeat the grant or convey the lot subject to existing rights and encumbrances. In any event, subsequent deeds conveyed these rights and encumbrances, including the right and reservation of use of the way, as a matter of law. G.L. c. 183, § 15.

The 1984 conveyance of the Sullivan Property from the Curtin Estate to Thomas and Patricia Shanley also contained the same or similar grant of the right to use the ways on the Scorton Dunes Plan: “There is appurtenant to said lot the right to use the ways as shown on said plan in common with all others legally entitled thereto for all purposes for which ways are commonly used in the Town of Sandwich.” This grant was repeated in the 2002 conveyance to the Sullivans. The 1988 conveyance of the Johnson Property from the Curtin Estate to Ladenburg as trustee under the will of Junia Curtin also contained the grant of rights in the ways, conveying the Property “together with the right to use all ways shown on [the Scorton Dunes Plan] for all purposes for which said ways are commonly used, said right to be exercised in common with all others lawfully entitled thereto.” The subsequent grant to Van and Catherine Johnson included the same grant.

In short, the record title for the DeLoughrey, Denardo, Sullivan, and Johnson Properties contains explicit grants of the right to use the ways shown on the Scorton Dunes Plan, including Beach Way. This grant is for the benefit of those properties, and burdens those properties with respect to any portion of a way that is part of each property’s title under the Derelict Fee Statute. This easement means that the Sullivans and Johnson have the right to pass over Beach Way, including that portion of Beach Way that abuts the Denardo and DeLoughrey Properties.

This easement also means that the Sullivans and Johnson have the right to use the beach on that portion of Beach Way that extends to Cape Cod Bay. As described above, the 1981 deed conveying lots 1 and 2 to Paul Kramer included the right to use the beaches shown on the Scorton Dunes Plan “in common with all others legally entitled thereto for all purposes for which ways and beaches are commonly used in the Town of Sandwich.” This grant expresses the intent of the grantor to include the right to use the beach portion of Beach Way in the easement to use Beach Way. “Where, as here, a strip is laid out to the high water mark . . . it is a reasonable inference that the grantor who reserved the easement intended to put the land so reserved to a use which was natural for the type of land reserved.” Labounty, 352 Mass. at 345. This easement extends only to that portion of the beach that is included in the layout of Beach Way; that is, the easement to use the beach is the width of and in the location of Beach Way as shown on the Scorton Dunes Plan.

It is impossible on this record, however, to determine if the Sullivans and Johnson have the right to park on Beach Way. The various grants of the right to use Beach Way provide, for the most part, that it may be used for all purposes for which ways are used in the Town of Sandwich. The Sandwich Traffic Rules & Orders (“Traffic Rules”) state that no parking is permitted “[u]pon the roadway in a rural or sparsely settled district.” Traffic Rules Art. IV, § 1(d). Beach Way—indeed all the property shown on the Scorton Dunes Plan—appears from the record and the Zoning Map, Town of Sandwich, Massachusetts, to be in the R-2 zoning district. According to the Town of Sandwich Protective Zoning By-Law (“By-Law”), the purpose of the R-2 district is to “provide for low-density residential environment in areas of good accessibility while protecting the quality of air, surface water and ground water of the area.” By-Law § 2140. Plaintiffs have argued that this purpose means that the R-2 district is “a rural or sparsely settled district.” Traffic Rules Art. IV, § 1(d). The court cannot, as a matter of law, conclude that all property in the R-2 district is rural or sparsely settled as defined in the Traffic Rules. Whether a particular area is rural or sparsely settled so that parking is not permitted depends on the characteristics of that area, and is an issue of disputed fact that cannot be resolved on summary judgment.

Rights in Beach Way Abutting the Eudy Property. Based on the record title, there is an issue of fact as to the right to use the portion of Beach Way abutting the Eudy Property that is owned by the Eudys (i.e., half of its width, see G.L. c. 183, § 58). On July 8, 1978, before the Curtin Estate conveyed the DeLoughrey and Denardo Properties, Curtin conveyed the Eudy Property to William and Mary Ellen Stewart. The deed for the conveyance contains several provisions. It grants the right to use the beach lying in front of lot 7 of the 1974 Ladenburg Plan (lots 1 and 2 of the Scorton Dunes Plan). It provides: “There is appurtenant to said lot the right to use the ways as shown on [the 1974 Ladenburg Plan] for all purposes for which ways are commonly used in the Town of Sandwich,” a grant that does not include the language “in common with others lawfully entitled thereto” or its equivalent. It also provides that the property “is subject to restrictions recorded at said Registry of Deeds in Book 2081, Page 220,” i.e., the Ladenburg Restrictions. Finally, it contains the following reservation which is crossed out on the deed:

The grantor reserves the right to grant as appurtenant to not more than fifty (50) of her lots, nine (9) of which are shown on [the 1974 Ladenburg Plan] the right to use the ways as shown on said plan for all purposes for which ways are used in the Town of Sandwich, and the right to use that area of the beach lying in front of Lot 7, as shown on said plan, between the low water mark and the place where the bottom of the beach bank slope meets the beach.

These multiple references to grants of rights in the way, both expressly in the deed and in the Ladenburg Restrictions incorporated into the deed, combined with the reservation of rights to use the ways that is crossed out, create an ambiguity as to what rights to use the ways the grantor intended to grant and reserve. The grant to use the ways shown on the 1974 Ladenburg Plan does not reserve the same right to all others legally entitled thereto. The Ladenburg Restrictions contain an easement to use the ways, but the express reservation of an easement to use the ways in the deed is struck. It may be that the grantor struck that language because the same reservation is contained in the Ladenburg Restrictions, but it may also be that the language was struck because the grantee would not agree to such a reservation. In other words, the deed is ambiguous because its “terms are inconsistent on their face or . . . the phraseology can support reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken.” Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726 , 729 (1999), quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989); see Estes, 61 Mass. App. Ct. at 642 (principles for interpreting deeds similar to those for interpreting contracts).

This ambiguity creates an issue of fact as to the intent of the grantor that cannot be resolved on summary judgment. See, e.g., Regis Coll., 462 Mass. at 293-294 (questions requiring the weighing of conflicting evidence and the drawing of inferences not susceptible to summary judgment). Title to the Eudy Property includes title to the centerline of the portion of Beach Way abutting the Property. G.L. c. 183, § 58. Thus, at this stage of the case, there is an issue of fact as to whether the Sullivans and Johnson have the right to use the half of Beach Way abutting the Eudy Property.

The Ladenburg Restrictions. The Ladenburg Restrictions contain both a series of restrictions and a series of easements. See Reagan v. Brissey, 446 Mass. 452 , 461-462 (2006) (right to use land is an affirmative easement, not a restriction); Labounty, 352 Mass. at 347-348 (affirmative easement distinguished from restriction because easement does not preclude the right to use land). The easements include, in relevant part, the right to use “Cranberry Trail” to the beach, the right to use the beach in front of lots 1 and 2 on the Scorton Dunes Plan, and the right to use the ways shown on the Scorton Dunes Plan in common with others for all purposes for which streets may now or hereafter be used in the Town of Sandwich. At issue in these cross-motions is whether these easements burden the Eudy, DeLoughrey, and Denardo Properties for the benefit of the Sullivan and Johnson Properties. As discussed above, there is an ambiguity as to whether the easements in the Ladenburg Restrictions burden the Eudy Property, notwithstanding that they are referenced in the 1978 deed to the Stewarts. There are also issues of fact as to whether the easements in the Ladenburg Restrictions burden the DeLoughrey and Denardo Properties.

The Ladenburg Restrictions are not separately indexed in the registry; rather, they are recorded immediately following the Ladenburg Deed. Because the Ladenburg Restrictions immediately follow the Ladenburg Deed and are unsigned, and because the recording date stamp for both the Ladenburg Deed and the Ladenburg Restrictions appears on the last page of the Ladenburg Restrictions, it is clear that the Ladenburg Restrictions were intended to be incorporated in and recorded as part of the Ladenburg Deed. What is less clear is whether this way of recording the Ladenburg Restrictions put the public sufficiently on notice so that a reasonable title examiner would find the Restrictions in the examination of a chain of title in which the Restrictions were not otherwise referenced and conclude that the Restrictions applied to all properties on the Scorton Dunes Plan then held by Ladenburg. The affidavits from the parties’ various title experts draw different conclusions. This question is rendered moot, at least with respect to the properties at issue in this case, by the 1974 Confirmatory Ladenburg-Curtin Deeds, which explicitly incorporate the Ladenburg Restrictions in the grant to Curtin of the remaining lots on the Scorton Dunes Plan. It does not matter that this deed purports to be a confirmatory deed of the grant contained in the 1974 Ladenburg-Curtin Deeds. From the record, it appears that Curtin did not convey any lots between the 1974 Ladenburg-Curtin Deeds and the 1974 Confirmatory Ladenburg-Curtin Deeds.

A more important issue is whether the lots conveyed by Curtin and her estate are subject to the easements in the Ladenburg Restrictions even if the deeds for those conveyances do not expressly incorporate the Restrictions. Because Curtin owned both the burdened and benefited lots by virtue of the 1974 Confirmatory Ladenburg-Curtin Deeds, the easements in the Ladenburg Restrictions would appear to have merged and could only be revived by an explicit grant when the individual lots were conveyed. Williams Bros., 81 Mass. App. Ct. at 684-685; Cheever, 32 Mass. App. Ct. at 607. There is no such explicit grant in the 1981 deed from the Curtin Estate conveying the DeLoughrey and Denardo Properties to Paul Kramer. That deed does state that the lots are granted “[s]ubject to and with the benefit of all easements, restrictions and encumbrances of record and at law, if any there be.” Moreover, it appears that the then-owner of the DeLoughrey Property considered himself bound by the restrictions in the Ladenburg Restrictions, as he obtained a waiver of the construction restrictions in 1987. Whether this reference is sufficient to incorporate the Ladenburg Restrictions into the grant, or whether the waiver is sufficient evidence that all parties understood the easements in the Ladenburg Restrictions to apply to their properties, requires the drawing of inferences as to the intent of the grantor that are precluded in this motion for summary judgment. [Note 6] See Regis Coll., 462 Mass. at 293-294.

The Sullivans and Johnson have argued that the Ladenburg Restrictions create a “common scheme” for the parcels owned by Ladenburg and shown on the Scorton Dunes Plan that includes the right of all owners to use the ways and the beach shown on the plan. Such a common scheme is an implied easement, and whether a set of restrictions and easements creates a common scheme is a question of the presumed intent of the parties, as found in the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the properties, and the knowledge the parties had or with which they are chargeable. Reagan, 446 Mass. at 458; Houghton v. Johnson, 71 Mass. App. Ct. 825 , 833-834 (2008). These are questions of fact that turn on factors specific to each case. For example, in Reagan, the court looked to the presence of parks in the original subdivision plan, the reference to the plan in plaintiffs’ deeds, and the language of advertisements at the time of the original marketing of the lots; whereas in Houghton, the court found that the absence of these elements meant there was no discernible pattern of an intent to create a common scheme. Compare Reagan, 446 Mass. at 459-460, and Houghton, 71 Mass. App. Ct. at 834-835. There are insufficient undisputed facts in the record to support a conclusion that the Ladenburg Restrictions were intended to form a common scheme, especially as such a conclusion would require drawing inferences in favor of the Sullivans and Johnson. Whether the Ladenburg Restrictions burden the Eudy, DeLoughrey, and Denardo Properties for the benefit of the Sullivan and Johnson Properties is a disputed issue of fact that precludes summary judgment. See Regis Coll., 462 Mass. at 293-294.

Conclusion

For the foregoing reasons, the Sullivan summary judgment motion and the Johnson summary judgment motion are hereby ALLOWED IN PART, and it is ORDERED AND DECLARED that the Sullivans and Johnson have the deeded record right to use Beach Way, in common with others for purposes for which ways in the Town of Sandwich are used, along the portion of Beach Way as shown on the Scorton Dunes Plan abutting the DeLoughrey and Denardo Properties or owned by DeLoughrey and Denardo, including the right to use the portion of the beach that is within the layout of Beach Way. The remainder of the Sullivan summary judgment motion and the remainder of the Johnson summary judgment motion are hereby DENIED. The DeLoughrey/Eudy summary judgment motion and the Denardo summary judgment motion are hereby DENIED. A telephone status conference is set down for July 31, 2012 at 10:00 a.m. to discuss further proceedings in these consolidated cases.

SO ORDERED.