KENNETH J. CLARK and BARBARA C. PIERCE, v. KRISHA PLAUCHE, MATTHEW PLAUCHE, GRAHAM R. MACKENZIE, GERTRUDE E. MACKENZIE, RUSSELL F. MUNROE, JR., DAVID A. GRIDLEY, JILL GRIDLEY, HEATHER A. FITZGERALD, TIMOTHY M. FITZGERALD, and THE TOWN OF MARBLEHEAD.

On July 23, 2009, Plaintiffs Kenneth J. Clark and Barbara C. Pierce (Plaintiffs) initiated this action by filing a complaint seeking to assert their purported right to pass and re-pass over a way known as “Clark Lane” and to install utilities in and along the way. Clark Lane, a private way in Marblehead, is comprised of both registered and unregistered land. All parties to this action have stipulated that Defendants Matthew Plauche and Krisha Plauche (Plauches), own the fee interest in both the unregistered and the registered portions of Clark Lane. [Note 1] Accordingly, the issue left for trial between Plaintiffs and the Plauches was whether Plaintiffs’ two lots benefit from an easement over Clark Lane.

A one-day trial was held on February 16, 2011, at which this court heard the testimony of one witness: Barbara Clark Pierce. Thirty-one (31) exhibits were entered in evidence, and one diagram with notations made at trial was marked as Chalk A. [Note 2] Based on all of the credible evidence, the reasonable inferences drawn therefrom, and in light of the parties’ post-trial filings, this court finds the following material facts:

1. Plaintiff Kenneth J. Clark resides at 270 Termino Avenue, Long Beach, California.

2. Plaintiff Barbara C. Pierce resides at 15 South Main Street, Topsfield, Massachusetts.

3. Defendants Matthew Plauche and Krisha Plauche reside at 2 Clark Lane, Marblehead.

Current Lot Ownership and Configuration [Note 3]

4. Plauches own the fee interest in both the unregistered and registered portions of the disputed way (Clark Lane), as shown on Land Court Plan 26906-B (B Plan). Clark Lane is labeled “Way” on the B Plan. As shown, it is approximately 25 feet in width and runs perpendicular to and is accessible from West Shore Drive, a public way, at its western terminus. Clark Lane runs east/west for approximately 400 feet between West Shore Drive and its easterly boundary line, which is land now owned by the Town of Marblehead, on which the Marblehead Middle School is located (School Parcel). All of the individual parties’ lots have frontage on Clark Lane. The most easterly portion of Clark Lane runs between and separates Plaintiffs’ two lots before terminating at the School Parcel, formerly the Robinson Land.

5. Plaintiffs acquired ownership of two parcels of land, both of which are unregistered, as tenants in common, through a Deed of Loring E. Clark Sr., and Gladys M. Clark, dated May 18, 1994, recorded with the Essex South District Registry of Deeds in Book 12602, at Page 273 (Clark/Pierce Deed). [Note 4] The Clark/Pierce Deed provides that the two described parcels were conveyed:

“[t]ogether with a right of way in and over a twenty-five (25) foot strip of land now or formerly of Ruth E. Mann, extending from land now or formerly of Robinson Northwesterly about one hundred (100) feet, and situated between the above parcels.”

6. The Plauches are the registered owners of Lots 3 and 4 shown on the B Plan under Transfer Certificate of Title No. 79603, issued by the Southern Registry District of Essex County (Plauche Certificate). [Note 5]

7. Lot 3 is a parcel of land fronting on Clark Lane on which the Plauches’ home is now located. The Plauche Certificate describes Lot 3 through a bounded description and provides:

“[t]here is appurtenant to [lot 3] a right of way and utility rights over said lot 4 shown as way, as described in a deed from George H. Clark, Jr. et ux to Robert E. Schramm et ux, dated October 28, 1971, and filed as Document #139650 in said Registry.”

8. Lot 4(a/k/a Clark Lane) is labeled as “Way” on the B Plan and is described on the Plauche Certificate after which the Plauche Certificate provides:

“[l]ot 4 is subject to the rights of all persons entitled thereto in and over the same, and to rights as set forth in two grants by Ruth E. Mann, one to James A. Spellman, dated August 13, 1928, duly recorded in Book 2776, Page 259, and the other to Loring E. Clark et ux, dated December 13, 1949, duly recorded in Book 3711, Page 406 in said Registry.”

The Plauche Certificate also provides, with respect to Lot 4:

“[t]here is appurtenant to the above described land the right to use the whole of said way, approximately shown on said plan, in common with all other persons lawfully entitled thereto.”

Relevant History of Land Ownership

9. By deed dated November 14, 1923, recorded in Book 2579, at Page 516, Luke B. Colbert, Administrator of the Estate of John F. Power, conveyed a parcel of land to Ruth E. Mann, which was identified as “that portion of the ‘Harris Farm’ so called, which was set off to Samuel T. Harris Estate, in the partition of real estate of Richard T. Harris, deceased” (Mann Parcel). All of the land involved in this litigation, including the Plauches’ lot, Plaintiffs’ lots, and Clark Lane, was at one time located within the Mann Parcel and owned by Ruth E. Mann. [Note 6]

10. By deed dated August 13, 1928, recorded in Book 2776, at Page 259, Ruth E. Mann conveyed to James A. Spellman a parcel of land out of the Mann Parcel, together with “a right of way on the Northeast side of the above named parcels 25 feet wide extending to a road known as Harris Farm Road (Mann Deed).” [Note 7]

11. By deed dated December 13, 1949, recorded in Book 3711, at Page 406, Ruth E. Mann conveyed to Loring E. Clark Sr., and Gladys M. Clark two parcels of land out of the Mann Parcel (Clark/Pierce Root Deed). The parcels were described as the “land as shown on a plan entitled “Marblehead, Mass. Land off Village St., R. O. Burlingham,” dated October 1949, and filed with the Pierce/Clark Root Deed as Plan 832.

12. The Clark/Pierce Root Deed stated that the two parcels were conveyed:

“[t]ogether with a right of way in and over a twenty-five (25) foot strip of land of the grantor, extending from land now or formerly of Robinson Northwesterly about one hundred (100) feet, and situate between the above described parcels.” [Note 8]

13. In 1958, in Case No. 26906, Harry D. Mann registered two lots of land, shown as Lots 1 and 2 on Plan 26906-A. The Registration Decree described Lots 1 and 2 through meets and bounds descriptions and set the boundaries of the lots in accordance with Plan 26906-A, entitled “Plan of Land in Marblehead, W. T. Foss Co. – Engineers,” dated August 6, 1956, filed February 10, 1958, with the original Certificate of Title No. 27186. The Registration Decree provided:

“[s]o much of said lot 2 as is included within the limits of the way twenty-five (25) feet wide, approximately shown on said plan, is subject to the rights of all persons lawfully entitled thereto in and over the same, and to rights as set forth in two grants made by Ruth E. Mann, one to James A. Spellman, dated August 13, 1928, duly recorded in Book 2776, Page 259, and the other to Loring E. Clark et ux, dated December 13, 1949, duly recorded in Book 3711, Page 406 in said Registry.”

The Registration Decree further provides with respect to Clark Lane:

“[t]here is appurtenant to said lot 2 the right to use the whole of said way, approximately shown on said plan, in common with all other persons lawfully entitled thereto.”

14. In 1959, Lot 2 was further divided into lots 3, 4, 5, and 6, in accordance with the plan entitled “Subdivision Plan of Land in Marblehead, Walter T. Foss, Surveyor,” dated November 25, 1959, and filed with Certificate of Title No. 29107 on December 11, 1959.

* * * * *

Clark Lane is approximately twenty-five feet wide and runs east/west for approximately 400 feet between a public way which is now known as West Shore Drive at its western terminus and the School Parcel at its eastern terminus. [Note 9] Both of Plaintiffs’ lots abut the School Parcel on their easterly boundary line and have frontage on Clark Lane, which runs between the two lots before terminating at the School Parcel. Notwithstanding the Plauches’ ownership of the fee interest in both the recorded and registered portions of Clark Lane, Plaintiffs claim they have the right to pass and re-pass over the whole of Clark Lane in order to gain access to West Shore Drive, a public way.

Plaintiffs argue that the Clark/Pierce Root Deed confers upon them an express right or easement to use the whole of Clark Lane. Alternatively, Plaintiffs maintain that their lots benefit from an easement over Clark Lane because there were facts available to the Plauches at the time of their purchase which should have led them to discover that their properties were subject to an encumbrance benefiting Plaintiffs’ lots, even though that encumbrance was not specifically listed on the Plauches’ Certificate of Title. [Note 10] Conversely, the Plauches contend that their registered land is not encumbered by an easement, and, to the extent that the Clark/Pierce Root Deed granted Plaintiffs easement rights, those rights are strictly limited to the right to access the area of Clark Lane located between Plaintiffs’ two parcels.

As the party asserting the right to use the entire length of Clark Lane, Plaintiffs bear the burden of proving that their property has an appurtenant right in and over Clark Lane. See Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990) (stating that the party asserting the easement carries the burden of proving its existence), as well as the “nature and extent” of the easement rights. See Levy v. Reardon, 43 Mass. App. Ct. 431 , 434 (1997). Under G. L. c. 185, § 46, a holder of a certificate of title takes “free from all encumbrances except those noted on the certificate.” G. L. c. 185, § 47 expressly provides that, when land is registered, the judgment of registration “shall set forth . . . all particular . . . easements . . . to which the land or owner’s estate is subject.” Additionally, under G. L. c. 185, § 53, “[n]o title to registered land, or easement, or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land.”

As noted above, the Plauche Transfer Certificate provides that “lot 4 is subject to the rights of all persons lawfully entitled thereto in and over the same….” While this general reference would have put the Plauches on notice that others might have rights in Clark Lane, a general reference of this sort indicating the existence of easement rights, standing alone, is too vague to fulfill the requirement that encumbrances be expressly noted on the certificate of title; the language does not give prospective purchasers any indication of the identity or extent of the dominant and servient estates. See Jackson v. Knott, 418 Mass. 704 , 710 (1994) (holding that general references in a certificate are insufficient to establish an express easement).

However, the Plauche Certificate does not stop with this general reference, but continues “lot 4 is subject to the rights of all persons lawfully entitled thereto . . . and to rights as set forth in two grants by Ruth E. Mann, one to James A. Spellman, dated August 13, 1928 duly recorded in Book 2776, Page 259 and the other to Loring E. Clark et ux, dated December 13, 1949 duly recorded in Book 3711, Page 406 in said Registry” (emphasis added). The general references to the rights of others in Clark Lane noted on the Plauche Certificate, taken in conjunction with the explicit reference on the certificate to the Clark/Pierce Root Deed, is sufficient to satisfy G. L. c. 185, §§ 46 and 47, as to persons claiming under that deed. See Myers v. Salin, 13 Mass. App. Ct. 127 , 136-37 (1982) (finding that where the servient certificate of title contained a general reference to the existence of easements and an explicit reference to deeds containing beach rights and a right of way, the requirements of G. L. c. 185, §§ 46 and 47 were satisfied).

In Myers, Defendants argued that the provisions on their certificate of title did not refer sufficiently to the easement asserted by Plaintiffs, who derived their title from the so-called Whittington deeds that were unregistered and specifically referenced on Defendant’s certificate of title. [Note 11] The court held in Plaintiffs’ favor, explaining:

“[m]ore specific reference in the certificate to the asserted easements would have been desirable and appropriate. The defendants, however, were given constructive notice by the certificate that successors-in-title to the properties conveyed by the Whittington deeds might have claims to a right of way to beach rights, and they had actual notice of the plaintiffs’ interests if they had read, as they should have, the Whittington deeds in their entirety.”

Id. at 137.

The facts are similar here. The Plauche Certificate charged the Plauches with constructive notice that the successors-in-title to the property conveyed by the Clark/Pierce Root Deed might have claims to a right of way over Clark Lane. See Myers, 13 Mass. App. Ct. at 136. Defendants were on notice that their land might be subject to appurtenant rights of way benefiting others and were directed to the Mann Deed. The reference is sufficient to put the Plauches on notice. Further, if the Plauches read the Clark/Pierce Root Deed in its entirety, they would have had actual notice that the grantees in that deed benefited from “a right of way in and over a twenty-five (25) foot strip of land of the grantor, extending from land now or formerly of Robinson Northwesterly about one hundred (100) feet, and situate between the above described parcels.” In addition, the Plauches’ Certificate referenced a plan on which Clark Lane was shown as Lot 4. The back title is not crystal clear, as the Mann Deed references a plan and a right of way which is not shown on the plan. Nonetheless, the description taken together with the plan and the grant of rights in the way leads to what was in fact Clark Lane.

Accordingly, the general reference to rights of others in Clark Lane, combined with the precise reference to the Clark/Pierce Root Deed, provided the Plauches with adequate notice that Lot 4 was subject to the rights of those individuals claiming ownership under Clark/Pierce Root Deed. [Note 12] The question therefore becomes what rights the Clark/Pierce Root Deed created. Plaintiffs maintain the deed bestows upon them the right to use the whole of Clark Lane while the Plauches argue that to the extent that the Clark/Pierce Root Deed grants Plaintiffs easement rights, those rights are strictly limited to the right to access the area of Clark Lane located between Plaintiffs’ two parcels.

Plaintiffs and Defendants in this action derive their titles from a common grantor, Ruth E. Mann, who owned a large parcel of land as shown on a “Plan of Land in Marblehead, Mass. owned by R.E. Mann,” dated July, 1928 (1928 Plan). Through the Clark/Pierce Root Deed, Ruth Mann conveyed Plaintiffs’ predecessors-in-title their property “as shown on a plan entitled ‘Marblehead, Mass. Land off Village St., R. O. Burlingham’” (1949 Plan). The 1949 Plan depicted Clark Lane as a way located between the two conveyed lots with its eastern terminus at the Land of Robinson and extending northwesterly somewhat beyond the portion abutting the two lots conveyed, but the full northwesterly extension of the way was not plotted. As noted above, the two parcels were conveyed to Plaintiffs’ predecessors together “with a right of way in and over a twenty-five (25) foot strip of land of the grantor, extending from land now or formerly of Robinson Northwesterly about one hundred (100) feet, and situate between the above described parcels.”

It is a “familiar rule,” at least in the context of unregistered land, that “when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.” Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677 (1965) (quoting Casella v. Sneirson, 325 Mass. 85 , 89 (1949)) (hereinafter “easement by estoppel”). This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently defined as a proposed street. Murphy, 348 Mass. at 678. See also Lane v. Zoning Bd. of Appeals of Falmouth , 65 Mass. App. Ct. 434 , 437 (2006) (finding an easement by estoppel over registered land).

The Plauches, who claim title to their lots through Ruth Mann, are estopped from denying the obvious intention shown by the plan used in the 1949 conveyance from Ruth Mann to Plaintiffs’ predecessors that the parties intended to use the way on which the lots front to access the interior lots. This court holds that Plaintiffs’ easement rights are not strictly limited to the right to access the area of Clark Lane located between Plaintiffs’ two parcels, but rather embraces the entire length of the Clark Lane. This court notes that a plan showing the line of a road extending beyond the land conveyed does not automatically indicate a reservation of rights for the remaining land. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 68 (2009) (internal citations omitted). However, the parties to the Clark/Pierce Root Deed would have had available to them the 1928 Plan depicting all of Ruth Mann’s property and showing that the way, left open-ended on the 1949 Plan, continues to extend northwesterly granting the interior lots fronting the way access to the road that is now known as West Shore Drive. See Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725 , 728 (1971) (lot owner’s rights in way that continues into abutting property not fully shown on plan may be proved with extrinsic evidence of the intent of the parties).

There were facts available to Defendants at the time of their purchase that would have led a reasonable purchaser to discover that Clark Lane was subject to rights held by Plaintiffs. Even if an easement “is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system [“First Jackson Exception”]; or (2) if the purchaser has actual knowledge of a prior unregistered interest.” Jackson v. Knott, 418 Mass. 704 , 711 (1994).

Decisions of the Appeals Court subsequent to Jackson have held that when the First Jackson Exception is triggered, and a reasonable purchaser is prompted to investigate other documents within the registration system, a purchaser need not uncover an express easement for the exception to have relevance. Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 438 (2006); Duddy, 75 Mass. App. Ct. at 67. More specifically and informative to the issue before this court, the application of the rule establishing an easement by estoppel has been applied to registered land under circumstances similar to those presented here. See Lane, 65 Mass. App. Ct. at 437-38 (internal citations omitted).

When the Plauches purchased their property in May 2006, they would have seen the general encumbrance language subjecting Clark Lane to rights held by “all persons lawfully entitled thereto” as well as to the rights “as set forth in [the] grant by Ruth E. Mann . . . to Loring E. Clark et ux, dated December 13, 1949… .” They also would have been aware that their Transfer Certificate referenced the B Plan, depicting Clark Lane as providing access from West Shore Drive to the interior lots fronting Clark Lane as shown on the plan. Finally, they would have seen that their Transfer Certificate described, as appurtenant to their lot, a “right to use the whole of said way, approximately shown on said plan, in common with all other persons lawfully entitled thereto.” These circumstances would have triggered the First Jackson Exception, as these facts would have prompted a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system to determine both their own rights and whether others have rights in Clark Lane.

Also, there were references on the Plauche Certificate which would have led a reasonable purchaser to review the Clark/Pierce Root Deed. The Plauche Certificate was replete with references to the Clark/Pierce Root Deed and the ownership of Clark Lane was clearly subjected to the the rights as established by the deed. It is well settled that under the First Jackson Exception a reasonable purchaser is “obligated to review only documentation within the registration system because to require a purchaser to investigate facts not documented within that system would be directly contrary to the purposes of the Land Registration Act.” Jackson, 418 Mass. at 711. However, the Pierce/Clark Root Deed was no secret to the Plauches who were directed to it by their own Transfer Certificate of Title. Under the circumstances of this case, a reasonable prospective purchaser would have reviewed the referenced deed, especially after reviewing the B Plan and becoming aware that there were interior lots fronting Clark Lane which may have access rights. Plaintiffs, who derive their title through the Clark/Pierce Root Deed, would have been identifiable to the Plauches at the time of their purchase as “persons lawfully entitled” to access Clark Lane.

In addition to a right of ingress and egress, Plaintiffs submit that, in accordance with the provisions of G. L. c. 187 § 5, their easement includes the right to install utilities in and/or over Clark Lane. G. L. c. 187, § 5, provides in relevant part: “[t]he owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way . . . appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way… .”

Having found that Plaintiffs’ lots benefit from an easement over Clark Lane, it follows that pursuant to G. L. c. 187, § 5, Plaintiffs also have a right to install and maintain utilities “in, on, along, under and upon” Clark Lane See, e.g., Lane, 65 Mass. App. Ct. at 434 (finding that a lot owner who had an easement to use a road had a related right to lay utilities on or under the road, even though right of access across the road came about by virtue of an easement by estoppel rather than by grant in a deed); Post v. McHugh, 76 Mass. App. Ct. 200 , 206 (2010) (finding that the rights of property owners who had easement by estoppel over private way abutting their lot also included right to make reasonable repairs and improvements to those ways and to install utilities).

For the reasons set forth above, this court concludes that Plaintiffs have satisfied their burden and have shown that their properties have the benefit of an easement of access over the whole of Clark Lane, and pursuant to G. L. c. 187, § 5, Plaintiffs’ easement rights include the right to install utilities in, on, along, under and upon Clark Lane.

Plaintiffs have until November 22, 2013, to provide the court (and serve upon all parties) a form of judgment suitable for recording and registration. The court will review Plaintiffs’ submissions promptly, seeking input the Plauches, and thereafter issue judgment.