150 MAIN STREET, LLC vs. ARLENE MARTINO.

Petitioner 150 Main Street, LLC (hereinafter “Petitioner”) filed its Petition to Correct Easement Designation (the “S-Petition 2”) on June 28, 2013, seeking to change the legal description of land referred to as a “Way” (hereinafter the “Subject Property”) on a plan and a certificate of title for property owned by Petitioner, and to affirm that the Subject Property is an “easement” for the benefit of Respondent Arlene Martino (hereinafter “Respondent”) as opposed to a public or private way. [Note 1] On September 30, 2013, Respondent filed a Response to the Petition, seeking dismissal of the Petition or, in the alternative, a declaration that the Subject Property retains its description as a “Way.” Status conferences were held on October 22, 2013 and December 10, 2013.

On January 6, 2014, Petitioner filed its Motion for Summary Judgment, together with supporting memorandum and appendix. Respondent filed its Response to Petitioner’s Motion for Summary Judgment on February 3, 2014, together with Affidavits of Respondent Arlene Martino (the “Respondent Affidavit”) and Leonard M. Davidson, Esq. Petitioner filed its Reply in Support of its Motion for Summary Judgment, together with Affidavits of Andrew Browne (the “Browne Affidavit”) and Jesse J. Adelman (the “Adelman Affidavit”), on February 10, 2014. On February 14, 2014, Respondent filed its Response to the Reply of Petitioner, together with the Affidavit of Nancy Leifer (the “Leifer Affidavit”) and its Motion to Strike the Browne Affidavit and most of the Adelman Affidavit as irrelevant and including hearsay. Petitioner filed its Response to Respondent’s Statement of Additional Material Facts and Opposition to Respondent’s Motion to Strike on February 19, 2014. A Summary Judgment hearing was held on all motions on February 20, 2014, and the matter was taken under advisement.

The parties attended a status conference on June 24, 2014, at which time this court requested that the Town of Wayland (the “Town”) be brought in to discuss the status of the Subject Property. All parties including the Town appeared at a status conference on July 29, 2014, and agreed to discuss settlement. On September 26, 2014, Petitioner filed its First Amended S Petition to Correct Easement Designation and to Consolidate Contiguous Lots (the “Amended Petition”). Respondent filed its Answer and Response on October 14, 2014.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving part to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl. Bank v. Dawes, 369 Mass. 550 , 552 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following material facts are not in dispute:

1. Cornelius J. Maguire (“Maguire”) filed a registration plan of his land with the Middlesex (South) Registry District of the Land Court (the “Registry”). The land was shown as eight lots (numbered 1-8), and the Subject Property marked “Way” (the “Maguire Land”), on and near West Plain Street in the Town, on a registration plan dated September 15, 1927 and entitled “Plan of Land in Wayland” prepared by Edward H. Howard, Civil Engineer, Plan 12716A (“Plan A”). [Note 2] [Note 3] Certificate of Title No. 27958 (the “Certificate of Title”) was issued to Maguire on December 14, 1928.

2. A registration plan dated December 4, 1946 and entitled “Land in Wayland” prepared by E. H. Howard, C. E., Plan 12716B (“Plan B”) that depicted Lots 1, 2, 3, 4, 8, A, B and Way, and showed a subdivision of Lots 5, 6 and 7 on Plan A into Lots A and B, was filed with the Registry. [Note 4]

3. No public authority has subsequently laid out a public way over any portion of the Subject Property on either Plan A or Plan B. Maguire never recorded a grant of easement or other instrument giving the general public any rights to pass and re-pass over the Subject Property, or any other right, title or interest in the Subject Property. The Subject Property is a paved way.

4. By deed dated December 10, 1946 (the “Lot A Deed”), Maguire conveyed to Lyle C. and Norma L. Shuflet the land depicted as Lot A on Plan B. Included in the Lot A Deed was “a right of way over the private way shown on said plan running from the granted premises to West Plain Street.”

5. By deed dated May 20, 1947 (the “Lot 4 Deed”), Maguire conveyed to Onis J. and Edith O. Savoy Lot 4 depicted on Plan A. [Note 5] One of the boundaries was “Westerly by a private way shown on said plan, there measuring seventy (70) feet.” Included in the Lot 4 Deed was “the right to pass and re-pass for all purposes for which ways are commonly used over the private way shown of said plan.”

6. By deed dated July 28, 1959, Maguire conveyed to Anselm Delaney and Esther Delaney Lots 1, 2 and 3 as depicted on Plan A. Included in this deed was the language “all rights to pass and re-pass over the private way as shown on Plan A in common with others for all purposes for which public ways are used in the Town of Wayland.”

7. By deed dated May 6, 1963, Maguire conveyed to Gerard Finnerty (“Finnerty”) Lots 8 and B depicted on Plan B. Included in this deed was the language “[t]ogether with all right, title and interest which I have or may have in said way as shown on [Plan B].”

8. By deed dated December 27, 1973 (the “Respondent Deed”), Onis J. and Edith O. Savoy conveyed Lot 4 to Phillip. The Respondent Deed references the westerly boundary as “by a way, shown on said plan, now known as Hammond Road, 70 feet,” and states “[t]ogether with the right to pass and repass for all purposes for which ways are commonly used over the private way shown on said plan.” On January 3, 1974, a Transfer Certificate of Title certifying Phillip as the owner of Lot 4 was filed with the Registry.

9. By deed dated December 23, 2010, the Gerard W. Finnerty Trust and the executrix of the Estate of Gerard W. Finnerty conveyed Lots 1, 2, 3, 8 and B as shown on Plan B to Petitioner. [Note 6]

10. On March 7, 2011, Petitioner filed S Petition Case No. 11 SBQ 12716 03-001 (the “S- Petition 1”), seeking a decree that Petitioner owned the fee interest in the Subject Property.

11. By decree dated December 16, 2011 (the “Land Court Decree”), which was assented to by the owners of Lot 4 and Lot A, the Land Court issued an order in the S-Petition 1 that

the fee in the Way shown on Plan No. 12716-B is owned by 150 Main Street, LLC pursuant to Deed Document No. 1557389. The fee to the center line in said Way, adjacent to Lots 1, 2, 3 and 8 on Plan No. 12716-A and Lot B on Plan No. 12716-B shall, upon any subsequent conveyance of said lots, be transferred pursuant to G.L. ch. 183, § 58 while the fee that is adjacent to Lot 4 on Plan No. 12716-A but owned by 150 Main Street, LLC can be conveyed only by the filing of a subdivision plan with the Land Court which delineates that portion of the Way.

The Land Court Decree further ordered

that the Way is subject to the rights of the owner of Lot A on Plan No. 12716-B and the owner of Lot 4 on Plan No. 12716-A to pass and repass for all purposes for which ways are commonly used as set forth in Certificate of Title Nos. 142906 (Lot 4) and 235335 (Lot A).

The Land Court Decree confirmed that Petitioner owned Lots 1, 2, 3, 8, B and the Subject Property as shown on Plan B. Phillip assented to the Land Court Decree.

12. By deed dated May 9, 2013, Petitioner acquired Lot A as shown on Plan B. Lot A, together with Lots 1, 2, 3, 8, B and the Subject Property, are referred to as “Petitioner Property.”

13. On June 19, 2013, the Planning Board approved Petitioner’s Application for Site Plan Approval (the “Site Plan Approval”) for the proposed construction of a “CVS/Pharmacy with 11,968 gross square feet of area on the first floor and 1,973 gross square feet of mezzanine area with a drive through window for prescriptions and medications only and 103 parking spaces” on Petitioner Property. Condition 30 of the Site Plan Approval states:

Prior to exercising any rights under this decision, the Applicant shall provide written evidence to the Planning Board, in acceptable legal form as determined by Town Counsel, showing that the way (known as Hammond Road) shown on Land Court Plan No. 12716B has been eliminated by merging the fee in the way into the lot or lots adjoining said way, subject to an access easement for Lot 4 on said plan.

14. By deed dated September 5, 2013, Phillip deeded Lot 4 to Respondent.

15. Pursuant to Paragraph 7 of the Adelman Affidavit, Petitioner posted “Not a Public Way” and “Private Property” signs on the Subject Property, at the intersection of West Plain Street and the Subject Property, in early November of 2013.

16. On December 4, 2013, Petitioner’s manager sent a written request to the Director of the Wayland Department of Public Works (the “DPW”) that the DPW cease plowing of all snow from the Subject Property.

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This case concerns the status of the Subject Property owned by Petitioner that is used by Respondent to access West Plain Street from Lot 4. Petitioner argues that the Subject Property, instead of being a private way, is an area of land over which Respondent has deeded easement rights to pass and re-pass. Respondent contends that the Subject Property is a private way and that the doctrine of issue preclusion (the Land Court Decree ruling, they allege, that the Subject Property was a private way) bars the determination by this court in the case at bar of whether the Subject Property is a private way or an easement. Though not included in the S-Petition 2, Petitioner argued in its Motion for Summary Judgment that, as the Land Court Decree confirmed that Petitioner owns the Subject Property in fee, Petitioner has the right to consolidate the Subject

Property with Lots 1, 2, 3, 8, A and B into a single parcel. [Note 7] I shall address each of these issues in turn.

I. Respondent’s Motion to Strike

Respondent has moved to strike the Browne Affidavit and portions of the Adelman Affidavit. I shall address Respondent’s Motion to Strike with respect to each affidavit separately.

A. Browne Affidavit

Respondent contends that the Browne Affidavit, which attests to Petitioner’s submission of a plan to consolidate the Subject Property with Lots 1, 2, 3, 8, A and B, concerns a matter that is not before this court. However, the consolidation issue was included in the Amended Petition. As such, I find that the Browne Affidavit should not be stricken.

B. Adelman Affidavit

Respondent also argues that the Adelman Affidavit should largely be stricken for irrelevance and for hearsay. Specifically, Respondent contends that Paragraphs 2, 3, 4, 5 and 7 of the Adelman Affidavit address matters that are unrelated to the issue of the Subject Property’s status as either a private way or an easement. As discussed, supra, the Amended Petition does address the consolidation issue. Paragraphs 2, 3 and 4 concern Petitioner’s consolidation plan, Paragraph 5 involves the posting of a “Private Property” sign on the Subject Property and relates to the determination of whether or not the Subject Property is a private way. Likewise, Paragraph 7 involves Petitioner’s own statement about Petitioner posting “Not a Public Way” and “Private Property” signs at the entrance to the Subject Property, which relate to the issue of whether the Subject Property is a private way. As such, I find that Paragraphs 2, 3, 4, 5 and 7 of the Adelman Affidavit should not be stricken.

Additionally, Respondent contends that Paragraph 6 of the Adelman Affidavit, which relates to “stories [Adelman] heard” about Respondent maintaining their sign and calling the police to have cars towed from an adjoining property, as hearsay. Respondent further contends that Paragraph 8 of the Adelman Affidavit, which refers to the Town Counsel’s January 23, 2014 opinion to the Board of Public Works that “the Way is not a Town way or a private way open to public use” should be stricken because it involves hearsay. Petitioner responds that, if Paragraph 8 is to be excluded, then Paragraph 3 of the Leifer Affidavit provided by Respondent should also be stricken for hearsay. Paragraph 3 of the Leifer Affidavit involves the Town Counsel’s May 15, 2013 e-mail to Petitioner’s prior counsel, in which the Town Counsel stated that the Subject Property was accessible to the public. As Paragraphs 6 and 8 of the Adelman Affidavit and Paragraph 3 of the Leifer Affidavit all involve the affiant attesting to the actions or statements of another person instead of their own actions or statements, such paragraphs are hearsay. As a result of the foregoing, I find that Paragraphs 6 and 8 of the Adelman Affidavit and any attached exhibits and Paragraph 3 of the Leifer Affidavit and any attached exhibits will be stricken on the grounds of hearsay.

II. Status of the Subject Property

A. Public Way

It does not appear that the Subject Property is a public way. Massachusetts law currently allows for only two methods of creating a public way: (1) laying out and establishment by a public authority or (2) by prescription. [Note 8] G.L. c. 84, § 23. In the present matter, on Plan A, which first depicted the Subject Property, the Subject Property was not laid out and established by a public authority and the summary judgment record does not reflect that any public authority has subsequently laid out a public way over any portion of the Subject Property. See e.g., Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979); W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19 (1979). Additionally, as Maguire registered the Subject Property (as well as the remainder of the Maguire Land) in 1928, there is no possibility that the Subject Property became a public way by prescription. G.L. c. 185, § 53 (“No 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”).

Though no specific evidence of public use of the Subject Property was included in the summary judgment record, Respondent asserts in the Respondent Affidavit that the Subject Property “has been utilized by the public for access” for at least thirty-five years. However, even if the public did use the Subject Property in the decades before Petitioner’s posting of signs indicating the Subject Property was private property in November 2013, this public use would not alter the Subject Property’s status. Such public use may have made the Subject Property a private way open to public use by permission of the owner (Petitioner). See Opinion of the Justices, 313 Mass. 779 , 782 (1943). Any public use of the Subject Property was therefore akin to a license that was terminable at any time by Petitioner and was terminated by Petitioner’s posting of the November 2013 signs. Woicekoski, 7 Mass. App. Ct. at 19-20, citing Opinion of the Justices, 313 Mass. at 783 (“there can be private ways, which are ‘defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership, which are open to public use ‘by license or permission”of the owner; however, such use ‘may be terminated at any time at the will of the owner’”). As a result of the foregoing, I find that the Subject Property is not a public way and that any public use of the Subject Property was tantamount to a license revocable by Petitioner at any time.

B. Private Way.

Respondent argues that the Land Court Decree ruled that the Subject Property was a private way and that the doctrine of issue preclusion bars a determination of whether or not the Subject Property is a private way in the case at bar. See e.g., Jarosz v. Palmer, 436 Mass. 526 (2002); Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 (2006). The doctrine of issue preclusion provides that, when an issue has been actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or different claim. Jarosz, 436 Mass. at 530-531. The Land Court Decree examined the question of ownership of the Subject Property and determined that Petitioner owned the Subject Property in fee. The Land Court Decree referred to the Subject Property as “the Way” but never defined the Subject Property as a private way. Moreover, there is no evidence in the summary judgment record that the issue of whether the Subject Property is a private way was litigated in the S- Petition 1 case resulting in the Land Court Decree, that the status of the Subject Property as a private way was ever determined by this court, or that any consideration of whether the Subject Property was a private way or easement was essential to this court’s judgment in the Land Court Decree. As such, I find that the Land Court Decree did not make a determination of whether the Subject Property was a private way and the determination of the Subject Property’s status is not barred in the present matter on the basis of issue preclusion. [Note 9]

Notwithstanding the foregoing, however, and guided by the possible definition of a private way provided by the Massachusetts Supreme Judicial Court (“SJC”) in Opinion of the Justices, it appears that the Subject Property is a private way. In Opinion of the Justices, the SJC, while recognizing that “private way” was a term “susceptible to many meanings” offered the following guidance:

[T]he words [private way] may well mean or include defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership, either by reason of the ownership of the land upon which they are laid out by the owner thereof, or by reason of ownership of easements of way over land of another person. Id. at 782-783.

The Subject Property includes a specifically defined way of travel, as shown in the summary judgment record, as the Subject Property is the only access evident in the summary judgment record by which Respondent can access Lot 4 from West Plain Street. Moreover, as shown on Plan A, six of the eight lots established by that plan had no form of access to a public way except by means of the Subject Property.

Even without consideration of the SJC’s proffered (and by no means exhaustive) definition of a private way, the Subject Property would still be regarded as a private way as a result of an express grant of right of way from Maguire to Respondent’s predecessors in title. The Lot 4 Deed expressly grants Respondent’s predecessors in title the “right to pass and re-pass for all purposes for which ways are commonly used over the private way shown on said plan” (emphasis added). This language is registered in Phillip’s certificate of title. The “way” is in a fixed location as determined by the Land Court. [Note 10] The basic principle governing the interpretation of deeds is that their meaning, 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. Estes v. DeMello, 61 Mass. App. Ct. 638 , 641-642 (2004). In the present matter, the plain language used by Maguire, the grantor, in the Lot 4 Deed can be reasonably interpreted to mean that the Subject Property, over which Respondent has the right to pass and re-pass, was intended to be a private way. [Note 11] Moreover, the boundary description in the Respondent Deed refers to the way as “now known as Hammond Road,” a further indication that the Subject Property was intended as a way.

As a result of the foregoing, I find that the Subject Property is a private way.

Furthermore, the record strongly supports the status of the Subject Property as a private way through six additional means:

1) The Town Bylaws.

Even though Black’s defines a “right-of-way” as both an easement or “right to travel over another’s property,” or a “right to build and operate a railway line or a highway on land belonging to another,” the Bylaws define “right-of-way” as [t]he full strip of land, whether public or private, designated for vehicular and sometimes pedestrian traffic, consisting of the pavement or traveled way and any planting strips and sidewalks. A right-of-way so designated shall be available only for such uses as are customary for rights-of-way in the Town of Wayland and shall not be available for any private construction, such as buildings, fuel tanks, septic systems, fences, walls or paved parking areas.

It is clear from this definition that the Town considers a right-of-way as available only for use as a way and not “for any private construction,” such as the Site Plan Approval for the CVS. The distinguishing factor appears to be whether the “way” abuts the property and is used as access to the property, or a “way” through someone else’s property (i.e. an easement). This is further borne out by the Black’s definition of easement as “an interest in land owned by another person.”

2) The Town naming of the “way”.

The Subject Property is named Hammond Road. The Respondent Deed references one of the boundaries as “a way, shown on said plan, now known as Hammond Road.” This deed dated 1973 shows that the Subject Property has been named Hammond Road for more than forty years.

3) The derelict fee statute/ Land Court Decree.

The derelict fee statute (G. L. c. 183, § 58) states “[e]very instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument . . .” [Note 12] The purpose of the Derelict Fee Statute was to define ownership of properties which serve as linear monuments to property such as a way. The Land Court Decree incorporates the Derelict Fee Statute into the decree, stating “[t]he fee to the center line in said Way . . . shall, upon any subsequent conveyance of said lots, be transferred pursuant to G. L. ch. 183, § 58.” It was clear that the decree treated the Subject Property as a way (public or private) which was a boundary way and not an easement way. Moreover, the Land Court Decree made even more specific reference to the portion of the Subject Property abutting Lot 4, stating “the fee that is adjacent to Lot 4 . . . can be conveyed only be the filing of a subdivision plan with the Land Court which delineates that portion of the Way.” The filing of a subdivision plan confirms that the court required, and a deed of the fee interest in the Subject Property must be done by, a subdivision plan which requires adequate access to Lot 4 through a subdivision by means of a way. The major requirement of a subdivision is to assure that all lots within the subdivision have adequate access through a way approved by the planning board.

4) Record title to Respondent Property

All deeds in Respondent’s chain of title to Petitioner Property reference the Subject Property as a way “for all purposes for which ways are commonly used over the private way shown on [Plan B].” [Note 13] Such language is generally associated with a way used as a highway rather than an easement way through someone’s property.

5) Physical condition of way.

The record discloses that the Subject Property is paved. This adds further credence to its status as a private way.

6) Site Plan Approval.

The Site Plan Approval which Petitioner received from the Wayland Planning Board shows the CVS parking lot going through the Subject Property. There is no protection for Respondent’s access rights to Lot 4 unless the Subject Property is designated as a way. The Site Plan Approval does not show any other access right for Lot 4.

III. Whether Petitioner Can Consolidate the Subject Property and Other Lots into Single

Lot

Petitioner argues in its Motion for Summary Judgment that, even if the Subject Property is a private way, Petitioner has the right under G.L. c. 41, § 81P, which allows an owner of land to secure a planning board endorsement that “approval [of a plan] under the subdivision control law [is] not required”, to consolidate the parcels that comprise Petitioner Property (including the Subject Property). [Note 14] See Matulewicz v. Planning Bd. of Norfolk, 438 Mass. 37 , 42 (2002).

However, this court notes that Condition 30 of the Site Plan Approval requires Petitioner to eliminate the Subject Property and provide access for Lot 4. The plan attached to the Site Plan Approval does not show any access over Petitioner Property for Lot 4. It appears that Petitioner is putting the cart before the horse. Attempting to distinguish whether an access way is a private way or an easement may appear to be a matter of semantics, but the real issue is what protections Respondent has to secure its access rights. The Site Plan Approval emphasizes the problems inherent in this issue. As a result, I find that Petitioner may consolidate any lots included in Petitioner Property except for the Subject Property.

For the foregoing reasons, Petitioner’s Motion for Summary Judgment is DENIED.

Judgment to issue accordingly.