CHRISTOPHER K. HART, KEVIN KANE, and JAMES M. KELLIHER, as They Are TRUSTEES of HARBOR LANE HOME OWNERS' ASSOCIATION TRUST, v. DOROTHY DONAHUE, CHRISTOPHER STODDARD, MARY ELLEN STODDARD, CITIMORTGAGE, INC., KEVIN H. KELLY, MARYELLEN M. KELLY, HOLBROOK CO-OPERATIVE BANK, and CITIBANK FEDERAL SAVINGS BANK.

I. INTRODUCTION

In these consolidated cases, filed September 9, 2010 and September 10, 2010 pursuant to G. L. c. 185, § 114, the court is called upon to decide, among other issues, whether the developer of a subdivision of registered land, William J. Murphy, Jr. (“Murphy”), has retained any interest in the disputed subdivision road, Harbor Lane. This inquiry is undertaken in light of a registered deed that purports to convey the fee in the entire length of Harbor Lane to the owner of one lot (lot 37), and an outstanding certificate of title for a different lot (lot 29) that purports to show in another party ownership of the fee in the same way. Murphy, who developed the project initially and lays claim still to possess the fee in the way, is the current owner of neither of those two lots, nor of any others in the subdivision.

Plaintiffs Dorothy A. Donahue (“Donahue”),who owns three lots abutting the subdivision, and Christopher K. Hart, Kevin Kane, and James M. Kelliher, who are the Trustees of Harbor Lane Home Owners Association Trust ( “Trustees”), ask the court to order: (1) that certificates of title 79136, 113972, and 91732 be amended to strike reference to certain easements and restrictions they claim are defunct remnants of an earlier subdivision scheme; (2) that Murphy no longer has any title in the fee to Harbor Lane; and (3) that the Harbor Lane Home Owners’ Association Trust may be amended to include Donahue’s three lots as beneficiaries of the Trust, affording those lots rights to use the way. Murphy, who claims to own the fee in the disputed way, opposes the extension, to the Donahue lots, of rights to use the way.

II. PROCEDURAL HISTORY

These subsequent cases were filed at the direction of the court (Piper, J.) following a partial resolution of an earlier case, Land Court Case No. 08 MISC 386389 (GHP), which was an appeal by the Trustees of an “approval not required” endorsement of a plan (“ANR Plan”) obtained by Donahue. On January 7, 2010, the court made rulings on cross motions for summary judgment, in which the court ruled as a matter of law that: Donahue would not be entitled to the ANR endorsement if, after due proceedings, the court were to determine that she lacks a legal right to use the way (Harbor Lane) relied upon for frontage, and that trial was required to determine whether Donahue suffered an unconstitutional deprivation of notice that could result in setting aside earlier orders of this court that appear to terminate Donahue’s rights in Harbor Lane. [Note 1]

Donahue originally filed her case subsequent to registration (“s-case”) seeking to establish rights of access over portions of Harbor Lane by virtue of rights created in a 1961 deed to one Peter F. Vanderbil. See supra Part III, para. 3. The Trustees’ s-case asked the court to strike all references to the Vanderbil deed. Then, on November 4, 2011, Donahue and the Trustees, having apparently settled their disagreement, asked the court to approve a settlement agreement; Murphy, claiming to be the owner of the subdivision road, filed an opposition on November 14, 2011. The court heard the parties on cross motions for summary judgment on March 12, 2014. Following argument, the court directed that, in light of court’s colloquy with counsel on several points not addressed fully in the summary judgment papers, supplemental briefing be filed. Donahue was directed to, among other things, run forward the registered land title to lots 37 and 29 on the 31166-E plan to ascertain who, other than Murphy, might have a claim to fee title to Harbor Lane. Murphy was directed to supplement his prior filings with a brief legal memorandum (and to supplement the record with any pertinent record title materials) specifically demonstrating his title, if any, to the fee in any portion of Harbor Lane. Finally, all parties were directed investigate and report whether any other lot deeds in the subdivision operated or purported to convey the fee in Harbor Lane, and to address the applicability, or not, of G.L. c. 183, § 58 to the registered land at issue in this case, in light of the limited applicability language set out in St. 1971, c. 684, § 2.

Following receipt of the parties supplemental filings, the court took the matter under advisement.

III. FACTS

The following material facts are found in the Rule 56 record and are undisputed:

The 31166-A Plan

1. The 31166-A plan, dated August 1, 1961 - October 21, 1964, shows three lots in Norwell, Plymouth County, Massachusetts. Lot 1 and lot 2 are shown with frontage along Main Street. Between lot 1 and lot 2 is a fifty-foot strip or “neck” running perpendicular to Main Street for the lengths of lot 1 and 2, before widening and comprising the remaining land of the registration locus southward to the North River. The remaining land, including the neck, makes up lot 3. The words “HARBOR LANE” are shown on lot 3, just south of, and running in a course parallel with, the neck.

2. By deed dated December 28, 1961 and recorded at the Plymouth County Registry of Deeds in Book 2908, Page 59, Harold G. Dutton and G. Alice Dutton conveyed lot 3 to Peter F. Vanderbil (“Vanderbil Deed”). This conveyance was “made subject to the right of the owner of Lot #1 and Lot #2 on said plan to use that portion of Lot #3, as shown, as a way in common with the owner of Lot #3.”

3. Peter F. Vanderbil subsequently conveyed Lot 3 back to Harold G. Dutton and G. Alice Dutton by deed dated August 28, 1964, recorded with the Plymouth County Registry at Book 3139, Page 196, and subject to “the right of the owner of Lot #1 and Lot #2 on said plan to use that portion of Lot #3, as shown, as a way in common with the owner of Lot #3.”

4. On September 7, 1965, the original certificate of title to lot 1 and lot 3 on the 31166-A plan issued to Harold G. Dutton and G. Alice Dutton, as certificate of title no. 37726, document no. 103411.

5. Lot 3 is described in certificate no. 37726 as “subject to the restrictions and easement set forth in a grant from Harold G. Dutton et ux to Peter F. Vanderbil, dated December 28, 1961, duly recorded in Book 2908, Page 59[,]” which is the so-called Vanderbil Deed. Certificate no. 37726 further notes that “So much of said land as is included within the limits of Harbor Lane is subject to the rights of the owners of Lots 1 and 2, as shown on said plan, to use the same, as set forth in a grant from Peter F. Vanderbil to Harold G. Dutton et ux, dated August 31, 1964, duly recorded in Book 3139, Page 196[,]” and “[s]o much of said Lot 3 as is included within the limits of the Way, approximately shown on said plan, is subject to the rights of all those lawfully entitled thereto, in and over the same.” Finally, certificate no. 37726 notes that “There is appurtenant to said Lot 1 the right to use Harbor Lane, as shown on said plan, to and from Main Street, in common with all those lawfully entitled thereto.”

6. On September 7, 1965, the original certificate of title to lot 2 on the 31166-A plan issued to Donahue as certificate no. 37727, document no. 103415. The original certificate of title described lot 2 as bounded “by the line of Harbor Lane,” and contains the following notation: “There is appurtenant to the land hereby registered the right to use Harbor Lane, as shown on said plan, in common with all those lawfully entitled thereto.”

The 31166-B Plan

7. The 31166-B plan, dated November 9, 1967, approved by the court on December 27, 1967, shows a subdivision of lots 1, 2, and 3 on the preceding 31166-A plan. Lot 1 and lot 2 were essentially lengthened north to south, and renamed lot 4 and lot 5 respectively. Lot 3 is renamed lot 6, and retains its basic shape as a rectangular lot with a long, protruding neck. The body of lot 6 is approximately 500 feet in width, and approximately 1,800 feet in length, running northward from the North River. The neck portion is shown as fifty-feet wide, extending some 570 feet, more or less, north to Main Street. The words “Harbor Lane” do not appear on the 31166-B plan.

8. On December 27, 1967, the Land Court issued an order approving the 31166-B plan, and amending title certificates nos. 37726 (the Duttons’) and 37727 (Donahue’s, f/k/a lot 2) to strike “all reference to Harbor Lane and any subject rights or appurtenant rights to the use thereof[.]” That order was registered February 15, 1968 as document no. 117255.

9. On February 15, 1968, transfer certificate of title no. 41660 issued for lot 5 on the 31166- B plan, standing in the name of Dorothy A. Donahue, Harold Dutton, and Alice Dutton, and canceling certificate no. 37727. Certificate no. 41660 describes lot 5 as bounded “by lot 6 on the plan hereinafter mentioned measuring on the curving line thereof six hundred eleven and 48/100 (611.48) feet.”

10. Certificate no. 41660 notes that lot 5 is “subject to the restrictions and easement set forth in” the Vanderbil Deed.

11. Certificate no. 41660 also notes that “[s]o much of said lot as is included within the limits of the Way, approximately shown on said plan #31166A, is subject to the rights of all those lawfully entitled thereto, in and over the same.”

12. Also on February 15, 1968, lot 6 was conveyed from the Duttons to C. Lawrence Drecker by deed registered as document no. 117257. No reference is made to Harbor Lane or to any way, and the grantors “release and extinguish” the restrictions imposed by the Vanderbil Deed.

13. The next conveyance of lot 6, the deed registered February 11, 1969 as document no. 123094 from C. Lawrence Drecker to Robert R. Larkin and Mary M. Larkin, re-inserts the reference to the Vanderbil Deed restrictions and to the “Way” on the 31166-A plan. These references are carried forward again in the next conveyance, the same day, to Robert F. Higgins as Trustee of Zeta Realty Trust, see document no. 123095.

14. Lot 4 on the 31166-B plan was subdivided into lot 23 and lot 24 by the 31166-D plan, registered August 12, 1970.

15. Lot 5 on the 31166-B plan is the subject of the challenged ANR Plan, which shows the historic lot 5 subdivided into five parcels, lots 1, 2, 3, 4, and 5. Donahue is the current owner of lot 5 on the 31166-B plan pursuant to transfer certificate of title no. 79136.

The 31166-C Plan

16. The 31166-C plan of July 18, 1968, as approved by the court August 12, 1970, shows lot 6 on the 31166-B plan divided into lots 7 through 22, and lot 25. The neck portion of the former lot 6 remains as shown on the prior plans, but is now shown continuing southward into the “body” of the former lot 6 as a fifty-foot way named “Harbor Lane.” No separate certificate of title for Harbor Lane issued from this court based on the subdivision on lot 6 shown on the 31166-C plan. No changes were made to lot 4 or lot 5.

17. The first conveyance out of new lots shown on the 31166-C plan is to Judith Higgins, Walter R. Hall, and Helene L. Hall, by deed registered November 30, 1972 as document no. 147262. This instrument conveys lots 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 25 on the 31166-C plan, as well as “the fee to the road shown on said plan as Harbor Lane.”

18. Murphy took title to lots 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 25 on the 31166-C plan by deed registered as document no. 147443 on December 7, 1972. The deed describes the land as being conveyed together with “the fee to the road shown on said plan as Harbor Lane and the fee to the strip of land shown as Future Road Reservation on said plan[,]” and as “[s]ubject to the rights, restrictions and easements described in Land Court Certificate No. 43426[.]”

19. Murphy conveyed to himself as Trustee of Stony Brook Farms Trust, lots 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 25 as shown on the 31166-C plan, by deed registered as document no. 148135 on January 12, 1973. This instrument describes the land as being conveyed together with “the fee to the road shown on said plan as Harbor Lane and the fee to the strip of land shown as Future Road Reservation on said plan[,]” and as “[s]ubject to the rights, restrictions and easements described in Land Court Certificate No. 43426[.]”

20. Document no. 206263, May 7, 1981, is a deed from Murphy as Trustee of Stony Brook Farms Trust to Murphy as Trustee of Harbor Lane Realty Trust. The property conveyed is lots 7, 8, 9, 10, 12, 14, 15, 17, 18, 20, 21, and 22 on the 31166-C plan. This instrument states “This conveyance is made together with the right and easement, in common with all others entitled thereto, to use the way and road shown on the aforesaid plan as Harbor Lane and Future Road Reservation for all purposes for which a public way may be used in the Town of Norwell.”

21. Transfer Certificate of Title No. 64872, issued May 7, 1981, places title to lots 11, 13, 16, 19, and 25 on the 31166-C plan in Murphy as Trustee of Harbor Lane Realty Trust. This certificate notes that “Said lots are subject to the restrictions and easement set forth in” the Vanderbil Deed, and that “So much of the above described land as is included within the limits of the Way, approximately shown on said plan #31166A, is subject to the rights of all those entitled thereto, in and over the same.”

22. Transfer Certificate of Title No. 64873, issued May 7, 1981, places title to lots 7, 8, 9, 10, 12, 14, 15, 17, 18, 20, 21, and 22 on the 31166-C plan in Murphy as Trustee of Harbor Lane Realty Trust. This certificate notes that “Said lots are subject to the restrictions and easement set forth in” the Vanderbil Deed, and that “So much of the above described land as is included within the limits of the Way, approximately shown on said plan #31166A, is subject to the rights of all those lawfully entitled thereto, in and over the same.” This certificate also states “Said lots are conveyed together with the fee in Harbor Lane[.]”

The 31166-E Plan

23. The 31166-E plan, dated February 16, 1979, and approved by the Land Court on June 4, 1981, is a subdivision of lots 7 through 22 and lot 25 on the 31166-C plan. Notably, the neck portion of Harbor Lane remains basically unchanged, but the internal section is substantially reconfigured. The 31166-E plan shows twelve lots, numbered 26 through 37, situated along Harbor Lane. [Note 2] No separate certificate of title for Harbor Lane issued from the Land Court based on the subdivision shown on the 31166-E plan.

24. Document no. 220180, registered June 10, 1983, is the Land Court Order approving the 31166-E plan. The Order also strikes the language “So much of the above described land as is included within the limits of the Way, approximately shown on said plan No. 31166A, is subject to the rights of all those lawfully entitled thereto, in and over the same” from certificates of title 64872 and 64873.

25. By Order of this court dated June 23, 1982, and registered July 12, 1982 as document no. 213142, the language “Said lots are subject to the restrictions and easements set forth in a grant from Harold G. Dutton et ux to Peter F. Vanderbil, dated September 28, 1961, duly recorded in Book 2908, Page 59.” was ordered expunged from certificates of title nos. 64872 and 64873.

Development and Initial Conveyances to Third Parties

26. Murphy created the Harbor Lane Home Owners’ Association Trust (“Trust”) by declaration of trust dated November 10, 1980. The Trustees were charged with, among other things, maintaining Harbor Lane. The beneficiaries of the Trust were to be the lot owners in the subdivision shown on the 31166-E plan.

27. The Harbor Lane Declaration of Easements and Restrictions (“Easements and Restrictions”), document no. 206734, provides that the Trust will “construct roads and driveways which will provide ingress and egress from Main Street[,]” and establishes a “Right-of-way for ingress and egress, by vehicles or on foot, in, to, upon, over and under the road shown on the Plan as HARBOR LANE for all purposes for which roads are commonly used in the Town of Norwell[.]”

28. The Easements and Restrictions provide that “the easements, licenses, rights and privileges established, created and granted by this instrument shall be for the benefit of, and restricted solely to, the Owners from time to time of HARBOR LANE SUBDIVISION....”

29. Following the 1979 subdivision according the 31166-E plan, the creation of the Trust and the Easements and Restrictions, Murphy as trustee conveyed out each of the twelve lots in the Harbor Lane subdivision as follows:

a. By deed accepted for registration August 10, 1983 as document no. 222036, Murphy conveyed lot 33 to Allen H. Madrick and Lydia A. Madrick. This conveyance expressly excludes “any part of the fee in the private way” named Harbor Lane.

b. By deed accepted for registration June 22, 1984 as document no. 230745, Murphy conveyed lot 34 to James M. Kelliher and Maureen E. Kelliher. This conveyance expressly excludes “any part of the fee in the private way” named Harbor Lane.

c. By deed accepted for registration April 16, 1985 as document no. 239747, Murphy conveyed lot 37 to Bennington Construction Co., Inc. The deed to lot 37 contained the following language: “Said lot is conveyed together with the fee in Harbor Lane and the fee to the strip of land shown as Future Road Reservation as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972 filed as document #147443.”

d. By deed accepted for registration April 16, 1985 as document no. 240590, Murphy conveyed lot 27 to Bennington Construction Co., Inc. The deed to lot 27 described the lot with reference to the 31166-E plan, and as bounded easterly “By the sideline of Harbor Lane[.]”

e. By deed accepted for registration July 22, 1985 as document no. 243028, Murphy conveyed lot 35 to C & J Development Corp. The deed to lot 35 expressly excludes “any part of the fee in the private way” named Harbor Lane.

f. By deed accepted for registration September 6, 1985 as document no. 244838, Murphy conveyed lot 30 to Bennington Construction Co., Inc. The fee to Harbor Lane was expressly excluded from conveyance by the language of the lot 30 deed.

g. By deed accepted for registration October 10, 1985 as document no. 246111, Murphy conveyed lot 26 to Bennington Construction Co., Inc. The deed to lot 26 does not mention the fee to Harbor Lane, and contains no metes and bounds description. The premises conveyed are described as “the land with buildings thereon located in Norwell, Massachusetts, which premises are shown as Lot #26 on Land Court Plan 31166-E containing according to said plan 137,050 square feet of land more or less and more fully described in the Plymouth County Registry District of the Land Court on Certificate of Title No. 64873.”

h. By deed accepted for registration February 3, 1987 as document no. 267375, Murphy conveyed lot 36 to Gregory C. Webb, Trustee of Riverbank Trust. The deed expressly excludes transfer of the fee in Harbor Lane.

i. By deed accepted for registration October 22, 1987 as document no. 279856, Murphy conveyed lot 28 to Bennington Construction Co., Inc. The deed expressly excludes transfer of the fee in Harbor Lane.

j. By deed accepted for registration December 3, 1987 as document no. 281169, Murphy conveyed lot 32 to Bennington Construction Co., Inc. The deed expressly excludes transfer of the fee in Harbor Lane.

k. By deed accepted for registration December 21, 1990 as document no. 318080, Murphy conveyed lot 31 to Byron T. McAllister and Kathleen M. McAllister. The deed to lot 31 expressly excludes transfer of the fee in Harbor Lane.

l. Finally, by deed accepted for registration October 5, 1993 as document no. 357888, Murphy conveyed lot 29 to Charles F. McGowen, Trustee of the Latham Realty Trust. The deed to lot 29 describes the parcel conveyed as “Lot 29 on subdivision Plan No. 31166e,” and is otherwise silent as to the fee in Harbor Lane. Nonetheless, the transfer certificate of title that issued to Latham Realty Trust, no. 85310, states “Said lot is conveyed together with the fee in Harbor Lane as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972, filed and registered as document #147443.”

30. Following Murphy’s conveyance of lot 29 to Latham Realty Trust, Murphy did not own any lots in the Harbor Lane subdivision, or any portion of the historic lot 4 on the 31166- B plan.

31. In 1996, Murphy’s wife, Beth Murphy, acquired lot 24 from Raleigh Harold Dutton by deed registered as document no. 321556. This instrument states that lot 24 is subject to the so-called Vanderbil Deed restrictions.

32. In 1997, Beth Murphy conveyed lot 24 to Kevin H. Kelley and Maryellen M. Kelley by deed registered as document no. 412737. This conveyance recited that lot 24 was subject to the Vanderbil Deed restrictions, and contained the following: “GRANTOR herein for herself, her heirs and assigns, hereby retains a 20 foot access and utility easement over the right hand portion of the Premises... to be used in common with the Grantee... to provide utilities and access to the land located along the westerly boundary or rear of the Premises....” [Note 3]

33. The Trust provides that “This trust may be terminated or amended at any time by an instrument in writing signed by the Trustee and assented to by four-fifths of the Owners.”

34. In the spring of 2011, the Trustees, Donahue, and members of the Norwell Planning Board executed a Settlement Agreement and Mutual Release of Claims (“Settlement Agreement”). The Settlement Agreement provides that the Trust shall be amended to include within the Harbor Lane subdivision three additional lots, and will be “subject to and have the benefits of the same rights and obligations that the other lots in Harbor Lane Home Owners Association are subject to/or have the benefit of as set forth in Land Court Document 206734.”

35. The three lots contemplated for addition into Harbor Lane are those identified as lots 3, 4, and 5 on Donahue’s ANR Plan, which are part of the historic lot 5 on the 31166-B plan.

Lot 37 Chain of Title

36. By deed (“Saraf Deed”) registered April 16, 1985 as document no. 239748, Bennington Construction Co., Inc. conveyed lot 37 to Mark H. Saraf and Lisa A. Saraf, along with “the fee in Harbor Lane and the fee to the strip of land shown as Future Road Reservation as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972 filed as document #147443.”

37. The Saraf Deed is signed by Ernest A. Serena as President of Bennington Construction, and William J. Murphy, Jr. as Treasurer.

38. Transfer Certificate of Title No. 71102, issued April 16, 1985, setting title to lot 37 in the Sarafs, makes no mention of the fee in Harbor Lane.

39. By deed registered October 30, 1986 as document no. 262972, the Sarafs conveyed lot 37 to Kevin H. Kelley and Maryellen M. Kelley. Document no. 262972 is silent as to the fee in Harbor Lane.

40. By deed registered August 13, 1998 as document no. 432244, Kevin H. Kelley and Maryellen M. Kelley conveyed lot 37 to Richard B. Lane and Catherine R. Holway. Document no. 432244 is silent as to the fee in Harbor Lane.

41. By deed registered March 31, 2006 as document no. 603171, Richard B. Lane and Catherine R. Holway conveyed lot 37 to Katherine S. Holway. Document no. 603171 is silent as to the fee in Harbor Lane.

42. By deed registered March 31, 2006 as document no. 603172, Katherine S. Holway conveyed lot 37 to Richard B. Lane and Catherine R. Holway. Document no. 603172 is silent as to the fee in Harbor Lane.

43. Finally, by deed registered January 25, 2008 as document no. 632539, Richard B. Lane and Catherine R. Holway conveyed lot 37 to Kevin P. Kane and Christina M. Kane. Document no. 632539 is silent as to the fee in Harbor Lane.

44. Mark H. Saraf and Lisa Galvan-Reed f/k/a Lisa A. Saraf were sent a citation in this case by certified mail, but they have not answered or appeared.

Lot 29 Chain of Title

45. Charles F. McGowen, Trustee of Latham Realty Trust conveyed lot 29 to Colombia Title Co., Inc. by deed dated December 27, 1993 and registered as document no. 362738 on December 28, 1993. The deed is silent as to the fee in Harbor Lane. The resulting transfer certificate of title, no. 85743 states “Said lot is conveyed together with the fee in Harbor Lane as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972, filed and registered as document #147443.”

46. Columbia Title Co., Inc. conveyed lot 29 to Philip L. Francis and Juanita F. Francis by deed dated December 27, 1993 and registered as document no. 362740 on December 28, 1993. The deed is silent as to the fee in Harbor Lane. The resulting transfer certificate of title, no. 85744, states “Said lot is conveyed together with the fee in Harbor Lane as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972, filed and registered as document #147443.”

47. Philip L. Francis and Juanita F. Francis conveyed lot 29 to Lillian Barry by deed dated August 6, 1998 and registered as document no. 431905 on that day. The deed states “Said lot is conveyed together with the fee in Harbor Lane as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972, filed and registered as document #147443.” The resulting transfer certificate of title, no. 98363 states “Said lot 29 is conveyed together with the fee in Harbor Lane as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972, filed and registered as document #147443.”

IV. ANALYSIS

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment maybe entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

A. The Vanderbil Deed Restrictions

There is no dispute that the remaining references to the restrictions and easements in the Vanderbil Deed ought to be stricken from whatever instruments on which they remain. The Vanderbil Deed restrictions as to lot 6 on the 31166-B plan were released February 15, 1968 by the deed registered as document no. 117257, but were carried forward on the certificate of title issued that day for lot 5 (certificate no. 41660), allowed to remain on the outstanding certificate for lot 4, certificate no. 37726, and re-inserted in the next deed of lot 6, document no. 123094. In a subsequent petition to this court, Murphy had the erroneous reference expunged from the certificate covering the land comprising the former lot 6. See document no. 213142. It appears, and no party disputes this, that the same reference in the title to lot 4 and to lot 5 on the 31166-B plan ought to have been stricken, that this language is the holdover from an earlier development plan that ultimately was not pursued, and yet has been carried forward until the present. The final order which enters in these s-cases will direct that reference to the Vanderbil Deed restrictions be expunged from certificates of title nos. 79136 (lot 5 on the 31166-B plan), 113972 (lot 23 on the 31166-D plan), and 91732 (lot 24 on the 31166-D plan). [Note 4]

B. The Fee in Harbor Lane

Murphy has no title to the fee in Harbor Lane. Who does have title is a bit more difficult question as a result of some patent inconsistencies in the registered land documents. What is certain, however, is that Murphy did not retain any title to Harbor Lane after, at the latest, 1993 when he conveyed out the last lot in the subdivision.

Murphy expressly conveyed the fee to Harbor Lane in the lot 37 deed to Bennington Construction, registered April 16, 1985 as document no. 239747. Bennington Construction in turn conveyed lot 37 to the Sarafs that same day, by a deed that also included a recitation that lot 37 was conveyed along with the fee in Harbor Lane. Murphy, as treasurer of Bennington Construction, signed the deed. The deed was accepted for registration pursuant to chapter 185 as document no. 239748. For some reason, however, the transfer certificate of title, no. 71102, which issued April 16, 1985 setting title to lot 37 in the Sarafs, makes no mention of the fee in Harbor Lane.

Subsequently, by deed accepted for registration October 5, 1993 as document no. 357888, Murphy conveyed lot 29 to Charles F. McGowen, Trustee of the Latham Realty Trust. The deed to lot 29 describes the parcel conveyed as “Lot 29 on subdivision Plan No. 31166e,” and is otherwise silent as to the fee in Harbor Lane. Nonetheless, the transfer certificate of title that issued to Latham Realty Trust, no. 85310, states “Said lot is conveyed together with the fee in Harbor Lane as set forth in a certain deed from Judith Higgins et al to William J. Murphy, Jr. dated December 4, 1972, filed and registered as document #147443.”

It appears the reason for this notation on the certificate of title may be an application of G. L. c. 183, § 58, the so-called Derelict Fee Statute. [Note 5] The court directed the parties to brief whether G. L. c. 183, § 58, applies to the registered land at issue in this case, in light of the limited applicability language of section 2 of chapter 684 of the acts of 1971. The implementing legislation provides that the new statute “shall apply to instruments executed on and after said effective date and to instruments executed prior thereto, except that as to such prior executed instruments this act shall not apply to land registered and confirmed under the provisions of chapter one hundred and eighty-five before said effective date....” All parties agree that, because the instruments at issue here (the deeds to lot 37 and lot 29) were executed after the January 1, 1972 effective date, the Derelict Fee Statute applies, notwithstanding that the land itself was registered well prior to the effective date.

Section 58 of G. L. c. 183 provides that the conveyance of title to real estate abutting a way “shall be construed to include any fee interest of the grantor in such way,” unless “the grantor retains other real estate abutting such way,” or “the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.” [Note 6] It is clear that Murphy did not, in any event, retain any fee in the way. This is because the chain of registered conveyances, laid out sequentially above, shows the grant by him of the fee in the way to a lot owner, and not retention of the fee by the grantor. As the statute makes clear, the retention of the fee in the way is disfavored; doing so requires “an express exception or reservation.” Here, there is no express reservation of the fee in the way by Murphy; there is, to the contrary, an express grant by him. The deeds registered on April 16, 1985, first from Murphy to Bennington Construction, and then from that corporation to the Sarafs, both expressly grant the fee in the way. The fee was conveyed to the Lot 37 owner. It was not reserved or excepted at all in any express way. The contrary conclusion, for which Murphy now advocates, that he kept the fee of the way out of the transfer of Lot 37, is belied by the plain language of the grants he executed. His contention rests on the premise against which the statute (and the common law on which it was based) [Note 7] was intended to guard–that the title to strips of land set out as ways serving lots in subdivisions be kept by the subdividing grantor when title to the lots all had come to rest in individual owners. The Murphy argument in this case is, in essence, an argument that a way running through a fully constructed residential subdivision was rendered “derelict”--retained by the once common owner who now no longer owns any of the lots benefited by the way. Neither the common law, the Derelict Fee Statute, nor the facts of this case supply any satisfying reason why this ought to be.

It is clear that Murphy has no title himself to the fee of the way. The only possible question that may remain is when and how the fee to the way passed out of Murphy’s ownership, with there being but two possibilities. The far better conclusion is that it passed in April of 1985 when Lot 37 was conveyed. However, even if Murphy’s deed of lot 37 somehow was not sufficient to transfer the fee in the way–for example, because the fee in Harbor Lane was not (for some reason not readily apparent) reflected on the transfer certificate that issued for that lot–then title to the fee in Harbor Lane alternatively would have passed to Latham Realty Trust by operation of G. L. c. 183, § 58; when Murphy conveyed lot 29 by instrument that was silent as to the way, and did not retain any other land abutting the way, then his entire interest in the way would have been transferred along with lot 29. The alternative that would put title to the fee of the way in lot 29's owners is not as plausible as that which would place it in the owners of Lot 37, but, given the lack of active advocacy in this litigation by either of those lot owners on this point, the question may remain open. What is clear, in any event, is that the resolution of that question is not material to the disposition of the case now before the court.

Ultimately, the court need not settle the question of the holder of title to the fee in Harbor Lane at this time, because it is apparent that wherever the fee lies–it is either in the owners of lot 37 or the owners of lot 29–it is not with Murphy. If disagreement exists between the owners of lot 29 and the owners of lot 37 as to the fee in Harbor Lane, further action in this court may be appropriate. What is in controversy now is whether there has been a proper and valid amendment of the Harbor Lane Home Owners Association Trust to extend easement rights to additional lots, those owned by Donahue--and neither the lot 37 nor the lot 29 owners stand opposed to that.

Murphy’s attempts to set up factual issues preventing the entry of summary judgment against him are unavailing, as those putative disputes of facts are as to matters which are immaterial under the applicable substantive law. The presence in the record of Murphy’s affidavit stating “I did not convey the fee in the remaining land in Lot 6. Rather, I wanted to retain the ownership of... portions of Harbor Lane...” is not sufficient to create a dispute of fact requiring trial. The grantor of registered land cannot gainsay the unambiguous words of his registered grant and thereby create a contest of fact to hold off the award of summary judgment. Any ambiguity that exists between registered land documents in this case, moreover, would create the possibility only of disagreement between the owners of lot 29 and lot 37, both of whom might appear to have a basis to claim the fee in Harbor Lane. There is no possible reading of the uncontested facts (and the registered land records) on which the court could determine that title to Harbor Lane remained with Murphy. [Note 8] And the mere fact that Murphy’s certificate of title no. 64873 remains outstanding is not by itself legally sufficient to create any reasonable inference that he retains any actual title to any of the land described in that certificate. The simple lack of cancellation of a certificate of title, after the conveyance out of all the approved lots once covered by that certificate, does not provide a reasonable inference, without more, that Murphy continues to hold title to any of the Harbor Lane fee. That certificate of title did not authorize independent transfer of the fee of the way as a stand-alone lot. The certificate has fully accomplished its purpose, following the deeding out of all of the lots described in the certificate. It ought have been canceled when the last of those lots went out, and no good reason appears why the court should not now order that certificate canceled.

C. The Trust Amendment

Donahue and the Trustees argue that, regardless of where the fee in Harbor Lane lies, the Trust may be (and indeed, has been) amended to incorporate new lots into the Harbor Lane Home Owners’ Association, and that, as a result of being a beneficiary of the Trust, there is a right of passage over Harbor Lane which benefits the new land. This assertion is correct, and the court will approve the registration of the amendments to the Trust.

The declaration of trust of the Harbor Lane Home Owners’ Association Trust charges the Trustees with maintaining Harbor Lane, and names the beneficiaries as, essentially, the lot owners in the subdivision shown on the 31166-E plan. The Harbor Lane Declaration of Easements and Restrictions, executed along with the Trust, is for the benefit of the beneficiaries of the Trust. The Easements and Restrictions provide for the construction of roads and driveways and establishes a “Right-of-way for ingress and egress, by vehicles or on foot, in, to, upon, over and under the road shown on the Plan as HARBOR LANE for all purposes for which roads are commonly used in the Town of Norwell[.]” It is clear that the use of Harbor Lane is a right (however defined) enjoyed by the beneficiaries of the Trust. Indeed, that right to use the way is one of the principal benefits conferred by documents setting up the easements and the Harbor Lane Home Owners’ Association Trust.

At the time the Trust was created, the beneficiaries were those lots shown on the 31166-E plan. The Trust provides, however, that it may be amended at any time “by an instrument in writing signed by the Trustee and assented to by four-fifths of the Owners.”Acting pursuant to this section, the Trustees have added three lots to the designation of beneficiaries. The Easements and Restrictions would, presumably, now by this amendment, reference and extend to the expanded set of beneficiaries pursuant to the amendment. [Note 9] And no one who has the authority to do so has opposed that amendment.

Murphy, who has fought the extension of rights to the Donahue parcels, is without any legal right to do so. Having determined that Murphy retains no interest in the fee in Harbor Lane, the court need not hear Murphy’s objections to the Trust amendments. Murphy is not a trustee, is not a beneficiary of the Trust, and has no title to any property that will be affected by the amendments. As essentially a stranger to the locus and the Trust, Murphy has no standing to object. Citing to Markham v. Fay, 74 F.3d 1347 (1st Cir. 1996), Donahue and the Trustees argue that the unrestricted right to amend or terminate a trust includes “the right to substitute or strike out other beneficiaries.” 74 F.3d at 1357. With no party other than Murphy–and so, no party with standing--objecting to the addition of beneficiaries to the Trust, the court will approve the amendments.

The court concludes that Murphy, who long ago parted with his fee ownership in the way, and who no longer owns any lot in the subdivision, lacks the legal standing and authority to oppose the extension of rights to the additional lots being brought in by the amendment of the trust. The fundamental difficulty with Murphy’s strenuous objection, is that he mounts it as someone lacking any real interest to protect. Indeed, that is the difficulty which afflicts his assertion of ownership of the way--which the court concludes, as matter of law on uncontested facts, he does not have. There is no good explanation why, in the conveyancing of the lots involved here, Murphy would have any proper reason to have clung to the fee title in the roadway once the subdivision process was concluded. His insistence that the way’s fee title remained with him (something the title documents show did not happen) does not come with a satisfying reason why. Keeping the fee title to the roadway, solely to be able to oppose someday the later expansion to others of rights to use the way, is not a plausible basis for having done so.

It is

ORDERED that the motion for summary judgment of Donahue and the Trustees is ALLOWED and the cross motion of Murphy is DENIED. It is further

ORDERED that within fourteen (14) days of the date of this Order, Donahue and the Trustees file and serve a proposed form of order this court would enter, pursuant to G. L. c. 185, § 114, that will be addressed to the Assistant Recorder in the Plymouth District and will, consistent with this Order, direct amendment of the subject certificates of title, and will approve the amendment to the Trust and Easements and Restrictions. Within ten (10) additional days, Murphy is to file and serve a letter indicating his acceptance of the plaintiffs’ proposed form of order, or to file and serve a competing form of order. The court then will issue its final order to the District, directing the indicated alterations and registrations to be made, without further hearing unless otherwise indicated.

So Ordered.