EGIDIO DIODATI, FRANCES DIODATI, CHARLES WHITING, JR., and CARLA WHITING v. GLENN KOHL, KARLA KOHL, and TOWN OF CHELMSFORD.

Whether the defendants Glenn Kohl and Karla Kohl (the “Kohls”) have legal rights of access to their undeveloped 2.1-acre parcel of land at the unbuilt end of Arlington Street in Chelmsford is the only issue in this case. The Kohls point out that their property is landlocked without such access, and argue that the end of Arlington Street is a public way over which they have rights of access, and that if it is not a public way, then the plaintiffs have failed to establish sufficient rights of their own to allow them to exclude the Kohls.

The plaintiffs, Egidio Diodati and Frances Diodati (the “Diodatis”) and Charles Whiting, Jr. and Carla Whiting (the “Whitings”) filed this action in 2010, seeking a declaration that the Kohls have no rights to access their property over the end of Arlington Street. By a third amended complaint, they asserted claims for declaratory judgment, equitable relief, quiet title, removal of a cloud on title, adverse possession, prescriptive easement, and trespass, all concerning the Kohl’s access to their property over the end of Arlington Street, which the Diodatis and the Whitings claim to own. The Town of Chelmsford is also named as a defendant, with the only claim against the Town being a claim that the Town committed a “wrongful taking” with respect to a sewer easement at the end of Arlington Street. The Kohls, in their answer to the third amended complaint, asserted affirmative defenses, but asserted no counterclaims, nor did they assert any crossclaims against the Town.

This matter came on for hearing before me on the Kohls’ motion for summary judgment and on the Diodatis’ and the Whitings’ cross-motion for summary judgment on December 10, 2015. The Town did not submit any motion or opposition, but participated in the hearing of the motions. At the conclusion of the hearing, I directed the parties to file additional documentation concerning whether the Kohls’ property and the plaintiffs’ properties were in common ownership at the time the plaintiffs’ properties and Arlington Street were created by adoption of a subdivision plan in 1921. The parties submitted such additional material on January 19, 2016, at which time I took the matter under advisement. Because, on the undisputed facts, the Kohls have not shown that the end of Arlington Street is a way over which they have any rights of access, or that they have any other property rights over the end of Arlington Street, summary judgment will enter for the plaintiffs and against the Kohls. [Note 1]

FACTS

The material undisputed facts pertinent to this motion for summary judgment are as follows:

THE WESTLANDS SUBDIVISION

1. The parcels that later became the Diodatis’ property and the Whitings’ property, as well as Fair Street and Arlington Street in Chelmsford, were laid out as part of a subdivision plan entitled, “The Westlands”, dated May, 1921, and recorded with the Middlesex North District Registry of Deeds (“Registry”) in Plan Book 42, Plan 28. (the “Westlands Plan”)

2. Arlington Street is laid out by the Westlands Plan as a forty-foot wide way extending approximately 385 feet from the intersection of Dorrance Street on the west to a dead-end at the easterly boundary of the subdivision.

3. Fair Street, parallel to Arlington Street, extends from a dead-end at the westerly boundary of the subdivision, across Dorrance Street, to a dead-end at the easterly boundary of the subdivision.

4. The land that is today the Whitings’ property is shown on the Westlands Plan as contiguous lots 260-267, 284-289, and 314-317, totaling 40,627 square feet, with 225.62 feet of frontage on Fair Street, and 180.64 feet of frontage on Arlington Street.

5. The land that is today the Diodatis’ property (not including an after-acquired parcel, as to which, see infra) is shown on the Westlands Plan as contiguous lots 290-293, and 318, totaling 12,320 square feet, with 111.64 feet of frontage on Arlington Street.

THE PARTIES’ PROPERTIES

6. The Diodatis acquired their property, the same property described in Paragraph 5, above, by a deed dated September 12, 1975, recorded with the Registry in Book 2164, Page 524. The deed describes the property as being “bounded” in part by Arlington Street, for a distance of 111.64 feet. This property is improved by a single-family dwelling in which the Diodatis reside. (hereinafter, the “Diodati property”)

7. The Diodatis acquired a second parcel, (the “Diodati additional parcel”) which is contiguous to the eastern boundary of the Diodati property, and which is unimproved. This parcel, totaling 20,375 square feet, was acquired by the Diodatis by a deed dated October 26, 1977, recorded with the Registry in Book 2280, Page 576. The grantors of the Diodati additional parcel were Ellen C. Yates and Claude Harvey.

8. The Whitings acquired their property, the same property described in Paragraph 4, above, by a deed dated August 3, 1993, recorded with the Registry in Book 6605, Page 216. The deed describes the property as being “bounded” in part by Arlington Street, and in part by Fair Street.

9. The Kohls acquired a parcel of land improved by a single-family dwelling, in which they reside, and on which they operate a working farm, by a deed from Faye and Ronald Yates and Robert C. Yates, dated July 19, 1994, and recorded with the Registry in Book 7166, Page 73. This parcel, with an address of 26 Wildwood Street, Chelmsford, totals 7.25 acres. The stated consideration in the deed was $60,000.00.

10. By a deed dated November 21, 1995, also from Faye and Ronald Yates and Robert C. Yates, the Kohls acquired a second parcel of land, unimproved, and totaling 2.1 acres, for a stated consideration of $1,500.00. This parcel (the “Subject Parcel”) is bounded on the south by the Diodati additional parcel, and on the west by the eastern boundaries of the Diodati property, the dead-end of Arlington Street, the Whiting property, and the dead-end of Fair Street. The Diodati additional parcel lies between the Kohls’ 7.25 acre parcel on Wildwood Street, and the Subject Parcel. [Note 2]

11. Neither the Kohl’s 7.25-acre residential property nor the 2.1-acre Subject Parcel have been in common ownership at any relevant time with any of the land in the Westlands subdivision. Specifically, at the time the Westlands Plan was recorded, and at all subsequent times, the Subject Parcel was not owned by the owner of any of the land shown on the Westlands Plan.

ARLINGTON STREET

12. By an order of taking dated February 19, 1959, the Town of Chelmsford accomplished the eminent domain taking of the fee and the laying out as a public way of so much of Arlington Street, as shown on the Westlands Plan, as lay within 250 feet of Dorrance Street on the southerly boundary of the way, and 255.24 feet on the northerly boundary of the way. Thus, Arlington Street is a public way for approximately 250 feet of its approximate length of 385 feet.

13. The public way portion of Arlington Street is paved, as is approximately another seventy feet, leaving the last sixty to sixty-five feet unpaved and unimproved.

14. Both the Diodatis and the Whitings have their frontage on both the paved portion of Arlington Street beyond the limits of the public way, and on the unimproved portion of the end of Arlington Street. As a practical matter, both the Diodatis and the Whitings gain access to their properties from the paved portion of Arlington Street to the east of the public portion of the way.

15. The Town of Chelmsford has installed a sewer line under the entire length of Arlington Street, which is looped, by way of an easement on the Subject Parcel, to a sewer pump station located on Fair Street. The Town also installed a fire hydrant at the end of the paved portion of Arlington Street, in the center of the street, about seventy feet beyond the limit of the 250-foot long public way. It is unclear on the record whether the Town formally took an easement to facilitate the installation of the hydrant or the sewer line, but it is undisputed that neither the Diodatis nor the Whitings were offered or received any compensation with respect to these improvements.

16. The Town of Chelmsford plows snow on Arlington Street sometimes as far as the end of the public way, sometimes past the Diodatis’ and Whitings’ driveways to the end of the paved portion of the street, but never plows the unimproved last sixty to sixty-five feet of Arlington Street past the pavement.

FAIR STREET

17. Fair Street, which abuts the Whiting property to the south and the Subject parcel to the east, at its end, has at all relevant times, since being laid out as part of the Westlands Plan subdivision, remained a private way.

18. By an order of taking dated February 28, 1994, the Town of Chelmsford took land by eminent domain in Fair Street for the purpose of constructing a sewer pump station. The Whitings were compensated for the taking. As a result of this taking and the subsequent construction of the sewer pump station, use of Fair Street for physical access to and from the Subject Parcel (assuming the existence of a legal right to access) would be precluded.

DISCUSSION

“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 may be 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).

I. THE EASTERN END OF ARLINGTON STREET IS NOT A PUBLIC WAY.

The Kohls put much store in their argument that Arlington Street, for its entire length, as laid out by the 1921 Westlands Plan, is a public way. In support of this argument they point to the 1959 order of taking by which the Town of Chelmsford took the fee in Arlington Street to be a public way. However, the order of taking describes the taking by a metes and bounds description of the portion of Arlington Street being taken, and that description is limited to approximately (depending on the point in the way at which the measurement is taken) 250 feet of Arlington Street as laid out by the Westlands Plan. While it is not clear why the Town would not have taken the entire length of Arlington Street, plainly it did not take the easterly approximately 135 feet of the way as laid out by the Westlands Plan.

A road may become a public way by one of three methods: “(1) a laying out by public authority in the manner prescribed by statute (G. L. c. 82, §§1-32)…(2) prescription; [or] prior to 1846, a dedication by the owner…coupled with…acceptance by the public.” Rivers v. Warwick, 37 Mass. App. Ct. 593 , 595-595 (1994), quoting Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 82-84 (1979). That the Town of Chelmsford utilized the statutory procedure of G. L. c. 82, §§21-24 to take and accept a portion of Arlington Street, which had already been laid out as a private subdivision way in 1921, as a public way, is not in dispute. The order of taking is explicit with respect to the limits of the way to be accepted as a public way: “Arlington Street…to be laid out and the fee in the land hereinafter described be taken as a public way as follows:…” There follows a metes and bounds description that includes a length of 250 feet from the intersection of Dorrance Street on the southerly boundary of Arlington Street, and a length of 255.24 feet from Dorrance Street on the northerly boundary of Arlington Street. [Note 3] This description leaves the easterly approximately 130-135 feet of Arlington outside the boundaries of the public way.

The Kohls argue that, despite the limitation in the 1959 order of taking, which laid out only 250 feet (measured along the southern edge) of Arlington Street as a public way, the entirety of Arlington Street was taken as a public way because the Town “treated the entirety of Arlington Street as if it owned it.” [Note 4] This is, in effect, an argument that the Town took the easterly 135 feet (approximately) of Arlington Street by prescription.

The Kohls offer the following evidence in support of this argument: approximately seventy feet beyond the limits of the formally taken public way were paved; a fire hydrant was installed by the town at the end of the pavement; the Town has plowed snow to the end of the pavement; and the Town has taken a sewer line under the entire length of Arlington Street, which loops with the sewer line in the Kohls’ property and the sewer line in Fair Street. While the facts offered with respect to the approximately seventy feet of pavement beyond the limits of the established public way might create an issue of fact with respect to whether that portion has been taken by prescription, there is no suggestion of activity in the easterly approximately sixty feet of Arlington Street that gives rise to any disputed fact that, if established, could establish the laying out of the end of Arlington Street as a public way. “[T]he creation of a public way by adverse use depends on a showing of ‘actual public use, general, uninterrupted, continued for [twenty years].’” Fenn v. Middleborough, supra, 7 Mass. App. Ct. at 84, quoting Jennings v. Tisbury, 5 Gray 73 , 74 (1855). The only activity suggested by the Kohls in the most easterly sixty feet of Arlington Street is the installation by the Town of a sewer line. At best, this installation, if done adversely, and maintained continuously for twenty years (which does not appear to be the case, the sewer line having been installed in approximately 1994), would support a finding that a sewer easement, and not a public way, had been established by prescription. The Kohls present no evidence of paving, travel by the public, maintenance or snow plowing by the Town, or other use by the general public of the easterly approximately sixty feet of Arlington Street that presents even a question of whether there has been establishment of a public way by prescription. Accordingly, there is no dispute of material fact with respect to whether the easterly sixty feet of Arlington Street, at the very least, is a public way. Nor does the laying out of Arlington Street as a way on a subdivision plan give it any status as a public way. See Murphy v. Donovan, 4 Mass. App. Ct. 519 , 526 (1976) (approval of subdivision plan by planning board vested no rights in the subdivision roadway in the public). [Note 5]

II. THE KOHLS HAVE NO PRIVATE RIGHTS IN ARLINGTON STREET.

Since the Kohls have not established that the easterly end of Arlington Street is a public way, it remains to determine whether the Kohls have any private rights of access over the private portion of Arlington Street where it abuts the Subject Parcel so as to afford the Kohls access to that property.

A. The Plaintiffs Own Arlington Street to the Centerline in Front of Their Properties.

The Diodatis and the Whitings each, respectively, own land along the frontage of the private portion of Arlington Street. The Kohls’ Subject Parcel, for the benefit of which they seek right of access over Arlington Street, abuts the end of the private portion of Arlington Street, for its forty-foot width where it ends at the Kohls’ westerly boundary line.

G. L. c. 183, §58, the so-called “derelict fee” statute, provides as follows:

Every 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, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.

Both the Diodatis and the Whitings acquired their properties by deeds describing the properties as being “bounded” by Arlington Street, and it is undisputed that both properties have frontage on Arlington Street. It is further undisputed that both the Diodati property and the Whiting property are the result of merged lots in the Westlands subdivision that created Arlington Street, and that the original deeds out of the properties came from the grantor that created the subdivision and Arlington Street. Consequently, the Diodatis and the Whitings each own the fee of Arlington Street to its centerline for the entire length of their frontage, unless that fee was reserved by their grantor or a predecessor. The Kohls have not shown the existence of any such reservation of rights by any predecessor owner of Arlington Street or the Westlands subdivision. Indeed, the first deed out of the lots that eventually became the Diodati property and the Whiting property, expressly conveyed the fee in Arlington Street to the grantees of the lots, “to the center line of that part of the streets opposite which said lots abut, subject to the streets easement.” [Note 6] This deed establishes no more than that the abutters, the Diodatis and the Whitings, own the fee in Arlington Street subject to the easement rights of others who also have rights on Arlington Street. For reasons stated below, those persons do not in any case include the Kohls or other owners of the Subject Parcel.

B. The Kohls Have No Rights in Arlington Street by Deed or by Virtue of Abutting the End of Arlington Street.

The Kohls’ Subject Parcel is at the end of Arlington Street, and does not abut Arlington Street at any point along its length. The derelict fee statute affords no ownership of a street to the owner of property at the end of the street. “Real estate located at the end of a way does not abut the way for the purposes of (G. L. c. 183, §58) and therefore carries no fee ownership of the way.” Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 622-623, fn. 3 (1990). “[L]ogically the landowner at the end of a way cannot acquire any fee interest in the way without encroaching on the property rights, if any, of the abutting side owners. The term ‘abutting,’ in the context of fee ownership of ways after conveyance of property bounded on a way, thus refers to property with frontage along the length of a way.” Emery v. Crowley, 371 Mass. 489 , 494 (1976).

The reference in the first deed out of the lots in the Westlands subdivision to the fee in the streets being “subject to the streets easement” does not convey any rights to the Kohls, whose property was not part of the land subdivided by the Westlands Plan. The Kohls have not pointed out any document by which they claim to have been the grantee of any “street easement” conveyed by the subdivider of the Westlands subdivision. The Kohls do not claim any explicitly deeded rights to Arlington Street except pursuant to the derelict fee statute. The Kohls have conceded that the land subdivided by the Westlands Plan and land in the Subject Parcel were not owned by a common grantor at any relevant time.

C. The Kohls Do Not Have Any Easement Rights in Arlington Street by Estoppel.

The Kohls argue that they are entitled to an easement by estoppel in Arlington Street, citing Goldstein v. Beal, 317 Mass. 750 , 755 (1945) for the proposition that when a grantor conveys land bounded by a street or way and situated on a street in accordance with a recorded plan that shows the street, the grantor and those claiming under him are estopped to deny the existence of the street for the distance shown on the plan. However, such obligations of a grantor occur only when the land conveyed is in the subdivision showing the street or way and where the grantor is the common grantor of the land for which the easement rights are sought and the street or way over which the easement will apply. See Boudreau v. Coleman, supra, 29 Mass. App. Ct. at 628 (presumed intent of the grantors to convey an easement in a way to be determined “at the time common ownership was first severed”). Application of the doctrine of easement by estoppel is only appropriate when seeking to assert claims of “grantees or their successors in title against their grantors and their successors in title.” Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 482 (1989). In other words, where the property upon which the easement is sought to be imposed did not come from the same grantor as the property sought to be benefitted, there is no valid argument for imposition of an easement by estoppel (or, for that matter, by implication or necessity). Id. at 481-482. The Massachusetts Appeals Court has rejected subsequent efforts to broaden application of the principle of easement by estoppel beyond these limitations. Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 , 355-356 (2007). Since the Subject Parcel and the property of the plaintiffs (along with the rest of the Westlands subdivision) do not come from a common grantor, there is no occasion to apply the doctrine of easement by estoppel.

There is also no occasion to apply the doctrine of estoppel on the basis of representations made by Mr. Diodati to the Chelmsford Planning Board in connection with the approval of an Approval Not Required (“ANR”) plan pursuant to G. L. c. 41, §81P for the Diodati additional parcel, to the effect that by purchasing the Diodati additional parcel he would not be landlocking the Subject Parcel. That would have been a correct statement, since the Diodati additional parcel, which lies between what is now the two Kohl parcels, has not at any relevant time been in common ownership with the two Kohl parcels and was already landlocked. The two Kohl parcels were owned by Fay and Ronald Yates and Robert Yates, and the Diodati additional parcel between them was owned by Ellen Yates and Claude Harvey. Thus, the Subject Parcel was already landlocked even prior to its 1977 sale to the Diodatis. Nothing about the sale to Diodati or the approval of an ANR plan landlocked the Subject Parcel, because it was already in separate ownership from the two Kohl parcels and therefore did not afford any access to from the Subject Parcel to Wildwood Street or any other public way over the 7.25-acre Kohl residential parcel. Presumably, this landlocked status was a consideration in determining the nominal price of $1,500.00 for 2.1 acres of land when the Kohls acquired the Subject Parcel in 1995.

Because I have ruled that the plaintiffs have deeded ownership rights to the centerline of Arlington Street, I do not need to reach the Kohls’ argument that the plaintiffs cannot establish rights in Arlington Street by adverse possession or by prescription. Similarly, I note that the Kohls have not made any claim that they have acquired rights in Arlington Street by adverse use or prescription, nor have they put forth any facts that would, if accepted as true, support such a conclusion. [Note 7]

CONCLUSION

For the reasons stated above, the motion for summary judgment of the defendants is DENIED, and the plaintiffs’ cross-motion for summary judgment is ALLOWED.

Judgment will enter in accordance with this Decision.

Exhibit 1