ANASTASIA MARTY, Trustee of the 249 Long Beach Road Realty Trust, vs. MARK BODZIOCH, Trustee of the Bodzioch Family Irrevocable Qualified Personal Residence Trust, and the TOWN OF BARNSTABLE.

On October 14, 2011, Plaintiff Anastasia Marty (“Marty”), trustee of the 249 Long Beach Road Realty Trust (the “Trust”) filed a Complaint (“the Complaint”) seeking, pursuant to G.L. c. 185, § 26, to register and confirm the title to the property located at 249 Long Beach Road, in Centerville (the “Marty Property”), as well as the portion of a private way known as Cross Street adjacent to her property. [Note 1] Cross Street runs north-south from the Centerville River (a tidal estuary), crosses Long Beach Road, and from there continues southerly to the beach on Centerville Harbor in the Nantucket Sound. The portion of Cross Street south of Long Beach Road abuts the Marty Property.

By Order dated October 18, 2011, this court appointed Bernard T. Kilroy (the “Examiner”) as title examiner for this case. Marty, on behalf of the Trust, recorded notice of the filing of the Complaint on October 21, 2011. A case management conference was held on November 29, 2011. The Examiner filed his title report on June 8, 2012. Based on that report, a citation for publication of notice of the registration issued on February 27, 2014, with a return date of April 7, 2014. On April 7, 2014, the Town of Barnstable (the “Town”) filed an Answer with counterclaims disputing the registration of Cross Street and alleging that “Cross Street is a Town way, notwithstanding the judgment in [the Prior Action, defined infra]”. On April 8, 2014, Mark Bodzioch, trustee of the Bodzioch Family Irrevocable Qualified Personal Residence Trust (“Bodzioch”) filed his own Answer, in which he too disputed the registration of Cross Street, alleging that he had an interest therein by easement and/or by adverse possession. [Note 2] A second case management conference was held on May 27, 2014, at which the court set a schedule for discovery. On April 1, 2015, Marty filed a motion to default all potential parties in interest who did not respond to the publication of notice, which the court allowed on April 14, 2015.

On July 27, 2015, Marty filed a statement of proposed undisputed material facts, supported by a memorandum and appendix of exhibits. On August 17, 2015, she filed supporting affidavits of Howard Reisman and Robin R. Reisman. On August 24, 2015, the Town filed its own statement of proposed undisputed material facts and supporting brief. On September 1, 2015, Bodzioch filed his response and opposition to Marty’s statement of proposed undisputed material facts, supported by an affidavit of Mark Bodzioch. The same date, Marty filed a response to the Town’s filing.

Because I determined that the issues in dispute between Marty and Bodzioch could not be resolved as a matter of law, I declined to hear dispositive motions on any of the issues in the case, and, instead, set the case down for a pretrial conference. At the pretrial conference, held on March 15, 2016, I asked that Bodzioch prepare an amended pre-trial memorandum stating, with particularity, the positions he intended to take at trial. I also scheduled a site view of the properties at issue for May 3, 2016 and a trial for May 16-17, 2016. At that time, despite the fact that I had notified the parties that summary judgment was not appropriate in this case, Marty purported to file a motion for summary judgment. I declined to hear that motion for the reasons already given. At a status conference held on April 26, 2016, the parties reported that all discovery was complete. All parties agreed, at that time, that the issues in dispute between Marty and the Town could be ruled upon based on documentary evidence, without the need for presentation of additional evidence at trial.

The site view took place on May 3, 2016. On May 12, 2016, Marty and Bodzioch reported that they had reached an agreement to settle their claims in this case, leaving the Town as the sole remaining Defendant. Thus, the trial in this matter was cancelled. A fully-executed agreement settling all issues between Marty and Bodzioch was filed on May 20, 2016. [Note 3] At a status conference held on May 20, 2016, counsel for Marty and the Town both agreed that the issues in dispute between them could be resolved through summary judgment. Thus, they requested a briefing schedule for such motions.

On June 2, 2016, Marty filed her motion for summary judgment, arguing, primarily, that the Town’s easement claims pertaining to Cross Street were barred as res judicata, but also that, even if such claims were not barred, that would they fail as a matter of law. The Town filed its opposition to Marty’s motion on July 11, 2016. Marty filed her reply brief on July 15, 2016. A hearing on Marty’s motion was held on July 18, 2016, and, at that time, the matter was taken under advisement.

Based upon the agreed-upon facts and undisputed documents in the summary judgment record, I find that the following material facts are not in dispute:

1. On December 9, 1912, Everett W. Lewis (“Lewis”) caused to be recorded a plan of land entitled “Map of Chequaquet Beach, Centerville, Barnstable Co., Mass., Scale 100 ft. = 1 inch, Everett W. Lewis, Owner and Surveyor” in the Barnstable County Registry of Deeds (the “Registry”) at Plan Book 27, Page 141 (the “Lewis Plan”). The Lewis Plan depicts, among other things, sixteen numbered lots (numbered from “1" to “16”) located on both sides of Long Beach Road (then known as River Street), as well as Cross Street. At that time, Lewis was the owner of these lots “1” through “16”, as well as the owner of the fee in Cross Street. [Note 4]

2. By deed dated January 30, 2001 and recorded in the Registry at Book 14477, Page 291 (the “Marty Deed”), Marty, personally, deeded the Marty Property and the fee in the portion of Cross Street south of Long Beach Road and north of the high water mark of Nantucket Sound to herself as trustee of the Trust. [Note 5] As described in the Marty Deed, the Marty Property comprises all of lot “7” and a portion of lot “5” on the Lewis Plan.

3. By deed dated July 16, 1913 and recorded in the Registry at Book 326, Page 87 (the “Town Deed”), Lewis conveyed lots “9” and “10” on the Lewis Plan (together, the “Town Lot”) to the Town. [Note 6] No reference is made in the Town Deed to Cross Street or rights therein. These lots are located to the west of -- and do not abut -- the Marty Property, the Bodzioch Property, and Cross Street. As shown on the Lewis Plan, lots “9” and “10” are located across from each other, separated by Long Beach Road; lot “10” lies north of Long Beach Road (abutting the Centerville River) and lot “9” lies south of Long Beach Road (abutting Nantucket Sound). Lot “9” is presently used as a public right of way to the water and as a beach for the residents of the Town, and lot “10” is a resident-sticker-required public parking lot for beachgoers.

4. There is no deed recorded in the Registry specifically conveying to the Town either the fee to or an easement in the area of Cross Street south of Long Beach Road.

5. On December 27, 2007, Marty commenced a case in the Land Court entitled Marty v. Town of Barnstable (Land Court Case No.: 07 MISC 364833 (HMG)) (the “Prior Action”), seeking, among other things, a declaratory judgment that the Town had acquired no “prescriptive rights” in Cross Street, and that she was the owner of Cross Street “free and clear from any claim of right in the [Town]” with an “exclusive possessory right” to Cross Street.

6. The Town, in the Prior Action, disputed Marty’s claims and requested that the court instead find that Cross Street was a public way, that the Town had either a public way easement pursuant to the Town Deed or a prescriptive easement based upon adverse use, and that the Town was entitled to have its easement rights registered under G.L. c. 185.

7. While the Prior Action was pending, Marty commenced this Registration case, on October 14, 2011. No active litigation in this case occurred over approximately the next two years while the Prior Action was pending before the Land Court.

8. A one-day trial in the Prior Action was held by the court (Grossman, J.) on November 28, 2012 between Marty and the Town regarding the ownership of and rights in Cross Street. On August 8, 2013, the court (Grossman, J.) issued a decision (the “Prior Action Decision”) and Judgment (the “Prior Action Judgment”) in the Prior Action, holding, inter alia, that the Town had “failed to prove that [Cross Street] . . . was properly laid out as a public way.” [Note 7] Neither the Prior Action Decision nor the Prior Action Judgment addressed or made any specific ruling on whether the Town had either an easement by estoppel or an implied easement over Cross Street. However, the Prior Action Judgment did hold that “[P]laintiff holds record title to [Cross Street] . . . free of any claim by [the Town].”

9. The Town appealed the Prior Action Decision and Judgment to the Appeals Court. While that appealwas pending, Plaintiff began pursuing this case once again. Notices in this case were issued and publication was made in early 2014. On April 7, 2014, the Town filed its Answer in this case, alleging that “Cross Street is a Town way, notwithstanding the judgment in [the Prior Action,] which the [Town] has appealed . . . .” The Town’s Answer did not specify the theory of relief upon which its claim of rights in Cross Street in this case was based.

10. By Decision dated August 19, 2014 (the “Appeals Court Decision”), the Appeals Court affirmed the Prior Action Decision and Judgment, holding, inter alia, that “the town . . . failed to prove that [Cross Street] is a public way.” [Note 8]

11. The Town never amended its Answer in this case to specify the theory of relief it intended to pursue in this case to establish easement rights in Cross Street. However, in the parties’ joint pre-trial memorandum, the Town framed its present claim as follows:

Cross Street retains its status as a private way and the Town as owner of two lots on the [Lewis Plan] as a municipal corporation has the right to use Cross Street as a private way to the same extent as any other private owner by implication and that Marty is estopped from denying the Town that right by reason of the grant of the [Town Deed]. [Note 9]

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Marty argues that the Town is barred from claiming any interest in Cross Street based on the doctrine of res judicata. In the alternative, Marty further argues that the Town cannot prove the essential elements necessary to establish an easement by estoppel or implication over Cross Street. Marty and the Town have agreed that these issues can and should be resolved as a matter or law, and thus that summary judgment is appropriate in this instance.

Res Judicata

Res judicata is a general term for the legal principle that a prior ruling, in certain circumstances, has a binding effect in future actions as against certain parties. It encompasses both claim preclusion and issue preclusion (formerly referred to as collateral estoppel). See Heacock v. Heacock, 402 Mass. 21 , 23-25 (1988); TLT Constr. Corp. v. A. Anthony Tappe & Assoc’s, 48 Mass. App. Ct. 1 , 5 (1999) (“thus we look to the record to see what was actually litigated”). “These two doctrines protect against the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foster [ ] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Korn v. Paul Revere Life Ins. Co., 83 Mass. App. Ct. 432 , 436 (2013) (quotation omitted).

a. Claim Preclusion

Turning first to claim preclusion, this doctrine “makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action.” Heacock, 402 Mass. at 23. Claim preclusion is based upon “policy considerations that underlie the rule against splitting a cause of action, and is based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.” Massaro v. Walsh, 71 Mass. App. Ct. 562 , 565 (2008); see also Bagley v. Moxley, 407 Mass. 633 , 638 (1990) (“The plaintiffs were not entitled to pursue their claim of ownership through piecemeal litigation, offering one legal theory to the court while holding others in reserve for future litigation should the first theory prove unsuccessful.”)

“The invocation of claim preclusion requires three elements: (1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” Kobrin v. Bd. of Registration of Med., 444 Mass. 837 , 843 (2005) (quotation omitted); see also Blanchette v. Sch. Comm. of Westwood, 427 Mass. 176 , 180 (1998) (“The inquiry turns, in large part, on whether the right or issue on which preclusion is sought has been the product of full litigation and careful decision.” (quotation omitted)). Where these elements are present, claim preclusion “will be applied to extinguish a claim even though the plaintiff is prepared in the second action to present evidence, grounds, or theories of the case not presented in the first action or to seek remedies or forms of relief not demanded in the first action.” Massaro, 71 Mass. App. Ct. at 565.

Massachusetts courts “have adopted a broad transactional approach to the application of res judicata” in determining whether there was identity of the cause of action. Korn, 83 Mass. App. Ct. at 436 n. 2. Under this approach, courts look to whether the claims asserted in both actions “pertain[ ] to a common nucleus of operative facts”, Boyd v. Jamaica Plain Co-op. Bank, 7 Mass. App. Ct. 153 , 164 (1979), and, if so, “the entry of a valid and final judgment [in the prior action] extinguishes . . . all rights of a plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Massaro, 71 Mass. App. Ct. at 565 (quotation omitted). [Note 10] “[T]o bring claim preclusion into play, a cause of action need not be a clone of the earlier cause of action.” Korn, 83 Mass. App. Ct. at 437 n. 3 (quotation omitted).

The first and third elements of claim preclusion are easily met here. It is obvious and undisputed that the remaining parties in this case (Marty and the Town) are the same parties whose rights and claims were litigated in the Prior Action, so the first element of claim preclusion (identity or privity of parties) is clearly met. Likewise, it is undisputed that the Prior Action was decided on the merits after a trial (and affirmed on appeal), so the third element of claim preclusion (final judgment) is also met. Thus, a finding of claim preclusion in the present case turns on the second element of claim preclusion: whether the Town’s easement claims asserted in this case are identical to the claims that were (or should have been) litigated in the Prior Action.

In the Prior Action, the Town claimed that Cross Street had been duly laid out as a public way by the Town, and thus that the Town held a public way easement in Cross Street. Marty disputed that Cross Street was a public way, arguing that she owned the title to Cross Street free of any claims by the Town. As noted above, the court, in the Prior Action Decision and Judgment, found in favor of Marty, which finding was affirmed by the Appeals Court. In this case, the Town now acknowledges that Cross Street is a private way owned by Marty, but claims that the Town nonetheless has implied easement rights in Cross Street, and that Marty should be estopped from denying such rights because the Lewis Plan, which is referred to in the Town Deed, depicts Cross Street (which is not itself referred to in the Town Deed).

The Town’s claim in the Prior Action (public use easement by laying out) and its claims in this case (implied easement and estoppel) are somewhat distinct (and conflicting) claims. However, in that case, as noted above, Marty had sought global declaratory relief with respect to the parties’ rights, specifically that she was the owner of Cross Street “free and clear from any claim of right in the [Town]” with an “exclusive possessory right” to Cross Street. Thus, what the Town now seeks to do -- assert a new legal theory to establish rights in Cross Street, having lost on its ownership claims -- amounts to exactly the kind of claim-splitting that the doctrine of res judicata was meant to discourage. See Bagley, 407 Mass. at 638.

In Bagley, the plaintiffs, having lost on their fee title claims in a prior case, brought a second case, seeking a finding of title by adverse possession. There, as here, such a blatant attempt at claim splitting was not permitted. Rather, the court held:

Were we to allow the plaintiffs' claim to continue, we would have to turn a blind eye to [c]onsiderations of fairness and the requirements of efficient judicial administration [that] dictate that an opposing party in a particular action as well as the court is entitled to be free from continuing attempts to relitigate the same claim. This we will not do. Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.

Id. at 638-639.

The same considerations apply equally in this case. Here, the Town was fully on notice that Marty sought, in the Prior Action, to extinguish, once and for all, any and all rights in Cross Street that the Town might have had in Cross Street, whatever form those rights might take. Thus, the Town had an obvious “incentive and opportunity”, Massaro, 71 Mass. App. Ct. at 565, to litigate any and all theories upon which it might have claimed an easement in Cross Street, pleaded in the alternative in accordance with Mass. R. Civ. P. 8(a) (“Relief in the alternative or of several different types may be demanded.”) -- not just one easement theory (public way easement by layout), to the exclusion of another (easement by implication and estoppel). [Note 11]

In addition to the foregoing, it is clear that the Town’s public easement claim in the Prior Action and its easement by implication and estoppel claims in this case “pertain[ ] to a common nucleus of operative facts”, Boyd, 7 Mass. App. Ct. at 164, as they are both based upon the same deed: the Town Deed. Moreover, the Town’s present claims do not involve facts that were not extant at the time of the Prior Action. Rather, the only difference is that the Town now “is prepared . . . to present evidence, grounds, or theories of the case not presented in the first action or to seek remedies or forms of relief not demanded in the first action”, Massaro, 71 Mass. App. Ct. at 565.

In sum, having already sustained the determination that the Town held no rights in Cross Street, the Town cannot now attempt to establish such rights again in this case by proffering a new legal theory upon which such rights might have been established. As such, the second element of claim preclusion is met. Thus, I FIND that all of the elements of claim preclusion are met here, and thus that the Town’s easement claims in this case are barred by claim preclusion.

b. Issue Preclusion

In addition to the Town’s claims being barred by claim preclusion, the issues raised by them also appear to be barred by issue preclusion. Issue preclusion prevents relitigation of an issue determined in an earlier action when that issue subsequently arises in another action, whether on the same or different claim, and sometimes when the subsequent action involves different parties. See Jarosz v. Palmer, 436 Mass. 526 , 530 (2002); TLT Constr. Corp., 48 Mass. App. Ct. at 7. Four elements must be present for issue preclusion to apply:

Before precluding a party from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication. Additionally, [4] the issue decided in the prior adjudication must have been essential to the earlier judgment.

Kobrin, 444 Mass. at 843-44 (quotations omitted); see also Comm’r of the Dep’t of Emp’t & Training v. Dugan, 428 Mass. 138 , 142 (1998); Tuper v. N. Adams Ambulance Serv., 428 Mass. 132 , 134-35 (1998); Fay v. Fed. Nat’l Mortg. Ass’n, 419 Mass. 782 , 789-90 (1995).

Here, the first two elements of issue preclusion are easily met. First, the Prior Action was decided by a final Decision and Judgment on the merits after a trial. Thus, the first (“final judgment”) element of issue preclusion is met. See Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 52 (1997); Jarosz, 436 Mass. at 531. Next, because the remaining parties in the present case (Marty and the Town) are identical to the parties in the Prior Action, the second (“privity”) element is also met. See Kobrin, 444 Mass. at 844.

Turning to the third and fourth elements of issue preclusion, it is instructive to consult Green v. Brookline, 53 Mass. App. Ct. 120 , 123-126 (2001). In Green, the court was called upon to determine whether a prior determinationthat a termination of employment was done with “just cause” had preclusive effect in a second case (asserting different statutory claims relating to the same termination) on the question of whether the termination had been done in “bad faith”. Despite the fact that the prior case did not specifically address bad faith or make any explicit ruling on that question, the Green court nonetheless found that the prior ruling (finding just cause for the termination) constituted a ruling on the identical issue presented in the subsequent case (whether the termination was done in “bad faith”), since “a finding of just cause implicitly connotes the absence of bad faith”. Id. at 125. Thus, the court held, issue preclusion barred relitigation of the issue of bad faith in the second case.

The same is true here. Because the court in the Prior Action held -- and the Appeals Court affirmed -- that Marty owned record title to Cross Street “free of any claim by [the Town]”, this determination necessarily implies a corollary finding that the Town held no easement rights (on any theory) in Cross Street. Thus, as in Green, the issue in the Prior Action can be said to be identical to the issue in the present case, and thus the third (“identity”) element of issue preclusion is met. For the same reason, without the corollary conclusion that the Town lacked easement rights (on any theory) in Cross Street in the Prior Action, the court could not have reached the conclusion that “[P]laintiff holds record title to [Cross Street] . . . free of any claim by [the Town]”. As such, this corollary conclusion was essential to the holding in the Prior Action, and the fourth “essentiality” element of issue preclusion is met.

In sum, I FIND that all of the elements of issue preclusion are met here, and thus that the issues raised in the Town’s easement claims in this case are barred by issue preclusion.

The Town’s Easement Claims

Because I have found the Town’s claims barred, I need not and do not rule on the merits of the Town’s claims. However, even if those claims, and the issues raised thereby, were not barred, it appears that the undisputed facts presented by this case would not bode well for the Town’s claims. As noted above, the Town claims in this case that it “has the right to use Cross Street as a private way . . . by implication and that Marty is estopped from denying the Town that right . . . .” I will address the Town’s estoppel arguments first.

While other states have recognized the possibility that easements may arise based upon the general equitable principles of estoppel premised upon justifiable reliance (such as a party changing its position to its detriment based on reasonable reliance on misleading conduct), Massachusetts does not. Rather, Massachusetts recognizes easements byestoppelonlyintwo related circumstances. First: “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.” Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481 (1989) (quotation omitted). Second: “where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan. Id. at 482 (quotation omitted).

Neither of these easement by estoppel situations has obvious applicability here because Cross Street does not actually abut the Town Lot Indeed, the Town specifically acknowledges in its moving papers that the first Patel situation is entirely inapplicable. Thus, the Town’s claim relies on the second Patel situation. Yet, recognizing that the fact that the Town Lot does not abut Cross Street still presents a problem here too, the Town rests its claim on the following observation made by the Appeals Court (in dicta) in Patel: “consonant with the second [situation noted above], an easement by estoppel in favor of a grantee of land shown on a recorded plan would extend to all ways shown on the plan which the grantee might reasonably have expected he would have the right to use.” Patel, 27 Mass. App. Ct. at 481.

The Town’s reliance on this comment in Patel is unwarranted. Not only is it dicta and unsupported by any citation of law, more importantly, it appears to run afoul of the long-standing and well-established rule that a “reference to a plan [in a deed] . . . does not give every purchaser of a lot a right of way over every street laid down upon it. [Rather] . . . an easement . . . is created only if clearly so intended by the parties to the deed.” Jackson v. Knott, 418 Mass. 704 , 711-712 (1994); see also Pearson v. Allen, 151 Mass. 79 , 82 (1890). Moreover, this court is unaware of any court applying this provision of Patel cited by the Town, and notes that more recent cases than Patel have reaffirmed that the stricter rule applied in Jackson remains in force. See Hickey v. Pathways Ass’n, Inc., 472 Mass. 735 , 763, n. 35 (2015) (grantor’s “intent is paramount”) (citing Jackson). Thus, the precedential value of this comment in Patel is highly questionable.

In sum, it does not appear that the facts presented by this case support a claim of easement by estoppel. Moreover, even if either Patel situation, cited above, were applicable here, that would still not be enough to get the Town where it wants to be because, irrespective of whether a party might be estopped from denying the existence of a way, that does not necessarily establish that a party claiming rights in that way actually has those rights. Marty, in neither the Prior Action nor in this case, has ever purported to deny the existence of Cross Street. Rather, she disputed whether the Town had any implied rights in Cross Street -- an entirely separate question. Thus, I come to the Town’s claim that it has an implied easement in Cross Street.

To establish an implied easement, it is the burden of the party claiming such easement to show that it was the presumed intention of the parties at the time of the conveyance to create an easement. See Reagan v. Brissey, 446 Mass. 452 , 458 (2006); Labounty v. Vickers, 352 Mass. 337 , 344 (1967); Dale v. Bedal, 305 Mass. 102 , 103 (1940). Such an intention can be based upon “the language of the instruments when read in light of the circumstances attending their execution, the physical condition of the premises, and the knowledge of the parties.” Id.; see also Reagan, 446 Mass. at 458; Labounty, 352 Mass. at 344. The easement must also be reasonably necessary for the enjoyment of the land conveyed. See Krinsky v. Hoffman, 326 Mass. 683 , 688-89 (1951).

The basis of the Town’s implied easement claim is the principle that “a right of way shown on a plan becomes appurtenant to the premises conveyed as clearly as if mentioned in the deed.” Hickey, 472 Mass. at 754 (quotation omitted)); see also Bos. Water Power Co. v. City of Bos., 127 Mass. 374 , 376 (1879) (a plan “referred to in the deeds to the purchasers . . . must be considered as making a part of the contract in each case, so far as is necessary to aid in the identification of the lots, and the description of the rights intended to be conveyed.”).

Here, however, the Town’s claims once again hit a snag, since, as discussed above, “[a] reference [in a deed] to a plan . . . laying out a large tract, does not give every purchaser of a lot a right of way over every street laid down upon it.” Jackson, 418 Mass. at 711. Rather, the grantor’s “intent is paramount.” Hickey 472 Mass. at 763, n. 35. “In determining [such] intent, the entire situation at the time the deeds were given must be considered.” Id. at 754 (quoting Goldstein v. Beal, 317 Mass. 750 , 755 (1945)).

Here, the undisputed facts offer little help to the Town’s claims. No evidence was presented to suggest that Lewis, the grantor of the Town Deed, intended the Town Lot to be benefitted by appurtenant access rights over Cross Street, nor that the Town (or the public) ever did use Cross Street for that purpose. [Note 12] The Town Deed makes no reference to Cross Street, and there is nothing on the face of the Town Deed or the Lewis Plan to suggest any connection between Cross Street and the Town Lot, nor any apparent benefit that rights in Cross Street would provide to the Town Lot. [Note 13] Rather, Cross Street would simply duplicate the means of access (to Centerville River and the beach on Nantucket Sound) that the Town Lot itself already provides. Moreover, it was already established at the trial in the Prior Action that it was highly questionable that Cross Street had even been constructed at the time the Town Deed was conveyed. [Note 14]

In sum, the mere fact that the Lewis Plan, which is referenced in the Town Deed, depicts Cross Street (which is not referenced in the Town Deed) is insufficient, without further evidence (of which there is none in the record in either this case or the Prior Action), to establish that Lewis intended the Town Lot to benefit from rights in Cross Street. See Jackson, 418 Mass. at 711-712; Hickey, 472 Mass. at 763, n. 35. Thus, the facts presented simply do not appear to support the Town’s case for an easement by implication, nor that Marty should be estopped to deny such easement rights.

Conclusion

In view of the foregoing, I have found that the Town’s easement by implication and estoppel claims in this action are barred, based both on the theory of claim preclusion and that of issue preclusion. Moreover, while I have not ruled on the merits of those claims, the undisputed facts in this case do not suggest that the Town could meet its burden of proof to establish implied easement rights and/or estoppel. As such, Marty’s Motion for Summary Judgment is hereby ALLOWED. The

Town’s objections to the registration of the title to the Marty Property and the portion of Cross Street adjacent to the Marty Property and all counterclaims raised in the Town’s April 7, 2014 Answer are thus DISMISSED, with prejudice. This case is thus hereby transferred to the Land Court Title Examination Department for that Department’s assessment as to whether a decree of registration may issue.