JOHN W. BAKER, Trustee of N/L Real Estate Trust v. TOWN OF PLYMOUTH.

John W. Baker, as Trustee of N/L Real Estate Trust (Baker) and the Town of Plymouth (Town) own abutting parcels that derive from the same 1911 registration decree. The Town’s land lies along Plymouth Harbor and is now a park with a boat landing. Baker’s property lies just to the west of the Town’s land. Baker has brought this action seeking to establish his right to cross the Town’s land at any point and enter the harbor on his “Sea Legs” amphibious vehicle, which he would then sail to his other property on Clark’s Island. In these cross-motions for summary judgment, the Court finds that the only right Baker has to cross the Town’s property that is separate from the general rights of the public is an implied easement to use the public way at the front of his property to enter the Town’s land and drive to the sea along whatever path the Town designates.

Procedural History

Baker filed his initial Complaint on June 26, 2014. On July 22, 2014, the Town filed its Answer to the Complaint. A case management conference was held on July 25, 2014. On September 8, 2014, Baker filed Plaintiff’s Motion to Amend Complaint, Affidavit of Robert D’Auria in Support of Plaintiff’s Motion to Amend the Complaint to Include a Count Alleging Easement by Estoppel, Plaintiff’s Supplemental Memorandum in Support of Motion for Preliminary Injunction, and Affidavit of Robert D’Auria in Support of Preliminary Injunction. Baker’s Motion for Preliminary Injunction was heard on September 10, 2014, and the Order Denying Plaintiff’s Motion for Preliminary Injunction (PI Order) was issued on September 17, 2014. On September 23, 2014, the Town filed Defendant’s Motion to Dismiss Counts VI and VII pursuant to Mass. R. Civ. P. 12(b)(1) (Motion to Dismiss), along with a Memorandum in Support of Defendant’s Motion to Dismiss. On October 27, 2014, Baker filed an Opposition to Defendant’s Motion to Dismiss and Second Motion to Amend Complaint and Statement of Reasons. On October 29, 2014, the Court allowed Plaintiff’s First Motion to Amend Complaint, deeming the amended complaint filed (Complaint). The Court allowed the Motion to Dismiss, dismissing Counts VI and VII of the Complaint without prejudice. Baker withdrew Plaintiff’s Second Motion to Amend Complaint.

On February 13, 2015, Baker filed Plaintiff’s Motion for Summary Judgment upon Counts I, II, and III of the Amended Complaint (Plaintiff’s Motion for Summary Judgment), Plaintiff’s Memorandum in Support of Motion for Summary Judgment (Pl. Mem.), Plaintiff’s List of Exhibits Submitted in Support of Motion for Summary Judgment (Pl. Exh.), and Plaintiff’s Concise Statement of Material Facts (Pl. Facts). On March 6, 2015, the Town filed Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment on Counts I, II, and III and Cross-Motion for Summary Judgment on all Counts of the Complaint (Defendant’s Motion for Summary Judgment), Memorandum in Support of Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment on Counts I, II, and III and Cross-Motion for Summary Judgment on all Counts of the Complaint (Def. Mem.), Defendant’s Response to Plaintiff’s Statement of Material Facts and Statement of Additional Material Facts in Support of Cross-Motions for Summary Judgment (Def. Facts), and Defendant’s Additional Exhibits in Support of Cross-Motion for Summary Judgment (Def. Exh.). Baker filed Plaintiff’s Reply Memorandum to Defendant’s Opposition to Motion for Summary Judgment and Opposition to Cross Motion for Summary Judgment (Pl. Reply Mem.) on March 18, 2015. On April 7, 2015, the Town filed its Answer to First Amended Complaint (Answer). The summary judgment motions were heard on April 7, 2015, and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

The following facts are undisputed or deemed admitted.

1. The Baker Property and the Town Land (defined below) were previously commonly owned by Charles S. Davis, as the Executor of the Estate of Jeremiah Murray (Executor). This land was registered (the Registered Land) by a Decree of Registration filed with the Plymouth Registry District (registry) on September 29, 1911, in Book 1, Page 368, with Certificate of Title No. 190. Pl. Facts ¶ 34; Pl. Exh. 2; Def. Facts ¶ 34.

2. The Registered Land is shown on Plan No. 2047-A, dated February 20, 1908 and filed with Certificate of Title No. 190. Plan No. 2047-A is attached as Exhibit A. Pl. Facts ¶ 33; Pl. Exhs. 1-2; Def. Facts ¶¶ 33-34.

3. The Decree of Registration for the Registered Land includes the provision that the land “is subject to the rights of all persons lawfully entitled thereto over a lane or way in extension of Nelson Street to the sea.” Pl. Facts ¶ 34; Pl. Exh. 2; Def. Facts ¶ 34.

4. The Registered Land was subdivided in 1911 into Lots A, B, and C, shown on Subdivision Plan No. 2047-B, dated October 4, 1911, and filed in the registry with Certificate of Title No. 194. Plan No. 2047-B is attached as Exhibit B. Pl. Facts ¶ 35; Pl. Exh. 3; Def. Facts ¶ 35.

5. Shortly thereafter, the Executor conveyed the lots to separate owners.

a. The Executor conveyed Lot A to Mary Murray by a deed dated October 6, 1911, filed with the registry on October 27, 1911 in Book 1, Page 378, with Certificate of Title No. 194. The deed to Mary Murray does not contain the easement provision from the Decree of Registration, but states that Lot A is granted “with all the privileges and appurtenances thereto belonging.” All successive deeds in the chain of title do contain the easement provision that the conveyed land is “subject to the rights of all persons lawfully entitled thereto over a lane or way in extension of Nelson Street to the sea,” including the subsequent deed dated April 11, 1925 from Mary Murray to Alfred Nigh, filed with the registry on April 25, 1925 in Book 10, Page 3, with Certificate of Title No. 2003. Pl. Facts ¶¶ 38-39, 41-42, 48-50, 52-54; Pl. Exhs. 6-7, 9-10, 16-18, 20-22; Def. Facts ¶¶ 38-39, 41-42, 48-50, 52-54; Complaint ¶ 7; Answer ¶ 7.

b. The Executor conveyed Lot B to the Town by a deed dated October 6, 1911, filed with the registry on October 27, 1911 in Book 1, Page 380, with Certificate of Title No. 195. The deed provides that the conveyed land is “subject to the rights of all persons lawfully entitled thereto over a lane or way in extension of Nelson Street to the sea.” Pl. Facts ¶ 36; Pl. Exh. 4; Def. Facts ¶ 36.

c. The Executor conveyed Lot C to Kate Murray by a deed dated October 6, 1911, filed with the registry on October 27, 1911 in Book 1, Page 382, with Certificate of Title No. 196. The deed provides that the conveyed land is “subject to the rights of all persons lawfully entitled thereto over a lane or way in extension of Nelson Street.” Pl. Facts ¶ 37; Pl. Exh. 5; Def. Facts ¶ 37.

6. The Town acquired Lot C by a deed from Kate Murray filed with the registry on April 25, 1926 in Book 10, Page 1, with Certificate of Title No. 2001. Pl. Facts ¶¶ 35, 40; Pl. Exh. 8; Def. Facts ¶¶ 35, 40.

7. Lot A was further subdivided in 1933 into Lots A1, A2, A3, A4, and A5, as shown on Subdivision Plan No. 2047-C dated May 10, 1933, filed in the registry with Certificate of Title No. 4984. Plan No. 2047-C is attached as Exhibit C. Pl. Facts ¶ 3; Pl. Exh. 11; Def. Facts ¶ 3.

8. From 1933 until 1936, Lot A3 was owned separately from Lots A1, A2, A4, and A5. Since 1936, all five lots have been held by a single owner. Pl. Facts ¶¶ 44, 47-50, 52- 54; Pl. Exhs. 12, 15-18, 20-22; Def. Facts ¶¶ 44, 47-50, 52-54.

9. Baker currently owns Lots A1 through A5 (collectively, Lot A or the Baker Property), which he acquired by deed from Richard S. Doherty, filed with the registry on January 15, 2010 in Book 571, Page 40, with Certificate of Title No. 114241. Pl. Facts ¶¶ 4, 35; Pl. Exh. 22; Def. Facts ¶¶ 4, 35.

10. The Town currently owns Lots B and C, as described above (Town Land), which is used as a public park called Nelson Park. Pl. Facts ¶¶ 35, 40; Pl. Exh. 8; Def. Facts ¶¶ 35, 40.

11. Nelson Street, a public way, runs east along the southern boundary of Lots A1, A2, and A3, as shown and described in the Town’s Board of Selectman’s Order of Taking filed with the registry on April 18, 1957 and therein referenced plan entitled “Town of Plymouth, Proposed Layout of Nelson Street” dated January 23, 1957, as well as a plan entitled “Plan of Re-Establishment and Proposed Layout Alterations of a Portion of Water Street” recorded with the registry on July 19, 1989, attached here as Exhibit D. Pl. Facts ¶ 5; Pl. Exhs. 11, 19, 34; Def. Facts ¶ 5.

12. Lots A3 and A4 of the Baker Property abut an extension of Water Street, a public way perpendicular to Nelson Street. Water Street runs north along the western boundary of Lot C to a corner with Nelson Street. At this corner, the extension of Water Street turns east to the western edge of Lot B, along the southern boundary of Lots A3 and A4, as shown and described in the April 15, 1935 Order of Taking, and accompanying plan entitled “Town of Plymouth Plan Showing Extension of Water Street and Widening Road Leading to Bath House,” attached here as Exhibit E. Pl. Facts ¶ 6, Pl. Exhs. 13, 34, Def. Facts ¶ 6.

13. A paved way (Nelson Park Way) now runs from the eastern edge of Water Street over and through Lots B and C to Plymouth Harbor, ending at a boat ramp at the north end of Nelson Park. Nelson Park Way is not shown on any of the registration plans. The parties dispute the status of the way, i.e., whether or not Nelson Park Way is a public way or a parking lot, and whether the way abuts the Baker Property. Pl. Facts ¶¶ 14, 16; Def. Facts ¶¶ 14, 16.

14. Baker also owns property on Clark’s Island located in Plymouth Harbor. Pl. Facts ¶ 26; Def. Facts ¶ 26.

15. For purposes of summary judgment, it is undisputed that Baker purchased Lot A for purposes of accessing Plymouth Harbor, and that due to physical disability, the only means for Baker to access Plymouth Harbor is by using a “Sea Legs,” an amphibious vehicle combining a boat and an automobile, to travel from the Baker Property to the boat landing on Lot B. Pl. Facts ¶¶ 26-28; Def. Facts ¶¶ 26-28.

16. Baker alleges that when the Town reconfigured Nelson Park Way, it installed fences and jersey barriers that block his access to Plymouth Harbor from the Town Land. The Town disputes this, arguing that Baker’s access to Plymouth Harbor is not blocked. Pl. Facts ¶¶ 12, 19, 21; Def. Facts ¶¶ 12, 19, 21.

17. There is a driveway on Lot A2 that provides Baker with access to Nelson Street. Pl. Mem. p. 5; Def. Mem. p. 12; Pl. Reply Mem. p. 3.

Discussion

As described above, Baker owns Lot A, a parcel of land on Nelson Street in Plymouth, near Plymouth Bay. Lot A is a subdivided portion of the Registered Land and has been further subdivided into Lots A1 through A5. The remainder of the Registered Land is owned by the Town. The Town owns Lot B, a seaside lot that lies east/south-east of the Baker Property, and Lot C, which lies south of the Baker Property and west of Lot B. The Town maintains a park on its land, known as Nelson Park. Baker also owns property on Clark’s Island located in Plymouth Bay, and has used an amphibious vehicle known as a Sea-Legs to drive from the Baker Property on the mainland, across the Town Land to a boat landing, into the Bay, and sailing from there to Clark’s Island. [Note 1] Following renovations to Nelson Park, a dispute arose between the parties concerning Baker’s right to travel onto and across Nelson Park from various points on the boundary between the Baker Property and the Town Land.

In his Complaint, Baker brings various claims of a right of access over and across the Town Land. After the dismissal of Counts VI and VII, the Complaint has six remaining counts: Count I (Express Easement), Count II (Implied Easement), Count III (Illegal Blockage of Abutter’s Right to Access Nelson Street), Count IV (Prescriptive Easement), Count V (Easement by Estoppel), and Count VIII (Declaratory Relief). Baker seeks summary judgment in his favor on Counts I, II, and III. The Town seeks summary judgment dismissing all the remaining counts of the Complaint. Each count is addressed in turn below.

Count I - Express Easement

Both parties have moved for summary judgment on Count I of the Complaint. Baker claims in Count I that (1) he possesses an express easement to pass over the Town Land to the sea (i.e. Plymouth Harbor) from his property, and that (2) the renovation of Nelson Park on the Town Land, and the erection of certain fences and barriers, resulted in a burdensome alteration of the easement that interferes with his ability to use the easement, thereby entitling him to relief.

Baker carries the burden to prove the existence of an express easement over the Town Land for the benefit of Lot A. Hickey v. Pathways Ass’n, Inc., 472 Mass. 735 , 753-754 (2015); Martin v. Simmons Props., LLC, 467 Mass. 1 , 10 (2014). To support his claim, Baker points to the deeds by the Executor, conveying Lots B and C. The deed to Lot B provides that the land was “subject to the rights of all persons lawfully entitled thereto over a lane or way in extension of Nelson Street to the sea.” Pl. Facts ¶ 36; Pl. Exh. 4; Def. Facts ¶ 36. The deed to Lot C contains the provision that the land was “subject to the rights of all persons lawfully entitled thereto over a lane or way in extension of Nelson Street.” Pl. Facts ¶ 37; Pl. Exh. 5; Def. Facts ¶ 37. Baker argues that the language is ambiguous because it does not identify the beneficiary of the easement. He asserts that the court should interpret the ambiguous easement language in the Town’s chain of title as being intended to benefit the owner of Lot A.

While the identity of the benefited property is indeed ambiguous, it is not Lot A. Although Baker directs the Court’s attention to the 1911 deeds by the Executor, the inquiry really begins with the Decree of Registration, where the easement language in question first appears. Pl. Facts ¶ 34; Pl. Exh. 2; Def. Facts ¶ 34. The easement in the Decree—subjecting the Registered Land to rights of lawfully entitled persons “over a lane or way in extension of Nelson Street to the sea”—burdens the entire parcel of the Registered Land, including what is now Lot A, the Baker Property. Thus, the easement as stated in the Decree could not benefit Lot A because “the holder of a fee cannot hold an easement for access over the fee.” Hickey, 472 Mass. at 748. Any easement for the benefit of Lot A to cross Lots B and C had to have been explicitly granted when Lot A was subdivided from the Registered Land in 1911 and conveyed to separate owners. See Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 682 , 684-685 (2012). The deeds creating and conveying Lots A, B, and C contain no such explicit grant. The deeds to Lots B and C merely repeat the language of the Decree without reference to Lot A. The deed to Lot A does not explicitly state that Lot A has the benefit of an easement over Lots B and C; it only makes a general reference that Lot A is granted “with all the privileges and appurtenances thereto belonging.” This language is insufficient to create an express easement for the benefit of Lot A to pass over Lots B and C. [Note 2]

Since the Court finds that Baker possesses no explicit easement to pass over the Town Land, it is not necessary to consider the merits of his second argument, concerning remedy for interference with that purported easement. The Town is entitled to summary judgment dismissing Count I of the Complaint with prejudice.

Count II - Implied Easement

Both parties have moved for summary judgment on Count II of the Complaint. Baker claims in Count II that (1) he possesses an implied easement to pass over the Town Land to Plymouth Harbor, via Lot A4 and/or via a gate at the north end of Lot A5, and that (2) the Town has interfered with his ability to use either easement. Baker carries the burden to prove the existence of the alleged implied easements. See Martin, 467 Mass. at 10. He argues that either easement was implied from circumstance at the time the land was severed from common ownership and/or was implied from necessity because the land (or some portion of it) is purportedly landlocked. His arguments critically ignore that the Town Land is registered land.

The Town Land is registered, and, therefore, is protected against encumbrances not noted on the certificate of title. See G.L. c. 185, §§ 46, 53. “In order to affect registered land as the servient estate, an easement must appear on the certificate of title.” Tetrault v. Bruscoe, 389 Mass. 454 , 461 (1986). The protections of the Land Registration Act serve to produce “indefeasible and certain” title to land. Commonwealth Electric Co. v. MacCardell, 450 Mass. 48 , 50 (2007); see Hickey, 432 Mass. at 754-755. Those protections are subject to two narrow exceptions: “(1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest.” Jackson v. Knott, 418 Mass. 704 , 711–712 (1994). Baker obviously does not claim to meet the second exception. He does claim an easement under the first exception—that facts described in the Decree of Registration for the Registered Land and the certificates of title to the Town Land would have put the Town on notice that there is an implied easement for the benefit of Lot A to cross the Town Land.

Baker claims two kinds of implied easement under this exception. First, Baker argues for an implied easement by necessity via Lot A4, under the theory that Lots A4 and A5 are landlocked. Notwithstanding the exceptions set forth in Jackson v. Knott, an easement cannot be implied by necessity over registered land. G.L. c. 185, § 53.

Baker fares better on his second argument. Baker maintains that the registration record has put the Town on notice that Lot A has an implied easement to cross the Town Land to Plymouth Harbor. The language in the Decree that subjects the Registered Land to rights of lawfully entitled persons “over a lane or way in extension of Nelson Street to the sea” does give notice to owners of that land that it is burdened by an easement of passage. The original post-subdivision deeds for Lots B and C repeat that language, giving the owners of Lots B and C (now the Town) the same notice. While, as discussed above, Lot A does not have an express easement to cross the Town Land, the Decree language is sufficient to suggest an implied easement for the benefit of Lot A to cross the Town Land.

This implied easement, however, is limited in scope. Baker argues that his implied easement allows him to enter the Town Land from any point at which Lot A abuts the Town Land. Such a right cannot be implied from the record. The language in the Registration Decree and the deeds to Lots B and C imply an easement to enter the Town Land only from a “way in extension of Nelson Street.” The only way shown on the registration plans is the way to the south of Lot A. It appears from the record that the bend in this way is where Nelson Street, abutting Lot A, meets Water Street. At the intersection with Nelson Street, Water Street’s extension turns east and enters the Town Land. The parties dispute whether or not the east-west portion of the Water Street extension counts as an “extension of Nelson Street” as described in the easement language. Pl. Facts ¶ 51; Def. Facts ¶ 51. The Court finds that it can be implied from the Registration Decree and the plans that the Water Street extension is an extension of Nelson Street as referred to in the Decree. This means that Baker has an implied right to enter the Town Land, but only from Nelson Street and the extension of Water Street, the public ways that abut the Registered Land and lead to the entrance of the Town Land. Furthermore, the Town is entirely within its rights to designate what path over the Town Land constitutes the “lane or way . . . to the sea” that people entering the Town Land must take, so long as there is a path to the sea. On Count II, Baker is entitled to summary judgment that he has an implied easement to enter the Town Land from Nelson Street and cross the Town Land to Plymouth Harbor on a path designated by the Town.

Count III - Illegal Blockage of Abutter’s Right to Access Nelson Street

Both parties have moved for summary judgment on this count. Baker claims in Count III that, as an abutter entitled to access the public ways, he has a right to enter Nelson Street from Lot A4 and/or to access Nelson Park Way on the Town Land from Lot A5.

Whether a way is a public way or a private way is ordinarily a question of fact. W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19 (1979); see Clark v. Hill, 184 Mass. 164 , 166 (1903). The plaintiff bears the burden of proof of proving that the way is a public way. See Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715 , 716 (2001); Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 594-595 (1994). For purposes of summary judgment, the Town has conceded that Water Street is a public way. The status of the Nelson Park Way, and whether or not it abuts the Baker Property, is contested.

The theory that Baker presents for why he is entitled to access to Water Street from Lot A4 and/or the Nelson Park Way from Lot A5 is that, as an abutter to a public way, he is entitled to access to a public way from each discrete lot that he owns. Under Massachusetts law, however, the Town has the right to regulate a landowner’s access to the public ways. See, e.g., Dwyer v. Metropolitan Dist. Comm’n, 269 Mass. 573 , 578-579 (1930) (recognizing the right of the local government to issue reasonable regulations “as to location, construction and use as they deemed necessary for the public safety and convenience”). If contiguous lots are “held and used by [the owner] as one parcel,” it is reasonable for the Town to determine that only one route of access is necessary. Id. at 578.

Baker’s claim to a right to access Nelson Park Way also fails. While Baker takes issue with the Town’s characterization of the Nelson Park Way as a parking lot, he has failed to proffer evidence demonstrating that Nelson Park Way is a public way. An existing way in a town is not necessarily a public way. A way can become public in one of three ways: (1) by dedication (prior to 1846), (2) by prescription, or (3) if laid out by a public authority in the manner prescribed by statute under G.L. c. 82, §§ 1-32. Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). The first is inapplicable in this case, as all the relevant events occurred in the twentieth century. There is no evidence in the record that the Nelson Park Way became public by prescription. [Note 3] Finally, there is no evidence that the Town exercised its statutory powers to lay out Nelson Park Way as a public way under the statute. The only fact to which Baker alludes is the existence of an Engineering Department Record which refers to the Nelson Park Way as a “right of way.” Even if such evidence were determinative, it does not prove that Nelson Park Way is a public way. [Note 4] Baker has not established that the Town has interfered with his right to enter the public way. The Town is well within its authority to limit Baker’s access to one curb cut from one of his lots. Count III will be dismissed with prejudice.

Count IV - Prescriptive Easement

The Town has moved for summary judgment on this count. In Count IV, Baker claims a prescriptive easement over the Town Land. The Town Land is registered land. Under G.L. c. 185, § 53, no prescriptive easement can be established over registered land. The Town is entitled to summary judgment as a matter of law on this claim. Count IV will be dismissed with prejudice.

Count V - Easement by Estoppel

The Town has moved for summary judgment on this count. In Count V, Baker seems to invoke the doctrine of easement by estoppel. See Complaint ¶¶ 40-48. The Town does not present substantive arguments on this matter, but describes the claim as asserting the same basis for relief as Count I. Def.s Mem. p. 2, n.1. Registered land may, in certain narrow cases, be burdened by easements by estoppel that are not noted on the certificate, provided that one of the Jackson v. Knott exceptions is met. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66-67 (2009) (finding sufficient facts available to put landowners on notice that portion of private road fronting their property was encumbered by a right of way for access to adjoining property); Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 437-438 (2006) (applying estoppel theory over registered land even though easement was not noted on certificate of title because neighbors had derived their titles from common grantors such that all lot owners had right to use entire way, putting them on notice that others might have rights in the way). Even assuming, however, that Baker is claiming easement by estoppel and further assuming that his claim falls under a Jackson v. Knott exception, the claim must be dismissed.

Massachusetts recognizes two forms of easement by estoppel. Estes v. DeMello, 61 Mass. App. Ct. 638 , 643-44 (2004); Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481-82 (1989). The first form of easement by estoppel is created when land is conveyed according to a recorded plan. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Under this category, when a grantor conveys land located on a street according to a recorded plan on which the street is shown, the grantor or his or her successor in interest is “estopped to deny the existence of the street for the entire distance as shown on the plan.” Id. In the second category, an easement by estoppel is created when land bounded by a street or land bounded on or by the side line of a street is conveyed. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-78 (1965); Casella v. Sneierson, 325 Mass. 85 , 89-90 (1949). In this instance, the grantor or his or her successor is “estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) . . . embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.” Casella, 325 Mass. at 89; see Estes, 61 Mass. App. Ct. at 643.

Baker’s claim of an easement by estoppel over Nelson Park Way fails. The Baker Property abuts the public way shown on the registration plans. Baker has the same right as any member of public to use that public way and the other public ways to which it connects. There is no easement by estoppel to use a public way. Lot A does not abut or bound on any way within the Town Land that is shown on any registered plan. The legal description of the boundary of Lot A does not include a reference to the “lane or way in extension of Nelson Street,” but only to Nelson Street itself, which is clearly shown as terminating at the westerly boundary of Lot C on all the registered plans, prior and subsequent to the initial conveyance by the Executor. The legal description of Lot A on the 1911 deed references the registered plan and describes Lot A as being bounded “southerly by lot C and by a right of way Twenty Feet wide Two Hundred (200) Feet.” The 1911 deed to Kate Murphy, conveying lot C, describes its northerly boundary not as a right of way, but as “land of Mary A. Murphy Sixty-Five (65) feet.” There is nothing in the registration record to suggest that Lot A bounds a way within the Town Land. Count V will also be dismissed with prejudice.

Count VIII - Declaratory Relief

Count VIII seeks a declaration of the rights alleged in the other counts of the Complaint. As it merely repeats the previous counts, it is duplicative and will be dismissed without prejudice.

Conclusion

For the foregoing reasons, the Plaintiff's Motion for Summary Judgment and the Defendant's Summary Judgment Motion are each ALLOWED IN PART and DENIED IN PART. Judgment shall enter dismissing Counts I, III, IV, and V of the Complaint with prejudice and dismissing Count VI, VII, and VIII of the Complaint without prejudice. On Count II of the Complaint, judgment shall enter declaring that the Baker Property has the benefit of an implied easement to enter the Town Land by Nelson and Water Streets and cross the Town Land to the sea along a path established by the Town.

SO ORDERED

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