This case involves the interpretation of a series of conveyances that occurred more than a century and a half ago, by persons who are no longer living, and was thus presented on a case-stated basis with the court allowed to draw appropriate factual inferences from the only available evidence deeds, plans, and photographs and then make appropriate rulings. [Note 1] See Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 , 326 (2006); W. Mass. Theatres Inc. v. Liberty Mut. Ins. Co., 354 Mass. 655 , 657 (1968). The properties involved are in Brookline, and the facts, in a nutshell, are these.
Two houses were in common ownership one on a lot on Upland Road (94 Upland Road), and the other, immediately behind it, on a lot on a private way now known as Walnut Place (56 Walnut Place). See Ex. 1. The common owners sold 56 Walnut Place, along with its express easement rights to use the Walnut Place private way, and continued to live at 94 Upland. [Note 2] Because it contained 94 Uplands backyard shed, they split off a small, rectangle of land from what had previously been the 56 Walnut Place lot (the Rectangle) and combined it with their 94 Upland lot. See Ex. 1. As a result of an earlier deed by their predecessors which had conveyed the triangular area (the Triangle) abutting the Rectangle to a neighboring property owner (see Ex. 1) [Note 3], the Rectangle had no frontage of its own on Walnut Place, and there is no evidence that there has ever been any vehicular access to Walnut Place from either the Rectangle or the Upland Road house. Indeed, the evidence is directly contrary. The shed was soon replaced by a garage whose door has always faced Upland Road, and the driveway from the garage has always gone to Upland Road.
The current owners of 94 Upland Road (defendants Elizabeth and Dennis DeWitt as trustees of their respective eponymously named trusts, hereinafter the DeWitts) now want to change the orientation of the garage by putting its door on the opposite side so that it would now face Walnut Place. They then propose to construct a new driveway leading to Walnut Place, and then use Walnut Place as the primary vehicular access route to their property. The plaintiffs (express easement holders in Walnut Place) are opposed. [Note 4]
The question thus presented in this case is whether the DeWitts can do so. Do they have a right of vehicular access to Walnut Place from their property at 94 Upland Road, and then an easement right to use that road to drive to and from their house? The issue is not a small one. The area that driveway will cross (the Triangle) is currently used by the plaintiffs for roadway snow storage in the winter, and a variety of other purposes in the summer. It will not be available for those purposes if it becomes the DeWitts driveway.
The detailed facts are set forth below. Those that show the origin of Walnut Place and its changes over the years; the development of the lots along it; when, how, and why the Triangle was conveyed so that the area occupied by the Rectangle (still part of the 56 Walnut Place lot at that time) no longer abutted Walnut Place; and why that didnt matter to its owners; are of particular importance. From there the rest follows; 94 Upland Road has no access to Walnut Place of any kind and, even if it did, that access (and any easement to use Walnut Place) would be limited to non-vehicular use. The plaintiffs have no objection to its access or use by pedestrians or bicyclists from the 94 Upland house, making that a moot point.
These are the facts as I find them after the case-stated trial.
The Origins of Walnut Place and the Lots Abutting It
The present-day Walnut Place a private way in the Pine Hill section of Brookline was once part of a large tract of land, owned by Benjamin Guild, that was subdivided into two separate tracts in 1841. Mr. Guild conveyed the southern tract to Amos Atkinson (the Atkinson parcel) and retained ownership of the northern tract (the Guild parcel), which had frontage on the county (public) road presently known as Walnut Street. See Ex. 2.
So that the Atkinson parcel would have access to the county road, Mr. Guild granted Mr. Atkinson an undivided half-interest in Common Avenue a twenty-foot wide passageway he created that extended approximately 508 feet along the eastern boundary of Guilds parcel from the county road to Atkinsons parcel in addition to a right of way over the other half-interest in Common Avenue, which Guild retained. Later that year, Mr. Guild granted Mr. Atkinson an undivided half-interest in, and right of way over, a five-foot wide strip of land adjacent to the entire length of Common Avenue on its westerly side, thereby expanding the passageways width to twenty-five feet. The length of Common Avenue was then extended by Atkinsons conveyance back to Guild of a two-and-one-half-foot wide strip of land at the southern end of the passageway, over which Atkinson reserved the right to pass.
Thereafter, Mr. Atkinson subdivided his parcel into several lots, providing access to them over a private way extension to Common Avenue which he created and then named Green Bank Avenue. [Note 5] See Ex. 3. In 1849, Mr. Atkinson conveyed an approximately one-acre portion of the northwest corner of his parcel to Moses Williams (the First Williams lot). See Ex. 3. The following year, Mr. Atkinson sold Mr. Williams another lot towards the southeast of his parcel (the Second Williams lot). See Ex. 3. With each conveyance, Mr. Atkinson also granted Mr. Williams the right to pass over Common Avenue and Green Bank Avenue, subject to a just portion of the expense of keeping the ways in repair. [Note 6] As shown on Amos R. Binneys plan dated September 15, 1849 (the 1849 Binney Plan) (Ex. 4), Green Bank Avenue extended southwest from Common Avenue along the Guild parcels southern boundary, turned south and ran along the eastern boundary of the First Williams lot, and then turned approximately ninety degrees to the west and continued adjacently to about two-thirds of the First Williams lots southern boundary.
By June 1851, the Atkinson parcel had been divided into nine separate lots. See Ex. 3 (the Williams & Conant plan). In addition, Green Bank Avenue had been extended from the southern boundary of the First Williams lot to the southernmost lot in the subdivision, culminating in a circular dead-end. See Ex. 3.
In 1858, Mr. Atkinson conveyed to Sarah Bird part of Lot 1 of the Williams & Conant plan (the Bird lot). See Ex. 5. [Note 7] The Bird lot was situated in the northeastern corner of the former Atkinson parcel with Green Bank Avenue abutting its northern and western boundaries close to Green Bank Avenues juncture with Common Avenue. See Ex. 5. The Bird lot, with certain reconfigurations discussed below, is now 56 Walnut Place. The 1858 deed describes the Bird lot as beginning at the northerly corner of the granted premises upon Green Bank avenue and continues to define several of its boundaries by reference to Green Bank Avenue. [Note 8] Mr. Atkinson also granted Ms. Bird rights of way over Common Avenue and Green Bank Avenue. By operation of the Derelict Fee Statute, G.L. c. 183, § 58, the Bird lot included the fee in the Triangle.
Over time, Mr. Williams acquired title to a number of the other Atkinson subdivision lots, Mr. Atkinsons half-interest in Common Avenue, [Note 9] and the majority of the fee in Green Bank Avenue. See Ex. 5. Mr. Williams acquired a substantial portion of those interests by way of an Indenture Agreement dated May 16, 1863. That agreement states that Green Bank Avenue had been relocated and that its new location + the avenue as now discontinued are accurately laid down on Amos R. Binneys plan dated April 28, 1863 (the 1863 Binney plan) (Ex. 6). The 1863 Binney plan depicts two versions of Green Bank Avenue: (1) the original, with square or sharply angled corners, as shown on the Williams & Conant plan (Ex. 5), and now (2) as reconfigured, with rounded corners and S-curves, and with its southern and northern portions shifted respectively to the east and the west. See Ex. 6. The Triangle is now shown as a distinct area, no longer part of the reconfigured way. [Note 10]
On the same date as the Indenture Agreement, to create the reconfigured way, Mr. Williams and Ms. Bird exchanged deeds, both of which reference the 1863 Binney Plan for a more particular description of the property being exchanged. [Note 11] Mr. Williams granted Ms. Bird a 1327-square-foot rectangular strip of land abutting the southern boundary of the Bird lot, and the right to pass over the altered Green Bank Avenue. [Note 12] See Ex. 6. In return, Ms. Bird (1) conveyed to Mr. Williams an approximately 1323-square- foot strip of land on the west side of the Bird lot, which became part of the altered Green Bank Avenue, [Note 13] (2) reserved the right to pass over the reconfigured way, and (3) granted Williams all rights title and interest in and to the fee or soil of that part or parts of Green Bank Avenue as lately existing which have been now discontinued and all easements in over and under the same parts. See Trial Ex. P-25 (emphasis added). This included the Triangle, which now belonged to Mr. Williams. [Note 14]
In 1868, the majority of the reconfigured Bird lot (the precursor to 56 Walnut Place) was conveyed to Martha Curtis Stevenson, Frances Greeley Stevenson, and Annie Brace Stevenson (the Stevenson sisters). [Note 15] Their deed describes that property as beginning at the northerly corner of the granted premises upon Green Bank Avenue so called See Trial Ex. P-28. The Stevenson sisters also acquired Ms. Birds right to pass over the altered Green Bank Avenue as shown on the 1863 Binney plan. See Trial Exs. P-23 & P-28.
The Stevenson sisters subsequently acquired title to 94 Upland Road in 1893. [Note 16] As configured at that time, 94 Upland Road abutted the eastern boundary of the reconfigured Bird lot. 94 Upland Road had no frontage on Green Bank Avenue, and the 1893 deed does not reference any rights in that way. Indeed, 94 Upland Road had no such rights since it came out of a different chain of title than the Common Avenue/Green Bank Avenue/Walnut Place lots.
The Stevenson sisters used a shed located on the Bird lot in connection with their 94 Upland Road property. See Ex. 1. This was not a problem because they owned both properties. It became a problem, however, when they went to sell the Bird lot. To keep the shed, they reconfigured 94 Upland Road to include a small sliver [Note 17] of the Bird lot (the Rectangle) upon which the shed was located. See Ex. 1. They then conveyed the remainder of the reconfigured Bird lot to Nora Kent White in 1897, which the deed (1897) described as beginning at the northerly corner of the granted premises on land of the heirs of Moses B. Williams, which was a part of Green Bank Avenue, so called, prior to 1863. [Note 18] That 1897 deed from the Stevenson Sisters to Ms. White also conveyed the right to pass over Walnut Place (which had previously been known as Green Bank Avenue), without reserving any rights in Walnut Place for themselves.
In 1922, the executor of the estate of the last surviving Stevenson sister conveyed 94 Upland Road to Rosamond Pratt. [Note 19] The Rectangle was included as part of that conveyance. The 1922 deed describes the property as having 17.58 feet of frontage on Walnut Place and also provides that the property was conveyed [t]ogether with any rights in said Walnut Place (see Trial Ex. P-31), but this was incorrect. As discussed above, while the Rectangle bordered the Triangle, the Triangle was no longer part of the Walnut Place way. It had been conveyed by the Stevenson sisters predecessor, Ms. Bird, to Mr. Williams. Thus, neither the Rectangle nor any other part of 94 Upland Road had any frontage on Walnut Place. Without such frontage, neither the Rectangle nor any other part of 94 Upland Road had any rights in Walnut Place. There was simply no way to get to Walnut Place without crossing the Triangle, whose fee had been conveyed to Mr. Williams by the Stevenson Sisters predecessor in title (Ms. Bird) without any easement or other rights reserved.
The 94 Upland Road Property, at Present
At present, 94 Upland Road remains as configured at the time of the 1922 conveyance, with the Rectangle included as part of the property. The current owners of 94 Upland Road Elizabeth and Dennis DeWitt acquired title to the property in 1977 and, in 2014, transferred ownership to themselves as trustees. The DeWitts deeds do not reference any rights in Walnut Place, but describe the property as having 17.58 feet of frontage on it a carry-over from the prior deed (Stevenson to Pratt), which as discussed above, is incorrect. [Note 20]
The Rectangle portion of the DeWitt property and the Triangle are currently separated by a fence with a gate, which the DeWitts have regularly opened and used for pedestrian and bicycle access between their home and Walnut Place. They have not, however, used that area for vehicular access to their property. Although the Triangle is depicted as part of Walnut Place on certain town atlases and maps, this is erroneous. Moreover, it is physically distinct from the Walnut Place way. Walnut Place is paved. The Triangle is covered in gravel or grass. Vehicles travel on the way. They do not travel over the Triangle. The residents along Walnut Place use the Triangle as a pull off area for vehicles to stop and allow others to pass, as a parking area, and as a place to put snow plowed off of the roadway in winter. It has also been used as a play area by their children. They have no express rights to do these things the Triangle is owned by Mr. Williams successors but likely have acquired prescriptive rights to do so.
The DeWitts garage, constructed in 1929 in approximately the same location as the former shed, is presently located predominately within the Rectangle, but partially extends onto the adjoining area of 94 Upland Road. See Ex. 1. As previously noted, its garage door faces Upland Road and its driveway leads to Upland Road. The DeWitts would now like to re-orient all this and use Walnut Place for vehicular access to and from their property. If successful on their claim to do so, they intend to expand their existing garage, relocate its door so that, instead of facing Upland Road, it now faces Walnut Place, and then construct a driveway extending from that new, relocated door to Walnut Place.
Further facts are set forth in the Analysis section below.
The DeWitts claim of a right to use Walnut Place has two bases. The first is their contention that (1) the Triangle is part of the Walnut Place way, (2) their property thus abuts the way and, (3) because of this, they own the fee to the center point of the way with all associated rights of use. The second is that, regardless of whether the Triangle is part of the way and regardless of whether they have any fee interest in the Triangle or the way, their property still has a right to use the way because that right is appurtenant to the Rectangle. I address each of these in turn.
The DeWitts have no fee interest in any part of the Walnut Place way.
Under the Derelict Fee Statute, an instrument conveying real estate that abuts a way is construed to include at least certain portions of any fee interest in the way held by the grantor unless the instrument evidences a contrary intent. [Note 21] See G.L. c. 183, § 58. The statute strengthens the common laws presumption that a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far. Hanson v. Cadwell Crossing, LLC, 66 Mass. App. Ct. 497 , 499500 (2006) (internal citations and quotations omitted). Here, as set forth in the factual section above, the instruments in the DeWitts chain of title make clear that they have no fee interest in Walnut Place by operation of the Derelict Fee Statute because their property abuts the Triangle (not the way itself), and their predecessor in title (Ms. Bird) had previously conveyed away all of the fee and other interests in the Triangle to Mr. Williams.
The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances. Patterson v. Paul, 448 Mass. 658 , 665 (2007) (quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998)). The language within a deed controls interpretation when it is clear and explicit, and without ambiguity. Hamouda v. Harris, 66 Mass. App. Ct. 22 , 24 (2006) (quoting Cook v. Babcock, 61 Mass. 526 , 7 Cush. 526 , 528 (1851)). [T]he words themselves remain the most important evidence of intention, but those words may be construed in light of the attendant circumstances, and the objective circumstances to which [the words refer]. Hamouda, 66 Mass. App. Ct. at 24 (internal citations and quotations omitted).
The Rectangles boundary with the Triangle dates back to the 1850s when the Bird lot was carved out of Atkinsons parcel. At the time of Atkinsons 1858 conveyance of the Bird lot, it abutted the Triangle and other portions of Green Bank Avenue. To the extent Atkinson had a fee interest in Green Bank Avenue as laid out at that time, Bird acquired title to at least a portion of Atkinsons interest in the way by virtue of the Derelict Fee Statute.
The subsequent land swap between Bird and Williams, however, eliminated any fee interest Bird had in the Triangle. In Birds 1863 deed to Williams, she conveyed all of her rights including both fee and easement interests in the portions of Green Bank Avenue that had been discontinued. The deed provides:
I also grant to said Williams all rights title and interest in and to the fee or soil of that part or parts of Green Bank Avenue as lately existing which have been now discontinued and all easements in over and under same parts. I do not however intend hereby to release any rights in the Avenue as now altered by said Williams but only my rights in those parts of the old avenue which have been discontinued reference is hereby made to [the 1863 Binney Plan] for more particular description of the granted premises or however otherwise said premises may be bounded measured or described.
Trial Ex. P-25.
The deeds language clearly indicates that Ms. Bird intended to release the entirety of her interest in the discontinued portions of Green Bank Avenue. After Ms. Bird explicitly granted her rights in the discontinued parts of Green Bank Avenue, she emphasized that she did not intend to release her rights in the altered way, but that she did intend to release her rights in the ways discontinued portions. [Note 22] Any possible ambiguity as to what constituted the discontinued parts of Green Bank Avenue was addressed by the deeds reference to the 1863 Binney Plan (Ex. 6), which showed the way as previously configured (one that contains sharp corners and corresponds with the ways layout as set forth in prior plans (the discontinued version)), and the new re- configured way comprised of a series of rounded corners and S-curves and that is shifted predominately to the east (the altered version). See Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926) (A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.).
The DeWitts contend that the Triangle is a portion of the altered Green Bank Avenue depicted on the 1863 Binney Plan. I disagree. The 1863 Binney Plan clearly depicts the Triangle and altered Green Bank Avenue as separate and distinct areas. I find that the Triangle was intended to be discontinued so that the altered Green Bank Avenue would be shaped consistently for its entire length as a series of S-curves. If the Triangle was part of the altered way, the northernmost bend of Green Bank Avenue would be a sharp corner, while all of the other bends would be rounded. The more logical interpretation is that that bend was intended to be rounded like all of the other bends in the way. This is also consistent with the well-established rule of construction that the language of the grantor is to be construed most strongly against him, for this interpretation results in Birds conveyance to Williams including (rather than excluding, as would be the case under the interpretation proposed by the DeWitts) any fee interest that she had in the Triangle. Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823 , 827 (1984) (internal citations and quotations omitted).
The DeWitts point to the fact that the 1863 Binney Plan depicts the hypotenuse of the Triangle with a dotted line, while portraying its other two boundaries with solid lines. But their argument that the dotted hypotenuse marks a curve in the road, as opposed to a boundary of the altered Green Bank Avenue, is not persuasive. On the 1863 Binney Plan, nearly half of the boundaries of the altered way are depicted with dotted lines. Construing the Triangles hypotenuse as a boundary of the altered way is thus consistent with the plans depiction of other portions of the altered ways boundaries.
That Mr. Williams and Ms. Birds 1863 deeds to each other recite similar square footage of the properties exchanged does not mean that Bird did not also intend to convey whatever interest she had in the Triangle. The metes and bounds description in Ms. Birds deed to Williams is preceded by an estimate of the square footage of the specific parcel so described (the strip of land on the west side of the Bird lot), and the deed subsequently provides that Bird also grants to said Williams all rights title and interest in and to the fee or soil of that part or parts of Green Bank Avenue as lately existing which have been now discontinued and all easements in over and under the same parts (emphasis added). It is thus clear that the conveyance includes Birds interest in the discontinued portions of Green Bank Avenue in addition to the property described by metes and bounds. Bird therefore contemplated a conveyance to Williams of more property than the amount of square footage recited in the deed. Including Birds interest in the Triangle as part of that conveyance is consistent with that intent, despite that Bird and Williams would have exchanged properties of unequal square footage. [Note 23]
The DeWitts also point to the fact that, unlike some of the other areas depicted on the 1863 Binney plan that were conveyed to facilitate the alteration of Green Bank Avenue, the Triangle is not shaded and is not marked as being sold. That may be, but other areas conveyed to comprise the altered Green Bank Avenue, including portions of the property Williams acquired by the 1863 Indenture Agreement, are also not shaded and also not marked. In light of the clear language in the Bird to Williams deed, the absence of such markings with respect to the Triangle is thus not significant.
I find that Birds 1863 conveyance to Williams included any fee interest that she had in the Triangle. Therefore, the Stevenson sisters acquired no fee interest in the Triangle when they purchased the Bird lot in 1868. [Note 24] Because of this, they had no such interest when they later sold the majority of the Bird lot (the part that is now 56 Walnut Place) to Ms. White, but retained ownership of the Rectangle. [Note 25] At that point, the Stevenson sisters had no further fee interest in Walnut Place because they no longer owned property abutting it. Thus, when the Rectangle was next sold to Rosamond Pratt along with 94 Upland Road (which lacked frontage on Walnut Place), Ms. Pratt did not acquire any fee interest in the Triangle, or in Walnut Place at all. Therefore, the DeWitts, as successors in title to Pratt, also have no such fee interest. [Note 26]
The DeWitts have no right to use Walnut Place for vehicular access to or from any part 94 Upland Road.
The party asserting an easement has the burden to prove its existence. See Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). The principles governing the interpretation of deeds also apply to the interpretation of easements created by deed. See Patterson, 448 Mass. at 665. Courts are to construe an easements scope from the parties' intent, which [is] ascertain[ed] from the relevant instruments and the objective circumstances to which they refer. McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996). When created by conveyance, the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating. Patterson, 448 Mass. at 665 (internal quotations omitted). The attending circumstances may include relevant uses made of the servient tenement at the time of, or prior to, the instrument creating the easement. Subsequent use of the easement also may be relevant, at least if ambiguity exists. Pion v. Dwight, 11 Mass. App. Ct. 406 , 411, (1981) (internal citations omitted).
The right of way over Walnut Place appurtenant to 56 Walnut Place dates back to at least 1863 when Mr. Williams and Ms. Bird swapped property to facilitate the reconfiguration of Green Bank Avenue. At that time, Ms. Bird relinquished her easement rights in the discontinued Green Bank Avenue, but acquired the right to pass over the altered Green Bank Avenue to and from her lot and Walnut Street. In 1868, the Stevenson sisters succeeded to Ms. Birds appurtenant right to pass over the altered Green Bank Avenue. See G.L. c. 183, §15 (In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.).
But that right was appurtenant to the Bird lot, and the Bird lot alone. The Stevenson sisters no longer had any right in the way (which had been renamed Walnut Place) after they conveyed the majority of the reconfigured Bird lot (now 56 Walnut Place) to Ms. White in 1897. In the 1897 deed, the Stevenson sisters expressly granted Ms. White the right to pass over Walnut Place. They did not, however, reserve any right in themselves to do so, even though they retained the Rectangle. I find that that omission was intentional. The Stevenson sisters were clearly aware of the limits of the easement to use Walnut Place because they explicitly referenced it in their deed to Ms. White. Their careful draftsmanship is also shown by the fact that, in that deed, the Stevenson sisters also imposed several restrictions on the granted premises for the benefit of their adjoining land (94 Upland Road and the Rectangle that they excepted from their conveyance to Ms. White). Had they intended to retain the right to pass over Walnut Place, they would have expressly reserved the right to do so, and also, as a matter of necessity, reserved an easement over 56 Walnut Place to get there. Such an easement would have been necessary because, since the Triangle was owned by Mr. Williams successor, the Rectangle was cut off from Walnut Place.
The attendant circumstances at the time of the 1897 grant corroborate that the Stevenson sisters did not intend to retain any right in Walnut Place. When the Stevenson sisters sold the reconfigured Bird lot (now 56 Walnut Place) to Ms. White, they no longer had any need to use Walnut Place. Unlike the Bird lot, the Stevenson sisters adjoining property at 94 Upland Road had frontage on Upland Road and thus did not require access rights over any other way. Its garage and driveway lead only to Upland Road. The DeWitts suggest that the Stevenson sisters retained title to the Rectangle to maintain frontage on Walnut Place, but I disagree. In 1897, the property abutting the Rectangle (the Triangle) was no longer part of Walnut Place. I find that Stevenson sisters carved out the Rectangle simply to maintain ownership of the shed that was located on it.
To the extent there is any ambiguity as to whether the Stevenson sisters retained any right in Walnut Place, the circumstances subsequent to the 1897 grant show that they did not. Although pedestrians traveling to and from 94 Upland Road have occasionally used Walnut Place to do so (the evidence suggests such use has been either permissive or prescriptive), there is no evidence Walnut Place has ever been used for vehicular access to 94 Upland Road. That makes sense, because the property has always been accessible from Upland Road. Since at least the 1897 grant, the property has retained frontage on Upland Road. Its driveway has gone to Upland Road, and never to Walnut Place. Upland Road has been the primary, if not exclusive, way used to access the property. Such limited use of Walnut Place over time further demonstrates that the Stevenson sisters lacked the intent to retain the right to use Walnut Place.
The Stevenson sisters therefore had no right to use Walnut Place after their 1897 conveyance of 56 Walnut Place to Ms. White. Ms. Pratt thus acquired no interest in Walnut Place when she purchased the Rectangle and the rest of 94 Upland Road in 1922, and the DeWitts, as successors in title to Ms. Pratt, thus also have no interest in Walnut Place.
To the extent the DeWitts have a right of any kind to use Walnut Place for non- vehicular traffic (the evidence suggests they may have the prescriptive right to walk and bike over the way; however, I make no finding as to whether they do) [Note 27], they have no right to use the way for vehicular access to any portion of 94 Upland Road. The DeWitts have no prescriptive right to use the way for vehicular access to their property because Walnut Place has never been used for vehicular access to 94 Upland Road. Nor may a right to pass over Walnut Place be implied, for 94 Upland Road lacks frontage on Walnut Place.
For the foregoing reasons, I find and rule that the DeWitts have no fee interest in the Triangle, or in Walnut Place at all. There is no easement appurtenant to 94 Upland Road to use Walnut Place for vehicular access to or from any part of that property. The DeWitts are thus ENJOINED from using Walnut Place for vehicular access to and from 94 Upland Road or any part thereof.
Judgment shall enter accordingly.
[Note 1] The parties initially filed cross-motions for summary judgment which, after discussion with the court, they requested be converted to a case-stated trial. Both summary judgment and case-stated trials are based on an analysis of agreed or undisputed facts. The difference is that, in summary judgment, all reasonable inferences must be drawn in favor of the party opposing summary judgment, whereas, in a case- stated trial, the Court is allowed to draw reasonable inferences either way.
[Note 2] The deed to 56 Walnut Place did not reserve any easement right for 94 Upland to access Walnut Place in any manner.
[Note 3] The origins of the Triangle, and how it came to be conveyed out, are discussed below.
[Note 4] The DeWitts initially disputed the plaintiffs standing to bring this action, but withdrew that argument after the Supreme Judicial Court decided Hickey v. Pathways Assn Inc., 472 Mass. 735 , 753 (2015) (Even without a fee in the way, the plaintiffs, as easement holders, have an interest in preventing use of the way by those without rights of access.).
[Note 5] Common Avenue and Green Bank Avenue are the predecessors to Walnut Place.
[Note 6] Most deeds to the properties fronting these ways include an express obligation to contribute to the expense of maintaining them. There is no such language in the DeWitts deed, and there are no deeds in their chain of title that impose such an obligation with respect to their land.
[Note 7] Ex. 5 is a copy of Ex. 3, with Lot 1 now shown as the Bird lot, and with Mr. Williams later- acquired lots also labeled. (See discussion below).
[Note 8] The 1858 deed describes the Bird lot as:
beginning at the northerly corner of the granted premises upon Green Bank avenue so called and thence running by land of Philbrick south twenty three degrees east one hundred and eight and nine tenths feet then turning and running by other land of the grantor south sixty seven and three fourths degrees west, one hundred and thirty two and five tenths feet to Green Bank avenue then turning and running north twenty two and one half degrees west seventy seven and two tenths feet by Green Bank avenue then turning and running by Green Bank avenue north forty six and three fourth degrees east eighty eight and seven tenths feet then turning and running by Green Bank avenue north sixty six degrees east forty eight and nine tenths feet to the corner begun at containing thirteen thousand and twenty three and five tenths square feet together with a right of way in said Green Bank avenue and the avenue leading to Walnut Street or however otherwise said premises may be bounded measured or described being a part of the premises conveyed to me by Benjamin Guild by deed dated May 6, 1841 and recorded in Norfolk county registry of deeds, being part of lot No. 1 on my plan of estate as surveyed by Williams & Conant June 1851.
Trial Ex. P-22.
[Note 9] Title to the other half interest in Common Avenue passed to Charles Williams (presumably another member of the Williams family) in 1883.
[Note 10] The 1863 Binney plan (Ex. 6) depicts the Triangles southern 48.9-foot-long boundary with the Bird lots northern boundary as a solid line. The Triangles approximately 45-foot-long eastern boundary extending from the Bird lots eastern boundary is also shown as a solid line. The curved hypotenuse of the Triangle is depicted with a dotted line.
[Note 11] On the 1863 Binney plan, the two strips of land that Ms. Bird and Mr. Williams exchanged are shaded. The Triangle is not shaded. See Ex. 6.
[Note 12] Williams granted Bird:
all that lot of land in Brookline containing according to estimation thirteen hundred and twenty seven square feet of land bounded southwest by Green Bank Avenue as altered by me fourteen feet northwest by land of said Bird one hundred and seven 3/10 feet northeast by land of Philbrick twelve feet seven inches and southeast by my adjoining land one hundred and one 2/10 feet the premises are shown on Amos R. Binneys plan dated April 28, 1863 + herewith to be recorded with Norfolk Deeds.
Also the free right in common with others to pass and repass over Green Bank Avenue as altered by me to and from Walnut Street to and from the granted premises and the adjourning land of said Bird subject however always to a just portion of the expense of keeping said Avenue as altered by me in good condition and repair after it has once been made by me fit for travel said avenue as it lately existed and as it is now altered as shown on said plan to which plan reference is hereby made as part of this deed or however otherwise said premises may be bounded measured or described. Being part of the same premises conveyed to me by Amos Atkinson by deed dated this day and to be recorded herewith with Norfolk Deeds.
Trial Ex. P-26.
[Note 13] The deed provides that Ms. Bird granted Mr. Williams:
all of that lot of land in Brookline containing by estimation thirteen hundred and twenty three square feet of land bounded northwest by land of said Williams forming part of Green Bank Avenue as altered by him thirty feet southwest by land of said Williams now forming part of said avenue as altered by him through nearly the whole length of this line seventy seven feet two inches and southeast by land of said Williams now forming part of said avenue as altered by him nearly the whole length of this line twenty five feet two inches and east by my adjoining land by a curved line forming the east side of said Avenue as so altered as shown on Amos R. Binneys plan dated April 28, 1863 ninety four 5/10 feet reserving to myself and my heirs and assigns the right to pass and repass in common with others over said avenue as so altered to and from my lands to and from Walnut Street subject however always to a just portion of the expense of keeping said avenue in good condition and repair after it has been once made by said Williams fit for travel. I also grant to said Williams all rights title and interest in and to the fee or soil of that part or parts of Green Bank Avenue as lately existing which have been now discontinued and all easements in over and under same parts. I do not however intend hereby to release any rights in the Avenue as now altered by said Williams but only my rights in those parts of the old avenue which have been discontinued reference is hereby made to said plan for more particular description of the granted premises or however otherwise said premises may be bounded measured or described. Being part of the same premises conveyed to me by Amos Atkinson by deed dated September 30, 1858 and recorded with Norfolk Deeds Lib. 270 fol. 38.
Trial Ex. P-25.
[Note 14] As previously noted, Ms. Birds fee interest in the Triangle and the other discontinued parts of the way, which she now conveyed to Mr. Williams, arose from the common law derelict fee doctrine and the retroactive application of the Derelict Fee Statute. The Triangle had value to Mr. Williams because its ownership enabled him to make further, unilateral changes to the road layout in that area should he so choose. As it turned out, he did not make any and, over time the Triangle has been used for snow storage and other purposes.
[Note 15] The 1868 deed describes the property as:
beginning at the northerly corner of the granted premises upon Green Bank Avenue so called and thence running by land of Philbrick south twenty three degrees east one hundred + twenty one and one half feet more or less than turning and running and bounded southeast by land of heirs of late Moses B. Williams one hundred and one 3/10 feet to Green Bank avenue as altered by said Moses B. Williams in 1863 and then turning and running northwesterly two hundred and twenty five feet more or less to the corner begun at containing about thirteen thousand and twenty five square feet of land. Being the land conveyed to the late Sarah D. Bird by two deeds one from Amos Atkinson dated September 30, 1858 recorded with Norfolk Deeds Lib 370 fol 38 and one from said Moses B. Williams dated May 16, 1863 recorded with Norfolk Deeds Lib 314 fol 199 and from the land to said Sarah conveyed in the first named deed is to be deducted about thirteen hundred square feet by her conveyed to said Moses B. Williams simultaneously with and in consideration of the aforesaid conveyance from said Moses B. to said Sarah. See also Amos R Binneys plan dated April 28, 1863 recorded with said last named deeds in the Norfolk county registry of deeds. Also the free right in common with others to pass and repass over Green Bank avenue as now existing and as shown on said Binneys plan to and from Walnut street to and from the granted premises subject however as always to a just portion of the expense of keeping said avenue in good condition and repair.
Trial Ex. P-28.
[Note 16] The Stevenson Sisters 1893 deed contains the following property description:
A certain piece or parcel of land with the brick dwelling house standing thereon in said Brookline, bounded and described as follows viz: beginning at a drill hole in a stone bound on the southwesterly side of Upland Road, formerly called Walley Street, and running southwesterly along land sold by Edward S. Philbrick et al to Horace D. Chapin, Trustee, by deed dated April 2, 1886 and recorded with Norfolk Deeds Book 577 page 485 for a distance of one hundred and ten (110) feet to the drill hole in a stone bound; thence turning at right angles and running northwesterly along said lands of the grantees for a distance of eighty (80) feet to the drill hole in a stone bound; thence turning at right angles and running northeasterly along said lands late of said Philbrick one hundred and ten (110) feet to the drill hole in a stone bound on the southwesterly side of said Upland Road; thence turning at right angles and running southeasterly along said side of said Upland Road eighty (80) feet to the place of beginning, continuing eight thousand and eight hundred square feet. Being the same premises conveyed to said Anna G. Clay conveyed by said Edward S. Philbrick et al by their deed dated May 2, 1887 and recorded with said Deeds libro 591 folio 190.
Trial Ex. P-29.
[Note 17] The Rectangle measures 17.58 feet on its northern and southern sides, and 51.14 feet on its eastern and western sides. Its northern boundary abuts part of the Triangles southern boundary, and its eastern boundary abutted the pre-reconfigured 94 Upland Road lot, of which it now became a part. The Rectangles other two boundaries abut the reconfigured Bird lot.
[Note 18] The 1897 deed describes the property as:
beginning at the northerly corner of the granted premises on land of the heirs of Moses B. Williams, which was a part of Green Bank Avenue, so called, prior to 1863, and thence running southeasterly by other land of the grantors as the fence now stands, fifty one and 14/100 feet; thence turning and running northeasterly as the fence now stands, and by said other land of the grantors, seventeen and 58/100 feet; thence turning and running southeasterly again by a straight line by land of the grantors and of Chapin, formerly of Philbrick, seventy and 73/100 feet; thence turning and running southwesterly by land formerly of Moses B. Williams one hundred and 60/100 feet, more or less, to Walnut Place, formerly Green Bank avenue as altered by said Moses B. Williams in 1863, and shown on a plan of Amos R. Binney, dated April 28, 1863, and recorded with Norfolk deeds, book 332, end, and thence turning and running by said Walnut Place, formerly Green Bank avenue, and by the land of the heirs of said Moses B. Williams first above mentioned, northwesterly, northerly, and northeasterly, about two hundred feet to the point begun at. Containing 12270 square feet more or less; also with a free right in common with others to pass and repass over said Walnut place to and from Walnut street to and from the granted premises; subject however, always to a just portion of the expense of keeping said place in good condition and repair. Being the same premises to us conveyed by William Thwing, et al, executors by deed dated December 22, 1868 and recorded with said deeds lib 374 fol 186, except about 960 square feet in the northerly part of the same.
Trial Ex. P-30.
[Note 19] The description in the 1922 deed is as follows:
Northeasterly by Upland Road eighty (80) feet; Southeasterly by land now or formerly of Horace D. Chapin trustee one hundred ten (110) feet; Southwesterly by land now or late of Jacboy thirty-eight and 50/100 (38.50) feet; Southeasterly again by said land of Jacoby seventeen and 58/100 (17.58) feet; Southwesterly again by said land of Jacoby fifty and 14/100 (50.14) feet; Northwesterly by Walnut Place seventeen and 58/100 (17.58) feet; Northeasterly again by land now or formerly of Cross twelve and 33/100 feet (12.33) feet, and Northwesterly again by said land now or formerly of Cross one hundred ten (110) feet; containing nine thousand five hundred and thirty (9530) square feet; or however otherwise bounded or described and be all or any of said measurements or contents more or less.
Trial Ex. P-31.
[Note 20] The 1977 deed describes the property as:
A certain parcel of land in Brookline, Norfolk County, Massachusetts, together with the buildings thereon now numbered 94 on Upland Road, and bounded and described as follows:
NORTHEASTERLY: by Upland Road, eighty (80) feet; SOUTHEASTERLY: by land now or formerly of Horace D. Chapin, Trustee, one hundred ten (110) feet; SOUTHWESTERLY: by land now or formerly of Jacoby, thirty-eight and 50/100 (38.50) feet; SOUTHEASTERLY: again by said Jacoby land, seventeen and 58/100 (17.58) feet; SOUTHWESTERLY: again by said Jacoby land, fifty and 14/100 (50.14) feet NORTHWESTERLY: by Walnut Place, seventeen and 58/100 (17.58) feet; NORTHEASTERLY: again by land now or formerly of Cross, twelve and 33/100 (12.33) feet; NORTHWESTERLY: again by land now or formerly of Cross, one hundred ten (110) feet; Containing 9,530 square feet.
Trial Ex. D-13. The property description in the 2014 deed is the same as that in the 1977 deed. See id.
[Note 21] The statute provides:
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.
G.L. c. 183, § 58. The statute is retroactive in application, with exceptions not relevant here. See St. 1990, c. 378, § 2; St. 1971, c. 684, § 2.
[Note 22] Recall that she did this for two reasons. First, she received land in exchange (see Ex. 6). Second, her remaining land fronted on the re-configured (altered) way, with no need of access over the Triangle (land which, because it had previously been part of the way, she likely never used).
[Note 23] Having likely actually never actually used the Triangle before the exchange (it was part of the way at that time, although she owned its underlying fee), it may very well have meant relatively little to her, especially in relation to the additional land she was gaining to the south of her lot. On the other hand, the Triangle had great value to Mr. Williams because it enabled him to make future changes to the configuration of the way without the need to acquire more land. With the Triangle included, he owned almost all of the land along the length of the way. See Ex. 6.
[Note 24] It is of no consequence that the 1868 deed to the Stevenson sisters describes the Bird lot as upon Green Bank Avenue because Bird had no fee interest in the Triangle at that time.
[Note 25] Williams 1863 acquisition of the Triangle is reflected in the 1897 deed, which describes the property as beginning at the northerly corner of the granted premises on land of the heirs of Moses B. Williams, which was a part of Green Bank Avenue, so called, prior to 1863.
[Note 26] As previously noted, the fact that the DeWitts deed states that one course of their property is bounded by Walnut Place does not change this result because their predecessor in title had no fee interest in the Triangle or Walnut Place.
[Note 27] As previously noted, the plaintiffs have no objection to pedestrian or bicycle use, so the point is moot.