BLAKE CADY and DOROTHY CADY as Trustees of the 24 Walnut Place Realty Trust; CHARLES AMES and KATHLEEN AMES; BENJAMIN TAYLOR and KATHERINE TAYLOR; DAVID THORNE and ROSE THORNE; KATHY SPIEGELMAN; J. ROBERT CASEY as Trustee of Walnut Place Realty Trust; THOMAS WOLFE; ELLEN SMOLKA; ALEXANDER PREBLE JAQUES; JESSICA COLT SHATTUCK; SARAH NEWCOMB; W. NICHOLAS THORNDIKE and JOAN I. THORNDIKE as Trustees of the Joan I. Thorndike 1997 Trust; SALLY FRANK as Trustee of the 210 Walnut Street Trust; and MARY WIELLETTE v. ELIZABETH DeWITT as Trustee of the Elizabeth Roosa DeWitt 1999 Trust; and DENNIS DeWITT as Trustee of the Dennis James DeWitt 1999 Trust.

Introduction

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 Upland’s 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 didn’t 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.

Facts

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 Guild’s parcel from the county road to Atkinson’s 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 passageway’s width to twenty-five feet. The length of Common Avenue was then extended by Atkinson’s 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. Binney’s plan dated September 15, 1849 (the “1849 Binney Plan”) (Ex. 4), Green Bank Avenue extended southwest from Common Avenue along the Guild parcel’s 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 lot’s 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 Avenue’s 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. Atkinson’s 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. Binney’s 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]

The Rectangle

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. Bird’s 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.

Analysis

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 law’s “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 , 499–500 (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 Rectangle’s boundary with the Triangle dates back to the 1850s when the Bird lot was carved out of Atkinson’s parcel. At the time of Atkinson’s 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 Atkinson’s 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 Bird’s 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 deed’s 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 way’s “discontinued” portions. [Note 22] Any possible ambiguity as to what constituted the “discontinued” parts of Green Bank Avenue was addressed by the deed’s reference to the 1863 Binney Plan (Ex. 6), which showed the way as previously configured (one that contains sharp corners and corresponds with the way’s 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 Bird’s 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 Triangle’s hypotenuse as a boundary of the altered way is thus consistent with the plan’s depiction of other portions of the altered way’s boundaries.

That Mr. Williams’ and Ms. Bird’s 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. Bird’s 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 Bird’s 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 Bird’s 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 Bird’s 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 easement’s 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. Bird’s 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.

Conclusion

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.

SO ORDERED.