STEPHEN J. KUZMA v. BENJAMIN ROLLINS

Plaintiff Stephen J. Kuzma filed a four-count complaint asserting rights to land in a private way owned in fee as a matter of record by the defendant Benjamin Rollins. Mr. Kuzma owns to the centerline of Tabitha Terrace, a private way in Chatham, pursuant to G. L. c. 183, § 58, the so-called Derelict Fee Statute, where it is adjacent to his home. Mr. Rollins owns (although this is disputed by Mr. Kuzma) the other half of Tabitha Terrace to the centerline where it is adjacent to the home formerly owned by his mother. Mr. Rollins acquired his fee interest in the disputed portion of Tabitha Terrace, but not the adjacent lot, pursuant to a deed from his mother. In Count I of his complaint, Mr. Kuzma seeks a declaratory judgment that Mr. Rollins' fee interest in the half of Tabitha Terrace adjacent to his mother's former home is invalid because the fee in the way could not be separated from the adjacent property, and because Mr. Rollins' mother failed to reserve rights in the way and therefore could not convey the fee in the way. Counts II and III allege respectively that Mr. Kuzma has acquired ownership by adverse possession or, alternatively, an easement by prescription in Mr. Rollins' half of Tabitha Terrace. Finally, in Count IV, Mr. Kuzma claims that he has "obtained the claimed property by Defendant's abandonment of same."

Mr. Rollins has filed a motion to dismiss Counts I and IV on the ground that they fail to state a claim upon which relief can be granted, and he has filed a motion to dismiss Counts II and III pursuant to Mass. R. Civ. P. 12(b)(7) on the grounds that the plaintiff has failed to join parties needed for the just adjudication of this matter as provided in Mass. R. Civ. P. 19.

I held a hearing on the within motions on November 9, 2018. At the hearing, I ALLOWED the motion to dismiss Counts II and III pursuant to Mass. R. Civ. P. 12(b)(7), with leave to the plaintiff to amend to add necessary parties within thirty days, for reasons that are more fully stated below. Also for reasons stated below, Mr. Rollins' motion to dismiss Counts I and IV, which I took under advisement at the hearing, is ALLOWED.

FACTS

For the purposes of these motions, the court accepts as true the allegations in the complaint. The court considers various recorded instruments submitted with the motions to dismiss, and other materials outside the pleadings, including undisputed matters in the affidavit submitted by the defendant. Based on these documents, the court accepts as true the following facts for the purposes of consideration of the motions to dismiss:

1. Mr. Kuzma is the owner of property at 2 Tabitha Terrace, Chatham, which is Lot 16 as shown on a plan entitled, "Plan of Land – Chatham, Mass. as Surveyed for Benjamin F. & Margaret F. Rollins," dated April, 1951 (the "Plan"). Mr. Kuzma acquired Lot 16 on September 30, 1996, pursuant to a deed recorded with the Barnstable County Registry of Deeds ("Registry") in Book 10416, Page 157. Pursuant to G. L. c. 183, § 58, Mr. Kuzma also acquired the fee in Tabitha Terrace adjacent to his home, to the centerline of the way, subject to the rights of others to pass and repass.

2. The Plan depicts a subdivision with 27 lots and at least 4 ways created within the subdivision: Tabitha Terrace, Oyster Pond Furlong, Benjamin's By-Way, and Rollins Lane. Tabitha Terrace, at its southern end, ends at Oyster Pond. [Note 1]

3. Mr. Rollins owns and resides at 20 Tabitha Terrace, which is Lot 14 as shown on the Plan, and which is located north of Mr. Kuzma's property and north of Oyster Pond along Tabitha Terrace.

4. Directly across Tabitha Terrace from Mr. Kuzma's property is Lot 22 as shown on the Plan. By a deed dated June 14, 2001, and recorded with the Registry on June 19, 2001, at Book 13950, Page 109. Margaret Rollins, who at the time owned Lot 22, conveyed to Mr. Rollins, her son, her "interest in the fee in Tabitha Terrace and Benjamin's By-Way, both as shown on [the Plan]." The fee in Tabitha Terrace and Benjamin's By-Way were conveyed "subject to…existing rights of others in said ways arising from instruments of record in the Barnstable County Registry of Deeds." [Note 2]

5. At a minimum, several other owners of lots shown on the Plan have deeded rights over the ways shown on the Plan, including rights over Tabitha Terrace to reach Oyster Pond and Queen Anne Road. The deed of Lot 12 to Mary Jo Montanarella, Trustee, recorded with the Registry at Book 25365, Page 305, provides, "There is granted as appurtenant to the above described premises, a right of way in common with all other entitles [sic] thereto over Tabitha Terrace and Oyster Pond Furlong to and from Oyster Pond and Queen Anne Road." The deed of Lot 24 to Pasquale Confalone and Helen Confalone, Book 804, Page 424, dated October 9, 1951, also explicitly grants a "right of way in common with others entitled thereto over Tabitha Terrace and Oyster Pond Furlong to and from Oyster Pond and Queen Anne Road." The deed of Lot 25 to Michael J. Tetrault and Gail S. Tetrault, Book 30679, Page 61, dated July 18, 2017, also grants "a right of way in common with others entitled thereto over Tabitha Terrace and Oyster Pond Furlong to and from Oyster Pond and Queen Anne Road."

6. There is similar language or language generally granting rights in the ways in the subdivision shown on the Plan, [Note 3] in the deeds to Adam W. Wegner and Susan F. Wegner, Trustees, Book 21654, Page 104, dated December 21, 2006 for Lot 13; Geraldine Frances Swanson and Gary R. Swanson, Book 6841, Page 110, dated November 24, 1987 for Lot 15 [Note 4]; Jeremiah and Cynthia Silbert, Book 4334, Page 345, dated November 28, 1984 (Lot 17); Chatham Conservation Foundation, Inc., Book 4367, Page 337, dated December 20, 1984 (Lot 29); and MLB Future, LLC, Book 28135, Page 85, dated April 20, 2014 (Lot 26).

7. Other deeds of lots in the subdivision grant rights that likely include rights in the ways, such as the deed to William C. Haydon and Laura J. Haydon of Lot 11 ("[s]ubject to and together with all matters of record"), Book 30334, Page 281; the deed to Christine Haugen, Trustee, of Lot 27, Book 25658, Page 326, dated August 23, 2011 ("[s]aid premises are conveyed subject to and with the benefit of all rights, reservations, easements and restrictions of record insofar as the same are applicable and in force"). The owner of Lot 22, Rachel Gubbay, was conveyed Lot 22 by a deed in Book 26080, Page 320, "subject to and with the benefit of …matters of record insofar as the same remain in force and are applicable." Lot 22, of course, is the lot directly adjacent to the plaintiff's property, Lot 16.

STANDARD OF REVIEW

In considering a motion to dismiss filed pursuant to Mass. R. Civ. P. 12 (b)(6), the court accepts as true the well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Mass. R. Civ. P. 12(b) provides that "[i]f, on any motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." White v. Peabody Constr. Co., 386 Mass. 121 , 126 (1982). The court may, however, also take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd., supra, 442 Mass. at 45 n.4; Schaer v. Brandeis Univ., supra, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 (2008) (Long, J.). "A complaint only survives a motion to dismiss if it includes enough factual heft ‘to raise a right to relief above the speculative level.'" Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591 , 609 (2017), quoting Iannacchino v. Ford Motor Co., supra, 451 Mass. at 636.

DISCUSSION

COUNT I FOR DECLARATORY JUDGMENT

Count I purports to state a claim for declaratory judgment pursuant to G. L. c. 231A, § 1. In order to utilize the declaratory judgment statute, the plaintiff must have standing, and must demonstrate that there is an actual controversy. The declaratory judgment statute does not independently grant standing to a litigant. Professional Fire Fighters of Massachusetts v. Commonwealth, 72 Mass. App. Ct. 66 (2008). Where a plaintiff does not have a direct interest in the matter for which he seeks a declaratory judgment, he has not demonstrated standing sufficient to withstand a motion to dismiss. See Enos v. Secretary of Environmental Affairs, 432 Mass. 132 (2000) (property owners did not have standing to seek declaratory judgment with respect to MEPA, G. L. c. 30, §§ 61-62H, certificate of compliance by Secretary of Environmental Affairs of sewage treatment plant because property owners not within "zone of interests" protected by MEPA). To be in the "zone of interest," a plaintiff must demonstrate an "injury within the area of concern," a "definite interest in the matters in contention," or a "violation of a duty owed." Id. at 135. Where plaintiffs do not have a property interest in the subject of the controversy for which they seek a declaratory judgment, they do not have standing. Massachusetts State Police Commissioned Officers Ass'n v. Commonwealth, 462 Mass. 219 , 225- 226 (2012). Where the defendant has not "violated some duty owed to the plaintiff[s]," the plaintiff will not have standing. Ten Persons of the Commonwealth v. Fellsway Development LLC, 460 Mass. 366 , 380 (2011).

The plaintiff claims that the deed from the defendant's mother to the defendant granting the defendant a fee interest in a portion of Tabitha Terrace is invalid. However, a declaration in his favor would result in a declaration that the fee in that portion of Tabitha Terrace either reverts to the heirs of the defendant's mother, or, more likely, to the present owner of Lot 22, the adjacent property formerly owned by the defendant's mother. See G. L. c. 183, § 58; see also Emery v. Crowley, 371 Mass. 489 , 494 (1976) (discussion of rights under the Derelict Fee Statute). In either case, the plaintiff does not claim any interest in the fee in that portion of Tabitha Terrace as a result of a successful resolution of his claim for declaratory judgment. Simply put, he is a stranger to the title to that portion of Tabitha Terrace, and has no standing to litigate the rights of others in real estate to which he claims no record interest of his own as a result of a successful claim. For the same reason, there also is no actual controversy between the plaintiff and defendant with respect to the validity of the defendant's deed to the fee in Tabitha Terrace sufficient to justify use of the declaratory judgment statute.

Accordingly, Count I of the plaintiff's complaint will be dismissed for failure to state a claim upon which relief can be granted. The plaintiff has no more right to litigate the validity of the defendant's rights to the fee in Tabitha Terrace than does a mortgagor to litigate the validity of a mortgage assignment that does not go to the validity of the mortgage itself, which is to say, none at all. See Bank of New York Mellon Corp. v. Wain, 85 Mass. App. Ct. 498 , 503 (2014) ("[W]here the foreclosing entity has established that it validly holds the mortgage, a mortgagor in default has no legally cognizable stake in whether there otherwise might be latent defects in the assignment process").

COUNTS II AND III, FOR ADVERSE POSSESSION AND PRESCRIPTIVE EASEMENT

The defendant has separately moved to dismiss Counts II and III, respectively making claims of adverse possession and easement by prescription with respect to the defendant's fee interest in that part of Tabitha Terrace adjacent to Lot 22 to the centerline of Tabitha Terrace. The motion states that it seeks to dismiss "the Complaint," but the motion is articulated as, and was argued as, pertaining only to Counts II and III. Essentially, the defendant argues that as the plaintiff seeks, in Count II, to establish fee title by adverse possession, or, in Count III, to establish prescriptive rights over Mr. Rollins' half of Tabitha Terrace adjacent to Lot 22, he must also implead all others who have rights in that portion of Tabitha Terrace, and whose rights may be affected by the plaintiff's claims. I ruled from the bench that the defendant's contention in this regard is correct, and therefore I allowed the motion to dismiss these two counts, but granted Mr. Kuzma leave to amend to add all other potentially affected parties within thirty days of my ruling.

"Title by adverse possession can be acquired by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Holmes v. Johnson, 324 Mass. 450 , 453 (1949). "The burden of proving adverse possession is on the person claiming title thereby and 'extends to all of the necessary elements of such possession.'" Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting in part Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). Establishment of an easement by prescription requires proof of all the same elements except for exclusivity. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007).

To the extent that the plaintiff seeks to establish his right to occupy or enclose the disputed portion of Tabitha Terrace on the grounds that he has proven all of the elements of adverse possession or prescriptive easement, he cannot pick and choose whose rights he is eliminating. If he establishes a right of fee title by adverse possession against the defendant, it will necessarily affect the rights of all others who have rights in Tabitha Terrace.

The defendant has placed in the record the deeds of many other lot owners within the subdivision established by the Plan, and many of the deeds grant explicit rights over all the ways in the subdivision, including Tabitha Terrace. For those lots in the subdivision with deeds that do not explicitly grant rights in the ways, those lot owners likely have rights by estoppel, implication or necessity. It is undisputed that all of the lots in the subdivision were initially deeded out, and the ways created, by a common grantor, Benjamin Rollins, Sr. and Margaret Rollins. When a grantor conveys land bounded by a street or way and situated on a street in accordance with a recorded plan that shows the street, the grantor and those claiming under him, which in this case would include the plaintiff, are estopped to deny the existence of the street for the distance shown on the plan. Goldstein v. Beal, 317 Mass. 750 , 755 (1945). Furthermore, it is presumed that a common grantor intended to convey easement rights in ways adjacent to lots in a subdivision. Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Mr. Kuzma is bound by this presumption.

Mass. R. Civ. P. 12(b)(7) calls for dismissal for "[f]ailure to join a party under Rule 19." Mass. R. Civ. P. 19(a) provides in relevant part that a person shall be joined as a party if "(1) in his absence complete relief cannot be accorded among those already parties; or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest." For the reasons described above, I have determined that all of the owners of lots shown on the Plan, or of lots shown on any superseding plan effecting a re-subdivision of the property shown on the Plan, are parties necessary for the just adjudication of this case as contemplated by Mass. R. Civ. P. 19. Accordingly, the motion to dismiss Counts II and III is ALLOWED, with leave to amend to add all such parties who are subject to service of process within thirty days of the my ruling as announced at the hearing on November 9, 2018.

COUNT IV FOR ABANDONMENT

In Count IV of the complaint, the plaintiff alleges that he has obtained the disputed portion of Tabitha Terrace by reason of the defendant's "abandonment" of the parcel. This count fails to state a claim upon which relief can be granted for two reasons, and so will be dismissed. First, the claim fails for the same reason the declaratory judgment count fails. The plaintiff has no standing to assert any claim to the property as a direct result of the abandonment claim. If the property has been "abandoned," under the plaintiff's theory, presumably title would revert to the owner of the underlying fee, which would be the present owner of Lot 22, not the plaintiff. The plaintiff has no servient or underlying estate in the disputed parcel to which title could revert.

More fundamentally, however, there is no recognized claim for abandonment of a fee interest in land, and the plaintiff has cited no case that recognizes such a claim. Compare, Carlson v Fontanella, 74 Mass. App. Ct. 155 (2009), in which owners of rights in a way were found to have abandoned their easement rights in the portion of a way that crossed the plaintiff's land. Here, conversely, the plaintiff seeks to extinguish the fee ownership of the person whose land is being crossed by a right of way, on the ground of abandonment. Notwithstanding the factual difficulties of such a claim even where it pertains to an easement, (nonuse alone will not operate to extinguish an easement, there must be demonstration of an intent to abandon; see id.) I have found no case, and the plaintiff has not supplied any such case, recognizing a claim of abandonment of a fee interest. It would appear that there are good reasons for this, as the purpose of recognizing abandonment of an easement is to restore control of property to the owner of the servient estate, not subject to a dominant estate that might interfere with the fee owner's use, where the owner of the dominant estate has demonstrated an intent not to use the easement. Conversely, no public purpose would be served in allowing the extinguishment of a fee interest in land where there are no underlying rights in any other person that are being compromised as a result of the failure of the owner of the fee to use his or her property. There is no estate to which ownership can revert.

The plaintiff argued at the hearing on this matter that the count for abandonment at least should be left intact to pertain to the potential extinguishment by abandonment of the defendant's rights as an owner of easement rights over the disputed portion of Tabitha Terrace. He argues that since the defendant has easement rights as an owner of another lot in the subdivision, as well as the fee interest in Tabitha Terrace conveyed by his mother, the plaintiff should be able to attempt to prove abandonment of the easement portion of the defendant's rights. This is an untenable position, since, as the owner of the fee in the disputed portion of Tabitha Terrace, the defendant's easement rights over the disputed area as owner of another lot in the subdivision are merged with his fee interest. A person "cannot have an easement in [his] own estate in fee…the easement [is] extinguished by the unity of title…." York Realty v. Williams, 315 Mass. 287 , 289 (1943).

CONCLUSION

For the reasons stated above, the defendant's Motion to Dismiss Counts I and IV is ALLOWED; the defendant's motion to dismiss Counts II and III is ALLOWED, with leave to amend to add all parties necessary for just adjudication of this matter as described above, within thirty days of the date of the hearing held on the within motions. Should the plaintiff fail to so amend to add the necessary parties, judgment will enter at the conclusion of the thirty-day period.

So Ordered.