TRUSTEES OF BOSTON COLLEGE v. BOSTON ACADEMY OF THE SACRED HEART, INC.

Two prominent Boston-area Catholic institutions, Boston College, and Boston Academy of the Sacred Heart, commonly known as Newton Country Day School, ("NCDS") have been amicable and cooperative neighbors on their adjacent campuses in Newton for forty-five years. Notwithstanding their otherwise friendly relations, a dispute has arisen regarding ownership of and rights on the private way that marks the boundary between the two prominent campuses along Centre Street. Despite the parties' best efforts to resolve their differences on their own, they find themselves before the court seeking a determination whether Colby Street in Newton is owned wholly by Boston College, whether it is owned to the center line by Newton Country Day School, or whether, if the road is owned by Boston College, on various theories, NCDS has rights in the road.

The parties have filed cross-motions for summary judgment, each asserting certain ownership or rights in the disputed way as a matter of law. NCDS, in a related Superior Court action, has also asserted a claim for breach of the warranties in its deed from a common grantor, for which it argues Boston College is liable. NCDS also asserts a counterclaim claiming a prescriptive easement on the disputed way; Boston College has moved for summary judgment in its favor on this claim as well. For the reasons stated below, I rule on the basis of the undisputed facts in the record that Boston College owns the entirety of Colby Street, not subject to any rights of NCDS, except that summary judgment is denied on the prescriptive easement counterclaim. That claim will proceed to trial.

PROCEDURAL HISTORY

The plaintiffs, Trustees of Boston College ("Boston College"), filed a complaint in the Land Court on June 29, 2016. In its complaint, Boston College asserted five claims: Count I, for reformation of the deeds to the parties by reversing the order of recording of the deeds to reflect the intent of the parties; Count II, for declaratory judgment that Boston College has all right, title, and interest in the disputed way and the defendant has none; Count III, a try-title claim under G.L. c. 240, §§1-5; Count IV, a trespass claim; and Count V, a nuisance claim.

The defendant NCDS, filed its answer and counterclaim on August 4, 2016, asserting multiple affirmative defenses and three counterclaims: Count I, for declaratory judgment that it has rights pursuant to G. L. c. 183, §58, the derelict fee statute; Count II, for declaratory judgment on a theory of easement by prescription; and Count III, for breach of warranty of deed covenants. NCDS further asserted, as affirmative defenses, that the doctrines of easement by estoppel or easement by implication grant it rights in the use of the disputed way.

NCDS also filed an action for breach of the covenants in its warranty deed in Superior Court. By administrative order of the Chief Justice of the Trial Court, I was assigned to sit as a Superior Court judge for the purpose of hearing this related action.

The parties filed cross-motions for summary judgment on May 13, 2019. NCDS filed a motion for summary judgment in the Land Court case claiming title to the center line of Colby Street as well as a right to use the entirety of Colby Street. NCDS also filed a motion for partial summary judgment establishing liability in its Superior Court case. Boston College filed its own motion for summary judgment in the Land Court case, claiming fee title to the entirety of Colby Street as a matter of law and further arguing that NCDS's prescriptive easement claim should be denied on the undisputed facts. Boston College filed a cross-motion for summary judgment in the Superior Court case on June 7, 2019.

A summary judgment hearing was held on August 28, 2019, and I took the matter under advisement on that date.

FACTS

The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions for summary judgment:

1. The plaintiff, Boston College, is a not-for-profit organization operating a university in Middlesex and Suffolk Counties, Massachusetts. [Note 1] Boston College presently owns a parcel of land in Newton [Note 2] where it maintains its law school campus and a number of freshman dormitories. [Note 3]

2. The defendant, NCDS, is a not-for-profit corporation operating the Newton Country Day School in Newton. [Note 4] NCDS owns a parcel of land in Newton, which abuts the northern boundary of Boston College's Newton campus, and which serves as the campus for the Newton Country Day School. [Note 5]

3. Prior to June 28, 1974, Newton College of the Sacred Heart ("Newton College") owned all of the land presently comprising the Boston College Newton campus and the adjacent NCDS campus, and depicted as Lots A1, B1, and B2, on the "Plan of Land, Newton Mass." dated March 4, 1965, prepared by J.F. Hennessy, Civil Engineer, Brookline, Mass., which is recorded in the Middlesex South District Registry of Deeds ("Registry") as Plan 1146 of 1965 in Book 10929, Page 407 (the "1965 Plan"). [Note 6]

4. As a result of financial difficulties, Newton College decided to transfer portions of its assets and land separately to the plaintiff, Boston College, and the defendant, NCDS. [Note 7] Newton College petitioned for and was granted a decree from the Supreme Judicial Court to liquidate all of its assets, sell its property, and dissolve. [Note 8]

5. Following approval of the transaction by the SJC, on June 28, 1974, the parties participated in a joint closing, at which Newton College delivered the two deeds transferring portions of its Newton property respectively to NCDS and Boston College. [Note 9] NCDS was represented at the closing by Boston law firm Ropes & Gray, and Boston College was represented by the firms Goodwin, Procter & Hoar (as it was then known) and Kilroy, McNulty & Roddy. [Note 10]

6. Colby Street, a private way also known as Colby Road ("Colby Street"), intersected the two adjacent parcels conveyed to NCDS and Boston College at the joint closing in 1974. [Note 11] Generally, Colby Street runs along the entire southern boundary of NCDS's parcel, and along the entire northern boundary of Boston College's parcel. [Note 12] The 1965 Plan depicts the "Proposed Property Line" between parcels A1 (the eventual Boston College property) and B1 (the bulk of the eventual NCDS property) as the northern edge of Colby Street. [Note 13] The exact location of the boundary between the two conveyed parcels is, of course, the nub of the present dispute, notwithstanding what the parties agree is shown as the boundary line on the 1965 Plan.

7. At the closing on June 28, 1974, Newton College executed and delivered a quitclaim deed (the "BC deed") conveying the southern portion of its land (parcels A1 and A2, [Note 14] or "southern parcel") to Boston College. [Note 15] The parcel was described in the deed by metes and bounds. [Note 16] Its northern boundary was described as "running along the northerly side of Colby Street." [Note 17] On its face, this language included the entire paved area and right of way comprising Colby Street in the conveyance to Boston College. The deed also included language stating that the parcel was conveyed "together with all of the Grantor's right, title, and interest, if any . . . in Colby Street[.]" [Note 18] The BC deed was recorded on June 28, 1974, at 3:52 P.M., in the Registry in Book 12658, Page 294. [Note 19] As a result of this conveyance, Boston College currently owns the property depicted as parcel A1 on the 1965 Plan and parcel A2 as shown on a 1966 plan. [Note 20]

8. Also at the closing on June 28, 1974, Newton College executed and delivered a warranty deed (the "NCDS deed") conveying parcels B1 and B2 ("northern parcel") as shown on the 1965 Plan to NCDS. [Note 21] The parcel was described by metes and bounds. [Note 22] Its southern boundary was described as "running along the northerly side of said Colby Street[.]" [Note 23] On its face, this conveyance placed NCDS's southern boundary on the northern edge of Colby Street, with the entirety of the Colby Street pavement and right of way on property conveyed to Boston College, to the south of the parcel conveyed to NCDS. The NCDS deed was recorded on June 28, 1974, at 3:52 P.M., in the Registry in Book 12658, Page 286. [Note 24] NCDS currently owns the property depicted as parcels B1 and B2 on the 1965 Plan. [Note 25]

9. As conveyed to NCDS, parcel B1, the bulk of the NCDS campus, has, in addition to its boundary on the northern edge of Colby Street, 800.87 feet of frontage on Centre Street, a public way; 998.32 feet of frontage on Richmond Road, a private way that intersects with Centre Street; and 532.02 feet of frontage on Westchester Road, a private way, for a total of 2,331.21 feet of frontage on ways other than Colby Street. [Note 26]

10. Both the NCDS and BC deeds were referenced in the index of the closing binder detailing these transactions. [Note 27] However, no memorandum or other indication that the deeds were to be recorded in any particular order was included in the closing binder, and there is no suggestion in the record that such a memorandum was prepared or executed, notwithstanding the sophisticated counsel involved.

11. Colby Street continues to exist on the boundary line between the parcels owned by NCDS and Boston College (the northern and southern parcels, respectively). There is a chain- link fence located just to the northern side of the paved road. [Note 28] The fence runs along the property line for the length of Colby Street, with de minimus divergences from the property line. [Note 29]

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

Further, "a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). To succeed, the party moving for summary judgment does not need to submit affirmative evidence to negate one or more elements of the opposing party's claim, but the motion must be supported by some material contemplated by Rule 56(c). Id. Although the supporting material offered does not need to disprove an element of the claim of the party who has the burden of proof at trial, it "must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.

I. THE TWO DEEDS WERE RECORDED AS PART OF A SIMULTANEOUS TRANSACTION, WITH NO PRIORITY TO BE GIVEN TO EITHER BASED ON ORDER OF RECORDING.

The court is presented with two deeds that were recorded on the same day, at the same hour, and at the same minute, following a joint closing the purpose of which was to dispose of all of Newton College's real estate and other assets at one time, and at which there was no memorandum requiring that the deeds be recorded in any particular order. The deed to NCDS was recorded immediately before the deed to Boston College, at least according to their respective page numbers in the Registry. These facts are undisputed by the parties. The primary question, then, is whether the "first" recording of the deed to NCDS gives that deed priority, and its provisions superiority, over the deed to Boston College. If there was any admissible competing evidence offered of the intent of the parties to record the deeds in a particular order, it would not be appropriate to grant summary judgment for either party, as the court would be engaging in the drawing of an inference as to the parties' intent notwithstanding a dispute of fact as to whether the parties intended to record the NCDS deed first so as to give it priority. If, however - as the court rules for the reasons that follow - the deeds were recorded simultaneously as part of a simultaneous transaction, and no party has interposed any genuine issue of material fact to suggest otherwise, then the deeds and their effect must be interpreted accordingly, with no inference to be drawn from the fact that one deed is necessarily on an earlier page in a book at the Registry than the other deed.

NCDS argues that, because its deed was a first-in-time (or, more accurately, first-in-page-order) conveyance, it has title to Colby Street from the southern boundary of the NCDS property to the center line of Colby Street, and, with the resulting fee to half the width of the road, rights over the entire way. NDCS relies for this argument on the so-called "derelict fee" statute, G. L. c. 183, §58. The statute provides, in pertinent part, that "[e]very instrument passing title to real estate abutting a way, whether public or private . . . shall be construed to include any fee interest of the grantor in such way . . . unless (a) the grantor retains other real estate abutting such way, watercourse of monument, in which case . . . 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[.]" G. L. c. 183, §58. NCDS contends that by deeding the northern parcel of its land to NCDS, with its southern boundary on the side of Colby Street, Newton College, with the benefit of the derelict fee statute, was also deeding NCDS title to the northern half of the width of the road that abutted the parcel - Colby Street. Therefore, if NCDS's deed was recorded before Boston College's deed, the subsequent deed to Boston College could only convey such title in Colby Road as NCDS did not already own - namely, just the southern half of the width of Colby Street.

Boston College argues on the other hand that as the deeds were executed at a joint closing and recorded simultaneously, with no evidence of an intent that they be recorded in any particular order, the intent of the parties to the transaction should be derived only from the unambiguous language of the deeds; and that the derelict fee statute does not play a role in determining that intent. Pointing out that the deed to Boston College includes Newton College's stated intent to convey "all of [its] right, title, and interest, if any . . . in Colby Street" to Boston College, that stated intent should be honored, irrespective of the order in which the deeds were recorded and irrespective of the derelict fee statute, which, Boston College argues, does not apply because the grantor did not retain any interest in Colby Street at the exact time of the conveyance.

Indeed, "when two or more deeds, conveyances, or contracts of any sort are made simultaneously, and so connected with each other that they may be regarded as one transaction, these contracts and conveyances shall be held to take effect in such order of priority and succession as shall best carry into effect the intention and best secure the rights of all the respective parties." Pomeroy v. Latting, 81 Mass. 435 , 436 (1860). Accordingly, "[w]hen the instruments come to be executed, delivered, and recorded at the same times, there is no supremacy afforded the grant in the one of the sequential instruments which first makes it to record . . . when deeds are presented at the same time to the Registry, the order in which deeds go to record does not determine property rights definitively." Jean v. Perez, 25 LCR 176 , 183 (2017) (Piper, J.). When deeds are recorded on the same day, "there is nothing in the terms of either which makes it subject to the other; and prima facie they [are] in fact simultaneous[.]" Chase v. Woodbury, 60 Mass. 143 , 147 (1850). Further, where two deeds from a single grantor to different grantees are simultaneous, the case is "much more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it, than [it is] like the case of grantor and grantee, where the grantor conveys a part of his land, by metes and bounds, and retains another part to his own use[.]" Johnson v. Jordan, 43 Mass. 234 , 241 (1841). Supremacy will not be afforded the grant in one of a series of sequential instruments merely because it is first-in-time, "at least in the absence of some evidence of a contrary intention." Jean v. Perez, supra, 25 LCR at 183.

Because there are cross-motions for summary judgment, and it has the burden of establishing its claimed rights, NCDS also has the burden of creating a dispute of fact on the matter of whether or not the deeds were simultaneously recorded as a matter of law. See Kourouvacilis v. General Motors Corp., supra, 410 Mass. at 714. NCDS has offered no admissible evidence to take the disputed transaction out of the rule that simultaneously recorded deeds are to be treated without giving priority based on the order of recording.

Although NCDS claims there is overwhelming evidence that Newton College intended to grant NCDS title in the northern portion of Colby Street, it has not offered any admissible evidence of a genuine issue of material fact that would support that position. NCDS points only to the fact that the NCDS deed was recorded on an earlier page than the BC deed, although in the same minute. NCDS also offers a vote of the trustees of Newton College authorizing the transaction as evidence of an intent differing from the result dictated by the unambiguous language of the deeds.

The evidence that the NCDS deed preceded the BC deed in page number at the Registry is immaterial, based on the rule described above. On its own, this evidence is not dispositive on the issue of whether or not the deeds should be treated as simultaneously recorded as a matter of law. Had the deeds been recorded conversely, with the BC deed preceding the NCDS deed in the Registry, the result would be the same.

NCDS also points to a vote of the trustees of Newton College as evidence of their intent to convey an interest in Colby Street to NCDS - an intent that, if true, is inconsistent with the unambiguous language of the deeds. As is more fully discussed below, parol evidence is not admissible to contradict the unambiguous language in a deed.

NCDS relies on only the undisputed page numbering of the conveyances and inadmissible evidence of an intent it claims is contrary to the unambiguous language of the deeds in arguing it should be granted summary judgment, "[T]he party opposing summary judgment must adduce competent evidence sufficient to show a genuine issue for trial." Green v. Zoning Bd. of Appeals of Southborough, Mass. Appeals Court, No. 18-P-1314, (September 19, 2019) slip op. at 12, quoting Jenkins v. Baker, 95 Mass. App. Ct. 664 , 660 n.9 (2019) (emphasis in original). In sum, NCDS has failed to produce competent evidence of a genuine issue of material fact that would warrant treating the deeds otherwise than as simultaneously recorded.

Rather, the undisputed evidence mandates a conclusion that the parties to the transaction treated the conveyances of the two deeds as part of a singular transaction, and that they evinced no intent to treat the deeds as other than simultaneously delivered, accepted and recorded. The two deeds were executed and delivered at a joint closing at which all three parties, Newton College, Boston College and NCDS, were represented by sophisticated counsel. Unlike transactions in which the order of recording is important to accomplish the intent of the parties, there was no memorandum at the joint closing dictating the order in which the deeds or other documents were to be recorded. It is inconceivable that if the order of recording were crucial to the transaction in any way, attorneys from Ropes & Gray and Goodwin, Procter & Hoar would not have executed such a document and included it in the closing binder. They did not. Accordingly, on the undisputed facts, the conveyance of the two deeds must be treated as part of a single, simultaneous transaction.

II. THE DEEDS UNAMBIGUOUSLY DESCRIBE THE GRANTOR'S INTENT TO CONVEY THE ENTIRETY OF COLBY STREET TO BOSTON COLLEGE.

Having determined that the order of recording of the deeds, in this instance, has no bearing on their priority respective to each other, it remains to interpret the meaning of the simultaneous deeds.

A. The Deeds Are Unambiguous.

Where, as here, the deeds have been determined to have been recorded simultaneously as part of a single, integrated transaction, with no evidence of a contrary intent, the order of recording is not instructive of the grantor's intent, and instead the deeds should be understood "together as a single act by the grantor . . . to be harmonized, rather than to be ranked in conveyancing priority." Jean v. Perez, supra, 25 LCR at 183, citing King v. Stephens, 9 Mass. App. Ct. 919 , 920 (1980), and National Lumber Co. v. Lombardi, 64 Mass. App. Ct. 490 , 496 (2005). Further, "[t]he 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 light of the attendant circumstances." Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). The existence of an ambiguity is a question of law to be decided by the court, which may appropriately be decided on summary judgment. Seaco Ins. Co. v. Barbosa, 435 Mass. 772 , 779 (2002). The meaning of any ambiguity, conversely, is a question of fact. Id.

The court could only consider attendant circumstances that might bear on the intent of the grantor, Newton College, if the deeds themselves were ambiguous. If the description in the deed is certain and unambiguous, parol evidence cannot be admitted to alter or control the deed's terms. Jean v. Perez, supra, 25 LCR at 180, citing Miles v. Barrows, 122 Mass. 579 , 581 (1877). Nor is parol evidence admissible to prove "that the parties intended something different from that which the written language expresses, or which may be the legal inference and conclusion drawn from it[.]" Oldfield v. Smith, 304 Mass. 590 , 600 (1939). The language of a deed can be ambiguous if "its meaning . . . is uncertain and susceptible of multiple interpretations." Hamouda v. Harris, 66 Mass. App. Ct. 22 , 26 (2006). For example, a deed will be said to be ambiguous if it describes the boundaries of a plot of land by reference to certain landmarks or physical monuments that do not actually exist on the land. Jean v. Perez, supra, 25 LCR at 180. It may also be held ambiguous when a conveyance contains both a reference to a varying natural body and a more definite ascertainable boundary mark. Sheftel v. Lebel, supra, 44 Mass. App. Ct. at n. 8, citing Haskell v. Friend, 196 Mass. 198 , 201-202 (1907) (reference to "shore" as boundary was ambiguous where boundary was subsequently described as "bounded westerly by Squam River"). When, instead, the terms of the deed "as applied to the land conveyed create no ambiguity . . . evidence of intention is excluded." Chester Emery Co. v. Lucas, 112 Mass. 424 , 434-435 (1873).

If Colby Street could not be identified on the land, it might be said the deeds were ambiguous. However, the parties agree that the Colby Street referenced in the deeds exists on the land currently and is in the location shown on the 1965 Plan. There is also no disagreement that the deeds, explicitly, and consistently with each other, describe the conveyance of the entirety of Colby Street to Boston College and the conveyance of the NCDS parcel to the northern edge of Colby Street. There is, then, no ambiguity on the face of the deeds themselves, and there is no ambiguity between the two deeds as to what part of Colby Street, if any, is conveyed to either party. Rather, there is only a disagreement about whether the derelict fee statute, G. L. c. 183, §58, imposes on the transaction a construction giving NCDS the fee to the center line of Colby Street, in consideration of the conveyance to it of property bordering on a way. With the order of the recording of the deeds having been determined by the court to be immaterial, the effect, if any, of the derelict fee statute on the conveyance, is a question of law to be determined by examining the unambiguous language of the deeds.

B. The Deeds Unambiguously Evince the Intent of the Grantor to Convey All of Colby Street to Boston College.

In this case, it is not necessary to consider attendant circumstances, nor to make any inferences from evidence other than the language of the deeds themselves, about what the grantor intended by the simultaneous deeds. The language of the deeds themselves, which language is undisputed, states what land is given to Boston College and what land is given to NCDS. Ambiguity only arises in these deeds if the court assumes as true that the NCDS deed was meant to take priority over the BC deed. In that case, the grant to NCDS could be interpreted to mean that Newton College intended to give NCDS title to the northern portion of Colby Street. However, the court will not presume this to be true in light of case law establishing that these deeds should be treated as simultaneously delivered, accepted and recorded, and NCDS's failure to come forward with competent, admissible evidence to suggest otherwise.

Reading the deeds in harmony, then, and without regard to the order of recording of the deeds in this simultaneous transaction, the several unambiguous provisions in the two deeds guide the court to its conclusion. First, both deeds describe the primary parcels to be conveyed respectively to Boston College and to NCDS as parcel A1, to be deeded to Boston College, and parcel B1, to be deeded to NCDS, by reference to the 1965 Plan, which unambiguously depicts graphically, and with the words "proposed property line," the boundary line between parcels A1 and B1 as the northern edge of Colby Street, and not as the center line. Second, consistently with the depiction on the 1965 Plan, the NCDS deed describes the southern boundary of parcel B1 as "running along the northerly side of said Colby Street." Third, also consistently with the depiction of the boundary line between parcels A1 and B1 on the 1965 Plan, the BC deed describes the northern boundary of parcel A1 as "running along the northerly side of Colby Street." Finally, the deed to Boston College, but not the deed to NCDS, explicitly states that the grantor's intent is to convey all of its interest in Colby Street (and other ways) to Boston College, as follows: "Said premises are conveyed with all of the Grantor's right, title and interest, if any, in . . . Colby Street . . . all as shown on [two plans, including the 1965 Plan]." [Note 30]

Newton College meant to and did give Boston College the southern parcel, including all of Newton College's "right, title, and interest" in Colby Street - that is, all of Colby Street. Similarly, Newton College meant to and did give NCDS the northern parcel, including the land abutting Colby Street to the north, but not including Colby Street itself.

C. The Derelict Fee Statute Does Not Apply to the Interpretation of the Deeds.

If Newton College intended to give NCDS title to part of Colby Street, it would not have constructed the language in the deed as it did, relying on the derelict fee statute to effectuate that conveyance of title. These parties were sophisticated and were represented by experienced counsel. It strains credulity to suggest that the parties would draft the deeds in a way that explicitly describes all of Colby Street being conveyed to Boston College, but that the parties were relying on the derelict fee statute to effectuate their real intent of conveying to NCDS Colby Street to its center line.

And in any event, if that were truly the intent of the parties to the transaction, the derelict fee statute does not permit such a result on the undisputed facts of this case. The rule of construction imposed by the derelict fee statute requires that any deed conveying title to real estate abutting a way "shall be construed to include any fee interest of the grantor in such way . . . ." G. L. c. 183, §58. Here, with the deeds having been delivered simultaneously, the grantor, Newton College, did not retain or have any fee interest in Colby Street at the moment of the conveyance to NCDS, as it had at the same time conveyed all of its right, title and interest in Colby Street to Boston College.

D. Evidence of a Contrary Intent Offered by NCDS Is Inadmissible.

NCDS exhorts the court to consider the May 10, 1974 vote of the Newton College of the Sacred Heart board (the "1974 Vote"). [Note 31] NCDS claims that under the terms of the vote, Newton College authorized the conveyance to NCDS of the same land conveyed to Newton College in 1972 by an earlier iteration of Boston Academy of the Sacred Heart. That earlier conveyance, which was of both of the eventual Boston College and NCDS properties, included "all right, title, and interest in Colby Street." [Note 32] Further, the 1974 Vote then provided for conveying to Boston College "all the remaining assets of [Newton College]." [Note 33] NCDS contends that these sections of the 1974 Vote are evidence of Newton's College's intent that the NCDS deed be a first-in-time conveyance which takes priority. [Note 34]

This argument, however, necessarily presumes that parol evidence is admissible to interpret these deeds. But as previously discussed, extrinsic evidence will not be permitted (even at trial) when the deeds are unambiguous. Hamouda v. Harris, supra, 66 Mass. App. Ct. at 25, quoting Cook v. Babcock, 61 Mass. 526 (1851). As the two deeds at issue here are unambiguous, evidence of a contrary intent of the Newton College board as embodied by the 1974 Vote is not admissible to contradict the unambiguous terms of the Boston College and NCDS deeds.

Even assuming that there were ambiguities in the Boston College and NCDS deeds, NCDS's reliance on the 1974 Vote is inconsistent with its claim that it owns title to Colby Street to the center line. The 1974 Vote references an earlier conveyance of property, which conveyed to Newton College "all right, title, and interest" in Colby Street. [Note 35] If this was meant to evidence the extent of the property Newton College intended to convey to NCDS, it would suggest Newton College meant to give NCDS all such "right, title, and interest" held by the grantor - all of Colby Street. However, NCDS does not make this claim. Instead, it claims that it only has fee to the center line of Colby Street, a position at odds with the very vote upon which NCDS seeks to rely. The 1974 Vote's terms might support a claim for reformation by mutual mistake, if NCDS suggested the actual deeds were out of step with the voted resolutions, and offered evidence that the deeds were the unintended result of a mistake by both the grantor and the grantees. See Apfel v. Miller, 85 Mass. App. Ct. 450 , 455 (2014) ("[M]utual mistake supporting reformation is a mistake common to all parties."). NCDS does not make that claim, has offered no evidence to support it, and the court will not consider it sua sponte.

III. NCDS HAS FAILED TO ESTABLISH AN EASEMENT BY ESTOPPEL AS A MATTER OF LAW.

NCDS pleads in the alternative, by way of an affirmative defense, that if it does not have title to the center line of Colby Street, it is entitled to a declaration that it has an easement by estoppel over Colby Street. Notwithstanding that this claim, as a claim of an affirmative right over Colby Street, and not as an avoidance of Boston College's claim, should have been raised as a counterclaim, Mass. R. Civ. P. 8(c) permits the court to consider an affirmative defense as a counterclaim. ("When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.") Whether treated as an affirmative defense or as a counterclaim, NCDS has not made out its claim that it is entitled to an easement by estoppel.

An easement by estoppel can arise in two distinct scenarios. Massachusetts courts have not recognized easements by estoppel on any other grounds than these two stated. Blue View Construction, Inc. v. Town of Franklin, 70 Mass. App. Ct. 345 , 355-356 (2007).

First, "when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way[.]" Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 482 (1989), quoting Casella v. Sneirson, 325 Mass. 85 , 89 (1949). If a way is in existence at the time of the conveyance, the grantee "and those claiming under him would have acquired an easement of way over it." Casella v. Sneirson, 325 Mass. 85 , 90 (1949).

Second, "when a grantor conveys land located on a street according to a recorded plan on which the street is shown, the grantor and those claiming under the grantor are 'estopped to deny the existence of the street for the entire distance as shown on the plan.'" Rivera v. Montgomery, 26 LCR 420 , 425 (2018) (Foster, J.), quoting Goldstein v. Beal, 317 Mass. 750 , 755 (1945).

NCDS argues that the first of these circumstances applies, even if the deeds were simultaneously recorded. However, the general statement of law as just stated does not extend to situations where the grantor has not retained any rights in the land abutting the land conveyed, and it does not extend to every situation where an easement or way is depicted on a recorded plan but the grantor may have had no rights to give. For example, "[t]he mere approval and recording of a subdivision plan which refers to a roadway does not convey an easement in favor either of those owning property abutting the subdivision or the public generally." Patel v. Planning Bd. of North Andover, supra, 27 Mass. App. Ct. at 480.

"[A] basic principle of law is that a grantee cannot receive an easement if his or her grantor has no rights" to give. Waldron v. Tofino Associates, Inc., 20 LCR 480 , 485 (2012) (Scheier, J.), citing Lombardi, Bailin, Hovey, & Pill, Massachusetts Easements and Land Use Restrictions I-39 (2003). In accordance with this basic principle, the essence of the doctrine of easement by estoppel is that a grantor of land, "describing the same by a boundary on a street or way, if he be the owner of such adjacent land, is estopped from setting up any claim, or doing any acts, inconsistent with the grantee's use of the street or way[.]" Hennessey v. Old Colony & Newport R.R. Co., 101 Mass. 540 , 541 (1869) (emphasis added). "An easement by estoppel could not be created . . . [where the grantor] retained no rights" in the way at the time of the conveyance. Waldron v. Tofino Associates, Inc., supra, 20 LCR at 485. Rights can only be created over a street adjacent to a grantor's land "so far as it extended over the grantor's land or was his to grant." Burnham v. Mahoney, 222 Mass. 524 , 528 (1916). Therefore, before a court can conclude that an easement by estoppel exists over a way adjacent to conveyed land, it must "first determine if the grantor either owned the land or had easement rights in the way" at the time the land in question was granted. Waldron v. Tofino Associates, Inc., supra, 20 LCR at 485, relying on Lombardi et al., supra, at I-39. Accordingly, an easement by estoppel can only arise in the grantee if, at the time the grantor made the conveyance, the grantor retained rights in the subject way.

Because Newton College conveyed all of its land simultaneously to Boston College and to NCDS, did not retain any interest in Colby Street, and at the time of the conveyance had no ownership or rights in Colby Street, the conveyance of parcel B1 to NCDS - notwithstanding that parcel B1 was bounded by the northern edge of Colby Street - did not give rise to an easement by estoppel over Colby Street for the benefit of NCDS.

IV. NCDS HAS FAILED TO ESTABLISH AN IMPLIED EASEMENT AS A MATTER OF LAW.

To the extent that NCDS has pled, again by way of affirmative defense but not by counterclaim, that it has an easement by implication over Colby Street and is entitled to a declaration of the same, its argument fails. The party asserting the existence of an easement by implication has "the burden of proving its existence." Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). "An implied easement arises when no easement appears in the record of a conveyance, but 'there is evidence tending to show an intent of the parties at the time of the conveyance that such an easement be then created.'" Alexander v. Juchno, 21 LCR 621 , 632 (2013) (Foster, J.), quoting Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 104 (1933). "The origin of an implied easement . . . 'must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises and the knowledge which the parties had or with which they are chargeable.'" Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940). "Whether an easement by implication exists is a matter of the presumed intent of the parties, which is 'to be gathered from the language of the instruments when read in the light of the circumstances attending their execution.'" LaFreniere v. Byers, 90 Mass. App. Ct. 1122 (2016) (Rule 1:28 Unpublished Decision), quoting in part Boudreau v. Coleman, supra, 29 Mass. App. Ct. at 629. "[W]here land is conveyed by reference to a plan, in the absence of an express grant no onerous servitude is created over other land of the grantor shown on the plan, where such right is not necessary for the enjoyment of the premises, unless shown to be intended by the parties to the deed." Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417 , 423 (1922). Because an implied easement necessarily arises from a presumption about intent, it "ought to be and is construed with strictness." Joyce v. Devaney, 322 Mass. 544 , 549 (1948), quoting Orpin v. Morrison, 230 Mass. 529 , 533 (1918).

The first hurdle NCDS must overcome is that it must offer some evidence that the claimed easement was reasonably necessary to the use of its property as determined at the time of the conveyance. "In the case of an implied grant of an easement, it has been held that the easement must be reasonably necessary for the enjoyment of the land conveyed." Krinsky v. Hoffman, 326 Mass. 683 , 688 (1957). A party seeking to establish an easement by implication need not show strict necessity for the easement, but more than mere convenience of its use is required. Id. at 688-689. See, e.g., Perodeau v. O'Connor, 336 Mass. 472 , 475 (1957) (holding that there was sufficient evidence of intent to create an implied easement where the common grantor moved a garage to clear the driveway on grantee's lot, and both grantor and grantee worked on improving the driveway at or around the time of the conveyance); Cummings v. Franco, 335 Mass. 639 , 642-44 (2011) (easements for lights, maintenance of electric fixtures, electricity supply, and water supply held to be reasonably necessary easements); Flax v. Smith, 20 Mass. App. Ct. 149 (1985) (easement by implication existed where homes had used water and sewer line easement for decades and such use was held reasonably necessary); cf. Joyce v. Devaney, 322 Mass. 544 , 549 (1944) (no easement by implication over driveway even when it provided the only practical entrance to plaintiff's garage, because parties' contrary intentions were shown by inclusion of unrelated express easements in deed); Boudreau v. Coleman, supra, 29 Mass. App. Ct. at 630 (no easement by implication where there was "no evidence that at the crucial time . . . or, indeed, at any other time[,] the locus was landlocked without use of the ways proposed[.]").

Nothing in the 1974 deeds or elsewhere in the record supports an inference or compels a conclusion that the use of Colby Road by NCDS was either necessary for the enjoyment of the property being deeded to NCDS, or that Newton College intended to, or did, grant NCDS an easement in Colby Street by implication. To the contrary, the opposite conclusion is dictated by the deeds and the facts in the record concerning the circumstances at the time of the 1974 transaction. There is no suggestion in the record that the use of Colby Street was necessary for the reasonable use of the NCDS campus where NCDS was granted a property with a combined frontage of more than two thousand three hundred feet on Centre Street, Richmond Road, and Westchester Road, and where there is no suggestion that this vast frontage was not usable and adequate for access to the NCDS campus. The NCDS land and the Boston College land were conveyed by reference in both deeds to the 1965 Plan, which explicitly depicted and described the boundary between parcels A1 and B1 as the northern edge of Colby Street. The deed to Boston College clearly and explicitly stated Newton College's intent to grant Boston College all of its "right, title and interest" in Colby Street, whereas the simultaneous deed to NCDS evinced no such intent.

NCDS has not offered any admissible evidence of a contrary intent by Newton College at the time of the 1974 conveyances that would support a finding that the parties to the 1974 transactions intended for NCDS to have an easement over Colby Street. The affidavits of Sr. Barbara Rogers and Sr. Fran de la Chappelle recount their conversations with Sr. Elizabeth Sweeney, who was clerk of Newton College in 1974 and oversaw the "consolidation" of Newton College with Boston College. Both Srs. Rogers and de la Chappelle recall that Sr. Sweeney told them in later years that one of the primary purposes of the 1974 transaction was to assure that NCDS would once again be able to operate as an independent school with its own campus. The court accepts these recollections of the statements of Sr. Sweeney as having been made in good faith and on the personal knowledge of Srs. Rogers and de la Chappelle. They are therefore admissible hearsay exceptions pursuant to G. L. c. 233, §65. However, Srs. Rogers' and de la Chappelle's identical understanding from these conversations that "it was intended that Newton Country Day School have full rights to use the entirety of Colby Street and all other streets abutting its campus," is not admissible, as neither affidavit asserts that Sr. Sweeney specifically discussed Colby Street with them. Their specific understanding based on a general conversation that did not include any discussion of Colby Street may not form the basis of a finding that there was any intent on the part of Newton College or the other parties to the transaction, at the time of the transaction, to include rights in Colby Street with the conveyance to NCDS.

Nor do the personal recollections, by affidavit, of Sr. Kathleen Hughes and Sr. de la Chappelle that they observed guests of NCDS and busses visiting NCDS, regularly park along Colby Street before, up to and for some period after the time of the 1974 conveyances, support an inference that Newton College intended to grant an easement or that such use was reasonably necessary for the use of the campus. Rather, with plenty of other ways to access the campus, and without any evidence that use of Colby Street for parking or access was necessary for the operation of the campus, evidence of the use of Colby Street for parking, without more, is merely evidence that it was convenient, but is not evidence that would support an inference that it was necessary for the reasonable use of the NCDS campus or that Newton College intended to grant an easement for such use. See Krinsky v. Hoffman, supra, 326 Mass. at 688-689.

V. NCDS'S CLAIM FOR BREACH OF WARRANTY DEED COVENANTS FAILS BECAUSE THERE WAS NO BREACH OF THE COVENANTS IN THE DEED.

NCDS, in the Superior Court case consolidated with the present Land Court action, makes a claim for breach of the covenants in its warranty deed. Because the court finds that NCDS was not conveyed any interest in Colby Street, nor is there any evidence of any intent to convey such an interest, by grant, by estoppel, by implication, or by virtue of the rule of construction imposed as a matter of law by the derelict fee statute, there is accordingly no breach of the warranties in the NCDS deed.

VI. THERE IS A GENUINE ISSUE OF MATERIAL FACT WITH RESPECT TO NCDS'S EASEMENT BY PRESCRIPTION COUNTERCLAIM.

NCDS has asserted a counterclaim seeking a determination that in the event it has not established its record title or an easement by estoppel or by implication, it be adjudged to have established an easement by prescription with respect to Colby Street. In support of this counterclaim, NCDS has submitted affidavits demonstrating its use of Colby Street over more than a twenty-year period. Boston College generally does not deny NCDS's use of Colby Street but argues that it is entitled to a presumption that the use was permissive, that NCDS has not rebutted the presumption of permission, and that accordingly, Boston College has established the defense of permissive use, thereby defeating the claim of prescriptive easement as a matter of law.

"A prescriptive easement is established by showing the continuous, open, notorious, and adverse use of another's land, conducted under a claim of right, for a period of twenty years." McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 499 (2007). "A claim of adverse possession requires proof of the additional element of exclusive use, which is not required in a claim of prescriptive easement." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 n.9 (2007). "The extent of an easement arising by prescription, unlike an easement by grant . . . is fixed by the use through which it was created." Cumbie v. Goldsmith, 387 Mass. 409 , 411 n.8 (1982), quoting Lawless v. Trumbull, 343 Mass. 561 , 562-563 (1962). It is the adverse claimant's burden to show a "lack of consent from the true owner." Totman v. Malloy, 431 Mass. 143 , 145 (2000). However, in doing so, the adverse claimant has the benefit of a presumption "that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained." Truc v. Field, 269 Mass. 524 , 528-529 (1930). "Evidence of express or implied permission rebuts the presumption of adverse use." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009).

Boston College claims to have established that NCDS's use of Colby Street was permissive as a matter of law, but there are demonstrably disputed material facts in the record on the issue of permission, including, without limitation, disputes about whether occasional closures of Colby Street were done at the insistence of Boston College, whether closures of Colby Street were done with acquiescence by NCDS, [Note 36] or whether NCDS gave permission for such closures. [Note 37] "Implied acquiescence is not necessarily the same as permission . . . . On the contrary, adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto." Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (internal citations omitted). Whether the use of Colby Street by NCDS was truly adverse, or was a product of permission, or acquiescence, is unclear on the present record, and accordingly, the allowance of summary judgment for either party on the prescriptive easement claim would not be appropriate.

CONCLUSION

For the reasons stated above, the plaintiff Boston College's motion for summary judgment is ALLOWED against the defendant NCDS with respect to Count II of its complaint (for declaratory judgment that the plaintiff has all right, title, and interest in Colby Street), and Count III (for declaratory judgment pursuant to the try title statute, G.L.c. 240, §§1-5), as well as with respect to Counts I and III (for declaratory judgment pursuant to G. L. c. 183, §58 and breach of warranty covenants, respectively) of NCDS's counterclaim. Count I of the complaint, seeking reformation of the order of recording of the deeds, will be dismissed as moot, given the court's ruling that the deeds were recorded simultaneously. The court reserves decision on Count IV of the complaint (trespass) pending trial on the prescriptive easement counterclaim. Boston College's motion for summary judgment is DENIED with respect to Count V of the complaint (nuisance). Boston College's motion for summary judgment is DENIED with respect to the defendant's prescriptive easement counterclaim (Count II of the counterclaim), which will move forward to trial. The defendant NCDS's cross-motion for summary judgment is DENIED in all respects. Boston College's motion for summary judgment with respect to the Superior Court complaint is ALLOWED. Judgment will not enter in the Superior Court case until judgment is entered in the Land Court case.

The court presently will schedule a pre-trial conference on NCDS's counterclaim for establishment of a prescriptive easement.