SUBQ-16-03200 06-001

October 15, 2019

Essex, ss.




Before me are two consolidated cases in which petitioners seek to amend the Certificate of Title issued to respondent JoDee C. Doyle, as trustee of the Four Ninety-Four NEB Realty Trust. These cases were filed consistently with this court's order dated February 5, 2016, which was issued in Subsequent Case No.: 96 SBQ 03200 11-02. In these latest actions subsequent to registration, petitioners seek to have the court recognize expressly as a matter of registered title petitioners' claimed appurtenant easement rights to pass and re-pass over respondent's Lot 843 (as shown on Land Court Plan No. 3200-203, as revised February, 2016), to access Salisbury Beach and the Atlantic Ocean.


Subsequent Case No. 16 SBQ 03200 06-001 was filed with the court on June 15, 2016. On October 10, 2017, I conducted a status conference. On January 3, 2018, I conducted a hearing on interested parties Diane M. LaRocque, Michael Faro, and Elizabeth Faro's motion to join that case as active parties. Following argument, I "denied [the motion to intervene, doing so, however,] without prejudice to the moving parties filing by January 10, 2018 a pleading under G.L. c. 185 §114, [the ensuing new SBQ case then] to be consolidated with 16 SBQ 03200 06-001."

Diane M. LaRocque, Michael Faro, and Elizabeth Faro then filed with the court Subsequent Case No. 18 SBQ 03200 01-001 January 10, 2018. A motion to dismiss was filed on February 26, 2018, and I held a hearing on the motion on May 16, 2018. Following argument, I denied the motion to dismiss. [Note 1]

Both cases came before me on August 28, 2018, for argument on a case stated, as the parties had agreed to do, dispensing with live testimony which would have been available at a trial. I heard arguments in both cases, and subsequently took a view of the locus on October 16, 2018 in the presence of counsel and some of the parties. On October 19, 2018, I held a hearing on petitioners' motion for leave to supplement the record, which I allowed. Once the record was supplemented, I took the matter under advisement, and I now decide the consolidated cases.


On all of the exhibits, stipulations, and other evidence properly introduced at as part of the record in these case stated proceedings, or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the submissions of the parties, I make the following factual findings and rule as follows:

1. On June 26, 1913, a decree issued in Land Court Registration Case No. 3200 confirming and registering title to land in Salisbury, Essex County in Walter Coulson, James R. Simpson, and Portal M. Black, as trustees of the Salisbury Beach Associates ("SBA"), under a declaration of trust dated April 25, 1911, and recorded with the Essex County (South District) Registry of Deeds ("Registry") in Book 2086, Page 280. Subsequently, the Essex (South District) Land Registration District of this court (the "District") issued to SBA Certificate of Title No. 1247.

2. Certificate of Title No. 1247 describes in part the land owned by SBA as follows:

SOUTHERLY by the Merrimack River; EASTERLY by the Atlantic Ocean;

NORTHERLY by a line three hundred fifty feet south of and parallel to the boundary line between said Commonwealth and the State of New Hampshire;

WESTERLY and NORTHWESTERLY by lands no sundry adjoining owners and by various lines as shown on the plan hereinafter mentioned;

NORTHERLY again by land now or formerly of John F. W. Merrill and by land now or formerly of Marion A. Sargent;

WESTERLY by Black Rocks Creek;

EASTERLY, SOUTHERLY and WESTERLY by land of the United States of America; and

SOUTHWESTERLY by a line in said River as shown on said plan.

3. The land was subdivided into individuals lots, as evidenced by Land Court Plan 3200A ("Plan 3200A"), dated January 2, 1911, which consists of twenty-seven sheets approved by the court and which accompanied Certificate 1247.

4. On Plan 3200A, Sheet 3, the subject locus is depicted as a separate lot, numbered Lot 344.

5. On April 27, 1920, the court approved Plan 3200XV, which further divided the land shown on Sheet 3 of Plan 3200A. As part of the issuance of Plan 3200-XV, Land Court Recorder Clarence C. Smith instructed the District that it was authorized to issue "[s]eparate certificates of title . . . for lot 362B and the numbered lots in Blocks G. H. O. P. & Q. As shown hereon."

6. The subject locus, previously depicted as Lot 344, was depicted on Plan 3200XV as a way.

7. Diane M. LaRocque, as trustee of the Diane M. LaRocque Recovable Living Trust ("LaRocque") is the owner of Lot 8, Block Q, as shown on Land Court Plan No. 3200XV, dated March 31, 1920 (the "1920 Subdivision Plan").

8. LaRocque derives title to Lot 8, Block Q, from a deed dated December 4, 2006, registered as Document No. 474688. LaRocque's title is evidenced by Transfer Certificate of Title No. 80202.

9. Michael C. Faro and Elizabeth Anne Faro (the "Faros") are the owners of Lot 1, Block P, as shown on the 1920 Subdivision Plan.

10. The Faros' title to Lot 1, Block P, derives from a deed dated August 2, 2000, and registered as Document No. 371906. The Faros' title is evidenced by Transfer Certificate of Title No. 72223.

11. Elizabeth Ann Faro, as trustee of the Navanod Revocable Living Trust ("Faro, Trustee") is the owner of Lot 2, Block P, as shown on the 1920 Subdivision Plan.

12. Faro, Trustee's title to Lot 2, Block P, derives from a deed dated January 15, 2004, and registered as document No. 432998. Faro, Trustee's title is evidenced by Transfer Certificate of Title No. 76885.

13. Janice Fisichelli, Trustee, Steven A. Fisichelli, and Brenda S. Fisichelli, Trustee, (the "Fisichellis") are the owners of Lot 10, Block H, as shown on the 1920 Subdivision Plan, and Lot 11-B as shown on Plan 3200-72, dated November 18, 1944.

14. The Fisichellis' title derives from a deed dated November 20, 2014, and registered as document No. 561951. The Fisichellis' title is evidenced by Transfer Certificate of Title No. 88451.

15. Heidi A. Connelly, Trustee of Girls' Realty Trust ("Connelly") is the owner of Lot 23, Block G shown on the 1920 Subdivision Plan.

16. Connelly's title to Lot 23, Block G, derives from a deed dated October 3, 1997, and registered as Document No. 335880. Connelly's title is evidenced by Transfer Certificate of Title No. 68672.

17. On June 8, 1992, Elizabeth C. Murphy, Harold F. Humphrey Jr., and Harold F. Humphrey, surviving Trustees of Salisbury Beach Associates, for consideration of $25,000.00, conveyed to JoDee C. Doyle, trustee of Four Ninety-Four NEB Realty Trust by quitclaim deed a certain parcel of land shown as "8th Street East" ("Locus") on the 1920 Subdivision Plan.

18. The deed from the surviving trustees of the Salisbury Beach Associates to Doyle, dated June 8, 1992, is registered as Document No. 273788.

19. Following the conveyance of the locus, Doyle was issued Transfer Certificate Title No. 62268.

20. By letter dated December 3, 1996, the Chief Title Examiner of this court wrote to Doyle's counsel and stated: "Certificate of Title No. 62268 should not have been issued. A Stop Order has been entered at the local registry and not [sic] further documents will be accepted on this certificate of title."

21. On November 26, 1996, Doyle filed a Petition to Approve Plan under the provisions of G.L. c. 185, §115. Thereafter, Doyle filed on June 9, 1997, an Amended Petition to Approve Plan, followed on July 14, 1998, by a Second Amended Petition to Approve Plan.

22. Answers and objections were submitted in response to Doyle's Second Amended Petition to Approve Plan. The case (Subsequent to Registration Case. No. 3200-S-199611B) came before the court (Lombardi, J.) on cross motions for summary judgment.

23. In a Decision dated September 12, 2003, the court found that Certificate of Title No. 62268 was issued without authority and dismissed the Second Amended Petition to Approve Plan. See Doyle v. Fisichelli, 11 LCR 234 (2003), aff'd, Doyle v. Commonwealth, 444 Mass. 686 (2005).

24. By order dated February 5, 2016, this court (Piper, J.), directed the Assistant Recorder for the District to issue a new Transfer Certificate of Title to Doyle showing title in her to the registered land that is the Locus. Doyle was issued Transfer Certificate of Title No. 89210. It is dated February 16, 2016, and describes the land subject to the certificate, the Locus, formerly shown on the court's prior plans as "8th St. East," as Lot 843 on this latest plan approved by the court, 3200-203.

25. Transfer Certificate of Title No. 89210 states, in keeping with the orders issued by the court: "[t]he above described land is subject to the rights of others, if any, to pass and re-pass over said land, and as described in an order filed as document 569466 in said Registry."


A. Standing

Petitioners seek to amend Doyle's Certificate of Title, pursuant to G. L. c. 185, §114, to recognize the appurtenant easement rights they allege they hold to pass and re-pass over Lot 843 to access Salisbury Beach and the Atlantic Ocean. Doyle argues that petitioners lack standing to maintain this action because they are not "other person[s] in interest" as required by the statute.

G. L. c. 185, §114 states in part: "A registered owner or other person in interest may apply by motion to the court upon the ground that registered interests of any description, whether vested, contingent, expectant or inchoate, have terminated and ceased; or that new interests not appearing upon the certificate have arisen or been created . . . or upon any other reasonable ground; and the court may hear and determine the motion after notice to all parties in interest, and may order the entry of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms, requiring security if necessary, as it may consider proper . . ."

Doyle argues that petitioners are unable to avail themselves of the relief provided under G. L. c. 185, §114 unless they are able to "prove that they have a ‘proprietary, pecuniary or some other right or interest' in the locus . . ." Resp't's Supp. Mem. at 2, Jan. 2, 2018. However, the Supreme Judicial Court ("SJC") has found that "one claiming an equitable interest in land has sufficient standing to maintain a petition under section 114." St. George's Ebenezer Primitive Methodist Church of Methuen v. Primitive Methodist Church of U.S. E. Conference, 315 Mass. 202 , 206 (1943). Here, petitioners are claiming an appurtenant easement to pass and re-pass over Doyle's land to access Salisbury Beach and the Atlantic Ocean. Without judicial recognition of that easement, and its notation on the Doyle certificate of title at the court's direction, the petitioners' claimed right to pass will lack legal force as against Doyle's registered title reflected by the certificate of title issued to her.

Doyle's argument that the petitioners lack standing rests on a logically faulty premise. Doyle appears to contend that absent a judicially pronounced interest in the Locus, petitioners are not parties in interest under the operative provisions of section 114, and so cannot proceed with these cases subsequent to registration. But this circular argument cannot carry any weight. The subsequent to registration proceeding exists, inter alia, to allow those with an interest in registered land which has not yet been noted on the certificate of title in question to obtain judicial recognition of that right, leading to its notation on the appropriate certificate(s) of title. That is what the statute contemplates, and that is what petitioners are asking the court to do. Petitioners have sufficient standing to maintain the action.

B. Easement Rights in the Way

As a preliminary matter, "[t]he parties asserting the easement . . . have the burden of proving its existence." Reagan v. Brissey, 446 Mass. 452 , 458 (2006); Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). Petitioners therefore bear the burden of proving their lots have the benefit of an easement over the locus.

"Where recorded land is at issue, it is well established that easements to ways shown on a plan may be recognized based on references to that plan in a deed." Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 , 754 (2015). "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." Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 67 (2009), quoting from Goldstein v. Beal, 317 Mass. 750 , 755 (1945). "The purpose and effect of a reference to a plan in a deed, is a question of the intention of the parties." Regan v. Boston Gas Light Co., 137 Mass. 37 , 43 (1884). "Easements to which a registered parcel is subject, however, are another matter entirely, and the fundamental issue in this case." Hickey, 472 Mass. at 754.

"The principal reason for establishing a land title registration system pursuant to G.L. c. 185 is to provide individuals with a means of ensuring that titles to land are indefeasible and certain." Comm. Electric Co. v. MacCardell, 450 Mass. 48 , 50 (2007). Under G.L. c. 185, § 46, holders of a certificate of title take "free from all encumbrances except those noted on the certificate." Thus, the general rule is that "[I]n order to affect registered land as the servient estate, an easement must appear on the certificate of title." Tetrault v. Bruscoe, 398 Mass. 454 , 461 (1986).

The SJC has articulated two exceptions to this general rule: "If an easement is not expressly described on a certificate of title, an owner, in limited situation, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest." Doyle v. Commonwealth, 444 Mass. 686 , 693 (2005); Jackson v. Knott, 418 Mass. 704 , 711 (1994). The parties have stipulated that the "second Jackson exception" does not apply to the facts of these cases, and therefore, I focus my analysis on the first exception.

In examining the first Jackson exception, the SJC in Hickey ruled that "[p]urchasers are expected to review the plan showing the lot in question, and to investigate further other certificates of title, documents, and plans contained within the registration system, at the time of their purchase, to determine both their own rights and whether others have rights." Hickey, 472 Mass. at 759. An investigation of the plans and documents in the registration system would have revealed the following.

In 1913, a judge of this court issued a decree of registration to SBA for the subject locus and the surrounding beach development. R. at 256. Plan 3200A, consisting of twenty seven sheets, depicts the entirety of the subdivision of this large beach-focused tract. The development began at the Merrimack River in the south, and ran north along the Atlantic Ocean to approximately the New Hampshire border. Plan 3200A, Sheet 3, depicts the locus as an individual lot. R. at 314. Later plans modified Plan 3200A by removing particular lots as individually-described parcels and, in their place, laid out a consistent pattern of side streets running east and west from the state highway; the eastern streets were shown as leading from the public way to the sandy beach and the Atlantic Ocean. Plan 3200XV, dated March 31, 1920, depicts the locus not as a lot, but as "8th Street East." R. at 2.

A reasonable purchaser thus would have been aware of the progression of development along the waterfront and the later development of the overall registered land plans to depict the presence of these repeating side streets. Transfer Certificate of Title 62268, respondent's original certificate (before it was cancelled and replaced with Transfer Certificate of Title 89210) describes the locus as "8th Street East," references Plan 3200XV, and notes the original registration decree. This leads me easily to find that there are sufficient facts that would have and should have prompted this purchaser to consider whether the original developer had intended to give rights to others in the subdivisions over the land she was buying from the successors to the original developer - - a parcel plainly labeled on the guiding Land Court plan as a street.

The intent of SBA can be ascertained by examining the documents in the registration system, specifically the 1920 Subdivision Plans which modified the original 1911 plan. These plans established a network of roads, including a ladder-like carefully patterned system of side streets, at regular intervals interrupting the sequence of private lots and extending from the state highway to the beach.

It is logical to conclude (and I do find) that the SBA intended owners of lots in the subdivision to utilize each of the eastern side streets shown on the plans to get to the principal amenity of the community: the beach. SBA itself utilized access to the beach as a marketing strategy in their efforts to sell these lots. In a document entitled "The Handbook of Salisbury Beach With First Map Ever Published Showing Street Numbers," the area was described as "[f]our miles of brilliant, dazzling surf on clean white sand. Hundreds of summer cottages with waves breaking almost at the doorsteps. Safest beach in New England for children." Mot. For Leave To Supp. R., Ex. A., Sep. 17, 2018.

These implied rights to use the side streets are akin to an easement by common scheme. An easement by common scheme is a form of implied easement which arises where multiple conveyances are intended to include the same common set of rights. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 832-835 (2008). In such a situation, the conveyances may reference a plan of the development as evidence of the rights the grantor intended to convey, but additional evidence is required to find an easement by common scheme. Reagan, 446 Mass. at 458; Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417 , 422 (1922); Boudreau, 29 Mass. App. Ct. at 628-630. Whether a set of conveyances combined with a plan creates a common scheme is a question of the presumed intent of the parties, as found in the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the properties, and the knowledge the parties had or with which they are chargeable. Reagan, 446 Mass at 458; Houghton, 71 Mass. App. Ct. at 833-834.

I conclude there was no other logical purpose in establishing these side streets other than to grant rights to the subdivision owners to pass over them to get to the beach. I draw this conclusion in part based on the fact that it was the custom of SBA to convey lots bounded by the line of the streets, thus retaining the fee in the street. R. at 388. I also note other conveyances in the subdivision which contemplate the public's right to use the way. In a deed dated July 27, 1965, SBA conveyed to individuals not only the right to use particular western streets, but also "the right to use in common with others any ways to the beach . . ." R. at 347.

Ultimately, had SBA not intended to grant rights to others to pass over the side streets, the marketability of the interior lots would have been significantly less. The SJC addressed a similar situation in Reagan when it examined whether owners of one or more lots in a subdivision in Oak Bluffs were benefited by implied easements to enjoy parks shown on the subdivision plan used to make conveyances out of the lots. The court concluded that "[i]t is entirely reasonable . . . given the context of the development of these other subdivisions in proximity to the [subdivision], to infer that the existence of the parks was an important feature in [the developer's] attempt to sell the lots. See Bacon v. Onset Bay Grove Ass'n, supra at 423 (explaining that conditions existing at time when deed was made must be considered). These subdivisions were all seaside vacation resorts, designed essentially as communities, with small lots on which individuals and individual families could lodge, and with related parks and plazas on which the entire subdivision community could congregate . . ." Reagan, 446 Mass at 459. "If the corporation had announced, at the time of making the sales, that it reserved the right to cut up the open spaces into building lots, and to sell them after the village should be established, it would no doubt have diminished the sales" Id. at 460, citing Attorney Gen. v. Abbott, 154 Mass. 323 , 326 (1891).

Similarly, if SBA had announced that it intended to sell some or all of the network of eastern side streets leading to the beach, it would also no doubt have diminished sales of interior lots along the state highway. The inference is strong, and I draw it, that in this community of lots sold for beach-focused vacation and recreational residential use, proximate and convenient beach access afforded to all the nearby lots was a driving factor in the development and sale of all the lots shown on the 1920 Plan. I have little difficulty concluding that the sellers and buyers of those lots would have taken from the registered land plans and descriptions used a clear intention to create regular and handy beach access points over each of the side streets leading from the public road easterly to the sandy waterfront. It would have made no sense to those parties to the seminal transactions that some of those side streets depicted as connecting to the beach would have been open and available to the lot buyers for passage, and other side streets, with identical depictions and layouts, would not.

The registered land plans, starting with the 1920 Plan, show a pattern of side streets (of which the Locus is but one) connecting the highway to the beach at metered intervals that seem clearly calculated to afford convenient access points. The layout on the registered land plans has these marked access streets punctuating the north-south run of saleable lots at distances which vary somewhat but which are, in this stretch of lots, approximately 550 feet apart. The inference I draw is that this setup was done to provide roughly ten or eleven of the lots on each side of North End Boulevard a nearby route in and out to make easy use of the beach.

I do not find persuasive the argument that the purpose of the side streets was to give those lots with permission to build a garage, and which happened to have been located where they were shown as abutting the way, a means of getting a vehicle across. Other landlocked lots, ones not abutting a way, also were given permission to build a garage. R. at 381. These lots would not have been served by the side street as a way to pass to and from the garage. The purpose of the streets was something more than just vehicular access to the interior of a particular lot - the true purpose was to afford access to the beach.

Doyle argues with great fervor that, even following the decision in Hickey, it is legally impossible to recognize easements of passage across the side streets in the Salisbury Beach subdivision (including over the Locus) because there is no proof that any such easement rights expressly were granted to any of the many lot owners within the subdivision. Doyle reads the result in Hickey - affording easement rights to lot owners over registered land even though they lacked an express grant of those rights - - as available to the lot owners there who lacked an express grant of easement rights only because there were other lot owners who did hold express rights benefiting their land.

I do not read Hickey as taking such a narrow pathway through this fraught issue. The distinction for which Doyle advocates simply is not consistent with logic or with the general principles Hickey follows. Doyle's position would mean that the existence within the large Salisbury Beach subdivision of a single lot with an express grant of easement rights over the side streets would open up the possibility of all of the many other lots coming to benefit from similar easement rights. Without that hypothetical single lot enjoying an express easement, Doyle argues that the court is powerless to infer from an abundance of facts within the registration system that the true intention of the parties was that passage rights exist to connect the lots on the registered land plans from North End Boulevard to the ocean front.

Hickey has as its focus the existence of facts apparent from the registration system, facts which show an intention to establish easement rights. Among those facts may well be the existence of easement rights expressly conferred upon other lots within the larger overall registered land subdivision. But I do not read the analysis in Hickey to require the existence of some express easement right for the benefit of at least one lot as a mandatory condition for this court to recognize the same rights in favor of other lots. Here, the facts apparent within the registration system, including the registered plans showing the lots and their layout, and the conveyances made according to them, overwhelmingly evince an intention that the side streets leading to the waterfront be impressed with the rights of nearby lot owners to pass over those streets to reach the waterfront.

As the court said in Hickey, "[t]he way thus created, along with the two other ways between waterfront lots shown on the F Plan, are, on the face of the plans, part of an integral scheme of ways in a neighborhood, providing access to the waterfront, every three or four lots. The purpose to provide waterfront access to inland lots is obvious on the face of the plans, and would have been [obvious] to those purchasing [the plaintiffs' lots] . . . " Hickey, 472 Mass. at 749. I find in the case before me that the intention to create rights to use the Locus for passage to and from the waterfront was even more "obvious on the face of the plans," and would have been obvious to the Salisbury Beach lot buyers at all relevant times.

I am mindful of the prohibition under the Registration Act, see G.L. c. 185, §53, against rights of passage arising by prescription, and against the inference of rights of way by necessity when registered land is conveyed. I also have in mind the possible risks to the integrity of the registration system, which is intended to produce certainty of title and simplicity of title examination, that may flow from recognition of rights that are not memorialized on outstanding certificates of title. But those concerns are not greatly implicated here, given the open and obvious setup on all the relevant registered land plans of the lots and perpendicular streets leading from the public highway to Salisbury Beach. There is no mystery to what was laid out and what was intended.

And in this particular case, there can be no assertion by Doyle of surprise or of adverse reliance on the registration system. She acquired from the successors to the original developer land which was not a lot shown on a Land Court plan, but was rather a strip denominated as a street. The land she bought lacked definite dimensions, because it was open to the public way on the west and to the entrance to the beach land on the east. What she bought looked like what it was - a street, set up on the 1920 Plan to afford access to the beach. Her effort to acquire a registered land lot was set aside, and she was compelled to seek from the court the establishment of a lot out of the fee of this street - - which she only did after the Supreme Judicial Court upheld this court's directive that the initial conveyance into her was improper. And when Doyle did eventually produce a plan showing the land as a registered land lot, that plan was approved by the court (and a valid certificate of title for the new lot issued) only on the express condition that the new lot remain subject to rights of any other party to pass over it. It is hardly fair that, given this history of Doyle's involvement with the Locus, she should be permitted to wrap herself in the mantle of the registered land system and end up with a lot that stands free of the passage rights of others within the registered land division of these lots at Salisbury Beach.

I need not reach the question of the scope of the rights of the parties other than Doyle to pass and re-pass over the Locus. The parties have stipulated that they do not seek vehicular passage over the former 8th Street East. They only ask to pass over the Locus by foot to get to the beach. This use undoubtedly was contemplated in the conveyance of these lots.

In addition, the result I reach in these consolidated cases is limited to the parties to them and to the rights appurtenant to their individual lots. By agreement of the current parties, notice of these proceedings has been kept limited to the current parties, with the understanding that the court's adjudication of rights would apply only to the registered title lands of the named parties. The certificate of title that Doyle holds will be amended to reflect the particular rights afforded to the current parties in these proceedings, which are to be set forth as appurtenant to their lots only; the certificate will continue to carry the current caveat that the Locus remains subject to passage rights of others, if any, who have not been participants in this latest litigation round.


I find and rule that the petitioners have met their burden in showing that, with respect to the petitioners' lots, SBA intended for owners in this Salisbury Beach subdivision to have pedestrian passage rights over the ways depicted on the subdivision plans, meaning that the petitioners are entitled to judicial recognition (and notation on the Doyle certificate of title) of their rights to pass and repass on foot over Lot 843. The Recorder will issue an order to the Assistant Recorder for the District to note on Transfer Certificate of Title No. 89210, the right of the petitioners to pass and re-pass over Lot 843 by foot, these rights being appurtenant to Lot 8, Block Q; Lot 1, Block P; Lot 2, Block P; Lot 10, Block H; Lot 23, Block G, as shown on Plan 3200XV, and Lot 11-B as shown on Plan 3200-72. I first will afford the parties twenty-one days from the date of this decision to confer and to submit to the court agreed (or competing) proposed forms of the orders the court will direct be issued to the District to carry out the conclusions the court has reached in these cases.

After the court receives and considers the parties' proposed forms, an order or orders will issue to the District.


[Note 1] The docket order from May 16, 2018, is as follows: "May 16, 2018. Hearing held on Motion to Dismiss. Attorneys Doyle, Pinto, and Caffrey appeared. Following hearing, applying the established standards for motions brought under Mass. R. Civ. P. 12 (b) (6), the court, for reasons stated on the record, and summarized below, DENIED the defendant's motion to dismiss. The court concludes that petitioners' complaint, when analyzed applying the principles governing this court's legal authority to recognize easement rights to use ways shown on plans of registered land, even in the absence of express rights, registered or unregistered, as set out in Hickey v. Pathways Association, Inc., 472 Mass. 735 (2015), states a plausible claim upon which relief can be granted. The court further concludes that petitioners have standing under G.L. c. 185, §114. In court, parties agreed to have 18 SBQ 03200 01-001 heard and decided with 16 SBQ 03200 06-001 on a case stated basis. Counsel concur that no testimony will be presented, and that these cases lend themselves to decision on a record of agreed facts. By May 30, 2018, Doyle to provide the case stated record to opposing parties. Opposing parties to have opportunity to supplement the record by June 15, 2018. Final case stated record to be filed at that time, with all parties' assent. By June 29, 2018, Doyle to file the leading brief. Upon receipt, court to schedule a hearing. By July 13, 2018, opposing briefs to be filed. Attorney Doyle to provide town counsel with a courtesy copy of this hearing's docket entry. Notice to include an instruction that the court has directed that this notice be sent so that the town might seek leave to intervene, submit an amicus brief, or otherwise ask to participate, if it elects. (Piper, J.)"