GIANNELLI MANAGEMENT AND DEVELOPMENT CORP. and EUGENIA GOMES vs. MPA GRANADA HIGHLANDS, LLC, and ANY AND ALL OTHER PERSONS CLAIMING ANY INTEREST IN THAT PAPER STREET KNOWN AS WINCHESTER STREET, MALDEN, MASSACHUSETTS

INTRODUCTION

Plaintiffs Giannelli Management And Development Corp. and Eugenia Gomes ("Giannelli" and "Gomes" respectively, and together, "the Plaintiffs") filed a motion for summary judgment in which they sought a judgment declaring that the Plaintiffs are the owners of the fee in Winchester Street, the way to which their properties abut on either side ("the Paper Street"), and that defendant MPA Granada Highlands, LLC ("MPA") and unidentified others have no rights in or over the Paper Street. By way of cross-motion, MPA sought a summary judgment declaring that it holds an easement by estoppel over the Paper Street that it has not abandoned. In a memorandum of decision issued on May 2, 2019, this court held that, to the extent that any of MPA's property had the benefit of an easement by estoppel over the portion of the Paper Street at issue here, that easement had been extinguished. At that time, the court reserved judgment on the Plaintiffs' claim of ownership of the fee in Paper Street. The record in this matter now having been supplemented, as described below, the court now holds that Giannelli is the owner of the fee in the Paper Street as it abuts Giannelli's property to the centerline. Because Gomes' property is registered land, any determination of her ownership of the fee in the Paper Street must be through a proceeding pursuant to G. L. c. 185, §114.

UNDISPUTED FACTS

In addition to the facts set forth in the May 2, 2019 memorandum of decision, the following facts are established in the record.

1. By deed dated June 18, 1873, and recorded in the Middlesex South Registry of Deeds ("the Registry") at Book 1265, Page 158, Edward Fuller ("Fuller") deeded a 43.27 acre parcel of land to Trueman B. Towne ("Towne"), which deed included the land shown on a plan entitled "Plan of Linden Highlands Malden Mass. Surveyed Aug. 1873 Veazie Bros. Engrs. Scale 60 ft. to 1 inch" ("the 1873 Plan").

2. By instrument dated June 20, 1873 and recorded in the Registry at Book 1265, Page 161, Towne conveyed the same property that was the subject of the June 18, 1873 deed back to Fuller to secure the payment of $3,400.00.

3. On March 25, 1874, Fuller executed an instrument recorded in the Registry at Book 1299, Page 202 releasing Fuller's mortgage interest in, among others, Lot 263 "as shown on a plan of Linden Highlands – Malden, Mass. surveyed by Veazie Bros. Aug. 1873 and recorded in the Middlesex South District Registry of Deeds to which plan reference is hereby made for a particular description of the same," and conveying that property to Towne. There is no express reservation or exception of the fee in the Paper Street in this document. At the time of this conveyance, Fuller retained property on the other side of the Paper Street.

4. The 1873 Plan shows the Paper Street abutted by Lot 263, now owned by Giannelli, on the north and abutted by Lot 262, now owned by Gomes, on the south.

5. By instrument dated March 25, 1874, and recorded in the Registry at Book 1299, Page 205, Towne conveyed five lots including Lot 263 to Portsmouth Trust Company to secure the payment of $500.00, again by reference to the 1873 Plan and again without express reservation or exception of the fee in the Paper Street.

6. Every conveyance of Lot 263 since 1874 has expressly referenced Lot 263 and the 1873 Plan, and has not expressly reserved or excepted the fee in the Paper Street. See the following documents recorded at the Registry: assignment of mortgage deed from Portsmouth Trust Company to William W. Lowe dated February 8, 1887 and recorded at Book 1787, Page 388; certificate of entry by William W. Lowe dated July 5, 1887 and recorded at Book 1808, Page 247; deed from William W. Lowe to Albert B. Morse dated July 21, 1887 and recorded at Book 1813, Page 320; deed from Albert B. Morse to William W. Lowe dated August 23, 1887 and recorded at Book 1813, Page 522; deed from William W. Lowe to John H. Jacobs dated September 22, 1888 and recorded at Book 1870, Page 557; deed from Minnie H. Jacobs, executrix of the last will of John H. Jacobs, to Charles R. Guydam dated November 14, 1899 and recorded at 2798, Page 374; deed from Charles R. Guydam to Robert Howlett dated April 7, 1908 and recorded at Book 3363, Page 78; deed from Robert Howlett to Olaf S. Lindgren dated April 15, 1908 recorded at Book 3373, Page 433; deed from Olaf N. Lindgren to Joan Pesaturo dated June 20, 1945 and recorded at Book 6869, Page 535; deed from Joan Pesaturo to Olaf N. Lindgren and Kathleen M. Lindgren dated June 20, 1945 and recorded at Book 6869, Page 535; deed from Kathleen M. Lindgren to herself and Beverly A. Morley dated September 14, 1990 and recorded at Book 20782, Page 316; deed from Beverly A. Morley to Paul Morley dated December 20, 2000 and recorded at Book 32161, Page 38; and deed from Paul Morley to Giannelli Management & Development Corp., dated September 29, 2016 recorded at Book 68157, Page 28.

DISCUSSION

General Laws c. 183, §58, commonly known as the derelict fee statute, states in pertinent part that:

Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, water course or monument, unless (a) the grantor retains other real estate abutting such way, water course or monument, in which case, . . . (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.

The legislation creating the derelict fee statute provides by its express terms that, with respect to recorded land such as Lot 263, the statute operates retroactively. [Note 1] The statute "establishes an authoritative rule of construction for all instruments passing title to real estate abutting a way, whether public or private and whether in existence or merely contemplated (so long as it is sufficiently designated)." Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242-243 (1991) (citations omitted).

"Section 58 mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the way - to the centerline if the grantor retains property on the other side of the way or for the full width if he does not - unless 'the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.'" Id. at 243. Section 58 is "stricter than the common law rule which it codified and superseded. The statutory presumption is conclusive when the statute applies, unless . . . the 'instrument passing title' evidences a different intent 'by an express... reservation.'" Id.

At the time of Fuller's March 25, 1874 conveyance of Lot 263, he made no express exception or reservation of the Paper Street, and retained real estate on the other side of the Paper Street. That conveyance therefore passed the fee to the centerline of the Paper Street. Every subsequent conveyance of Lot 263 failed to expressly reserve or except the fee in the Paper Street. Accordingly, as applied to Lot 263, §58 conclusively establishes that the owners from time to time of Lot 263 own the fee in the Paper Street as it abuts Lot 263 to its center line.

CONCLUSION

For the foregoing reasons, the Plaintiff's Motion for Summary Judgment is ALLOWED as to Giannelli's ownership of the fee in the Way and DENIED WITHOUT PREJUDICE as to Gomes' ownership of the fee in the Way. Judgment to issue.

SO ORDERED