The parties to this case plaintiffs/counterclaim-defendants Paul J. and Gail M. Conway, as Trustees of the Riftwood Irrevocable Trust (the "Conways"), defendant Thomas Caragliano, and defendants/counterclaim-plaintiffs John A. and Anne C. Caragliano, as trustees of three family trusts (together with Thomas Caragliano, the "Caraglianos') cross-move for summary judgment on the primary issue in dispute: do the Caraglianos have an easement in what's called the 7th Shoreway, which abuts the Conways' registered property in Falmouth, Massachusetts? The Court concludes that the Caraglianos do.
Here are the undisputed facts. The Conway and Caragliano properties lie in a part of North Falmouth known as Nyes Neck, along Buzzards Bay. Both properties were part of a larger tract that one Earl G. Boardman had assembled by May 22, 1950. The Boardman tract was registered on Barnstable County Registry District Certificate No. 11619 and depicted on Land Court Plan No. 11518-K (the "K Plan").
The lands comprising the Boardman tract had been registered long before 1950. Some were included in Barnstable Certificate No. 481, which dates from 1921. Others were encompassed within Barnstable Certificate No. 1638, which dates from 1927 (and was the product of Land Court Case No. 11518). Certificates Nos. 481 and 1638 both mentioned various roads within the registered parcels. With respect to those roads, Certificates Nos. 481 and 1638 stated: "So much of the . . . described land as expressly or by implication of law is included with the limits of [such roads], as shown on [the plans of registration,] is subject to the rights of all persons lawfully entitled thereto in and over the same." Boardman's Certificate No. 11619 similarly provided that "[t]he streets and ways shown on [the K Plan] are subject to the rights of all persons lawfully entitled thereto in and over the same."
The K Plan depicted a ten-lot subdivision and various access roads. Three of the lots were oceanfront lots; the other seven lots were inland. Between May 22, 1950 and June 9, 1950, Mr. Boardman further subdivided his tract, creating several inland lots but only one additional oceanfront lot. But in July 1950, Boardman registered subdivision Plan No. 11518-Q (the "Q Plan"). The Q Plan depicted one new oceanfront lot. But the Q Plan also showed, next to that lot, something Boardman called the "4th Shoreway." The 4th Shoreway was a 40-foot way extending north from Westwood Road (a private, interior subdivision road) to the high water mark of Buzzards Bay.
The 4th Shoreway wasn't the last of its kind. In May 1951, Boardman registered subdivision Plan No. 11518-T (the "T Plan"). The T Plan depicted more than seventy new lots, two new access roads and, most importantly, five more shoreways (the 1st, 2nd, 3rd, 5th, and 6th). Each new shoreway, like the 4th Shoreway, was 40 feet wide. Each new shoreway, like the 4th Shoreway, began at Westwood Road and ended at the high water mark of Buzzards Bay. Two of the Shoreways, the 6th and 3rd, ended at jetties that extended into the bay.
Mr. Boardman continued to subdivide his tract after May 1951 and deed out both inland and oceanfront parcels. The inland-lot deeds refer to the grantees' easement rights as follows:
* Barnstable Documents No. 32,844 (a 1952 deed to Lot A-11) and No. 54,581 (a 1958 deed to Lot A-100) state: "There is appurtenant to the premises a right of way in common with all others entitled thereto in and over the private ways shown on the plans now filed in this case, including the sixth shore way. Said land is subject to and has the benefit of the easements and restrictions contained in Certificate of Title No. 11619 so far as the same are in force and applicable."
* Barnstable Documents No. 34,070 (a 1952 deed to Lot 30), No. 34,138 (a 1952 deed to Lot A-26), and No. 46,175 (a 1955 deed to Lot A-29) state: "There is appurtenant to the premises a right of way in common with all others entitled thereto in and over the private ways shown on the plans now filed in this case, including the sixth shore way. Said land is subject to and has the benefit of the easements and restrictions contained in Certificate of Title No. 9153 so far as the same are in force and applicable." (Mr. Boardman's Certificate No. 11619 notes that it replaced Certificate No. 9153.)
* Barnstable Documents No. 48,585 (a 1956 deed to Lot 93), No. 51,291 (a 1957 deed to Lot 35), No. 55,372 (a 1958 deed to Lots A-98 and 99), No. 55,374 (a 1958 deed to Lots B-25 and B-23B), No. 57,585 (a 1958 deed to Lot A-28), No. 63,412 (a 1960 deed to Lot A-39), No. 63,449 (a 1960 deed to Lot B-32) and No. 68,139 (a 1961 deed to Lots 43 and 44) state: "There is appurtenant to the premises a right of way in common with others in and over the private ways shown on the plans now filed in this case."
The oceanfront-lot deeds refer to the grantees' easement rights (if at all) as follows:
* Barnstable Documents No. 27,858 (a 1950 deed to Lot B-31, described as being bounded easterly by "a private road called 4th Shoreway on plan hereinafter mentioned") and No. 30,667 (a 1951 deed to Lot B-29) state: "There is appurtenant to the premises a right of way in common with all others entitled thereto, in and over the private ways shown on the plans now filed in this case. . . . Said land is subject to and has the benefit of the easements and restrictions contained in Certificate of Title No. 11,619, so far as the same are in force and applicable." Document No. 27,858 also states: "So much of the granted premises as lie north of the top of the bank are subject to the rights of the grantor, his assigns, and other persons lawfully entitled thereto for all purposes which beaches are commonly used in . . . Falmouth."
* Barnstable Documents No. 63,272 (a 1960 deed to Lots B-34 and B-35; the 5th Shoreway bounds both lots to the east) and No. 68,139 (a 1961 deed to Lots 43 and 44) state: "There is appurtenant to the premises a right of way in common with others in and over the private ways shown on the plans now filed in this case." Document No. 68,139 further provides: "The Grantor reserves for himself and for the benefit of the owners of lots in registration case No. 11518 acquired from him, the right to use the beach adjacent to [Lots 43 and 44] for bathing, boating and recreation in common with others entitled thereto."
* Barnstable Document No. 90,000 (a 1964 deed to Lot 45) doesn't refer to any easements or ways.
(The descriptions of the inland- and oceanfront-lot deeds presented above derive from the Caraglianos' Statement of Undisputed Facts and Appendix, which they filed pursuant to Land Court Rule 4 in support of their motion for summary judgment. They submitted as Exhibit L to their Appendix a selection of deeds that the Caraglianos describe in their Statement as "representative inland lot deeds" in Land Court Registration Case No. 11518, and as Exhibit M a selection of the Caraglianos claim are "representative oceanfront lot deeds" in the same Case. The Conways responded pursuant to Land Court Rule 4 to the Caraglianos' Statement. In their response, the Conways state only that Exhibits L and M "speak[] for [themselves] and no further response is necessary." That response doesn't contest the Caraglianos' assertion that the Exhibit L and M deeds are "representative" of the inland and oceanfront-lot deeds in Case No. 11518, and thus under Land Court Rule 4, "the facts described by the moving party as undisputed [here, the Caraglianos] shall be deemed to have been admitted.")
The next key event for the Conway and Caragliano properties occurred in 1962, when Mr. Boardman registered subdivision Plan No. 11518-Z (the "Z Plan"). That plan created a new oceanfront lot, Lot B-46, at what was then one of the terminal ends of Westwood Road. New Lot B-46 was bounded to the west by two previously registered Boardman lots, Lots C-2 and B- 47, both of which abutted Westwood Road. Boardman still owned Lot B-46 five years later, when he registered subdivision Plan No. 11518-13 (the "13 Plan"). Using solely the land contained within Lot B-46, Boardman created two oceanfront lots (Lots 211 and 212), one interior lot (Lot 213), and an extension of Westwood Road that served all three lots.
Mr. Boardman also used the 13 Plan to create, along the eastern edge of existing Lot B- 47 and within what had been the western edge of Lot B-46, the 7th Shoreway. Like the 1st through 6th Shoreways, the 7th Shoreway was 40-feet wide. Like the 1st through 6th Shoreways, the 7th Shoreway started at Westwood Road and ended at the high water mark of Buzzards Bay. Boardman also located the 7th Shoreway two registered parcels away from the 6th Shoreway. (The 1st, 2nd, and 3rd Shoreways were similarly spaced two parcels apart, as were the 4th, 5th and 6th.) The 7th Shoreway is the last "shoreway" found in the registration plans for Case No. 11518.
In 1976, Mr. Boardman conveyed Lots 211 and 213. The former is now the Conway property, and part of the latter is included within the Caragliano property. Boardman conveyed oceanfront Lot 211 to Evangeline T. Anthony via a deed he signed on September 23, 1975, but which was presented for registration on Barnstable Certificate No. 11619 on May 11, 1976 (the "Anthony Deed"). The Anthony Deed refers to the 13 Plan. The Anthony Deed also describes Lot 211 as bounded westerly "by 7th Shoreway. . . ." As of September 1975, Boardman didn't own the lot on the other side of the 7th Shoreway, Lot B-47. The Anthony Deed also contains no express reservation to Boardman of the fee in the 7th Shoreway.
Mr. Boardman conveyed his inland Lot 213 to Charles B. and Ethel Hazard, also by a deed (the "Hazard Deed"), beginning on September 19, 1975 (that is, four days before he signed the Anthony Deed). The Court describes the conveyance as "beginning" on that date because while Boardman signed the Hazard Deed on September 19, 1975, the Hazard Deed wasn't accepted for registration until May 17, 1976. (That date was six days after the Anthony Deed was presented for registration. If this case turned on which conveyance bests the other, the Anthony Deed would win. See G.L. c. 185, § 57 (emphasis added; "[N]o deed . . . purporting to convey or affect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties, and as evidence of authority to the recorder or assistant recorder to make registration. The act of registration only shall be the operative act to convey or affect the land. . . .") As will be shown below, the timing of registration of the Anthony and Hazard Deeds doesn't affect the outcome of this case.) The Anthony and Hazard Deeds both provide in part: "There is appurtenant to the described premises a right of way in common with others entitled thereto in and over the provided ways shown on plans in registration Case No. 11518. For title see Certificate No. 11619."
In 1978, after registration of subdivision Plan No. 11518-17, part of Lot 213 was joined to Lot C-2 (a lot abutting Lot 213 to the west, and also bordering the southern side of Westwood Road), creating Lot 242. Lot 242 is the Caragliano property. It is directly across Westwood Road from the 7th Shoreway.
The current certificates of title for Lots 211, 212 and 242 differ in their descriptions of their appurtenant easements. The Conways' Transfer Certificate of Title for Lot 211 states: "There is appurtenant to said land a right of way over the ways in common with all others entitled thereto." The Transfer Certificate's memorandum of encumbrances refers, however, to the 1927 decree in Case No. 11518. The Transfer Certificate also refers to the 13 Plan. The Transfer Certificate of Title for Lot 212 (the other oceanfront lot created by Boardman at the time he created Lot 211) states: "There is appurtenant to said land a right of way in common with all others entitled thereto in and over the Ways in Land Court Case No. 11518." The Caraglianos' Transfer Certificate of Title for Lot 242 states:
Said land is subject to the matters as set forth in Certificate of Title No. 11619, so far as the same are in force and applicable.
Said land is subject to the reservation to Earl G. Boardman, for the benefit of his remaining land, of the right to use in common with others entitled thereto the ways and beaches shown on the plans in Land Court Case No. 11518.
There is appurtenant to said land a right of way in common with others entitled thereto in and over the ways shown on the plans in case number 11518.
*.*.*
Hickey v. Pathways Association, Inc., 472 Mass. 735 (2015), resolves or guides the resolution of all of the issues on summary judgment.
Hickey disposes of the Conways' central argument for why they're entitled to summary judgment: that, by virtue of the Derelict Fee Statute, G.L. c. 183, § 58, they own the fee in the 7th Shoreway, free and clear of any easements. It's undisputed that all of the land at issue in this case the Conway property, the Caragliano property, and the 7th Shoreway is registered land, and has been since well before 1950. Hickey holds that the Derelict Fee Statute "does not apply to land registered prior to its enactment. . . ." Hickey, 472 Mass. at 752; see also id. at 744 n. 13.
The Conways counter by pointing to St. 1971, c. 684, § 2, which provides that the Derelict Fee Statute "shall take effect on January the first, [1972] and shall apply to instruments executed on and after said effective date. . . ." (Emphasis added). The Conways correctly observe that Mr. Boardman executed the Anthony Deed (the first conveyance pertaining to the 7th Shoreway) after January 1, 1972, and thus the Conways reason that the Derelict Fee Statute applies to the Anthony Deed.
The Conways' argument runs headlong into Hickey's holding that the Derelict Fee Statute doesn't apply to land registered prior to January 1, 1972. The Conways argue that Hickey can't mean what it says, given § 2's direction that the Statute apply to "instruments executed after" January 1, 1972. The Conways further posit that none of the land at issue in Hickey had been the subject of an instrument executed on or after January 1, 1972, so Hickey's statement about the Statute not applying to land registered prior to 1972 is dicta and not controlling.
That's a misreading of Hickey. It's true that the original developer of the seaside community at issue in Hickey, Frank B. Tobey, registered his 217.24-acre tract as of 1903. It's also true that Tobey and his successors in interest as developers of the Tobey tract subdivided the tract starting in 1917. But the last such subdivision occurred in 1977, six years after the effective date of the Derelict Fee Statute. See Hickey, 472 Mass. at 739-741. The Hickey defendants included persons who were the successors in interest to the owners of Tobey parcels first subdivided after 1971. See id. at 746 n. 17. So Hickey's statement that the Statute "is not applicable to any of the lots at issue here" isn't dicta. It's essential to the holding of the case, and thus it is binding on this Court.
Because the Derelict Fee Statute doesn't apply to any of the land at issue in this case, analysis of the parties' claims must proceed as it did in Hickey, without any reliance on the Statute. And so, as in Hickey, the first question is who owned the fee in the 7th Shoreway at the time Mr. Boardman executed the Hazard Deed. See id. at 743-753. One has to answer that question in order to answer the second question for the Court, do the Caraglianos possess an easement in the Shoreway. See id. at 753-765. That's because the Caraglianos trace their easement rights to the Hazard Deed; if Boardman retained the fee in the 7th Shoreway at the time he conveyed Lot 213 to the Hazards, he had the right to grant to the Hazards an easement in the Shoreway. If he didn't retain the fee in the Shoreway, the Caraglianos lose.
Hickey describes the law that applies to the interpretation of deeds not governed by the Derelict Fee Statute in which the deeded land is bounded by a way. Hickey holds that such deeds are subject to "the common-law presumption that a grantor of property abutting a way also conveys the fee to the center of the way. . . ." Id. at 744. Hickey further observes, however, that the presumption "is 'not an absolute rule of law irrespective of manifest intention, but is merely a principle of interpretation adopted for the purpose of finding out the true meaning of the words used.'" Id., quoting Crocker v. Cotting, 166 Mass. 183 , 185 (1896). In the end, under the common law, the court's duty is to determine "'the intent of the parties [as] ascertained from the words used in the written instrument interpreted in light of all the attendant facts.'" Hickey, 472 Mass. at 744, quoting Suburban Land Co. v. Billerica, 314 Mass. 184 , 189 (1943).
Hickey held that the owners of lots within the Tobey tract had rebutted the common-law presumption with respect to a twenty-foot right of way that separated two beachfront lots, both of which were bounded "by" that way. The way connected to the ocean a private way within the Tobey tract, a way that later became a public way. See Hickey, 472 Mass. at 744-753. The undisputed facts of this case are so similar to the controlling facts in Hickey that this Court concludes that Earl Boardman did not intend to convey, via the Anthony Deed, his fee interest in the 7th Shoreway. The similarities are these:
* Like the deeds of the homeowners whose properties flanked the disputed way in Hickey (see id. at 745-746), the Anthony Deed does not expressly convey Boardman's interest in the 7th Shoreway. (To be fair, Boardman also didn't state in the Anthony Deed that he was expressly reserving that interest, but that was also the case in Hickey.)
* In contrast to the deeds of the abutting homeowners in Hickey, which noted that they were subject to and had the benefit of the "rights" set forth in the developers' certificate of title (see id.), and which called out the owners' rights with respect to a handful of registered ways, the Anthony Deed contains this specific statement regarding registered ways: "There is appurtenant to the described premises a right of way in common with others entitled thereto in and over the provided ways shown on plans in registration Case No. 11518."
* That statement in the Anthony Deed directs the reader of the Anthony Deed to review the plans in registration Case No. 11518. That review would turn up the Q, T and 13 Plans, which show the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Shoreways. All (including the 7th) are 40 feet wide. All are at regular intervals (the 1st, 2nd, and 3rd are each separated by two lots from the other, as are the 4th, 5th, 6th and 7th). And all lead from Westwood Way to the ocean. See also Hickey, 472 Mass. at 745 (reviewing deed of plaintiffs Brian and Mary Hickey, which referred to a registration plan that showed multiple private ways leading to the water in addition to the one abutting their property).
* As was the case with the abutting homeowners in Hickey, who had been granted an easement in the same way they claimed to have acquired by fee (see id. at 748- 749), the Anthony Deed gives the owners of Lot 211 easement rights in the 7th Shoreway. If Mr. Boardman intended to grant Ms. Anthony the fee under the 7th Shoreway, there'd be no point to his giving her that easement.
* As was the case with the lots of the abutting homeowners in Hickey (see id.), Lot 211 is an oceanfront lot. The 7th Shoreway gives the owners of that Lot no greater waterfront access than what they possess already. But the Shoreway does have value to the owners of inland lots. To paraphrase Hickey, "[t]he purpose to provide waterfront access to inland lots is obvious on the face of the [registration] plans, and would have been to those purchasing [Lot 211]." Id.
* Mr. Boardman's practice of including in his deeds to both inland and oceanfront lots "a right of way in common with others entitled thereto in and over the provided ways shown on plans now filed in this case" indicates (paraphrasing Hickey) "a belief that [he] had rights to do so; those rights were included on the lot owners' certificates of title." Id. at 750. The Anthony and Hazard Deeds provide even stronger evidence of Boardman's intent to retain his rights: instead of granting a right of way in ways shown merely on "plans now filed in this case" (emphasis added), the Anthony and Hazard Deeds grant such rights in ways shown on "plans in registration Case No. 11518," regardless of when they were filed.
The Conways argue that the Caraglianos give far too generous a reading to the language in the Anthony and Hazard Deeds that "there is appurtenant to the described premises a right of way in common with others entitled thereto in and over the provided ways shown on plans in registration Case No. 11518." The Conways argue that the 7th Shoreway, for example, isn't "appurtenant" to the Hazard/Caragliano property; they claim that only Westwood Road is "appurtenant" to that property. The Conways thus reason that the language concerning the Hazards' easement rights applies only to Westwood Road, whereas the same language in the Anthony Deed applies to both Westwood Road and the 7th Shoreway, as the Anthony/Conway property lies on both.
The Conways' contention confuses "appurtenant" (which The American Heritage Dictionary of the English Language (1976) defines as "belonging, accessory, or incident to") with "abutting" (which the same Dictionary defines as touching "at one end or side of something; [lying] adjacent"). By reciting the rights that were "appurtenant" to the lots he was selling, Earl Boardman wasn't just describing and granting rights in the ways that abutted those lots. Instead, he was declaring that along with the "described premises," his grantee was receiving "a right of way in common with others entitled thereto," "in and over" not only whatever way abutted the described premises, but also all of the "provided ways shown on [all of the] plans in registration Case No. 11518," to the extent Boardman retained rights in those ways. This Court thus concludes that Boardman retained the fee in both the 7th Shoreway and Westwood Road after executing both the Anthony and Hazard Deeds.
The Court thus turns to the second question: do the Caraglianos have an easement in the 7th Shoreway? "One claiming the benefit of an easement bears the burden of proving the existence of that easement on the servient estate." Hickey, 472 Mass. at 753-754. "[F]or registered land to be burdened by an easement, generally the easement must be shown on the certificate of title." Id. at 754. The pertinent certificate of title is Certificate No. 11619, that of the person who retained the fee in the 7th Shoreway, Mr. Boardman. (The easement doesn't need to be noted on the Conways' certificate of title. That's because the easement doesn't encumber the Conways' land.) It's undisputed that the Hazard Deed, which granted the Hazards a right of way "in and over the provided ways shown on plans in registration Case No. 11518," appears on Certificate No. 11619. Since the 7th Shoreway is a "way" shown on the 13 Plan, a plan that's "in registration Case No. 11518," then according to Certificate No. 11619, the Caraglianos have an easement, in common with others, over the 7th Shoreway.
For these reasons, the Court GRANTS the Caraglianos' motion for summary judgment and DENIES the Conways' cross-motion for summary judgment. This decision resolves all of the Conways' claims in their Verified Complaint. This decision also resolves the Caragliano Trustees' Counterclaim Count I (a request for a declaration of their rights in the 7th Shoreway), and MOOTS their Counterclaim Count II (a request for reformation of their deed to Lot 242 in the event the Court held they didn't have a deeded easement). That leaves the Caragliano Trustees' Counterclaim Count III, a claim that the Conways are unreasonably interfering with the Caraglianos' use of the 7th Shoreway. The Court ORDERS the parties to appear for a telephonic status conference on September 5, 2019 at 11:15 a.m. to discuss how to resolve Counterclaim Count III.
SO ORDERED.
PAUL J. CONWAY and GAIL M. CONWAY, as Trustees of the Riftwood Irrevocable Trust v. THOMAS CARAGLIANO, and JOHN A. CARAGLIANO and ANNE C. CARAGLIANO, as Trustees of the CBC Irrevocable Trust, the TAC Irrevocable Trust, and the JJC Irrevocable Trust.