ALLAN C. EMERY, JR., & another vs. JAMES F. CROWLEY, JR., trustee.

HENNESSEY, C.J. Allan C. Emery, Jr., and Marian H. Emery filed a petition in the Land Court pursuant to G. L. c. 185, Section 1, to register title to three parcels of land in North Weymouth. The defendant (Crowley) and another abutting landowner filed answers taking issue with three of the Emery claims with respect to two of the parcels. Crowley appeals from various findings and rulings of the Land Court judge. His appeal requires that we construe the provisions of G. L. c. 183, Section 58, for the first time.

The controversy focuses primarily on property rights in parcel 2, which is a "paper street" running perpendicular to a public way, North Street. [Note 1] At this time Crowley is the sole abutter to parcel 2 and claims that G. L. c. 183, Section 58, operates so as to give him fee ownership of parcel 2. In addition, Crowley denies that the Emerys own, as appurtenant to parcel 1 (a 24.2 acre lot which they seek to register), a right of way to North Street over a certain parcel owned by Crowley. None of the parties contests the Land Court judge's decision concerning the Emerys' rights in a private way connected to Green Street.

All the Crowley and Emery property involved in this controversy was formerly owned by Allan C. Emery, Sr., and conveyed either by him or his widow (grantor). In

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1947, by the deeds in exhibit 13, the grantor conveyed two parcels of land to one Bowmar, Crowley's predecessor in title. With this land he conveyed fee ownership in an area referred to as "a contemplated street marked on said plan Mount Vernon Road East," and he reserved the right to construct this street. Bowmar released all claims to any rights of way over other land of the grantor, including parcel 2, which connects the land in exhibit 13 to North Street, except that on construction of the street Bowmar would have a right of way over parcel 2. The land described in exhibit 13 and parcel 2 has a short common boundary where the two sections of the contemplated street connect.

Between 1949 and 1953, the grantor conveyed to one Tukis, also (like Bowmar) Crowley's predecessor in title, by three deeds (exhibits 15, 16 and 17) the land abutting parcel 2 on its north and south boundaries. Those deeds refer to parcel 2 as "other land of the grantor" (exhibit 17) and "land of Elsie C. Emery" (exhibits 15 and 16). The plans attached to these deeds have "Elsie C. Emery" marked on parcel 2. The grantor also conveyed to Tukis by deed (exhibit 12) other land with frontage on North Street, reserving the right to pass and repass over the property to and from North Street. The conveyance in exhibit 16 gives the grantee "the right to pass and repass over road . . . marked `Elsie C. Emery'" (parcel 2).

In 1969, Crowley obtained the property conveyed to Bowmar by exhibit 13 and the property conveyed to Tukis by exhibits 12, 15, 16 and 17. Consequently, his property surrounds parcel 2 on three sides, its western boundary abutting North Street. When the Emerys, the grantor's successors, sought in 1970 to register their title to parcels 1 and 2, Crowley claimed both fee ownership of parcel 2 under G. L. c. 183, Section 58, and granted and implied easements over parcel 2. Additionally, he objected that the right of way retained by the grantor in exhibit 12 was obsolete and unnecessary and unlocated by metes and bounds.

The Land Court judge ruled that the Emerys owned the

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fee in parcel 2, that the fee is subject to a right of way over parcel 2 appurtenant to the land conveyed by exhibit 16, that the fee is subject to a right of way appurtenant to the land conveyed by exhibit 13 only on construction, if ever, of the contemplated street, that the fee is not subject to any rights of way appurtenant to the land conveyed by exhibit 17, and that the fee is subject to a right of way over the northwest corner but not over the bulk of parcel 2 appurtenant to part of the land conveyed by exhibit 15. The judge further ruled that the Emerys have a right of way appurtenant to parcel 1 over the land conveyed by exhibit 12. While he ruled that Crowley is the sole abutter of parcel 2, he ruled that parcel 2 has not been designated a private way and is not a private way. The judge found that the land conveyed by exhibit 13, the only instrument referring to parcel 2 as a contemplated street, does not abut parcel 2 within the meaning of G. L. c. 183, Section 58, and therefore Section 58 has no effect on parcel 2 because no instrument passed title to "real estate abutting a way." We agree.

1. General Laws c. 183, Section 58, as amended by St. 1973, c. 185, Section 1, sets out an authoritative rule of construction for instruments passing title to real estate abutting a way. However, the statute does not define expressly the terms "abutting" and "way." [Note 2] We therefore turn to established judicial rules of definition to decide whether the statutory rule of construction applies to any of the instruments by

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which Crowley obtained title to the property surrounding parcel 2. We bear in mind that rules of construction are designed to elucidate the intent of parties to written instruments, Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 680 (1965), and thus look to the instruments themselves and extrinsic facts, if necessary, to decide if the deeds involved here pass title to real estate "abutting" a "way." See Walter Kassuba Realty Corp. v. Akeson, 359 Mass. 725, 727 (1971).

We conclude that parcel 2 did not constitute a "way" in the instruments passing title to the property abutting its north and south boundaries from grantor Emery to grantee Tukis. Both the metes and bounds descriptions of the lots conveyed and the plans incorporated in the deeds clearly delineate the property now known as parcel 2 as belonging to the grantor or his spouse. The parties obviously intended and understood that this land was retained by the grantor. Only one lot (exhibit 16) was conveyed with an express easement across all of parcel 2 and such an easement was necessary for access to and enjoyment of that lot. Another lot [Note 3] received a curvilinear right of way over the northwest corner of parcel 2 inconsistent with a plan to pave and grade parcel 2 as a road. A prospective purchaser examining the deeds to the land abutting parcel 2 on its north and south boundaries would have no reason to think he would acquire any interest in parcel 2 beyond those express easements. Thus, Section 58 does not apply to those instruments. For the same reasons the rule of easement by estoppel, that a grantor is estopped from denying the existence of a way when he conveys land bounded on a way, Casella v. Sneierson, 325 Mass. 85, 89 (1949), does not apply in this case. Contrast Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 676 (1965). Since the grantor conveyed to Tukis no interest in parcel 2 beyond the express rights of way above described, Tukis could pass none to Crowley.

Although the instruments conveying land from Emery

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to Bowmar (exhibit 13) referred to parcel 2 as a contemplated street in both their metes and bounds descriptions and their attached plan, the parcels conveyed do not "abut" parcel 2 within the meaning of G. L. c. 183, Section 58. Consequently, the rule of Murphy, supra at 677-678, that a grantor is estopped from denying the existence of a way when he conveys land bounded on a contemplated way as long as the contemplated way is sufficiently defined, is inapplicable. Both Murphy and G. L. c. 183, Section 58, deal with questions concerning fee ownership of ways which arise out of conveyances of property bounded on a way when the conveyance expresses no intent relative to the way. The statute establishes a comprehensive rule to cover these questions. By its terms it includes, in "abutting" real estate, land "on the same side" of the way in question, see G. L. c. 183, Section 58 (a) (i), and land "on the other side of such way," see G. L. c. 183, Section 58 (a) (ii). The statutory silence with regard to real estate at the end of the way signifies that such real estate does not "abut" the way in the traditional or statutory sense of the word. Indeed, logically the landowner at the end of a way cannot acquire any fee interest in the way without encroaching on the property rights, if any, of the abutting side owners. The term "abutting," in the context of fee ownership of ways after conveyance of property bounded on a way, thus refers to property with frontage along the length of a way. Crowley obtained no fee interest in parcel 2 by operation of G. L. c. 183, Section 58, on the instrument in exhibit 13 because the property conveyed by the deeds in exhibit 13 does not abut parcel 2 within the meaning of that statute. [Note 4]

2. Crowley maintains that even if he does not own the fee in parcel 2 by operation of G. L. c. 183, Section 58, he has express and implied rights of way over the bulk of parcel 2 appurtenant to each of the two lots conveyed by exhibit

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15, the lot conveyed by exhibit 16, and the lot conveyed by exhibit 17. While the Land Court judge found express rights of way appurtenant to the lot in exhibit 16 and to one lot in exhibit 15, he found no implied rights of way over the bulk of parcel 2 appurtenant to either lot in exhibit 15, or to the lot conveyed by exhibit 17. We agree. The aforesaid deeds conveyed no easements by implication in parcel 2 because none was necessary to the enjoyment of the lots conveyed and because, as explained above, none was conveyed by estoppel through a conveyance of land abutting a way. See 493, supra. Hence, the wording of the deeds contained in the foregoing exhibits amply supports the judge's findings and rulings.

3. Finally, Crowley appeals from the Land Court judge's ruling that the Emerys own, appurtenant to parcel 1, a right of way over the land conveyed to Tukis by the deed in exhibit 12 and thence to Crowley. He asserts that the right of way no longer exists because it is obsolete and unnecessary and because it is not located by metes and bounds in the original conveyance (exhibit 12). The deed in exhibit 12 expressly reserved this easement for the benefit of parcel 1. An express easement can be extinguished only by grant, release, abandonment, estoppel or prescription. Delconte v. Salloum, 336 Mass. 184, 188 (1957). Lack of necessity and obsolescence do not affect the existence of this easement. Nor did the failure to locate precisely the easement affect its existence, particularly when the strip of land burdened with the easement is clearly suited for such a right of way. McKenney, 216 Mass. 248, 251-252 (1913). Hence, Crowley has failed to show that this ruling is unsupported by the evidence.

Decision affirmed.

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