COMMONWEALTH OF MASSACHUSETTS.

APPEALS COURT.
Docket No. 2009-P-654.

Middlesex County Division.

    _________________________________________________________

Francis J. McGovern and John Joseph McGovern
as Trustees of the Francis J. McGovern and
John Joseph McGovern Family Trust;
      Francis J. McGovern and Phyllis A. McGovern,
individually; and Arlene F. Murphy
Plaintiffs-Appellees,
  
 v.

Christine M. McGovern and
    Anthony S. Leonti,
  Defendants-Appellants.

                                                                
  
     ON APPEAL FROM A JUDGMENT OF THE LAND COURT DEPARTMENT.
         
                                                    
                 
      
      Brief
      for the Defendants-Appellants,
 Christine M. McGovern and
 Anthony S. Leonti. 
               ________________________

George P. Lordan, Jr.
BBO # 304940
124 Derby Street
Salem, MA 01970
(978)745-0126

Dennis P. Derrick
BBO # 121160
7 Winthrop Street
P.O. Box 37
Essex, MA 01929-1203
(978)768-6610


i
 

 Table of Contents.

 

 

Statement of the Issues Presented For Review....................1

Statement of the Case and Facts.................................2

Argument

The Lower Court Was Wrong As A Matter Of Law
and As A Matter Fact To Conclude That Under
the Derelict Fee Statute, G.L.c. 183, § 58, 
Francis Owns To the Midline of Bagley Avenue
and That Christine Does Not Own All of This 
Private Way...............................................17

Conclusion.....................................................34

Addendum.....................................................Post

Statutory and Rule Addendum.........................Post Addendum

Rule 16 Certification............Post Statutory and Rule Addendum

 

 

 

 


ii.
              TABLE OF AUTHORITIES
                             Cases.

Adams v. Planning Board of Westwood,
64 Mass. App. Ct. 383, 389-390(2005)...................27;30

Adoption of Astrid, 45 Mass. App. Ct. 538, 547(1998)...........18

Atkinson v. Rosenthal,33 Mass. App. Ct. 219, 223-224(1992)..19;20

Binder v. Binder, 7 Mass. App. Ct. 751,755(1978)...............18

Blackwell v. E.M. Helides, Jr., Inc., 368 Mass.225(1975)....17-18

Boudreau v. Coleman, 29 Mass.  App. Ct. 621, 622-623 n.3(1990).23

Brash v. Brash,406 Mass. 101, 105(1990)........................19

Bruno v. Bruno, 384 Mass. 31, 35(1981).........................20

Capital Bank & Trust Co. v. Richman,
19 Mass. App. Ct. 515, 519(1985)..........................19

Casella v. Sneierson, 325 Mass. 85, 88-89(1949).............24;26

Cheever v. Graves, 32 Mass. App. Ct. 601, 605(1992)............27

Crocker v. Cotting, 166 Mass. 183, 185(1896)..............24;25;28

Daviau v. Betourney, 325 Mass. 1, 3(1949)......................24

Emery v. Crowley, 371 Mass. 489, 494(1976).............23;25;26;28

Erickson v. Ames, 264 Mass. 436, 444(1928)..................26;27

Felton v. Felton, 383 Mass. 232, 239 (1981)....................17

Gould v. Wagner, 196 Mass. 270, 275 (1907).....................25

Gray v. Kelley, 194 Mass. 533,537(1907)........................26

Guardianship of Clyde, 44 Mass. App. Ct. 767, 774(1998)........18


iii.

 

Kendall v. Salvaggio, 413 Mass. 618, 620-621(1992).............18

Krokyn v. Krokyn, 378 Mass. 206,208(1979)......................17

Lemay v. Furtado, 182 Mass. 280, 282 (1902).................27;30

Lighter v. Lumbermans Mutual Casualty Insurance Company,
43 Mass. App. Ct. 415, 418(1997).......................18;20

Lowell Bar Ass’n v. Loeb, 315 Mass. 176,178(1943)..............18

Murphy v. Mart Realty of Brockton, Inc.,
348 Mass. 675, 679-680(1965)..............................24

Nylander v. Potter, 423 Mass. 158, 159 n.5(1996)...............18

Rowley v. Massachusetts Electric Company,
438 Mass. 798, 804(2003)...............................25;26

Schuler v. Schuler, 382 Mass. 366, 368 (1981)..................17

Serino v. Serino, 6 Mass. App. Ct. 926(1978)...................19
 
Shear v. Gabovitch, 43 Mass. App. Ct. 650, 653(1997)............19
 
Simon v. Weymouth Agricultural & Industrial Soc.,
389 Mass. 146, 148-149(1983)............................17-18

Spiegel v. Beacon Participations, Inc.,
297 Mass. 398, 407-408(1937)..............................19

Springgate  v. School Committee of Mattapoisett,
11 Mass. App. Ct. 304, 309-313(1981)...................19;20

Suburban Land Co. Inc. v. Billerica,
314 Mass. 184,188-189(1943)...............................24

Tattan v. Kurlan, 32 Mass. App. Ct. 239,243-244 (1992)....25;26;30

Thurlow v. Shaw’s Supermarkets, Inc.,
49 Mass. App. Ct. 175, 177(2000)..........................18

Turner v. Leonard, Inc., 17 Mass. App. Ct. 909, 910(1983)......20


  iv.

 

Wilson, petitioner, 372 Mass. 325, 330(1977)...................20

Zuckerman v. Blakeley, 3 Mass. App. Ct. 685, 686-687(1975).....20

 

 

 

      Other Authorities.

 

Mass. R. Civ. P. 52(a)................................18;19;21;26

G.L.c. 183, § 58...........................................passim

G.L.c. 187, §§ 3; 5.........................................passim

 

 

 

      

 

 

 

1


  Statement of the Issues Presented For Review.

1. Did the Land Court Judge err as a matter of law or as a matter of fact in ruling that under the Derelict Fee Statute the plaintiffs-appellees Francis J. McGovern and the McGovern Family Trust own the fee interest to the midline of the private driveway known as Bagley Avenue in Bedford while the defendants-appellees Christine M.  McGovern and Anthony S. Leonti do not own all of this private way?

2. Was the Land Court Judge’s findings of fact about the intentions of the parties to the 1977 and 1986 conveyances clearly erroneous under Mass. R. Civ. P. 52(a)?

 

    

 

    


 Statement of the Case and Facts.
As reflected by the parties’ Stipulation and their Joint Pretrial Memorandum(A.170-175;176-200), Bagley Ave-nue is a private way located in Bedford, Massachu-setts(A.170). It is composed of a bituminous concrete strip with a “parking turnout,” a rectangular area where the various residents of Lot 151A across the road have traditionally used over time to park their cars and turn their vehicles around(A.170;Ex.43). The road is sur-rounded by three lots of land (each with houses on them) which are the subject matter of this litigation(A.170-171;Ex.43;44). On its fourth side, there is an accepted street in the Town of Bedford called Hartwell Road which provides access to Bagley Avenue(A.170-171;Ex.43;44).


On the westerly side of Bagley Avenue is Lot 151A, owned by the defendants-appellants Christine M. McGovern and Anthony S. Leonti(“Christine”)(A.171;Ex.45). Across from Christine’s Lot 151A and to the east of Bagley Avenue is Lot No. 1, currently owned by Christine’s brother and his wife, the plaintiffs-appellees Francis J. McGovern and Phyllis A. McGovern (“Francis”)(A.170-171; Ex.5;43). The third parcel, Lot 151C, lies at the northwesterly terminus of Bagley Avenue, and it was formerly owned by the parents of Christine and Francis, Hollis S. Murphy and Arlene F. Murray (“Hollis and Arlene”); and they resided in their home on Lot 151C from about 1975 until their respective deaths, Hollis in 1997 and Arlene in 2006(A.170-171;Ex.4;43;44).
Thus Lot 151A abuts Bagley Avenue with frontage on  the way’s westerly side; Lot 1 abuts Bagley Avenue with frontage on the way’s easterly side; and Lot 151C lies to the rear of Lot 1 at the end of Bagley Avenue(Ex.43;44). Bagley Avenue provides the only access to Lots 151C and 151A; and various utilities servicing both Lot 151A and 151C run underneath Bagley Avenue(A.170-171). All of these three improved lots, including Bagley Avenue it-self, were originally part of a 45+-acre parcel which Hollis and Arlene owned together since 1974(A.171;Ex.4 ).


In 1977, Hollis and Arlene began dividing up this tract and conveying out lots(A.171;Ex.5). On November 3, 1977, they deeded Lot 1 to Francis and Phyllis, de-scribing the 1.18 acres of land conveyed by metes and bounds, none of which used the private way as a measuring point, all references in the deed for the boundaries of Lot 1 being to Hartwell Road, “Murphy land” “other land shown on a [1977] plan of Murphy,” i.e., other land owned by Hollis and Arlene(A.171;Ex.5;43). The 1977 plan of land referenced by the deed, consistent with the metes and bounds described in the deed, showed that the land conveyed by Hollis and Arlene to Francis and Phyllis as Lot 1 never abutted the private way at any point(Ex.43).  This plan described the private way as “Bit. Conc. Driveway” and showed it to be composed of both the road itself the rectangular parking area/turnaround similarly covered by bituminous concrete(A.171;Ex.43). 


Thus the land conveyed by Hollis and Arlene to Francis and Phyllis in 1977 as Lot 1 never abutted the private way at any point(Ex.5;43). The land which abutted Lot 1 on its westerly side at the time of the conveyance in 1977 is not the private way but instead is the “Murphy Land” retained by Hollis and Arlene, as their referenced plan shows; and “other land of Murphy” surrounds the rest of the deeded lot(Ex.5;43). The private road (eventually known as Bagley Avenue) therefore never was part of this conveyance, never was referenced by the grantors in their 1977 deed to Francis and Phyllis and, as shown on the plan, never abutted Lot 1 at any point(Ex.5;43).
Further negating the notion that this conveyance by Hollis and Arlene to Francis and Phyllis may have somehow included part of this private way, the 1977 deed by Hollis and Arlene conveyed to Francis and Phyllis as well as their heirs and assigns
       an easement and Right of Way...to
  pass and repass, along with others
  entitled thereto, along and over a
  strip of land shown on said plan as
  “Bit. Conc. Driveway” for the purpose
  ingress and egress to or from the
  rear or any portion of said lot....
(A.171-172;Ex.5). This easement augments the ingress and egress Francis’ Lot 1 already enjoyed along Hartwell Road (Ex.43).


In 1984-1985, Hollis and Arlene were renting out the house located on Lot 151A. When those renters decided to leave, Hollis and Arlene wanted to convey Lot 151A to Christine; they hired an engineer (Roger Corbin) who prepared a plan of land(A.172;Ex. 44;54-56). Corbin did so and informed  Hollis and Arlene that the conveyance of Lot 151A would require a variance from the Zoning Board of Appeals of Bedford because of its inadequate lot size and frontage(A.172). In order to obtain a variance, Arlene promised the Zoning Board that Bagley Avenue would not be used as a street(A.172).
On November 19, 1985, the Zoning Board filed its de-cision granting a variance to Hollis and Arlene; and its decision became effective on December 31, 1985(A.172; Ex.6-10). Nothing in the Zoning Board’s decision spoke to the issue of the ownership of Bagley Avenue, the quality of title thereto or the identity of the owner(A.172;Ex.6-10). Nor did its decision consider the effect of any future conveyance of Lot 151A to Christine or anyone else on the ownership of Bagley Avenue(Ex.6-10).


On January 31, 1986, Hollis and Arlene deeded Lot 151A to Christine without making any reference in the deed itself to Bagley Avenue(A.172;Ex.11). However, in order to identify the metes and bounds of Lot 151A for purposes of their conveyance to Christine, their deed references a plan of land which Roger Corbin had prepared for them on November 14, 1985(A.172;Ex.11;44). Corbin’s plan describes Lot 151A as running 272.49 feet along its easterly border with this border directly abutting Bagley Avenue(Ex.44).
The deed by Hollis and Arlene conveying Lot 151A to Christine in 1986 contains no expression of an intent by Hollis and Arlene as the grantors to reserve ownership in Bagley Avenue, no actual reservation of such right, and no exception otherwise restricting the effect of their conveyance of Lot 151A to Christine in these circum-stances(Ex.11;44). Without such express reservation,  the Derelict Fee Statute, G.L.c. 183, § 58, caused the con-veyance of Lot 151A which abuts Bagley Avenue along its entire border, a way which the grantors own in fee, to transfer their unencumbered fee ownership of the whole of Bagley Avenue to Christine as grantee(A.172;Ex.11;44). Hollis and Arlene remained the owners of Lot 151C at the end of Bagley Avenue, possessed an easement by necessity  along Bagley Avenue (it was their only means of ingress and egress) and transferred the property into a trust prior to Hollis’ death in August of 1997(A.172;Ex.12-20).


In the aftermath of Hollis’ passing, family disagreements emerged about the ownership of Bagley Ave-nue, the cutting of trees there and the maintenance of various areas in and around the private way. Arlene (who still resided in her home at the end of Bagley Avenue on Lot 151C) hired Attorney Maureen Pomeroy to mediate dis-putes between Francis and Christine(Ex.72-74). In Pom-eroy’s opinion, Arlene still owned Bagley Avenue; and she voiced that opinion to Christine orally and in writing in August of 2000 without Christine’s objection(Ex.72-74). However, Attorney Pomeroy never considered the Derelict Fee Statute, G.L.c. 183, § 58, when she rendered her opinion(Ex.72-74).
On December 2, 2000, Christine accepted a deed of easement to Bagley Avenue from her mother Arlene(A.174, Ex.21). On January 12, 2005, Christine conveyed Lot 151A to herself and the defendant-appellant Anthony S. Loenti, as joint tenants with the right of survivorship(A. 174-175;Ex.45). In the meantime, the plaintiffs-appellees Francis McGovern and his brother John Joseph McGovern formed a Family Trust with Arlene (“the Trust”) and now own Lot 151C(A.173;Ex.28-42).


On December 30, 2005, Francis and the Trust began this civil action in Land Court against Christine alleg-ing most of the aforementioned facts and seeking a judgment enjoining them from interfering with or ob-structing their right to ingress and egress on Bagley Avenue; preventing Christine from destroying the concrete way, trees or vegetation on the alleged non-paved parts  of Bagley Avenue; and declaring that the Trust owns the fee to Bagley Avenue in its entirety(A.1-3;22-42). They also sought a reformation of the deed in 2000 from Arlene to Christine granting Christine an easement and right of way over Bagley Avenue to reflect Arlene’s unencumbered fee ownership of the way(33;Ex.21). They also sought a judgment quieting title to the premises in their favor(A.33-34).


Christine answered by asserting that the conveyance of Lot 151A by Hollis and Arlene to her in 1986 operated to vest in her complete ownership in Bagley Avenue by operation of the Derelict Fee Statute, G.L.c. 183, § 58. That is, the deed by Hollis and Arlene (and accompanying plan)conveying Lot 151A to Christine in 1986 contains no expression by Hollis and Arlene as the grantors to reserve ownership in Bagley Avenue, no actual reservation of such right, and no exception otherwise restricting the effect of their conveyance of land abutting a way to Christine(Ex.11;44). Without such express reservation,  the Derelict Fee Statute, G.L.c. 183, § 58, caused the conveyance of Lot 151A which abuts Bagley Avenue along its entire border, as the accompanying plan shows, a way which the grantors owned in fee, to transfer their unencumbered fee ownership of the whole of Bagley Avenue entirely to Christine as grantee(A.45).
Moreover, Christine claimed that while residents of Lot 151C will always have an easement by necessity to pass and repass along Bagley Avenue for ingress and egress to their lot, Francis’ earlier (1977) bare easement right as the owner of Lot 1 to the way is condi-tioned not only by her later (1986) complete ownership rights to the fee in the way----including the parking area and turnaround intended for use by those residing on Lot 151A----but also by Francis’ other separate means of ingress and egress from Lot 1 directly onto Hartwell Road(A.43-46). In affirmative defenses, Christine further claimed inter alia that Francis and the Trust should be denied any relief whatsoever in equity since they have come in to court with unclean hands because of events more specifically described in their counterclaim(A.46-47;47-95).


The reply of Francis and the Trust to the counter-claim denied all of its material allegations and asserted in one of its affirmative defenses that “any deed to Christine McGovern under which she claims a right to Bag-ley Avenue was due to a unilateral or mutual mistake of fact”(A.101).


At about this same time in 2006, Christine began a separate action against Francis and the Trust in the Su-perior Court Department seeking damages and other relief  stemming from acts of trespass, intimidation and threats practiced upon them by Francis and the Trust(A.15-21;102-147). The answer and counterclaim of Francis and the Trust restated the parties’ ongoing controversy already being litigated in the Land Court Department(A.148-163).  Following the filing of Christine’s reply to the counter-claim of Francis and the Trust in the Superior Court De-partment, the Superior Court action was assigned to the Land Court Department by the Chief Justice for Admin-istration and Management pursuant to a request for an Interdepartmental Transfer(A.20-21). All of Christine’s claims in Superior Court except for her request for de-claratory relief concerning her ownership of Bagley Avenue were dismissed and the parties agreed that a declaratory judgment in the Land Court action would be binding in the Superior Court case(A.8-9;21;Tr.279-280).
With matters in this posture, the parties were able  to enter into a Stipulation regarding certain facts and they filed a Joint Pretrial Memorandum as well(A.9;170-175;176-200). On March 6, 2007,the matter came on for a one-day trial in the Land Court Department before Piper, J.(A.9;Tr.1-245;Ex.1-131).
On May 19, 2007, Judge Piper issued orally from the Bench his findings of fact and rulings of law(Addendum;
Tr.280-326). He first found that even though the 1977 deed by Hollis and Arlene conveying Lot 1 to Francis and Phyllis as well as the 1977 plan of land referenced by the deed showed that the land conveyed by Hollis and Arlene to Francis and Phyllis as Lot 1 never abuts the private way at any point, a fundamental requirement of G.L.c. 183, § 58, the Derelict Fee Statute still applies to this conveyance(Tr.311-313).


Even though the lower court found from the 1977 deed’s precise measurements and the plan’s reflection of those precise measurements that there was a “short distance” between Lot 1 and the paved edge of the private way, it nevertheless concluded that
       the intention here was to use the
       western borders of Lot 1 in a linear
  way or drive. The way was private
       and has as its layout or intended
       scope the strip of land which came
       later to be described and depicted
       on the later plan drawn in 1985...
       as [a] private way also known as
  Bagley Avenue.
(Tr.313). As the trial judge saw it, the easterly lines of Bagley Avenue on this 1985 plan  “correspond directly” to the solid lines of Lot 1's westerly border on the 1977" plan(Tr.313).
Comparing the relative similarity of both plans in the manner in which Bagley Avenue is laid out, Judge Piper ruled:
       The short distance that is shown on
  the 1977 plan between the solid lines
       of Lot 1 on its westerly side and the
       dashed lines are, I find and rule,
       within the linear monument of Bagley
       Avenue which show perhaps not yet then
  by that name in 1977 intended to form
       the western boundary of the Lot 1 parcel.
(Tr.314).


In order to find and rule that the bituminous concrete driveway depicted in the 1977 plan “abuts” the land conveyed by Hollis and Arlene to Francis and Phyllis for purposes of the Derelict Fee Statute—---even though it demonstrably does not----the lower court engaged in the fiction that no easement was needed over this “short distance” between the way and the conveyed land since the conveyance encompassed this short distance——-even though it did not----and “you need no easement in your own land”(Tr.316). Indeed, the fact that the easement given  Francis to use the private way by Hollis and Arlene would have been ineffectual because it would not have permitted him passage across their land to the east of the dash line and to the west of the solid line convinced the trial judge “that the meaning of the 1977 deed and plan taken together is that the deed conveyed Lot 1 as the lot abutting the way”(Tr.316-317).


This analysis by the Land Court Judge was unencum-bered by the fact that the paved private way also contained a parking area or turnaround traditionally used by resident(s) of Lot 151A, even used by Francis when he once lived on Lot 151A(Tr.319). As Judge Piper saw it, this parking area was just another part of the way and the fact that it might be crucial to the enjoyment of Lot 151A did not take it out of the statute(Tr.319-320). As he concluded, “[w]hen the way widens, its centerline must stay in the center, giving equal width in the width to the abutting landowners at each point along the length of the way”(Tr.319-320). In this way, the lower court took away from Christine as owner of Lot 151A any available parking for her vehicle(s) on or along most of the way(Tr.320).
Finally, the trial court ruled that with the 1986 conveyance, Christine acquired the fee to the rest of Bagley Avenue not conveyed to Francis or Phyllis in 1977 (Tr.321). As it concluded, “[t]he Derelict Fee Statute operated as intended, to leave no portion of the way’s fee derelict”(Tr.321).


On January 5, 2009, judgment entered giving Chris-tine ownership of the westerly half of Bagley Avenue  and Francis ownership of the easterly half of the way(A.10; 201-206). As for the parking area and turnaround located within the way, a crucial part of the enjoyment of the fee of Lot 151A since this lot was created by Hollis and Arlene, the judgment declared that Christine has no further right to use this area for her vehicle(s) and that it is owned exclusively by Francis “free of any right of passage or easement in favor of the owners of Lot 151A”(A.202-203). This appeal by Christine followed (A.10;207-2080.
During the pendency of this appeal, Christine’s parking violations have been prosecuted by Francis as serial contempt(s) of the judgment so that Christine is now relegated to parking their vehicles far down the way toward Hartwell Road and far away from their house(A.10-12;209;210-213). With Francis’ rigorous and overbearing  enforcement, Christine has been denied all practical use of the way for any parking of their vehicles in any manner which is consistent with the enjoyment of their fee(A.210-213).

 

 

 

                


 Argument.
The Lower Court Was Wrong As A Matter Of Law and As A Matter Fact To Conclude That Under the Derelict Fee Statute, G.L.c. 183, § 58, Francis Owns To the Midline of Bagley Avenue and That Christine Does Not Own All of This                       Private Way.
In prosecuting their appeal, Christine has repro-duced in their Record Appendix all of the parties’ pleadings, all of the testimonial evidence, almost all of the parties’ trial exhibits adduced below together with the trial judge’s findings of fact and conclusions of law. This Court therefore has before it a sufficient record upon which to review and decide every question of law, fact and discretion. Felton v. Felton, 383 Mass. 232, 239 (1981) quoting Schuler v. Schuler, 382 Mass. 366, 368 (1981) and Krokyn v. Krokyn, 378 Mass. 206,208(1979).


In the first place, this Court is not obligated to reach the same conclusions of law as the Land Court Department and it may reverse the judgment below if any of the trial judge’s rulings is tainted in any respect by an error of law. See Simon v. Weymouth Agricultural & Industrial Soc., 389 Mass. 146, 148-149(1983); Blackwell v. E.M. Helides, Jr., Inc., 368 Mass.225,226(1975); Lowell Bar Ass’n v. Loeb, 315 Mass. 176,178(1943).
Secondly, this Court will set aside a trial judge’s finding of fact where it is clearly erroneous within the meaning of Mass. R. Civ. P. 52(a), as amended, 423 Mass. 1402(1996). Thurlow v. Shaw’s Supermarkets, Inc., 49 Mass. App. Ct. 175, 177(2000). Binder v. Binder, 7 Mass. App. Ct. 751,755(1978). A finding of fact is “clearly erroneous” when there is no evidence in the record to support it, Adoption of Astrid, 45 Mass. App. Ct. 538, 547(1998); Guardianship of Clyde, 44 Mass. App. Ct. 767, 774(1998), or even if there is some evidence to support a finding, when this Court on the entire evidence is “left with the definite and firm conviction that a mistake has been committed.” Lighter v. Lumbermans Mutual Casualty Insurance Company, 43 Mass. App. Ct. 415, 418(1997) quoting Nylander v. Potter, 423 Mass. 158, 159 n.5(1996). Kendall v. Salvaggio, 413 Mass. 618, 620-621(1992).


There is no question that Judge Piper was in the best position as the trial judge to assess the credi-bility of the parties’ and their proof and to assign it appropriate weight in his findings. Brash v. Brash,406 Mass. 101, 105(1990). Serino v. Serino, 6 Mass. App. Ct. 926(1978). See Capital Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 519(1985). However, while the credibility of witnesses is a preserve of the trial judge which an appellate court will be reluctant to invade, “it is not forbidden territory” and this Court will change or vacate  the findings of fact below which although founded upon the credibility of live witnesses are shown to be at odds with more probative, persuasive evidence. Springgate  v. School Committee of Mattapoisett, 11 Mass. App. Ct. 304, 309-313(1981). Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 407-408(1937). See Atkinson v. Ro-senthal,33 Mass. App. Ct. 219, 223-224(1992).


The trial judge’s findings of fact will likewise be labeled clearly erroneous under Rule 52(a) when they are contrary to the overwhelming weight of the evidence and therefore are not “plausible in light of the entire record,” Shear v. Gabovitch, 43 Mass. App. Ct. 650, 653; 673-674(1997); when those findings of fact are mutually antagonistic or without any basis in the record, Lighter, 43 Mass. App. Ct. at 418-419; Atkinson v. Rosenthal, supra; or when they repudiate without explanation disinterested testimonial or documentary proof in favor of one witness on the other side who has everything to gain or lose on the outcome. Springgate, 11 Mass. App. Ct. at 311. Turner v. Leonard, Inc., 17 Mass. App. Ct. 909, 910(1983).
Moreover, because most of the probative evidence in this case are the deeds and plans themselves, this Court is in just as good a position as the trial judge to assess the probative worth of crucial evidence and to make further findings which accommodate such compelling evidence, regardless of whether it contradicts Judge Piper’s original findings of fact. Bruno v. Bruno, 384 Mass. 31, 35(1981). Wilson, petitioner, 372 Mass. 325, 330(1977). Zuckerman v. Blakeley, 3 Mass. App. Ct. 685, 686-687 (1975).


With this standard of review in mind, Christine submits that Judge Piper erred as a matter of fact and as a matter of law when he concluded that under the Derelict Fee Statute, G.L.c. 183, § 58 (“the Statute”), Francis owns to the midline of Bagley Avenue and that Christine does not own all of this private way but rather only to its midline. First, the Land Court Judge without authority in any deed or plan, moved the private way from where it was situated on the face of the earth to another location in order to make it “abut” Francis’ Lot 1 so that the Statute applied to the 1977 conveyance of Hollis and Arlene. Second, it compounded this impropriety by misreading a 1985 plan of land to retroactively redraw again the dimensions of Bagley Avenue so that this way abuts Lot 1 in the 1977 conveyance, thereby validating its initial misconception that Lot 1 “abuts” the private way when it actually does not.


Third, the lower court misapplied the deeded ease-ment conveyed by Hollis and Arlene to their son Francis in the 1977 conveyance for the purpose of showing that the grantors intended for Lot 1 to abut the private way and therefore pass to Francis their fee ownership of the way to its center line; it also failed to find that as a practical matter Francis could realize his easement rights in the way consistent with this family arrangement despite the fact that he would traverse a small strip of his parents’ fee in order to do so, a fact which in any event should have no relevance to whether the conveyance of Lot 1 by Hollis and Arlene to Francis in 1977 was one “passing title to real estate abutting a way” within the meaning of the Statute.
Finally, the trial judge overlooked a viable scenario, one much more consistent with the relevant deeds and plans, whereby Francis as owner of Lot 1 continues to enjoy his deeded easement right to Bagley Avenue, Christine as owner of Lot 151A owns the fee in the entire way including the parking area and the turnaround which were always connected to this lot, and  the Trust as owner of Lot 151C possesses (as it always has) an easement by necessity over the course of Bagley Avenue for ingress, egress and utility access.      


For these reasons, this Court should vacate and reverse the judgment below, engage in its own review of the evidence, make new findings based thereon and enter a new judgment declaring that on this record Christine as owner of Lot 151A owns the fee in the entire way including the parking area and the turnaround, Francis  as owner of Lot 1 continues to enjoy his deeded easement right to Bagley Avenue and that the Trust as owner of Lot 151C has (as they always have) an easement by necessity over the course of Bagley Avenue for ingress, egress and utility access; or provide Christine with such other relief as is fair and just in the circumstances of this case.
G.L.c. 183, § 58, provides in pertinent part:
       Every 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...,
  in which case,...(ii) if the retained
  real estate is on the other side
       of such way...between the division
  lines extended, the title conveyed
       shall be to the center line of such
       way...as far as the granter owns, or
  (b) the instrument evidences a
       different intent by an express ex-
  ception or reservation and not alone
       by bounding by a side line.
Real estate located at the end of a way does not abut the way for the purposes of this statute and therefore car-ries no fee ownership of the way. Emery v. Crowley, 371 Mass. 489, 494(1976). Boudreau v. Coleman, 29 Mass.  App. Ct. 621, 622-623 n.3(1990).


Prior to the enactment of the Statute and under common law, a deed which described a parcel as being “on” or “by” a way, with no  restricting words, conveyed title to the center line of that way if owned by the grantor, while a deed which described a parcel as “on” or “by” the “side line” of a way conveyed no interest in the way. Casella v. Sneierson, 325 Mass. 85, 88-89(1949). Thus in the case of a conveyance giving an ordinary private way as a boundary, if the title of the grantor extends to the center of the way, he will be presumed to have intended to pass title to the center of the boundary, unless there is something in the deed to show a contrary intention. Daviau v. Betourney, 325 Mass. 1, 3(1949).


The presumption at common law was a strong one but not an absolute rule of law, Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 679-680(1965); Crocker v. Cotting, 166 Mass. 183, 185(1896), and the question was one of intention, drawn from the wording of the deed itself, any accompanying plan if that plan illuminates an otherwise uninformative deed, and all the attendant facts. Id. at 680-681. Suburban Land Co. Inc. v. Billerica, 314 Mass. 184,188-189(1943). Gould v. Wagner, 196 Mass. 270, 275 (1907).
The Statute’s mandate that title in the way is conveyed to the abutting grantee, however, is stricter than the common law rule which it codified and super-ceded. Rowley v. Massachusetts Electric Company, 438 Mass. 798, 804(2003). Tattan v. Kurlan, 32 Mass. App. Ct. 239,243-244 (1992). The statutory presumption is conclu-sive when the Statute applies unless “the instrument passing title” evidences a different intent “by an express...reservation.” Id. Other “attendant” evidence of the parties’ intent is no longer probative. Id. at 244. However, where the Statute is not by its terms applicable, conveyances of land abutting a way continue to be construed in accordance with common law. Emery v. Crowley, 371 Mass. at 493-494.
What emerges from the decisional law which preceded  the Statute’s enactment and which since 1971 has inter-preted its provisions are three fundamental principles:


(1) The Deed Controls Whether A Conveyance Abuts A Way and Thus Whether the Statute Applies. In deciding whether the Statute applies to a given conveyance, it is the language in the deed itself conveying the grantors’ interest----and nothing else----which controls the scope of the grant. “Nothing is ever conveyed  except what is included within the boundaries of the lot described, and the language of the deed must be scrutinized, in its application to the locus, to see where the true boundaries are.” Erickson v. Ames, 264 Mass. 436, 444(1928). Accord, Casella v. Sneierson, 325 Mass. at 88-89; Gray v. Kelley, 194 Mass. 533,537(1907). Thus property does not “abut” a way within the meaning of the G.L.c. 183, § 58, unless the way is described as such in the deed. Emery v. Crowley, 371 Mass. at 493-494. See Rowley, 438 Mass. at 805 n.11; Crocker v. Cotting, 166 Mass. at 186.


(2). Plans of Land, Especially Later Ones, Don’t Determine Whether An Earlier Conveyance Abuts A Way and Thus Whether the Statute Applies. The contents of incorporated plans are irrelevant to the application of the Statute because the plain language of G.L.c. 183, § 58, speaks only of “instrument[s] passing title,” that is, deeds. Tattan v. Kurlan, 32 Mass. App. Ct. at 247. Moreover, whatever transpires after the time of the conveyance, including inter alia the preparation of new plans of land describing the locus, “can have no bearing on the construction of a deed” made earlier conveying the  parcel of land. Lemay v. Furtado, 182 Mass. 280, 282 (1902).
(3). The Grant of An Easement In A Deed By the Grantors to Their Son for Him To Use the Way They Own Can Be Evidence Of A Reservation of Their Right In the Way But It Can’t Determine Whether The Conveyance Abuts The Way and Thus Whether the Statute Applies. An easement is an interest in land which grants to one person the right to use or enjoy land owned by another. Cheever v. Graves, 32 Mass. App. Ct. 601, 605(1992). It implies an ownership of the fee by the grantors in land for which the grant is given. Thus if it is a question of the intent of the parties, the intention to retain title in private land is easily shown by the grant of a right of way over it to another. Erickson v. Ames, 264 Mass. at 444. However, this determination of easements rights to use the land of another has nothing to do with the ownership of the land or when a conveyance abuts a way so that the Statute applies to a conveyance. Adams v. Planning Board of Westwood, 64 Mass. App. Ct. 383, 389-390(2005).


The trial judge failed to follow these fundamental principles. First, even though the 1977 deed from Hollis and Arlene to Francis was explicit in showing that the land conveyed as Lot 1 never abutted the private way at any point with all references in the deed for the boundaries of Lot 1 being to Hartwell Road, “Murphy land” “other land shown on a [1977] plan of Murphy,”(Ex.5), the trial judge found that Lot 1 “abutted” the private way within the meaning of the Statute and that G.L.c. 183, § 58, therefore applied to this conveyance.


This was error. In order to reach this result, the lower court ignored the plain language in the deed and  without authority in any deed or plan, moved the private way from where it was situated on the face of the earth to another location in order to make it “abut” Francis’ Lot 1 so that the Statute applied to the 1977 conveyance. Property does not “abut” a way within the meaning of the G.L.c. 183, § 58, unless the way is described as such in the deed. Emery v. Crowley, 371 Mass. at 493-494. See Rowley, 438 Mass. at 805 n.11; Crocker v. Cotting, 166 Mass. at 186. It was not so described here and Judge Piper’s finding otherwise is error.
Indeed, the lower court found from the 1977 deed’s precise measurements and the 1977 plan’s reflection of those precise measurements that there was a “short distance” between Lot 1 and the paved edge of the private way(Tr.313). Yet it nevertheless found that Lot 1 abutted the private way(Tr.313).
Second, compounding this error, the Land Court then referred to the 1985 plan, to retroactively redraw again the dimensions of Bagley Avenue so that this way abuts Lot 1 in the 1977 conveyance, thereby validating its initial misconception that Lot 1 “abuts” the private way when it actually does not.  As the trial judge saw it, the easterly lines of Bagley Avenue on this 1985 plan  “correspond directly” to the solid lines of Lot 1's westerly border on the 1977" plan(Tr.313).


In fact, the 1985 plan still shows somewhat imprecisely some spacing between Lot 1 and Bagley Avenue at some points(A.43-44). Moreover, the 1985 plan’s depiction of Bagley Avenue differs dramatically from the 1977 plan, suggesting a migration of the way in the intervening nine years. But, in any event, the contents of incorporated plans are irrelevant to the application of the Statute because the plain language of G.L.c. 183, § 58, speaks only of “instrument[s] passing title,” that is, deeds. Tattan , supra. Moreover, whatever transpired after the 1977 conveyance, including the preparation of new plans of land describing the locus, “can have no bearing on the construction of a deed” made in 1977. Lemay v. Furtado, supra. The Land Court’s resort to this 1985 plan in order to redraw the dimensions of the way so that it abuts Lot 1 was therefore error.


Third, the trial court erred in relying on the easement granted Francis in the deed to find that it would be ineffectual if Lot 1 did not abut the way and then to conclude that Hollis and Arlene must have intended for Lot 1 to abut the private way, thereby buttressing its conclusion that the Statute applied. The grant of an easement, whether it can be realized or not, has nothing to do with the ownership of the land or when a conveyance abuts a way so that the Statute applies to a conveyance. Adams v. Planning Board of Westwood, supra. In addition, the lower court overlooks the fact that as a practical matter, Francis could realize his easement rights in the way consistent with this family arrangement despite the fact that he would traverse a small strip of his parents’ fee in order to do so.
If anything, the grant of an easement to Francis to use the way together with the description of Lot 1 in the deed and accompanying plan show that Hollis and Arlene intended to convey just what they did convey, a parcel no part of which included the private way. Because Lot 1 did not abut a private way, the Statute did not apply to this  conveyance and Judge Piper was wrong to conclude other-wise.
Finally, Christine submits that there is a scenario much more consistent with the relevant deeds and plans whereby Francis as owner of Lot 1 continues to enjoy his deeded easement right to Bagley Avenue, Christine as owner of Lot 151A owns the fee in the entire way including the parking area and the turnaround which were always connected to this lot, and  the Trust as owner of Lot 151C possesses (as it always has) an easement by necessity over the course of Bagley Avenue for ingress, egress and utility access.


This scenario consists of the following facts: The easement granted to Francis by Hollis and Arlene together with their deed’s (and the accompanying plan’s) precise description of Lot 1 actually conveyed to Francis in 1977 vividly show that the grantors intended to and did convey no land abutting the private way. The Statute therefore does not apply to this conveyance for this reason alone or for the reason that under section (b) of the Statute “the instrument evidences a different intent [than to have the fee in the way conveyed] by an express exception or reservation and not alone by bounding on a side line.” Accordingly, as a result of this conveyance in 1977, Francis owns Lot 1 together with an easement to use the private way for ingress and egress to his own lot; and Hollis and Arlene besides their other property surrounding the locus owned in fee a small strip of land between Lot 1 and the private way all along its side as well as the entire expanse of the private way itself.


Over the ensuing nine years, the private way became  Bagley Avenue and the way gradually accumulated expanse so that the small strip retained by Hollis and Arlene in fee on the westerly border of Lot 1 as the result of the 1977 conveyance was gradually accreted by their son Francis’ lot; and with the acquiescence of Hollis and Arlene (or their abandonment), this strip ceased to exist as a measurable parcel of land by 1985. Thus the 1985 plan of land could make discernible identification of the small strip of land Hollis and Arlene once owned in 1977, as it was shown on the 1977 deed and plans.
Accordingly, when Hollis and Arlene then conveyed to Christine Lot 151A in January of 1986 with a deed which incorporated a plan of land which showed Lot 151A as  abutting Bagley Avenue all along its border, and showing further that Francis owned all of the land to the east of the way, the primary provisions of the Statute were triggered and pursuant to its terms Christine received all of the fee interest of Hollis and Arlene in Bagley Avenue including the parking area and the turnaround, leaving her parents with an easement by necessity over the way for ingress, egress and utility support and leaving Francis (who has his own independent access to Hartwell Road) with his deeded easement right to use Bagley Avenue for ingress and egress to the rear of his lot.


Christine submits that this result is the one most consistent with all of the relevant deeds, plans and other evidence adduced by the parties below. The Land Court Judge’s findings and rulings otherwise are error as a matter of fact or error as a matter of law.    

                  Conclusion.
For all of these reasons identified herein, this Court should vacate and reverse the judgment below, engage in its own review of the evidence, make new findings based thereon and enter a new judgment declaring that on this record Christine as owner of Lot 151A owns the fee in the entire way known as Bagley Avenue including the parking area and the turnaround; Francis  as owner of Lot 1 continues to enjoy his deeded easement right to Bagley Avenue; and that the Trust as owner of Lot 151C has (as they always have) an easement by necessity over the course of Bagley Avenue for ingress, egress and utility access; or provide Christine with such other relief as is fair and just in the circumstances of this case.

                    

 

Respectfully submitted,
  

George P. Lordan, Jr.
BBO # 304940
124 Derby Street
Salem, MA 01970
(978)745-0126

Dennis P. Derrick
BBO # 121160
7 Winthrop Street
P.O. Box 37
Essex, MA 01929-1203
(978)768-6610



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