COMMONWEALTH OF MASSACHUSETTS.
Middlesex County Division.
Francis J. McGovern and John Joseph McGovern
Christine M. McGovern and
Table of Contents.
Statement of the Issues Presented For Review....................1
Statement of the Case and Facts.................................2
The Lower Court Was Wrong As A Matter Of Law
Statutory and Rule Addendum.........................Post Addendum
Rule 16 Certification............Post Statutory and Rule Addendum
Adams v. Planning Board of Westwood,
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,
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
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,
Lowell Bar Ass’n v. Loeb, 315 Mass. 176,178(1943)..............18
Murphy v. Mart Realty of Brockton, Inc.,
Nylander v. Potter, 423 Mass. 158, 159 n.5(1996)...............18
Rowley v. Massachusetts Electric Company,
Schuler v. Schuler, 382 Mass. 366, 368 (1981)..................17
Serino v. Serino, 6 Mass. App. Ct. 926(1978)...................19
Spiegel v. Beacon Participations, Inc.,
Springgate v. School Committee of Mattapoisett,
Suburban Land Co. Inc. v. Billerica,
Tattan v. Kurlan, 32 Mass. App. Ct. 239,243-244 (1992)....25;26;30
Thurlow v. Shaw’s Supermarkets, Inc.,
Turner v. Leonard, Inc., 17 Mass. App. Ct. 909, 910(1983)......20
Wilson, petitioner, 372 Mass. 325, 330(1977)...................20
Zuckerman v. Blakeley, 3 Mass. App. Ct. 685, 686-687(1975).....20
Mass. R. Civ. P. 52(a)................................18;19;21;26
G.L.c. 183, § 58...........................................passim
G.L.c. 187, §§ 3; 5.........................................passim
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.
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).
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  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).
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 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).
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 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).
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).
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
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).
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.
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).
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).
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.
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.
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).
(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).
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  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.
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.
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.
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.