Conway v. Caragliano
| Docket Number | 22-P-159 |
| Decision Date | 29 June 2023 |
| Parties | PAUL J. CONWAY, trustee,[1] & another[2] v. THOMAS CARAGLIANO & others.[3] |
| Court | Appeals Court of Massachusetts |
Heard: February 2, 2023.
Civil action commenced in the Land Court Department on October 5, 2018. Motions for summary judgment were heard by Michael D. Vhay, J., and the case was also heard by him.
Joshua M. D. Segal (Michael Williams also present) for the plaintiffs.
David C. Uitti for the defendants.
Present: Green, C.J., Rubin, & Massing, JJ.
This appeal involving registered land concerns the ownership of a way providing access to the shore and the extent of easement rights in the way, if any, appurtenant to an inland property. The plaintiffs, owners of waterfront property in the town of Falmouth that abuts the way, appeal from decisions of a Land Court judge declaring that they do not own a fee interest in the way; declaring that the defendant inland property owners have an easement, in common with the plaintiffs and others permitting them to use and occupy the way; and ordering the plaintiffs to remove encroachments on the way that interfere with the defendants' access and use.
Parting company with the judge, we conclude that the plaintiffs do own the fee in the way by operation of the derelict fee statute. See G. L. c. 183, § 58. Nonetheless, we agree with the judge that the defendants' property enjoys an easement over the way. Concluding that the scope of the easement is not as broad as the judge determined, however, we vacate those portions of the judgment and remand for the entry of orders modifying the scope of the defendants' easement as set forth herein and for further proceedings regarding the actions the plaintiffs must take to permit the defendants to exercise their easement rights.
Background.
The following facts, which we draw from the summary judgment record, Assad v. Sea Lavender, LLC, 95 Mass.App.Ct. 689, 690 (2019), and our independent review of the documentary evidence, Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018), are not disputed. In addition, we have taken judicial notice of certain relevant instruments contained in the Land Court records section of the Barnstable registry of deeds, all of which are readily available to the public both in person and on line.[4]
The plaintiffs, Paul J. Conway and Gail M. Conway, as trustees of the Riftwood Irrevocable Trust (the Conways), own registered waterfront land in Falmouth with an address on Westwood Road. The Conways' parcel is bounded by Buzzards Bay to the north, Westwood Road to the south, and to the west, the land at the center of this dispute: a forty-foot wide way that leads from Westwood Road to the water, known as the "7th Shoreway." Defendants John and Anne Caragliano, as trustees of three trusts, own inland property on Westwood Road, directly across from the 7th Shoreway and the Conways' property. Defendant Thomas Caragliano was one of the original purchasers; we refer to defendants collectively as the Caraglianos.[5]
The parties came to own their properties as follows. By 1950, a single owner, Earl Boardman, had amassed a large parcel of land on Buzzards Bay in what is now known as the Nyes Neck neighborhood of North Falmouth. Boardman's property had been registered in the 1920s by prior owners under two certificates of title filed in Land Court Registration Case No. 11518.[6] In the K Plan, dated January 1950 and registered on May 22, 1950, Boardman merged the two original plans into a single plan. Much of the land shown on the K Plan has no boundaries, but the plan does depict several streets and ways providing access to ten numbered parcels. Boardman's certificates of title provided, "The streets and ways shown on [the K Plan] are subject to the rights of all persons lawfully entitled thereto in and over the same."
As he developed the property, Boardman transferred lots by deeds that included the following or similar language: "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." At first Boardman subdivided only a few lots at a time, but the T Plan, dated May 5, 1951, and registered on May 28, 1951, created a mix of more than one hundred waterfront and inland lots. As shown on the T Plan, interconnecting subdivision ways provided street access to the lots. Six "shoreways" appearing on the T Plan (labeled 1st, 2nd, 3rd, 4th, 5th, and 6th Shoreway), located intermittently between waterfront lots, connected the inland subdivision ways to Buzzards Bay. A small portion of what is now the Caraglianos' lot is marked as lot C2 on sheet 1 of the T Plan. North and east of the numbered lots on sheet 1, the T Plan shows undeveloped land belonging to Boardman that would later be subdivided to form the parties' parcels.
Boardman deeded lot C2 to Charles B. Hazard and Ethel Hazard shortly after registration of the T Plan. Then in 1962, Boardman conveyed to the Hazards substantial portions of his property shown on the T Plan and the subsequent V, Y, and 1 Plans. The deed also transferred to the Hazards "the fee in the soil of all of the [w]ays shown [on the T and V Plans] not heretofore conveyed by me, and subject to easements of record, reserving to [Boardman], for the benefit of his remaining land, the right to use in common with others entitled thereto, the ways and beaches as shown on plans in Land Court Case No. 11518."
The disputed 7th Shoreway first appeared on the 13 Plan, dated October 27, 1961, and registered on October 4, 1967; it located directly across Westwood Road from lot C2. The 13 Plan also extended and terminated Westwood Road in a cul de surrounded by three new lots: lot 211, a waterfront abutting the 7th Shoreway to the east (now the Conways' lot 212, a waterfront lot to the east of lot 211; and lot 213, an inland lot across Westwood Road from lots 211 and 212. 213 included land that, together with lot C2, now comprises the Caraglianos' lot.
The lots shown on the 13 Plan were sold off in the mid-1970s. By a deed dated September 19, 1975, and registered on September 25, 1975, Boardman conveyed lot 212 (the lot adjacent to the Conways' lot) to Ralph P. Pellegrini, Inc. Some months later, Boardman transferred lot 211 (the Conways' lot) to Evangeline T. Anthony, by a deed dated September 23, 1975, and registered on May 6, 1976 (Anthony deed). And by a deed dated September 19, 1975, prior to the Anthony deed, but registered on May 17, 1976, after the Anthony deed, Boardman transferred lot 213 to Earl and Ethel Hazard. All three deeds included this identical provision: "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."
At the time the Hazards acquired lot 213, they already owned lot C2, and by the 17 Plan, registered on September 12, 1978, they reconfigured the lot lines and created lot 242 by adding to lot C2 a portion of lot 213.[7] The Caraglianos acquired lot 242 on March 15, 1991. Their certificate of title employs the same language used in the Pellegrini, Anthony, and Hazard deeds: "There is appurtenant to said land a right of way in common with others entitled thereto in and over the way shown on the plans in case number 11518." In addition, it states, "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."
The Conways acquired lot 211 on July 28, 2000. Their certificate of title states succinctly, "There is appurtenant to said land a right of way over the ways in common with all others entitled thereto."
After a trial, which included a view, the judge made the following findings of fact, none of which are contested on appeal. In 1991, when the Caraglianos purchased their property, the Conways' property was a vacant lot, but someone had been mowing the 7th Shoreway, which consisted of nothing but grass leading to a steep embankment. At the time of trial, four of the other shoreways were also grassy, the 5th Shoreway was partially paved, and the 6th Shoreway was paved along almost the entire length with a community boat launch at the end.
The judge found that "the Caragliano family and their invited guests used the 7th Shoreway for purposes that included walking to and from the beach and the ocean (including carrying beach chairs, floaties, and other materials); fishing; transporting and launching kayaks, dinghies and sailboats . . .; sitting and watching sunsets, the ocean, fireworks, boat races, and birds; having picnics and/or drinks; recreating (playing catch, frisbee, and badminton, or flying kites) and occasionally parking cars."
In 2009, the then-owners of the Conways' property placed a bocce court within the 7th Shoreway, installed an irrigation system, and added landscaping along the way's border with their lot. Between 2018 and 2019, the Conways removed the bocce court and regraded the 7th Shoreway, raising its height to meet the rest of their property, and leaving only an eight-to-ten foot wide grassy strip along the side farthest from their house. The irrigation system caused water to build up on the strip, leaving it wet and slippery. The Conways also used large stones to retain the raised portion of the 7th Shoreway and planted bushes near and around those stones. They also reconfigured their driveway, in the process paving over the entire width of the 7th Shoreway where it meets Westwood Road, such that anyone seeking to use the 7th Shoreway would have to cross part of the...
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