Emery v. Crowley

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: Emery v. Crowley, 359 N.E.2d 1256, 371 Mass. 489 (Mass. 1976)
• Decision Date: 16 December 1976
• Parties: Allan C. EMERY, Jr., et al. v. James F. CROWLEY, Jr., Trustee.

Page 1256

359 N.E.2d 1256

371 Mass. 489

Allan C. EMERY, Jr., et al.

v. James F. CROWLEY, Jr., Trustee.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 16, 1976.

Decided Dec. 16, 1976.

Raymond D. Jennings, Jr., North Weymouth, for defendant.

Frank E. Rowbotham, Boston, for plaintiffs.

Frederic B. Dailey, Boston, for Massachusetts Conveyancers Association, as amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

Allan C. Emery, Jr., and Marian H. Emery filed a petition in the Land Court pursuant to G.L. c. 185, § 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, § 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. ¹ At this time Crowley is the sole abutter to parcel 2 and claims that G.L. c. 183, § 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 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, § 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 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, § 58, and therefore § 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, § 58, as amended by St.1973, c. 185, § 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.' 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 which Crowley obtained title to the property surrounding parcel 2. We bear in mind that rules of construction are designed to elucidate the intent to parties to written instruments, Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 680, 205 N.E.2d 222 (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, 271 N.E.2d 660 (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 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, § 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, 89 N.E.2d 8 (1949), does not apply in this case. Contrast Murphy v. Mart Realty...