McGOVERN v. McGOVERN, 09-P-654.

• Decision Date: 16 September 2010
• Docket Number: No. 09-P-654.,09-P-654.
• Citation: 933 N.E.2d 980,77 Mass.App.Ct. 688
• Parties: Francis J. McGOVERN, individually and as trustee, & others v. Christine M. McGOVERN & another.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 688

933 N.E.2d 980

Francis J. McGOVERN, individually and as trustee, ¹ & others ² v.Christine M. McGOVERN & another. ³

No. 09-P-654.

Appeals Court of Massachusetts,Suffolk.

Argued March 5, 2010.

Decided Sept. 16, 2010.

George P. Lordan, Jr., Salem (Dennis P. Derrick, Essex, with him), for the defendants.

Alvin S. Nathanson, Boston, for the plaintiffs.

Present: LENK, GRASSO, & BERRY, JJ.

LENK, J.

This dispute among family members concerns the fee to and easement rights over a private paved driveway now known as Bagley Avenue in Bedford. ⁴ The judge concluded that by operation of G.L. c. 183, § 58, the derelict fee statute, plaintiffs Francis and Phyllis McGovern own the easterly portion of Bagley Avenue to the center, and defendants Christine McGovern and Anthony Leonti own the westerly portion of Bagley Avenue to the center. The judge then declared the easement rights of the parties and determined that the evidence was insufficient to justify reformation of a 1986 deed to Christine. ⁵ The defendants appeal. We reverse and remand for further proceedings.

Background. We derive the background facts from the judge's findings, which are amply supported by the record, and the joint stipulation of facts. The disputed driveway and the two properties on either side of it, owned, respectively, by siblings Francis (Frank) and Christine McGovern, were once part of a forty-five acre parcel owned since at least 1974 by Arlene and Hollis Murphy, the mother and stepfather of Frank and Christine, and their brother, John. The southern boundary of the Murphy parcel is on Hartwell Road, a public way in Bedford. The Murphys resided in a home some distance from Hartwell Road, and access to their home from Hartwell Road was by the long paved driveway which is at issue in this case. The portion of the parcel on which the Murphys' home was located has consistently been referred to as Lot 151C in these proceedings and is located at the northern end of the driveway. ⁶ To the west of the driveway, also on the Murphys' original forty-five acre parcel, is a second home, consistently identified as located on Lot 151A. At various times through 1985, the house on Lot 151A was occupied by one or more of the three siblings. Although Lot 151A fronts directly on the public way, Hartwell Road, access to Lot 151A is over the same driveway that provides access to Lot 151C.

In 1977, the Murphys conveyed a portion of their forty-five acre parcel, known as Lot 1, to Frank and his wife, Phyllis. Lot 1 is situated generally to the easterly side of the driveway used to access lots 151C and 151A. The 1977 deed describes the parcel as “shown as Lot 1” on a plan recorded with the deed, followed by a metes and bounds description as set forth in the margin. ^{7 , 8} The metes and bounds description for Lot 1 does not mention a way, other than Hartwell Road, and does not describe the parcel as abutting or bounded by a way or driveway. It describes the property abutting Lot 1 to the northwest and southwest as “said Murphy land.” The 1977 plan referenced in the 1977 deed delineates the driveway with dotted lines. As shown on the 1977 plan, a strip of land of various widths separates the southwesterly lot line of Lot 1 from the edge of the driveway, thereby creating a gap of land between Lot 1 and the driveway. The 1977 deed contains an express easement over land shown as “Bit. Conc. Driveway” on the 1977 plan for the purposes of ingress and egress to any portion of Lot 1. The easement does not mention the intervening strip. ⁹

Sometime in 1985, the Murphys began to take steps to convey Lot 151A to Christine. From all that appears, by this time the private driveway that provided access to Lots 151C and 151A, and over at least some portion of which Lot 1 enjoyed an easement, had come to be called “Bagley Avenue.” Because Lot 151A contained insufficient lot size and insufficient frontage on Hartwell Road, a variance was required. Although the Murphys were advised that they would not need a variance if they were willing to convey the fee to Bagley Avenue to Christine while retaining an easement for access to Lot 151C, they were unwilling to give up ownership or control of Bagley Avenue. At the variance hearing, in order to satisfy the concerns of the board of appeals that Bagley Avenue would be used to develop additional Murphy property in the rear, the Murphys agreed in writing that Bagley Avenue would not be used as a street. The board incorporated that agreement into the 1985 variance decision and granted the Murphys a variance for Lot 151A “subject to the condition that Bagley Avenue remain a driveway for access to the residence known as 151C Hartwell Ave. [ sic ] or 151C Bagley Ave....” Christine was at all relevant times aware of the Murphys' position that they owned and wanted to continue to own Bagley Avenue, and understood that her rights to use the width and length of Bagley Avenue would be pursuant to an easement granted by the Murphys.

In a deed dated January 31, 1986, ¹⁰ the Murphys thereafter conveyed to Christine “[a] certain parcel of land ... shown as Lot 151A on a plan of land ... dated November 14, 1985....” ¹¹ The 1986 deed contains neither a metes and bounds description nor any reservation of the fee or rights in Bagley Avenue. The 1985 plan to which the 1986 deed refers shows Lot 151A as physically abutting Bagley Avenue. In addition, on that plan, there are no dotted lines delineating the driveway, but rather “PRIVATE (AKA BAGLEY AVENUE) WAY” is shown as including the area from the southwest lot line of Lot 1 to the lot line of Lot 151A. In other words, the strip separating Lot 1 from “Bit. Conc. Driveway” that appears on the 1977 plan referenced in the 1977 deed for Lot 1 has been eliminated in the 1985 plan and the strip has instead been incorporated into the depiction of Bagley Avenue.

Disputes arose between and among the parties regarding the use and maintenance of Bagley Avenue. In December, 2000, apparently believing she retained the fee in Bagley Avenue, Arlene Murphy executed and delivered an express easement over Bagley Avenue to Christine as owner of Lot 151A; Christine recorded the easement. In January of 2005, Christine transferred the fee of Lot 151A to herself and her husband as joint tenants with rights of survivorship. Disputes concerning Bagley Avenue apparently continued, and these consolidated actions were commenced in December of 2005 and January of 2006. While initially a party to these proceedings, Arlene Murphy died in 2006. Her husband, Hollis Murphy, had predeceased her in 1997.

Discussion. The judge determined, among other things, that the 1977 deed to Frank and his wife, by operation of the derelict fee statute, G.L. c. 183, § 58, passed to them title to the easterly half of the driveway. The judge further determined that the 1986 deed, also by operation of the derelict fee statute, passed to Christine title to the westerly half of the driveway not conveyed to Frank and Phyllis in 1977. In addition, the judge declared that each fee simple owner of Bagley Avenue has a perpetual nonexclusive easement and right of way to pass and repass on foot and by vehicle on the portion of the fee in Bagley Avenue that he or she does not own. ¹² Lastly, the judge declared that the owners of Lot 151C have a similar perpetual nonexclusive easement and right of way as to Bagley Avenue. ¹³

On appeal, the defendants argue that the judge misapplied the derelict fee statute, and that under a correct reading of the statute, they own the fee in the entirety of Bagley Avenue, while Frank and his wife, as owners of Lot 1, have deeded easement rights to the way, and the owners of Lot 151C have an easement by necessity therein. We agree that the judgment below was error. After briefly reviewing salient aspects of the derelict fee statute and its interpretation, we first examine the 1977 conveyance and conclude that it did not convey any part of the fee to the driveway. We then examine the 1986 conveyance and conclude that it conveyed the fee to the entire driveway. Lastly, we address the availability of reformation as a means of redressing certain unintended consequences that result from application of the derelict fee statute in the circumstances, particularly with respect to the Murphys' retention of any fee ownership in the driveway.

The derelict fee statute. General Laws c. 183, § 58, as appearing in St.1990, c. 378, § 1, 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, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way ... as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way ..., the title conveyed shall be to the center line of such way ... as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.”

We noted in Tattan v. Kurlan, 32 Mass.App.Ct. 239, 243, 588 N.E.2d 699 (1992), that “[t]he statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor. The common law presumed that the grantor intended to pass title to the center of the way.” The fee to the center “carries with it the right to use the way along its entire length.” Brennan v. DeCosta, 24 Mass.App.Ct. 968, 968, 511 N.E.2d 1110 (1987).

The presumption at common law “could be overcome by clear proof of a contrary intent of the parties ‘ascertained from the words used in the written instrument in the light of all the attendant facts.’ Suburban Land Co. v. Billerica, 314...