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Appeals Court of Massachusetts.

Diane I. MILLER & another 1 v. GUARANTEED BUILDERS, INC. & another.2


Decided: February 05, 2021

By the Court (Meade, Milkey & Neyman, JJ.3)


Following a bench trial, a judge of the Superior Court entered judgment declaring that the plaintiffs, Diane and Robert Miller, have the right to use Shore Road, a private way in the town of Douglas, “for all usual purposes” and that the plaintiffs own the “fee to the middle” of the road where it fronts a lot they purchased in 2016 and a second lot for which they have an agreement to purchase. The defendants, Guaranteed Builders, Inc. (GBI), and its owner, Louis Tusino, appeal, claiming that they own Shore Road, and thus the judge erred in granting the plaintiffs declaratory relief. We affirm.

Background. For several years, the plaintiffs have owned a home situated at 115 Shore Road, fronting on the northwestern side of Shore Road; to the northeast lies Wallum Lake. There is no dispute that they have the deeded right to access their home from Shore Road. In 2016, they purchased a second lot across the street on the northeastern side of Shore Road shown as “New Lot 1” on a recorded plan dated March 4, 2016. They also have an agreement to purchase a third lot, also fronting on the eastern side of Shore Road, and shown on the March 4, 2016 plan as “New Lot 2.” On New Lot 1, the plaintiffs sought to construct a shed and driveway. The building permit for those structures is the subject of separate litigation. The plaintiffs plan to construct homes for their daughters on New Lots 1 and 2.

The judge credited testimony that when the original owner created Shore Road from an abandoned railroad, he laid out Shore Road as fifty feet wide, and retained an approximately thirteen-foot wide strip of land along the easterly side of Shore Road. In 1988, heirs of the original owner sold that thirteen-foot wide strip to Michael Nelson. That strip of land was subsequently conveyed to Douglas Properties, LLC, who incorporated the strip into New Lots 1 and 2.4 Accordingly, it is now uncontested that New Lots 1 and 2 abut Shore Road. The rear portions of New Lots 1 and 2 consist of property that previously was included in another subdivision plan that, although approved, was never built. The rear portions of New Lots 1 and 2 do not abut any proposed or existing road or that of any other subdivision.

The defendants claim that they own the fee interest in Shore Road because, in 1989, GBI took title to the original owner's remaining land, including Shore Road, and that the plaintiffs have no right to use Shore Road to access New Lot 1 or 2. The plaintiffs brought this action seeking a declaration that (1) they are entitled to building permits (for the shed and driveway); (2) they have the right to use Shore Road for all usual purposes; (3) they own the fee to the road fronting their lots; and (4) Tusino has no standing to object to the issuance of the building permits.5

Discussion. The derelict fee statute, G. L. c. 183, § 58, “establishes an authoritative rule of construction [that] all instruments passing title to real estate abutting a way, whether public or private and whether in existence or merely contemplated ․ include[ ] the fee interest of the grantor in the way -- to the centerline if the grantor retains property on the other side of the way or for the full width if he does not -- unless ‘the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.’ ” Tattan v. Kurlan, 32 Mass. App. Ct. 239, 242-243 (1992), quoting G. L. c. 183, § 58. The derelict fee statute codified a long-standing common-law presumption regarding a conveyance of land abutting an actual or contemplated way owned by the grantor that a “grantor intended to pass title to the center of the way.” Tattan, supra at 243. Here, in 1988 the heirs of the original owner sold the portions of New Lots 1 and 2 that front Shore Road to the plaintiffs' predecessor, Nelson. That deed is not in the record, and there is no evidence that the grantor retained his fee in Shore Road by “express exception or reservation.” We discern no basis, therefore, for the defendants' argument that they own the portion of Shore Road fronting New Lots 1 and 2. Pursuant to the derelict fee statute, the plaintiffs acquired the fee to the center of Shore Drive. On the record before us, the defendants' contention that the derelict fee statute does not apply to Shore Road because it is a private way of long-standing use is unavailing.

Furthermore, “when a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way, and the right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed.” Murphy v. Mart Realty of Brockton, Inc. 348 Mass. 675, 677-678 (1965), quoting Casella v. Sneierson, 325 Mass. 85, 89 (1949). Accordingly, the owners of New Lots 1 and 2 have the right to use Shore Road to access their property.6 ,7

Judgment affirmed.


4.   Douglas Properties later conveyed New Lot 1 to the plaintiffs.

5.   The plaintiffs' amended complaint also asserted claims for interference with advantageous business relations, deceptive practices under G. L. c. 93A, and harassment. Those counts were later withdrawn by agreement. Furthermore, the judge declined to consider the validity of the building permit to build the shed and driveway, as there was a pending appeal of the board of appeals' decision that affirmed the building permits for those structures. The plaintiffs do not press, and thus we do not address, the entitlement to the building permits for New Lots 1 and 2, or Tusino's standing.

6.   Citing Dolan v. Board of Appeals of Chatham, 359 Mass. 699 (1971), and Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 (1989), the defendants claim that because a portion of New Lots 1 and 2 was once part of another subdivision, the plaintiffs cannot use Shore Road. In Dolan, supra at 700, the original owner of the private way at issue did not also own the land abutting the private way. Furthermore, Patel, supra at 479, concerned connecting private ways in separate subdivisions, which is not the case here. To be clear, we hold only that New Lots 1 and 2 own the fee to the middle of Shore Road abutting New Lots 1 and 2, and have the right to use Shore Road for all usual purposes. We have not been asked to consider whether Shore Road may be used to access roads in another subdivision, and we offer no opinion on that issue.

7.   Due to the result we reach, we need not consider whether the defendants have an easement by necessity.

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