Trustees of Boston College v. Boston Academy of the Sacred Heart, Inc.

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22-P-479 Appeals Court

TRUSTEES OF BOSTON COLLEGE vs. BOSTON ACADEMY OF THE SACRED
HEART, INC. (and a consolidated case1).

No. 22-P-479.

Suffolk. February 14, 2023. - August 10, 2023.

Present: Vuono, Sullivan, & Singh, JJ.

Deed, Construction. Real Property, Deed, Easement. Easement.
Judicial Estoppel. Estoppel. Way, Private. Practice,
Civil, Summary judgment.

Civil actions commenced in the Land Court Department on
June 29, 2016, and in the Superior Court Department on August 4,
2016.

After consolidation in the Land Court, motions for summary
judgment were heard by Howard P. Speicher, J., sitting by
designation; the remaining claim was heard by him; and entry of
final judgment was ordered by him.

Sander A. Rikleen (Daniel S. Guenther also present) for the
defendant.
Richard A. Oetheimer (Edwina Clarke also present) for the
plaintiff.

1 The consolidated case involves the same parties.
2

VUONO, J. This case involves a dispute over property

rights in a private paved road known as Colby Street or Colby

Road (Colby Street or way), which marks the boundary between the

campuses of two prominent Catholic institutions, Boston College

(BC) and Boston Academy of the Sacred Heart, Inc. (Boston

Academy), better known as the Newton Country Day School (NCDS).2

The schools acquired their adjoining campuses from a common

grantor, Newton College of the Sacred Heart (Newton College), at

a joint closing in 1974. Years later, following a dispute

regarding NCDS's use of Colby Street to access a new athletic

center, BC commenced an action in the Land Court seeking, among

other things, a declaratory judgment that it has all right,

title, and interest in Colby Street and NCDS has none. NCDS

asserted several affirmative defenses and counterclaims

primarily contending that it was entitled to a declaratory

judgment that it owns Colby Street to its center line pursuant

to the derelict fee statute, G. L. c. 183, § 58. As we discuss

in more detail later, the basis for this assertion is that

although the deeds conveying land to NCDS and BC were recorded

at the Middlesex South registry of deeds (registry) on the same

day within the same minute, the NCDS deed was recorded first.

2 To avoid confusion, the parties and the Land Court judge
referred to NCDS as the defendant and the owner of the land on
which its campus is located. We do the same.
3

Alternatively, NCDS claimed that it had acquired an easement to

use the way based on three different theories: prescription,

estoppel, and implication. In addition, NCDS brought an action

in the Superior Court, asserting that BC was liable for breach

of the covenants in the warranty deed it had received from

Newton College.3

Ultimately, on cross motions for summary judgment, a judge

of the Land Court rejected NCDS's arguments and granted summary

judgment for BC. He concluded that under the simultaneous deeds

doctrine, the order in which the deeds were recorded was

inconsequential. He then concluded that based on the plain

language of the deed to BC, it was clear that BC owns all

rights, title, and interest in Colby Street, and NCDS had no

rights to use Colby Street absent permission from BC. The judge

also ruled in favor of BC on NCDS's claim for breach of deed

warranties. At a jury-waived trial on NCDS's counterclaim that

it held a prescriptive easement to use Colby Street, the judge

determined that NCDS had not met its burden of establishing a

prescriptive easement and entered judgement for BC.4 That

3 The cases were consolidated, and the Land Court judge
assigned to the BC action was appointed to sit as a judge of the
Superior Court for the purposes of this case. See G. L.
c. 211B, § 9 (x).

4 The judge found that the paved portion of Colby Street has
been left open to the public since 1974, and therefore any use
of the road by NCDS was not adverse. In addition, the judge
4

judgment is not contested on appeal. At the conclusion of the

trial, judgment entered on BC's remaining claims for trespass

and nuisance. NCDS's appeals from this judgment focusing its

arguments on the order allowing BC's motion for summary

judgment. We affirm.

Background. We summarize the undisputed facts from the

summary judgment record as follows. BC is a charitable

corporation that operates a nonprofit educational institution.

It owns a parcel of land in the city of Newton, known as the

Newton Campus, fronting Centre Street where it maintains its law

school, freshman dormitories, student athletic fields, and other

facilities. Boston Academy, a religious and charitable

corporation, owns an adjacent parcel of land on Centre Street,

which abuts the northern boundary of BC's Newton Campus, where

it operates the NCDS for girls from grade five through grade

twelve. Newton College owned all the property comprising the

two campuses prior to June 28, 1974. At that time, as a result

found that despite some parking by NCDS students on a "random
but not regular basis," that use was with BC's permission. In
fact, NCDS students often received tickets for parking on the
shoulder of the road. Furthermore, BC had "maintained its
dominion and control over the whole of Colby Street" by
servicing and repairing it. The judge also found that any other
uses by NCDS of Colby Street, such as using openings in the
chain-link fence to enter the NCDS campus, were intermittent and
also by permission of BC. Accordingly, the judge concluded that
NCDS did not establish, and is not entitled to, an easement by
prescription for parking, for access to or from its campus, or
for travel on any part of Colby Street.
5

of financial difficulties, Newton College had decided to close

and to transfer its assets and land separately to BC and NCDS.5

It filed a petition for dissolution pursuant to G. L. c. 180,

§ 11A, and was granted a decree from the Supreme Judicial Court

to liquidate all its assets, sell its property, and dissolve.

See Newton College of the Sacred Heart vs. Attorney General,

Supreme Judicial Court, No. 74-114 (Suffolk County Aug. 20,

1976) (equity action).

The transfer of land occurred at a joint closing on June

28, 1974, in accordance with an interlocutory decree of the

Supreme Judicial Court issued in connection with the equity

action. All parties were present and represented by experienced

legal counsel. Newton College executed and delivered two deeds

that divided its property into two parcels. A quitclaim deed to

BC conveyed the southern portion of the land (southern parcel)

and a warranty deed to NCDS conveyed the northern portion

(northern parcel).6 Colby Street is a private way that separates

5 Newton College's financial problems began a few years
earlier, and in 1972, to shore up its finances, Boston Academy's
predecessor entity (which had operated NCDS for decades and was
also known as Boston Academy of the Sacred Heart) was dissolved
by a decree of the Supreme Judicial Court and ordered to
transfer all of its assets, including the land comprising the
NCDS campus, to Newton College. Newton College then operated
NCDS until 1974, when its financial difficulties became
insurmountable, prompting its dissolution as described above.
Once Newton College closed, a newly formed Boston Academy (the
defendant in this case) resumed operating NCDS.
6

the two parcels and runs along the entire southern boundary of

NCDS's parcel, and along the entire northern boundary of BC's

parcel. As relevant here, the BC deed describes the northern

boundary as "running along the northerly side of Colby Street."

On its face, this language included the entire paved area and

right of way comprising Colby Street. NCDS does not argue

otherwise. The BC deed also stated that the parcel was conveyed

together "with all of the Grantor's [Newton College's] right,

title, and interest, if any, in . . . Colby Street." The NCDS

deed contains no such language. The southern boundary in the

NCDS deed is described as "running along the northerly side of

said Colby Street." On its face, this conveyance placed NCDS's

southern boundary on the northern edge of Colby Street, with the

entirety of the Colby Street pavement and right of way on

property conveyed to Boston College.

The two deeds were presented for recording at the registry

on the same day and both were recorded at 3:52 P.M. However, at

least based on the book and page numbers assigned by the

6 More specifically, the property conveyed to BC is shown as
parcels A1 (on a plan entitled "Plan of Land in Newton Mass."
dated March 4, 1965, prepared by J.F. Hennessey, C.E., which is
recorded in the registry as plan 1146 of 1965 in book 10929,
page 407 [1965 plan]), and A2 (on a plan entitled "Plan of Land
in Newton, Mass." by J.F. Hennessey, recorded "in Book 11235,
End Page"). The property conveyed to NCDS is shown as parcels
B1 and B2 on the 1965 plan. Both parcels are described by metes
and bounds.
7

registry, the NCDS deed was recorded first.7 While both deeds

were referenced in the index of the closing binder, which was

prepared by experienced counsel, there was no indication that

the deeds were to be recorded in any particular order.

Colby Street has continued to exist as a private way and

functions as the boundary line between the two campuses. The

street is paved and is separated from the NCDS campus by an

eight to ten-foot-wide grassy strip of land and a chain-link

fence that runs along the property line for the length of the

street (approximately 1,000 feet) with three gates.

For nearly fifty years, BC and NCDS had a collegial and

cooperative relationship regarding the use of Colby Street.

This cordial relationship became strained when, in 2013, NCDS

developed plans to construct a new athletic facility and sought

to provide vehicular access to the facility from Colby Street

via a new driveway. After BC objected, NCDS revised its plan so

that the new driveway to Colby Street would be used only for

emergency access. According to BC, when the athletic center

opened in 2016, NCDS did not restrict use of the new driveway

7 NCDS's deed is recorded at book 12658, page 286. BC's
deed is recorded at book 12658, page 294. The only intervening
document concerned BC's agreement to assume certain recorded
liabilities of Newton College as part of the sale transaction.
8

solely to emergency access. The dispute became acrimonious, and

despite attempts for a resolution, both parties filed lawsuits.8

As previously noted, the parties cross-moved for summary

judgment. Following a hearing, in a comprehensive memorandum of

decision, the judge concluded that the two deeds were recorded

as part of a single transaction and, applying the simultaneous

deeds doctrine, viewed them as having been recorded together.

He then determined that the deeds unambiguously gave BC full fee

interest in Colby Street. The judge also concluded that NCDS

did not raise a triable issue with respect to its claims that it

had an easement by estoppel or implication, and that BC was not

liable for any breach of deed covenants.

8 BC filed a five-count complaint in the Land Court on June
29, 2016, seeking to reform the deeds to the parties by
reversing the order they were recorded to reflect the intent of
the parties (count one) and a judgment declaring that BC has all
right, title, and interest in the disputed way and NCDS has none
(count two). The remaining counts alleged a try-title claim
under G. L. c. 240, §§ 1-5 (count three), a trespass claim
(count four), and a nuisance claim (count five). Count one was
dismissed as moot given the judge's ruling that the deeds were
recorded simultaneously. NCDS filed its answer and three
counterclaims on August 4, 2016. The counterclaims sought a
judgment declaring that it has rights to Colby Street pursuant
to G. L. c. 183, § 58, the derelict fee statute (counterclaim
one), and on a theory of easement by prescription (counterclaim
two). Counterclaim three alleged a breach of warranty of deed
covenants. The breach of warranty covenants claim was also
filed in the Superior Court, which, as noted, transferred that
claim to the Land Court. Also as noted above, NCDS asserted, as
affirmative defenses, that the doctrines of easement by estoppel
or easement by implication grant it rights in the use of Colby
Street.
9

Discussion. "We review a grant of summary judgment de novo

to determine whether, viewing the evidence in the light most

favorable to the nonmoving party, 'all material facts have been

established and the moving party is entitled to judgment as a

matter of law'" (citation omitted). Assad v. Sea Lavender, LLC,

95 Mass. App. Ct. 689, 693 (2019). Where the parties have filed

cross motions for summary judgment, "the evidence is viewed in

the light most favorable to the party against whom judgment is

to enter" (quotation and citation omitted). Winbrook

Communication Servs., Inc. v. United States Liab. Ins. Co., 89

Mass. App. Ct. 550, 553 (2016).

1. Effect of the recording of the deeds. NCDS

acknowledges that its deed did not specifically include rights

in Colby Street. Nonetheless, NCDS argues, as it did in the

Land Court, that because its deed was recorded first, at a time

when Newton College owned all the land, and the deed did not

contain any express exception or reservation of rights to use

Colby Street, then, by operation of the derelict fee statute,

G. L. c. 183, § 58, it has title to Colby Street from the

southern boundary of its property to the center line of Colby

Street. Consequently, NCDS claims that it has the right to use

the entirety of Colby Street for all purposes.9

9 The derelict fee statute, G. L. c. 183, § 58, provides in
pertinent part as follows:
10

NCDS's argument founders if, as BC maintains and the judge

concluded, the deeds were executed and recorded simultaneously

with no intent that they be recorded in any particular order.

If this is so, then the NCDS deed should not be given any

priority over the deed to BC. Put another way, if the deeds

were recorded simultaneously, the derelict fee statute does not

apply, because Newton College did not retain any interest in

Colby Street at the time of the conveyance. Thus, according to

the parties (and the judge), the relevant inquiry is whether the

record on summary judgment contains any admissible evidence

indicating that the parties intended to record the NCDS deed

first. NCDS claims such evidence exists and, therefore, the

entry of summary judgment in favor of BC based on an application

of the simultaneous deeds doctrine was improper. BC takes the

opposite view.10

"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 . . . 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."

10Because NCDS would bear the burden at trial of
establishing its claimed rights, to be entitled to summary
judgment, BC must establish that NCDS had "no reasonable
expectation of proving an essential element of [its] case"
11

Before we address the application of the simultaneous deeds

doctrine, we note that the order in which the deeds were

recorded is immaterial for a different reason not addressed by

the parties or the judge.11 The deeds at issue were delivered at

the closing and became effective at that time. It is well

settled that the recording of a deed is not a requirement to

pass title. "A real estate deed is effective on delivery to the

grantee and enforceable as between the parties to that

instrument regardless of whether it has been recorded." Gomes

v. Harrison, 97 Mass. App. Ct. 745, 751 (2020). The recording

of the deed serves to provide notice to others who have no

knowledge of the transaction. See Aronian v. Asadoorian, 315

Mass. 274, 276 (1943), citing Earle v. Fiske, 103 Mass. 491

(1870) ("The recording statute, G. L. (Ter. Ed.) c. 183, § 4,

does not affect the validity upon delivery of an unrecorded deed

(citation omitted). Wolsfelt v. Gloucester Times, 98 Mass. App.
Ct. 321, 324 (2020).

11Although BC makes this argument in its brief on appeal,
it apparently did not do so in its motion for summary judgment.
However, we may affirm summary judgment on any ground apparent
in the record. See Kewley v. Department of Elementary &
Secondary Educ., 86 Mass. App. Ct. 154, 158 (2014) (in our
review of motion for summary judgment, "[w]e may consider all
grounds visible in the record and supportive of affirmance, even
though the parties and motion judge may not have relied upon
them"). See also New England Tel. & Tel. Co. v. Gourdeau
Constr. Co., 419 Mass 658, 662 n.5 (1995) (applying distinction
that appellee may raise new argument not raised below; appellant
may not).
12

as between the parties to it or as to persons with notice").

Here, there is no question that NCDS, a party to the joint

closing, was aware that the deeds were delivered and that title

to two separate parcels had passed to it and to BC respectively.

In fact, the parties' joint statement of agreed facts states

that the transfer of property was completed at the closing on

June 28, 1974. More importantly, because the deeds at issue

were prepared prior to the closing and were included in the

closing binder, NCDS was aware that the BC deed stated that

Newton college conveyed "all of [its] right, title, and

interest, if any, in . . . Colby Street" and its deed contained

no similar recitation. Given that NCDS was fully aware that

ownership of Colby Street had been transferred to BC before the

deeds were brought to the registry to be recorded, its argument

that it owns the fee to the center line of Colby Street on the

ground that its deed was recorded first does not withstand

scrutiny.

The conclusion we reach is dispositive, but given the

manner in which this case was decided and briefed, we address

the grounds on which the parties rely to support their

respective positions. We therefore turn our discussion to a

review of the simultaneous deeds doctrine. Relying on a number

of cases from the last century, the Land Court judge explained

the doctrine as follows:
13

"'[W]hen two or more deeds, conveyances, or contracts of
any sort are made simultaneously, and so connected with
each other that they may be regarded as one transaction,
these contracts and conveyances shall be held to take
effect in such order of priority and succession as shall
best carry into effect the intention and best secure the
rights of all the respective parties.' Pomeroy v. Latting,
81 Mass. 435, 436 (1860). Accordingly, '[w]hen the
instruments come to be executed, delivered, and recorded at
the same time[], there is no supremacy afforded the grant
in the one of the sequential instruments which first makes
it to record . . . when deeds are presented at the same
time to the Registry, the order in which deeds go to record
does not determine property rights definitively.' Jean v.
Perez, 25 [Land Ct. Rep.] 176, 183 (2017) (Piper, J.).
When deeds are recorded on the same day, 'there is nothing
in the terms of either which makes it subject to the other;
and prima facie they [are] in fact simultaneous[.]' Chase
v. Woodbury, 60 Mass. 143, 147 (1850). Further, where two
deeds from a single grantor to different grantees are
simultaneous, the case is 'much more like a partition
between tenants in common, where each party takes his
estate with the rights, privileges, and incidents
inherently attached to it, than [it is] like the case of
grantor and grantee, where the grantor conveys a part of
his land, by metes and bounds, and retains another part to
his own use[.]' Johnson v. Jordan, 43 Mass. 234, 241
(1841). Supremacy will not be afforded the grant in one of
a series of sequential instruments merely because it is
first-in-time, 'at least in the absence of some evidence of
a contrary intention.' Jean v. Perez, [supra] at 183."12

The doctrine thus holds that where deeds are executed,

delivered, and recorded at the same time as part of a single

integrated transaction, the deeds are deemed to be recorded

simultaneously and one deed is not given priority over the

other. More recently, we applied the doctrine in Haugh v.

12 Contrary to NCDS's assertion, there is nothing improper
about relying on these cases despite their remoteness in time
where, as here, the law remains unchanged. See Haugh v. Simms,
64 Mass. App. Ct. 781, 787 (2005).
14

Simms, 64 Mass. App. Ct. 781, 787 (2005), a case involving a

dispute over an easement to lay utilities on a private road.

There, we concluded that two deeds recorded on the same day

three minutes apart should be considered as filed

contemporaneously, and therefore the execution of the deeds,

which occurred three days apart, were appropriately

characterized as a single transaction. Id. In reaching our

conclusion in that case, we also considered the circumstances

surrounding the purchase of the property at issue and the brief

time between the execution of the deeds. Id.

Accordingly, we consider the undisputed facts to determine

whether the conveyance and recording of the two deeds were part

of a single simultaneous transaction such that the doctrine

applies and, therefore, the order in which the deeds were

recorded has no significance. The deeds were executed at a

joint closing where all parties and their lawyers were present.

It is clear that the deeds were prepared before the closing and

were included in the closing binder. As previously noted, the

closing binder contains no instruction or memorandum that

indicates one deed should be recorded before the other or that

the order of recording was important to accomplish the intent of

the parties.13 Following the closing, the two deeds were

13As the judge noted, "[i]t is inconceivable that if the
order of recording were crucial to the transaction in any way,
15

recorded at the registry on the same day within the same minute.

Although our review is de novo, these undisputed facts, coupled

with the plain language of the deed conveying the way to BC and

the absence of any explanation why the fee in the way was not

directly conveyed to NCDS, lead us to the same conclusion as the

Land Court judge. That is, based on these undisputed facts, the

conveyance and recording of the two deeds were part of a single

simultaneous transaction and, as a result, the order in which

the deeds were recorded has no significance.

Finally, NCDS argues that in determining whether the

doctrine of simultaneous deeds applies, the judge should have

considered "evidence of external circumstances" and further

asserts that here the attendant circumstances (undisputedly)

demonstrate an intent to give its deed priority. Although we

agree that the circumstances surrounding the recording of two or

more deeds are relevant to determining whether the doctrine

applies, and BC does not argue otherwise, none of the proffered

evidence on which NCDS relies in support of its position creates

a triable issue of fact.

NCDS first points to the close relationship between Newton

College and NCDS and argues that "it defies logic" that Newton

attorneys from Ropes & Gray and Goodwin, Procter & Hoar would
not have executed such a document [dictating the order of
recording] and included it in the closing binder."
16

College intended to terminate NCDS's right to use Colby Street.

It is true that Newton College and Boston Academy (and NCDS)

were "sister entities," and they both trace their origins to the

Roman Catholic community known as the Religious of the Sacred

Heart. While this connection is important to both institutions,

it is entirely speculative to conclude from their close

relationship an intent to grant NCDS an interest in Colby

Street. See Cesso v. Todd, 92 Mass. App. Ct. 131, 139 (2017)

(inference in favor of nonmoving party cannot be based on

"speculation and conjecture" [citation omitted]).

Next, NCDS relies on evidence of a vote of the Newton

College board of trustees taken on May 10, 1974, shortly before

the June 28, 1974, joint closing. Among other things, the vote

authorized the filing of a petition for dissolution, the

reconveyance of real estate and other related assets acquired by

Newton College from Boston Academy in 1972 (see note 5, supra),

and the conveyance of "substantially all the remaining assets"

of Newton College to BC (subject to BC's assumption of

substantially all of Newton College's liabilities). NCDS claims

that the vote, and in particular the directive that "remaining

assets" be transferred to BC, constitutes admissible evidence of

Newton College's intent that its deed be recorded first. This

argument is not persuasive for a number of reasons, the first

being that nothing in the vote specifies that NCDS is to receive
17

an interest in Colby Street. Second, there was a subsequent and

final vote regarding dissolution and the transfer of assets

taken on June 19, 1974, using the same language but authorizing

distribution of assets to BC first, with the "remainder"

distributed to NCDS. Lastly, as the judge observed, NCDS's

reliance on the May 10 vote, purporting to convey to NCDS the

"same land," including the fee in the way, previously

transferred to Newton College, is inconsistent with its argument

that it owns Colby Street only to the center line.

NCDS also relies on the interlocutory decree issued by the

Supreme Judicial Court a day before the joint closing on June

27, 1974. The interlocutory decree authorized Newton College

"to close its affairs and dissolve" subject to filing of an

affidavit of compliance that it had transferred certain assets

and "two parcels of real estate" to NCDS and delivered its

"remaining assets" to BC. This argument also is unavailing for

a simple reason: nothing in the decree requires that the NCDS

deed be recorded first. More importantly, even if we were to

conclude otherwise, the "two parcels" of land to be conveyed to

NCDS do not include any ownership in Colby Street. The two

parcels are described in NCDS's amended petition for dissolution

and are identical to the description contained in the NCDS deed.

Next, NCDS points to a letter written by an attorney for

Boston College in 1988 in connection with a subdivision proposal
18

in which the attorney states that NCDS "already has rights of

access in Colby Street." According to NCDS, the letter

demonstrates Newton College's intent to convey a portion of

Colby Street fourteen years earlier. NCDS further argues that,

based on the statement, BC is judicially estopped from claiming

that NCDS has no ownership interest in Colby Street.

We are not persuaded by this argument. To begin with, we

are not aware of any case in Massachusetts that directly applies

the doctrine of judicial estoppel to positions adopted in

administrative proceedings, although we note that other

jurisdictions have done so. See, e.g., Rissetto v. Plumbers &

Steamfitters Local 343, 94 F.3d 597, 604 (9th Cir. 1996). To

the extent that NCDS is requesting that we expand the

applicability of the doctrine to administrative proceedings, it

has not provided us with any substantive argument in support of

that request as required by Mass. R. A. P. 16 (a) (9), as

appearing in 481 Mass. 1628 (2019). Accordingly, the argument

is waived. See Goncalves v. Boston, 66 Mass. App. Ct. 180, 186

n.12 (2006) (claims not adequately briefed on appeal are deemed

waived). In any event, even if we were to assume that the

doctrine of judicial estoppel may be invoked in these

circumstances, the argument is unavailing, if for no other

reason than that no court (or agency) was persuaded to accept

such a position. See Massachusetts Highway Dep't v. Perini
19

Corp., 83 Mass. App. Ct. 96, 106 (2013), citing Otis v. Arbella

Mut. Ins. Co., 443 Mass. 634, 640-641 (2005) ("Judicial estoppel

is comprised of two fundamental elements: [1] the position

being asserted must be directly inconsistent with that taken in

a prior proceeding, and [2] the party must have persuaded the

court in the earlier proceeding to accept its prior position").

Where, as here, the subdivision never came to fruition, we are

hard pressed to accept the attorney's statement in regard to the

subdivision as binding. Lastly, the 1988 statement sheds no

light on what the parties intended in 1974.

NCDS's final argument is that two affidavits submitted by

two attorneys, Edward Rainen and G. Michael Peirce, were

properly considered by the judge and provide further evidence of

Newton College's intent that NCDS's deed be recorded first. BC

moved to strike the affidavits, and the judge did not rule on

BC's motion. Although we do not know to what extent, if any,

the judge considered the affidavits in reaching his conclusion,

they provide little, if any, relevant evidence of Newton

College's intent. The two affiants were not present at the

closing or involved in the 1974 transactions but, instead,

provided their expert opinions upon review of the same materials

that were part of the record on summary judgment. Neither

affidavit constitutes admissible evidence establishing that, at
20

the time of the 1974 transaction, Newton College expressed or

documented its intent that NCDS's deed be recorded first.

In sum, the record is devoid of any admissible,

nonspeculative evidence that supports NCDS's claim regarding an

intent to record its deed first other than the fact that its

deed was recorded on an earlier page at the registry. This sole

fact is insufficient to defeat summary judgment in the absence

of any evidence demonstrating that the order in which the deeds

were recorded was anything but happenstance. Haugh, 64 Mass.

App. Ct. at 787 ("Nor should the case rest on which deed the

[grantee] happened to hand the clerk at the registry of deeds

first on the day of recording").

Having concluded that the deeds were recorded

simultaneously as part of a single integrated transaction, and

that there is no admissible evidence to suggest otherwise, we

look to the language of the deeds to determine the intent of the

grantor, Newton College. If that language is unambiguous, we

look no further. See Sheftel v. Lebel, 44 Mass. App. Ct. 175,

179 (1998) ("The basic principle governing the interpretation of

deeds is that their meaning, derived from the presumed intent of

the grantor, is to be ascertained from the words used in the

written instrument, construed when necessary in the light of the

attendant circumstances" {emphasis added]). See also White v.

Hartigan, 464 Mass. 400, 410-411 (2013).
21

Here, there is no ambiguity in the relevant language of the

deeds. That language, which is undisputed, describes the

parcels to be conveyed to BC and NCDS by reference to the 1965

plan. The plan graphically depicts the boundary line between

the parcels and states "proposed property line" along the north

side of Colby Street. The BC deed describes its boundary as the

northern edge of Colby Street, and not as the center line. The

NCDS deed describes its southern boundary as "running along the

northerly side of said Colby Street." In addition, the BC deed

explicitly states that the grantor's intent is to convey all its

interest in Colby Street (and other ways) to BC ("Said premises

are conveyed with all of the Grantor's right, title and

interest, if any, in . . . Colby Street . . . as shown on [two

plans, including the 1965 plan]"). The deed to NCDS contains no

such grant.

Given the plain language of the deeds, there is no basis

for considering extrinsic evidence to determine Newton College's

intent. NCDS claims that the same evidence it alleges supports

its position that the parties intended to record its deed first

should be considered to interpret the language of the deed. The

judge correctly did not consider the proffered evidence in this

regard, and neither do we.

2. Easement by estoppel. NCDS asserts alternatively that,

even if it does not have a fee interest in the way, it is
22

entitled to a declaration that it has an easement by estoppel

over Colby Street.14 The judge rejected this claim and so do we.

An easement by estoppel may be created in two ways. See Blue

View Constr., Inc. v. Franklin, 70 Mass. App. Ct. 345, 355

(2007). "First, when a grantor conveys land bounded by a street

or way, he, and those claiming under him, are estopped to deny

the existence of the street or way, and his grantee acquires

rights in the entire length of the street or way as then laid

out or clearly prescribed." Id. "Second, when a grantor

conveys land situated on a street in accordance with a recorded

plan that shows the street, the grantor, and those claiming

under him, are estopped to deny the existence of the street for

the distance as shown on the plan." Id. NCDS argues that the

first of these circumstances applies to the facts presented

here.

This argument has no merit for the reasons we have already

discussed. Newton College, the grantor, had not retained any

rights in the land abutting the parcel conveyed to NCDS. An

easement by estoppel can arise only if the grantor retains land

14We note that although NCDS asserted this claim and its
claim for an implied easement as affirmative defenses, the judge
treated both as counterclaims. See Mass. R. Civ. P. 8 (c), 365
Mass. 749 (1974) (permitting court to consider affirmative
defense, if justice so requires, as counterclaim). Nothing turns
on whether these two claims are treated as affirmative defenses
or as counterclaims.
23

adjacent to the way at issue. Blue View Constr., Inc., 70 Mass.

App. Ct. at 355. As the Land Court judge observed, "the essence

of the doctrine of easement by estoppel is that a grantor of

land, 'describing the same by a boundary on a street or way, if

he be the owner of such adjacent land, is estopped from setting

up any claim, or doing any acts, inconsistent with the grantee's

use of the street or way[.]' Hennessey v. Old Colony & Newport

R.R. Co., 101 Mass. 540, 541 (1869) (emphasis added)." Given

our conclusion that the undisputed facts establish that Newton

College conveyed all of its land simultaneously to Boston

College and to NCDS, Newton College did not have any rights in

Colby Street at the time of the conveyance to NCDS.

Consequently, the conveyance to NCDS did not give rise to an

easement by estoppel over Colby Street.

3. Implied easement. NCDS's argument that it has an

implied easement over Colby Street fares no better. Easements

by implication are "created when land under single ownership is

severed and the easement is reasonably necessary for the

enjoyment of one of the parcels." Post v. McHugh, 76 Mass. App.

Ct. 200, 205 (2010), quoting Silverlieb v. Hebshie, 33 Mass.

App. Ct. 911, 912-913 (1992). Whether an easement by

implication exists is a matter of the presumed intent of the

parties, which is "to be gathered from the language of the

instruments when read in the light of the circumstances
24

attending their execution" (citation omitted). Boudreau v.

Coleman, 29 Mass. App. Ct. 621, 629 (1990). The party asserting

the existence of an easement by implication has "the burden of

proving its existence." Id.

In order to prevail on such a claim, a party must first

offer some evidence that the claimed easement was reasonably

necessary to the use of its property at the time of the

conveyance. A party seeking to establish an easement by

implication need not show strict necessity for the easement, but

more than mere convenience of its use is required. See Lavoie

v. McRae, 102 Mass. App. Ct. 14, 20-21 (2022).15

Here, nothing in the record suggests a factual dispute

whether the use of Colby Street by NCDS was reasonably necessary

for the enjoyment of the property transferred to it by Newton

College. To the contrary, it is undisputed that NCDS's property

15Compare, e.g., Cummings v. Franco, 335 Mass. 639, 642-644
(1957) (easements for lights, maintenance of electric fixtures,
electricity supply, and water supply held to be reasonably
necessary easements), and Flax v. Smith, 20 Mass. App. Ct. 149,
152-154 (1985) (easement by implication existed where homes had
used water and sewer line easement for decades and such use was
held reasonably necessary), with Joyce v. Devaney, 322 Mass.
544, 549 (1948) (no easement by implication over driveway even
when it provided the only practical entrance to plaintiff's
garage, because parties' contrary intentions were shown by
inclusion of unrelated express easements in deed), and Boudreau,
29 Mass. App. Ct. at 630 (no easement by implication where there
was "no evidence that at the crucial time . . . (or, indeed, at
any other time) the locus was landlocked without use of the ways
proposed").
25

has sufficient frontage on other roads with points of access

including its main entrance to the campus located on Centre

Street.16 Nor is there any evidence that suggests that NCDS's

property would severely diminish in value if it were to lose

access via Colby Street. See Lavoie, 102 Mass. App. Ct. at 25

(noting that diminution in value of property can be used to

satisfy initial burden of showing reasonable necessity).

Nor does the record evidence permit an inference that

Newton College intended to, or did, grant NCDS an easement in

Colby Street by implication. As previously discussed, both

deeds referred to the 1965 plan, which explicitly depicted and

described the boundary between the two parcels as the northern

edge of Colby Street. Again, the deed to Boston College clearly

and explicitly granted all of Newton College's "right, title and

interest" in Colby Street to BC, whereas the simultaneously

executed deed to NCDS evinced no such intent.

16As conveyed to NCDS, lot B1 has, in addition to the main
entrance to and exit from the NCDS campus along its 800.87 feet
of frontage on Centre Street (a public way), 998.32 feet of
frontage on Richmond Road (a private way), and 532.02 feet of
frontage on Westchester Road (a private way), for a total of
2,331.21 feet of frontage on public and private ways other than
Colby Street. There is also access to the NCDS campus via
Academy Road, another private way. There is no suggestion that
this extensive frontage was not usable and adequate for access
to the NCDS campus.
26

In an effort to defeat summary judgment, NCDS submitted

affidavits from Sister Barbara Rogers, the current headmistress

of NCDS; Sister Fran de la Chappelle, the dean of students at

Newton College at the time of its dissolution; and Sister

Kathleen Hughes, the treasurer of the former Boston Academy of

the Sacred Heart. The affiants recount their conversations with

Sister Elizabeth Sweeney, who was clerk of Newton College in

1974. They aver that Sweeney reported to them in later years

that one of the primary purposes of the 1974 "transaction"

(namely, the dissolution of Newton College) was to assure that

NCDS would once again be able to operate as an independent

school with its own campus as it had during previous years under

the former iteration of Boston Academy. Even if we were to

assume that these statements would be admissible at trial, they

shed no light on the question whether there was an intent to

create an implied easement over Colby Street. Indeed, none of

the affiants assert that Sweeney discussed the right to use

Colby Street with them.

Similarly, the affiants' statements that they observed

guests of NCDS and busses visiting NCDS regularly park along

Colby Street before, up to, and for some period after the time

of the 1974 conveyances do not support an inference that Newton

College intended to grant an easement because such use was

reasonably necessary for the use of the NCDS campus. All three
27

affiants averred that they knew of no limitations on NCDS's use

of Colby Street. However, in the absence of any evidence that

use of Colby Street for parking or access was necessary for the

operation of the campus, evidence of the use of Colby Street for

parking, without more, is merely evidence that it was

convenient. It is not evidence that would support an inference

that it was necessary for the reasonable use of the NCDS campus

or that Newton College intended to grant an easement for such

use. See Krinsky v. Hoffman, 326 Mass. 683, 688-689 (1951).

In sum, because NCDS did not raise any triable issue that

there was an intention to create an easement by implication over

Colby Street, summary judgment was properly entered in favor of

BC on this claim as a matter of law.

4. Breach of warranty deed covenants. NCDS claims that

the lawsuit brought by BC triggers the warranty obligations

contained within its deed from Newton College and that because

BC assumed Newton College's liabilities, BC is the successor to

those warranty obligations. As a result, NCDS argues, BC should

have defended NCDS's alleged interest in Colby Street. The

judge granted summary judgment in favor of BC on this claim,

reasoning that because "NCDS was not conveyed any interest in

Colby Street, nor is there any evidence of any intent to convey

such an interest, by grant, by estoppel, by implication, or by

virtue of the rule of construction imposed as a matter of law by
28

the derelict fee statute, there is accordingly no breach of the

warranties in the NCDS deed." In other words, assuming without

deciding that BC assumed the warranty obligations by virtue of

having assumed Newton's liabilities, no deed warranty

obligations to NCDS were triggered because BC's lawsuit

concerned land (Colby Street) owned by BC and not NCDS.

Accordingly, summary judgment was properly entered in favor of

BC on this claim.

5. Nuisance and trespass. As previously noted, after

trial on NCDS's prescriptive easement counterclaim, judgment

entered in favor of BC on its claims for nuisance and trespass.

BC's complaint sought an order enjoining NCDS from using Colby

Street, which was granted, and requested monetary damages, but

none were awarded. NCDS now asserts that BC's claims for

nuisance and trespass should be dismissed as moot, claiming

that, should we accept its argument that it owns to the center

line of Colby Street, then BC cannot make out a claim for

nuisance or trespass because NCDS has a right to use the

property. In light of the fact that we have rejected that

argument, so much of the judgment as concerned BC's claims of

nuisance and trespass was correctly entered.

Judgment affirmed.