SETH MCCLENNEN & Another v. ROEL C. ASTACAAN & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1034

SETH MCCLENNEN & another1

vs.

ROEL C. ASTACAAN & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, Roel Astacaan and Tracy S. Thomas-Astacaan,

appeal from a summary judgment entered in the Land Court

declaring that the Astacaans have no right to pass over any

portion of the property of the plaintiffs, Seth McClennen and

Martha C. Wu, and enjoining the defendants from entering the

plaintiffs' property. The properties at issue are registered

land and while we affirm so much of the judgment that concludes

that the registration materials contained in the record do not

show that the defendants have an easement over the plaintiffs'

property, we conclude that discovery was erroneously restricted

1 Martha C. Wu.

2 Tracy S. Thomas-Astacaan.
on the issue of whether the plaintiffs had actual knowledge of

an unregistered document encumbering their property with an

easement. Accordingly, we remand the matter for the limited

purpose of resolving that issue.

Background. We begin by reviewing the development of the

parties' properties to the extent necessary to address the

defendants' arguments, understanding that the parties are

familiar with the facts. The parties' properties were once part

of a larger parcel of land in the town of Orleans that abutted

the waters of Pleasant Bay and was registered in 1921. In 1956,

Delbert and Vera Johnson purchased lot 1A on land registration

plan no. 7347B, and in 1957, the Johnsons transferred a one-half

interest in lot 1A to Ernest Nickerson.

In 1957, the Johnsons and Nickerson subdivided lot 1A into

lot 5, which includes what is now the defendants' property, and

lot 6, which includes what is now the plaintiffs' property.3 In

February 1957, Nickerson transferred his interest in lot 5 to

the Johnsons and the Johnsons transferred their interest in lot

6 to Nickerson and his wife, Shirley.4 Thereafter the Johnsons

3 Lots 5 and 6 run from north to south and are divided
vertically such that the eastern boundary of lot 5 abuts the
western boundary of lot 6. Both lots abut Pleasant Bay on their
southern boundaries. Id.

4 Both deeds reserved a right of way over Towhee Lane for
lots 5 and 6, in common with others.

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subdivided lot 5, and some eleven years later, the Nickersons

subdivided lot 6.

In 1957, the Johnsons subdivided lot 5 into lots 7-12 as

depicted on plan no. 7347F (1957 plan). In April 1957, the

Johnsons conveyed lot 11 (containing the beach) and lot 12 on

the 1957 plan to the Corsons (the Corson deed) with the

following reservation:

"[s]ubject to a right in the grantors, their heirs and
assigns, in lot 11 . . . to pass and repass between the
waters of Pleasant Bay and any or all of the land shown as
Lots 5 and 6 on land court plan 7347-E, and to use said Lot
11 as a private beach and recreation area and to erect
thereon a pier and boat house."

This language was repeated in a 1961 deed of lot 8. The

defendants purchased lot 8 in 2022. Thus, the defendants'

property, lot 8, enjoys an easement for access to the beach over

lot 11, which abuts lot 8 and includes a path leading to the

beach.

In 1968, some eleven years after lots 5 and 6 were

subdivided from each other, the Nickersons further subdivided

lot 6 into lots as shown in plan no. 7347U (1968 plan). Those

lots include lots 123 and 124, of which the plaintiffs obtained

ownership in 2017. The deeds for most of the lots subdivided

from lot 6 include the "right to use the 12' Foot Path and beach

lying westerly of Lot 123 as shown on said plan as lot 124." On

the 1968 plan is a forty-foot wide way identified as

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Whippoorwill Lane, which provides access to several lots.

Whippoorwill Lane ends in a cul de sac, from which lot 124

extends to the beach. Lot 124 is a narrow strip leading to, and

including, a beach, and is labeled on the 1968 plan "12.00 Wide

Foot Path & Drainage Easement."5 The parties agree that lot 124

is seventeen feet wide; there is nothing to indicate the exact

location of the foot path & drainage easement. Lot 124 lies

immediately to the east of lot 11, over which the defendants

enjoy an easement. The beach depicted on lot 124 on the 1968

plan is immediately adjacent to a beach depicted on lot 11 on

the 1957 plan.

The Nickersons proceeded to transfer lots shown on the 1968

plan and for most lots included the "right to use the 12' Foot

Path and beach lying westerly of Lot 123 as shown on said plan

as lot 124," or other similar descriptions applicable to lot

124.6

The plaintiffs' 2017 certificate of title does not state

that lot 124 is subject to rights of others over lot 124 -- even

Confusingly, the words "12.00 Wide Foot Path & Drainage
5

Easement" are physically positioned on lot 11 (from the 1957
plan), but arrows point the description to the adjacent lot 124.

Nickerson did sell lots 120 and 121 together with a right
6

of way over the "12' Foot path west of lot 124," which would be
the strips on lots 8 and 11 on the 1957 plan. We discuss this
deed infra.

4
though the Nickersons granted express easements to the owners of

several lots depicted in the 1968 plan.

Although there is no dispute that the defendants have an

easement over lot 11, they assert that due to dense vegetation

and wetlands, the southern end of lot 11 near the beach is

impassable and a well-worn path to the beach deviates onto lot

124. While the plaintiffs neither admit nor deny the physical

attributes of lot 11, a dispute has arisen over the use of an

existing path which lies in part on lot 124; the plaintiffs

contend that the defendants have no right to pass over lot 124.

After the plaintiffs filed their complaint, the defendants

sought to depose several persons, including plaintiff McClennen,

and issued multiple subpoenas seeking documentary evidence of an

easement. The plaintiffs filed a motion for a protective order.

Concluding that only documents in the registration system were

material to the existence of an easement, the judge issued a

protective order prohibiting such discovery at least until the

determination of whether an easement exists is made.

The Land Court judge granted summary judgment to the

plaintiffs, concluding that their certificate of title does not

reflect an easement over lot 124 (deriving from lot 6) for the

benefit of the defendants' lot 8 (deriving from lot 5), and

neither of the exceptions set forth in Jackson v. Knott, 418

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Mass. 704, 711 (1994), apply to allow recognition of an easement

not noted on the certificate of title.

Discussion. "We review the Land Court judge's summary

judgment decision de novo. Because the judge does not engage in

fact finding in ruling on . . . motions for summary judgment, we

owe no deference to [her] assessment of the record" (Citation

omitted). Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass.

App. Ct. 515, 517 (2011).

"The purpose of the registration system is and has always

been to promote certainty of title and to 'protect the

transferee of a registered title'" (citation omitted).

Commonwealth Elec. Co. v. MacCardell, 66 Mass. App. Ct. 646, 653

(2006), S.C., 450 Mass. 48 (2007)."[H]olders of a certificate of

title take 'free from all encumbrances except those noted on the

certificate,' [quoting G. L. c. 185, § 46], and G. L. c. 185,

§ 47 (1992 ed.), expressly provides that, when land is

registered, the decree of registration (and subsequent

certificate) 'shall set forth . . . all particular . . .

easements . . . to which the land or the owner's estate is

subject.'" Jackson, 418 Mass. at 710. "No easement or other

rights may be acquired on registered land 'by prescription or

adverse possession [and no] right of way by necessity shall be

implied under a conveyance of registered land.'" Duddy v.

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Mankewich, 75 Mass. App. Ct. 62, 66 (2009), quoting Jackson,

supra.

Here, the certificate of title for the plaintiffs' lot 124

does not note an encumbrance for the benefit of the defendants'

lot 8 on the 1957 plan.7 And, even assuming that prior to 1957,

when the same person owned both properties, that prior owner had

in fact been using a pathway that travelled over lot 124 and

such use might be considered reasonably necessary for the

enjoyment of lot 8, that would not help the defendants.

Generally, no easement by necessity may arise on registered

land. See Duddy, supra.

Exceptions to the general rule, however, were recognized in

Jackson, such that an owner might take property subject to an

easement not noted on the certificate of title: "(1) if there

were facts described on his certificate of title which would

prompt a reasonable purchaser to investigate further other

certificates of title, documents, or plans in the registration

system; or (2) if the purchaser has actual knowledge of a prior

unregistered interest." Jackson, 418 Mass. at 711.

7 Although in the subdivision depicted in the 1968 plan
Nickerson expressly granted owners of lots 117, 118, 119, and
122 easements over lot 124, the plaintiffs' certificate of title
does not reflect those easements. For this, among other
reasons, we have closely reviewed all of the documents contained
in the record from the registration system.

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1. The first Jackson exception. Applying the first

exception, we have carefully reviewed the registration documents

and plans contained in the record. As depicted in the 1957 plan

subdividing lot 5, the defendants' predecessors in title

specifically reserved for the benefit of lot 8 access over lot

11 to reach the beach and to build a boathouse. As depicted in

the 1968 plan subdividing lot 6, the plaintiffs' predecessor in

title later created an adjacent access for the owners of those

lots over the foot path on lot 124 to access the beach.

Contrary to the defendants' contention, there was no evidence

that there was an intent to grant for the benefit of their lot 8

an easement over lot 6 generally or over the plaintiffs' lot

124, specifically. Although until 1957 lots 5 and 6 were

commonly owned, once separated, each owner created separate

accesses to adjacent beaches by relying on paths on their own

properties. There was no scheme that all of the lots on both

plans would have rights over the footpath on lot 124. There

were no open-ended ways leading from one plan to the next. Had

the owners who subdivided lots 5 and 6 intended that all of the

lots would have rights over the same existing footpath, they

could have so provided, and the footpath on lot 6 could have

been shown on the 1957 plan. It was not. At least for these

same reasons, the facts do not give rise to an easement by

implication.

8
Nor was the 1968 plan merely a progression of the

development of the whole of lots 5 and 6. When lots 5 and 6

were developed, which was over a decade apart, they were

separately owned; solid lines on the various plans separated the

lots; there were no open-ended ways leading from one lot to the

other; and the presence of adjacent paths on both lots separated

by a solid line belied the inference that they were intended to

be jointly used. Contrast Hickey v. Pathways Ass'n, Inc., 472

Mass. 735, 760 (2015) (examination of Land Court plans revealed

open-ended ways leading from the property on one plan to

property on next and plans showed network of interconnecting

ways, and planned development of other inland lots and their

right to use ways was "immediately apparent").

The defendants point for support to the reservation

contained in the Johnsons' 1957 deed of lots 11 and 12 to the

Corsons. The defendants essentially contend that this Corson

deed shows that the Johnsons and Nickersons intended to grant

mutual easements over their properties. However, at that time,

the Johnsons did not own lot 6 and lacked the capacity to burden

it with an easement.8 See Boudreau v. Coleman, 29 Mass. App. Ct.

8 When Nickerson conveyed lots 120 and 121, he granted a
right of way over the "12' foot path and beach lying Westerly of
Lot #124 as shown on [the 1968 plan]." Read literally, this
would be an easement over lot 11 and the strip on lot 8 on the
1957 plan. A number of factors contribute to suggest the grant
of rights over a footpath on lot 11 was a drafting error -- the

9
621, 632 (1990) ("Only rights held by grantors at the time of

the conveyance may be expressly reserved in a deed . . . they

cannot, by reservation, create a new right"). Thus, the

Johnsons could not have retained an easement over any portion of

lot 6 for the benefit of lot 5.9

Even more importantly, the language of the Corson deed

reserves rights over lot 11 -- not over lot 6. The plain

language of the reservation does not support an interpretation

that the Johnsons purported to reserve rights over lot 6 for the

benefit of lot 8 through the reservation in the Corson deed.

See Trustees of the Beechwood Village Condominium Trust v.

USAlliance Fed. Credit Union, 95 Mass. App. Ct. 278, 290 (2019)

drafter may have missed that the description "12.00 Foot Path &
Drainage Easement," though written on the 1968 plan on lots 8
and 11, have an arrow pointing to lot 124. Moreover, so far as
shown on the 1957 and 1968 plans, the strips on lots 8 and 11
are substantially wider than twelve feet, and all other
references to the "12.00 Foot Path" are to lot 124.

Even if we were to assume that Nickerson intended to
benefit lots 120 and 121 with an easement over lot 11 and the
reservation in the Corson deed allowed him to do so, however, we
discern nothing in those deeds, that bears on an intention that
lot 8 on the 1957 plan would have an easement over lot 124.
Because the owners of lots 120 and 121 are not parties to this
appeal, we need not definitively decide where their easement is
located.

9 If the evidence otherwise showed an intention to benefit
all of the lots on both lots 5 and 6 with easements over lot
124, it may be possible to overlook an aberration in the
chronology of conveyances. Cf. Conway v. Caragliano, 102 Mass.
App. Ct. 773, 783 n.10 (2023). That is not the case here.

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(deed construed according to its plain meaning). While the

language may allow for an interpretation that lot 6 is

benefitted by a reserved easement over lot 11, it does not allow

for the converse interpretation -- that lot 6 is burdened by a

reserved easement. See n.8, supra. In other words, even if the

Corson deed of lot 11 may be construed to reserve an easement

over it for the lots on the 1968 plan, there simply is nothing

in the record to suggest the Nickersons intended to grant

easements over lot 124 to the owners of lots on the 1957 plan.

It appears here that what was shown to be a clear path to

the beach on the 1957 plan does not match the current reality on

the ground. Even if that is the case, it does not give rise to

an easement over the plaintiffs' property where nothing in the

1957 or 1968 plans or deeds or related certificates of title in

the registration system indicates an intent to grant or reserve

an easement for the benefit of the lots on the 1957 plan, and

specifically lot 8, to pass over lot 124 on the 1968 plan.

Thus, the first exception does not apply.

2. The second Jackson exception. Next, we address the

issue of whether the plaintiffs had actual notice of a prior

unregistered interest. "If [the plaintiffs] acquired title with

actual knowledge of a prior unregistered interest, they have not

satisfied the requirement of good faith set forth in G. L.

c. 185, § 46," Jackson, 418 Mass. at 713, and may not "benefit

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from the protections afforded by the land registration system."

Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 51 (2007).

The question is whether either plaintiff, at the time of

purchase, had actual knowledge of a prior unregistered interest.

Jackson, supra.

We have said

"'To fulfil the actual notice exception . . . , it is not
enough that the holder of registered title know that the
land has been used in a certain way that might indicate an
easement, because this could be merely a permissive or
perhaps adverse use, which specifically does not give right
to an easement under G. L. c. 185, § 53. . . . . Rather
there must be actual knowledge of prior documents,
registered or unregistered, that create an easement over
the disputed parcel" (emphasis added) (citation omitted).

Calci v. Reitano, 66 Mass. App. Ct. 245, 249-250 (2006). In

refining the actual knowledge test, the Supreme Judicial Court

has said that "[o]ne way to satisfy the actual knowledge

exception is through 'documentation, whether registered or

unregistered.'" Commonwealth Elec. Co., 450 Mass. at 52,

quoting Calci, supra. "Essentially, the standard for

determining actual knowledge is whether there is '[i]ntelligible

information of a fact, either verbally or in writing,' or in

documentation that can be registered or not." Id., quoting

Emmons v. White, 58 Mass. App. Ct. 54, 65 (2003).

There is evidence in the summary judgment record that

plaintiff Seth McClennen wrote to defendant Tracy Thomas-

Astacaan in successive e-mail messages that "[w]e own the

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driveway over which you have an easement for your guests to

reach the beach"; he had "in the remote past seen [defendants']

easement" and it would "be good for [defendants'] broker to try

to find it to clarify"; and "[w]e were informally told by the

prior resident of your house that she was allowed to walk down

the path."10 These verbal assertions regarding registered land,

imprecise as to dates either plaintiff may have learned this

information, are generally insufficient to encumber registered

property without affirmative documentation. See Feldman v.

Souza, 27 Mass. App. Ct 1142 (1989) (verbal forewarning of

easement sufficient where easement was also noted on claimant's

certificate of title and deed). However, the judge and the

plaintiffs took the position that as a matter of law, only

documents contained in the registration system are relevant to

the issues in this case, including whether the actual knowledge

exception in Jackson applies. Thus, the judge limited discovery

to the records in the registration system.

Our cases make clear that if, at the time the plaintiffs

acquired ownership of their property, either plaintiff had

actual knowledge of an unregistered document encumbering the

property with an easement for the benefit of lot 8, that would

satisfy the actual notice exception. The defendants were

10It is unclear whether McClennen may have seen evidence of
the defendants' rights over lot 11 rather than over lot 124.

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entitled to discovery reasonably calculated to lead to

"intelligible oral or written information that indicates the

existence of an encumbrance or prior unregistered interest."

Commonwealth Elec. Co., 450 Mass. at 54, citing Emmons, 58 Mass.

App. Ct. at 68. At least some of the defendants' discovery

requests were targeted toward such information and the timing

and fact of either plaintiff's knowledge of it. We conclude,

therefore, that the protective order was overly broad where the

judge viewed as relevant only documents contained in the

registration system. Because the judge applied the wrong

standard, we remand for further consideration of the plaintiffs'

motion for a protective order as it relates to the actual

knowledge exception articulated in Jackson and its progeny and

further proceedings as needed on the actual knowledge

exception.11

Conclusion. So much of the judgment that concludes that

the materials in the registration system do not show that the

plaintiffs' property is encumbered by an easement for the

11The judge granted, in part, the plaintiffs' motion to
strike the affidavit of Tracy Thomas-Astacaan, reasoning that
the stricken paragraphs were either not based on personal
knowledge, constituted hearsay or legal opinions, or were
matters that required an expert opinion. On appeal, the
defendants argue that the judge erred in failing to consider the
affidavit in the light most favorable to the defendants, the
non-moving parties. We discern no merit to their argument.

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benefit of the defendants' property is affirmed. We otherwise

vacate the judgment for further proceedings consistent with this

decision to determine whether either plaintiff had actual

knowledge of an unregistered document encumbering lot 124 with

an easement for the benefit of lot 8. We also vacate the order

granting the plaintiffs' motion for a protective order to the

extent that it prohibits discovery into whether either plaintiff

had actual knowledge of an unregistered document encumbering lot

124 with an easement for the benefit of lot 8. The case is

remanded for further proceedings consistent with this decision.

So ordered.

By the Court (Henry, Grant &
D'Angelo, JJ.12),

Clerk

Entered: October 10, 2024.

12 The panelists are listed in order of seniority.

15