Conway v. Caragliano

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22-P-159 Appeals Court

PAUL J. CONWAY, trustee,1 & another2 vs. THOMAS CARAGLIANO &
others.3

No. 22-P-159.

Suffolk. February 2, 2023. - June 29, 2023.

Present: Green, C.J., Rubin, & Massing, JJ.

Real Property, Registered land: easement, Beach, Easement,
Deed. Beach. Easement. Way, Private. Deed,
Construction. Land Court.

Civil action commenced in the Land Court Department on
October 5, 2018.

Motions for summary judgment were heard by Michael D. Vhay,
J., and the case was also heard by him.

1 Of the Riftwood Irrevocable Trust.

2 Gail M. Conway, as trustee of the Riftwood Irrevocable
Trust.

3 John A. Caragliano and Anne C. Caragliano, as trustees of
the CBC Irrevocable Trust, the TAC Irrevocable Trust, and the
JJC Irrevocable Trust, interveners. The complaint named only
Thomas Caragliano as a defendant. The judge allowed John A. and
Anne C. Caragliano, as trustees of the three trusts, to
participate in the case as "defendant-interveners."
2

Joshua M. D. Segal (Michael Williams also present) for the
plaintiffs.
David C. Uitti for the defendants.

MASSING, J. This appeal involving registered land concerns

the ownership of a way providing access to the shore and the

extent of easement rights in the way, if any, appurtenant to an

inland property. The plaintiffs, owners of waterfront property

in the town of Falmouth that abuts the way, appeal from

decisions of a Land Court judge declaring that they do not own a

fee interest in the way; declaring that the defendant inland

property owners have an easement, in common with the plaintiffs

and others, permitting them to use and occupy the way; and

ordering the plaintiffs to remove encroachments on the way that

interfere with the defendants' access and use.

Parting company with the judge, we conclude that the

plaintiffs do own the fee in the way by operation of the

derelict fee statute. See G. L. c. 183, § 58. Nonetheless, we

agree with the judge that the defendants' property enjoys an

easement over the way. Concluding that the scope of the

easement is not as broad as the judge determined, however, we

vacate those portions of the judgment and remand for the entry

of orders modifying the scope of the defendants' easement as set

forth herein and for further proceedings regarding the actions
3

the plaintiffs must take to permit the defendants to exercise

their easement rights.

Background. 1. Chain of title. The following facts,

which we draw from the summary judgment record, Assad v. Sea

Lavender, LLC, 95 Mass. App. Ct. 689, 690 (2019), and our

independent review of the documentary evidence, Commonwealth v.

Tremblay, 480 Mass. 645, 654-655 (2018), are not disputed. In

addition, we have taken judicial notice of certain relevant

instruments contained in the Land Court records section of the

Barnstable registry of deeds, all of which are readily available

to the public both in person and on line.4

The plaintiffs, Paul J. Conway and Gail M. Conway, as

trustees of the Riftwood Irrevocable Trust (the Conways), own

registered waterfront land in Falmouth with an address on

Westwood Road. The Conways' parcel is bounded by Buzzards Bay

to the north, Westwood Road to the south, and to the west, the

land at the center of this dispute: a forty-foot wide way that

leads from Westwood Road to the water, known as the "7th

Shoreway." Defendants John and Anne Caragliano, as trustees of

three trusts, own inland property on Westwood Road, directly

4 See Hickey v. Pathways Ass'n, Inc., 472 Mass. 735, 762
n.34 (2015) (taking judicial notice of plans on file with the
land registration office); Jarosz v. Palmer, 436 Mass. 526, 530
(2002) ("a judge may take judicial notice of the court's records
in a related action").
4

across from the 7th Shoreway and the Conways' property.

Defendant Thomas Caragliano was one of the original purchasers;

we refer to defendants collectively as the Caraglianos.5

The parties came to own their properties as follows. By

1950, a single owner, Earl Boardman, had amassed a large parcel

of land on Buzzards Bay in what is now known as the Nyes Neck

neighborhood of North Falmouth. Boardman's property had been

registered in the 1920s by prior owners under two certificates

of title filed in Land Court Registration Case No. 11518.6 In

the K Plan, dated January 1950 and registered on May 22, 1950,

Boardman merged the two original plans into a single plan. Much

of the land shown on the K Plan has no boundaries, but the plan

does depict several streets and ways providing access to ten

numbered parcels. Boardman's certificates of title provided,

"The streets and ways shown on [the K Plan] are subject to the

rights of all persons lawfully entitled thereto in and over the

same."

5 A sketch showing the parties' properties and the 7th
Shoreway, along with other neighboring lots and shoreways, is
attached to this opinion as an Appendix.

6 The record appendix contains lettered Plans 11518-A,
11518-F, 11518-G, and 11518-J through 11518-Z, followed by
numbered Plans 11518-1 through 11518-22, which postdate the
lettered plans. We refer to the plans in Case No. 11518 by
their letter or number.
5

As he developed the property, Boardman transferred lots by

deeds that included the following or similar language: "There

is appurtenant to the premises a right of way in common with

others in and over the private ways shown on the plans now filed

in this case." At first Boardman subdivided only a few lots at

a time, but the T Plan, dated May 5, 1951, and registered on May

28, 1951, created a mix of more than one hundred waterfront and

inland lots. As shown on the T Plan, interconnecting

subdivision ways provided street access to the lots. Six

"shoreways" appearing on the T Plan (labeled 1st, 2nd, 3rd, 4th,

5th, and 6th Shoreway), located intermittently between

waterfront lots, connected the inland subdivision ways to

Buzzards Bay. A small portion of what is now the Caraglianos'

lot is marked as lot C2 on sheet 1 of the T Plan. North and

east of the numbered lots on sheet 1, the T Plan shows

undeveloped land belonging to Boardman that would later be

subdivided to form the parties' parcels.

Boardman deeded lot C2 to Charles B. Hazard and Ethel

Hazard shortly after registration of the T Plan. Then in 1962,

Boardman conveyed to the Hazards substantial portions of his

property shown on the T Plan and the subsequent V, Y, and 1

Plans. The deed also transferred to the Hazards "the fee in the

soil of all of the [w]ays shown [on the T and V Plans] not

heretofore conveyed by me, and subject to easements of record,
6

reserving to [Boardman], for the benefit of his remaining land,

the right to use in common with others entitled thereto, the

ways and beaches as shown on plans in Land Court Case

No. 11518."

The disputed 7th Shoreway first appeared on the 13 Plan,

dated October 27, 1961, and registered on October 4, 1967; it is

located directly across Westwood Road from lot C2. The 13 Plan

also extended and terminated Westwood Road in a cul de sac

surrounded by three new lots: lot 211, a waterfront lot

abutting the 7th Shoreway to the east (now the Conways' lot);

lot 212, a waterfront lot to the east of lot 211; and lot 213,

an inland lot across Westwood Road from lots 211 and 212. Lot

213 included land that, together with lot C2, now comprises the

Caraglianos' lot.

The lots shown on the 13 Plan were sold off in the mid-

1970s. By a deed dated September 19, 1975, and registered on

September 25, 1975, Boardman conveyed lot 212 (the lot adjacent

to the Conways' lot) to Ralph P. Pellegrini, Inc. Some months

later, Boardman transferred lot 211 (the Conways' lot) to

Evangeline T. Anthony, by a deed dated September 23, 1975, and

registered on May 6, 1976 (Anthony deed). And by a deed dated

September 19, 1975, prior to the Anthony deed, but registered on

May 17, 1976, after the Anthony deed, Boardman transferred lot

213 to Earl and Ethel Hazard. All three deeds included this
7

identical provision: "There is appurtenant to the described

premises a right of way in common with others entitled thereto

in and over the provided ways shown on plans in registration

case No. 11518."

At the time the Hazards acquired lot 213, they already

owned lot C2, and by the 17 Plan, registered on September 12,

1978, they reconfigured the lot lines and created lot 242 by

adding to lot C2 a portion of lot 213.7 The Caraglianos acquired

lot 242 on March 15, 1991. Their certificate of title employs

the same language used in the Pellegrini, Anthony, and Hazard

deeds: "There is appurtenant to said land a right of way in

common with others entitled thereto in and over the way shown on

the plans in case number 11518." In addition, it states, "Said

land is subject to the reservation to Earl G. Boardman, for the

benefit of his remaining land, of the right to use in common

with others entitled thereto the ways and beaches shown on the

plans in Land Court Case No. 11518."

The Conways acquired lot 211 on July 28, 2000. Their

certificate of title states succinctly, "There is appurtenant to

said land a right of way over the ways in common with all others

entitled thereto."

7 From the remainder of lot 213, the 17 Plan created lot
241, another inland lot east of lot 242.
8

2. Use of the 7th Shoreway. After a trial, which included

a view, the judge made the following findings of fact, none of

which are contested on appeal. In 1991, when the Caraglianos

purchased their property, the Conways' property was a vacant

lot, but someone had been mowing the 7th Shoreway, which

consisted of nothing but grass leading to a steep embankment.

At the time of trial, four of the other shoreways were also

grassy, the 5th Shoreway was partially paved, and the 6th

Shoreway was paved along almost the entire length with a

community boat launch at the end.

The judge found that "the Caragliano family and their

invited guests used the 7th Shoreway for purposes that included

walking to and from the beach and the ocean (including carrying

beach chairs, floaties, and other materials); fishing;

transporting and launching kayaks, dinghies and sailboats

. . . ; sitting and watching sunsets, the ocean, fireworks, boat

races, and birds; having picnics and/or drinks; recreating

(playing catch, frisbee, and badminton, or flying kites) and

occasionally parking cars."

In 2009, the then-owners of the Conways' property placed a

bocce court within the 7th Shoreway, installed an irrigation

system, and added landscaping along the way's border with their

lot. Between 2018 and 2019, the Conways removed the bocce court

and regraded the 7th Shoreway, raising its height to meet the
9

rest of their property, and leaving only an eight-to-ten foot

wide grassy strip along the side farthest from their house. The

irrigation system caused water to build up on the strip, leaving

it wet and slippery. The Conways also used large stones to

retain the raised portion of the 7th Shoreway and planted bushes

near and around those stones. They also reconfigured their

driveway, in the process paving over the entire width of the 7th

Shoreway where it meets Westwood Road, such that anyone seeking

to use the 7th Shoreway would have to cross part of the Conways'

driveway.

3. Prior proceedings and rulings. The Conways commenced

this action in the Land Court, seeking a declaration that they

owned the fee in the 7th Shoreway and that the Caraglianos had

no easement rights in it. The Conways claimed that by parking

on and using the way, the Caraglianos were trespassing and

creating a nuisance. The Caraglianos filed an answer and

counterclaims seeking a declaration that their property enjoyed

easement rights in the 7th Shoreway (and, if necessary,

reformation of the parties' deeds to that effect) and an order

requiring the Conways to remove encroachments and restore the

7th Shoreway to its prior state.

On cross motions for summary judgment, the judge declared

that the original grantor, Boardman, retained the fee in the 7th

Shoreway and that the Caraglianos -- as well as the Conways
10

-- have easement rights in common with others over the way. The

judge then conducted a trial to determine whether the Conways

had interfered with the Caraglianos' easement rights, ultimately

determining the scope of the easement and ordering the Conways

to remove encroachments that interfered with those rights. (We

reserve the judge's conclusions regarding the scope of the

easement and the Conways' interference for later discussion.)

The Conways appeal.

Discussion. 1. Ownership of the 7th Shoreway. "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.

Where the parties filed cross motions for summary judgment, we

determine whether either party is entitled to judgment as a

matter of law" (quotations and citations omitted). Assad, 95

Mass. App. Ct. at 693. See Darman v. Dunderdale, 362 Mass. 633,

637 (1972) ("If the Land Court judge reached his view of the

grantor's intention solely from the documentary evidence, this

court has the same interpretive powers as the Land Court

judge").

The Conways claim that they own the fee in the 7th Shoreway

by operation of the derelict fee statute, and that the judge

erred in concluding that Boardman retained ownership rights
11

therein. We emphasize at the outset that our resolution of this

question is separate and apart from the question of the

existence and scope of the Caraglianos' easement rights. See

Kubic v. Audette, 98 Mass. App. Ct. 289, 302 (2020), S.C., 102

Mass. App. Ct. 228 (2023), quoting Adams v. Planning Bd. of

Westwood, 64 Mass. App. Ct. 383, 389 (2005) ("'the derelict fee

statute pertains only to the question of ownership of the fee'

in a way; it is not concerned with the existence or nature of

any easement rights there").

As pertinent here, the derelict fee statute provides,

"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 . . .

the instrument evidences a different intent by an express

exception or reservation." G. L. c. 183, § 58. The statute

"establishes an authoritative rule of construction" that "every

deed of real estate abutting a way includes the fee interest of

the grantor in the way." Tattan v. Kurlan, 32 Mass. App. Ct.

239, 242-243 (1992). While it previously had been possible to

rebut a common-law presumption to the same effect with other

evidence of the parties' intent, for instruments subject to the

derelict fee statute the presumption is conclusive unless the

instrument on its face expressly provides otherwise. See id. at

243-244. "The effect of the statute is 'to quiet title to
12

sundry narrow strips of land that formed the boundaries of other

tracts,'" which "has the salutary effect of promoting repose; by

creating a robust presumption that the adjacent land owner

acquired title to the way, the statute serves to discourage

others from trying to search ancient deed records for 'lost' fee

interests upon which a competing claim to title could be based."

Kubic, 98 Mass. App. Ct. at 302, quoting Rowley v. Massachusetts

Elec. Co., 438 Mass. 798, 803 (2003).

The first instrument passing title to the Conways' lot, the

Anthony deed, described lot 211 as bounded by the 7th Shoreway.

The language of the Anthony deed plainly did not contain an

express reservation of a fee interest. It referred to an

appurtenant "right of way in common with others entitled thereto

in and over the provided ways shown on plans in registration

Case No. 11518." The dissent contends that this language

amounts to an express reservation of the fee interest in the

ways shown on the plans because it granted less than a fee

interest. We disagree. The Anthony deed does not mention the

fee interest in the ways on the plans, let alone include a

reservation, exception, or exclusion of the fee in those ways,

let alone the fee interest in the 7th Shoreway. Designations

that "may give rise to nonpossessory, nonexclusive easements or

rights of way in the grantors and their successors in interest

. . . are plainly not express reservations of the underlying
13

fee." Tattan, 32 Mass. App. Ct. at 245. The dissent is

arguing, in effect, that the easement language implicitly

reserved a fee interest. But "only an express reservation of

the fee in the way can overcome the presumption created by the

statute" that the purchaser of land bordering a way acquires the

grantor's fee interest in the way. Kubic, 98 Mass. App. Ct. at

302 (deed transferred fee interest in right of way; language

stating that no right of way was conveyed not an express

reservation of fee). See Hickey v. Pathways Ass'n, Inc., 472

Mass. 735, 752 (2015) (derelict fee statute satisfied where

deeds contained "an exclusive reservation of rights in the ways;

they grant rights of access over the ways shown on a specific

plan or all plans in the subdivision, and explicitly exclude a

fee interest"); McGovern v. McGovern, 77 Mass. App. Ct. 688,

690 n.7, 694 (2010) (deed conveying easement rights to driveway

"does not contain any 'express reservation' evidencing an intent

contrary to the statutory presumption that title in the driveway

is to be conveyed to the abutting grantee"). The dissent's

reading of the statute would leave Boardman, who sold off his

last interest in the development almost half a century ago,

owning a sundry, narrow strip of land, contrary to the

Legislature's intent.

Thus, if the derelict fee statute applies to the Anthony

deed, then the fee to the 7th Shoreway passed to Anthony, and
14

the Conways, as Anthony's successors, now own the land beneath

it. The Caraglianos contend, however, that the statute does not

apply because the Anthony deed related to registered land.

According to the enabling legislation, the derelict fee

statute took effect on January 1, 1972, and applied both

retroactively and prospectively -- except that it did not apply

retroactively to previously executed instruments pertaining to

registered land. See St. 1971, c. 684, § 2 ("[G. L. c. 183,

§ 58,] shall apply to instruments executed on and after said

effective date and to instruments executed prior thereto, except

that as to such prior executed instruments this act shall not

apply to land registered and confirmed under the provisions of

[c. 185] before said effective date"). Although the Anthony

deed pertained to land that was registered before the effective

date of the statute, the deed itself was executed and registered

after the effective date; accordingly, by the plain language of

the enabling act, the statute applies.

The Supreme Judicial Court's decision in Hickey, 472 Mass.

at 735, is not to the contrary. In contending that the fee

interest did not pass to Anthony, the Caraglianos focus on the

following sentence from Hickey: "Although [the derelict fee]

statute does not apply to land registered prior to its

enactment, and thus is not applicable to any of the lots at

issue here, it does apply prospectively to registered land."
15

Id. at 752.8 Because a few of the Hickey defendants' lots were

conveyed after 1971, see id. at 746 n.17, the Caraglianos

argued, and the judge agreed, that by stating that the statute

"is not applicable to any of the lots at issue here," the court

necessarily held -- contrary to the language of the enabling act

-- that the statute does not apply to any instruments concerning

land registered prior to the effective date, regardless of when

the instruments were executed.

We do not read Hickey so broadly. The primary issue in

Hickey was the interpretation of the deeds to the plaintiffs'

two lots, which were created by a registered subdivision plan

and conveyed to the plaintiffs' predecessors in the late 1930s.

See Hickey, 472 Mass. at 740, 745. Such "prior executed

instruments" passing title to registered land are plainly

outside the scope of the derelict fee statute. Although a few

of the defendants' lots were conveyed after 1971, the court

observed that those deeds all included "an exclusive reservation

of rights in the ways," granting access over the ways and

"explicitly exclud[ing] a fee interest." Id. at 752. The

plaintiffs in Hickey argued that the absence of such language in

the earlier conveyances proved that "the developers did not

intend to retain rights in fees in the ways." Id. The court

8 See also Hickey, 472 Mass. at 744 n.13 (statute "does not
apply retroactively to registered land").
16

was not persuaded: "This more precise language including the

reservation of the fees in the documents beginning in the 1970s

is better explained as reflecting a response to the derelict fee

statute." Id. It was in this context that the court stated, in

the very next sentence, that the statute did not apply to the

lots "at issue here," but "does apply prospectively to

registered land." Id. That is, the statute did not apply to

the plaintiffs' lots, but did apply to the lots conveyed to

defendants after 1971, all of which included language that

tracked the statute.

Here, by operation of the derelict fee statute, the Anthony

deed effectively transferred from Boardman to Anthony, along

with lot 211, the fee interest in the 7th Shoreway.9

Incidentally, it also conveyed the fee interest to the center

line of the portion of Westwood Road fronting the lot. See

G. L. c. 183, § 58 ("if the [grantor's] 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").

9 The Anthony deed conveyed the fee interest in the entire
width of the 7th Shoreway, not just to the center line, because
Boardman did not at the time "retain[] other real estate
abutting such way." G. L. c. 183, § 58. If Boardman had
retained property "on the other side of such way, . . . the
title conveyed [would have been] to the center line of such
way." Id.
17

2. Caraglianos' easement rights. While we conclude that

the derelict fee statute applies such that the Conways own the

fee interest in the 7th Shoreway, the Caraglianos do not claim

an ownership interest. They claim an easement.

The parties and the judge appear to have proceeded on the

assumption that if Boardman relinquished his fee interest in the

7th Shoreway, he would have been unable to convey easement

rights therein. This is not the case. If the lots Boardman

retained benefited from appurtenant easement rights in and over

the 7th Shoreway, the lots would retain those easement rights

when Boardman conveyed them (unless the deeds provided

otherwise). See G. L. c. 183, § 15; Dubinsky v. Cama, 261 Mass.

47, 56 (1927); Cheever v. Graves, 32 Mass. App. Ct. 601, 606

(1992). See also Darman, 362 Mass. at 639-640 ("the only

easement rights in the land shown on [the plan] that [the

grantor] would have retained and could have conveyed . . . would

have been rights appurtenant to the lots [the grantor] still

owned").

In 1962, when Boardman transferred to the Hazards his fee

interest in most of Westwood Road and in the 1st through 6th

Shoreways, he expressly reserved "for the benefit of his

remaining land, the right to use in common with others entitled

thereto, the ways and beaches as shown on plans in Land Court

Case No. 11518." His remaining land at the time included that
18

later shown on the 13 Plan as the 7th Shoreway, the cul de sac

of Westwood Road, and lots 211, 212, and 213 surrounding the cul

de sac. The first of those lots to be sold, lot 212, was

conveyed along with an "appurtenant . . . right of way in common

with others entitled thereto in and over the provided ways shown

on plans in registration case No. 11518," which now included the

7th Shoreway. Lot 212's easement rights did not vanish when

Boardman next conveyed lot 211 to Anthony together with the fee

in the 7th Shoreway (and a portion of Westwood Road). Moreover,

Boardman still retained lot 213, which he subsequently conveyed

to the Hazards together with, as stated on the deed, an

appurtenant "right of way in common with others entitled thereto

in and over the provided ways shown on [the] plans."10

We recognize that "for registered land to be burdened by an

easement, generally the easement must be shown on the

certificate of title." Hickey, 472 Mass. at 754. See G. L.

c. 185, §§ 46-47. In this case, as with the deeds conveying the

10 Thus, there is no merit to the Conways' argument that
because Boardman conveyed their lot, including the 7th Shoreway,
before he conveyed the Caraglianos' lot, Boardman had no power
to grant any easement over the 7th Shoreway. Where the evidence
shows an intention to benefit all of the lots in a subdivision
with rights of way over all of the ways, "[t]he chronology of
the conveyances of the several lots out of the subdivision" is
"no obstacle" to recognizing the right of way as an encumbrance
on the registration. Rahilly v. Addison, 350 Mass. 660, 663
(1966).
19

other lots on the 13 Plan, the Anthony deed on its face included

appurtenant easement rights in the ways shown on the plans.

Because, by operation of the derelict fee statute, the Conways'

lot was conveyed with a fee interest in the 7th Shoreway, the

deed's reference to appurtenant easement rights was superfluous

with respect to the 7th Shoreway, but not with respect to the

other ways on the plans.11

Even though the Anthony deed incorrectly referred to the

lot as benefiting from an easement, in common with others, to

the 7th Shoreway, rather than being "subject to" or "encumbered

by" it, the language of the deed was sufficient to put Anthony

and her successors on notice of the existence of others'

easement rights. "[E]ven where the certificate of title does

11The conveyance of easement rights to the ways shown on
the plan may be evidence that Boardman did not intend to
transfer a fee interest in the ways. See Loiselle v. Hickey, 93
Mass. App. Ct. 644, 648-649 (2018) (provisions in deeds giving
lots rights to use adjacent ways would have been unnecessary if
developer had intended to convey title to same). But see
Rowley, 438 Mass. at 803 (purpose of enacting derelict fee
statute was "to meet a situation where a grantor has conveyed
away all of his land abutting a way or stream, but has
unknowingly failed to convey any interest he may have in land
under the way or stream, thus apparently retaining his ownership
of a strip of the way or stream" [quotation omitted]). As noted
supra, such evidence of intent has no probative value in light
of the derelict fee statute -- only the language of the
instrument matters. However, largely for the same reasons that
the judge concluded that Boardman did not intend to transfer
away his fee interest in the 7th Shoreway, we conclude that he
clearly intended to retain easement rights for the benefit of
his remaining property. That intent is apparent on the
documents in the registration case.
20

not show an easement, courts nevertheless can find registered

land [to be] impressed with an easement if a review of the

certificate revealed facts 'which would prompt a reasonable

purchaser to investigate further other certificates of title,

documents, or plans in the registration system' that

memorialized such an easement." Loiselle v. Hickey, 93 Mass.

App. Ct. 644, 650 (2018), quoting Hickey, 472 Mass. at 755-756.

"If a plan is referred to in the certificate of title, the

purchaser[s] would be expected to review that plan," Jackson v.

Knott, 418 Mass. 704, 711 (1994), and "investigate further other

certificates of title, documents, and plans contained within the

registration system, at the time of their purchase, to determine

both their own rights and whether others have rights." Hickey,

472 Mass. at 759. Of particular significance here, "where a

parcel of registered land involves a lot bounded by a way, and

the deed or certificate of title refers to a plan, a potential

purchaser is on notice that the property is bounded by a way and

that others may have easements in the way." Id. at 756.

The reference in the Anthony deed to a right of way, "in

common with others," in and over the ways shown on plans in the

registration case would have prompted "a reasonable purchaser of

registered land," Hickey, 472 Mass. at 756, to review at least

the most recent plans and the deeds to the neighboring parcels.

Such a review would have disclosed that all of the relevant
21

deeds referred to the same easement rights. Cursory examination

of the 13 Plan would have revealed that the 7th Shoreway

primarily benefited the inland lots with appurtenant easement

rights. Further examination of the documents in the

registration system would have led to the 1962 Hazard deed, in

which Boardman relinquished the fee in the ways adjacent to the

lots he was then conveying, but reserved "for the benefit of his

remaining land the right to use in common with others entitled

thereto the ways and beaches as shown on plans in Land Court

Case No. 11518." Indeed, the history of the development showed

that all of the preceding plans, certificates of title, and

deeds expressly granted easement rights over all of the ways

shown on the plans in the registration case. To be sure,

reference to plans "laying out a large tract, does not give

every purchaser of a lot a right of way over every street laid

down upon it." Jackson, 418 Mass. at 711, quoting Pearson v.

Allen, 151 Mass. 79, 81 (1890). Here, however, it is apparent

that access to the roads and shoreways shown on the plans was an

"integral" aspect of the development as a whole. Darman, 362

Mass. at 640.

In Hickey, 472 Mass. at 760-761, as here, the plans showed

a pattern of evenly spaced ways to the water between every three

or four lots, along with a network of interconnecting inland

ways, demonstrating a clear intent to allow inland lot owners to
22

use the ways to reach the beach. The trial judge concluded, and

the Supreme Judicial Court agreed, that a purchaser would have

seen a "progression of the development," and that "a review of

the defendants' certificates that reference plans showing the

way would have informed the plaintiffs that the grantors

intended to convey easement rights to those lot owners, even

though the easements are not noted on the plaintiffs'

certificates." Id. at 759. In Myers v. Salin, 13 Mass. App.

Ct. 127, 137 (1983), we observed that where a large number of

persons have a right of way to the beach, "it may have been

impractical to state with precision in the certificate of title

all the persons holding an affirmative easement of passage" and

that, like here, general references in the certificate as to the

existence of those easements "may have been all that was thought

feasible." Id. As in Hickey and Myers, in the circumstances of

this case, the registration requirements of G. L. c. 185, §§ 46-

47, were satisfied. The Caraglianos enjoy the benefit of an

express easement over all of the ways shown in the plans on

file, including the 7th Shoreway.

3. Scope of the easement. a. Trial judge's findings and

orders. After the above issues were resolved by summary

judgment, a trial was held to address the remaining issues.

Before trial, the parties agreed that the issues before the

judge were whether the easement allowed the Caraglianos to drag
23

vessels over the 7th Shoreway to reach Buzzards Bay and to sit,

recline, or otherwise remain stationary within the 7th Shoreway;

whether the Conways' alterations to the 7th Shoreway

unreasonably interfered with the Caraglianos' deeded rights; and

whether the Caraglianos were entitled to an order directing the

Conways to remove encroachments and restore the 7th Shoreway to

its prior condition.

The judge found that the Conways' renovations prevented

the Caraglianos from using the entire forty-foot width of the

7th Shoreway for walking to and from the beach and ocean and

from safely carrying kayaks, dinghies, or sailboats. The judge

also found that the plantings and large stones prevented most

vehicles from reaching the embankment. The judge further

concluded that Boardman, the original developer, intended for

the shoreways to give easement holders access to Buzzards Bay

for fishing, swimming, boating, and other uses traditionally

reserved for the public in tidal waters. The judge declared

that the Caraglianos' rights included the ability to use the 7th

Shoreway to transport vessels, either by foot or by motor

vehicle.

Moreover, relying on rules of statutory construction, the

judge concluded that "the language in the Caraglianos' deed that

gives them a right of way 'in and over' the 7th Shoreway carries

with it the right to occupy the Shoreway temporarily, for
24

purposes such as sitting, reclining, and recreating." The judge

reasoned that granting rights "over" the 7th Shoreway would have

been sufficient to grant rights of ingress and egress, so that

the grantor must have intended something more than mere access

rights by using the term "in and over." The judge further

reasoned that creating seven shoreways would have been

unnecessary if Boardman's intent was merely to provide access to

Buzzards Bay; the judge inferred that the many shoreways were

intended to provide a series of oceanfront, park-like spaces for

inland lot owners to picnic and play. The Caraglianos' easement

rights were not unlimited, however; although the terms of the

easement gave them the right to occupy the 7th Shoreway for

certain activities, the judge concluded it did not give them the

right to park cars on it.12

Next the judge considered whether the Conways' landscaping

changes to the 7th Shoreway interfered with the Caraglianos'

easement rights. The judge found that the Conways "ha[d]

occupied the Shoreway permanently with fill, boulders, plants,

part of a driveway, and an irrigation system." Because the

12The judgment declared that the Caraglianos, "in common
with all others entitled thereto, may sit, recline in, or
otherwise remain within the 7th Shoreway temporarily for
activities such as watching sunsets, the ocean, fireworks, boat
races, and birds; having picnics and drinks; and recreating, but
not for purposes of parking vehicles." The Caraglianos do not
contest the judge's ruling that they may not park on the 7th
Shoreway.
25

judge had determined that the Conways did not own the fee in the

7th Shoreway, but merely held easement rights in common with

others, the judge concluded that the alterations made by the

Conways exceeded their easement rights and unreasonably

interfered with the Caraglianos' and other easement holders'

rights to use the entire width of the way. The judge thus

ordered the Conways to remove the encroachments unreasonably

interfering with the Caraglianos' deeded rights. The judge did

not specify what steps had to be taken to restore the 7th

Shoreway, in part because certain restorations might require

State and local government approvals. Instead, the judge

ordered the Conways to submit a plan for restoring the 7th

Shoreway, at their expense, to the extent necessary to permit

the Caraglianos to exercise their easement rights. The Conways

challenge these rulings.

b. Discussion. "In analyzing the extent of an easement,

we look 'to the intention of the parties regarding the creation

of the easement or right of way, determined from the language of

the instruments when read in the light of the circumstances

attending their execution, the physical condition of the

premises, and the knowledge which the parties had or which they

are chargeable to determine the existence and attributes of a

right of way.'" Martin v. Simmons Props., LLC, 467 Mass. 1, 14

(2014), quoting Adams, 64 Mass. App. Ct. at 389. See Mazzola v.
26

O'Brien, 100 Mass. App. Ct. 424, 427 (2021) ("The general

principle governing the interpretation of deeds is that the

intent of the parties is ascertained from the words used in the

written instrument interpreted in the light of all the attendant

facts" [citation omitted]). The scope of easement rights is a

question of law. See Tenczar v. Indian Pond Country Club, Inc.,

491 Mass. 89, 104 (2022); Mazzola, supra. "Doubts as to the

extent of a restriction in an easement 'are resolved in favor of

the freedom of land from servitude.'" Martin, supra, quoting

St. Botolph Club, Inc. v. Brookline Trust Co., 292 Mass. 430,

433 (1935)

We begin with the language of the easement. The Hazard

deed, like all of the other deeds conveying the lots shown on

the 13 Plan, included an appurtenant "right of way in common

with others entitled thereto in and over the provided ways shown

on plans in registration Case No. 11518." The dictionary

definition of "right of way" is "[t]he right to pass through

property owned by another." Black's Law Dictionary 1587 (11th

ed. 2019). We agree with the judge that the right of way

includes the right to pass and repass over the 7th Shoreway by

foot and vehicle.13 See Chatham Conservation Found., Inc. v.

13The record does not support the Conways' argument that
Boardman did not intend to grant the right to use vehicles on
the 7th Shoreway. The width of the shoreway, its proximity to
the ocean, the unrestricted language of the deed, and fact that
27

Farber, 56 Mass. App. Ct. 584, 589-590 (2002) (discussing nature

of easements to "pass and repass" rights of way). However, the

term "right of way" does not suggest that easement rights in and

over the 7th Shoreway, or any of the shoreways, would include

sitting, reclining, or picnicking.

Nor do we infer such intent from the use of the two

prepositions "in and over," as opposed to simply "over." No

published case has interpreted such language to grant additional

rights beyond those typically associated with a right of way.

Indeed, numerous decisions have construed easements including

"in and over" language without assigning any special meaning to

the formulation. See, e.g., Walker v. E. William & Merrill C.

Nutting, Inc., 302 Mass. 535, 538 (1939); Stevens v. Young, 233

Mass. 304, 309 (1919); Lipsky v. Heller, 199 Mass. 310, 315

(1908); Barnes v. Haynes, 13 Gray 188, 191 (1859); Phillips v.

Bowers, 7 Gray 21, 23 (1856). In Phillips, the court held that

the grantees' rights "in and over" property set aside as a

"street" included "the use and appropriation of all the sand,

gravel, stone and other material on or under said street, which

would be suitable and useful, for the construction and repair of

such street." Id. at 22-23. This holding is simply a nascent

vehicular use was common when the right of way was granted
combine to compel the conclusion that the scope of the right of
way over the 7th Shoreway included vehicular use.
28

example of the now well-established principle that "the right to

pass and repass . . . include[s] all rights reasonably

incidental to the enjoyment of the right to pass, including the

right to make reasonable repairs and improvements to the right

of way." Chatham Conservation Found., Inc., 56 Mass. App. Ct.

at 589.

Importantly, the deeds and plans do not suggest that the

shoreways were to be treated differently from the other

subdivision ways. The language of the deeds does not

differentiate the easements granted "in and over" the shoreways

from the easements granted "in and over" other subdivision ways

-- both are encompassed as "the provided ways shown on plans" in

the registration case. All of the shoreways as shown on the

plans are forty feet wide, the same width as the inland

subdivision ways. As the Conways persuasively argue, if the

easement included the right to sit, recline, and picnic on the

shoreways, it would necessarily include the right to do so on

all of the subdivision streets.

We acknowledge that "[i]n the absence of express

limitations, . . . a general right of way obtained by grant may

be used for such purposes as are reasonably necessary to the

full enjoyment of the premises to which the right of way is

appurtenant." Cannata v. Berkshire Natural Resources Council,

Inc., 73 Mass. App. Ct. 789, 795 (2009), quoting Tehan v.
29

Security Nat'l Bank of Springfield, 340 Mass. 176, 182 (1959).

We nonetheless conclude that sitting, picnicking, or similarly

occupying the 7th Shoreway is not reasonably necessary for the

full enjoyment of the Caraglianos' property -- or that there is

any evidence that Boardman intended to grant such rights.14 The

scope of the Caraglianos' easement must be modified to declare

that they enjoy a right of way to pass and repass over the 7th

Shoreway by foot and vehicle, including the right to transport

vessels and equipment over the way, for fishing, swimming,

boating, and other uses traditionally reserved for the public in

tidal waters, as well as the right to make reasonable repairs

and improvements to the 7th Shoreway incidental to those rights.

See Kubic, 98 Mass. App. Ct. at 303-304.

c. Remedy. Finally, we turn to the portion of the

judgment that ordered the Conways to remove the encroachments

that unreasonably interfered with the Caraglianos' use of the

7th Shoreway. Because that order was premised on the conclusion

that the Conways did not own the fee interest, but possessed

only easement rights in common with others, and perhaps also on

14We do think that an inference can be drawn from the
creation of seven shoreways that Boardman intended to create a
series of park-like open spaces, rather than conveniently
located means of access to the shore, for the inland lot owners.
The 6th Shoreway may be an exception; some of the title
certificates include specific language concerning the nature of
the easement rights reserved for the use of the 6th Shoreway in
particular.
30

the conclusion that the Caraglianos had the right to sit,

recline, and picnic on the 7th Shoreway, we think the prudent

course is to remand the case with respect to the remedy.

We express no opinion whether, in light of the easement

rights over the 7th Shoreway belonging to the Caraglianos and

others, the Conways as fee owners may make any alterations to

the 7th Shoreway that they could not have made as mere owners of

common easement rights. "An easement is a nonpossessory

interest that carves out specific uses for the servitude

beneficiary. All residual use rights remain in the possessory

estate -- the servient estate." Martin, 467 Mass. at 14,

quoting Restatement (Third) of Property (Servitudes) § 4.9

comment c (2000). Nonetheless, as the Conways themselves have

argued, the 7th Shoreway must be treated the same as the other

shoreways and inland subdivision streets, and it may be that

some or all of the encroachments identified by the judge

continue to infringe on the Caraglianos' easement rights

regardless of the Conways' status as fee holders. Accordingly,

on remand the judge should reconsider precisely what steps the

Conways, as fee owners of the servient 7th Shoreway, must take

to permit the Caraglianos and others to exercise their easement

rights as necessary for full enjoyment of their dominant

estates, consistent with this opinion.
31

Conclusion. We affirm that portion of the judgment

declaring that the Caraglianos' property enjoys an easement over

the 7th Shoreway. In all other respects the judgment is

vacated, and judgment shall enter declaring that the Conways own

the fee interest in the 7th Shoreway, and declaring the scope of

the Caraglianos' easement rights as set forth herein. The

matter is remanded for further proceedings to determine the

actions the Conways must take to allow the Caraglianos to

exercise their easement rights.

So ordered.
RUBIN, J. (dissenting). This case should be a matter of

serious concern to anyone who owns or rents property near the

beach whether on the Cape, the Islands, or anywhere else in the

Commonwealth. Because their deed says they do not, I do not

think that the Conways own a fee interest in the 7th Shoreway or

the portion of Westwood Road abutting their lot, and I am

concerned for all owners of inland property in beachfront

developments in the Commonwealth about the serious consequences

of the court's mistaken holding that the Conways do.

The derelict fee statute provides that "[e]very 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 . . . the instrument

evidences a different intent by an express exception or

reservation and not alone by bounding by a side line." G. L.

c. 183, § 58. Here the operative 1975 deed transferring lot

211, the Conways' lot, from Boardman to Anthony, the Conways'

predecessor in interest, provided, "There is appurtenant to the

described premises a right of way in common with others entitled

thereto in and over the provided ways shown on plans in

registration case No. 11518."

That language explicitly conveyed to Anthony something

other and less than a fee interest in the private ways abutting

lot 211, including Westwood Road and the 7th Shoreway. Under
2

the derelict fee statute, it is an "express exception . . . and

not alone by bounding by a side line" to the inclusion of the

grantor's fee interest in the abutting ways. See Loiselle v.

Hickey, 93 Mass. App. Ct. 644, 648-649 (2018) (provisions in

deeds giving lots rights to use adjacent ways would have been

unnecessary if developer had intended to convey title to same).

To be clear, contrary to the court majority's description of my

views, it is not an "express reservation" of that fee interest.

It is an express exception to the grant of the fee interest.

Nor am I saying, as the majority would have it, that this is an

"implicit[] reserv[ation of] a fee interest." Ante at .

It is an explicit exception to the granting of a fee interest to

Anthony, who was explicitly conveyed "a right of way in common

with others," not a fee interest.

This explicit exception, reflective of the grantor's intent

is not "'attendant' evidence," but is contained in the text of

"the deed itself," Tattan v. Kurlan, 32 Mass. App. Ct. 239, 243-

244, 247 (1992). See Loiselle, 93 Mass. App. Ct. at 648-649

(provisions in deeds giving lots rights to use adjacent ways is

explicit demonstration on face of deed that developer did not

intend to convey title to those ways). This reading is

consistent with Tattan, in which, although fifty-foot strips of

land abutting the defendants' lots were designated on a plan for

a "future roadway," and a "prospective street," the deeds at
3

issue were silent as to what interest the defendants obtained in

those strips. Tattan, supra. Indeed, the derelict fee

statute's "object was 'to meet a situation where a grantor has

conveyed away all of his land abutting a way or stream, but has

unknowingly failed to convey any interest he may have in land

under the way or stream, thus apparently retaining his ownership

of a strip of the way or stream'" (emphasis added). Rowley v.

Mass. Elec. Co., 438 Mass. 798, 803 (2003), quoting letter of

Governor Francis W. Sargent to the Legislature dated April 9,

1971, 1971 House Doc. No. 5307 (returning bill for further

amendment). This grantor did not "fail to convey any interest"

in the 7th Shoreway so that a conveyance by operation of law is

required; he explicitly conveyed easement rights and only

easement rights in that shoreway.

Construing the deed as it is written to provide the Conways

common easement rights in the 7th Shoreway gives meaning to all

the deed's provisions and, because it gives effect to the plain

language of the deed, is consistent with the reasonable

expectations of all parties.

The error in the court majority's reading of the deed to

give the Conways the fee interest in the 7th Shoreway is clear,

as even the court must recognize, since to reach it, the

majority has to rewrite the deed it purports to be construing,

reaching a conclusion for which there is no evidence, but on
4

which the court's decision ultimately necessarily rests, that

the "the Anthony deed incorrectly referred to the lot as

benefiting from an easement, in common with others, to the 7th

Shoreway, rather than being 'subject to' or 'encumbered by' it."

Ante at . The court's reasoning is circular: The

Conways have a fee interest, so the reference to having an

easement in their deed must be a mistake, so we will rewrite it

to say that rather than having easement rights, it is "subject

to" someone else's easement rights, so now there is nothing in

the deed inconsistent with having a fee interest.

Indeed, notwithstanding its claim that there was an error

in the Anthony deed, the court majority recognizes that the

easement language in that deed actually does reflects an intent

not to convey the fee interest in the 7th Shoreway. It says,

though, that that "evidence of intent has no probative value in

light of the derelict fee statute -- only the language of the

instrument matters." Ante at note 11. But this evidence is in

"the language of the instrument"!

The exact same easement language in other deeds, including

the Caraglianos', is read by the court to grant easement rights

in the 7th Shoreway. But where that language appears in the

Conways' deed it is read to mean its opposite. Having construed

the deed to have conveyed a fee interest in the 7th Shoreway to

the Conways without first properly considering the deed's text,
5

the court majority has no plausible explanation for the deed

provision granting them instead easement rights. There is no

basis for saying that there was an error in the deed, and that

the grantor meant instead that they had a fee interest subject

to easement rights: By its terms, on its face, it conveyed

easement rights, not a fee interest, in both the 7th Shoreway

and the abutting section of Westwood Road, to which today's

decision also applies.

Only once the court majority has rewritten the deed by

removing the language contradicting its grant to the Conways of

the fee interest in the abutting ways, can it apparently

comfortably apply the derelict fee statute. But that statute

commands us to read the deed, and, only if there is no express

exception to the inclusion of the grantor's fee interest in the

abutting ways, to apply it and hold the fee in the abutting way

was transferred along with the fee in the property. It does not

command us to rewrite deeds to remove exceptions that would

prevent the application of the statute in order that we may

apply it. If the grant of an easement in the 7th Shoreway isn't

an express exception, the court's decision would not require the

conclusion that it must be a mistake. And since it can't be

squared with the Conways having a fee interest, it is an express

exception.
6

Why should this be a matter of grave concern? As the

Supreme Judicial Court has held, an abutting landowner who owns

the fee interest in an easement may in many circumstances

unilaterally narrow that easement, even in the face of plans

that explicitly demarcate its width. See Martin v. Simmons

Props., LLC, 467 Mass. 1, 12 (2014). One doesn't have to go to

the beach too many times in the Commonwealth to realize the

extraordinary value of the land that comprises deeded rights of

way to the beach. Those rights of way are essential to the very

value of all the inland property that is permitted by deed to

use them. Nor can one long miss the powerful desire of some

abutting ocean-front landowners to make the use of these ways by

those lawfully entitled as difficult as possible. Indeed, in

this very case, the Conways have unnecessarily built a driveway

across the entire width of the easement, for no apparent reason

but to block its use by all who have deeded rights to do so.

Perhaps in this case, though it is by no means certain, it

will not matter who owns the fee in the 7th Shoreway. It is a

forty-foot wide private way and the fee owner can take actions

that might affect its dimensions only "to permit normal use or

development of the servient estate," and only if they do not

"increase the burdens on the owner of the easement in its use

and enjoyment." M.P.M. Builders, L.L.C. v. Dwyer, 442 Mass. 87,

90 (2004), quoting Restatement (Third) of Property (Servitudes)
7

§ 4.8(3) (2000). On remand, I am hopeful the judge will require

the Conways to remove all the encroachments currently on the 7th

Shoreway, including the fill, boulders, plants, driveway, and

irrigation system, and to restore it to its previous condition.

But that is no sure thing.

More important, there are likely many, many other deeds

written in the way the deed here was that convey the property

abutting private ways with easement rights over those ways, ways

that are also used as of right by inland property owners,

residents, and renters in beachfront developments throughout the

Commonwealth. Until now, the abutters to these private ways

would have understood themselves, under the plain language of

their deeds, to have only equal easement rights in those ways.

If it is not reversed, today's erroneous reading of such deeds

to convey a fee interest in those ways under the derelict fee

statute, rather than the mere easement rights the deeds

explicitly convey, and that the purchasers therefore understood

they received -- a reading based on a conclusion that the

easement language deliberately included in all those deeds,

reflecting an intent not to convey a fee interest, was

"incorrect," no less, and must be read to mean its opposite --

likely will encourage attempts by abutting landowners to occupy

and narrow those rights of way, which are necessary for

beachfront development, which are utilized by myriad inland
8

property owners, residents, and renters in such developments,

and which are essential to the value and utility of those inland

property owners' land. Needlessly upsetting the reasonable

expectation of property owners who relied on the language of

these deeds is not our job, nor is the needless creation of

conflict on the ground among neighbors, or litigation in our

courts, about access to the Commonwealth's precious and

wonderful oceanfront. I respectfully dissent.
Appendix.