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.