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SJC-11603

BRIAN S. HICKEY & others1 vs. PATHWAYS ASSOCIATION, INC., & 

others.2

Suffolk. October 7, 2014. - September 22, 2015.

Present: Gants, C.J., Spina, Botsford, Duffly, Lenk, & Hines, 

JJ.

Beach. Way, Private. Real Property, Registered land: 

Easement, Beach, Easement. Easement.

 

1 Mary P. Hickey, Lorraine M. Paglia, and Robert L. Paglia.

2 Kathleen D. Homa, Theodore M. Homa, Evelyn A. Jenkins, 

Jane W. Loiselle, John R. Loiselle, James T. Moshier, Mary E. 

Moshier, Joseph J. Rahal, Mary G. Rahal, Irving A. Wilson, 

Martha K. Young, Roland W. Young, Norman Allentoff, Patricia M. 

Becker, Robert Becker, Rebecca S. Blair, Wesley K. Blair, III,

Carole R. Bohn, Geraldine Burstein, Joseph Burstein, Frank 

Carrick, Jean Carrick, Marie C. Creonte, William T. Creonte, 

Craig P. Eddy, Julia H. Eddy, Robert A. Furman, Elaine Giberti, 

Richard Giberti, Susan M. Hennessey, Pamela A. Maher, Paul J. 

Maher, Barbara Jessel, Martin Jessel, Karen LaFauci, James 

Maguire, Mary Maguire, Geoffrey L. Mahon, Mary Ellen Manock, 

Arthur Maressa, Gary McWilliams, Rosalind Neuman, Sanford 

Neuman, Marcia O'Shea, Richard O'Shea, Julie A. Piantedosi, 

Lewis R. Piantedosi, Paul W. Pietro, Susan E. Pietro, Joseph 

Russo, Suzanne Russo, Ronald S. Saks, Sharalyn Saks, Ann 

Christine Tobey, William Banks Tobey, Joseph Tosh, Christine M. 

Tosti, Christopher P. Tosti, Dorothy L. Tosti, Andrew Tvirbutas, 

Catherine Tvirbutas, Elizabeth Walker, John J. Walker, Kristin 

M. Walker, Michelle T. Walker, Susan L. Walker, Dudley Woodward, 

Karen Woodward, and Bayview Limited Partnership.
2

Civil action commenced in the Land Court Department on 

April 15, 2009.

The case was heard by Karyn F. Scheier, J., on a case 

stated.

The Supreme Judicial Court granted an application for 

direct appellate review.

Jennifer S.D. Roberts for Lorraine M. Paglia & another.

Brian M. Hurley for Brian S. Hickey & another.

Kevin T. Smith for Elizabeth J. Walker & others.

David L. Delaney for Pamela A. Maher & others.

Roland W. Young, pro se.

Peter L. Freeman, for William J. Creonte & others, was 

present but did not argue.

LENK, J. This case involves a dispute among landowners in 

the same subdivision over access rights over a private way to 

the beach. The plaintiffs own two beachfront lots in the town 

of Dennis (town), fronting on Shore Drive. Shore Drive runs 

along the waterfront parallel to Cape Cod Bay. The plaintiffs' 

lots are separated by a twenty-foot way that extends south from 

Cape Cod Bay, along the length of the lots, to Shore Drive. The 

defendants3 own lots located to the south and west of the 

 

3 A number of the defendants in the Land Court did not 

pursue an appeal. Another seven defendants, who own waterfront 

lots that appear on the subdivision plans showing the 

plaintiffs' lots (James J. Lepore, Douglas and Patricia Suliman, 

N. Richard and Karen Greenfield, and Jack and Claire Chaflin), 

filed a joint stipulation of dismissal in December, 2010, 

several years before the Land Court judge issued her decision. 

For simplicity, we refer to the set of defendants who pursued an 

appeal as "the defendants."
3

plaintiffs' lots, starting from the inland side of Shore Drive. 

All of the land involved is registered land; it had formed part 

of a 217.24 acre tract of land originally owned by Frank B. 

Tobey and registered in the Land Court in 1903. In 1917, Tobey 

conveyed the parcel to two sisters who thereafter subdivided the 

parcel repeatedly through 1977. Over that sixty-year period, 

they subdivided the parcel a small section of residential lots 

at a time. The way appears on the subdivision plans creating 

the plaintiffs' lots, and on some of the plans creating the 

defendants' lots.

The defendants maintain that, according to provisions in 

their deeds and certificates of title, all of which reference 

easements over ways in subdivision plans, they hold rights of 

access over the way. The plaintiffs contend that they hold all 

ownership rights in the way, and the defendants have no right to 

use it for any purpose. The plaintiffs claim that, once the 

sisters sold the second of their two lots to the plaintiffs' 

predecessors in interest, the way as it appears on the 

subdivision plans ceased to exist, with each of their 

predecessors in interest acquiring title to one-half of the way, 

and no one else retaining any rights of access. In support of 

this contention, the plaintiffs offer a series of arguments, 

some of which are contradictory to others.

If the land at issue here were recorded land, it is 
4

unlikely that this case would be before us. Under long-standing 

common-law rules of interpretation of deeds containing 

references to plans, the defendants' understanding likely would 

prevail. However, this is registered land. And the land 

registration act provides that "[e]very plaintiff receiving a 

certificate of title in pursuance of a judgment of registration, 

and every subsequent purchaser of registered land taking a 

certificate of title for value and in good faith, shall hold the 

same free from all encumbrances except those noted" on 

the certificate. G. L. c. 185, § 46. While the plaintiffs' 

deeds contain provisions granting easement rights over the way 

from the original developers to the plaintiffs' predecessors in 

interest, it is undisputed that the plaintiffs' certificates of 

title do not contain a specific encumbrance showing an easement 

right held by any one of the named defendants. Therefore, we 

confront the question whether easements claimed over registered 

land to provide waterfront access from the defendants' inland 

lots are binding against the plaintiffs, where easements 

benefiting the defendants do not appear on the plaintiffs' 

certificates of title, but are noted in various forms on the 

defendant lot owners' certificates of title and in plans 

referenced in those certificates.

The plaintiffs filed an action in the Land Court to quiet 

title and for declaratory relief against twenty named defendants 
5

and persons "unascertained or unknown claiming as successors of 

Frank B. Tobey." Ultimately, the case proceeded with almost 

seventy named lot holder defendants holding thirty-eight 

certificates of title. Relying on a common-law presumption, the 

judge determined that the plaintiffs hold the fee in the way, 

each abutter owning the land from the lot line to the center 

line of the way.

In evaluating the defendants' claims to easements over the 

way, the judge divided the defendants into three main groups. 

The division was based on differences in the language in the 

defendants' certificates of title concerning access over ways 

shown on different subdivision plans. The first group of 

defendants holds certificates granting them access over the ways 

shown in "all other plans in Land Court Case No. 647," the 

original Land Court case under which the 217 acre parcel was 

registered in 1903. The second group of defendants holds 

certificates of title granting them access over all ways shown 

on Land Court Plan 647-G (G Plan); that plan, which also shows

the earlier subdivision plans establishing the plaintiffs' lots 

and the way, created thirty-two lots, moving several blocks 

inland from the plaintiffs' lots. The third group of defendants 

holds certificates of title referencing ways appearing on 

subdivision plans, other than the G Plan, that show their 

particular lots. Many of those defendants' certificates 
6

reference Land Court Plan 647-M (M Plan), which created 

approximately eighty lots south and southwest of the lots on the 

G Plan. Other of those defendants' certificates reference later 

plans showing small sections of lots created by reconfiguring a 

series of lots on a given street shown on the G or M Plans, 

without changing any of the public or private ways shown on the 

G or M Plans. The judge concluded that the lot owners in the 

first and second groups hold rights of access over the way, and 

the owners in the third group do not.

The plaintiffs appealed, and a number of the defendants 

filed cross appeals. Thereafter, we allowed the plaintiffs' 

application for direct appellate review. Because the defendants 

successfully rebutted the common-law presumption, we determine 

that the plaintiffs do not hold the fee in the way. We conclude 

also that, as to the first two groups of defendants, the judge 

was correct in determining that the defendants hold easements 

over the way. We conclude further that, as to the third group 

of defendants, and all but two of the unclassified defendants,4

 

4 Certain defendants were not classified into any of the 

three groups. For varying reasons, the judge concluded that 

certain of those unclassified defendants hold access rights over 

the way, and eleven do not. We conclude that the judge was 

correct in deciding that two of those defendants, Rosalind and 

Stanford Neuman, whose names do not appear on any certificate of 

title submitted to the Land Court, do not hold easements over 

the way. As to the other defendants, who hold Certificates No. 

190691 (Walker), 110223 (Maressa), 164891 (Tosti), and 179868 

(Tobey), we conclude that they hold easement rights over the way 
7

they, too, hold easements for access to the waterfront over the 

way.

1. Background. The Land Court judge reached her 

determination on a "case stated" basis, relying upon facts 

stipulated by all of the parties and 285 exhibits, largely 

copies of documents filed in the Barnstable Registry District of 

the Land Court. After she issued her initial decision in April, 

2013, the judge allowed the parties to submit proposed 

corrections of stipulated facts and other requested 

modifications. In July, 2013, the judge issued an amended final 

decision, allowed a motion for entry of judgment, and modified a 

preliminary injunction prohibiting access to the way, entered at 

the request of the plaintiffs in June, 2010, such that the 

successful defendants were permitted to use the way. We 

summarize the undisputed facts, reserving certain facts for 

later discussion of the issues.

a. Development of the registered parcel. The plaintiffs, 

Brian S. Hickey, Mary P. Hickey, Robert L. Paglia, and Lorraine 

M. Paglia, own two beachfront lots in the town, Lots X and J 

respectively. The lots, fronting on Shore Drive, are separated 

by a twenty-foot way that extends south from Cape Cod Bay, along 

the approximately 280 foot length of the plaintiffs' lots, and 

 

for reasons similar to those for the owners in the second and 

third groups. See discussion, infra.
8

ends at Shore Drive. The defendant lot owners hold thirty-eight 

certificates of title to lots inland of the plaintiffs' lots, on 

the inland side of Shore Drive, south of the plaintiffs' lots. 

All of the lots involved initially formed part of a 217.24 acre 

tract of land owned by Frank B. Tobey. In 1903, Tobey brought a 

proceeding in the Land Court, Registration Case No. 647, to 

register the parcel pursuant to G. L. c. 185. He was issued 

certificate of title No. 16, under plan 647-A.

The registered parcel was first subdivided in June, 1917, 

when it was conveyed to the original developers, sisters Lunette 

Luscombe and Ruth T. Morley, under Plan 647-B (B Plan). The 

B Plan subdivided the easternmost part of the 217 acre parcel, 

bounded on the north by Cape Cod Bay and on the west by a "road" 

now known as Nobscussett Road, into 155 lots.5 In 1925, Luscombe

and Morley conveyed the land to the Nobscussett Realty Trust 

(their family trust) and, in 1928, conveyed another subdivision 

 

5 The B Plan is divided into two sheets. The first sheet 

creates a series of waterfront lots along a street paralleling 

Cape Cod Bay, with four ten-foot ways extending between every 

three waterfront lots, from the road to the beach. A strip of 

beach, approximately 150 feet wide, runs along the waterfront 

the entire length of the plan, and is itself labeled as a lot. 

South of the waterfront road, the plan creates two more parallel 

streets running east-west, with several connecting streets 

running north-south from the waterfront road. The second sheet

creates an additional eight blocks of residential lots, further 

inland from the lots on the first sheet, with north-south 

streets connecting to the streets shown on the first sheet, and 

extending inland to the boundary of the developers' land.
9

of the 217 acre parcel, the C Plan.6

In June, 1935, the entire 217 acre parcel was reconveyed to 

Luscombe and Morley, who were issued Certificate of Title No. 

3710 (Certificate No. 3710). After they reacquired the 

registered parcel, Luscombe and Morley began developing 

residential lots to the west of Nobscussett Road, in a similar 

fashion to the earlier subdivision on the B Plan. Luscombe and 

Morley proceeded first to develop lots along the shore line from 

east to west, and then from the south side of Shore Drive 

inland.

The plaintiffs' lots were created on subdivision plans 647-

D (D Plan) and 647-F (F Plan), in 1936 and 1938. These plans 

show five and thirteen residential lots, respectively, along 

Cape Cod Bay to the north of a road now known as Shore Drive. 

The twenty-foot way at issue first appeared on the D Plan. It 

is shown on the western side of the D Plan, and abuts the 

western boundary of the lot that is now the Paglias'. Shore 

Drive (labeled "Road") is shown extending open-ended on the 

western edge of the D Plan.7 The eastern boundary of the 

 

6 The C Plan is essentially a square running south from Cape 

Cod Bay, immediately to the west of Nobscussett Road, 

encompassing much of the land at issue here, including the land 

on the D, F, and G Plans.

7 On the eastern side of the D Plan, a perpendicular road, 

also now known as Shore Drive, extends north to the shoreline, 

along the eastern edge of the easternmost lot, and extends south 
10

easternmost lot on the F Plan, now the Hickeys' lot, abuts the 

way to the west of the Paglias' lot.8 The defendants' lots, 

south of Shore Drive, were created on subdivision plans 647-G, 

647-M, 647-S, 647-2, 647-8, 647-11, and 647-15, from 1940 

through 1977.9

When the plaintiffs acquired their lots in 1994 and 1999, a 

large wooden staircase standing at the waterfront end of the 

 

to a road owned by the town of Dennis (town). At that time, 

Luscombe and Morley also owned all of the land between Shore

Drive and the town road.

8 In 1937, between the filing of the D and F plans, Luscombe 

and Morley filed the E Plan, which subdivided the westernmost 

part of their 217 acre parcel, a portion that jutted west along 

the waterfront; unlike the land south of the D and F Plans, 

Luscombe and Morley did not own the land south of the land on 

the E Plan. The E Plan created one large waterfront lot, Lot K, 

two smaller inland lots, Lots L and M, immediately south of Lot 

K, and a road now known as BayView Road leading southeast from 

Lot K, between lots L and M, and thence along the western edge 

of the developers' parcel. In May, 1937, the town took Bayview 

Road by an exercise of eminent domain. Approximately one month 

later, Luscombe and Morley conveyed Lot K to the town; it became 

a public beach, with public parking added later on Lots L and M. 

In 1945, the town took the Common Landing parcel, a waterfront 

parcel at the northern terminus of Shore Drive, and took an 

easement in Shore Drive from that point west to Bayview Road. 

All of these takings, which provided public access to the 

waterfront at the westernmost and midway points of the original 

parcel, occurred before Luscombe and Morley conveyed any lots to 

the defendants' predecessors in interest.

9 For convenience, an overlay combining the individual Land 

Court plans into a single document is attached in the Appendix. 

It is similar to a map prepared by some of the parties during 

proceedings in the Land Court, and submitted in the record 

appendices in their briefs, that was not an exhibit in the 

summary judgment record.
11

area of the way led from the dunes and rocks down to the beach. 

For some years, the plaintiffs saw the way being used, but took 

no action; the Hickeys maintained in argument before us that 

they allowed this use as permissive. Several years before 

commencing litigation in the Land Court, however, the plaintiffs 

decided that they no longer wanted this use to continue; 

eventually, contending that the staircase was dangerous because 

of damage to some of the supporting posts, the Paglias obtained 

permission from the town to remove it. The Land Court judge's 

order explicitly permitted those defendants whom she concluded 

had access rights over the way to repair or rebuild the 

staircase and to make use of the way.10

b. Judge's classification of defendant lot holders. As 

stated, the judge divided most of the defendants into three 

groups, based on language in their certificates of title. The 

first group of owners (fourteen certificates of title) hold 

certificates of title and deeds that state, either directly or 

by incorporating a reference to an earlier certificate or deed, 

that the owners "have, as appurtenant to said parcel, a right to 

use all ways shown on all other plans filed in Land Court Case 

No. 647, for all purposes in common with others entitled 

 

10 An easement on registered land cannot be extinguished 

through nonuse or prescription. See G. L. c. 185, § 53; Cater

v. Bednarek, 462 Mass. 523, 528-529 & n.15 (2012); Lasell 

College v. Leonard, 32 Mass. App. Ct. 383, 390 (1992).
12

thereto." The second group of owners (seven certificates of 

title) have certificates of title and deeds explicitly granting 

access to all ways shown on the G Plan.11

The third group of owners hold eleven certificates of title 

to lots shown on derivatives of the G Plan, and to lots shown on 

the M Plan and plans reconfiguring specific lots on that plan. 

Their certificates of title reference rights to ways appearing 

on subdivision plans showing their particular lots; the 

certificates do not explicitly reference the G Plan or 

explicitly grant rights to use all of the plans in Case No. 647. 

The certificates state, either directly or by incorporating a 

reference to an earlier certificate or deed, that "there is 

appurtenant to [the lot] a right to use the ways shown on [the 

plan showing the lot] for all purposes common with others 

entitled thereto."

2. Discussion. The plaintiffs maintain that the judge 

erred in concluding that any party other than the plaintiffs 

themselves has rights to use the way. They argue that the judge 

determined correctly that, under common-law principles 

 

11 The G Plan, which creates lots south and east of the 

plaintiffs' lots, including those immediately across the street, 

on the inland side of Shore Drive, also shows the way, the lots 

on the D Plan, and the eastern half of the lots on the F Plan, 

including the Hickeys' lot, as well as another way to the water 

between two other waterfront lots on the F Plan. The G Plan 

also indicates the outlines of the B Plan, the subdivision to 

the east of Nobscussett Road.
13

applicable to land conveyed as abutting a way, the plaintiffs 

own the fee from their respective lot lines to the center of the 

way. Based on this, the plaintiffs contend that, after deeding 

the parcels containing what are now the Hickey and Paglia lots 

to the plaintiffs' predecessors in interest, Donald B. Aldrich 

and Eugene J. and Harriet J. Waldron, respectively, the 

developers Luscombe and Morley retained no rights to grant 

easements to subsequent purchasers of any other lot. The 

plaintiffs argue also that, even if Luscombe and Morley retained 

some interest in the way, the judge improperly determined that 

the defendants are entitled to easements by estoppel, which the 

plaintiffs contend are prohibited under Jackson v. Knott, 418 

Mass. 704, 711 (1994) (Jackson).12 The plaintiffs maintain 

further that Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. 

App. Ct. 434 (2006) (Lane), and Duddy v. Mankewich, 75 Mass. 

App. Ct. 62 (2009) (Duddy), upon which the judge relied, were 

wrongly decided, and are contrary to Jackson, supra at 714 n.7, 

and to G. L. c. 185. Finally, the plaintiffs argue that the 

facts here differ significantly from those in Lane and Duddy, 

and that, applying their holdings, which the plaintiffs maintain 

are that easements by estoppel may arise on registered land, no 

 

12 In addition, the Paglias argue explicitly, and the 

Hickeys suggest, that the exceptions noted in Jackson v. Knott, 

418 Mass. 704, 711 (1994) (Jackson), are improper, and that 

easements on registered land should be construed strictly to 

include only those entries on the certificate of title.
14

easements exist over the way for the benefit of any of the 

defendants.

Because the judge issued her decision on a case stated 

basis, we review it de novo, drawing our own inferences of fact 

and reaching our own conclusions of law. See Richardson v. Lee 

Realty Corp., 364 Mass. 632, 634 (1974); Ware v. Hardwick, 67 

Mass. App. Ct. 325, 326 (2006).

Having considered the defendants' arguments in rebuttal of 

the common-law presumption, we conclude that the defendants have 

established the original developers' intent to retain the fee in 

the way, and that the plaintiffs hold only easements over the 

way. We conclude also, following Jackson, Lane, and Duddy, that 

documents on file in the land registration office show Luscombe 

and Morley's clear intent to grant easements over the way to the 

defendants in both the first and second groups, and, based on 

similar reasoning, to the defendants in the third group.

a. Fee in the way. We consider first a question that the 

plaintiffs argue is outcome determinative: the ownership of the 

fee interest in the way. The plaintiffs maintain that once 

Luscombe and Morley conveyed their lots out of the registered 

parcel to Aldrich and the Waldrons, Luscombe and Morley had no 

rights left in the way to convey to future purchasers of any 

other lots, see Darman v. Dunderdale, 362 Mass. 633, 639 (1972), 

and thus that any language purporting to grant easements in any 
15

of the defendants' certificates of title could not have conveyed 

such an interest. The defendants joining one of the briefs 

argue that the plaintiffs hold fee in the way, but that Luscombe 

and Morley retained an easement interest which they were able to 

convey. A majority of the defendants maintain, however, that 

the plaintiffs hold only easement rights in the way, in which 

Luscombe and Morley retained the fee interest. See Suburban 

Land Co. v. Billerica, 314 Mass. 184, 189-190 (1943).

The judge determined that the Hickeys and the Paglias each 

own a fee in one-half of the way based on the common-law 

presumption13 that a grantor conveying land described as "on" or 

"by" a way, who owns title to the way, as here, is presumed to 

have conveyed the way to its center line.14 See Rowley v. 

Massachusetts Elec. Co., 438 Mass. 798, 803 (2003); Murphy v. 

Mart Realty of Brockton, Inc., 348 Mass. 675, 679-681 (1965) 

(Murphy).

 

13 Common-law principles apply here because the derelict fee 

statute, G. L. c. 185, § 58, enacted in 1971 and amended in 

1990, does not apply retroactively to registered land. G. L. 

c. 185, § 2. See generally Hanson v. Cadwell Crossing, LLC, 66 

Mass. App. Ct. 497, 499-502 (2006); Adams v. Planning Bd. of 

Westwood, 64 Mass. App. Ct. 383, 387-391 (2005).

14 While the judge's decision states that the plaintiffs' 

ownership of the fee is a stipulated fact, most of the 

defendants did not stipulate to such ownership. Indeed, after 

the initial decision was issued, a number of the defendants 

challenged that assertion. In her order granting final 

judgment, the judge clarified that she relied on the common-law 

presumption, but did not further explain her reasoning.
16

Although the plaintiffs present it as a "rule of law" and

state that fee ownership was conveyed to Aldrich and the 

Waldrons by "operation of law," the common-law presumption that 

a grantor of property abutting a way also conveys the fee to the 

center of the way is "not an absolute rule of law irrespective 

of manifest intention, but is merely a principle of 

interpretation adopted for the purpose of finding out the true 

meaning of the words used." Crocker v. Cotting, 166 Mass. 183, 

185 (1896). "[A]fter reviewing the cases concerning this rule 

of presumed intent, the court [explained] that 'the underlying 

principle on which they all rest is that the intent of the 

parties in each instance was ascertained from the words used in 

the written instrument interpreted in the light of all the 

attendant facts. That is the general principle governing the 

interpretation of deeds.' Simonds v. Simonds, 199 Mass. 552, 

554 (1908)." Suburban Land Co. v. Billerica, 314 Mass. at 189, 

quoting Erickson v. Ames, 264 Mass. 436, 444 (1928). See 

Patterson v. Paul, 448 Mass. 658, 665 (2007). If there is 

ambiguity in the deed concerning whether and to what extent an 

easement was intended, rather than a grant of the fee, a court 

may consider the circumstances existing at the time the deed was 

executed to assist in determining the grantor's intent. Queler

v. Skowron, 438 Mass. 304, 311 (2002); Dunham v. Dodge, 235 

Mass. 367, 371-373 (1920).
17

To determine whether the defendants have rebutted the 

presumption in this case requires a review of the progression of 

the development of the registered parcel and the creation of the 

plaintiffs' lots.

i. Paglias' lot. As stated, the Paglias' lot, Lot J, was 

created by a subdivision shown on the D Plan, filed in 

September, 1936, that created five beachfront lots. Lot J is 

bordered by Lot I to the east and by the way to the west. On 

September 4, 1936, Luscombe and Morley conveyed Lot J, and the 

other four lots shown on the D Plan, to Aldrich, the Paglias' 

predecessor in interest. The Aldrich deed described Lot J as 

being bounded by Cape Cod Bay to the north, "[w]esterly by a 20-

foot right of way, there measuring two hundred eighty feet (280) 

feet . . . ; [s]outherly by a 40-foot road [Shore Drive] . . . 

and [e]asterly by 40-foot road [also known as Shore Drive]." 

Lot J was conveyed "together with rights of way for all purposes 

over said roads and rights of way." Aldrich's certificate of 

title states that the land "is subject to and has the benefit of 

the easements, restrictions and rights set forth in Document No. 

8841 [the Aldrich deed] and Certificate No. 3710 [the Luscombe 

and Morley certificate] so far as the same are in force and 

applicable." The Paglias acquired Lot J by deed dated August 

30, 1999. The Paglias' certificate describes the land as "Lot J 

Land Court Plan 647-D."
18

ii. Hickeys' lot. The Hickeys' lot, Lot X, was created in 

July, 1938, by a subdivision shown on the F Plan. The F Plan 

created thirteen beachfront lots. Lot X is bordered on the east 

by the way and on the west by Lot Y. The Paglias' lot, Lot J, 

also appears on the F Plan, to the east of Lot X; Lots X and J 

are shown on the F Plan as separated from each other by the way. 

Two other ways to the water, virtually identical to the way at 

issue, also appear on the F Plan, between lots N and O and 

between Lots Q and R. In 1944, Luscombe and Morley conveyed 

lots X and Y to the Waldrons, the Hickeys' predecessors in 

interest. The Waldron deed describes the parcel as bounded 

northwesterly by Cape Cod Bay, on the northeast by "a way 20 

feet wide [and] 275 feet . . . ," southeasterly by another way 

[Shore Drive], and southwesterly by Lot Z. The Waldrons' 

certificate of title provides that both Lots X and Y have an 

appurtenant "[r]ight of [w]ay over the adjacent ways as shown on 

plan 647-F" and that the land "is subject to and has the benefit 

of the rights and provisions in Certificate of Title No. 3710, 

so far as the same are in force and applicable." The Hickeys 

acquired lot X by deed dated May 14, 1994. The Hickeys' 

certificate of title describes their land as Lot X in Plan 647-F 

and provides:

"Said land is subject to and has the benefit of the 

rights and provisions in Certificate of Title No. 3710, so 

far as in force and applicable.
19

"There is appurtenant to said land a right of way over 

the adjacent ways as shown on said plan 647-F."

iii. Defendants' lots. Lots held by sixteen of the 

defendants15 were created on the G Plan, filed in May, 1940. The 

majority of the lots of the defendants in the first and second 

groups appear on that plan. Another nine of the defendants' 

lots were created on the M Plan, filed in June, 1947.16 Many of 

the lot of the owners in the third group appear on that plan. 

The remaining lots held by the defendants were created by plans 

that reconfigured specific lots along individual streets on the 

G and M Plans.17

 

15 Roland W. and Martha K. Young (Lot 236), Lewis R. and 

Julie A. Piantedosi (Lot 237), Craig P. and Julia H. Eddy (Lot 

238), Dudley and Karen Woodward (Lot 242), William T. and Marie 

C. Creonte (Lot 244), Frank and Jean Carrick (Lots 245 and 246), 

James and Mary Maguire (Lots 257 and 258), and Jane and John 

Loiselle (Lot 259).

16 Theodore M. and Kathleen D. Homa (Lot 323), Ronald S. and 

Sharalyn Saks (Lot 324), Joseph and Dorothy L. Tosti (Lot 337), 

Robert and Patricia M. Becker (Lot 368), and Karen LaFauci (Lot 

387).

17 Plan 647-S (October, 1955), created Lot 522, owned by 

defendants Paul W. and Susan E. Pietro.

Plan 647-2 (August, 1964) reconfigured certain lots on the 

M plan. It shows lots owned by Wesley K. and Rebecca S. Blair 

(Lot 465), Ann Christine Tobey, William Banks Tobey, and Mary 

Ellen Manock (all having a one-third interest in Lots 466 and 

467), Joseph and Geraldine Burnstein (as having a partnership 

interest in partnership holding Lot 471), James T. and Mary E. 

Moshier (Lot 476), Norman Allentoff (Lot 478), Joseph and 

Suzanne Russo (Lot 479), Richard and Elaine Giberti (Lot 488), 
20

iv. Interest in the way reserved by grantors Luscombe and 

Morley. The reason for the rule of presumed intent has been 

said to be that it is not to be presumed that a grantor, having 

conveyed lots bounding on a street "under which the land 

presumably would be of little value to a private owner, would 

not be expected to care much to retain the title after parting 

with all of his property on the side of the street." Gray v. 

Kelley, 194 Mass. 533, 537 (1907). See Erickson v. Ames, 264 

Mass. 436, 443 (1928).

In Suburban Land Co. v. Billerica, 314 Mass. at 189, we 

examined certain deeds in a subdivision to determine whether the 

developer had intended to convey the fee in particular ways to 

lot holders whose lots abutted the ways, where the deeds were 

silent on the question of fee ownership. The town argued that 

 

and Joseph J. and Mary G. Rahal (Lot 491).

Plan 647-8 (July, 1969) reconfigured other lots shown on 

the M plan and created lots owned by defendants Christopher P. 

and Christine M. Tosti (Lot 515), Richard and Marcia O'Shea (Lot 

518), Martin and Barbara Jessel (Lot 523), Robert A. Furman and 

Carole R. Bohn (Lot 525), and Gary McWilliams (Lot 527).

Plan 647-11 (May, 1973) reconfigured certain lots shown on 

the G Plan and created lots owned by Paul J. and Pamela A. Maher 

(Lots 533 and 534), Susan M. Hennessey (Lot 535), Andrew and 

Catherine Tvirbutas (Lot 538), and Geoffrey L. Mahon (Lots 539 

and 540).

Plan 647-15 (August, 1977) reconfigured another group of 

lots shown on the G Plan, creating lots owned by defendants John 

J., Elizabeth, Kristin M., Susan L., and Michelle T. Walker (Lot 

569), and Arthur Maressa (Lot 571).
21

the developer had had no interest to convey at the time it 

purported to convey an easement to a water company to install 

and maintain a water system, which the successor in interest to 

the water company later obtained via a foreclosure deed. Id. at 

188. We determined that the presumption that the developer 

conveyed the fee to the abutting landowners had been rebutted 

because the developer had installed and operated a system of 

water pipes beneath the ways at the time of the conveyances of 

the lots. Id. at 190. We concluded that the developer would 

not have conveyed the ways to the abutting lot holders because 

the developer "could not have intended to hamper itself and its 

rights by parting with the fee in any part of these streets." 

Id. We therefore reversed a decision by the Superior Court that 

a successor in interest of the developer had no easement in the 

ways. Id. at 194.

Here, likewise, there is clear indication in documents on 

file with the land registration office that Luscombe and Morley 

did not intend to convey the fee in the way. Rather, they 

reserved it for themselves to further their plan of development 

of the subdivision. This intent is evident in the language of 

the deeds, in the ways laid out on the plans and the plain

interrelationship among the plans, in other documents in the 

land registration system indicating the conduct of Luscombe and 

Morley and their grantees throughout the forty-year period of 
22

development of the 217 acre parcel,18 as well as in Luscombe and 

Morley's winding up of ownership interests in the ways after the 

subdivision of the parcel was completed.

When the way was created and the first deeds out were 

conveyed to Aldrich and the Waldrons, the way is described as 

adjacent to or "appurtenant to" their lots, separate and 

distinct from the lots themselves. In both deeds, Luscombe and 

Morley explicitly granted Aldrich and the Waldrons easement 

rights in the way. Clearly treating the way as separate 

property, Aldrich's deed and certificate of title provide that 

Lot J is conveyed "together with the rights of way for all 

purposes over said roads and rights of way [on the D Plan]."19 

The Waldron certificate of title provides, "There is appurtenant 

to said lots a [r]ight of [w]ay over the adjacent ways as shown 

 

18 The entirety of the 217 acre parcel, shown on plans A, B, 

and C, is included in Luscombe and Morley's certificate of 

title, Certificate No. 3710. The certificate provides, in part:

"Said land is subject to and has the benefit of all 

outstanding rights of way, if any such there be, and so far 

as the same are now in force and applicable."

19 In addition to the way, the D plan shows a road that is 

now Shore Drive, running east-west parallel to the coast;

another road also now called Shore Drive, running north-south 

along the eastern boundary of Lot F, the easternmost lot, and 

intersecting with the waterfront road; and, finally, a town road 

parallel to the water, further inland, separated from the rest 

of the plan by a large section of undeveloped land then owned by 

Luscombe and Morley. On the D Plan's eastern boundary, a 

reference states, "See Plan No. 646-G, Cert. of Title No. 1689."
23

on said plan 647-F."20 Had Aldrich and the Waldrons held the fee 

in the way, such easement rights over the way would have been of 

no use. Indeed, the conveyance of such an easement would have 

been of no effect; the holder of a fee cannot hold an easement 

for access over the fee. Thus, upon conveyance of Lot X and the 

ten feet on the western half of the way to the Waldrons, the 

easement would have been extinguished. See Goldstein v. Beal, 

317 Mass. 750, 754 (1945) (Goldstein), and cases cited. See 

also Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383, 

390 n.15 (2005); Cheever v. Graves, 32 Mass. App. Ct. 601, 606 

(1992). The developers' intent to grant easements, not fees, is 

thus even more evident than for the developers in Suburban Land 

Co. v. Billerica, 314 Mass. at 190, where the deeds were silent 

as to fee or easement rights in the way.

An examination of the plans in Case No. 647 shows that the 

parcel is a long, narrow strip along the waterfront, extending 

approximately five blocks inland from the shoreline. On all of 

the plans, to the east and west of Nobscusset Road, the land is 

divided into small residential lots, along ways roughly 

paralleling the water. Ways running between waterfront lots, 

 

20 In addition to the way at issue, the F Plan shows two 

other ways leading between waterfront lots to the beach, and 

shows what is now Shore Drive abutting the southern boundary of 

all of the waterfront lots. Shore Drive and Lot J are both 

depicted as open-ended; Shore Drive leads off the eastern edge 

of the F Plan into what is noted as the D Plan, "filed with 

Cert. of Title No. 4063."
24

from the water to a road along the shore, are shown every three 

to four house lots west of Nobscussett Road, on the D, F, 

G Plans, and to the east of Nobscussett Road, on the B Plan. 

See note 5, supra. The way to the waterfront would have been of 

no use to Aldrich, the owner of five waterfront lots, or to the 

Waldrons, owners of two waterfront lots; all of their lots are 

entirely on the waterfront, with lot lines continuing down to 

the mean high water mark. The way also would serve no purpose 

for any of the other waterfront lots shown on the D and F Plans, 

whose lot lines also continue to the mean high water mark. The 

way thus created, along with the two other ways between 

waterfront lots shown on the F Plan, are, on the face of the 

plans, part of an integral scheme of ways in a neighborhood, 

providing access to the waterfront, every three or four lots.21 

The purpose to provide waterfront access to inland lots is 

obvious on the face of the plans, and would have been to those 

purchasing the Paglia lot in 1936 and the Hickey lot in 1944.

Retaining the fee in the way provided Luscombe and Morley, 

who held property inland of the waterfront lots shown on the D 

and F Plans, rights to the waterfront which they could convey to 

 

21 The plans show this continuing pattern of development 

notwithstanding the public access available to the beach after 

the takings of Bayview Road to the west, Shore Drive, and Common 

Landing to the east, and after Luscombe and Morley had deeded 

beachfront Lot K, adjacent to Bayview Road, to the town as a 

public beach. See note 8, supra.
25

subsequently developed inland lots. See Duddy, supra at 63, 64

(in conveying lots abutting way on first plan, developer was 

"careful to retain the fee" in that way, and thereafter conveyed 

easement rights over extension of way shown on subsequent plan 

to additional lots created on that plan). That Luscombe and 

Morley contemplated such further development is clearly 

indicated in the reference to the as-then-yet-to-be-filed G Plan 

at the eastern side of the D Plan, and in the large section of 

undeveloped land they owned south of Shore Drive, that appears 

on the D Plan, bounded by a town road. The landowners to whom 

Luscombe and Morley later conveyed lots were explicitly granted 

easements to use all ways shown on their plans, together with 

others, or all ways in the registered land case. Clearly, for 

Luscombe and Morley, maximizing the value of the registered 

parcel rested in developing inland lots with convenient access 

to the water. They would not have hampered themselves in this 

pursuit by conveying the entirety of the fee over the way to the 

first two purchasers. See Suburban Land Co. v. Billerica, 314 

Mass. at 190. Like the developer in that case, the presumption 

of intent to convey a fee because the way would have had no 

remaining value to Luscombe and Morley after the lots abutting 

it were conveyed "is not applicable here, for the fee in the 

streets was a valuable adjunct to" Luscombe and Morley's other 

land. Id.
26

In addition to the plain language of the Aldrich and 

Waldron deeds, and the clear purpose of the way, other documents 

in the registry system indicate an intention to convey easements 

and to reserve the fee. In 1939, after the conveyance to 

Aldrich, and before the conveyance to the Waldrons, Luscombe and 

Morley conveyed two other waterfront lots, Lots 233 and 234, the 

first lots out on the G Plan, to Joseph Pare, Jr. In 1939, 

again before the conveyance to the Waldrons, Luscombe and Morley 

conveyed two additional lots on the G Plan, lots 231 

(waterfront, abutting the way on the eastern edge of the F Plan) 

and 232 (inland) to Joseph Pare, Jr., by a deed stating that the 

lots "are subject to and have the benefit of all outstanding 

[rights-of way], if any, in-so-far as the same are now of legal 

force and effect."

Throughout the course of development, Luscombe and Morley 

continued to grant explicit rights in all ways shown on a plan 

or to all ways in Case No. 647, indicating a belief that they 

had rights to do so; those rights were included on the lot 

owners' certificates of title. In similar circumstances of 

intended future development by owners of a large parcel, we 

noted that a potential purchaser

"reasonably should have been aware that the [developers] 

would have to retain title to the proposed way in order to 

proceed with the development of the large area of land 

beyond their lot. The [developers] were both the owners 

and developers of the land and it would be contrary to 
27

common sense for [a plaintiff,] one of the original 

purchasers of lots north of the developed area, to believe 

that no other property was to be developed that would 

require the use of the 'proposed street' for access. The 

right-of-way granted [to another lot holder], which was 

recorded before the date of the deed from the [developer] 

to [the plaintiffs], makes it clear that the ownership of 

the land within the 'proposed street' and extending beyond 

into the undeveloped part of the property was to remain 

with the [developers]."

Beattie v. Swanson, 360 Mass. 50, 53 (1971). See Emery v. 

Crowley, 371 Mass. 489, 492-493, 494 (1976), quoting Murphy, 

supra at 680 (language of deed and plans showed that grantor did 

not intend to convey fee in way that crossed another parcel, but 

only easement of access to adjoining lot; "rules of construction 

are designed to elucidate the intent of parties to written 

instruments, . . . and thus look to the instruments themselves 

and extrinsic facts, if necessary, to decide if the deeds 

involved here pass title to real estate 'abutting' a 'way'"); 

McGovern v. McGovern, 77 Mass. App. Ct. 688, 700 (2010) ("the 

conduct of the parties after the conveyance was consistent with 

retention of the fee"). See also Frost v. Jacobs, 204 Mass 1, 5 

(1910) (concluding grantors did not intend to convey fee in 

passageway where deed conveyed "privilege to the owner of said 

lot to use the private way in common with other abutting 

owners," retention of fee permitted grantor to grant access to 

way and staircase in subsequent sale, and grantee thereafter 

conveyed property using same language in subsequent deed).
28

Furthermore, the town acted as though Luscombe and Morley 

had retained the fees in the ways. When the town took Bayview 

Road in 1937, and the Common Landing at the end of Shore Drive 

in 1945,22 and took an easement in Shore Drive itself,23 also in 

1945, the town listed in the instruments of taking the lot 

 

22 The Common Landing occupies the northernmost portion of 

Shore Drive, terminating in the water, between Lot J on the D 

Plan (then owned by Aldrich) and Lot 234 on the G Plan (then 

owned by Schweinler). Schweinler and Aldrich are listed in the 

instrument of taking as the abutting lot holders; the land in 

the way taken is described as "'Common Landing' at the northerly 

end of Shore Drive," "by the land of" Aldrich and "by the land 

of" Schweinler. Luscombe and Morley are listed as the owners of 

the land taken and are awarded damages.

23 The length of Shore Drive from Bayview Road to 

Nobscussett Road is approximately 3,600 feet. At the time of 

the taking, there were thirteen lot owners, some of whom held 

multiple lots abutting Shore Drive, including Aldrich, the 

Waldrons, Pare, and Schweinler, and also Luscombe and Morley. 

All are noted in the document of taking. The document states 

that it takes "land within the side lines of the town way called 

Shore Drive." The land taken is detailed, for each lot owner, 

as abutting, inter alia, the "northerly," "easterly," 

"southerly," and "westerly" "side line" of the lot along Shore 

Drive.

The document of taking states that the town awards damages 

to Luscombe and Morley "as damages to the owners of the land for 

the taking of this easement." The land taken for which damages 

are paid is designated as 144,350 square feet of land, described 

in Certificate No. 3170. Dividing approximately 144,350 by the 

40-foot width of Shore Drive, Luscombe and Morley were 

compensated for the entire approximately 3,600 length of Shore 

Drive west of Nobscussett Road, and the abutting lot owners were 

not compensated. Pare, the owner of Lot 231, was compensated 

for 300 square feet of land that would become an extension of 

Shore Drive. At the time of the taking, Shore Drive ended on 

the west side of Pare's land; the extension ran across his lot. 

Lot 231 was later subdivided into eighteen lots, some of which 

are held by defendants in this case.
29

owners abutting those ways, and then compensated Luscombe and 

Morley, stated to be the owners of the land in the ways that

were taken, for those takings.

Additionally, in 1982, when winding up after all of the 

land had been subdivided and conveyed, Luscombe and Morley 

deeded the ways in the subdivision first to the Nobscussett 

Realty Trust, a family trust, which then deeded the ways to 

James R. Julian and Donald D. Cattanch before the trust was 

terminated.24 The deed conveyed to the trust the fee in numerous 

named ways, and also conveyed the entire fee in all remaining 

unnamed ways in Case No. 647, with the specific exception of the 

six ways leading between waterfront lots to the beach shown on 

Plans B, D, and F.25 Even after the subdivision was complete and 

the other ways had been conveyed expressly to their family 

trust, Luscombe and Morley thus reserved for themselves, and 

presumably their heirs, the fee interest in the ways to the 

beach.

Starting in the 1970s, the deeds to later-conveyed lots 

contain an exclusive reservation of rights in the ways; they 

grant rights of access over the ways shown on a specific plan or 

 

24 The certificate of title to Julian and Cattanch lists 

encumbrances for the takings in Bayview Road, Shore Drive, and 

Common Landing, discussed supra.

25 See Guideline 19 of the Land Court Guidelines on 

Registered Land, Easements, Restrictions, Covenants and Other 

Rights Granted or Reserved in Deed (2009).
30

all plans in the subdivision, and explicitly exclude a fee 

interest. The plaintiffs argue that this is an indication that 

the developers did not intend to retain rights in fees in the 

ways in their conveyances of earlier lots, because they knew how 

to do so and would have done so. 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, which was first enacted in 1971. See 

G. L. c. 185, § 58. Although that 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.

We are not persuaded by the plaintiffs' suggestion that the 

way simply ceased to exist after the conveyance of the fee to 

Aldrich and the Waldrons. That argument would make a nullity of 

a carefully-drafted set of ways on a plan of residential lots, 

leading to the waterfront, with undeveloped land clearly 

indicated across the street from those lots. Under this view, 

the way would exist only during the period when a single lot had 

been conveyed. The second conveyance, on the other side of the 

way, would extinguish the easement in the way explicitly 

conveyed by Luscombe and Morley to Aldrich and the Waldrons.

Based on information available in documents on file with 

the land registration office in Case No. 647, the defendants 
31

have rebutted the common-law presumption that Luscombe and 

Morley intended to convey title to the center line of the way; 

we conclude that the developers intended to convey, as set forth 

in the deeds and certificates of title, rights of access over 

the way to Aldrich and the Waldrons, shared with others. The 

documents show that Luscombe and Morley intended to retain the 

fee in that way and the other ways on the plans filed in Case 

No. 647, and acted consistently with that intent for over forty 

years.

b. Easement rights in the way. Even without a fee in the 

way, the plaintiffs, as easement holders, have an interest in 

preventing use of the way by those without rights of access. In 

addition, all of the defendants seek determinations that they 

are entitled to use of the way. We turn to consideration of 

what rights over the way, if any, are held by the defendants.26

 

26 We note that the Land Court judge determined that certain 

defendants did not hold access rights over the way even where 

their lots appear on the G Plan, and notwithstanding her 

conclusion that Luscombe and Morley intended to convey access 

over the way to all owners of lots on the G Plan, because the 

defendants' certificates of title do not mention easement rights 

over any ways, or because the certificates describe their source 

of title with reference to a certificate for another lot 

appearing on the G Plan, without express mention of the G Plan. 

However, even on registered land, there is no requirement that 

easements appurtenant, benefiting a lot, must be listed on the 

certificate of title. See Duddy v. Mankewich, 75 Mass. App. Ct. 

62, 64 n.6 (2009) (Duddy), quoting Dubinsky v. Cama, 261 Mass. 

47, 56-57 (1927) ("'However desirable it may be that the . . . 

certificate of title should disclose the whole state of the 

title, including all easements appurtenant,' G. L. c. 185 
32

One claiming the benefit of an easement bears the burden of 

proving the existence of that easement on the servient estate. 

Reagan v. Brissey, 446 Mass. 452, 458 (2006); Boudreau v. 

Coleman, 29 Mass. App. Ct. 621, 629 (1990). Where recorded land 

is at issue, it is well established that easements to ways shown 

on a plan may be recognized based on references to that plan in 

a deed. A plan referred to in a deed becomes a part of the 

contract so far as may be necessary to aid in the identification 

of the lots and to determine the rights intended to be conveyed.

Boston Water Power Co. v. Boston, 127 Mass. 374, 376 (1879). 

"'In determining the intent, the entire situation at the time 

the deeds were given must be considered." Goldstein, supra at 

755, quoting Prentiss v. Gloucester, 236 Mass. 36, 52 (1920). 

For land abutting a way, where the deed describes the way as a 

boundary and references a plan showing the way, the grantor's 

intent to convey an easement over the way is assumed. "[A] 

 

requires only easements to which the registered land is subject 

be set out in the certificate of title. Easements [benefiting]

the property need not be noted"). Accordingly, the absence of 

any notice on the certificates of certain defendants benefiting 

their land is without consequence to the analysis here. A 

reasonable purchaser would have discerned the developers' intent 

with regard to all lots on the G Plan. See Duddy, supra at 64, 

67, 68, 69-70 (concluding all of plaintiffs' lots had right of 

access over way, and were burdened by others' rights of access, 

where some plaintiffs' deeds and certificates were silent 

concerning easement rights, some plaintiffs' deeds contained 

grants of access to individual lot owner, and other plaintiffs' 

certificates noted easement rights only for benefit of that 

plaintiff's lot).
33

right of way shown on a plan becomes 'appurtenant to the 

premises conveyed as clearly as if mentioned in the deed.'" 

Duddy, supra at 67, quoting Lagorio v. Lewenberg, 226 Mass. 464, 

466 (1917). Easements to which a registered parcel is subject, 

however, are another matter entirely, and the fundamental issue 

in this case.

i. Land registration act. The purpose of the land 

registration act is to ensure that holders of land registered 

under the act enjoy certainty of title to their property. See 

Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 50 (2007); 

Doyle v. Commonwealth, 444 Mass. 686, 690 (2005); G. L. c. 185, 

§ 57. Every judgment of registration "shall set forth the 

estate of the owner and . . . all particular estates, mortgages, 

easements, liens, attachments and other encumbrances . . . to 

which the land or the owner's estate is subject." G. L. c. 185, 

§ 47. "[E]very plaintiff receiving a certificate of title in 

pursuance of a judgment of registration, and every subsequent 

purchaser of registered land taking a certificate of title for 

value and in good faith, shall hold the same free from all 

encumbrances except those noted on the certificate, and any of 

the [statutorily enumerated] encumbrances which may be 

existing . . . ." G. L. c. 185, § 46.

Thus, for registered land to be burdened by an easement, 

generally the easement must be shown on the certificate of 
34

title. Commonwealth Electric Co. v. MacCardell, 450 Mass. at 

50-51. See Jackson, supra at 711; Tetrault v. Bruscoe, 398 

Mass. 454, 461 (1986); Goldstein, supra at 757; Dubinsky v. 

Cama, 261 Mass. 47, 56-57 (1927). In addition, "[n]o title to 

registered land, or easement or other right therein, in 

derogation of the title of the registered owner, shall be 

acquired by prescription or adverse possession. Nor shall a 

right of way by necessity be implied under a conveyance of 

registered land." G. L. c. 185, § 53.

Nonetheless, with certain limited but important 

distinctions, such as those just noted, registered land is to be 

treated in the same manner, and according to the same legal 

doctrines, that apply to recorded land. See G. L. c. 185, § 77 

(land registration act shall not "change or affect in any way 

any other rights or liabilities created by law and applicable to 

unregistered land, except as expressly provided in this 

chapter"). See, e.g., Goldstein, supra at 755 ("the same 

principles that govern the effect to be given a plan in the case 

of unregistered land apply where the land is registered"); 

Williams Bros. Inc. of Marshfield v. Peck, 81 Mass. App. Ct. 

682, 686 (2012) (registration act only changes common law if 

intent to do so is clearly expressed).
35

ii. First Jackson exception. In Jackson,

27 as here, the 

issue concerned access rights to a beach over a way between two 

waterfront properties in a subdivision comprised of registered 

land. Jackson, 418 Mass. at 705. The certificates of title to 

the waterfront lots did not expressly mention an easement over 

the way in question for the benefit of the inland lot owners. 

Id. at 706. After conducting an examination of other documents 

in the land registration office to determine "whether an express 

easement exists as a result of the references on the [waterfront 

lot owners'] certificates of title to the [w]ay and to plans 

showing the [w]ay," id. at 709, we determined that the plans 

were referenced in the certificates "principally to provide a 

description of the boundaries of the properties," and the way at 

issue was "only generally referenced as marking a boundary." 

Id. at 710. Accordingly, we concluded that no express easement 

existed. Id. at 714.

We recognized, however, that there are two exceptions to 

the general rule that an easement burdening registered land must 

be set forth explicitly on the certificate of title. Under the 

first Jackson exception, "an owner, in limited situations, might 

take his property subject to an easement at the time of 

 

27 The plaintiffs contend that Jackson itself is wrongly 

decided, and urge that we adopt a stringent interpretation of 

G. L. c. 185, §§ 46 and 47, that would eliminate both of the 

Jackson exceptions. We decline this invitation.
36

purchase: (1) if there were facts described on his certificate 

of title which would prompt a reasonable purchaser to 

investigate further other certificates of title, documents, or 

plans in the registration system."28 Id. at 711. We therefore 

proceeded to determine whether, even though the easement for the 

benefit of the inland lot owners was not expressly described on 

the certificate of title, "there were facts described on [the 

waterfront lot owners'] certificate[s] of title which would 

prompt a reasonable purchaser to investigate further other 

certificates of title, documents, or plans in the registration 

system." Id.

We explained that a reasonable purchaser of registered land 

whose certificate of title references a plan "would be expected 

to review that plan." Id. We stated further that 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 712. The 

purchaser would "be expected to examine the certificates of 

other lot owners in the subdivision to determine whether others 

might have an interest in the [w]ay." Id. Because such an 

 

28 The second Jackson exception applies where an owner takes 

possession of registered land with actual knowledge that an 

encumbrance exists. Jackson, supra at 711. None of the parties 

suggests that it has any application here.
37

examination is limited to documents on file in the land 

registration office, it is consistent with the purposes of the 

land registration act.

After examining additional documents in the land 

registration office, including approximately sixty deeds, and 

associated certificates and subdivision plans, we concluded that 

no easement existed because none of the documents referenced an 

easement or a right to use the way in question. Id. at 708, 

710. We observed that

"[a] review of the [inland lot owners'] certificates of 

title would disclose to [the waterfront lot owners] no 

right to use the [w]ay on any certificate. Appurtenant to 

each of the [inland lot owners'] lots is a precisely 

described right to use only those private ways necessary 

for access to that specific lot. Further, as the facts 

disclose, the record is devoid of any indication in other 

certificates of title, and in deeds, of any rights in the

[w]ay. On the contrary, all the documents consistently 

express rights only in private ways considered essential 

for access to the lot being conveyed."

Id. at 712. We accordingly concluded that the grantors 

specifically intended to convey only limited easement rights 

over the particular listed ways necessary for the inland lot 

purchasers to reach their lots, and that the requirement of the 

first Jackson exception had not been satisfied. Id. at 713.

iii. Application of first Jackson exception to Luscombe 

and Morley's conveyances. The plaintiffs maintain that, even if 
38

Jackson and its progeny29 were decided correctly, a reasonable 

 

29 More than twenty years after this court's decision in 

Jackson, and relying on the first Jackson exception, the Appeals 

Court held that a defendant lot owner had easement rights in a 

private way abutting the plaintiffs' registered lots, where the 

plaintiffs' certificates of title contained no explicit 

reference to an easement for the benefit of the defendant. Lane

v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434, 

437-438 (2006) (Lane). In that case, the plaintiffs' lots 

fronted along the private way, and one side of the defendant's 

lot abutted the terminus of the way. Id. at 435. The way 

extended approximately thirty feet inside the defendant's lot, 

then terminated. Id. at 436. One of the plaintiff's 

certificates stated that there was "appurtenant to said land a 

right of way . . . , said right to be exercised in common with 

all others now or hereafter lawfully entitled thereto." Id. at 

438. The other plaintiffs' deed referenced the private way as a 

boundary, and both their deed and their certificate of title 

referred to a subdivision plan filed in the registration office 

of the Land Court. Id. The Appeals Court determined that this 

put the plaintiffs on notice that their property was bounded by 

a way over which others might enjoy a right of access. Id.

Three years later, again relying on the first Jackson

exception, the Appeals Court determined that the plaintiffs' 

lots on registered land, all of which abutted a private road, 

were burdened by easements for access by the defendant lot 

owner, even though none of the certificates of title in the 

plaintiffs' chains of title showed an easement for the benefit 

of the defendant's lot. See Duddy, supra at 66-68, 70 n.13. 

Each of the plaintiffs' deeds described their land as being 

bounded by a private road, and referenced a subdivision plan 

showing that road. Id. at 68. Some of the plaintiffs' deeds 

included a right to access the road for their own use, and some 

plaintiffs' certificates of title included an easement for 

access by the lot owner; for other plaintiffs, neither their 

deeds nor their certificates mentioned easement rights. Id. at 

64. None of the express easements for the plaintiffs' use of 

the road mentioned rights for anyone other than the lot owner. 

Id. at 64-65. The defendant's lot was created on a later plan, 

and abutted the terminus of the same private road, which was 

extended on the later plan into other land that had been owned 

by the developer. Id. at 63, 65. The court concluded that the 

defendant's lot was benefited by a right of access over the 

private road, because the road on the plan creating the 
39

purchaser in the plaintiffs' positions would not have had reason 

to review any documents indicating potential rights of access 

over the way by any of the defendants. The plaintiffs contend 

that the D and F Plans do not include, reference, or incorporate 

the defendants' lots. The plaintiffs maintain that, based on 

their certificates, no reasonable purchaser would have been led 

to review any plans other than the D and F Plans, or any 

certificates of title after the Aldrich and Waldron 

certificates, and thus would not have become aware of any 

documents indicating the existence of rights over the way other 

than to the few waterfront lots shown on the D and F Plans. 

Because, they contend, no reasonable purchaser would have had 

notice of any possible encumbrance over the way, the Land Court 

judge must have relied improperly on a theory of easement by 

estoppel30 in reaching her conclusion that any of the defendants 

 

plaintiffs' lots was shown "as proceeding, open-ended, a 

measurable distance into [the developer's] remaining land" which 

would have required further inquiry. Id. at 67-68.

30 Because the Appeals Court indicated, in both Lane and 

Duddy, that, in those circumstances, the court also would have 

concluded that easement rights existed based on a theory of 

estoppel, we touch briefly on the theory of estoppel in those 

cases. See Duddy, supra at 70, n.13; Lane, supra at 438-439. 

With regard to recorded land, "'when a grantor conveys land 

bounded on a street or way, he and those claiming under him are 

estopped to deny the existence of such street or way, and the 

right thus acquired by the grantee (an easement of way) is not 

only coextensive with the land conveyed, but embraces the entire 

length of the way, as it is then laid out or clearly indicated 

and prescribed.' Casella v. Sneierson, 325 Mass. 85, 89 
40

 

[(1949)], and cases cited. This rule is applicable even if the 

way is not yet in existence, so long as it is contemplated and 

sufficiently designated." Murphy v. Mart Realty of Brockton, 

Inc., 348 Mass. 675, 677-678 (1965) (Murphy). In Lane, supra at 

437, the Appeals Court observed that "undisputed facts" -- the 

plaintiffs' and defendants' deeds and plans, on file in the land 

registration office -- themselves "established" that the 

defendant lot holder had an easement for access over a way 

abutting the plaintiffs' lots. The court noted that its 

conclusion was "not affected by the fact that the plaintiffs' 

titles . . . are registered." Id. at 437. "[T]he estoppel 

giving rise to such an easement occurs by virtue of the language 

in a deed of conveyance, which language refers to the way as a 

boundary." Id. at 439, citing Adams v. Planning Bd. of 

Westwood, 64 Mass. App. Ct. 383, 392 (2005).

It is true that in Jackson, supra at 714 n.7, when 

discussing Goldstein v. Beal, 317 Mass. 750, 755-756 (1945) 

(Goldstein), we noted that "Goldstein explicitly disclaims an 

estoppel theory." This, however, is a description of the 

holding in Goldstein, which focused on the intent of the 

parties. It is not a statement that no easement by estoppel on 

registered land could ever arise. Indeed, in Goldstein, we 

observed that, "in other circumstances a reference to a plan in 

a deed on which a passageway is designated may be sufficient to 

create rights in it." Id. at 756, and cases cited.

That being said, we discern no reason why, in principle, in 

such limited circumstances as in Lane and Duddy, application of 

an estoppel theory to subsequent purchasers would impede the 

purposes of the land registration scheme. In each instance, a 

seller conveyed registered land abutting a way, the conveyance 

described the ways as a boundary, and the deed referenced a 

subdivision plan on file in the land registration office showing 

the way. See Duddy, supra at 63-64; Lane, supra at 435, 438. 

In such circumstances, the deeds and plan necessary to establish 

an easement by estoppel are all documents within the land 

registration system and also make the showing necessary to 

establish the first Jackson exception. We note also that the

Land Court's own guidelines on registered land, setting forth 

rules of construction of deeds, state, "Reference to another 

instrument or plan incorporates that document into the 

description in its entirety." Guideline 2.1.4.2.2(c) of the 

Land Court Guidelines on Registered Land (2009). We make no 

statement, however, concerning other, broader uses of the term 

"estoppel" to include ways other than those abutting the land at 
41

hold access rights over the way.

We do not agree that a reasonable purchaser would have so 

limited the examination. Purchasers are expected to review the 

plan showing the lot in question, and to 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. See Jackson, supra at 711-712; Duddy, supra at 62.

The judge stated that, under the first Jackson exception, a 

purchaser of registered land is required to investigate other 

documents within the land registration system; at the time of 

the plaintiffs' purchases, in 1994 and 1999, the plaintiffs 

would have been bound to investigate the F and D plans 

referenced explicitly on their certificates; a review of those 

plans would have demonstrated the "progression of the 

development" and would have required them to review the deeds 

and certificates underlying the lots contained on the plans 

showing the way; and 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 

 

issue, conveyed by a deed referencing a plan showing those ways. 

See Rahilly v. Addison, 350 Mass. 660, 662 (1966); Casella v. 

Sneierson, 325 Mass. 85, 89 (1949). See also Jackson, supra at 

711, quoting Pearson v. Allen, 151 Mass. 79, 81 (1890).
42

the plaintiffs' certificates. We agree. This is precisely the 

analysis undertaken in Jackson, and an examination of the 

documents in the land registration office supports the judge's 

conclusion.

The Hickey certificate describes their lot as "Lot X on 

Plan 647-F," and the Paglia certificate describes their lot as 

Lot J on Plan 647-D. Both the Aldrich and Waldron deeds grant 

access to all "ways" on their respective plans, and, in the 

Waldron deed, specifically to ways adjacent to lot X. Both 

deeds state that they are bounded by ways on two sides (one 

being the way at issue). Upon a review of the D and F Plans, a 

reasonable purchaser of the plaintiffs' lots would have been 

informed of the existence of the way, connecting to another, 

open-ended, "road," now known as Shore Drive. On the D Plan, 

Shore Drive extends into adjacent land referenced as appearing 

on the G Plan. On the F Plan, Shore Drive extends into land 

referenced as appearing on the D Plan.

A review of the F plan would disclose two other ways to the 

water, between two other sets of lots, virtually identical to 

the way between lots J and X. Viewed together, the three ways 

show a pattern of evenly spaced ways to the water every three or 

four lots, on this small strip of beachfront lots. The D and F 

plans also show the undeveloped land on the inland side of Shore 

Drive across from Lots J and X, also owned by developers 
43

Luscombe and Morley. In addition, there is a road abutting Lot 

F on the eastern side of the D Plan, and then running south from 

Shore Drive, along Luscombe and Morley's undeveloped land, to a 

"town road" parallel to Shore Drive, on the southern edge of the 

D Plan. The north-south road is too long to show in full on the 

D Plan, so a break in the road is indicated, in order to display 

the "town road" on the same page. The "town road" is then shown 

leading, open-ended, west into the middle of Luscombe and 

Morley's undeveloped land. This clearly indicates the intent to 

develop all of Luscombe and Morley's undeveloped land inland 

from Shore Drive to the town road. Thus, even from an 

examination of these two small plans, the network of 

interconnecting ways, and the planned development of other 

inland lots that would make use of the ways, would have been 

immediately apparent.

In addition to the layout of the ways, notations on the 

plans would suggest to a reasonable purchaser that other 

documents in the land registration system might show that others 

had easement rights over the way. The D and F Plans are both 

titled "Subdivision of Part of Land shown on Plan 647A, Filed 

with Cert. of Title No. 16." A notation on each plan states 

that it is a "copy of part of plan" filed in the land 

registration office. On its eastern edge, the D Plan 

specifically references the G Plan. The G Plan includes open-
44

ended ways leading into other land of Luscombe and Morley, 

designated as being part of Certificate No. 3710, that is now 

the M Plan. These references, in addition to the references to 

the developers' Certificate No. 3710, which is included in the 

Aldrich and Waldron certificates31 (and in the Paglia and Hickey 

certificates), would have informed a potential purchaser of the 

extent of the developers' land, and of the set of potentially 

benefited lots.32

A reasonable purchaser, even at the time of the Aldrich 

conveyance, thus would have been aware of the progression of 

development along the waterfront, and the later progression 

inland. This should have alerted a purchaser that there might 

have been others who could have rights, similar to his own 

rights, over the way adjacent to his lot. We conclude that 

these are "facts described on [the] certificate of title which 

would prompt a reasonable purchaser to investigate further other 

 

31 Even at the time of the Aldrich conveyance, when the D 

Plan was created, the B Plan, referenced in Certificate No. 

3710, showed a similar scheme. See note 5, supra.

32 As noted, supra, the Aldrich and Waldron certificates 

both state that the land "is subject to and has the benefit of 

the rights and provisions in [Certificate No. 3710], so far as 

the same are in force and applicable." Among other things, 

Certificate No. 3710 states that its land is "subject to and has 

the benefit of all outstanding rights of way, if any such there 

be . . ." Certificate No. 3710 contains a list of other lots, 

beyond those few waterfront lots shown on the bay side of Shore 

Drive on the D and F Plans; it lists all first deeds out from 

Luscombe and Morley for the entire 217 acre parcel.
45

certificates of title, documents, or plans in the registration 

system," Jackson, supra at 711, including the G and M Plans that 

contain lots inland from Shore Drive and reference each other.33

Based on the above, we conclude that the judge was correct 

in holding that Luscombe and Morley intended to grant access 

over the way to all of the lots on the G Plan, and that the 

defendants in the first and second groups hold access rights 

over the way. See Adams v. Planning Bd. of Westwood, 64 Mass. 

App. Ct. 383, 389 (2005); Boudreau v. Coleman, 29 Mass. App. Ct. 

621, 629, (1990). See, e.g., Reagan v. Brissey, 446 Mass. 452, 

461 (2006) (implied easement rights in parks benefitting lot 

owners in a subdivision); Leahy v. Graveline, 82 Mass. App. Ct. 

144, 148-149 (2012) (beach rights in back lot owners based on 

deeds, plans, and contemporaneous advertisements).

The judge concluded that the remaining lot owners, largely 

the owners in the third group whose certificates contain 

references to the M Plan or derivative portions of that plan, do 

not have easement rights in the way because the plans referenced 

 

33 The plaintiffs argue that a reasonable purchaser should 

look no further than the first deed out from the common 

developer to his predecessor in interest; if that certificate 

shows no reservation of an easement, no other documents need be 

examined. But that is not the case. When conducting an 

investigation of the registration system, "we ask whether there 

were facts . . . available [to the plaintiffs] at the time of

their purchases, that would lead them to discover that their 

propert[ies] were subject to an encumbrance, even if that 

encumbrance was not listed on their certificates of title" 

(emphasis added). Jackson, supra at 711.
46

on their certificates do not show the way and they were not 

granted rights over all ways in Case No. 647. Based on the 

clear intent of the original developers, as indicated in the 

interrelationship of the subdivision plans, the pattern of 

conveyance, the deeds and certificates of title expressly 

granting access to all ways in the Land Court case or to all 

ways on a plan, we conclude that the owners in the third group, 

and most of the unclassified owners, see notes 4 and 26, supra, 

also hold easement rights over the way.

We note first that the judge had before her three "sheets," 

labeled 674M sheets 1, 2, and 3, each showing portions of the 

new lots created on the M Plan. These sheets were stipulated to 

by the parties as being copies of documents filed in the 

Barnstable Registry District. Although the sheets explicitly 

reference the G Plan, they do not show the way itself. An 

examination of the M Plan on file in the land registration 

office,34 however, shows portions of the D, F, and G Plans in the 

 

34 The M Plan on file with the land registration office is 

the plan approved by the Land Court in allowing the subdivision, 

see G. L. c. 185, §§ 1, 10, 26-31, 33, 51, 117, of which this 

court may take judicial notice. See Land Court Manual of 

Instructions for the Survey of Lands and Preparation of Plans 

§ 4.1 (2006). See, e.g., id. at §§ 1.1, 1.2, 1.3, 1.5, 2.1.2.1,

2.1.2.2. See also Guideline 5 of the Land Court Guidelines on 

Registered Land, Approval by the Engineering Department (2009).

In Duddy, supra at 69 n.12, the Appeals Court suggested, 

but did not decide, that for purposes of the documents a 

reasonable purchaser should examine, the original grantees would 
47

northeastern quadrant of the M Plan. The M Plan includes an 

open-ended portion of the way, as well as an open-ended portion 

of the neighboring way to the water between waterfront lots N 

and O. The M Plan also contains an outline of the area of the 

G Plan, to the north of the new lots shown on sheets 1, 2, and 

3. The southernmost set of lots created on the G Plan are 

indicated on the M Plan as open-sided to the north, just as the 

lots on the D and F Plans are indicated as open-sided lots on 

the G Plan. Thus, the M Plan, filed by Luscombe and Morley in 

the land registration office in June, 1947, seven years after 

the filing of the G Plan, clearly establishes their intent to 

treat the M Plan and the G Plan as an interrelated whole, with 

ways leading into Shore Drive and into the ways to the 

waterfront.35

 

be chargeable with notice of documents filed in the Land Court 

registration office in Boston, not just those in the Barnstable 

Registry District. The court noted that the "registration 

system," as defined in the registration act, encompasses 

documents on file in the Land Court, and imputing such notice 

would not impose an undue burden on purchasers of registered 

land. Id.

35 In Rahilly v. Addison, 350 Mass. 660, 662-663 (1966), a 

case involving a petition for registration of a waterfront lot, 

we determined that the defendant inland lot owners held an 

easement for access to a beach over a private way abutting the 

plaintiffs' waterfront lot, where neither the plaintiffs' nor 

the defendants' deeds from a common grantor mentioned an 

easement over the way. Both the plaintiffs' and the defendants' 

deeds, however, contained easement rights to a road paralleling 

the water, which intersected with the private way, as well as 

another road, perpendicular to the shore road, that crossed the 
48

Moreover, simply applying the same rationale as the judge 

used in concluding that defendants with certificates referencing 

all ways on the G Plan have access rights over the way (which 

appeared on the G Plan), all of the defendants whose 

certificates reference access rights over the ways on the M 

Plan, where the way also appears, have access rights over the 

way.

This intent also can be ascertained by examining only the 

three M Plan sheets provided to the judge, which, while showing 

the new lots, do not include as much of the context showing the 

interrelated plans. Nonetheless, each sheet does show ties to 

 

shore road and ended at a different section of the beach. Id. 

at 661-662. We determined the common grantor intended the 

inland lot owners to have access to and use of the beach area, 

and affirmed registration of the plaintiffs' land with the 

encumbrance noted for the inland lot owners' access over the 

private way. Id. at 662-664. The plaintiffs argued, as do the 

plaintiffs here, that their deed was conveyed out from the 

common grantor to their predecessor in title several years 

before the defendants' deeds were conveyed to the defendants' 

predecessors in title, and therefore that the grantor could not 

have intended an easement to benefit any of the defendants. Id. 

at 663. We concluded that the judge was warranted in finding a 

common scheme to benefit all of the lots in the subdivision with 

beach access and use of the beach. Id. at 662-663. "The 

existence of . . . a building scheme . . . [may] show an 

intention that the restrictions imposed upon the several lots 

shall be appurtenant to every other lot in the tract included in 

the scheme." Id., quoting Snow v. Van Dam, 291 Mass. 477, 481

(1935).

This is not contrary to our observation in Jackson, supra

at 711-712, that a reference to a plan laying out a large tract 

would not itself provide each purchaser of a lot on that plan 

with a right of way over every road and way laid down. As noted 

there, intent is paramount.
49

some portion of the D, F, and G Plans, and ways connecting those 

plans. The facts here, and the relationship of the ways on the 

G Plan and the M Plan, are similar, in certain pertinent 

respects, to the circumstances in Duddy, supra at 62-65. There, 

the plaintiffs owned registered lots created on one plan, 

fronting on a private road that provided access to a public way. 

Id. at 63-64. The defendant owned a lot on a later-created plan 

which abutted a later-created portion of that way. Id. at 63, 

65. On the plan creating the plaintiffs' lots, the way was 

shown as open-ended and extending into other land owned by the 

developer of the subdivision. Id. at 68. Some of the 

plaintiffs' certificates of title, and some of their deeds, 

included an express easement granting the plaintiff lot owner a 

right of access over the private road leading to the public way, 

and some did not; others were silent as to any easement over the 

private road. Id. at 64. None of the easements in any of the 

plaintiffs' deeds or certificates mentioned rights over the road 

for the benefit of anyone other than the plaintiff lot holder. 

Id. at 64-65. Nor did any of the certificates or deeds indicate 

that the developer reserved rights in the private road at the 

time he conveyed the lots on the first plan, that he might later 

use to convey easements to as-yet-undeveloped lots on some 

future plan. Id. at 65. In addition, at the time of the 

litigation, the private road existed on the ground only as far 
50

as indicated on the first plan, which did not show the 

defendant's lot. Id.

In concluding nonetheless that the defendant had access 

rights over the private road abutting the plaintiffs' lots, the 

Appeals Court stated that a review of the first plan "would also 

have put these plaintiffs on notice that [the road] continued 

onto [the developer's] remaining land," id. at 68, which he 

later subdivided in the second plan. Id. at 68-70 & n.13. 

Here, similarly, Luscombe and Morley clearly intended that the 

lot holders on the M Plan, like the other lot holders on the 

G Plan, have access rights over the way.

In addition to determining that there were no easements 

over the way for the benefit of the lots created on the M Plan, 

the judge concluded also that most of the defendants who own 

lots created on the later derivative plans do not hold access 

rights over the way. We do not agree. These derivative plans 

show small sections of lots on streets that already existed on 

the G or M Plans. The plans simply reconfigure certain lots 

along an existing way. Each plan shows open-ended ways leading 

off the edges (into the continuation of that road on the G or M 

Plan), and some also show open-ended partial lots, established 

on the G or M Plans, on their boundaries. Plans 647-2, 647-8, 

647-11, 647-13, 647-15, 647-S, and 647-W, in particular, show 

open-ended portions of Shore Drive. Moreover, the titles of 
51

these plans include references stating that they reconfigure 

specific noted lots on earlier plans. Under the reasoning 

applicable to the defendants holding lots on the G and M Plans, 

we conclude that the owners of lots on these plans hold 

easements for access over the way.

3. Conclusion. So much of the judgment of the Land Court 

declaring that the defendants in the first and second groups 

have a right of access over the twenty foot way that runs 

between the plaintiffs' lots from Shore Drive to Cape Cod Bay is 

affirmed. As to the defendants in the third group, and several 

of those who were not classified into any group, the decision 

that they do not hold easements for use of the way is erroneous. 

The case is remanded for entry of an amended judgment declaring 

that the holders of certificates of title nos. 95145, 408557, 

144428, 70287, 77871, 178757, 190559, 190691, 110223, 164891, 

and 179868 also have the benefit of right of access over the 

way.

The remaining portions of the judgment are affirmed.

So ordered.
Appendix.