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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.
