Trs. of Bos. Coll. v. Bos. Acad. of the Sacred Heart, Inc.

103 Mass.App.Ct. 83

218 N.E.3d 33

TRUSTEES OF BOSTON COLLEGE

v.BOSTON ACADEMY OF THE SACRED HEART, INC. (and a consolidated case¹ ).

No. 22-P-479

Appeals Court of Massachusetts, Suffolk.

Argued February 14, 2023

Decided August 10, 2023

Sander A. Rikleen, Boston (Daniel S. Guenther also present) for the defendant.

Richard A. Oetheimer, Boston (Edwina Clarke also present) for the plaintiff.

Present: Vuono, Sullivan, & Singh, JJ.

VUONO, J.

This case involves a dispute over property rights in a private paved road known as Colby Street or Colby Road (Colby Street or way), which marks the boundary between the campuses of two prominent Catholic institutions, Boston College (BC) and Boston Academy of the Sacred Heart, Inc. (Boston Academy), better known as the Newton Country Day School (NCDS).² The schools acquired their adjoining campuses from a common grantor, Newton College of the Sacred Heart (Newton College), at a joint closing in 1974. Years later, following a dispute regarding NCDS's use of Colby Street to access a new athletic center, BC commenced an action in the Land Court seeking, among other things, a declaratory judgment that it has all right, title, and interest in Colby Street and NCDS has none. NCDS asserted several affirmative defenses and counterclaims primarily contending that it was entitled to a declaratory judgment that it owns Colby Street to its center line pursuant to the derelict fee statute, G. L. c. 183, § 58. As we discuss in more detail later, the basis for this assertion is that although the deeds conveying land to NCDS and BC were recorded at the Middlesex South registry of deeds (registry) on the same day within the same minute, the NCDS deed was recorded first. Alternatively, NCDS claimed that it had acquired an easement to use the way based on three different theories: prescription, estoppel, and implication. In addition, NCDS brought an action in the Superior Court, asserting that BC was liable for breach of the covenants in the warranty deed it had received from Newton College.³

Ultimately, on cross motions for summary judgment, a judge of the Land Court rejected NCDS's arguments and granted summary judgment for BC. He concluded that under the simultaneous deeds doctrine, the order in which the deeds were recorded was inconsequential. He then concluded that based on the plain language of the deed to BC, it was clear that BC owns all rights, title, and interest in Colby Street, and NCDS had no rights to use Colby Street absent permission from BC. The judge also ruled in favor of BC on NCDS's claim for breach of deed warranties. At a jury-waived trial on NCDS's counterclaim that it held a prescriptive easement to use Colby Street, the judge determined that NCDS had not met its burden of establishing a prescriptive easement and entered judgement for BC.⁴ That judgment is not contested on appeal. At the conclusion of the trial, judgment entered on BC's remaining claims for trespass and nuisance. NCDS's appeals from this judgment focusing its arguments on the order allowing BC's motion for summary judgment. We affirm.

Background. We summarize the undisputed facts from the summary judgment record as follows. BC is a charitable corporation that operates a nonprofit educational institution. It owns a parcel of land in the city of Newton, known as the Newton Campus, fronting Centre Street where it maintains its law school, freshman dormitories, student athletic fields, and other facilities. Boston Academy, a religious and charitable corporation, owns an adjacent parcel of land on Centre Street, which abuts the northern boundary of BC's Newton Campus, where it operates the NCDS for girls from grade five through grade twelve. Newton College owned all the property comprising the two campuses prior to June 28, 1974. At that time, as a result of financial difficulties, Newton College had decided to close and to transfer its assets and land separately to BC and NCDS.⁵ It filed a petition for dissolution pursuant to G. L. c. 180, § 11A, and was granted a decree from the Supreme Judicial Court to liquidate all its assets, sell its property, and dissolve. See Newton College of the Sacred Heart vs. Attorney General, Supreme Judicial Court, No. 74-114 (Suffolk County Aug. 20, 1976) (equity action).

The transfer of land occurred at a joint closing on June 28, 1974, in accordance with an interlocutory decree of the Supreme Judicial Court issued in connection with the equity action. All parties were present and represented by experienced legal counsel. Newton College executed and delivered two deeds that divided its property into two parcels. A quitclaim deed to BC conveyed the southern portion of the land (southern parcel) and a warranty deed to NCDS conveyed the northern portion (northern parcel).⁶ Colby Street is a private way that separates the two parcels and runs along the entire southern boundary of NCDS's parcel, and along the entire northern boundary of BC's parcel. As relevant here, the BC deed describes the northern boundary as "running along the northerly side of Colby Street." On its face, this language included the entire paved area and right of way comprising Colby Street. NCDS does not argue otherwise. The BC deed also stated that the parcel was conveyed together "with all of the Grantor's [Newton College's] right, title, and interest, if any, in ... Colby Street." The NCDS deed contains no such language. The southern boundary in the NCDS deed is described as "running along the northerly side of said Colby Street." On its face, this conveyance placed NCDS's southern boundary on the northern edge of Colby Street, with the entirety of the Colby Street pavement and right of way on property conveyed to Boston College.

The two deeds were presented for recording at the registry on the same day and both were recorded at 3:52 P.M. However, at least based on the book and page numbers assigned by the registry, the NCDS deed was recorded first.⁷ While both deeds were referenced in the index of the closing binder, which was prepared by experienced counsel, there was no indication that the deeds were to be recorded in any particular order.

Colby Street has continued to exist as a private way and functions as the boundary line between the two campuses. The street is paved and is separated from the NCDS campus by an eight to ten-foot-wide grassy strip of land and a chain-link fence that runs along the property line for the length of the street (approximately 1,000 feet) with three gates.

For nearly fifty years, BC and NCDS had a collegial and cooperative relationship regarding the use of Colby Street. This cordial relationship became strained when, in 2013, NCDS developed plans to construct a new athletic facility and sought to provide vehicular access to the facility from Colby Street via a new driveway. After BC objected, NCDS revised its plan so that the new driveway to Colby Street would be used only for emergency access. According to BC, when the athletic center opened in 2016, NCDS did not restrict use of the new driveway solely to emergency access. The dispute became acrimonious, and despite attempts for a resolution, both parties filed lawsuits.⁸

As previously noted, the parties cross-moved for summary judgment. Following a hearing, in a comprehensive memorandum of decision, the judge concluded that the two deeds were recorded as part of a single transaction and, applying the simultaneous deeds doctrine, viewed them as having been recorded together. He then determined that the deeds unambiguously gave BC full fee interest in Colby Street. The judge also concluded that NCDS did not raise a triable issue with respect to its claims that it had an easement by estoppel or implication, and that BC was not liable for any breach of deed covenants.

Discussion. "We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, ‘all material facts have been established and the moving party is entitled to judgment as a matter of law’ " (citation omitted). Assad v. Sea Lavender, LLC, 95 Mass. App. Ct. 689, 693, 129 N.E.3d 878 (2019). Where the parties have filed cross motions for summary judgment, "the evidence is viewed in the light most favorable to the party against whom judgment is to enter" (quotation and citation omitted). Winbrook Communication Servs., Inc. v. United States Liab. Ins. Co., 89 Mass. App. Ct. 550, 553, 52 N.E.3d 195 (2016).

1. Effect of the recording of the deeds. NCDS acknowledges that its deed did not specifically include rights in Colby Street. Nonetheless, NCDS argues, as it did in the Land Court, that because its deed was recorded first, at a time when Newton College owned all the land, and the deed did not contain any express exception or reservation of rights to use Colby Street, then, by operation of the derelict fee statute, G. L. c. 183, § 58, it has title to Colby Street from the southern boundary of its property to the center line of Colby Street. Consequently, NCDS claims that it has the right to use the entirety of Colby Street for all purposes.⁹

NCDS's argument founders if, as BC maintains and the judge concluded, the deeds were executed and recorded simultaneously with no intent that they be recorded in any particular order. If this is so, then the NCDS deed should not be given any priority over the deed to BC. Put another way, if the deeds were recorded simultaneously, the derelict fee statute does not apply, because Newton College did not retain any interest in Colby Street at the time of the conveyance. Thus, according to the parties (and the judge), the relevant inquiry is whether the record on summary judgment contains any admissible evidence indicating that the parties intended to record the NCDS deed first. NCDS claims such evidence exists and, therefore, the entry of summary judgment in favor of BC based on an application of the simultaneous deeds doctrine was improper.

BC takes the...