In Trustees of Boston College v. NCDS of the Sacred Heart, Inc., the Appeals Court addressed each of these questions and provided a comprehensive overview of principles and doctrines commonly invoked by parties in connection with their claims to rights in a way that abuts their property. The case involved the dispute between two schools, Boston College (“BC”) and Boston Academy of the Sacred Heart, which operates Newton Country Day School, (“NCDS”) over property rights in Colby Street, a private road that separates their respective campuses. Both schools acquired their property from the same seller in a joint closing. The deed to BC expressly includes rights to Colby Street whereas the deed to NCDS does not. Although both schools recorded their deed on the same day at the same time, the deed to NCDS appears first, based solely upon the book and page numbers assigned to the two deeds. For nearly fifty years, the parties both used Colby Street without any issue. Tension arose when NCDS planned to build a new athletic facility and sought to use Colby Street for vehicular access to that facility. BC agreed to permit NCDS to use the street, but for emergency access only. In its lawsuit against NCDS, BC maintained that NCDS’s use of Colby Street was not, in fact, limited to emergencies. NCDS also filed suit, seeking a declaration from the Court that it owned half of Colby Street, up to the center line or that it had acquired an easement to use the street. The Land Court entered judgment in favor of BC, holding that the order in which the deeds were recorded was inconsequential and, based upon the plain language of its deed, BC owned all of the street and NCDS had no right to use it. NCDS appealed.
On appeal, NCDS disputed BC’s assertions that it owned all of the rights to Colby Street and NCDS had no right to use it. Invoking the Derelict Fee Statute, G.L. c. 183, § 58, NCDS alleged that it had a fee interest in Colby Street. In the alternative, it alleged that it had an easement right based on two different theories: estoppel and implication. As discussed below, the Appeals Court disagreed with both of NCDS’s arguments and ruled in favor of BC.
The Derelict Fee Statute
The purpose of the Derelict Fee Statute is to determine ownership rights in a private or public way abutting a property when the deed to the property is silent with respect to rights to the way. It often comes into play when an owner, who owns a large piece of land, subdivides the land into separate lots abutting a way (or street), and conveys a lot without any reference to any interest in the way, while retaining the property on the other side of the way. Under the statute, unless the grantor expressly reserves a right to the way to the property it retains, a fee to the center line of the way is automatically included with the sold lot.
In this case, in contrast to the deed to BC, the deed to NCDS did not contain any recitation of rights in NCDS to Colby Street, a fact that NCDS acknowledged. To overcome that undisputed fact, NCDS argued that, since its deed was recorded first, it had priority over BC’s deed pursuant to the Derelict Fee Statute, on the theory that when the NCDS deed was recorded, the seller/grantor still retained rights to Colby Street. The Appeals Court disagreed.
The effective transfer of title and the simultaneous deeds doctrine
The Court found that the order in which the deeds were recorded was immaterial, because title to real property passes not upon the recording of the deed but the delivery of the deed to the grantee. It noted that the purpose of the recording of a deed is simply to give notice to others who would not otherwise have knowledge of the transaction. In the instant case, the deeds to BC and NCDS were delivered simultaneously in a joint closing. Furthermore, the Court noted, both deeds were included in a closing binder that both parties received prior to the closing. Consequently, NCDS had knowledge that title to Colby Street was being transferred to BC at the same time it acquired the adjacent property, and the Derelict Fee Statute did not apply to the transaction.
Even though its reasoning was dispositive of the issue before it, the Court went on to consider the simultaneous deeds doctrine, which provides that when two deeds are executed, delivered and recorded as part of a single simultaneous transaction, the deeds are deemed to have been recorded simultaneously and there is no priority of one deed over the other. Even though NCDS’s deed appears first in the Registry of Deeds’ records, the Court concluded that they were recorded simultaneously based on the circumstances of the closing.
The Court also rejected NCDS’s argument that it had an implied easement or an easement by estoppel over Colby Street.