Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 5, 2026 Get Citation Alerts Download PDF Add Note

Hull v. Ferrera

Massachusetts Appeals Court

• Citations: None known

• Docket Number: AC 24-P-1317

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (31.8K)

• PDF

Combined Opinion

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

24-P-1317 Appeals Court

TOWN OF HULL vs. JOHN FERRARA, SECOND, & another.1

No. 24-P-1317.

Suffolk. September 9, 2025. – March 5, 2026.

Present: Rubin, D'Angelo, & Toone, JJ.

Real Property, Ownership, Boundary, Deed, Conveyance. Deed,
Construction. Statute, Construction, Retroactive
application. Practice, Civil, Summary judgment. Way.

Civil action commenced in the Land Court Department on
January 25, 2022.

The case was heard by Kevin T. Smith, J., on motions for
summary judgment.

Nathaniel Stevens (James B. Lampke also present) for town
of Hull.
Adam J. Brodsky for the defendants.

TOONE, J. This case addresses the ownership of part of a

way in the Nantasket Beach area of the town of Hull (the town).

In 2017, the defendants, John Ferrara, II, and Kathleen Ferrara

1 Kathleen Ferrara.
2

(the Ferraras), acquired title by a deed to property comprised

of two parcels. The first parcel is improved with a single-

family dwelling (house lot). The second is unimproved beach

land abutting the Atlantic Ocean (beach lot). The disputed area

is land between the two lots. Approximately sixty-feet long by

fifty-feet wide, the disputed area is part of "Beach Avenue," a

way designated on a subdivision plan recorded in 1885. Unlike

the rest of Beach Avenue, the part that includes the disputed

area is not developed.

In 2022, the town commenced this action in the Land Court

seeking to establish and quiet title to the disputed area. See

G. L. c. 240, §§ 1-5. The Ferraras counterclaimed pursuant to

G. L. c. 240, § 6, alleging that they hold superior title. On

cross motions for summary judgment,2 a judge determined and

declared that the Ferraras hold the fee title to the disputed

area pursuant to the derelict fee statute, G. L. c. 183, § 58,

and the town appealed from the final judgment.3

2 The parties filed cross motions for summary judgment on
the town's complaint and on the Ferraras' counterclaim to quiet
title, but not on the Ferraras' counterclaims for adverse
possession and prescriptive easement.

3 It does not appear that the Ferraras' counterclaims of
adverse possession and prescriptive easement were addressed in
the final judgment due to the judge's resolving of the claim to
quiet title. We express no opinion on these counterclaims on
remand, and the parties have not addressed them on appeal.
3

Based on the undisputed facts, and in light of the Supreme

Judicial Court's ruling in Hobart v. Towle, 220 Mass. 293, 296-

298 (1915), we conclude that the derelict fee statute does not

apply in this case because no "fee interest of the grantor,"

G. L. c. 183, § 58, in the Beach Avenue way was conveyed to the

Ferraras. Rather, the fee in the way was conveyed to another

party in 1887, then to the town in 1913. See Hobart, supra at

297 (concluding that 1887 deed that conveyed ways in Nantasket

previously retained by grantor, including Beach Avenue, was

effective). Grantors cannot convey what they do not own. We

further conclude that the statute is inapplicable for the

additional reason that the town "changed [its] position" in

reliance on the court's decision in Hobart. St. 1971, c. 684,

§ 2. Accordingly, we vacate the judgment and remand for further

proceedings.

Discussion. 1. The derelict fee statute. "When

interpreting a statute, our primary duty is to 'effectuate the

intent of the Legislature in enacting it.'" Concord v.

Rasmussen, 496 Mass. 450, 459-460 (2025), quoting Wallace W. v.

Commonwealth, 482 Mass. 789, 793 (2019). "'To that end, we

begin with the statutory language,' but 'also consider the cause

of [the statute's] enactment, the mischief or imperfection to be

remedied and the main object to be accomplished.'" Concord,

supra at 460, quoting Wallace W., supra.
4

The derelict fee statute was enacted in 1971. See

St. 1971, c. 684, § 2. It provides,

"Every instrument passing title to real estate abutting a
way, whether public or private, . . . shall be construed to
include any fee interest of the grantor in such way, . . .
unless (a) the grantor retains other real estate abutting
such way, . . . in which case, (i) if the retained real
estate is on the same side, the division line between the
land granted and the land retained shall be continued into
such way, . . . as far as the grantor owns, or (ii) if the
retained real estate is on the other side of such way . . .
between the division lines extended, the title conveyed
shall be to the center line of such way . . . as far as the
grantor owns, or (b) the instrument evidences a different
intent by an express exception or reservation and not alone
by bounding by a side line."

G. L. c. 183, § 58.

The purpose of the derelict fee statute "was 'to meet a

situation where a grantor has conveyed away all of his land

abutting a way or stream, but has unknowingly failed to convey

any interest he may have in land under the way or stream, thus

apparently retaining his ownership of a strip of the way or

stream.'" Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 803

(2003), quoting letter of Governor Francis W. Sargent to the

Legislature dated April 9, 1971, 1971 House Doc. No. 5307. The

statute sought to quiet title to these "sundry narrow strips of

land that formed the boundaries of other tracts." Rowley,

supra. Quieting title in this manner has "the salutary effect

of promoting repose; by creating a robust presumption that the

adjacent land owner acquired title to the way, the statute
5

serves to discourage others from trying to search ancient deed

records for 'lost' fee interests upon which a competing claim to

title could be based." Kubic v. Audette, 98 Mass. App. Ct. 289,

302 (2020), S.C., 102 Mass. App. Ct. 228 (2023).

To that end, the derelict fee statute created a new rule of

construction applicable to instruments passing title to real

estate abutting a way. See G. L. c. 183, § 58; Rowley, 438

Mass. at 803-804. At common law, there was a presumption that

"a deed bounding on a way conveys the title to the centre of the

way if the grantor owns so far." Rowley, supra at 803, quoting

Gould v. Wagner, 196 Mass. 270, 275 (1907). The rationale for

this presumption was that a grantor would not usually "intend to

reserve the title in a strip of land, not capable of any

substantial or beneficial use by him, after having parted with

the land by the side of it." Boston v. Richardson, 95 Mass.

146, 153 (1866). However, the common-law presumption "was

rebuttable by evidence, including extrinsic evidence, of the

grantor's contrary intent." Rowley, supra, citing Gould, supra.

As the law evolved, courts developed the construction that

deeds to parcels expressly bounded by a way's side line

evidenced that the grantor intended to retain the fee in the

way. Thus, in McKenzie v. Gleason, 184 Mass. 452, 458 (1904),

the court concluded that a description of a lot in a deed as

"bounded in part by the county road and on its southerly side by
6

the northerly line of the private road" gave the plaintiff "no

title to any part of the [county-road] way, as the boundary is

expressly limited to its side line." In Casella v. Sneirson,

325 Mass. 85, 89 (1949), the court summarized the rule as

follows:

"Ordinarily a deed which bounds the premises 'on' or 'by' a
way with no restricting or controlling words conveys title
to the middle of the way if the way belongs to the grantor.
But the rule is otherwise where the deed describes the
boundary as being 'on' or 'by' the side line of a way.
Such a description ordinarily indicates that the grantor
did not intend to part with title to any portion of the
way" (citations omitted).

By enacting the derelict fee statute, the Legislature

modified this common-law rule of construction in three ways.

See Rowley, 438 Mass. at 803-804. First, the grantor's intent

not to convey to the middle of the way must be expressed in the

instrument of conveyance itself -- "extrinsic evidence may not

be used to prove the grantor's intent to retain the fee to the

way" (citation omitted). Id. at 804. Second, the instrument

must exhibit that contrary intent "by an express exception or

reservation." G. L. c. 183, § 58. Third, describing the

property as "bounding by a side line" does not sufficiently

describe this contrary intent. Id.

The implementing legislation for the derelict fee statute

provides that it took effect on January 1, 1972. St. 1971,

c. 684, § 2. It further provides that the statute
7

"shall apply to instruments executed on and after said
effective date and to instruments executed prior thereto,
except that as to such prior executed instruments this act
shall not apply to land registered and confirmed under the
provisions of [G. L. c. 185] before said effective date or
to the extent that any person or his predecessor in title
has changed his position as a result of a decision of a
court of competent jurisdiction."

St. 1971, c. 684, § 2. The statute thus applies "both

retroactively and prospectively -- except that it [does] not

apply retroactively to previously executed instruments

pertaining to registered land," Conway v. Caragliano, 102 Mass.

App. Ct. 773, 780 (2023), or to land with respect to which a

predecessor in title has changed its position as a result of a

decision of a court of competent jurisdiction.4 St. 1971,

c. 684, § 2.

4 The two noted exceptions to the statute's retroactivity
align with the Legislature's intent to resolve ownership where a
grantor "has conveyed away all of his land abutting a way or
stream, but has unknowingly failed to convey [an] interest he
may have in land under the way or stream." 1971 House Doc. No.
5307. That intent is evident from the original bill, which,
explicitly within the proposed statutory language, excluded
instruments where "any person, or his predecessor in title, has
changed his position in reasonable reliance on different rules
of construction determined by the Supreme Judicial Court prior
to such change." 1971 House Doc. No. 1744. During committee
review, this language was relocated to the uncodified effective
date and applicability language included in the bill. 1971
House Doc. No. 5078. Once at the Governor's desk, the exception
was amended and broadened from conveyances made where there has
been a change in position in reliance on rules of construction
determined by the Supreme Judicial Court, to a change in
position made "as a result of a decision of a court of competent
jurisdiction," as well as to include registered land. 1971
House Doc. No. 5307. Although the statute has been amended
8

1. The 1886 Norwell deeds. In determining whether the

Ferraras own the disputed area of Beach Avenue at issue, the

judge concluded that "the answer lies in the language of the

deeds" by which the trustees of the Nantasket Company conveyed

the properties to Henry Norwell in 1886 (Norwell deeds).

Although we ultimately reach a different conclusion from the

judge, we agree that earlier conveyances in the chain of title

are relevant to the inquiry. Cf. Rowley, 438 Mass. at 801 n.7;

Conway, 102 Mass. App. Ct. at 779.

The following facts are undisputed. An 1885 plan of land

created for the Nantasket Company depicts a portion of a 500-

acre parcel, including the Ferraras' properties -- a "house lot"

and a "beach lot," on either side of the disputed section of

Beach Avenue.5 In 1886, by two separate deeds, the trustees of

the Nantasket Company conveyed the house and beach lots, among

other adjacent properties, to Norwell. The house lot was

described as bounded "Easterly by the Westerly line of Beach

multiple times since its enactment, these exceptions have
consistently been included in the uncodified effective date and
applicability language included in the relevant session laws and
remain in effect. St. 1990, c. 378, § 2; St. 1973, c. 185, § 2;
St. 1971, c. 684, § 2.

5 Although most of Beach Avenue as depicted on the 1885 plan
is presently a well-traveled road from which the town maintains
twenty-two pathways that provide access to the adjacent beach,
the disputed section of Beach Avenue was never improved.
9

Avenue," and the beach lot was described as bounded "Westerly by

the Easterly line of Beach Avenue."

In February 1896, Norwell conveyed the beach lot and the

house lot together in a single deed to Gustavus Damon, repeating

the boundary descriptions as bound by the side lines of Beach

Avenue. The lots were thereafter conveyed together with the

same language to subsequent purchasers in April 1896, 1902,

1907, 1946, 1948, 1951, and 1973. Eventually, in 2017, the

Francine F. Townsend Living Trust conveyed the lots to the

Ferraras.6

1. The judge's application of the derelict fee statute to

the Norwell deeds. In his summary judgment decision, the judge

asked whether each of the 1886 Norwell deeds included the fee to

the center line of the adjacent portion of Beach Avenue, such

that Norwell took title to the disputed property. The answer,

the judge reasoned, depends on which rule of construction is

applied. Both Norwell deeds described the land conveyed as

being "by the . . . line of Beach Avenue." "Under the old

6 The Ferraras' deed describes the beach lot as being
bounded "Westerly by the easterly line of said Beach Avenue"
(i.e., consistently with the Norwell beach lot deed), but
describes the house lot only by reference to lot 1243 on the
1885 plan. Because we conclude that no "fee interest of the
grantor" in the Beach Avenue way was conveyed to the Ferraras,
G. L. c. 183, § 58, we need not decide how the derelict fee
statute would apply to a deed that omitted the "by the line of
Beach Avenue" language of its predecessor deeds.
10

common[-]law rule of interpretation," the judge wrote, "this

description would have resulted in the inference that the

Nantasket Company did not intend to convey its rights in the

ways on the 1885 Plan when it conveyed the land in both Norwell

Deeds." In other words, if the common-law rule applied, Norwell

would not have owned a fee interest in the disputed section of

Beach Avenue. The Ferraras do not argue otherwise on appeal.

The judge concluded, however, that he could not apply that

common-law rule because it had been "superseded" by the rule of

construction set forth in the derelict fee statute. Under that

statutory rule, the judge wrote, the "by the line of Beach

Avenue" language in the deeds "no longer permits" the inference

that "the Nantasket Company did not intend to convey its rights"

in the Beach Avenue way in the Norwell deeds. Rather, the

derelict fee statute "requires the conclusion that the Nantasket

Company conveyed its rights in the ways described in the Norwell

deeds as shown on the 1885 Plan." "As a result," the judge

concluded,

"when Norwell conveyed lots to Gustavus Damon in 1896,
which included what is now the House Lot and Beach Lot,
title to the Disputed Area between them was included by
operation of the Derelict Fee Statute. Thus, every
conveyance of the House Lot and Beach Lot, ending with the
Ferraras, has included title to the Disputed Area."

1. The conveyance of the fee interest in the disputed area

of Beach Avenue. We disagree with the judge's application of
11

the derelict fee statute for a simple reason.7 In determining

whether the derelict fee statute applies to the Ferraras' deeds,

we must focus on the "instrument" that passed title to the

property to the Ferraras (i.e., the 2017 deed) and ask what, if

any "fee interest" the "grantor" (the Francine F. Townsend

Living Trust) had in the abutting way (the disputed area of

Beach Avenue). G. L. c. 183, § 58. See Adams v. Planning Bd.

of Westwood, 64 Mass. App. Ct. 383, 387-389 (2005) (first

examining ownership of fees to determine whether derelict fee

statute affects rights in disputed way).

We cannot determine whether the derelict fee statute

applies to the deeds at hand by retroactively applying the

statutory rule of construction to the 1886 Norwell deeds. That

is because, by the time the house and beach lots were conveyed

to the Ferraras in 2017, the Francine F. Townsend Living Trust

did not have a fee interest in the disputed area. Rather, the

fee interest in Beach Avenue had been conveyed to another party,

Eben D. Jordan, in 1887, the year after the lots were conveyed

to Norwell. The derelict fee statute, enacted eighty-four years

after that, did not operate to undo that conveyance.

7 We review the judge's summary judgment decision de novo.
Nunez v. Syncsort Inc., 496 Mass. 706, 709 (2025).
12

Again, the key facts are undisputed. In 1887, the trustees

of the Nantasket Company conveyed fourteen blocks of lots and

streets to Jordan, by a deed (Jordan deed) expressly excepting

from that conveyance the prior conveyances to Norwell -- i.e.,

the Norwell deeds.8 The parties do not dispute that the various

descriptions in the Jordan deed includes the disputed section of

Beach Avenue. In 1913, the trustees under Jordan's will

conveyed several ways, including Beach Avenue, to the town. It

is from this deed that the town has title to the rest of Beach

Avenue and claims title to the disputed section of Beach Avenue

as well.

Accordingly, it was Jordan -- not Norwell -- to whom the

trustees of the Nantasket Company conveyed the fee in the

disputed section of Beach Avenue. As the judge recognized, the

then existing common-law rule of construction did not support

the inference that the Norwell deeds gave Norwell title to any

part of that way. Rather, because the deeds described the house

8 The Jordan deed identified the remaining land to be
conveyed as,

"all and singular any and every other parcel or parcels of
land situated at Nantasket Beach aforesaid, the title to
which is vested in us as Trustees as aforesaid, including
all such parcels whether of upland, beach or flats, and
whether shown as Lots on Plans or included in the locations
of Streets or of the Nantasket Beach Railroad or whether
strips of beach or parcels of flats except as hereinafter
mentioned."
13

and beach lots as being "by the line of Beach Avenue," Norwell

had "no title to any part" of the way "as the boundary [was]

expressly limited to its side line." McKenzie, 184 Mass. at

458.

1. The Supreme Judicial Court's decision in Hobart v.

Towle. The Supreme Judicial Court's decision in Hobart further

shows how the common-law rule of construction applied to the

Norwell and Jordan deeds. Hobart concerned a petition for

registration of another parcel of land shown on the same

Nantasket Company 1885 plan. See Hobart, 220 Mass. at 296-297.

The petitioner sought to register a portion of her property

abutting the extension of Manomet Avenue; the parties in Hobart

agreed that this extension, although not depicted in the 1885

plan as a roadway, had since become a public way situated

between the properties of the petitioner and the respondents.

See id. at 297.

Examining the same deeds under which the trustees of the

Nantasket Company conveyed out its land to Norwell in 1886 and

to Jordan in 1887,9 the Supreme Judicial Court noted that the

In his summary judgment decision, the judge likewise
9

concluded that Hobart examined the same deeds under which
Nantasket Company conveyed land to Norwell and Jordan. This is
a reasonable conclusion based on the factual narrative
describing the deeds that precedes the opinion of Hobart, 293
Mass. at 293-296.
14

lots of the respondent, who "derive[d] title by deed from

Norwell," were described as "bound[ed] westerly by the easterly

line of Manomet Avenue [as] extended." Id. Citing McKenzie,

184 Mass. at 458, the Hobart court then stated that "[i]t thus

appears that the fee in the extension of the avenue, which they

have since conveyed to the town of Hull, remained in the

grantors" (emphasis added). Hobart, 220 Mass. at 297.

The decision in Hobart thus confirms that, under the then

prevailing common-law rule of construction, the trustees of the

Nantasket Company did not convey its rights in the ways on the

1885 Plan to Norwell in 1886.10 Rather, the company retained its

fee interests in those ways, including the disputed area of

Beach Avenue, until the following year, when it conveyed them to

Jordan. None of the subsequent conveyances of the house and

10The Ferraras dismiss Hobart as irrelevant because it
"applied the common[-]law rule of deed interpretation that has
been superseded by" the derelict fee statute and "would have
been decided differently were it addressed today." That may be
true, assuming that the same facts arose today with respect to
an instrument to which the derelict fee statute actually
applied. We also agree that the judge was not bound to follow
Hobart insofar as the Supreme Judicial Court applied the common-
law rule of construction. Stare decisis does not prevent a
court from departing from a precedent based on a common-law rule
when a statute has superseded that rule. Instead, the
significance of Hobart is the Supreme Judicial Court's
confirmation that, at the relevant times, the fee interests in
the ways on the 1885 Plan had been conveyed to Jordan, then to
the town. That supports the town's argument that it has owned
the disputed area of Beach Avenue since 1913, and that the
Francine F. Townsend Living Trust and the Ferraras never did.
15

beach lots included a fee interest in Beach Avenue, knowingly or

otherwise. See Rowley, 438 Mass. at 802 & n.9, 803.

1. The inapplicability of the derelict fee statute. As a

result, the derelict fee statute has no application to this

case. Like the common-law rule of construction it superseded,

the new statutory rule of construction applies only if the

grantor had a fee interest in the way. See Murphy v. Mart

Realty of Brockton, Inc., 348 Mass. 675, 679-680 (1965), quoting

Crocker v. Cotting, 166 Mass. 183, 185 (1896) (at common law,

"the mention of a way as a boundary in a conveyance of land is

presumed to mean the middle of the way, if the way belongs to

the grantor" [emphasis added]); Adams, 64 Mass. App. Ct. at 389

("since the [grantors] no longer held any interest in the fee of

the disputed way, the derelict fee statute had no effect on the

interests conveyed under the 1959 deed to [plaintiffs'

predecessor in title]"). See also Trustees of Boston College v.

Boston Academy of the Sacred Heart, Inc., 103 Mass. App. Ct. 83,

88 (2023) (derelict fee statute "does not apply" if grantor "did

not retain any interest in [way] at the time of the

conveyance"). Here, no "fee interest of the grantor in [any]

way" was conveyed by the Francine F. Townsend Living Trust to

the Ferraras in 2017. G. L. c. 183, § 58. Rather, the fee

interest in the disputed area of Beach Avenue was conveyed many

years earlier to Jordan, then to the town. Nor is there any
16

need to quiet title to any "sundry narrow strips of land,"

Rowley, 438 Mass. at 803, on the boundaries to the house and

beach lots. At least insofar as the derelict fee statute is

concerned, the Ferraras own their lots to the side lines of

Beach Avenue, and the town owns the way between them. There is

no "lost" or otherwise derelict fee. See Kubic, 98 Mass. App.

Ct. at 302.

The Ferraras contend that the "chain of title proffered by

the Town . . . is based on the erroneous premise that the

Derelict Fee Statute did not apply to the Norwell deeds." They

argue that, because the house and beach lots are recorded, not

registered, land, the statute "applies retroactively to govern

construction of the prior deeds conveying title to those

parcels" (emphasis added). They reiterate the judge's reasoning

that, "by retroactive application of the Derelict Fee statute,"

the trustees of the Nantasket Company "could not have conveyed

the Disputed Area to Jordan in 1887, and Jordan could not have

conveyed it to the Town in 1913 because neither party owned it."

Those purported conveyances were, in the judge's words, "a

nullity."

We disagree. The derelict fee statute applies

retroactively, but it is not a time machine. Consistent with

its implementing legislation and subsequent amendments, we have

applied the statute to instruments for recorded land executed
17

before the 1972 effective date. St. 1990, c. 378, § 2;

St. 1973, c. 185, § 2; St. 1971, c. 684, § 2. See, e.g., Adams,

64 Mass. App. Ct. at 388 (applying statute to 1957 deeds). So

far as we can tell, however, neither we nor any other court has

applied the statute to nullify a pre-1972 conveyance of a fee in

a way executed in accordance with the then applicable common-law

rule of construction. For one thing, such an application of the

statute would disregard its requirement that the grantor who

conveyed the property in the current deed have a fee interest in

the way. G. L. c. 183, § 58. The approach would also dislodge

long vested property rights, such as the town's here, and

undermine the statute's goal of promoting repose in real estate

title. See Kubic, 98 Mass. App. Ct. at 302.11 It is after all

happenstance that this one strip of Beach Avenue is not

developed. By the Ferraras' reasoning, all the roads in

Nantasket conveyed to Jordan in the Jordan deed, then to the

town by Jordan in 1913-- although paved and maintained by the

11We do not deny that, in a different case, the derelict
fee statute may apply retroactively in a way that implicates due
process or other constitutional concerns, although, as a general
principle, where property rights are grounded on a rule of
common law, they "carr[y] with them implicit notice that they
might be modified in the face of changing conditions."
Nantucket Conservation Found., Inc. v. Russell Mgt., Inc., 380
Mass. 212, 217 (1980). Our point here is that neither statutory
text nor purpose supports applying the derelict fee statute in a
manner that nullifies prior conveyances.
18

town and heavily used for traffic -- belong to the neighbors

abutting them. Finally, this approach would raise novel,

perhaps unanswerable questions, such as, who actually owned

Beach Avenue between 1887 and 1972? And what does it mean to

retroactively nullify the conveyance of this property to the

town in 1913, when such conveyance was indisputably lawful at

that time?12

12We respectfully disagree with our dissenting colleague's
argument that our decision in Adams, 64 Mass. App. Ct. at 383 -
389, requires that the derelict fee statute be applied to
nullify the conveyance of the Beach Avenue way to Jordan, then
the town. Post at . In Adams, we concluded that the
defendant (Gobbi), not the plaintiffs (the Adamses), owned the
fee in portions of a roadway abutting the Adamses' lot. Adams,
supra at 383-384, 389, 393. Because a different party (the
Coombses) owned the entire fee in the way before a 1959 exchange
of deeds, we examined the extent to which the statutory rule of
construction applied to those deeds in order to determine "the
rights of the parties to the fee in the disputed way." Id. at
387-389. We concluded that "the derelict fee statute had no
effect on the interests conveyed under the 1959 deed to" the
Adamses' predecessor in title, because the Coombses separately
conveyed the fee in the disputed way to Gobbi's predecessor in
title. Id. at 388-389. That reasoning supports, not
undermines, our holding here. Nor does our holding conflict
with the application of the derelict fee statute in Adams to
deeds that predated its enactment. See post at . We
acknowledge that the statute generally applies to deeds executed
before 1972 and that, even where a property has been
subsequently conveyed, language in a predecessor deed may bear
on how the statute applies now. See Conway, 102 Mass. App. Ct.
at 779. We do not believe, however, that the statute requires
us in this case to consider only the 1886 Norwell deeds, ignore
that the Francine F. Townsend Living Trust conveyed no fee
interest in Beach Avenue to the Ferraras in 2017, or pretend
that the conveyance of the fee in that way to the town never
happened.
19

In the end, we conclude that the Legislature intended the

derelict fee statute to apply in situations where the grantor,

knowingly or not, failed to convey a fee interest it had in the

way, see Rowley, 438 Mass. at 803-804, but not where the fee

interest was conveyed to a different party years earlier.13

1. Change in the town's position in reliance on Hobart.

Lastly, even if the derelict fee statute could otherwise be

applied to undo the express grant to Jordan of the "Streets"

retained by the Nantasket Company and the subsequent conveyance

to the town, we would still conclude that the town owns the fee

interest in the disputed area and the rest of Beach Avenue.14

That is because the derelict fee statute does not apply "to the

extent that any person or his predecessor in title has changed

his position as a result of a decision of a court of competent

jurisdiction." St. 1971, c. 684, § 2. Accord St. 1990, c. 378,

§ 2; St. 1973, c. 185, § 2.

13We note that "'the derelict fee statute pertains only to
the question of ownership of the fee' in a way; it is not
concerned with the existence or nature of any easement rights
there." Kubic, 98 Mass. App. Ct. at 302, quoting Adams, 64
Mass. App. Ct. at 389.

14To be clear, we do not address the Ferraras' claim for
adverse possession, which the judge did not reach in his summary
judgment decision.
20

The Jordan deed specifically conveyed the streets at the

time retained by the grantor, the trustees of the Nantasket

Company. It conveyed,

"all and singular any and every other parcel or parcels of
land situated at Nantasket Beach aforesaid, the title to
which is vested in us as Trustees as aforesaid, including
all such parcels whether of upland, beach or flats, and
whether shown as Lots on Plans or included in the locations
of Streets or of the Nantasket Beach Railroad or whether
strips of beach or parcels of flats except as hereinafter
mentioned" (emphasis added).

As discussed, in 1915, applying the common-law rule of

construction that applied prior to enactment of the derelict fee

statute, the Supreme Judicial Court concluded that, after the

Norwell deeds conveyed the lots, including the house and beach

lots at issue here, "the fee in" the roads described in the

Jordan deed, which "they have since conveyed to the town of

Hull, remained in the grantors." Hobart, 220 Mass. at 297. In

reliance on this decision of a court of undoubtedly competent

jurisdiction, the town "changed [its] position," St. 1971,

c. 684, § 2, with respect to the roads conveyed by Jordan,

including Beach Avenue, by paving and maintaining them for many

years.

In addressing this argument, the Ferraras argue, as they

did below, that there is no evidence of a change in position by

the town with respect to the disputed area. That argument

persuaded the judge, who wrote, "I cannot conclude that the
21

[t]own has changed its position relative to the Disputed Area as

a result of the finding in Hobart." But the question is not

whether the town changed its position with respect to the

disputed area, which is not a separate parcel of land or even a

separate road. It is whether the town changed its position with

respect to the land granted it in the deed from Jordan, i.e.,

all the Nantasket Beach ways conveyed to Jordan in the Jordan

deed and then the town. Indeed, it should be obvious that one

challenging ownership of a way under the change of position

exception cannot eliminate the rights of one who relied on a

prior court decision by selectively challenging ownership only

of bits and pieces of a way that are not developed.

The maintenance and paving of roads conveyed to the town by

Jordan amounts to a change of position by the town in reliance

on the Supreme Judicial Court's decision in Hobart. The land

conveyed by Jordan, including the disputed area, thus falls

within the change of position exception in the statute, and

would be owned by the town regardless of whether the statute was

otherwise applicable.15

15There is also an argument not raised here that the change
of position exception is even broader, something we do not
decide. As described in note 4, supra, during the legislative
process the current exception ("to the extent that any person or
his predecessor in title has changed his position as a result of
a decision of a court of competent jurisdiction") replaced a
clause that excluded instruments where "any person, or his
22

Conclusion. The final judgment entered on August 15, 2024,

is vacated and we remand the matter for proceedings consistent

with this opinion.

So ordered.

predecessor in title, has changed his position in reasonable
reliance on different rules of construction determined by the
Supreme Judicial Court prior to such change." 1971 House Doc.
No. 1744. The change in language may have been intended to
broaden the exception to include reliance on decisions of courts
other than the Supreme Judicial Court and decisions not based on
the prior rule of construction, while leaving in place the
protection of the original version that is not limited to
parcels that happen to have been the subject of previous court
decisions. If that were the case, the town might be entitled to
the benefit of the exception even without Hobart.
D'ANGELO, J. (dissenting). In a well-written decision, the

majority reduces a complex web of facts into a distilled and

clear result: John Ferrara, II, and Kathleen Ferrara (the

Ferraras) do not have title because fee in the disputed way was

conveyed to Jordan (and ultimately the town of Hull) in 1887,

and thus any subsequent purported conveyances of that fee in the

Ferraras' chain of title are of no consequence. Ante at .

However, this result ignores the Legislature's mandate that the

derelict fee statute must be applied retroactively unless one of

the statutory exceptions applies. G. L. c. 183, § 58; St. 1971,

c. 684, § 2.

The majority's straightforward analysis raises an equally

straightforward question: why did the 1886 conveyance to

Norwell (which predates the Jordan conveyance and which, on

application of the derelict fee statute, conveyed fee in the

disputed way) not create the exact opposite result and ground

ownership of the fee in the Ferraras? The majority bypasses

this question in order to reach a statutory interpretation that

is a departure from the statute's plain text, and in so doing

avoids the long-standing doctrine typically relied on to resolve

questions of retroactive application. For these reasons, I

respectfully dissent.

There appears to be no disagreement that, if the derelict

fee statute does apply to the Norwell deeds, those deeds
2

conveyed fee interest in the disputed area to Norwell and

ultimately to the Ferraras. It is undisputed that the Norwell

deeds predate the Jordan deed; that at the time of the Norwell

conveyance, the grantor held title to the disputed area; that

the deeds conveyed the beach lot and the house lot, both

abutting the disputed area, which is a way; that the deeds

evidence no "different intent" sufficient to rebut the

presumption that the grantor intended to convey title to the

center line of the way, G. L. c. 183, § 58; and that the

Legislature directed that courts apply the statutory presumption

retroactively, St. 1971, c. 684, § 2.

Nevertheless, the majority adopts a backwards-facing

approach in resolving whether to apply this presumption

retroactively, beginning with the instrument passing title to

the Ferraras in 2017 and assessing whether the grantor possessed

a fee interest in the disputed area; the majority finds that no

such interest was held, because, working backwards to 1887, "the

fee interest in [the disputed area] had been conveyed to another

party, Eben D. Jordan." Ante at . But this approach

stands in direct contrast to the one adopted by this court in

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

389 (2005), the opinion the majority cites for the proposition

that the court must "first examin[e] ownership of fees to
3

determine whether [the] derelict fee statute affects rights in

disputed way[s]." Ante at .

In Adams, we addressed ownership of the fee interest in a

disputed way amongst the defendant Gobbi and three neighbors

abutting the way. 64 Mass. App. Ct. at 383-386. As the

majority recognizes, ante at , the Adams court began by

determining which party initially held title to the disputed

way, supra at 387-389. Our court noted that the owners of

several lots abutting the way exchanged deeds in 1957, and so it

systematically reviewed each deed in chronological order,

applying the derelict fee statute where the grantor, at the time

of the deed, held title to the disputed way. Id. at 387-388.

As these deeds predated enactment of the statute by fifteen

years, they were framed in reliance on the long standing common-

law presumption in effect at that time; nevertheless, it was the

statute that guided the court's determinations. See id. at 388

("The effect of that deed, under the derelict fee statute, was

to convey to the Franklins the fee in the way abutting that

strip, to the centerline of the way. . . . By operation of the

derelict fee statute, the deed passed to the Mullenses the

interest of the Coombses in the fee of the way abutting lot 2").

After tracing title of the way step-by-step through the

chain of conveyances, the court arrived at the conveyance to

Gobbi's predecessor in interest and from which Gobbi traced his
4

purported title. Id. at 388-389. Thus, only after the court

had analyzed prior deeds in compliance with the retroactive

effect of the derelict fee statute was it positioned to

determine whether the grantor still possessed its fee interest

at the time of the last conveyances. Id.

Applying this approach to the instant case is both simple

and logical. In 1885, the Nantasket Company (Nantasket) held a

fee simple interest over a wide swath of land that included the

house lot, the beach lot, and the disputed area between them.

In 1886, Nantasket conveyed the house lot and the beach lot to

Norwell; the retroactively applicable statutory presumption

dictates that this conveyance also included the disputed area.

Thus, Nantasket's conveyance to Jordan in 1887 (a conveyance

that expressly excluded land previously conveyed to Norwell)

could not include the disputed area. Jordan's subsequent

conveyance to Hull likewise could not include the disputed area,

and the fee interest of that area transferred from Norwell

through several successors in interest until landing with the

Ferraras in 2017.

Instead, the majority takes the unorthodox path of working

backwards, asserting that the 2017 conveyance to the Ferraras

could not have included fee to the disputed area because that

fee was conveyed to Jordan in 1887, reasoning that "the

Legislature intended the derelict fee statute to apply in
5

situations where the grantor, knowingly or not, failed to convey

a fee interest it had in the way . . . but not where the fee

interest was conveyed to a different party years earlier." Ante

at . But this reasoning is paradoxical when used to

justify not applying the statute to the Norwell deeds, a

conveyance "where the grantor, knowingly or not, failed to

convey a fee interest it had in the way," with the result being

that "the fee interest was conveyed to a different party

[Norwell]" a year before the conveyance to Jordan. See ante

at . It stands to reason that applying the statute to

the Norwell conveyance is the precise set of circumstances to

which the Legislature intended the statute to apply.

Furthermore, I note that the Legislature has mandated

retroactive application of the derelict fee statute but for two

specific circumstances: land registered prior to enactment of

the statute and land with respect to which "any person or his

predecessor in title has changed his position as a result of a

decision of a court of competent jurisdiction." St. 1971,

c. 684, § 2. The inclusion of those two exceptions counsels

against intuiting a third. See Commonwealth v. Perry, 455 Mass.

1010, 1011 (2009) ("a general tenet of statutory construction is

that the statutory expression of one thing is an implied

exclusion of other things omitted from the statute" [quotation

and citation omitted]).
6

But even more directly, the derelict fee statute's specific

language makes clear the Legislature's intent, contrary to the

majority's view. "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

intent" (citation omitted). Matter of E.C., 479 Mass. 113, 118

(2018). The majority asks, "[W]hat does it mean to

retroactively nullify the conveyance of this property to the

town in 1913, when such conveyance was indisputably lawful at

that time?" Ante at . Respectfully, the Legislature

enacted a statute designed to supersede a common-law

presumption, expressly providing that describing a lot as

"bounding by a side line," G. L. c. 183, § 58, a phrase that had

long shown an intent not to convey title in the way, see Rowley

v. Massachusetts Elec. Co., 438 Mass. 798, 804 (2002), would now

no longer show such an intent. The inescapable conclusion is

that, by requiring that this new interpretation be applied

retroactively, the Legislature must have expected that formerly

"indisputably lawful" conveyances of interests in ways would be

called into question and potentially "retroactively

nullif[ied]."1 Ante at . This result cannot be in

1 Indeed, as the majority concedes, "as a general principle,
where property rights are grounded on a rule of common law, they
'carr[y] with them implicit notice that they might be modified
in the face of changing conditions.'" Ante at , quoting
7

contravention of legislative intent. See Prudential Ins. Co. of

Am. v. Boston, 369 Mass. 542, 547 (1976) ("It is the function of

the court to construe a statute as written and an event or

contingency for which no provision is made does not justify

judicial legislation").

A final pitfall to the majority's approach is that it is an

end run around the extant procedure for challenging retroactive

application of a statute. "[(R)etroactive] statutes which, on a

balancing of opposing considerations, are deemed to be

unreasonable, are held to be unconstitutional" as violating due

process (quotation and citation omitted). Nantucket

Conservation Found., Inc. v. Russell Mgt., Inc., 380 Mass. 212,

215 (1980). Here, the majority sua sponte constructs an

exception to retroactive application of the statute after musing

that "perhaps unanswerable questions" might otherwise arise

concerning the displacement of long standing property interests.

Ante at . Yet no party here challenged the

constitutionality of application of the statute in these

circumstances, and therefore no briefing was submitted on that

issue.

Nantucket Conservation Found., Inc. v. Russell Mgt., Inc., 380
Mass. 212, 217 (1980).
8

Critically, challenges to retroactivity implicate a "test

of reasonableness" (citation omitted) that the majority has

seemingly avoided. Nantucket Conservation Found., Inc., 380

Mass. at 215. That test demands that the challenging party

"carry a heavy burden" of proving the inequity of retroactive

application, and "[e]very rational presumption is indulged in

favor of the validity of the statute" (quotation and citation

omitted). Id. at 215-216. That burden has neither been alleged

nor met, and the majority employs its own presumption that the

Legislature did not intend the statute to apply as written.

Lastly, Hull's proclaimed reliance on Hobart v. Towle, 220

Mass. 293, 294-298 (1915), cannot be evidenced by claims of

paving and maintaining the roads conveyed by Jordan. See ante

at . Paving and maintaining public roads are municipal

activities independent of fee ownership of the soil under those

ways. See McHugh v. Boston, 173 Mass. 408, 409 (1899) ("The

town, in the distribution of the public burdens, is bound to

maintain that portion of the highway which is within its

territorial limits," regardless of whether it "owns the soil"

[emphases added; citation omitted]). It cannot be that Hull,

which presumably has paved and maintained public roads within

its limits regardless of fee interests, can claim that doing so

on the Jordan roads somehow evinces a unique reliance on the

dicta of a one hundred year old decision.
9

Regardless of our opinions of the wisdom of the derelict

fee statute and the benefits gained by its implementation, the

statute compels finding that the Norwell deeds conveyed the

disputed area and that the Ferraras now hold title. The statute

is clear. To overrule the common law, the Legislature's "intent

to do so [must be] clearly expressed" (quotation and citation

omitted), Brear v. Fagan, 447 Mass. 68, 72 (2006), and it was

here. And to apply such a change retroactively, the

Legislature's "intent [must be] clearly shown," Nantucket

Conservation Found., Inc., 380 Mass. at 214, and it was here.

The Legislature materially changed a long-standing presumption

with retroactive effect; it cannot be that the disruption of

property rights resulting directly from that change is contrary

to the legislative intent. Thus, "[t]he sole issue is whether

the statute falls within the legislative power to enact, not

whether it comports with a court's idea of wise or efficient

legislation." Boston v. Keene Corp., 406 Mass. 301, 305 (1989).

As there has been no challenge raised to the constitutionality

of the statute's retroactive application here, we must simply

accept the authority of the Legislature, apply the statute, and

affirm.