Loiselle v. Hickey , 93 Mass. App. Ct. 644 ( 2018 )

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17-P-1232 Appeals Court
JOHN R. LOISELLE, trustee, 1 & others 2 vs. BRIAN S. HICKEY &
others. 3
1 Of the Loiselle Family Realty Trust.
2 Jane W. Loiselle, as trustee of the Loiselle Family Realty
Trust; Stephen Campe; Karen Campe; Francis Carrick; Jeanne
Carrick; Philip J. Ciaramicoli; Gayle A. Ciaramicoli; Donald F.
Daley, as trustee of the Donald F. Daley Revocable Living Trust;
Thomas Daley; Ursula Daley; Stephen Delvecchio; Marcia
Delvecchio; Virginia L. Devine, as trustee of the Hippogriffe
Road Realty Trust; Joseph A. Donato; Diane Donato; Pamela J.
Driscoll; Robert A Furman and Carole R. Bohn, as trustees of the
Bohn-Furman Realty Trust; Richard A. Giberti; Elaine M. Giberti;
John Gray; Sarah Gray; John A. Hennessey; Susan M. Hennessey;
John F. Howard; Judith S. Howard; Martin J. Jessel; Karen
LaFauci; Lisa M. Swalec, as trustee of the Leroux Family Trust;
Joseph A. Lima and Sue E. Lima, as trustees of the Patriots Way
Realty Trust; LoVerme Bayview Limited Partnership; James G.
Maguire, as personal representative of the estate of Mary H.
Maguire; Paul Maher; Pamela Maher; Linley Mahon, as personal
representative of the estate of Geoffrey L. Mahon; Arthur
Maressa; Maria Marinescu; Sorin Marinescu; Gary McWilliams;
James T. Moshier; Thomas M. O'Hear; Kelly O'Rourke; Richard L.
O’Shea; John Palermo; Kara Palermo; Kenneth Pecore; Mark S.
Pelletier; Patricia M. Pelletier; Lewis Piantedosi; Robert M.
Pierce; Joseph J. Rahal; Mary G. Rahal; Russel A. Robbins; Diane
M. Robbins; Joseph G. Russo; WT Dennis LLC; Christopher P.
Tosti, as trustee of the BPR Irrevocable Trust, sole beneficiary
of the Tosti Realty Trust; Christopher P. Tosti; Christine
Tosti; Andrew Tvirbutas; Catherine Tvirbutas; John J. Walker;
Susan L. Walker; Michelle T. Walker; Kristin M. Walker;
Elizabeth A. Walker; and Roland W. Young.
3 Mary P. Hickey; Lorraine M. Paglia and Robert L. Paglia,
as trustees of the Hay Dennis Realty Trust; Patricia E. Howard
and Jean Howard, as trustees of the Bayview Realty Trust; Shore
2
No. 17-P-1232.
Suffolk. May 3, 2018. - July 27, 2018.
Present: Milkey, Hanlon, & Singh, JJ.
Beach. Easement. Real Property, Registered land: easement,
Beach.
Civil action commenced in the Land Court Department on June
17, 2016.
The case was heard by Alexander H. Sands, III, J., on
motions for summary judgment.
Justin Perrotta for John R. Loiselle & others.
Roland W. Young, pro se.
Sarah A. Turano-Flores for James J. Lepore & others.
Brian M. Hurley (Jeffrey B. Loeb also present) for Brian S.
Hickey & others.
MILKEY, J. This is a dispute between inland and shoreland
owners over rights to use a particular beach in Dennis. The
sixty-nine plaintiffs (inland owners) claim the right to use the
Drive LLC; Barbara G. Wells and Robert Emerson Wells, Jr., as
trustees of the Wells Nominee Trust; Mary E. Howe; Robert W.
Howe, Jr.; Peter A. Schimmel; Michael Andreottola; Susan
Andreottola; Dennis Conservation Trust; Paul W. Eysie; Paul V.
Galvani; Linda A. Galvani; Charlene E. Keady; Joseph A.
Salamone; William A. Sampson; Martha M. Sampson; Peter R.
Daniels, as trustee of the Daniels Nominee Trust; Jane Daryl
Springer, as trustee of the Jane Daryl Springer Residence Trust;
Mark C. Thurman; Wendy C. Thurman; N. Richard Greenfield; Karen
L. Greenfield; Douglas Suliman; Patricia Suliman; James J.
Lepore; Carton R. Copp; Alice A. Copp; and Happiness Association
LLC.
3
intertidal beach area that lies seaward of lots owned by the
thirty-four defendants (shoreland owners). All of the lots are
registered land that originally was part of a 217-acre tract
adjacent to Cape Cod Bay that was subdivided over the course of
the last century. On motions for summary judgment, a Land Court
judge ruled in the shoreland owners' favor, concluding that they
owned the contested portions of the beach (disputed flats), and
that the inland owners' rights to use the disputed flats were
limited to those public rights reserved by the Colonial
Ordinance of 1641-1647. See Michaelson v. Silver Beach
Improvement Assn., Inc., 342 Mass. 251, 253 (1961) (although
land in intertidal zone generally is privately held, it is
subject to certain reserved public rights, typically summarized
as fishing, fowling, and navigation). The judge explained his
ruling in a thoughtful and comprehensive forty-page decision.
We affirm the judgment, while clarifying one ambiguity in it.
Background. As an initial matter, we note that the current
case is a follow-up to Hickey v. Pathways Assn., Inc., 472 Mass.
735 (2015) (Hickey I). That case was a dispute over Hickey Way,
a twenty-foot wide right-of-way that runs from Shore Drive to
Cape Cod Bay in Dennis. Id. at 736. The four shoreland owners
who owned the lots abutting Hickey Way brought that case seeking
to establish that they held the fee interest in Hickey Way and
that the inland owners had no right to use it. Id. at 737. The
4
Supreme Judicial Court ruled in favor of the inland owners.
Specifically, the court held that the original developers had
retained the fee to Hickey Way and had granted the inland owners
rights to use that way. Id. at 753, 761.
Fresh from their victory securing their rights to use
Hickey Way, the inland owners brought the current case seeking
to establish their right to use the disputed flats for all
normal beach purposes (not just for the reserved public rights
of fishing, fowling, and navigation). As the judge aptly put
it, "having been adjudged to hold rights in . . . Hickey Way,
[the inland owners] now seek a ruling as to the scope of their
rights in the area accessed by that way."
We turn next to a summary of the undisputed subsidiary
facts. The original 217-acre tract was registered in 1903 to
Frank B. Tobey. It subsequently was developed in stages, as
depicted in various Land Court plans. 4 The eastern portion of
the Tobey tract -- depicted on the so-called "B plan" 5 -- was
4 We direct the reader's attention to the composite plan set
forth as an appendix to Hickey I, 472 Mass. at 766.
5 The Tobey tract was registered in Land Court case no. 647,
with the original decree plan no. 647-A. Subsequent
developments of the Tobey tract were reflected in plans numbered
647-B, 647-C, etc. Consistent with Land Court practice, we
refer to those plans, respectively, as the "B plan," "C plan,"
and so on. Furthermore, we refer to the lots depicted on those
plans with reference to the letter number of the plan and the
number of the lot assigned to it on that plan. For example, lot
E on plan no. 647-B is referred to as lot B-E.
5
developed first. Although the current litigation does not
directly involve any of the B plan lots, the development of that
area serves as a useful point of comparison. Along the water in
that area was a long but narrow upland beach that was set aside
as a separate lot (beach lot B-E). The B plan lots were
developed so that there would be access ways that ran to beach
lot B-E from a road that paralleled the water (with the access
ways spaced every few lots). The deeds to the fourteen lots
shown on the B plan that lie just to the south of beach lot B-E
describe their northern boundary variously as "by the beach," by
specific reference to beach lot B-E, or both.
The current litigation involves the western portion of the
Tobey tract. As the court observed in Hickey I, 472 Mass. at
740, this area was laid out "in a similar fashion to the earlier
subdivision on the B [p]lan." Thus, access ways ran to Cape Cod
Bay from the road that paralleled the water (again, with the
ways spaced every few lots). However, unlike the eastern
portion, there was not a separately reserved upland beach lot to
which the access ways led. 6 Nor did the deeds or certificates of
title to the shoreland lots in the western portion describe the
6 There was a reserved upland beach lot (depicted as beach
lot E-K) at the far western end of the development, which was
deeded to the town in 1937.
6
northern boundary of those lots as "by the beach." Instead,
each shoreland lot was described as being bounded "by the waters
of Cape Cod Bay" (or similar language).
After the shoreland area of the western portion was
subdivided, the inland lots in that area were developed.
Although most of the deeds or certificates of title for the lots
held by the inland owners reference rights in Hickey Way or the
other reserved ways, none of them references any reserved beach
rights. As discussed further below, there are two owners of
inland lots who are not parties to this case whose deeds do
reference beach rights.
Discussion. 7 As the court did in Hickey I, we begin by
examining whether the shoreland owners hold title to the
disputed flats, and then proceed to examine what easement
rights, if any, the inland owners were granted in that land.
1. Ownership of the disputed flats. "The Colonial
Ordinance of 1641-1647 established that a person holding land
adjacent to the sea shall hold title to the land out to the low
water mark or 100 rods (1,650 feet), whichever is less." Pazolt
7 "We review the grant of summary judgment . . . de novo to
decide 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 a judgment as a matter of
law." Calvao v. Raspallo, 92 Mass. App. Ct. 350, 351–352 (2017)
(quotation omitted). Here, the material facts are not in
dispute.
7
v. Director of Div. of Marine Fisheries, 417 Mass. 565, 570
(1994), citing Boston Waterfront Dev. Corp. v. Commonwealth, 378
Mass. 629, 635 (1979). Although title to the upland portion of
shoreland property can be severed from the title to the flats,
this generally must be done expressly, that is, through the use
of "excluding words." Id. at 570-571, quoting from Commonwealth
v. Roxbury, 9 Gray 451, 524 (1857). Otherwise, the owners of
shoreland property are presumed to own the fee in the adjacent
flats. As explained below, we agree with the judge that the
inland owners have not overcome the presumption that the
disputed flats are owned by the shoreland owners, whose
predecessors in title acquired title to them from the original
developers.
As noted, the shoreland owners' deeds and certificates of
title describe their lots as bounded "by the waters of Cape Cod
Bay," or equivalent language. Under the cases, such language is
interpreted as conveying property to the low water mark.
See Michaelson, 342 Mass. at 260-261 ("[W]ords in a deed such as
'Westerly by Wild Harbor,' or words of similar import, convey
title to the low water mark"); Brown v. Kalicki, 90 Mass. App.
Ct. 534, 535, 538 (2016) (language that land was bounded by
"Nantucket Sound" gave title to low water mark, including with
respect to any accretions). In addition, most of these deeds or
certificates of title note that the property is being held
8
subject to the public rights reserved by the Colonial Ordinance.
Such references would make no sense if the land being conveyed
were bounded by the mean high tide mark, with the fee to the
intertidal area reserved to others. Thus, far from providing
evidence helpful to the inland owners, the deeds and
certificates of title to the shoreland lots support the
shoreland owners' claim that they own title down to the mean low
water mark.
In trying to argue that that the fee in the disputed flats
nevertheless was reserved by the original developers, the inland
owners seek support in the rulings that the Supreme Judicial
Court made in Hickey I with respect to the fee in Hickey Way.
This analogy does not aid them. In Hickey I, the court relied,
in great part, on the fact that the deed and certificates of
title to the relevant shoreland lots referenced Hickey Way as
the side boundary to those lots and also gave the shoreland
owners themselves the right to use Hickey Way for access
(something that would have been unnecessary if the original
developers had intended to convey title to Hickey Way). Hickey
I, 472 Mass. at 748. In the case before us, the inland owners
cannot raise any similar textual arguments based on the language
in the deeds or certificates of title to the shoreland lots.
Similarly, any comparisons to the development of the
eastern portion of the Tobey tract also do not aid the inland
9
owners' case. While there are some broad similarities as to how
the two portions of the Tobey tract were developed, there are
also some important distinctions. Most significantly, as noted,
there was an upland beach in the eastern portion that the
original developers carved out as a separate lot, with the lots
immediately to the south of the beach lot denoted as being
bounded by that beach. With respect to the western portion, the
inland owners cannot point to any evidence in the deeds or
certificates of title to the lots owned by the litigants -- or
in the plans that document the progression of the development of
the western portion -- that evince that the original developers
intended to carve out a beach lot comparable to the one on the
eastern side. 8 See Labounty v. Vickers, 352 Mass. 337, 349
(1967) ("A person examining [the relevant] plan could reasonably
discern that [an access] easement [to the water] had been
reserved[,] . . . [b]ut there is nothing on the plan to show
that the beach area [on either side] of the strip was similarly
reserved"). Comparisons to the development of the eastern
8 In fact, at least at the current time, there does not
appear to be any upland beach shoreward of the steep coastal
bank that parallels the water on the western portion. As a
result, the "beach" in dispute lies entirely in the intertidal
area.
10
portion of the Tobey tract therefore hurt, rather than help, the
inland owners' case. 9
The only robust evidence that the inland owners have
identified in support of their claim that the original
developers might have intended to retain the fee in the disputed
flats for use as a communal beach comes from the deeds to two
inland lots (lots H-A2 and H-A3), whose owners are not parties
to this litigation. Specifically, the deeds to those two lots -
- which were the first granted by the original developers for
inland lots in the western portion of the Tobey tract --
purported to convey the right to use a beach owned by the
developers, referenced in one of the deeds as "the beach
reserved by the grantors for use of the lot owners in this
development." However, which beach was being referenced in
those deeds is not at all clear. Given the lack of any other
indication that the original developers at that point still
owned a separate beach lot carved out on the western portion of
the Tobey tract, the judge concluded that the unidentified beach
9 There was, for a brief period, a small private upland
beach lot that the original developers had reserved at the far
western edge of the western portion of the tract (deeded to the
town in 1937). See note 6, supra. If anything, the developers
having carved out that beach lot further undercuts the inland
owners' argument that they implicitly retained the fee to the
disputed flats (which lie just to the east of the reserved
upland beach lot).
11
referenced in the two deeds was likely beach lot B-E (the long,
private demarcated upland beach created on the eastern portion
of the tract). 10 In any event, whatever beach rights were
conveyed to the owners of lots H-A2 and H-A3 (an issue not
resolved by the current litigation), we agree with the judge
that the two deeds in question are not enough to overcome the
presumption that the shoreland owners acquired the fee in the
disputed flats. We turn next to the inland owners' claim that
they nevertheless hold an easement to use the disputed flats for
general beach purposes.
2. Alleged easements in the disputed flats. It is
undisputed that the certificates of title to the shoreland lots
(which include the disputed flats) make no reference to beach
rights held by others (other than to those public rights
reserved by the Colonial Ordinance). That fact alone
presumptively negates the inland owners' claim that they own
such rights. See Hickey I, 472 Mass. at 754 ("[F]or registered
land to be burdened by an easement, generally the easement must
be shown on the certificate of title"). However, "there are two
10As noted, an upland beach lot had been set aside on the
western portion of the tract, but that lot already had been
transferred to the town in 1937, three years before the first
two inland lots had been deeded out. See note 6, supra. As of
1940, the original owners also had sold most, but not all, of
the shoreland lots.
12
exceptions to th[is] general rule." Id. at 755, citing Jackson
v. Knott, 418 Mass. 704, 711 (1994). The inland owners argue
that the first exception recognized by Jackson applies. 11
Under the first Jackson exception, even where the
certificate of title does not show an easement, courts
nevertheless can find registered land impressed with an easement
if a review of the certificate revealed facts "which would
prompt a reasonable purchaser to investigate further other
certificates of title, documents, or plans in the registration
system" that memorialized such an easement. Hickey I, at 755-
756, citing Jackson, 418 Mass. at 711. However, even if we
assumed arguendo that a reasonable purchaser of the shoreland
lots somehow was put on notice that he or she should investigate
further whether other documents in the registration system
reflected an intent to reserve beach rights easements in the
disputed flats, a review of those documents would not actually
reflect such an intent. 12 As noted, while many of the deeds or
11"The second Jackson exception applies where the owner
takes possession of registered land with actual knowledge that
an encumbrance exists." Hickey I, 472 Mass. at 756 n.28, citing
Jackson, 418 Mass. at 711. The inland owners make no claim that
this exception applies.
12We pass over the question of whether, even had the
original owners intended to grant the inland owners an easement
in the disputed flats, the original developers reserved the
right to grant such easements.
13
certificates of title to the inland owners' lots reference
rights to use Hickey Way and the other access ways, none
references a right to use the disputed flats. Compare Anderson
v. DeVries, 326 Mass. 127, 129, 134 (1950), overruled on other
grounds by M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004)
(inland owners held to have beach rights where certificates of
title of both inland and shore properties referenced access
easement "to the beach" and where "[t]he chief inducement for
the purchase of [the inland parcels] was the right to use the
beach for swimming, bathing, and sun bathing"); Houghton
v. Johnson, 71 Mass. App. Ct. 825, 834-835 (2008) (even as to
nonregistered land, reservation of recorded right of way
"leading to the beach," without more, held insufficient to
support implied easement to use privately held beach outside of
right of way).
Once again, the inland owners seek to invoke the deeds to
lots H-A2 and H-A3 to support their claim that they have beach
rights in the disputed flats even though the certificates of
title to the shoreland lots make no reference to such rights.
As already noted, however, it is far from clear that the
particular beach referenced in those deeds is the one comprised
of the disputed flats. In any event, as the judge aptly
observed, "[e]ven if the inference could be made that [the H-A2
and H-A3 deeds] referred to the [d]isputed [f]lats, there is
14
nothing in the record indicating that [the inland owners'] lots
were intended to be benefitted by these conveyances, which
represent outliers among the thousands of deeds to hundreds of
lots within the Tobey [t]ract." 13
The inland owners are left to argue that their easements to
use Hickey Way and the other access ways to reach the intertidal
area necessarily indicate the original developers' intent that
the inland owners be able to use the entire intertidal beach
area for general beach purposes. It makes no sense, they argue,
for the original developers to have created a system of access
ways for the benefit of the inland owners unless such owners
thereby acquired significantly greater rights than the public at
large. They maintain that because members of the general public
can access a public beach down the road, and additionally have
the right to undertake fishing, fowling, and navigation in
privately held intertidal areas, then it must follow that the
original developers intended the inland owners to be able to
spread out onto the entire beach area and use it for all normal
beach purposes.
13The judge was careful to note that he was making "no
ruling as to whether the owners of [l]ots H-A2 and/or H-A3 (who
are not parties to this case) have any rights in the [d]isputed
[f]lats, nor as to the scope of those rights, if any."
15
We are unpersuaded. Through the easements they hold in
Hickey Way and the other access ways, the inland owners enjoy
significant rights not possessed by the general public. For
example, the inland owners can use the access ways closer to
their homes and not have to walk down to the public ways to
access Cape Cod Bay and the disputed flats. In addition, as we
note infra, there is nothing in the undisputed facts to indicate
that the inland owners necessarily would be limited to fishing,
fowling, and navigation within those portions of the intertidal
area that lie within the corridors of the access ways
themselves. Simply put, holding that the inland owners never
obtained rights to use the disputed flats for general beach
purposes does not render their rights in the access ways so
"worthless" that we must draw a contrary conclusion. In sum, we
agree with the judge's conclusion that the first Jackson
exception does not apply, and that there is no other basis for
inferring the existence of easements that do not appear on the
certificates of title to the shoreland lots.
3. Ambiguity in the judgment. We are not quite done,
because it is appropriate that we address a facial ambiguity in
the judgment, lest our affirmance of it be misunderstood. 14
14We raised this issue sua sponte in an order issued prior
to oral argument.
16
Before turning to that language, we briefly review the overall
scope of the current litigation.
The case before us has always been about whether the inland
owners could use the disputed flats for general beach purposes,
and not just for fishing, fowling, and navigation. The portions
of the intertidal beach that lie within the access ways
themselves are not part of the disputed flats, because title to
them is not held by the shoreland owners but instead by the
unidentified heirs of the original developers (who, like the
shoreland owners, presumably hold title down to the low water
mark). See Hickey I, 472 Mass. at 753. 15 Accordingly, the
extent of the inland owners' rights to use the access ways was
implicated in the current litigation only to the extent that it
bore on any rights they claimed in the disputed flats. The
extent of their rights to use the beach area lying within the
boundaries of the access ways was not at issue in this case. 16
15Strictly speaking, Hickey I addressed only Hickey Way,
not the other two private access ways at issue, but the court's
reasoning would appear to apply equally to all of the ways in
question.
16In yet another Land Court action -- which has been stayed
pending the outcome of the current appeal -- two of the
shoreland owners are seeking to litigate the scope of the inland
owners' rights to use Hickey Way, the largest of the three
access ways. Hickey vs. Pathways Association, Inc., Land Court
No. 16 MISC 000123. Those same owners also brought a Superior
Court action challenging the inland owners' efforts to construct
a walkway over Hickey Way. We today have separately resolved
their appeal of the dismissal of that action for lack of
17
The judge's well-crafted memorandum of decision is fully
consistent with the scope of the litigation. Despite the length
of that memorandum, there is nothing therein to suggest that the
judge was adjudicating the extent of the inland owners' rights
to use the access ways themselves. With one potential
exception, the terms of the judgment he entered are also
consistent with this scope. Thus, the judgment recites that it
adjudged "that [the shoreland owners] own the portions of the
[d]isputed [f]lats adjacent to their respective properties, and
. . . that [the inland owners] have no rights in the [d]isputed
[f]lats other than their Colonial Ordinance Rights." The
potential exception involves a provision in the judgment that
"ORDERED and ADJUDGED that [the inland owners'] rights in the
[referenced access] ways are limited to the use thereof to
access the [d]isputed [f]lats solely for the purpose of
exercising their Colonial Ordinance Rights" (footnote omitted).
Read literally, this phrasing could be taken as saying that the
inland owners have no rights to use the access ways themselves
for any purpose other than those reserved by the Colonial
Ordinance (that is, fishing, fowling, and navigation). We
reject this interpretation, which would resolve issues outside
the scope of this litigation and would be unsupported by -- and
standing. See Hickey v. Conservation Commn. of Dennis, 93 Mass.
App. Ct. (2018).
18
indeed inconsistent with -- the judge's memorandum of decision. 17
Instead, we interpret the provision as meaning -- as we believe
the judge intended -- that while the access ways provide the
inland owners the right to gain access to the disputed flats,
they may gain such access only to exercise the rights reserved
by the Colonial Ordinance. We leave to another day resolution
of the scope of the inland owners' rights to use the access ways
themselves.
Judgment affirmed.
17We note, for example, that even though the Colonial
Ordinance did not reserve for the public a right to cross
privately held flats to bathe in the sea, see Butler v. Attorney
Gen., 195 Mass. 79, 83 (1907), the inland owners here may well
have the right to use the access ways here to do so (as the
attorney for one of the main group of shoreland owners
acknowledged at oral argument). Cf. Anderson, 326 Mass. at 133
(rights in pedestrian access way did not terminate at high water
mark but necessarily included rights to access water for bathing
and swimming).