PRISCILLA H. CASE, PRISCILLA CASE GERAGHTY, PAULA H. KING, ALAN KING, RICHARD R. CLEVERLY, DAVID H. CLEVERLY, CYNTHIA MADDOX, and MARY J. HUBBARD v. MICHAEL BEARON, CALEB FRASER, MARTHA J. FRASER, ELIZABETH C. BARRETT, DAVID FRASER, WARD FRASER, and VICKY DENSMORE

This action was filed by Priscilla H. Case, Priscilla Case Geraghty, Paula H. King, Alan King, Richard R. Cleverly, David Cleverly, Cynthia Maddox and Mary J. Hubbard (collectively, “Plaintiffs”) on October 14, 2005 seeking a declaration concerning the rights of the parties in certain parcels of land in North Falmouth. Specifically, plaintiffs seek a ruling that they, as owners of a three-fourths interest in two parcels of property in that town abutting Megansett Harbor and Rand’s Canal, and known as the “Beach Lot” (“Locus”) and a nearby parking area, have a right to the use them and have the right to control the use thereof by others. They deny that the named defendants have any rights to use the beach lot, the roadway leading to it, and the parking area and seek injunctive relief enjoining them from doing so. Defendants disagree.

On April 24, 2006, with another summer approaching, plaintiffs filed a Motion for Preliminary Injunction seeking to enjoin defendants Barrett, Bearon, Fraser and Densmore from entering onto the Beach Lot or the road during the pendency of the litigation. Also filed at that time were affidavits from several of the plaintiffs and a memorandum in support of the motion. On May 11, 2006, defendant Barrett filed an opposition to plaintiffs’ motion and her own Cross Motion for Preliminary Injunction seeking to enjoin the plaintiffs from interfering with her use of the Beach Lot and road. The other defendants also filed oppositions to plaintiffs’ motion. At a hearing on May 12, 2006, plaintiffs withdrew their application for injunctive relief against defendants Barrett and Bearon, having apparently entered into agreements with them, but continued their effort to preclude defendants Fraser and Densmore from using the beach and road. In an Order dated June 8, 2006, this court (Trombly, J.) denied plaintiffs’ motion for preliminary injunction, finding that use of the beach area and road by the defendants during the pendency of the litigation would not cause irreparable harm to the plaintiffs, and ruling also that since use of the beach and road by many of the parties had been ongoing for a considerable time, maintenance of the “status quo” would best be served by denying injunctive relief.

The case has been well-pleaded with the filing of the complaint, answers, counterclaims, and replies to counterclaims. In addition, a case management conference was held and several joint statements filed. On November 14, 2006, the parties took part in a pre-trial conference with the court. At that conference, various agreements were reached between counsel concerning the exhibits and testimony to be introduced at the upcoming trial. A site visit to the locus was scheduled for May 11, 2007 with the trial scheduled to begin in Boston on May 21, 2007.

A site visit to the subject property was, in fact, made by the court and counsel on May 11, 2007. Trial began as scheduled on May 21, 2007 and concluded on May 22, 2007. Court Reporters Karen Smith and Wendy Thomas were appointed and sworn to record the testimony at the two sessions. Three witnesses testified and ninety-six exhibits were introduced into evidence by agreement at the beginning of trial. Several others were introduced as the trial proceeded, for a total of one-hundred and fourteen exhibits. Also filed at that time was an Agreement for Judgment entered into between the plaintiffs and defendant Michael Bearon. [Note 1] As a result of the agreement, neither Bearon nor his counsel took part in the trial.

Introduction.

The history of this dispute can be traced back to James Henry Rand (“Rand”) who, in the 1920's, owned much of the land in the area where the Beach Lot is situated. In this area, he caused to be constructed a canal known as Rand Canal. The Beach Lot abuts the canal and was once owned by Rand. In 1945, following Rand’s death, title to his property passed through various instruments to four of his children. Megansett Shores Corporation, of which two of Rand’s children were officers, deeded parcels of land and a one-fourth interest in the Beach Lot to each of four family members as tenants in common. Specifically, Megansett deeded interests to his three daughters, Mabel Hildreth (“Mabel”), Adelaide Rand Howe (“Adelaide”), and Mary Rand Brainerd (“Mary”), and to his son, Philip Rand (“Philip”). A plan consisting of three sheets, dated December 1, 1945 and recorded at the Barnstable Registry of Deeds in Plan Book 73, delineates the Beach Lot , a road known as Rands Beach Road leading to the beach lot, an adjacent small parking area, and other land in the area. See “Decision Sketch” attached hereto.

There have been several deeds and devises concerning title to the Beach Lot, not surprising given the passage of time and the aging of the four Rand children. By 2000, title to the undivided three-fourths interest in the lot originally granted by Megansett Shores to Mary, Mabel and Philip, had passed to the plaintiffs. However, the one-fourth interest originally granted to Adelaide is not owned by plaintiffs. The current owners of her interest are not parties to this litigation but the defendants claim beach rights through grants from her successors.

Over the years, there have been several other transfer of rights and interests in the Beach Lot which are relevant to this case. The Fraser defendants were given permission to use the Beach Lot by various owners of Adelaide’s one-fourth interest dating back to 1962. Plaintiff Paula H. King granted the Frasers a license to use the Beach Lot from the summer of 2002 through the summer of 2005. Finally, Donald McLean and J. Pepper Frazier, owners of Adelaide’s one-fourth interest in the Beach Lot from 1988 through 1992, granted defendants Bearon, Fraser and Barrett easements appurtenant to use the Beach Lot for “swimming and sunbathing purposes.” Owners of the other three-fourths interest (those presently involved in this suit) did not join in the granting of these purported easements and licenses.

Plaintiffs argue that because owners of three-fourths of the fee in the Beach Lot did not join in the granting of the beach rights, the rights are not valid. Defendants, on the other hand, argue that it was not necessary that all owners join in the granting of the rights. Alternatively, they contend that acquiescence by plaintiffs to defendants’ use of the beach and road for so many years implies a ratification of the rights, or that their beach rights were created either as part of a common scheme or by prescription.

Facts.

Based on the testimony, my observations at the view, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. By a deed dated September 30, 1926 recorded at the Barnstable County Registry of Deeds in Book 440, Page 432, James Henry Rand (“Rand”) transferred numerous parcels of land to the Megansett Shores Corp., which served as the holding company for all of the land he had purchased in Falmouth. [Note 2]

2. Also in 1926, a plan was recorded showing the proposed construction of Rand’s Canal in North Falmouth. This plan (“the 1926 plan”) shows two jetties, only one of which was actually constructed; even that jetty stands in a different location than that shown on the plan. There are also several discrepancies between the 1926 plan and a later plan, drawn in 1945. For example, the 1926 plan shows one channel and does not show a second channel which was actually constructed and shown on the 1945 plan. The 1926 plan is also in error in showing the canal as being narrow when, in fact, it is actually wider. In addition, the sea wall shown on the 1926 plan is in a different location than the wall as shown on the 1945 plan.

3. James Rand, Jr. (“James”), the son of James Henry Rand, built the residence shown as “Spanish House” on the 1945 plan but allowed his father to reside there after his (James’) wife died in childbirth. Rand lived there until he died in 1944.

4. Rand had children other than James, including Mary Rand Brainerd (“Mary”), Adelaide Howe (“Adelaide”), Mabel Hildreth (“Mabel”), and Philip Rand (“Philip”). Adelaide died in 1963, Mary and Mabel died in 1971, and Philip died in 1997.

5. Mabel Hildreth had a daughter, Paula King (“Paula”), who married Dudley King (“Dudley”). Alan King, the son of Paula King and the great grandson of Rand, was born in 1951 and lived with his grandmother Mabel Hildreth (together with Mabel’s husband and Paula) from 1952 until 1960 and from 1964 on. During that period, he used the Beach Lot regularly.

6. The land known as the Beach Lot, bordering Megansett Harbor, is shown as “Lot of Philip S. Rand et al 1.16 acres,” on a plan dated December 1, 1945 and recorded in Plan Book 73 at Page 139 (“The 1945 plan”). The lot is accessed by a way shown as Rands Beach Road. The 1945 plan is actually composed of three sheets recorded sequentially. The three 1945 plans show contiguous areas stretching from the mouth of Rand’s Canal inland to what is now the village of North Falmouth. The attached Decision Sketch was compiled from the 1945 plans.

7. The land shown on the three sheets of the 1945 plans was conveyed by deeds dated December 24, 1945, all granted by Megansett Shores Corporation and recorded sequentially at the Registry of Deeds in Book 639, Page 1 (deed to Philip Rand), Book 639, Page 7 (deed to Mabel Hildreth), Book 639, Page 11 (deed to Adelaide R. Howe), Book 639, Page 16 (deed to Mary Brainerd), and Book 639, Page 20 (deed of the Beach Lot and other land granted jointly to Mabel, Adelaide, Mary and Philip). Each of the five deeds conveyed multiple lots, some of which were located on the three 1945 plans and some of which were not.

8. The Beach Lot was included in the deed granted jointly to the four heirs and recorded at Book 639, Page 20. As a result of this deed, each of the four grantees held an undivided one-fourth interest in the Beach Lot and other land in addition to their individual lots.

9. In the years soon after 1945, three of the four heirs (Philip, Adelaide and Mabel) individually executed what purported to be grants of rights to use the Beach Lot. No such grants were made in connection with the numerous parcels deeded by the four heirs after 1951 and only one after 1948.

10. The parcels shown on the three 1945 plans were typically conveyed thereafter by the four heirs by deeds which referenced the one specific 1945 plan on which that parcel was located, not the other two plans on which it was not shown. For example, a deed conveying a lot on Sheet 1 of the 1945 plan would refer only to Sheet 1, and not to Sheets 2 or 3.

11. A subsequent deed from Philip S. Rand to Dean Fraser and Virgie Anne Fraser referenced only Sheet 3, the deed from Philip to Henry Hall and Christine Hall referenced only Sheet 2, and the deed from Adelaide Howe to Caleb and Martha Fraser in 1962 (Trial Exhibit #95) referenced a new plan prepared by Newell Snow, P.E. in 1962 and listed as a title reference the deed from Megansett Shores Corporation to Adelaide dated December 24, 1945 in Book 639, Page 11. It did not make reference to the 1945 plan.

12. By deed dated March 31, 1971, Mabel conveyed her lot and her one-fourth interest in the Beach Lot to Plaintiffs Priscilla H. Case, Adelaide H. Cleverly and Paula H. King, as tenants in common. Upon Adelaide’s death, her interest passed to Richard Cleverly and David Cleverly.

13. In a deed dated December 30, 1946, Philip Rand conveyed his one-fourth interest in the Beach Lot and his own lot, identified on the 1945 plan as “Lot Philip S. Rand No. 1", to Marnel, Inc. In this deed, he conveyed a one-sixteenth interest in the beach lot to Marnel, Inc., retaining his remaining three-sixteenths interest. The one-sixteenth share in the beach lot was thereafter conveyed by Marnel, Inc. to Tuscbay Properties, Inc. which, in turn, conveyed it to Plaintiffs Priscilla H. Case, Paule H. King and Adelaide H. Cleverly. Philip conveyed his three-sixteenths interest to the same grantees by deed dated May 15, 1973 and recorded in Book 1876, Page 302. Adelaide’s interest passed to her sons Richard and David Cleverly upon her death.

14. By deed recorded on April 30, 1971 in Book 1508, Page 231, Mary Lyman, formerly known as Mary Brainerd, conveyed her one-fourth interest in the Beach Lot to her daughter, Suzanne B. Volkmann. By a deed dated June, 2000 and recorded in Book 13469, Page 37, this interest was conveyed to Priscilla Geraghty, Cynthia Maddox and Mary J. Hubbard (jointly holding a one-third interest in the share conveyed by Volkmann), Richard Cleverly and David Cleverly (also jointly holding a one-third interest) and Alan King (holding a one-third interest), for a consideration of $30,000. At least one of the grantees in this deed is descended from each of James Rand’s daughters. At this point in time, plaintiffs (or their predecessors) were the owners of the three-fourths interest in the Beach Lot in addition to their own respective parcels.

15. Adelaide, the owner of the other one-fourth interest, conveyed her share of the Beach Lot to her daughter, Elizabeth Howe Dunker, by deed recorded on May 29, 1962 in Book 1203, Page 36. Upon Elizabeth’s death, her interest passed to her daughter, Charlotte D. Crocker, who conveyed her interest in the Beach Lot to Donald E. McLean and J. Pepper Frazier, Trustees of the Chester Point Trust, on December 31, 1987 by deed recorded at Book 6131, Page 175.

16. McLean and Frazierer granted a purchase money mortgage to Crocker at the time of purchase which Crocker assigned to Norfolk Holdings, Inc. by instrument dated June 24, 1992 and recorded in Book 8106, Page 233. Norfolk, after taking assignment of the mortgage, executed instruments purporting to subordinate its newly acquired mortgage to various grants of beach rights, and also purported to “re-grant” to the Barretts the same right of use in the Beach Lot which McLean and Frazier had previously purported to grant them. Norfolk subsequently foreclosed the mortgage and purchased the one-fourth interest at a foreclosure sale, as evidenced by a foreclosure deed recorded on October 16, 1992 in Book 8256, Page 222. On that same day, Norfolk conveyed its one-fourth interest to Rands Harbor Limited Partnership (“Rands Harbor”).

17. Beginning in 1993, Rands Harbor deeded out the entirety of its one-fourth interest in the Beach Lot in six separate conveyances, each conveying a 1/24th interest in the Beach Lot. Each of the conveyances of a partial interest in the Beach Lot made by Rands Harbor stated that the conveyance was subject to certain “Grants of Beach Rights” but only “insofar as said Grants may be in force and effect.” By virtue of those deeds and (in one instance) a subsequent deed, the one-fourth interest formerly owned by Adelaide was now owned by the following:

18. None of the above named persons, whose interest in the Beach Lot derives from the share formerly owned by Adelaide, have been named as parties in this action.

19. Plaintiffs own the remaining 18/24th interest in the Beach Lot, as follows:

20. The 1945 deed which divided up the Megansett Shores Property conveyed three other properties jointly to the four Rand heirs: the lot containing the “Spanish House”, the so-called “Tennis Court Lot”, and a lot on the shoreline at the point where Rand’s Canal enters Megansett Harbor, on the opposite shore from the Beach Lot.

21. The so-called “Opposite Shore Lot” is now under private ownership and contains a private residence. The tennis court fell into disrepair in the 1950's and a private home was built on the lot at some time prior to 1997. Mary Hubbard bought out the other heirs’ interest in the Spanish House Lot. The Spanish House was torn down in 1989 and the lot on which it formerly stood now contains a six-lot subdivision which takes up about 80% of the lot. The Spanish House Lot was at one time the subject of a partition action between Philip Rand and Mary Brainerd. Defendant Barrett’s house is located on a portion of the Spanish House Lot.

22. Of the four properties jointly deeded to the four heirs in 1945, the Beach Lot is the only one which has not had a private residence constructed on it.

23. Mabel Hildreth was a realtor who operated a real estate business known as “Hildreth Real Estate.” She was in charge of the Beach Lot until she died in 1971, and created a “Rands Beach Association” for people whom she invited to use the Beach Lot. Owners of the Beach Lot were not members of the association. Mabel would assess and collect membership fees based on the costs incurred for maintaining the Beach Lot. She also issued beach passes to people to whom she had granted permission and gave them keys which enabled them to unlock the gate and chain which had been installed across the road leading to the beach. Mabel died in 1971, and her daughter, Paula King, kept the association functioning through 1973. She invited the same people as had her mother to use the beach, charging them fifty dollars ($50) per season. This would entitle them “and their house guests” to use the beach on conditions set by Paula and her husband. The Frasers and the Barretts became members and paid the fee in 1972 and 1973.

24. Following Mabel’s death in 1971, the Rand family periodically repaired the gate and posted “no trespassing” and “private property” signs on the road and on the Beach Lot. The Association ended, apparently in 1973, after which the gate was locked at all times. Paula and Dudley King kept the Beach Lot records through most of the 1990s, at which time they were passed on to Kerry James Geraghty, the husband of plaintiff Priscilla Case Geraghty. Kerry Geraghty currently manages the Beach Lot for the owners, having done so since the late 1990s. Among his duties are periodically changing the lock on the gate at the intersection of Rands Beach Road and Chester Street and distributing keys to those authorized. Among those to whom he has given keys are the Barretts and the Frasers.

25. There is what has been described as an “obvious” parking area adjacent to the beach lot. The parking area is not as large as it once was, due in part to the growth of beach grass upon it. The conservation commission will not allow the cutting or removal of beach grass. It is clear, however, that the present parking area is the same one delineated on sheet #1 of the 1945 plan and that it will accommodate no more than six to eight cars.

26. As noted above, McLean and Frazier held a one-fourth interest in the Beach Lot from 1987 through October 16, 1992, at which time they lost their interest through a mortgage foreclosure. During their ownership of that partial interest, they purported to grant beach rights for “swimming and sunbathing purposes” to various parties, including Defendants Bearon, Caleb Fraser, Martha J. Fraser. David A. Barrett (now deceased) and Elizabeth Barrett. None of the other owners of the Beach Lot, i.e., those owning the remaining three-fourths interest, joined in these grants.

27. Barrett requested permission from Mabel Hildreth in 1962 to use the beach. Permission was granted and Barrett has regularly and continuously used the beach since then. Plaintiffs were under the impression that the Barretts’ use of the beach was based on this permission, and did not discover until shortly before this litigation began that they also relied on what purported to be a granted easement. Barrett has always been provided with a key to the gate by Geraghty and his predecessor even though she and her late husband have not always been members of the association and have never paid taxes on the lot.

28. Martha Fraser and Caleb Fraser also own a portion of the lot formerly owned by Adelaide. They were friends of various members of the Rand family and were given permission by Adelaide Howe to use the Beach Lot for as long as they lived in their house. They were also given a beach sticker. The Fraser deed makes no mention of any rights to use the Beach Lot. A letter from Adelaide R. Howe, dated March 23, 1962 and addressed to Mr. and Mrs. Caleb Fraser (introduced into evidence as Exhibit No. 110) notified the Frasers that they, their family, and overnight guests could use Rand Beach for a fee of $25 per season. In 1974, Adelaide’s daughter, Elizabeth Howe Dunker, wrote a similar letter to the Frasers permitting them, their family and overnight guests to use the beach “as long as Caleb Fraser and family are living in the property known as Howe Hill House.”

29. On October 1, 1980, Alan King, an attorney and the son of Paula King, wrote to Caleb Fraser telling him that because of certain actions of the Department of Environmental Protection (“DEP”), and specifically because the beach area was to be designated as “a sensitive dune area,” it had become necessary to “terminate” the license which the Frasers had received over the years allowing them to use the beach. The letter went on to instruct Caleb Fraser to “relinquish” the keys he had received but informed him that permission to use the beach would still be granted “on a day to day basis.” In fact, the Frasers continued to use the beach. However, the Rands and the Frasers disagreed as to their reason for doing so: the Rands thought the use was permissive, the Frasers claimed they did so under a perpetual right granted to them.

30. In 2002, Kerry Geraghty sent a license agreement to Caleb Fraser and reminded him that the Rand family did not recognize the validity of the grant of easement which the Frasers had previously received from McLean and Frazier. Caleb Fraser signed the agreement providing in part that the Fraser family could use the beach for a period of one year for “swimming and sunbathing” subject to certain conditions, such as a prohibition against underage drinking. The agreement further provided that the license could be extended on a year to year basis “at the discretion of the Rand Family.”

31. As noted above, Philip Rand conveyed a portion of the land he received in 1945 to Marnel, Inc. by deed dated December 30, 1946. Marnel later conveyed the land to Tuscbay Properties, Inc. in 1956. By mesne conveyances described above, the land came to be owned by Priscilla Case, Paula King, David Cleverly and Richard Cleverly. A portion of this lot near the canal, shown on the attached sketch with “hatched lines”, is not buildable and is used for parking and to get access to the Canal. The Frasers parked cars thereon for four or five years with permission but stopped parking there in 2005. They also kept a skiff on the land for several years with the permission of the lot owners.

32. James Brooks and Victoria Putz at one time requested a key to the gate so they could use Rands Beach Road to access their property. They also used the beach at one time but were later asked not to do so. They no longer use the beach. This court (Piper, J.) ruled in a case filed and decided previously (Land Court Case No. 288354, Brooks et al v. Geraghty et al) that Brooks, Putz, and others owning land within the boundaries of Sheet #1 of the 1945 Plan, including Barrett, have a right to use Rands Beach Road from the gate at Chester Street to the parking lot. This ruling was limited, however, to use of the road and did not relate to use of the beach itself.

Discussion.

Plaintiffs in this case collectively hold an undivided three-fourths interest in the beach lot. Defendants Barrett, Densmore and Fraser, while claiming no ownership interest in the beach, nevertheless claim to have acquired perpetual, transferable rights to use it. They base these claims on several theories, including 1) purported grants from McLean and Frazier, 2) written but unrecorded grants, 3) estoppel due to the fact that some of the original Rand grantees in the 1945 deeds individually granted purported beach rights in the late 1940s and early 1950s, 4) by prescription, 5) by operation of this court’s decision and judgment in the so-called “Brooks/Putz” case, 6) because the Beach Lot was supposedly created by filling in a tidal flat, and 7) because they believe the acts of Rand and Megansett Shores Corporation in the 1945 deeds and plan created a common scheme. I will address these issues seriatim.

Do The Defendants Hold Recorded Grants of Easements ?

The Frasers claim a right to use the beach lot pursuant to recorded documents executed by McLean and Frazier which purport to grant them perpetual rights to use the beach lot for “swimming and sunbathing.” They further contend that these easements run with defendants’ land. This court disagrees, primarily because the grantors of those purported easements did not own the entire fee in the beach and were therefore not entitled to grant such rights.

It is well settled that a grant by one tenant in common which is not of an undivided share but which purports to bind the entire title in the land or in some specified portion of the land, whatever effect it may have against the grantor or his share by estoppel or otherwise, is void or voidable when confronted with the title of a cotenant who has not joined in or ratified the grant. Clapp v. Atwood, 300 Mass. 540 , 542 (1938). See Peabody v. Minot, 24 Pick. 329 , 332 (1834) (“A tenant in common cannot do anything inconsistent with the rights of his co-tenants”). “It has long been the law of this Commonwealth that ‘one tenant may always manage his own estate in any way he pleases, provided he does not injure his cotenants.’” Ladd v. Swanson, 24 Mass. App. Ct. 644 (1987) quoting Peabody, 24 Pick. at 645.

The question to be decided in the instant case is whether the acts of the heirs of Adelaide and her successors in granting permission to third parties to use the beach has caused, and will continue to cause, harm in the future to their cotenants, the plaintiffs. This court concludes that it will. Simply put, what once was a small private beach owned, maintained and used by Rand family members and their guests will now be used by an increased number of strangers. The loss of privacy is just one of the forms this injury will take. Other forms of harm or injury include refuse left on the beach by an increased number of users, a decrease in the number of parking spaces available to family members, and harm caused to the environment by persons walking and driving outside the confines of the beach, road, and parking area.

Did the Frasers acquire perpetual beach rights in letters from Adelaide Howe and her Daughter, Elizabeth Howe Dunker in 1962 and 1974 ?

As noted above, Adelaide Howe wrote to Mr. and Mrs. Caleb Fraser on or about March 23, 1962 notifying them that they, their family members and overnight guests could use Rand Beach for a fee of $25 per season. Adelaide’s daughter, Elizabeth Howe Dunker, who inherited her interest in the beach lot from her mother, wrote a similar letter in 1974 allowing the Frasers and their overnight guests to use the beach “as long as Caleb Fraser and family are living in the property known as Howe Hill House.” Defendants contend that these letters constitute easements which allow the Frasers and their successors to use the beach forever. This court does not agree, concluding that the two letters were, in fact, licenses, and not easements which run with the land. Black’s Law Dictionary (Abridged Sixth Edition, 1991) defines a license as

“[a] personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein, and is ordinarily revocable at the will of the licensor and is not assignable. The permission by competent authority to do an act which, without such permission, would be illegal, a trespass, a tort or otherwise not allowable.”

An easement, by contrast, is defined as

“A right in the owner of one parcel, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner.....An interest in land in and over which it is to be enjoyed, and is distinguishable from a “license” which merely confers personal privilege to do some act on the land.” (Emphasis added).

It is obvious from these definitions that there are vast differences between licenses and easements. Licenses are generally personal and revocable. Easements, on the other hand, are within the statute of frauds and generally run with the land. Except for prescription, they require a more formal written instrument for their creation. They are generally not revocable unless the instrument creating them so provides.

The two letters at issue in this litigation clearly provide that the Frasers can use the beach as long as they reside in their present home and during certain periods of time. They were not formal legal documents and came with a small charge per season, indicating that the permission was being granted for a limited period and would not necessarily be reissued or granted in the future. This court therefore concludes that they constituted licenses, not easements.

Are Plaintiffs Estopped from Denying Defendants’ Claimed Beach Rights ?

There is nothing in the record to lead to the conclusion that plaintiffs, by allowing the Frasers and other defendants to use the beach for many years, are now estopped from denying them such rights. It is in the nature of a license that it is a temporary permission which is revocable and not assignable. Plaintiffs, by charging a seasonal fee and distributing keys to those they invited to use their beach, made it quite clear that any use of the beach was being carried out with their permission for a limited time, for example, while the licensee lives in a certain house.

Have Defendants Established Prescriptive Rights to Use The Beach Lot ?

The Barrett, Densmore and Fraser defendants contend they have established prescriptive rights to use the Beach Lot by virtue of having used it for over twenty years. I do not agree.

A party seeking to establish an easement by prescription must show continuous and uninterrupted, open and notorious, and adverse, but not necessarily exclusive use of the servient estate for a period of not less than twenty years. See G. L.c. 187, § 2; Tucker v. Poch, 321 Mass. 321 ,323 (1947); Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898). “[T]he burden of proof on each and every element” of the claim rests upon the party claiming an easement by prescription. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). See also Ivons Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). “[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under a claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Tucker, 321 Mass. at 324, quoting Truc v. Field, 269 Mass. 524 , 528-529 (1930)(emphasis added).

Several of the defendants in this action claim that they and their predecessors have been using the road and beach for over twenty years. Based on that use, they ask the court to rule that they have established prescriptive rights to continue doing so. There is little dispute that persons other than the plaintiffs have used the beach lot over the years. In fact, there is evidence that some of the plaintiffs themselves granted permission to their friends as far back as the late 1940s and early 1950s. However, mere use for more than twenty years is not sufficient to amount to or constitute prescription or adverse possession. As the name indicates, the use must be adverse in order to establish a prescriptive easement. The use in the instant case was not adverse.

Elizabeth Barrett and her deceased husband, David Barrett, purchased property at 145 Chester Street, North Falmouth in 1962. Barrett purchased an adjoining parcel in 1992 to expand her lot and construct a garage. At the time they purchased their land in 1962, the Barretts were informed by their predecessor in title that they would have rights in the road and beach. However, there was no language to that effect in their deed. Barrett claims that she relied on that statement and asked for and received a beach sticker from Mabel Hildreth in 1962. She has made periodic payments over the years to help pay for maintenance and cleaning of the beach and claims to have continuously used the road and beach from 1962 to date, traveling to the beach on foot, in vehicles, and by boat. She was usually provided with a key by a member of the Rand family which allowed her to open the gate. Based on this use, defendant Barrett contends that she has established prescriptive rights to use the beach, the parking area, and the access road.

Like defendant Barrett, the Frasers claim to have established rights in the beach and access road by virtue of having used them for many years. They first received permission to use the beach from Adelaide Howe, from whom they purchased their home in 1962. They received a beach sticker from Mabel Hildreth at the time, and also received permission in letters in 1962 and 1974 from Adelaide Howe and Elizabeth Dunker, respectively. The Frasers, friends of Rand family members, were included on lists of members of the Rands Beach Association for several years. In 2001, Caleb Fraser signed a license agreement by which he and his family were given permission to use the Beach Lot.

Is it clear from the above that use of the road and beach by defendants Barrett and Fraser and their families and guests was permissive and not adverse. They were invited and allowed to use the beach by the Rands. The mere fact that the person granting the license later dies does not, by itself, cause termination of the license. Neither does the use of property after termination of a license necessarily become adverse at that time. Rather, it is a question of fact to be determined by the court. In this case, I find that the use was continued with the permission of other members of the Rand family. Accordingly, that use did not become adverse such that it would support a claim of prescription. See Tucker, 321 Mass. at 323.

The “Brooks-Putz Case”.

Some (but not all) of the plaintiffs in the present case were named as defendants in the case of James D. Brooks et al v. Kerry James Geraghty et al, Land Court Case No. 288354. This case concerned the issue of whether persons owning land within the boundaries of Sheet #1 of the 1945 plan also have the right to travel on Rands Beach Road. Justice Piper of this court ruled in a Decision and Judgment entered April 6, 2005 they do. Some of the defendants in the present case, and specifically defendant Barrett, seek to rely on Brooks/Putz for their claim of rights to use the beach. However, Justice Piper noted in his decision that the Way at issue in that case “terminates at the parking lot on the Beach Lot, leaving the plaintiffs (Brooks et al) with the record right to proceed that far, but not to the actual beach itself.” (Emphasis added). It follows that Barrett can use Rands Beach Road as far as the parking area but cannot go past that point without the permission of the beach owners.

Was the Beach Lot created by the filling of tidal land ?

Citing the “Colonial Ordinance”, the Fraser defendants contend that since a portion of the beach lot is “filled private tidelands and appears to be, primarily commonwealth tidelands,” they therefore have rights of use and access to it. The Frasers appear to contend that the Beach Lot and other disputed land, including a portion of the lot now owned by plaintiffs Richard and David Cleverly, was created by the placement thereon of fill removed when the Rand Canal was being dug on land where a tidal flat existed prior to 1926. They therefore claim to have rights to make use of the land because of the terms of the Ordinance. [Note 3]

Plaintiffs disagree, contending that no evidence was produced at trial to indicate that the canal was, in fact, constructed in accordance with a 1926 pre-construction plan of Rands Canal, as contended by the Frasers, or that the fill removed during construction was placed on tidal flats. For example, the 1926 plan shows a one-channel canal when, in fact, two channels were constructed. In addition, the 1926 plan shows a jetty and sea wall, neither of which was ever constructed. In short, no evidence was produced to indicate or prove that the Beach Lot or the Cleverly lot were created with fill removed during the construction of the canal on tidal flats.

Did Rand or Megansett Shores create a common scheme in 1945 ?

The defendants also contend that lots shown on the 1945 plan were part of a common scheme of development of Megansett Shores Corp., that Rand Canal itself was part of that scheme, that the Fraser lot is or was within what they refer to as the “Rand Development,” and that pursuant to the common scheme, they are entitled to use the Beach Lot.

The “common scheme” doctrine creates rights of enforcement in lot-owners who would not otherwise hold such rights. “The idea of a common scheme of development is that, if certain uniform encumbrances are inserted in the titles of the preponderance of lots in a subdivision, lots in the subdivision that do not carry the encumbrance in writing in their chains of title will nevertheless be so burdened....Massachusetts decisions take the more limited view that the common scheme arises only when a seller of land binds the vendor’s remaining land with restrictions by means of a writing.” Popponesset Beach Assn. v. Marchillo, 39 Mass. App. Ct. 586 , 590 (1995). Accord: Houghton v. Rizzo, 361 Mass. 635 , 642 (1972)(“if a developer conveys enough lots on a subdivision plan by deeds including uniform restrictions which prove the existence of a uniform or common scheme for the development but without expressly agreeing to insert the same restrictions on later conveyances of other lots on the plan, an agreement to do so may nevertheless be implied and enforced in equity notwithstanding the statute of frauds.”) see Harrod v. Rigelhaupt, 1 Mass. App. Ct. 376 , 378 (1973).

From the above discussion, it is clear that the doctrine of “common scheme” applies to restrictions, and not to affirmative grants of rights, as defendants seek to establish in this action. In an apparent attempt to get around the fact that not all of the owners of the Beach Lot agreed to let others use the beach, defendants contend that the actions of Rand and Megansett Shores in deeding various parcels, plus a one-fourth interest to the Beach Lot, to the four Rand siblings amounted to the creation of a common scheme. In their view, it follows that anyone owning parcels of land included within the four lots sold to the original grantees automatically received rights to use the Beach Lot. This court disagrees.

The 1945 deeds from Megansett Shores were separate instruments. That is, the four grantees each received a deed of a particular parcel of land. Their respective interests in the Beach Lot were conveyed to them in a fifth deed, i.e, not in the same instrument which granted them their individual lots. This fact is strong evidence that there was no common plan or scheme contemplated or intended whereby each parcel would automatically come with beach rights. Clearly, the individual lots and the ownership of the Beach Lot were intended to be kept separate.

Defendants contend that the fact that the lots were shown on a three sheet recorded plan in 1945 indicates an intent to create a common scheme. They also argue that the construction of the Rand Canal is further evidence of such an intent. The court does not agree. The Rand Canal was contemplated before 1926 and was completed long before the 1945 plan was recorded. There was no evidence presented at trial or in the record that either Rand himself or Megansett Shores ever intended to create a so-called “Rand Development” common scheme. All indications are, and I so find, that Megansett Shores was merely a holding corporation for the Rand interests, and was not a development implement.

Defendants, citing Wolfe v. Gormally, 440 Mass. 699 (2004) [Note 4], argue that the facts and circumstances surrounding the establishment of restrictions may be sufficient to show the existence of a common scheme and an individual lot owner’s right to enforce restrictions. They also contend that where land is conveyed by reference to a plan, no “onerous servitude” is created over other land of the grantor shown on the plan where such right is not necessary for the enjoyment of the premises unless shown to be intended by the parties to the deed. That intent, they further contend, must be determined by a consideration of the entire situation at the time of the conveyance. See Bacon v. Onset Bay Grove Ass’n. 241 Mass. 417 , 423 (1922). Defendants conclude that since all of the plaintiffs are successors in title to Megansett Shores, and since all of the parcels of land within the original grants in 1945 were given beach rights, it follows that the beach rights run with the land. As noted above, I do not agree with this conclusion, primarily because the deeds of the individual parcels and of the interests in the Beach Lot were done separately but also because there was no language in any of the instruments which can be construed as being a grant of beach rights. The evidence also indicates that those purchasing the lots in 1945 interpreted the deeds the same way, as indicated by their grants of licenses and forms of permission allowing others to use the beach. They would not have done so if they believed that the persons to whom they granted such permission already had it.

In addition to claiming rights to use the Beach Lot, the Frasers, citing the same arguments, claim in their counterclaims rights to park cars on the portion of the Beach Lot which lies between Rands Beach Road and the canal itself. For the same reasons stated above, this court does not agree with the Frasers’ assertions. Any use made of this area by the Frasers over the years was short-lived and was permissive in any event. The same holds true for claims by the Frasers and Barrett that they have established rights to make use of a portion of the Cleverly parcel to access Rands Canal. Any use they made of the portion of the lot lying between the road and the canal was too short lived to have established rights, prescriptive or otherwise.

Conclusion

I find and rule that none of the named defendants have any rights to enter upon or use any portion of the Beach Lot or the land lying between the Beach Lot and the Rand Canal for any purpose. Nor have they established any rights to use any portion of the Cleverly property. I further rule that an injunction is to enter prohibiting them from doing so. All counterclaims of the defendants are hereby dismissed with prejudice.

Judgment shall enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: August 21, 2008