Plaintiffs James and Irene Kane (the "Kanes"), Donald and Geraldine Mann (the "Manns"), and the Crow Point Community Club filed their unverified Complaint and Jury Demand with the Plymouth Superior Court (Case Number PLCV2004-00828) on June 29, 2004, seeking a declaratory judgment as to deeded rights of access to Melville Walk, a private way, and a prescriptive easement in Melville Walk. [Note 4] Petitioners Michael Donahue and Mary R. Donahue (the "Donahues") filed their unverified Complaint for Registration of Title pursuant to G. L. c. 185, § 26 (Registration Case No. 43381) with the Land Court on July 23, 2004, relative to land located at 2 Alice Walk, Hingham, MA (the "Donahue Property"). On the same day, Petitioner Amyra O'Connell ("O'Connell") filed her unverified Complaint for Registration of Title pursuant to G. L. c. 185, § 26 (Registration Case No. 43382) with the Land Court relative to land located at 143 Downer Avenue, Hingham, MA. (the "O'Connell Property"), and Petitioners Robert C. Stimson and Cynthia J. Stimson (the "Stimsons") filed their unverified Complaint for Registration of Title pursuant to G. L. c. 185, § 26 (Registration Case No. 43383) (together with Registration Case Nos. 43381 and 43382, the "Registration Cases") with the Land Court relative to land located at 5 Melville Walk in Hingham, MA (the "Stimson Property"). The Donahue Property, the O'Connell Property, and the Stimson Property all abut Melville Walk. On August 30, 2004, title to the properties involved in the Registration Cases was referred to Land Court Title Examiner Jan E. Dabrowski, who filed his report on July 11, 2005. On October 18, 2004, the Plymouth Superior Court Case was transferred to the Land Court as Miscellaneous Case No. 302869 (the "Miscellaneous Case"). The central issues in all four of these cases are rights in the Beach and the status of Melville Walk, which provides the only access to the Beach other than Alice Walk, also a private way.
This court (Sands, J.) issued its Decision (the "Decision") and Judgment (the "Judgment") in this case on December 12, 2007, finding that: (1) the Donahues own the fee interest in the Beach and all of Alice Walk adjacent to their property; (2) each of O'Connell, the Stimsons, the Donahues, and the Schwartzs own the fee to the center line of Melville Walk adjacent to their respective properties; and (3) the Manns, the Dillons, the Arnolds, Campbell, the Kanes, Handrahan, and the Murrays have established prescriptive rights in both the southerly portion of Melville Walk for access to the Beach, and the Beach for uses consistent with the uses established by them over the last quarter to half century. On December 21, 2007, the Donahues filed their Motion for Clarification, Amendment and/or Reconsideration of the Judgment. [Note 5] On the same day, the Stimsons filed their Motion for Reconsideration and Clarification and to Alter and Amend the Decision and Judgment, [Note 6] and Plaintiffs filed their Motion for Reconsideration to Alter, Amend or Vacate the Judgment. [Note 7] On December 24, 2007, the Schwartzs filed their Motion for Clarification, Amendment and/or Reconsideration of the Judgment. [Note 8] A hearing on all motions was held on January 16, 2008, at which time issues relative to the definition of the Beach and the definition of uses of the Beach as specified in the Decision were raised. At that time the parties requested additional time to resolve these issues. Additional status conferences were held on March 4 and March 25, 2008, and on April 2, 2008 all parties filed a Notice of Status of Stipulations indicating that they needed more time to resolve their issues. Another status conference was held on July 1, 2008, at which time the parties asked for yet additional time to resolve their issues. On July 18, 2008, the Kanes, Handrahan, Dillon, Campbell, Kathleen Arnold and Carol Murray ("Benefitted Plaintiffs"), the Schwartzs, and the Donahues filed a Joint Report (the "Joint Report") redefining the Beach, its uses, and the parties with rights in the Beach and Melville Walk. The Stimsons filed an opposition to the Joint Report and a proposed new report on July 23, 2008. Additional status conferences were held on September 18, 2008, and October 9, 2008. At the October 9, 2008 status conference, the parties (except the Stimsons) filed a Stipulated Amendment to Joint Report adding the Manns as Benefitted Plaintiffs, and redefining certain terms in the Joint Report. The Stimsons filed a final Report on October 10, 2008, and the Benefitted Plaintiffs and the Donahues filed a final Response on October 15, 2008. A final status conference was held with all parties on November 6, 2008. Despite their best efforts, there was no agreement among the parties as to the Stimson's proposed new report.
As a result of the foregoing, the Decision shall be amended as follows:
1. In the Decision, this court determined that the Donahues owned the Beach and that the Benefitted Plaintiffs had established prescriptive rights in the Beach. In the Decision, the Beach is delineated as follows:
[O]n the west by Melville Walk and the portion of Alice Walk abutting the Donahue Property, [Note 9] on the south by the Schwartz Property, on the east by Hingham Harbor, and on the north by Alice Walk and the land of the owners of lots 3-7 as shown on the 1897 Plan. The Beach is separated from the Schwartz Property on the south end by a row of rocks. On the north end and west end, it is marked by sea grass and a sea wall, and contains both a lower beach and an upper beach. The upper beach contains a picnic table with two attached benches, and the lower beach contains large logs used as benches. On the east end the Beach extends to the mean low water line of Hingham Harbor. [Note 10]
By agreement of the Donahues and the Benefitted Plaintiffs, the revised description of the portion of the Beach to which the Benefitted Plaintiffs have access (the "Permitted Beach") is as follows, all as shown on the sketch attached hereto: on the west and south starting at a point on the south end of the Stone Retaining Wall, continuing in an arc southeasterly across Alice Walk to the midline of Melville Walk and continuing along the midline of Melville Walk to the point of intersection of the Stimson Property and the Schwartz Property, then continuing in a northeasterly direction to Hingham Harbor; on the east by Hingham Harbor, and on the north by a line running from Hingham Harbor to the southerly end of the Stone Retaining Wall along Alice Walk. [Note 11]
2. The Decision defined the use of the Permitted Beach as "uses consistent with the uses established by them [the Benefitted Plaintiffs] over the last quarter to half century," and referenced uses including "activities such as swimming, wading, boating, walking, sitting, reading, skimming stones, playing, building rafts, and socializing." The Joint Report indicates that the uses of the Permitted Beach shall be "for bathing and swimming purposes," but there is also a reference in the Joint Report to use for boating purposes. As a result of discussions at the November 6, 2008, conference, the defined uses as stated in the Decision shall stand. In addition, the Joint Report stipulates that the Benefitted Plaintiffs shall have the right to place one bench (the "Bench") on the Permitted Beach, just south of a rock that is permanently set into the Permitted Beach, and in line with the Stone Retaining Wall. The location of the Bench is shown on the sketch attached hereto. The use of the Permitted Beach shall be limited to the Benefitted Plaintiffs, their immediate families, and a total of three unrelated friends at any one time, with visits involving unrelated friends never to exceed four times in any one month. Any use of the Permitted Beach must include at least one Benefitted Plaintiff or a member of their immediate family. No such use of the Permitted Beach shall result in any party obtaining additional rights by prescription.
3. The Decision stated that "each of O'Connell, the Stimsons, the Donahues and the Schwartzs own the fee to the center line of Melville Walk opposite their respective properties." The Decision further stated that the Benefitted Plaintiffs "have established prescriptive rights in . . . the southerly portion of Melville Walk for access to the Beach." As a result, the Stimsons shall have the right to plant a privet row on the boundary of the Stimson Property and the portion of Melville Walk which they own.
4. The Benefitted Plaintiffs shall indemnify and hold harmless the Donahues, the Schwartzs, the Stimsons, and O'Connell, their heirs and assigns, relative to the Benefitted Plaintiffs' use of the Permitted Beach, the Schwartz Beach, and Melville Walk.
5. The parties shall file a recordable plan to indicate the boundaries of the Beach, the Permitted Beach, and the Schwartz Beach as defined in this Order and Revised Decision. The parties shall also place markers on the ground to define the limits of the respective beaches.
6. Except as expressly modified herein, the remainder of the Decision shall remain as is. This court shall issue a Revised Judgment of even date.
By the court. (Sands, J.)
Attest: Deborah J. Patterson
Dated: November 14, 2008
[Note 1] With the consent of all parties, Crow Point Community Club was dismissed as a Plaintiff from this case on May 5, 2005, and a Stipulation relative to same was filed on May 19, 2005.
[Note 2] Plaintiffs filed an unverified Second Amended Complaint and Jury Demand on August 1, 2005, which added additional Plaintiffs Melinda Ponder ("Ponder"), Ronald C. Cates and Dana R. Malcolm ("Cates/Malcolm"), Richard McCourt and Virginia McCourt (the "McCourts"), Maryanne Campbell ("Campbell"), Arthur W. Handrahan ("Handrahan"), Stacy A. Dow ("Dow"), Robert P. Masland, III, and Anne D. Masland (the "Maslands"), Alfred Cox and Edythe Cox (the "Coxes"), Mark G. Patrolia and Gayle Callahan ("Patrolia/Callahan"), Anthony Arnold and Kathleen Arnold (the "Arnolds"), Mary T. Dillon ("Dillon"), Margaret S. Iser ("Iser"), and Charles J. Murray and Carol A. Murray (the "Murrays") (the Kanes, the Manns, and the additional Plaintiffs, together, "Plaintiffs").
[Note 3] The Stimsons, the Donahues, and O'Connell, all as hereinafter defined, as owners of property abutting Melville Walk, were named as Defendants. George and Martha Schwartz (the "Schwartzs") also own property located on Melville Walk (the "Schwartz Property"). As a result, Plaintiffs filed an unverified First Amended Complaint and Jury Demand on June 13, 2005, which added the Schwartzs as Defendants.
[Note 4] Melville Walk provides access to a beach on Hingham Harbor (the "Beach"). The Complaint referenced the fact that the Kanes, the Manns, and Crow Point Community Club had deeded rights to use the Beach.
[Note 5] The Donohues filed their Amended Motion for Clarification, Amendment and/or Reconsideration of the Judgment on May 8, 2008.
[Note 6] The Stimsons also filed a First Amended Motion for Reconsideration and Clarification and to Alter and Amend the Decision and Judgment on February 26, 2008. The Stimsons filed another similar motion of May 5, 2008.
[Note 7] Plaintiffs filed their Second Amended Motion for Reconsideration to Alter, Amend or Vacate Judgment on June 30, 2008.
[Note 8] The Schwartzs filed an Amended Motion for Clarification, Amendment and/or Reconsideration on May 1, 2008, together with Motion for Relief from Judgment.
[Note 9] There is no clear delineation between the boundary of Alice Walk, Melville Walk, and the Beach. Based on photographs in evidence, and this court's observations during the site view, the western boundary of the Beach may be within the bounds of Alice Walk.
[Note 10] The Schwartzs raised an issue with respect to the beach adjacent to their property. There is a beach south of the Beach, separated from the Beach by a row of rocks, which is owned by the Schwartzs (the "Schwartz Beach"). The Schwartz Beach is defined as follows: on the west by a line extending from the boundary line between the Schwartz Property and the Stimson Property and running to Hingham Harbor, on the south by the boundary line of the Schwartz Property, and on the north and east by Hingham Harbor. All Plaintiffs have agreed that they did not intend to assert any rights in the Schwartz Beach. The Schwartzs were concerned with footnote 53 of the Decision which implied that only Lot 105 had rights in the Schwartz Beach. The Decision did not intend to exclude rights of Lot 104 in the Schwartz Beach. It should be noted, however, that when a five foot section of Lot 104 was deeded in 1920 to the predecessors of the Stimsons, such transfer did not reference rights in the Schwartz Beach.
[Note 11] Although not a part of the defined area of the Beach, the Schwartzs have agreed to grant the Benefitted Plaintiffs a revocable license to use the area on the attached sketch (the Schwartz Beach) labeled "Kayak/Boat Storage" to store kayaks and/or canoes, provided that there shall be no more than four kayaks/canoes located in this area at any one time, and the period for storage shall run from June 1 through September 15 annually. The revocable license agreement shall be recorded in the Registry at the cost of the Benefitted Plaintiffs.