JAMES KANE, IRENE KANE, DONALD MANN, GERALDINE MANN, and CROW POINT COMMUNITY CLUB , Plaintiffs vs. ROBERT STIMSON, CYNTHIA STIMSON, MICHAEL DONAHUE, MARY DONAHUE, AMYRA O'CONNELL, GEORGE SCHWARTZ, MARTHA SCHWARTZ, et al, Defendants.
MISC 302869
November 14, 2008
Sands, J.
REVISED JUDGMENT
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 OConnell (OConnell) 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 OConnell 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 OConnell 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.
The Kanes, the Manns, and Crow Point Community Club filed a Motion for Preliminary Injunction on October 18, 2004, which was heard by this court on October 19, 2004, and denied on October 25, 2004. The Donahues, OConnell, and the Stimsons all filed Answers on October 19, 2004. [Note 5] On May 4, 2005, the Donahues, OConnell, and the Stimsons filed a motion to join the Schwartzs (together with the Donahues, OConnell, and the Stimsons, Defendants) as an Indispensable Party, which motion was allowed on May 19, 2005. The Schwartzs filed their Answer on February 28, 2006. [Note 6] The Donahues, OConnell, and the Stimsons (together, the Petitioners) filed a Motion to Stay Registration Proceedings on November 8, 2005, which was denied on November 28, 2005. The Petitioners filed motions to withdraw the Registration Cases on December 23, 2005. A pre-trial conference was held on all four cases on January 25, 2006. At that time, Petitioners motions to withdraw the Registration Cases was allowed. The Joint Motion for Entry of Separate and Final Judgment Dismissing Amyra OConnell as a Defendant in the Miscellaneous Case was allowed on January 27, 2006. A site view and the first day of trial at the Hingham District Court was held on August 9, 2006. At the commencement of the trial all parties agreed to waive their right to jury trial. Plaintiffs also filed a Stipulation of Dismissal of their prescriptive rights claim against the Schwartzs relative to a beach area owned by the Schwartzs (the Schwartz Beach), [Note 7] and on the same day Plaintiffs also filed a Motion in Limine relative to this courts taking judicial notice of certain documents relating to the Registration Cases. [Note 8] This court allowed the motion. [Note 9] The second and third days of trial were held on August 10 and August 11, 2006, at the Land Court in Boston. At the close of Plaintiffs evidence on August 10, 2006, the Schwartzs filed a Motion for Directed Finding relative to Plaintiffs claim of deeded rights in the beach owned by the Schwartzs, and this court did not act on the motion. [Note 10] Defendants also made a motion for a Directed Finding, relative to Plaintiffs claim of prescriptive rights, against the five Plaintiffs who presented no evidence (Cates/Malcolm, the McCourts, the Maslands, the Coxes, and Patrolia/Callahan), which motion this court allowed. On October 31, 2006, Plaintiffs filed their Post-Trial Brief, the Schwartzs filed their Brief, and the Stimsons and the Donahues (together, Stimson/Donahue) filed their Trial Memorandum. At that time the matter was taken under advisement, and a Decision (the Decision) and Judgment were rendered on December 12, 2007. On December 21, 2007, the Donahues filed their Motion for Clarification, Amendment and/or Reconsideration of the Judgment. [Note 11] On the same day, the Stimsons filed their Motion for Reconsideration and Clarification and to Alter and Amend the Decision and Judgment, [Note 12] and Plaintiffs filed their Motion for Reconsideration to Alter, Amend or Vacate the Judgment. [Note 13] On December 24, 2007, the Schwartzs filed their Motion for Clarification, Amendment and/or Reconsideration of the Judgment. [Note 14] 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. [Note 15] 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 status conference on October 9, 2008, 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 of the parties on November 6, 2008. An Order and Revised Decision (the Revised Decision) of todays date has been rendered.
In accordance with the Decision and the Revised Decision, it is:
ORDERED and ADJUDGED that none of Plaintiffs have obtained rights in the Beach as a result of the Downer-Cushing Indenture, dated September 1, 1879, and recorded with the Plymouth County Registry of Deeds (the Registry) at Book 455, Page 68.
ORDERED and ADJUDGED that the Donahues own the fee interest in the Beach, and the May 1929 Deed did not grant any rights in the Beach. [Note 16]
ORDERED and ADJUDGED that, by March of 1920, the Downer Estate had deeded away the entire portion of Melville Walk and Alice Walk from Downer Avenue to the Beach, and they had nothing left to deed out to others.
ORDERED and ADJUDGED that Plaintiffs do not have implied easements to use either the Beach or Melville Walk.
ORDERED and ADJUDGED that there is no easement by estoppel in Melville Walk for the benefit of Plaintiffs.
ORDERED and ADJUDGED that Defendants Motion for Directed Verdict, presented at the second day of trial, against Plaintiffs Cates/Malcolm, the McCourts, the Maslands, the Coxes, and Patrolia/Callahan with respect to prescriptive rights in both the Beach and Melville Walk was allowed because said Plaintiffs did not present evidence at trial.
ORDERED and ADJUDGED that Plaintiffs Iser, Dow, and Ponder have failed to establish prescriptive rights because they could not show twenty consecutive years of use of either the Beach or Melville Walk.
ORDERED and ADJUDGED that Defendants, their predecessors, or the Donahues in particular, did not give permission to Plaintiffs for use of the Beach or Melville Walk.
ORDERED and ADJUDGED that the Manns, the Dillons, the Arnolds, Campbell, the Kanes, Handrahan, and the Murrays (the Benefitted Plaintiffs) have established prescriptive rights in both the southerly portion of Melville Walk for access to the Permitted Beach, and the Permitted Beach for activities such as swimming, wading, boating, walking, sitting, reading, skimming stones, playing, building rafts, and socializing. 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 attached sketch. 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.
ORDERED and ADJUDGED that the Benefitted Plaintiffs shall indemnify and hold harmless the Donahues, the Schwartzs, the Stimsons, and OConnell, their heirs and assigns, relative to the Benefitted Plaintiffs use of the Permitted Beach, the Schwartz Beach, and Melville Walk.
ORDERED and ADJUDGED that the parties shall file a recordable plan to indicate the boundaries of the Beach, the permitted Beach, and the Schwartz Beach as defined in the Revised Decision. The parties shall also place markers on the ground to define the limits of the respective beaches.
ORDERED and ADJUDGED that Defendants must remove the Gate and any impediments to access over both the southerly portion of Melville Walk and the Permitted Beach.
By the court. (Sands, J.)
FOOTNOTES
[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 OConnell, 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 Beach is defined in the Decision (as hereinafter defined) as follows: on the west by Melville Walk and the portion of Alice Walk abutting the Donahue Property, 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 the Beach extends to the mean low water line of Hingham Harbor. 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 Donahues filed their Answer to First Amended Complaint on July 8, 2005. The Donahues and the Stimsons filed their Answers to Second Amended Complaint on March 27, 2006.
[Note 6] The Schwartzs filed their Answer to Second Amended Complaint on August 9, 2006.
[Note 7] 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.
[Note 8] The key documents at issue were the Certificates of Opinion of Examiner Jan Dabrowski, Esq. and the 2004 Plan, as hereinafter defined. Plaintiffs relied on Calci v. Reitano, 66 Mass. App. Ct. 245 , 246, n.2 (2006), in support of their motion. In that case a Land Court judge took judicial notice of the documents on file . . . pertaining to the original registration case, including the pleadings, title abstract and plans.
[Note 9] This court stated that it would allow the motion to the extent that Im going to acknowledge that Mr. Dabrowski did, in fact, file a report in those three registration cases, and that Ive got it here. Transcript I, Page 26. Moreover, the title report was discussed at the pre-trial conference and subsequent status conferences.
[Note 10] All parties agree that Plaintiffs are not claiming deeded rights in the Schwartz Beach, and as a result I allow the Schwartzs motion. See Plaintiffs Stipulation of Dismissal relative to the Schwartzs.
[Note 11] The Donohues filed their Amended Motion for Clarification, Amendment and/or Reconsideration of the Judgment on May 8, 2008.
[Note 12] 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 13] Plaintiffs filed their Second Amended Motion for Reconsideration to Alter, Amend or Vacate Judgment on June 30, 2008.
[Note 14] The Schwartzs filed an Amended Motion for Clarification, Amendment and/or Reconsideration on May 1, 2008, together with Motion for Relief from Judgment.
[Note 15] The Joint Report defined the portion of the Beach that could be used by the Permitted Plaintiffs as follows: 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 (the Permitted Beach).
[Note 16] It should be noted that neither the Stimson Property nor the OConnell Property have any deeded rights in the Beach, as the deeds from the Downer Estate to their predecessors did not include such rights.