MISC 346579

December 5, 2008


Grossman, J.


Related Cases:

With: Exhibit A1: Plan of Area

I. Introduction

Distilled to its essence, this case asks whether the Sciolettis (plaintiffs) have the right to maintain a pier, ramp and floats (dock structures) for boating purposes upon tidal flats appurtenant to upland (Locus) owned by the Thomases (defendants) on Follins Pond in Yarmouth. While it is undisputed that the Locus is burdened by an easement in the plaintiffs’ favor, the parties disagree about the location, scope and linear extent of that easement. This court concludes that the disputed easement is one of access, and as such, the use asserted by plaintiffs falls outside the scope intended by its original grant. The sole question reserved for trial relates to what structures, if any, are reasonably necessary for the enjoyment of this easement of access to and from Follins Pond.

The easement that is primarily in dispute is described as ten feet in width, running southerly across the easterly portion of the Thomases’ land to Follins Pond. The Thomases contend that the easement extends no further than to the mean high water mark; the Sciolettis, in turn, claim that their easement terminates at the extreme low water mark. Further, the Sciolettis assert that they have separate, but related, use rights in the so-called beach area of the tidal flats abutting the Locus, which are “general and undefined.” [Note 1] The defendants view plaintiffs’ rights as being strictly limited to foot passage within the ten-foot-wide easement area depicted on Plan 34511-D. The plaintiffs argue as well, that they have the right to construct and maintain an elevated walkway and dock structures. Defendants, in contrast, take the position that, as fee holders of the tidal flats, they alone have the right to place dock structures for boating purposes on those flats. Plaintiffs dispute the Thomases’ claim of ownership to the tidal flats, and argue that title to the inter-tidal land was severed [Note 2] from the upland prior to conveyance of the Locus to the defendants. It is plaintiffs’ view that, as a consequence, the defendants merely share use rights over the tidal flats in common with other property owners.

At the same time, the Thomases claim an easement burdening a 15-foot-wide area on the southerly portion of plaintiffs’ property. Plaintiffs contest this claim as well, and argue that defendants have no rights in that area.

Finally, the Sciolettis contend that they have been harmed and are entitled to compensation, inasmuch as the Thomases opposed their attempts to procure a G.L. c. 91 (Chapter 91) license for the disputed dock structures.

II. Procedural History

Plaintiffs originally instituted this action for declaratory judgment pursuant to G.L. c. 231A in Superior Court, before it was transferred to the Land Court by order dated April 30, 2007. Plaintiffs had filed their complaint in Barnstable Superior Court on September 22, 2004, naming nine separate defendants, all of whom were alleged to be holders of easements in common with the plaintiffs. [Note 3] The defendants filed an answer and counterclaim on November 3, 2004, [Note 4] and entered a pro se appearance on January 21, 2005.

Count 1 of the complaint seeks, inter alia, a declaration that the plaintiffs, as easement holders, possess “an absolute right to license, construct, maintain, repair and use the elevated walkway and dock, [and] floats[.]” [Note 5] Count 2 seeks, inter alia, a permanent injunction to prevent the defendants from interfering “with the plaintiffs’ lawful rights to license the walkway and pier,” as well as monetary damages arising from defendants’ purported “abuse of administrative process.” [Note 6] Count 3 seeks a declaration that the defendants’ easement over plaintiffs’ property is limited to the ten-foot right of way shown on Land Court Plan 34511-C (Plan C). [Note 7] Finally, Count 4 seeks an injunction forbidding the defendants from using the 15-foot-wide easement depicted on Plan C as extending along the southerly border of plaintiffs’ land.

Plaintiffs filed a motion for summary judgment on January 12, 2006, and on April 6, 2006, the motion was argued before Justice Nickerson of the Superior Court. Subsequent to oral argument, on June 13, 2006, Justice Nickerson issued an order for additional briefing on the issue of the Land Court’s exclusive jurisdiction over matters affecting title to registered land. Meanwhile, on August 17, 2006, the defendants filed their own motion for summary judgment. Subsequently, the case was transferred to the Land Court on April 30, 2007.

This court held a case management conference on June 18, 2007, at which Michael J. Princi appeared for the plaintiffs, and Jane Thomas appeared pro se for the defendants. On July 6, 2007, Louis N. Levine filed an appearance on behalf of the defendants. The defendants then filed an opposition to plaintiffs’ summary judgment motion and request for entry of summary judgment on August 31, 2007.

On September 12, 2007, the defendants filed a special motion to dismiss part of count one and all of count two of plaintiffs’ amended complaint, pursuant to G.L. c. 231, § 59H (anti-SLAPP statute). After additional discovery relating to the special motion to dismiss, this court heard the parties’ arguments on their cross motions for summary judgment, and the defendants’ motion to dismiss, on November 5, 2007. In connection with the special motion to dismiss, this court instructed plaintiffs to submit a memorandum setting forth the elements of its purported cause of action for abuse of administrative process. Instead, plaintiffs filed a motion to amend count two of their complaint and supporting memorandum on November 20, 2007. Defendants’ opposition to plaintiffs’ motion to amend was filed on December 10, 2007.

III. The Undisputed Facts

Plaintiffs and defendants both own properties in a subdivision which is bounded on the north by Mayfair Road in Yarmouth, and on the South by Follins Pond, which is a tidal pond. As shown on Land Court Plan 34511-D [Note 8] (Plan D), [Note 9] the Thomases own Lots 13 and 14 of the subdivision, while the Sciolettis own Lot 9. [Note 10] Both Lots 13 and 14 are bounded by Follins Pond to the south. The lots here at issue were formerly part of a single 11.1 acre parcel which was registered on February 19, 1968. [Note 11]

On May 13, 1974, the original parcel was subdivided into two separate lots pursuant to Land Court Plan 34511-B [Note 12] (Plan B). Lot 2 as shown on Plan B was subsequently conveyed to Chestnut Homes, Inc., as reflected in a Transfer Certificate of Title (Chestnut Certificate) dated June 22, 1976. [Note 13] The Chestnut Certificate describes Lot 2 as being “bounded…southerly by Follins Pond[,]” with no further qualifying language. It also states that Lot 2 is “subject to the rights of the public in the tidewaters of said Follins Pond.”

Soon thereafter, Lot 2 was subdivided into Lots 3 through 12, pursuant to Land Court Plan 34511-C [Note 14] (Plan C), filed on July 16, 1976. Chestnut Homes conveyed Lot 9, the parcel now owned by the plaintiffs, to Lindsay Johnson and James McDonagh by deed [Note 15] dated October 22, 1976 (Johnson Deed). The Johnson Deed included the following language:

Together with the following appurtenant rights, which rights are reserved to the grantor, for the benefit of the remaining lots within the subdivision as shown on Land Court Subdivision Plan 3451- C.

1. An easement over a 25 foot wide strip of land as shown on said plan for the purpose of foot passage to and from Mayfair Road and Follins Pond.

2. An easement 10 feet in width, as shown on said plan, for the sole purpose of foot passage to and from Mayfair Road and Follins Pond.

3. A 25 foot easement over the westerly sideline of LOT 8 and a 10 foot wide easement over the easterly portion of LOT 8 to and from the above noted easements and Follins Pond.

Whereas, it is the intention of the grantor to protect and preserve the natural beauty and scenic view and to create a desirable residential community and to appreciate the value of all of the lots on said plan for mutual enjoyment and privacy, the grantor does hereby impose the following restriction, which restriction shall run with the land and be binding on all the parties having or hereafter having any interest in said premises. Namely:

That no building or structure of any kind shall be constructed, exteriorly altered or placed upon the premises until the architectural and site plans therefor have been approved by the grantor, his successor or assign: said approval to be in writing suitable for recording at the Registry of Deeds[.]

The easement rights created by the foregoing language are referred to herein as Easement No. 1, Easement No. 2, and Easement No. 3, respectively.

When the Johnson Deed was executed, Plan C depicted Easement No. 2 along the easterly boundary of Lot 9 and Lot 10, but did not explicitly show Easement No. 3. [Note 16] Chestnut Homes conveyed Lots 3, 4, and 5 as shown on Plan C to various grantees between November of 1976 and March of 1977. [Note 17] Each deed included the aforementioned language from the Johnson Deed.

At this point, the defendants’ chain of title diverged from that of the plaintiffs. Chestnut Homes conveyed Lots 6, 7, 8, 10, 11 and 12, depicted in Plan C, to Donald I. Meyer, et al, Trustees of Olde Lyme Realty Trust (Old Lyme), by deed dated September 30, 1977. [Note 18] Old Lyme took each lot subject to the same easement language as was set forth in the Johnson Deed.

On September 28, 1978, Land Court Plan 34511-D [Note 19] was filed. Plan D subdivided Lot 8 into Lots 13 and 14, adding further graphic detail relating to the aforementioned easements. Specifically, Plan D shows: (1) a 10-foot-wide easement along the easterly border of Lot 14 (formerly Lot 8), which graphically corresponds to the written description in the Johnson Deed creating Easement No. 3; (2) a 35 foot wide easement at the southeasterly corner of Lot 14; and (3) a 25-foot boundary line for a wedge-shaped easement at the southwesterly corner of Lot 13 (formerly Lot 8).

Between December 1978 and January 1979, Old Lyme conveyed Lots 6, 7 and 11 to various grantees. [Note 20] Consistent with the aforementioned modifications to the subdivision plan, each of these deeds conveyed “the right to use the beach area at the end of said 10 foot strip of land as shown on Land Court Plan 34511-D, reserving to the grantors for the benefit of the remaining lots on said plans, such right.” [Note 21] Also during January, 1979, Olde Lyme conveyed Lot 14 to James F. Reynolds Jr., subject to “a 10 foot easement over the southeasterly portion of said Lot 14 for foot passage and a beach area at the end of said easement, all as shown on Land Court Plan 34511-D.” [Note 22] As depicted on Plan D, the 10 foot easement extends in a southerly direction along the 230 foot easterly boundary line of Lot 14. At a point close to the southerly terminus of that 230 foot boundary, the inside line of the 10 foot wide easement turns 90 degrees to the west, extends 35 feet in that direction, then turns 90 degrees again to the south, extends for a distance, and terminates at the mean high water mark. Plan D does not indicate whether this area, depicted above the high water mark, represents the “beach area” described in the aforementioned deeds. [Note 23]

Notably, the certificate of title documenting the conveyance of Lot 14 to Reynolds [Note 24] (Reynolds Certificate) differs from other instruments in the defendants’ chain of title in its description of the southerly boundary. Whereas the earlier description [Note 25] referred simply to “Follins Pond,” the description in the Reynolds Certificate refers to “the mean high water mark of Follins Pond.” The Reynolds Certificate also notes that Lot 14 is “subject to the rights of the public in the tidewaters of Follins Pond.”

Returning to the plaintiffs’ chain of title, on July 9, 1985, Johnson and McDonagh conveyed Lot 9 to George M. White, subject to Easement Nos. 1 through 3 as set forth in the Johnson Deed. [Note 26] George M. White then granted Lot 9 to himself and his wife as tenants by the entirety by deed dated January 10, 1986. [Note 27] Subsequently, the Whites conveyed Lot 9 to Priscilla S. White in October of 1994. [Note 28] The Johnson Deed easements were carried forward by reference to Registration Doc. 213, 359 in each of these conveyances. Ultimately, the plaintiffs took title to Lot 9 by deed from Priscilla S. White dated August 20, 2002. [Note 29]

Prior to conveying Lot 9 to the plaintiffs, the Whites constructed a raised wooden walkway in a location that approximates that of Easement No. 3, as shown on Plan D. [Note 30] Near the terminus of Easement No. 3, the Whites also erected a pile-supported pier and ramp, and attached floats (dock structures). [Note 31]

On or about June 26, 1987, George White applied to the Department of Environmental Quality Engineering (DEQE) for a G.L. c. 91 (Chapter 91) Waterways License for the construction of said walkway and dock. The DEQE responded with a notification letter dated June 26, 1987, stating that no license was required, but that a municipal Order of Conditions might be required. [Note 32] White then applied for an Order of Conditions with the Town of Yarmouth Conservation Commission (Commission), and provided notice of the application to James F. Reynolds, Jr. (Reynolds), the owner at the time of Lot 14. [Note 33] Reynolds did not object to White’s plan to construct a walkway and dock. [Note 34]

The Commission heard White’s application on June 18, 1987, and executed an Order of Conditions (Order/OOC), allowing the construction of the dock. [Note 35] The Order recited that it “does not grant any property rights or any exclusive privileges; it does not authorize any injury to private property or invasion of private rights.” [Note 36] The Order was recorded as Document No. 436, 408 and noted on the Memorandum of Encumbrances attached to White’s Certificate of Title with a registration date of July 31, 1987. Eventually, this Memorandum of Encumbrances was also carried over to the defendants’ Certificate of Title, No. 144, 919.

White constructed the walkway and dock in conformance with the plan [Note 37] approved by the Commission, and “enjoyed the walkway and dock from the time it was constructed until the time the property was sold [to the Sciolettis, in 2002].” [Note 38] In his recent affidavit, Reynolds stated that at the time of the dock’s construction, “I clearly acknowledged to George that he had rights to construct, use, and enjoy a walkway and dock within the easement…as defined on Plan D.” [Note 39] Subsequent to this construction, the Commission issued a corresponding Certificate of Compliance (COC) dated September 20, 1996, which is recorded as Document No. 676, 654, and noted on the Memorandum of Encumbrances attached to the Reynolds’ [Note 40] and Thomases’ [Note 41] certificates of title.

Reynolds conveyed Lot 14 to the defendants by deed (Thomas Deed) dated June 17, 1997. [Note 42] The Thomas Deed describes the parcel as “Lot 14 shown on Land Court Subdivision Plan 34511-D.” It also states that the parcel is subject to the rights and obligations of the 1977 Old Lyme Deed, [Note 43] and the 1979 Reynolds Deed. [Note 44] It also refers to the Reynolds Certificate of Title, No. 77196, in which Lot 14 is bounded southwesterly “by the mean high water mark of Follins Pond.” [Note 45] The Memorandum of Encumbrances attached to the defendants’ Certificate of Title includes references to both the OOC [Note 46] and the COC. [Note 47]

On or about July 20, 2001, defendants initiated a complaint with the Department of Environmental Protection (DEP), alleging that the walkway and dock were not properly licensed according to Chapter 91. [Note 48] In response, the DEP conducted an inspection of the dock structures, and determined that “the existing pile supported pier, located seaward of the mean high water line, the ramp, and the pile held floats were subject to Chapter 91…as the pile held floats were fixed, and not floating as originally proposed.” [Note 49] Consequently, a Notice of Noncompliance (NON 1) dated August 28, 2001, was issued to George M. White. [Note 50]

NON 1 required the removal of all unauthorized structures within thirty days. White removed the floats, but did not remove the existing pilings and fixed pier, which remained, in violation of Chapter 91. [Note 51] On June 6, 2002, the DEP sent a letter to George White’s attorney informing him that, without “property owner consent, the Department is unable to process an application or authorize any structures on private property.” [Note 52] This letter also informed White that his dock structures were still unauthorized, subjecting him to risk of civil, criminal and administrative enforcement action by the department. [Note 53] On August 20, 2002, the Whites conveyed Lot 9 to the plaintiffs. [Note 54] The next day, the Whites executed an assignment, in favor of the plaintiffs, of all their legal interests in the walkway and dock structures. [Note 55]

A few months prior to that conveyance, defendants submitted their own Chapter 91 application to the DEP “to maintain an existing fixed 4 foot wide pile supported pier, and to construct and maintain a 4 foot by 16 foot ramp and 7 foot by 20 foot float beyond the mean high water shoreline [of Lot 14].” [Note 56] In their application, the defendants stated that, if their application were granted, they would exclude other easement holders from the pier and dock “for liability reasons,” and also because they believed that the easement holders had no right to “build, maintain, or use a pier.” [Note 57]

On March 6, 2003, defendants’ application was denied, based in part upon the DEP’s determination that “as Scioletti and other neighboring property owners have the right to access Follins Pond by means of the….access easement, to permit [defendant] exclusive rights to construct and maintain [the existing dock structures] within said Easement area would significantly interfere with the easement holders’ rights[.]” [Note 58] The DEP also opined that the proposed structure would impermissibly interfere with the use of the pier by White and other easement holders, which were “water dependent use[s]” occurring within five years prior to defendants’ application. [Note 59] The defendants filed an administrative appeal from that decision. [Note 60]

Also in March of 2003, the plaintiffs received a Notice of Noncompliance (NON 2) from the DEP, which referred to NON 1. The plaintiffs’ subsequent application for a Chapter 91 license, [Note 61] dated March 27, 2003, resulted in the issuance of a draft license for dock structures. The defendants were notified of the plaintiffs’ pending license, and appealed the issuance of that license. [Note 62] Defendants set forth their arguments in opposition to plaintiffs’ pending license in a letter to the DEP’s Office of Administrative Appeals, dated January 28, 2004. [Note 63] This appeal was consolidated with the defendants’ appeal of the denial of their own Chapter 91 license, and a hearing was held before an administrative magistrate on June 9, 2004. [Note 64]

The magistrate concluded that “the main issue presented by this case is who has the legal right to construct a dock at the proposed location,” and ordered the matter stayed, pending resolution of this dispute over use rights, either through adjudication, or through private settlement. [Note 65] The present litigation ensued.

IV. Summary Judgment Standard

Summary judgment may enter when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law that controls the outcome determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.) ( Long, J.), citing, e.g., Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-movant’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light…does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” will not defeat the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Once the moving party has met its burden, to withstand summary judgment, the non-movant must put forth specific facts demonstrating a genuine dispute over material facts. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). “In determining whether a factual dispute is ‘genuine,’ the Court must determine whether the evidence is such that a reasonable [finder of fact] could return a verdict for the nonmoving party.” Steffen v. Viking, 441 F. Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although charged with concluding whether a reasonable fact-finder could return a verdict for the nonmoving party, the court, at summary judgment, is not to make credibility assessments of witnesses or weigh the evidence. Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987).

In the final analysis, Mass R. Civ. P. 56(c) permits the disposition of controversies, if there is no meaningful dispute as to the salient facts, or resolution of the matter depends solely upon adjudication of a question of law. The record discloses no genuine dispute of material fact with regard to all but one of the legal issues presented by the instant lawsuit, and summary judgment shall enter accordingly as discussed below. The summary judgment record does not provide sufficient evidence to resolve the dispute between the parties regarding whether structures are reasonably necessary to effectuate plaintiffs’ access to the low water mark of Follins Pond. The resolution of that single issue must await trial.

V. Discussion and Analysis

A. Defendants’ Ownership Extends to the Low Water Mark.

The Thomases claim title to the flats appurtenant to Lot 14. Plaintiffs, the Sciolettis, argue to the contrary that the flats were severed from the upland portion of Lot 14 in 1979, when Old Lyme conveyed Lot 14 to Reynolds. This court concludes that defendants do indeed own the tidal flats appurtenant to their property. [Note 66] Under the Colonial Ordinance of 1641-47, an owner of land abutting a tidal body of water “shall hold title to the land out to the low water mark or 100 rods, whichever is less.” Pazolt v. Director of the Division of Marine Fisheries, 417 Mass. 565 , 570 (1994), citing Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 , 635 (1979). When a littoral lot is conveyed, “the presumption of law is that title to the flats follows that of the upland on which they lie, and proof of title to the upland establishes title to the flats.” Pazolt, 417 Mass. at 570, citing Porter v. Sullivan, 7 Gray 441 , 445 (1856).

Nevertheless, “[a]n owner may separate his upland from his flats, by alienating the one without the other. But such a conveyance is to be proved, not presumed, and therefore ordinarily proof of the title in the upland…carries with it evidence of title in the flats.” Pazolt, 417 Mass. at 570, citing Valentine v. Piper, 22 Pick. 85 , 94 (1839). Thus, “[s]ince the passage of the ordinance, a grant of land bounding on the sea shore carries the flats in the absence of excluding words.” Pazolt, 417 Mass. at 571, quoting Commonwealth v. Roxbury, 9 Gray 451 , 524 (1857) (internal quotations omitted).

The plaintiffs assert that the discrepancy between the description of Lot 14 as found in the Reynolds Certificate, and those descriptions contained in prior certificates, demonstrates an intent to sever the flats from the uplands, thereby reserving them in the Reynolds grantor, Old Lyme. The description given in the Reynolds Certificate refers to Lot 14 as bounded by “the mean high water mark of Follins Pond,” [Note 67] whereas the earlier descriptions refer to that lot being bounded by “Follins Pond.” [Note 68] The plaintiffs contend that, as a consequence, the defendants lack title to the flats, and own only to the mean high water mark.

This court concludes, however, that the description in the Reynolds Certificate neither demonstrates an intent to sever title to the flats from the uplands, nor effects such a severance. While the plaintiffs’ position may have some logical merit, the Pazolt case, supra, is directly on point, and compels a determination in favor of the defendants.

In Pazolt, the Supreme Judicial Court reviewed a Superior Court decision in which the judge interpreted littoral deeds similar to those in question here. 417 Mass. at 570. An early deed described the locus as bounded “by the sea,” while subsequent deeds altered the corresponding description to “high water mark – Provincetown Harbor.” Id. The Superior Court concluded that this linguistic turn was not evidence of a severance, and thus held that the owner of the upland held title to the flats. Id. The Supreme Judicial Court affirmed this conclusion. Id.

In the instant case, the record, which contains no other evidence of intent to separate flats from uplands, compels the same conclusion. [Note 69] In light of Pazolt, and based on the record before this court, the words “bounded…by the mean high water mark” are insufficient to effect a severance of the flats from the uplands. See Commonwealth v. Roxbury, 9 Gray at 524. As such, the defendants hold title to the flats appurtenant to Lot 14. [Note 70]

B. Plaintiffs’ Easement Extends to the Tidal Flats.

The defendants assert that Easement No. 3 terminates at the high-water mark. The plaintiffs hold otherwise, claiming various rights below the high-water mark, including the right to construct and maintain a dock for boating purposes. A logical discussion of the relevant issues is best served by resolving the dispute regarding the linear extent of Easement No. 3 before reaching the plaintiffs’ other claims.

The Johnson Deed conveyed Easement No. 3: “…a 10 foot wide easement over the easterly portion of [Lot 14] to and from the above noted easements and Follins Pond.” [Note 71] The operative language here is “a[n] easement…to Follins Pond.” (emphasis supplied). In Tindley v. Department of Environmental Quality Engineering, the trial court held that similar language, “a right of way to the Annisquam River,” [Note 72] (emphasis added), created an easement that extended to the low water mark. See 10 Mass. App. Ct. 623 , 627 n.6 (1980) (quoting trial court judgment on issue of linear extent of easement).

Although that conclusion was not challenged on appeal, the Tindley court cited several authorities in support of the proposition that, absent evidence of contrary intent, phraseology similar to that used there, and here, grants use rights to the low-water mark. Id. at 627, n.7, citing, e.g., Michaelson v. Silver Beach Improvement Ass’n, 342 Mass. 251 , 260-261 (1961); Old Colony St. Ry. v. Phillips, 207 Mass. 174 , 179-181 (1911); Valentine v. Piper, 22 Pick. 85 , 94 (1839). Accordingly, in the absence of evidence to the contrary, the grant of an easement “to Follins Pond” extends to the low water mark (or 100 rods, whichever is the lesser).

The defendants argue that the reference in the grant to Plan C, which depicts Lot 8 [Note 73] as bounded by the mean high water mark, is sufficient evidence of intent to terminate the easement at that point. [Note 74] In support of this contention, defendants cite Sheftel v. Lebel, as controlling authority. 44 Mass. App. Ct. 175 (1998). The defendants’ reliance upon Sheftel is misplaced, however. The holding in Sheftel rests primarily upon language found in the deed description itself, and not upon the “explicit references in all the descriptions of the easement to the recorded plan,” which the court suggests merely “cement[ed its] conclusion.” Id. at 180. [Note 75]

In fact, Sheftel, more than anything else, stands for the primacy of express language found in deeds themselves in interpreting the meaning of the conveyances they memorialize. See Id. at 179 (“[t]he basic principle governing interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in light of the attendant circumstances.”) (emphasis supplied).

In Sheftel, this express language was somewhat ambiguous, requiring the Appeals Court to look to another, related tenet of deed construction for guidance. See, supra, footnote 75. Here, in contrast, the Johnson Deed is both devoid of the ambiguity found in Sheftel, and lacks language demonstrating an intent to terminate the easement, i.e. Easement No. 3, at the high water mark. The description of the easement “to…Follins Pond…” as found in the Johnson Deed must, therefore, control, regardless of any claimed discrepancy between that description and the depiction in Plan C of Lot 8 bounded by mean high water. [Note 76] See Burke v. Commonwealth, 283 Mass. 63 , 68 (1933) (where deed and referenced plan differ, “the particular description [in the deed] is controlling over the reference to the…plan.”).

To recapitulate, under Massachusetts law, the conveyance of a property interest bounded by tidal waters includes a corresponding interest in those flats, absent explicit words of exclusion. Pazolt, 41 Mass. at 571, citing Com. v. Roxbury, 9 Gray at 524; Tindley, 10 Mass.App.Ct. at 627, n.7. As there are no such words of exclusion, and because an indirect [Note 77] reference to Plan C cannot override unambiguous language in the deed itself, Easement No. 3 extends to the mean low water mark.

C. Plaintiffs Lack an Interest in the 35 Foot Beach Area.

The plaintiffs assert use rights in the 35-foot-wide area, burdening Lot 14, as shown on Plan D. Plan D, however, was not filed until September 28, 1978, nearly two years after the conveyance of Lot 9, which created Easement No. 3, and from which plaintiffs’ rights derive. [Note 78]

Subsequent to filing Plan D, the then owner of Lot 14, Old Lyme, conveyed Lots 6, 7, and 11 to various grantees. In each deed, Old Lyme granted “the right to use the beach area at the end of said 10 foot strip of land as shown on Land Court Plan 34511-D[.]” Moreover, when Old Lyme conveyed Lot 14 to James F. Reynolds Jr., the deed included language burdening Lot 14 with a “ten foot easement…for foot passage and a beach area at the end of said easement, all as shown on [the D Plan],” which corresponds to the language in the deeds conveying Lots 6, 7, and 11. Thus, it is clear that the right to use the 35-foot beach area was conveyed as appurtenant to Lots 6, 7 and 11. The basis for the plaintiffs’ claim to possess such right, however, is far less apparent.

When Lot 9 was first conveyed out of the original subdivision by Chestnut Homes on October 22, 1976, via the Johnson Deed, the existing registered plan was Plan C, which does not show the 35-foot easement. [Note 79] By its own terms, the Johnson Deed does not grant an easement in the 35-foot beachfront area. [Note 80] Moreover, no subsequent conveyance in the plaintiffs’ chain of title either altered or expanded the use rights created by the Johnson Deed, or vested Lot 9 with new easements. Nonetheless, plaintiffs argue that “Old Lyme…[had] the right to designate a ‘beach area’ in the Old Lyme-Reynolds deed and locate the Third Easement on the D Plan.” [Note 81]

The plaintiffs contend that various grants of beach rights from Old Lyme, a grantor not in plaintiffs’ chain of title, modified and expanded rights previously granted to plaintiffs’ predecessor in title. In support of this proposition, plaintiffs cite to Anderson v. DeVries, 326 Mass. 127 , 134-135 (1950); however, that holding is inapposite. [Note 82] Anderson does not stand for the proposition that the grant of an easement providing access to a tidal body of water implies beach rights in the relevant tidal flats. See, supra, footnote 82.

The defendants’ predecessor in title, Old Lyme, burdened Lot 14 with beach rights through deeds conveying Lots 6, 7, and 11, and the registration of Plan D. In determining the scope of Easement No. 3, however, the language of the Johnson Deed and the Plan C, are the only relevant instruments. See Goldstein v. Beal, 317 Mass. 750 , 755 (1945) (“[i]n determining the intent, the entire situation at the time the deeds were given must be considered”) (emphasis added), quoting Prentiss v. Gloucester, 236 Mass. 36 , 52-53 (internal quotations omitted).

Those conveyances, outside plaintiffs’ chain of title and separated by two years from that grant, can have no effect, therefore, on rights granted to plaintiffs’ predecessor in title, Johnson, by Chestnut Homes. Moreover, the record lacks any evidence to the effect that Old Lyme ever granted rights to the plaintiffs, to the Whites, or to Johnson and McDonagh. Based on these undisputed facts, the plaintiffs have no beach rights burdening Lot 14. [Note 83]

D. Location of Plaintiffs’ Easement Has Been Established by Conduct

The Johnson Deed describes Easement No. 3 as “…a 10 foot wide easement over the easterly potion of Lot 8 to and from the above noted easements and Follins Pond.” Plan C, however, does not depict the location of that easement. See, supra, p. 6. Plaintiffs suggest that it lies within the area of Lot 14 designated as “Easement (10.00 Wide)” on that parcel’s southeasterly boundary, delineated on Plan D, although that Plan was registered on a separate branch of what was once a common chain of title. [Note 84] Defendants, for their part, allege that “[n]ot all of the elevated walkway above mean high water mark is situated within the 10 Foot Easement…” [Note 85]

It is axiomatic that “when an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed.” Labounty v. Vickers, 352 Mass. 337 , 345 (1967), quoting Kesseler v. Bowditch, 223 Mass. 265 , 268 (internal quotations omitted). See also Holmes v. Zerendow, 70 Mass. App. Ct. 1108 (2007) (same). Applying this principle, this court concludes that plaintiffs’ easement is located where the wooden walkway lies, even assuming, that it diverges at points from the area depicted on Plan D.

Here, the easement was granted over thirty years ago, and the record lacks evidence as to the exact location intended by the parties to the original conveyance, although Plan D provides evidence that the current location was eventually agreed upon by owners of the servient and dominant estates. As such, the location of the easement is set by the existence of the walkway and pier, which though less than ten-feet-wide, correspond to the original description of Easement No. 3, “over the easterly portion of [Lot 14], from [Lot 9] to Follins Pond,” and have been in continuous use at the present location since 1987.

The defendants contest this conclusion. There is no evidence in the record, however, to support the contention that Easement No. 3 is located anywhere other than where the wooden walkway lies. Moreover, the record is devoid of evidence evincing an intent to strictly locate the plaintiffs’ easement along the extreme easterly boundary of Lot 14. To the contrary, the language of the grant, “over the easterly portion of [Lot 14],” together with the absence of any depiction of the easement on Plan C, suggests an absence of intent to place Easement No. 3 explicitly in any predetermined location.

Accordingly, prior use by plaintiffs’ predecessor and the acquiescence in that use by defendants’ predecessor combine to set the location of the easement as tracking the ground beneath the disputed wooden walkway extending over Lot 14. See Proulx v. D’Urso, 60 Mass. App. Ct. 701 , 705 (2004) (“[even assuming that the easement was intended to be fixed at the extreme easterly boundary of Lot 14, an] original easement may be…relocated when the conduct of the parties…permit[s] a conclusion that a different easement had been substituted for the way mentioned in the deeds because the evidence reflects a tacit understanding or an implied agreement, manifested by the dominant owner's acquiescence in the use of the different easement in lieu of the original for a number of years”), quoting Anderson, 326 Mass. at 132-133 (internal quotations omitted). [Note 86]

E. Construction and Maintenance of Dock Structures for Boating Purposes Is Beyond the Scope of Plaintiffs’ Deeded Easement.

Having resolved certain subsidiary issues, this court may now reach the essential question: may the plaintiffs construct and maintain dock structures for boating purposes on defendants’ tidal flats pursuant to their deeded easement? For the following reasons, this court concludes that the plaintiffs may not.

An explicit grant authorizing plaintiffs to construct, maintain, and use dock structures for boating purposes on their easement is absent from the record. The plaintiffs, therefore, must argue that the original grant implies this use. For their part, defendants contest any such implication. A resolution of this issue requires that we again examine the law as it pertains to the interpretation of deeds.

The first relevant principle holds “that [a deed’s] meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel, 44 Mass.App.Ct. at 179, citing, e.g., J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923). In addition to the rights explicitly conveyed by the language of the grant, “when an easement…is created, every right necessary for its enjoyment is included by implication.” Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934).

Beyond relying upon attendant circumstances to assist in the construction of a deed, this court may consider subsequent events when they shed light upon the grantor’s intent: “[w]hen an easement is created by deed, but its precise limits and location are not defined, the location and use of the easement by the owner of the servient estate will be deemed to be that which was intended to be conveyed by the deed.” Labounty, 352 Mass. at 345, citing Kessler v. Bowditch, 223 Mass. 265 , 268 (1916). That said, evidence of subsequent use should only be considered, “if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it.” Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 632 (1990), quoting Bacon v. Onset Bay Grove Assn., 241 Mass. 417 , 423 (1922) (internal quotations omitted). [Note 87]

i. Contemporaneous Evidence of Grantor’s Intent With Regard To Easement No. 3.

The language of the deed itself, as considered in conjunction with the existing plan, and attendant circumstances, is the primary evidence of the grantor’s intent. Sheftel, 44 Mass.App.Ct. at 179. In this court’s view, there is little ambiguity regarding the purposes for which Easement No. 3 was granted. Easement No. 3 is an extension of Easement No. 2, the latter of which is shown as burdening Lots 9 and 10 on Plan C. Easement No. 2 describes a right of way as shown on Plan C, “solely for foot passage,” extending from Mayfair road to Follins Pond. Easement No. 3, in turn, provides for a “10 foot wide easement over the easterly portion of Lot 8 to and from [the second easement] and Follins Pond,” but is not explicitly shown on Plan C. The qualifying language in the Easement No. 2, “for the sole purpose of foot passage,” is specific and unequivocal, and is immediately further modified by the phrase “to and from Mayfair Road and Follins Pond.”

Harmonizing the second and third easement provisions, it is obvious that both provide for a right of way with one common terminus at Follins Pond. There is no evidence in the deed or plan of any intent to create two, wholly separate, and distinct 10-foot-wide easements in the area now represented by Lots 9 and 14, and no argument has been advanced to that effect. Rather, the inference is inescapable that the language found in Easements No. 2 and No. 3 is intended to describe what is, essentially, a continuous 10-foot-wide right of way.

To the extent that the two clauses contain inconsistent descriptions of the interest conveyed, “the more certain, unequivocal and particular description must govern.” W.M.Gullicksen Mfg. Co., 347 Mass. at 575. Clearly, the restrictive language of the second clause, “[a]n easement [as shown on Plan C] 10 feet in width…for the sole purpose of foot passage to and from Mayfair Road and Follins Pond,” is more certain and particular than the language of the third clause, “a 10 foot wide easement over the easterly portion of Lot 8 [Note 88] to and from the above noted easements and Follins Pond.” The restrictive language of the second clause, therefore, governs the extent of the right of way also described in the third clause. The second clause unequivocally calls for a right of way to Follins Pond for the sole purpose of foot passage, and there is nothing in the third clause to indicate a contrary intent. Accordingly, based on the undisputed title documents, as a matter of law, the Johnson Deed must be construed as conferring easement rights which the grantor intended “solely for the purpose of foot passage.” [Note 89]

It is also significant, as a relevant attendant legal circumstance, that the rights of the public under the Colonial Ordinance include the right to navigate the tidelands when flooded, but not to walk across the flats when bare. Opinion of the Justices to the House of Representatives, 365 Mass. 681 , 687 (1974). Accordingly, without a deeded easement, the plaintiffs would not otherwise have the right to walk across the flats when bare. It is thus reasonable to infer that Easement No. 3 was granted as a means of aiding the grantees in effectuating their rights in the public waters of Follins Pond, where without it, they would lack such access at certain times of the day. See supra, note 89.

In addition to the aforementioned language and circumstance, there is further evidence in the Johnson Deed itself of an intent to convey limited, rather than expansive, use rights. The three easement clauses are followed directly by two paragraphs which have the effect of conditioning the placement of any “building or structure of any kind” on the approval by the grantor of the relevant plans. [Note 90] In the first of these paragraphs, Chestnut Homes expressed an intention to “protect and preserve the natural beauty and scenic view and to create a desirable residential community and to appreciate the value of all of the lots on said plan for mutual enjoyment and privacy.” [Note 91] An easement limited to foot passage is in full harmony with this purpose.

An easement of limited usage would help to preserve privacy, while also facilitating the ability of each easement holder to enjoy their public rights in Follins Pond by providing for a right of foot passage to the water’s edge at any tide for purposes such as, for example, wading or launching a hand-carried boat. Nothing in this language supports an inference that the grantor intended to convey an easement for the purpose of erecting a pier, ramp and floats for the purpose of docking multiple boats. To the contrary, from this language of grant, it may reasonably be inferred that the grantor intended to convey rights which would only minimally disturb the natural conditions of the servient estate.

Based on the foregoing analysis, there is no support in the language of the Johnson Deed, the details of the plan, or the circumstances attending the creation of the Easement No. 3 to suggest an intention to convey the full scope of rights which the plaintiffs assert.

ii. Subsequent Use and Conduct

While the language of the deed itself is the primary source for construing the meaning of the interest conveyed, the plaintiffs correctly observe that courts may consider use of the easement subsequent to the conveyance to resolve ambiguities concerning granted use rights. [Note 92] As stated above, however, the extent to which subsequent use reflects the intent of the parties to the original conveyance may limit the relevance of this evidence. Bacon, 241 Mass. at 417. Thus, only conduct sufficiently connected logically and temporally to the conveyance itself may be considered as reflecting the intent of the parties. Id. at 424.

Bearing in mind the intent of the original grantor, this court considers the conduct of White in constructing the dock and Reynolds in acquiescing to it as too remote in time and circumstance to implicate the intent of the parties to the Johnson Deed. On the contrary, the record shows that subsequent to the creation of Easement No. 3, nearly ten years passed, between 1976 and 1985, during which the original grantee took no action to install any structures. The Whites’ construction of a walkway and dock are, therefore, too far removed in time from the Johnson Deed to be relevant to grantor’s intent.

Moreover, Reynolds’ acquiescence to White’s assertion of rights is also too far removed logically from the original conveyance to constitute relevant evidence of the grantor’s intent. The original grantor of Easement No. 3 was Chestnut Homes, which subsequently conveyed Lot 14, the servient estate, to Old Lyme about a year later, in 1977. Thereafter, in 1979, Old Lyme conveyed Lot 14 to Reynolds. Two exchanges, therefore, separated Reynolds from the relevant conveyance.

No authority has been cited, or argument advanced that would allow this court to infer the intent of a previous grantor from the acquiescence of a party so remote from the relevant conveyance, as Reynolds was from the conveyance of Easement No. 3 by Chestnut Homes in 1976. See Murphy v. Donovan, 4 Mass. App. Ct. 519 (1976) (only intent of original grantor is relevant to question of proper construction of deed). As such, there is also no merit to plaintiffs’ argument that the issuance of an OOC and COC to White by the Yarmouth Conservation Commission created or confirmed the scope of rights they now claim. Likewise, the defendants’ notice of the OOC and COC in Lot 14’s Memoranda of Encumbrances is of no legal effect, because those documents neither create property rights, nor provide relevant evidence of intent.

While White’s and Reynolds’s actions may not serve to elucidate the grantor’s intent, the record does contain undisputed evidence concerning the grantor’s conduct, which bears on the extent of the rights conveyed. The record demonstrates that after the execution of the Johnson Deed, Chestnut Homes deeded identical easements to nine other parcels, all within a year of the original grant of Easement No. 3. As they were executed within such close temporal proximity to the original conveyance, these deeds provide relevant evidence of the grantor’s intent with regard to that transaction.

Based upon this evidence, it seems clear that Chestnut Homes did not intend to grant docking and boating rights appurtenant to nine separate parcels, all of which would burden the same parcel. To conclude otherwise would be to strain beyond reason the meaning of the relevant language granting “a 10 foot wide easement, solely for foot passage.” There is no basis to suggest that Chestnut Homes intended to convey, as appurtenant to each of the nine separate parcels, the right to dock at least one powerboat on the defendant’s property.

Moreover, no further evidence is needed to conclude that 10 feet is too narrow a space to accommodate such use by nine parcels. Photographs provided by the plaintiffs confirm this conclusion. [Note 93] These photographs, which portray multiple power boats tied to the dock structures, make clear that assertion of such rights by each of the nine easement holders would result in an absurd application of a “ten foot wide easement, solely for foot passage.” [Note 94]

For the foregoing reasons, evidence relating to subsequent conduct does not support plaintiffs’ interpretation as to the scope of Easement No. 3; instead, it supports the conclusion that Chestnut Homes intended Easement No. 3 for limited use.

Thus, having examined the text of the deed itself, the attendant circumstances, and relevant subsequent conduct, this court concludes that plaintiffs’ easement is an easement of access to Follins Pond. As such, it is this court’s conclusion that the easement at issue permits only foot travel at low tide and its functional equivalent at high tide along the right of way. It does not provide plaintiffs with the right to moor one or more boats on Follins Pond or to store such boat(s) including their kayaks and dinghy. [Note 95]

iii. Whether Structures of Any Kind Are Reasonably Necessary for Plaintiffs’ Enjoyment of their Easement

Although this court has concluded that plaintiffs have no right to construct, maintain, and use dock structures for boating purposes, it does not follow that plaintiffs should be required to dismantle the wooden walkway and pier, and to be precluded from building all other structures. As stated in Sullivan v. Donohoe: “[w]hen an easement or other property right is created, every right necessary for its enjoyment is included by implication.” 287 Mass. 265 , 267 (1934), citing, e.g., Allen v. Scott, 21 Pick. 25 , 29-30. In prior sections we were concerned with past intentions; here, however, this court must focus on current conditions. See Mahon v. Tully, 245 Mass. 571 , 577 (1923) (reasonable use of deeded easement may vary over time depending on what is necessary to constitute full enjoyment of rights granted); Davis, 254 Mass. at 547 (reasonable use not necessarily limited to use of easement existing at time of conveyance).

On the issue of reasonable necessity, Tindley v. Department of Environmental Quality Engineering is particularly instructive. 10 Mass. App. Ct. 623 (1980). In Tindley, the Appeals Court reversed a Superior Court decision granting summary judgment in favor of an easement holder who claimed the right to anchor a ramp and floats to a tidal flat by virtue of a deeded easement similar to that at issue in the instant case. Id. at 628. As discussed, supra, § V(B), the easement language in Tindley, “to the Annisquam River,” carried with it the right to travel to the low water mark. An affidavit in the summary judgment record established that it was “undisputed that the portion of the right of way from the upland to the low water mark [was] impassable mud at low tide.” Id. at 627. The Superior Court reasoned that, because the easement holder had the right to make the right of way “passable and usable for its entire width,” the use of a ramp and floats to cross the flats at low tide was necessary for the enjoyment of the easement. Id.

The Appeals Court, however, held that a triable question of fact remained as to whether the structures at issue were reasonably necessary to the enjoyment of the easement, which “the affidavits did not obviate.” Id. at 628, citing, e.g., Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679 (1965). As was the case in Tindley, the record before this court reflects a similarly unresolved factual question of reasonable necessity. [Note 96] Tindley, 10 Mass.App.Ct. at 627-628; Murphy, 348 Mass. at 679, citing Guillet v. Livernois, 297 Mass. 337 , 340 (1937) (dominant estate has the right to make the easement “passable and usable for its entire width, having due regard to the rights and interests of others”). As such, summary judgment must, therefore, be denied as to the issue of what structures, if any, are reasonably necessary to the plaintiffs’ enjoyment of their easement.

F. 15-Foot Easement Over Southerly Boundary of Lot 9

The defendants claim a fifteen-foot-wide easement over the southerly portion of the plaintiffs’ property, as shown on Plans C and D. Defendants do not contend that they obtained this right of way by deed found in the record chain of title. Rather, defendants base their claim on an agreement purportedly executed by plaintiffs’ predecessors in interest, the Whites, on December 6, 2000, which was never recorded.

It is well settled, and the defendants do not contest, that the appearance of an easement on plans, without more, is insufficient to convey such an interest. See Scagel v. Jones, 355 Mass. 208 , 211 (1969) ("[i]t is well established that `where land is conveyed with reference to a plan, an easement . . . is created only if clearly so intended by the parties to the deed.'"), quoting Rahilly v. Addison, 350 Mass. 660 , 662 (1966). See Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926), quoting Prentiss v. Gloucester, 236 Mass. 36 , 52 (1920) ("a reference to a plan in a deed, although accompanied by its use for description or bounds, does not result in the conveyance of rights not necessary for the enjoyment of the premises, in the absence of an intent appearing to that effect").

Moreover, the absence of any reference to the easement in the Certificate of Title typically would be fatal to defendants’ claim, because the holder of a certificate of title “takes free from all encumbrances except those noted on the Certificate.” G.L. c. 185, § 46. Nonetheless, “even if an easement is not expressed on the certificate of title, a purchaser who has actual knowledge of a prior unregistered interest takes title subject to that…interest.” Feldman v. Souza, 27 Mass. App. Ct. 1142 , 1143-1144 (1982).

As evidence of plaintiffs’ knowledge of a “prior unregistered interest,” [Note 97] the defendants cite a letter from Attorney John Dale (Dale Letter) to the defendants, dated August 21, 2002, informing them that the “Granting of Rights to Cross Property of [the Whites]…has been extinguished by the sale of [Lot 9 to the Sciolettis][.] You no longer have the right or permission to cross the entire property to gain access to the raised walkway as the Whites no longer own the property. Passage on the southwesterly property line is henceforth restricted to the 15 foot easement abutting the wetlands[.]” [Note 98] Defendants assert that, because plaintiffs were carbon-copied, they “were aware of the White’s unrecorded grant to the [defendants] of the use of the 15 foot easement,” and thus “took title [to Lot 9] subject to the defendants’ unregistered interest in the 15 foot easement.” [Note 99] This assertion cannot survive summary judgment after comprehensive review of the record.

The Dale Letter and Affidavit of Jane S. Thomas [Note 100] are the only admissible items in the record that relate to plaintiffs’ knowledge of defendants’ putative prior unregistered interest. Viewing this evidence in the light most favorable to the defendants, the only reasonable inference is that plaintiffs took title to Lot 9 prior to receiving any notice of defendants’ asserted claim of right thereto. Plaintiffs’ deed to Lot 9 is dated August 20, 2002, while the Dale Letter is dated August 21, 2002. The record is without evidence that would suggest that plaintiffs had notice of defendants’ claim to a fifteen-foot easement burdening Lot 9 prior to taking title. [Note 101] Instead, the record shows that plaintiffs received notice of defendants’ claim only after they took title.

Defendants have failed to proffer sufficient evidence to exempt them from the strictures of G.L. c. 185, § 46. [Note 102] Given the record, there is no genuine dispute of material fact, because defendants have not put forth adequate evidence upon which this court could find that plaintiffs had notice of the prior unregistered interest before taking title to Lot 9. Accordingly, defendants lack any interest in the fifteen-foot easement burdening the southerly portion of plaintiffs’ property depicted on Plans C and D.

G. Defendant’s SLAPP Motion to Dismiss Pursuant to G.L. c. 231, § 59H

On September 12, 2007, defendants filed a Motion to Dismiss Pursuant to G.L. c. 231, § 59H (§ 59H or anti-SLAPP statute). [Note 103] The target of this motion is plaintiffs’ claim for monetary damages and injunctive relief based on a theory of “abuse of administrative process.” [Note 104] In Count One and Count Two of the First Amended Complaint, plaintiffs suggest that defendants’ complaint, appeal, and application to the DEP concerning the dock structures under G.L. c. 91, as a whole constitute an “abuse of administrative process.” [Note 105]

To obtain relief under § 59H, defendants must demonstrate two elements: first, that their complaint, appeal and application to the department constitute the petitioning activity that § 59H seeks to protect. G.L. c. 231, § 59H; second, that the claims they seek to dismiss are based on their petitioning activities without any other substantive basis. Duracraft Corporation v. Holmes Products Corporation, 427 Mass. 156 , 167-168 (1998).

Once these elements are met, defendants’ motion must be granted unless the plaintiffs can show that: (1) the defendants’ exercise of their rights to petition was devoid of factual support or legally untenable; and (2) the defendants’ acts caused actual injury to the plaintiffs. G.L. c. 231, § 59H. Failing such a showing, the motion shall be granted and “the court shall award [the defendants] costs and reasonable attorney’s fees, including those incurred for the special motion and any related discovery matters.” Id.

The defendants have made the requisite showing that the portion of plaintiffs’ complaint challenged here is based on their petitioning activities alone, having no other substantive basis. The specific relief sought by the plaintiffs, monetary damages resulting from defendants’ “abuse of the administrative process,” [Note 106] and an injunction preventing defendants from interfering with plaintiffs’ efforts to obtain a G.L. c. 91 license for the dock structures, [Note 107] rests solely on defendants’ attempts to secure a c. 91 license for their own exclusive use of the dock structures.

Plaintiffs’ argument to the contrary is unavailing. Succinctly put, plaintiffs assert that defendants’ claims before the DEP fit into a larger, legally untenable, strategy to dispossess plaintiffs of their easement. [Note 108] Notwithstanding this attenuated argument, defendants’ § 59H special motion to dismiss focuses solely on those claims that are “based on” defendants’ petitioning activity before the DEP. Dismissal of these claims will not impede the full and fair resolution of the underlying easement dispute. Instead, such dismissal will serve to streamline the remainder of these proceedings.

Defendants’ motion successfully addresses two discrete prayers for relief: the first for damages to the plaintiffs stemming from defendants’ administrative appeals, and the second for an injunction, which would prohibit defendants from engaging in further petitioning activity before the DEP. Both facially concern petitioning activity alone. Defendants, therefore, have met the threshold requirement for their § 59H motion.

Moving to the next stage of the analysis, there is little doubt that the defendants’ complaint, application, and appeal to the DEP constitute petitioning activity, [Note 109] grounded upon sound legal and factual bases. This petitioning activity began in 2001, when “a dispute [regarding the parties’ rights to use the dock structures] arose between White and Thomas,” spurring defendant to file a complaint against White in July for “using and maintaining unlicensed structures.” [Note 110] Regardless of motive, the record shows that defendants’ complaint had a reasonable basis, such that the DEP determined the unlicensed dock structures were in violation of G.L. c. 91, and issued NON 1, [Note 111] requiring the removal of the offending structures.

A year later, defendants applied for their own c. 91 license for the dock structures. In that application, the defendants asserted the right to exclude easement holders, including plaintiffs, from the dock structures. The DEP’s written denial of this application acknowledges that assertion in declining to give it credence. [Note 112] Plaintiffs argue that the defendants “in their application lied…to the DEP about the ownership of the land and structures,” by not disclosing certain facts. The plaintiffs do not cite to any document in the record in support of this allegation, and, moreover, plaintiffs fail to link the alleged misrepresentations to the specific data required by the DEP to process a c. 91 application. [Note 113]

The final instance of petitioning activity, which plaintiffs attack as actionable, is defendants’ January, 2004 appeal of a draft c. 91 license issued to the plaintiffs. Despite plaintiffs’ characterizations, this court considers the appeal to be a well-reasoned and comprehensive expression of defendants’ perspective relating to the proper scope of the easements burdening their property. [Note 114] Plaintiffs say that this appeal, as well as defendants’ prior petitions to the DEP, were done “to harass and cause harm to the plaintiffs and other easement holders, ” [Note 115] without pointing to any evidence in the record to that effect. All plaintiffs provide are bald accusations of misrepresentations, without anchoring them to facts on the record.

While the parties have disagreed about numerous legal and factual issues since defendants’ first complaint to the DEP in 2002, plaintiffs have failed to submit any evidence of impropriety by the defendants in their petitioning activity. The record casts no doubt upon the reasonableness of defendants’ complaint, application and appeal to the DEP. All were based on reasonable factual and legal grounds: defendants’ credible theory that they owned the tidal flats, the walkway, and docks on their land, and that they had the right to prevent easement holders from mooring boats to those docks.

Plaintiffs advance the additional argument that their abuse of administrative process claim is “not a SLAPP suit; it is not intended to intimidate defendants or somehow discourage them from petitioning administrative agencies.” [Note 116] They assert that “the typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against new development projects.” [Note 117] While accurate, these generalizations regarding the purpose of § 59H do not limit its application in the case at bar. There is no need to look further than § 59H’s broad definition of “a party’s exercise of its right of petition” to conclude it applicable here. [Note 118]

The application of § 59H to the instant case is clear: the plaintiffs claim an award of damages and injunctive relief based solely on defendants’ reasonable petitioning activity before the DEP, thus triggering the provisions of § 59H.

Finally, plaintiffs cite Duracraft for the proposition that “many preexisting legal relationships may properly limit a party’s right to petition, including enforceable contracts in which parties waive rights to otherwise legitimate petitioning.” 427 Mass. at 165. Plaintiffs attempt to apply this principle to the facts of the instant case as follows: “defendants’ preexisting duty to plaintiffs under the recorded easements precludes defendants’ exercise of their right to petition against the use of the easement.” [Note 119]

Plaintiffs, however, fail to identify language from any relevant “recorded easement” that might bind the defendants in the manner described. Instead, they merely assert that “defendants are owners of the servient estate and were aware of the existence of the plaintiffs’ easement and the obligation that imposed upon defendants.” [Note 120] Plaintiffs do not specify how the relevant title documents impose an enforceable obligation on defendants to refrain from seeking redress from a state licensing agency concerning the legality of structures built upon their property. As discussed supra, § V.E, plaintiffs lack an express authorization under the relevant deed to erect structures within their easement upon Lot 14, and the exact extent of the rights they may properly exercise vis à vis building structures on that easement is a fact-intensive inquiry requiring a trial. Plaintiffs’ application of the rationale and holding of Duracraft to this case, therefore, is unavailing.

In conclusion, because plaintiffs claim of “abuse of administrative process,” or alternatively, “malicious prosecution,” is based solely on defendants’ protected petitioning activities, which were founded upon manifestly reasonable legal and factual grounds, defendants’ special motion to dismiss must be allowed. As required by statute, defendants are entitled to recover reasonable attorney’s fees, “including those incurred for the special motion and any related discovery matters.” A date for hearing relative to said award of attorney’s fees shall be set within 45 days of the current date.

H. Plaintiff’s Motion to Amend Complaint Pursuant to Mass.R.Civ.P. 15(A)

As detailed supra, p. 4, plaintiffs submitted a motion to amend in lieu of the memorandum requested by this court on November 5, 2007, which was to elucidate plaintiffs’ purported “abuse of administrative process” cause of action. Plaintiffs ask that “this Honorable Court should allow Plaintiff’s Motion to Amend Complaint as [it] simply conforms Count II to the evidence.” [Note 121] Plaintiffs suggest that they are not “asking to add a new cause of action, which would rely on new facts or require more discovery.” [Note 122]

Considering plaintiffs’ amended claim relies upon the same facts and evidence as the original claim for “abuse of administrative process,” their Motion to Amend must be denied as futile. See Mathis v. Massachusetts Elec. Co., 409 Mass. 256 , 264 (1991) (Although leave to amend “shall be freely given when justice so requires,” denial is appropriate when the proposed claim will not withstand a motion to dismiss, thus rendering amendment futile.) Whether styled “abuse of administrative process,” or “malicious prosecution,” for the foregoing reasons stated supra, § V.F, plaintiffs’ attack on defendants’ petitioning activity before the DEP falls squarely within the statutory protection provided by § 59H, and will thus be ordered dismissed. [Note 123]

In light of the foregoing, Plaintiffs’ Motion for Summary Judgment and Defendants’ Cross Motion for Summary Judgment are each Allowed in part and Denied in part, as follows:

Accordingly, it is hereby ORDERED and DECLARED as follows:

1. The Thomases possess title to the flats [Note 124] appurtenant to Lot 14, [Note 125] said flats never having been effectively severed from the upland portion of said Lot 14.

2. The Sciolettis’ easement rights extend to the low water mark [Note 126] of Follins Pond.

3. While limited to a 10 foot width, the location of plaintiffs’ easement has been established by usage and tracks the existing walkway.

4. Plaintiffs possess no rights in the 35 foot beach easement area.

5. Plaintiffs’ use right burdening Lot 14 is limited to an easement of access, “ten feet wide, solely for foot passage,” [Note 127] to and from Lot 9 and the low water mark of Follins Pond.

6. Plaintiffs may not store or maintain any boats on the Thomas property, either within the 10 foot easement area, or otherwise.

7. Plaintiffs’ easement does not encompass the right to maintain dock structures for boating purposes. 8. Defendants’ use rights burdening plaintiffs’ property are limited to the 10 foot deeded easement as shown on Land Court Plan 34511-C.

9. The defendants have no rights in the 15 foot wide easement along the southerly boundary of plaintiffs’ Lot 9 as depicted upon Land Court Plan 34511-C.

It is further

ORDERED that defendants’ Motion to Dismiss pursuant to G.L. c. 231, § 59H be, and hereby is, ALLOWED. A date for hearing on defendants’ award of attorneys fees will be scheduled within 45 days of the date of this decision.

A trial will be scheduled to resolve the discrete factual issue as to what structures, if any, are reasonably necessary to effectuate plaintiffs’ 10 foot wide easement of access.

Appropriate injunctions to issue upon final disposition of this case.

So Ordered.

By the Court (Grossman, J.)


[Note 1] Plaintiff’s Supplemental Brief, p.10.

[Note 2] See Def.’s Suppl. Appx Exh. 9 (Reg Doc. 247,507, Transfer Certificate of Title to James F. Reynolds, Jr., dated January 16, 1979).

[Note 3] Complaint, ¶ 1.

[Note 4] Except for the Thomases, all other named defendants were defaulted on September 2, 2005.

[Note 5] Complaint, ¶ 22 (b).

[Note 6] Complaint, ¶ 24 (a),(b).

[Note 7] A copy of Plan C is appended hereto as Exhibits A1 and A 2, respectively.

[Note 8] Filed with Cert. of Title No. 67687, September 28, 1978.

[Note 9] A copy of Plan D is appended hereto as Exhibit B.

[Note 10] Title derived through deed from Priscilla S. White to Cynthia A. Scioletti and Daniel C. Scioletti, Jr., dated August 20, 2002, Registration Document No. 882,609.

[Note 11] Def.’s Exh. B (Order for Decree No. 34511.)

[Note 12] Subdivision Plan of Land in Yarmouth, Thomas E. Kelley Co., dated February 12, 1974, filed with certificate of title No. 43134, Registry District of Barnstable County.

[Note 13] Transfer Certificate of Title No. 67687, recorded at Book 546, Page 87, Registry District of Barnstable.

[Note 14] Subdivision Plan of Land in Yarmouth, Down Cape Engineering, Surveyors, Dated February, 1976, filed with Certificate of Title No. 52056, issued by the Barnstable Registry District.

[Note 15] Registration Document 213, 359. Plaintiff’s Exh. 3.

[Note 16] A subsequent subdivision plan, Land Court Plan 34511-D (Plan D), which created the locus, Lot 14, depicts an easement area matching the description of Easement No. 3, as discussed below.

[Note 17] See Defendant’s Appendix, Exh. 5.

[Note 18] See Plaintiff’s Exh. 8, Registration Document 226470.

[Note 19] Subdivision Plan of Land in Yarmouth, George Low & Company Surveyors, dated September 29, 1978, Filed with Certificate of Title No. 67687, Registry District of Barnstable County.

[Note 20] See Defendants’ Appendix, Exh. 8.

[Note 21] See Id.

[Note 22] See Defendants’ Appendix, Exh. 10 (deed from Old Lyme Realty Trust to James F. Reynolds, Jr., dated January 16, 1979). This deed is incorporated by reference in the relevant Transfer Certificate of Title, No. 71954. Thus, the easement burdening Lot 14, and corresponding to the 10 foot easement as shown on Plan D, survives the registration process.

[Note 23] The primary meaning, in Massachusetts property law, of the word “beach” is “that land between the high water mark and low water mark,” wherein the tide ebbs and flows. Anderson v. Devries, 326 Mass. 127 , 133 (1950).

[Note 24] Transfer Certificate of Title No. 71954, dated February 1, 1979.

[Note 25] The Lot 2 description, as discussed supra, p. 5.

[Note 26] Plaintiff’s Exh. 4, Registration Document 368,952. The deed conveys Lot 9 “subject to and [with] the benefit of rights, easements and restrictions set forth in Document No. 213,359 (the Johnson Deed).” The record does not contain a corresponding Transfer Certificate of Title.

[Note 27] Registration Doc. No. 384,058. Plaintiff’s Exh. 5.

[Note 28] Registration Doc. No. 625,574. Plaintiff’s Exh. 6.

[Note 29] Registration Doc. 882,609, as reflected in Certificate of Title 166,325. Plaintiff’s Exh. 7.

[Note 30] Scioletti Aff., ¶ 34. It is not clear from the record exactly when the walkway and dock were built, however, it is undisputed that an order of conditions for the construction was issued on June 18, 1987, and that subsequently a certificate of compliance was issued for the dock dated September 20, 1996, as discussed below.

[Note 31] See Plaintiff’s Exh. 18.

[Note 32] See Plaintiff’s Exh. 14.

[Note 33] Affidavit of Daniel C. and Cynthia A. Scioletti, ¶ 29; see Plaintiff’s Exh. 15.

[Note 34] Affidavit of James F. Reynolds, Jr., ¶¶ 6, 8. (November 15, 2005).

[Note 35] Plaintiff’s Exh. 16.

[Note 36] Id. at p. 2, “General Conditions [2]”

[Note 37] See Plaintiff’s Exh. 18, “Sketch Plan of dock, walkway, floats.”

[Note 38] Affidavit of George M. White, ¶ 6. (October 17, 2005).

[Note 39] Affidavit of James F. Reynolds, Jr., ¶ 6 (November 15, 2005).

[Note 40] Certificate of Title No. 77196. Plaintiff’s Exh. 11.

[Note 41] Certificate of Title No. 144919. Plaintiff’s Exh. 13 and 14.

[Note 42] Registration Document No. 697, 997. See Plaintiff’s Exh. 12.

[Note 43] Registration Document No. 226, 470.

[Note 44] Registration Document No. 247, 507.

[Note 45] See Plaintiff’s Exh. 11.

[Note 46] Registration Document No. 265, 942.

[Note 47] Registration Document No. 436, 408.

[Note 48] Plaintiff’s Exh. 21, p. 2.

[Note 49] Id.

[Note 50] Id.

[Note 51] Id.

[Note 52] Plaintiff’s Second Appendix, Exh. E.

[Note 53] Id.

[Note 54] Deed from Priscilla S. White to Cynthia A. Scioletti and Daniel C. Scioletti, Jr., Registration Document No. 882,609.

[Note 55] Plaintiff’s Exh. 19, entitled “Assignment of All Right, Title, Interest & Causes of Action Relative to Pilings and Floats the Subject of NONSE01-6008, SE83-651, Wetlands File 83-788.”

[Note 56] Application received on or about June 27, 2002 by the DEP. Plaintiff’s Exh. 21, p. 1.

[Note 57] Id., p. 3.

[Note 58] Id.

[Note 59] Id., citing 310 CMR 9.36 (3),(4).

[Note 60] Division of Administrative Law Appeals, Docket No. 2003-034.

[Note 61] Plaintiff’s Second Appendix, Exh. H.

[Note 62] Division of Administrative Law Appeals, Docket No. DEP-04-298.

[Note 63] Plaintiffs’ Second Appendix, Exh. L.

[Note 64] See Exh. L.

[Note 65] Plaintiff’s Exh. 24.

[Note 66] The precise boundaries of the said flats are not here at issue.

[Note 67] Plaintiffs cite to a recent Real Estate Bar Association seminar for the following proposition: “[w]here a boundary runs ‘to the high water mark,’ the description excludes the title to the tidal flats.” The full citation: Edward S. Englander, Esq., Lawrence Heffernan, Esq. and Thomas O. Moriarty, Esq., “The Shifting Sands of Massachusetts Beach Rights,” presented to REBA at the 2006 Spring Seminar, May 8, 2006. Plaintiff’s Supplemental Brief (Pl.s Supp. Brief), p. 12.

[Note 68] Plaintiff’s Brief (Pl.’s Brief), p. 15.

[Note 69] In this affidavit, Ross Joly states that “all of the lots were bounded by mean high water and the area between mean high and mean low water was set aside for common usage by all of the lot owners. The deeds out of any property along the water specifically restricted ownership to mean high water.” This is not competent evidence of an intention to exclude the flats in the conveyance to Reynolds, primarily because Joly was not a party to that conveyance. Furthermore, the language of the title documents speaks for itself- and does not explicitly restrict ownership of any lot in the subdivision to mean high water.

[Note 70] This conclusion is further buttressed by language in the Reynolds deed itself subjecting Lot 14 “to the rights of the public in the tidewaters of Follins Pond.” See, supra, p. 8. If that deed intended to sever the uplands from the flats of Lot 14, that severance would have rendered this clause superfluous. The public’s rights under the Colonial Ordinance attach to the inter-tidal zone. If this court accepts plaintiffs’ interpretation of “to the mean high water mark,” as excluding the flats, why would the deed include language subjecting the lot to rights in the public inapplicable to the uplands?

[Note 71] Johnson Deed, dated October 22, 1976. Registration Doc. No. 213,359. Plaintiff’s Exh. 3.

[Note 72] 10 Mass. App. Ct. 623 , 624 (1980).

[Note 73] Despite language in the grant suggesting otherwise, the 10-foot-wide easement, ranging from Easement No. 2 to Follins Pond, is not depicted on Plan C.

[Note 74] Defendants’ Brief, p. 11-12. Not only would such an argument, if adopted, undermine defendants’ ownership of the flats, but the boundary of a lot burdened by an easement is of questionable relevance to the linear extent of that easement.

[Note 75] The operative language in the deed at issue in Sheftel was as follows: “a twenty foot easement as shown on [a certain plan] extended to mean high water…[which is] a right of way for foot travel only for the benefit of [the dominant estate] as shown on said plan to and from Prince Cove.” 44 Mass. App. Ct. at 176-177. The court held that “we are able to begin and end our inquiry here by reference to the explicit language of the easement as set forth in…[the deed]. That language irresistibly points to the conclusion that the easement was not intended to and does not extend. . .beyond the high water line.” Id. at 179.

This conclusion drawn by the Sheftel court hinges primarily upon several principles of deed construction. The first is that the language used in the deed itself is the primary source for determining the intent of the grantor, and as such, interpreting the meaning of the conveyance. Sheftel, 44 Mass. App. Ct. at 179, citing J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923); Suburban Land Co. v. Billerica, 314 Mass. 184 , 189-190 (1943); Barchenski v. Pion, 9 Mass. App. Ct. 896 (1980). Second, in the context of express easements, the extent of a right of way is set by the language of the conveyance that creates it. Sheftel, 44 Mass.App.Ct. at 179, quoting Restatement of Property § 483 comment (d) (1944), and citing Murphy v Donovan, 4 Mass. App. Ct. 519 , 527 (1981); Pion v. Dwight, 11 Mass. App. Ct. 406 , 412 (1981); Lowell v. Piper, 31 Mass. App. Ct. 225 , 230 (1991). Applying these principles, the court held that the deed’s reference to “mean high water” would be sufficient alone to dispose of the question, were it not for that deed’s ambiguity. Sheftel, 44 Mass.App.Ct. at 179.

As a consequence of the deed’s ambiguous language, the court turned to the third principle: where a deed contains inconsistent descriptions of the interest conveyed, the more certain and specific terms must govern. Id. at 181 n. 8, citing Presbrey v. Presbrey, 13 Allen 281 , 283 (1866); Morse v. Chase, 305 Mass. 504 , 507-508 (1940); W.M. Gullicksen Mfg. Co. v. MacNeil, 347 Mass. 568 , 575 (1964). The court, therefore, determined that the description “to mean high water” took precedence over the conflicting words “to and from Prince’s Cove,” because “[r]eference to the objectively ascertainable natural boundary mark of the mean high water line is unquestionably more specific than the mention of a body of water of varying dimensions.” Id. By application of these principles, the Sheftel court determined that the subject easement was bounded by the mean high water mark.

In supporting this conclusion, the court pointed to several other factors, including limiting language relating to the scope of the easement, for “foot travel only,” which is consistent with the easement’s terminating at the high water mark, above the point at which foot travel would become increasingly precarious as tides rise; and the graphic description of the easement as depicted on the recorded plan expressly referred to in the grant, which indicates that the easement was intended to terminate at the high water mark. Id. at 180-181. This references to a description of the subject easement in the recorded plan, however, merely provides ancillary support for the notion that the more specific language relating to where the easement terminates, “extend[ing] to mean high water,” controls over the less certain, contradictory language, “to and from Prince Cove.” There is no indication in Sheftel that the reference to a description in a recorded plan holds sway over express language in the deed itself.

[Note 76] It should again be noted that Plan C does not depict Easement No. 3; see, supra, p. 6, which presents another significant factual distinction from Sheftel. There, the referenced plan explicitly depicted the disputed easement.

[Note 77] The reference to Plan C in the Johnson Deed is deemed indirect, because it is not actually included in the clause creating Easement No. 3. See, supra, p. 5-6. Note that reference to a recorded plan in Sheftel was included in the language granting the easement itself, i.e. yet another significant factual distinction from the case at hand. See Sheftel, 44 Mass. App. Ct. at 176-177.

[Note 78] Johnson Deed of October 22, 1976.

[Note 79] Defendants inexplicably assert that the 35-foot easement shown on Plan D is “unlabeled,” despite the extension of a dotted line and arrow from the word “Easement” to the line clearly demarcating a 35-foot-wide section of land at the edge of Follins Pond. The exact same kind of dotted line and arrow are used to connect the same word “Easement” on the D Plan to the depiction of the 10-foot right of way located along the easterly edge of Lot 14.

[Note 80] The deed’s language, as reproduced supra, p.5-6, simply described rights in a “ten foot wide easement over the easterly portion of [Lot 14] to and from the above noted easements and Follins Pond.”

[Note 81] Plaintiffs’ Supp. Brief, p. 11.

[Note 82] In Anderson, the Supreme Judicial Court upheld the trial judge’s conclusion that, in the absence of an express grant of beach rights, the conveyance of easements “’to the beach’ carried with them the use of the beach,” under the attendant circumstances. 326 Mass. at 131. Some of the relevant circumstances that counseled for such a broad reading of the grant’s language include the fact that the subject parcels sit in “a seashore resort where residents of a summer colony are [typically] granted access to the beach,” Id. at133; and that “[t]he chief inducement for the purchase of parcels [in the subdivision] was the right to use the beach for swimming, bathing, and sun bathing.” Id. at 129. The Anderson decision did not involve the adjudication of rights purportedly gained as a result of subsequent recordation of subdivision plans, or of language in deeds outside the easement holders’ chains of title.

Moreover, the Court in Anderson had some textual support for concluding that the parties obtained beach rights by implication from the grant of easements “to the beach.” Id. at 131. Here, the operative language does not mention the beach: “to…Follins Pond.” See, supra, p. 6. Ultimately, Anderson provides no support for plaintiffs’ contention that Plan D and subsequent Old Lyme deeds altered or clarified rights created further up the chain of title, or bestowed plaintiffs with additional use rights.

[Note 83] By disposing of plaintiffs’ claim of deeded beach rights, this court also disposes of any claim of prescriptive beach rights, because registration inoculates real property from such adverse claims. G.L. c. 185, § 53. See Goldstein v. Beal, 317 Mass. 750 , 757 (1945); Town of Sandwich v. Panciocco, 48 Mass. App. Ct. 556 , 560-561 (2000). The only exception to this rule is if the registration petitioner has knowledge or reason to know of an unregistered interest at the time of filing the petition. See Panciocco, 48 Mass. App. Ct. at 561. Nothing has been alleged in this action to render that exception a live issue.

[Note 84] See Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, p. 8: “The Plaintiffs possess the right to license, permit, construct, maintain, repair, and use the elevated walkway, dock and floats as described in the Dock Plan (Exhibit 18) within the Easement Area shown on Plan D.”

[Note 85] Opposition of Francis C. Thomas and Jane S. Thomas to Plaintiffs’ Motion for Summary Judgment and Request for Entry of Summary Judgment Pursuant to Mass. R. Civ. P. 56(c), p. 3.

[Note 86] The Supreme Judicial Court reversed part of Anderson’s holding in M.P.M. Builders, LLC v. Dwyer. 442 Mass. 87 , 90 (2004) (“[r]egardless of what heretofore has been the common law, we conclude that § 4.8(3) of the Restatement is a sensible development in the law and now adopt it as the law of the Commonwealth”).

In M.P.M, the SJC changed the common law rule regarding the relocation of easements from requiring the agreement of both dominant and servient estates to allowing servient estates to unilaterally relocate easements, through court proceedings, Id. at 93; and as long as such relocation would not “significantly lessen the utility of the easement, increase the burden on the use and enjoyment by the owner of the easement, or frustrate the purpose for which the easement was created.” Id. at 91-92. Further, the servient estate seeking relocation also “must bear the entire expense of the changes in the easement.” Id. at 92.

There is, however, no indication in M.P.M. that the aforementioned principle of deed construction concerning where to locate an easement in the event of textual ambiguity and in the first instance has been invalidated. Instead, M.P.M. would provide defendants a right to relocate the plaintiffs’ easement through a judicial proceeding, designed to ensure that the relocation would not detrimentally affect plaintiffs’ use rights, but such an action is not presently before this court. M.P.M., therefore, is not relevant to the cross motions at hand.

[Note 87] Survey of Massachusetts case law indicates that, while the level of logical and temporal proximity of subsequent conduct to the original grant is significant when determining whether that conduct sheds light upon the intended scope of an easement, as opined in the quotation from Boudreau above, these considerations may not bear on the relevance of such conduct to the location of that easement. See Davis v. Sikes, 254 Mass. 540 , 546 (1926) (“[t]he owner of the servient estate has the first right to locate an undefined way, subject to the requirement of reasonable convenience and suitability, and if he fails to do so the owner of the easement is entitled to fix its location”), citing Russell v. Jackson, 2 Pick. 574 . It is for this reason that subsequent conduct, over ten years removed from the grant of the easement, may determine the location of an easement, when a location has not been set during that time, but remains irrelevant to the range of uses sanctioned by the grant of the easement because of its temporal and logical distance from that conveyance.

[Note 88] Lot 8 as appearing on Plan C, appears as Lot 14 on Plan D.

[Note 89] Plaintiffs contend that the omission from Easement No. 3 of the restrictive language found in Easement No. 2 was purposeful, and that its purpose was to authorize the type of open-ended use the plaintiffs propound in this suit. See Pl.’s Supp. Brief, p. 10:

[T]he Third Easement is not limited to foot passage by its own very terms [sic]. As a general right of way or easement, and where no particular method of travel over the Third Easement is expressed, the Court should view “. . . a broad right of passage by any reasonable method of travel whether bare or covered with water.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 180 (1998), interpreting Old Colony St. Rye v. Phillips, 207 Mass. 174 , 181 (1911).

While this court disagrees with the plaintiffs’ premise—that the omission was purposeful—even assuming arguendo, it were true, their syllogism is not compelling.

The plaintiffs misapprehend the meaning of Old Colony. In Old Colony, a petitioner for registration requested the SJC to declare, inter alia, an easement void ab initio by virtue of its describing a legal nullity or, alternatively, or because it is indefinite. Old Colony, 207 Mass. at 179. The granting language in that case is as follows: “together with a privilege or passage way from said Creek into Town River.” Id. The petitioner in Old Colony considered this language to be a legally meaningless “grant of a way through tidal water,” which authorizes uses by the grantee already sanctioned by the Colonial Ordinance. Id. The SJC disagreed.

The SJC explained that the deeded easement over the petitioner’s tidal flats confers upon the easement holder rights different in kind, but complimentary to, those provided by the Colonial Ordinance. Id. at 180-181. For instance, the easement holder possesses the right to walk on the flats, while bare, which the Colonial Ordinance would not permit. Id. at 180. Moreover, the easement holder’s right to navigate over the deeded easement is different than that held by the general public under the Colonial Ordinance. Id. at 181. The Court observed:

[T]he right to navigate [pursuant to the Colonial Ordinance] was not absolute. So far as it was a public right the owner of the flats could destroy it by buildings and inclosures, and it stood only so far as it was a riparian right . . .

The parties were thinking of a passageway from the land described in the deed to the low water mark of the river,—a passageway over land which by the operation of natural laws was bare or substantially bare during a considerable part of every twelve hours, and during the rest of the time was covered with water of varying depth, a part of time capable of being navigated. If the passage was only by land or if it was only by water, then either case during a considerable part of every twelve hours it was not available. The language of the deed is broad and comprehensive and must be held to describe a right of passage over the flats, whether bare or covered with water, at any and all times and by any reasonable method of travel. The passage may be by walking on the bare flats, by wading when practicable, or by boat when convenient. The easement is not through public waters as such, but is over land; and that is so whether or not the land is covered with water and whether or not the public have also another and different right to pass through the water. It is an easement over land in fee owned by the grantor. It interferes with no right of the public, and we see no reason why it may not be valid in law as between the parties to the deed and their privies in interest. Suppose the owner of the fee of the bed of a private natural pond should grant a way over a part of the bed, could it be successfully contended that the grantee could not pass over the way in a boat provided always he keep within the lines of his way? Old Colony, 207 Mass. at 180-181 (emphasis added).

Here, the Court does not consider a grant, devoid of limiting language concerning the permitted method of travel over a littoral easement, as providing a right to erect and maintain a marina, but rather as recognizing the fact that an easement over tidal flats does not, strictly speaking, countenance foot travel alone. Thus, Old Colony would explain the omission of the restrictive language as a mere recognition of the realities concerning travel over tidal flats, and nothing more. To take up plaintiffs’ interpretation of Old Colony would be to extract certain passages out of context and ignore the overriding message of that holding. In no way does Old Colony support the notion that “a 10 foot wide easement . . . to and from the above noted easements and Follins Pond” authorizes the building and maintenance of a marina, because no where does that holding permit the same under “a privilege or passage way from said Creek into Town River.”

This conclusion about the significance of Old Colony to the task at hand is further supported by the Court’s argument in dispensing with petitioner’s contention that the easement suffers from fatal indefiniteness. The Court stated “[b]y the aid of circumstances the court can adjudge the uses intended by the parties; and when the limits or location of the way have not been determined by the parties by a use or otherwise, then [the matter is to] be judicially determined.” Id. at 181. In this way, even assuming arguendo the omission of the restrictive language were intentional, this court’s subsequent analysis would remain intact and is supported by Old Colony. If the omission were purposeful, then its purpose was merely to recognize that different modes of travel over the flats are reasonable at different times, and not a general and unrestricted right to make any use of the easement that the plaintiffs wish.

[Note 90] This language appears in both parties’ chains of title. Said language applies to placement of structures on Lot 9 directly by virtue of the Johnson deed, and to Lot 14 by virtue of the deed out from the Johnson Deed’s grantor, Chestnut Homes, to Old Lyme, dated September 30, 1977. It is unnecessary to determine whether this restriction specifically applies to the structures at issue here, or whether such construction is in violation of this clause in absence of a recorded consent. The relevant point is that this language provides evidence of the grantor’s intent at the time Easement No. 3 was granted. That intent runs counter to plaintiff’s claim of an implicit and absolute right to place dock structures within the area of Easement No. 3 for boating purposes

[Note 91] Plaintiff’s Exh. 3.

[Note 92] Plaintiff’s Supp. Brief, p. 13; Plaintiff’s Brief, p. 13-14, citing Labounty v. Vickers, 352 Mass. 337 .

[Note 93] See Plaintiff’s Photograph Index, submitted October 1, 2007, containing 35 individual photographs. Photos 1-17 portray the dock structures at issue, at various times between August of 2001 and summer of 2007. Photos 18-35 show other dock structures purportedly located on Follins Pond. No identifying information is provided as to the exact locations of any of these structures, of their proximity to the Locus, of how long they have been in existence, etc. There is nothing in the record to link any of these structures to the conveyance of the easement at issue by Chestnut Homes in 1976. Thus, plaintiffs have failed to establish how these photographs may be material to consideration of the grantor’s intent.

[Note 94] The plaintiffs agree that the rights they claim are shared equally by the 8 other easement holders. They do not offer any explanation regarding how the grantor of Easement No. 3 may have intended that such rights be managed among the parties. Would the owner of the servient estate be responsible for placing an ultimate limit upon the number and size of vessels which could be docked at any one time? Would each dominant estate have the right to maintain separate docking facilities, branching off of a central pier? Would easement holders be entitled to dock more than one vessel? While recognizing that determining the proper scope of easement rights is generally a question of reasonableness, given the language and circumstances of the conveyance here, this court can discern no reasonable means of reconciling a ten-foot-wide easement with use which amounts to maintenance of a modest marina. See Mahon v. Tully, 245 Mass. 571 , 577 (1923) (court determines scope of easement rights based on standard of reasonableness); See also Delcounte v. Salloum, 336 Mass. 184 , 190 (1957) (use of easement, stated in deed to be for particular purpose, is limited to the purpose stated).

[Note 95] Second Affidavit of Daniel and Cynthia Scioletti, ¶¶ 6, 7.

[Note 96] The plaintiffs have failed to establish through undisputed evidence, that a walkway or pier is necessary to effectuate their easement rights. Photographs, submitted by plaintiffs, and authenticated by affidavit, show the upland portion of the servient tenement as marshy, with the existing wooden walkway occupying at least part of the easement area. See Plaintiff’s Photo Index, Exh. 1, 4, 8,10, 11,12. Other photographs seem to depict the tidal flats as covered with large clods of dark soil or mud, possibly covered in sea vegetation. Id. at Exh. 13, 14. Although the affidavits of the plaintiffs, and of Bernard Kilroy, fail to directly address the issue of reasonable access for foot passage to low water, the aforementioned photographs are sufficient evidence to support an inference that some form of structure could be reasonably necessary to effectuate the plaintiff’s easement rights. For their part, the defendants have failed to establish, based on undisputed evidence, that no such walkway or pier structure is necessary for the reasonable enjoyment of the said Easement. The defendants, however, have also submitted photographs, authenticated by affidavit, which contradict the plaintiffs’ factual claims. See Supplemental Affidavit of Jane S. Thomas. These photographs depict the subject tidal flats as seemingly sandy and firm to walk on, in support of defendants’ sworn statement to that effect. Id., ¶ 3.

[Note 97] Because there is no evidence that plaintiffs had knowledge of the interest defendants now claim, prior to taking title to Lot 9, the court need not address the related question of whether any property interest was actually conveyed by the December 6, 2000 Agreement.

[Note 98] See Thomas Affidavit, Exh. B.

[Note 99] Defendant’s Brief, p. 16.

[Note 100] Dated August 30, 2007. In ¶ 8, defendant purports to prospectively incorporate and verify unspecified prior “submittals and statements.” One might infer that this refers to defendants’ pro-se Motion for Summary Judgment and Opposition to Plaintiffs Motion for Summary Judgment, filed in the Superior Court in 2006. However, the court is left to speculate as to which additional factual assertions this ¶ 8 purports to verify.

[Note 101] See Defendant’s Brief, p. 16 , which states that “the only evidence before the Court is that the Sciolettis were aware of the White’s unrecorded grant to the Thomases of the use of the 15 foot Easement at the time that the Sciolettis purchased [Lot 9],” with no citation to the record. Again, the Court is left to speculate as to what evidence defendants’ assertion refers to.

[Note 102] Additionally, defendants assert that a trespass action in Barnstable District Court has rendered this issue res judicata. This contention must fail, as defendants have failed to provide any evidence that either: (1) the two causes of action are essentially identical; or (2) that the District Court action was a final determination on the merits of defendants’ easement claim. Moreover, defendants fail to specify whether their defense invokes the claim preclusion, or alternatively the issue preclusion branch of the res judicata doctrine. Compare Jarosz v. Palmer, 436 Mass. 526 , 530-530 (2002) (elements and application of issue preclusion defense); with Bagley v. Moxley, 407 Mass. 633 (1990) (elements of claim preclusion).

[Note 103] It seeks “to dismiss so much of Count 1 and all of Count 2 of the First Amended Complaint in this matter as are based solely on the Thomases’ exercise of their right to petition the Department of Environmental Protection.”

[Note 104] Plaintiffs attempt at this late date to amend their complaint, and recast this theory of recovery as “malicious prosecution.” Regardless of the name given to this cause of action, the underlying facts upon which plaintiffs rely are the same. This proposed alteration of nomenclature does not alter the inquiry regarding whether defendants’ appeals and application to the DEP are petitioning activity, protected under § 59H.

[Note 105] Alternatively, plaintiffs’ claim for damages is cast as one for “malicious prosecution.” In either case, the focus of the test under § 59H is “not on the plaintiff’s claim, but rather on the petitioning activity that the special movant asserts bars the plaintiff’s claims.” Duracraft Corporation v. Holmes Products Corporation, 427 Mass. 156 , 165 (1998).

[Note 106] First Amended Complaint ¶ 24 (a).

[Note 107] Id., ¶ 24 (b).

[Note 108] See Plaintiff’s anti-SLAPP Opposition, p. 8: “[P]laintiffs’ claims are not based solely on defendants’ petitions to the department, but on defendants’ continued, unsupported, sustained, frivolous and malicious attempts to deny Plaintiff’s use and enjoyment of the easement granted as a matter of record title and actual use.”

[Note 109] See Kobrin v. Gastfriend, 442 Mass. 327 , 331 (2005) (§ 59H applies to petitions brought before “governmental agencies.”) Plaintiffs concede this point at page 7 of their Opposition.

[Note 110] Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Pursuant to G.L. c. 231, § 59H (Plaintiffs’ Anti-SLAPP Opposition), p. 2.

[Note 111] Moreover, the DEP informed White that his application could not be processed without defendants’ consent, because they owned the property upon which the dock was to be situated. See supra, p. 12.

[Note 112] See supra, p. 13 (recounting basis for DEP’s denial as concern for easement holders’ rights in Locus). Defendants unsuccessfully appealed the denial of their application. See fn 61, supra.

[Note 113] As an example of the specious nature of these contentions, plaintiffs argue that defendants misled the DEP by “not disclosing” that “the Thomas title is bound by mean high water and does not include the tidal flats where the structures reside.” Plaintiff’s anti-SLAPP Opposition, p. 5. As discussed supra, § V.A, whether defendants owned the flats was an open question at the time of defendants’ DEP application. Indeed, the question has remained unresolved, and genuinely disputed on both sides, until the issuance of the instant decision. Regardless of the ultimate accuracy of defendants’ claims concerning title to the flats, those claims were clearly not “devoid of any reasonable factual support or arguable basis in law” when asserted in their application to the department.

[Note 114] See Plaintiff’s anti-SLAPP Appendix, Exh. L.

[Note 115] Plaintiff’s anti-SLAPP Opposition, p. 9.

[Note 116] Id. at p. 11.

[Note 117] Id., citing Duracraft, 427 Mass. at 161.

[Note 118] Section 59H defines parties’ rights to petition as:

any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any other governmental proceedings….or any other statement falling within constitutional protection of the right to petition government. G.L. c. 231, § 59H.

[Note 119] Plaintiffs’ anti-SLAPP Opposition, p. 11.

[Note 120] Id.

[Note 121] Plaintiff’s Memorandum of Law in Support of Motion to Amend (Memo to Amend), p. 5.

[Note 122] Id. at 6.

[Note 123] Moreover, as set forth ably in defendants Opposition, even if plaintiffs’ malicious prosecution claim was not subject to dismissal pursuant to the anti-SLAPP statute, it is apparent that such a claim would still be vulnerable to a 12(b)(6) motion. Opposition of Francis C. Thomas and Jane S. Thomas to Plaintiffs’ Motion to Amend Complaint Pursuant to Mass.R.Civ.P. 15(A).

[Note 124] Or 100 rods, whichever is the lesser.

[Note 125] As appearing on Land Court Plan 34511-D.

[Note 126] See FN 129.

[Note 127] Or its functional equivalent as the tides may require when crossing over the flats to the said low water mark For example, wading, carrying or launching a hand held boat. See Old Colony, p. 181.