JOHN D. HAMILTON, JR and ANDREW H. COHN, as Trustees of Oyster Pond EP Trust, RICHARD L. FRIEDMAN, ALLEN W. NORTON, JUDITH A. NORTON, and MELISSA NORTON, as Trustees of the Quiet Oaks Realty Trust, ALBERT WHITE, TONI W. HANOVER, and SHAUNA W. SMITH, individually and as Trustees of the Quampacky Trust v. MICHAEL D. MYEROW as Trustee of Botar Realty Trust, the Rabor Realty Trust, and the Tarob Realty Trust, PAMELA KOHLBERG as Trustee of the Job’s Neck Trust, ANDREW KOHLBERG as Trustee of the High Road Realty Trust, JEFFREY FLYNN, RICHARD KEELER, and PATRICIA POST, as Trustees of the Pohogonot Trust, PAUL E. KONIG and JOANNE V. KONIG, as Trustees of the Paul E. Konig Revocable Living Trust and as Trustees of the Joanne V. Konig Revocable Living Trust, JOKASE LIMITED PARTNERSHIP, and SHORT POINT HOLDINGS, LLC

Plaintiffs, John D. Hamilton, Jr. and Andrew H. Cohn, as Trustees of the Oyster Pond EP Trust, et al., commenced this action on October 29, 2004, seeking to quiet title to a certain parcel of real property known as South Beach Ocean Front in Edgartown and declaratory judgment, pursuant to G.L. c. 231A, § 1, confirming their rights to use certain rights of way to the beach known as Whelden’s Path, Pohogonot Road, and the Road to Short Point, which lie over certain parcels of real property owned of record by certain defendants. [Note 1]

On October 29, 2004, plaintiffs filed an application for preliminary injunction. Defendants opposed the motion on November 19, 2004. The motion was argued before the Court on November 22, 2004, and taken under advisement. The Court (Trombly, J.) issued an Order on November 24, 2004, granted a preliminary injunction enjoining defendants from blocking or otherwise interfering with plaintiffs’ rights to use their alleged rights of way over the defendants’ property.

On February 17, 2005, Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust (“Pohogonot Trust”) filed a motion to intervene. On February 28, 2005, Pamela Kohlberg, as Trustee of the Job’s Neck Trust, and Andrew Kohlberg, as Trustee of the High Road Trust (“Kohlberg Defendants”) also filed a motion to intervene. The motions were argued before the Court on March 8, 2005, and taken under advisement. The Court issued an Order on April 6, 2005, allowing the motions to intervene.

On April 20, 2005, defendant, the Pohogonot Trust filed an answer and counterclaims. This filing joined as parties the so-called “additional defendants-in-counterclaim.” [Note 2] On August 23, 2005, plaintiffs, with leave of court, filed their first amended complaint, adding Short Point Holdings, LLC as defendant.

On September 1, 2006, plaintiffs filed a motion for partial summary judgment on Count I of the first amended complaint. On October 26, 2006, the Pohogonot Trust filed a cross-motion for partial summary judgment. On October 30, 2006, the Kohlberg Defendants filed a motion for partial summary judgment pertaining to the plaintiffs’ alleged ownership of an interest in the current 8200 foot beach. On November 2, 2006, the defendant, Michael Myerow, as Trustee of the Botar Realty Trust, the Rabor Realty Trust and the Tabor Realty Trust (“Myerow Defendants”), also filed a motion for partial summary judgment pertaining to the issue of beach rights.

On March 5, 2007, plaintiffs and additional defendants-in-counterclaim filed a reply brief in support of their motion for partial summary judgment. On April 13, 2007, Pohogonot Trust filed a surreply brief in support of its motion for summary judgment on the beach rights issue and in opposition to the plaintiffs’ motion for summary judgment. On April 17, 2007, the Kohlberg Defendants filed a surreply brief in support of its motion for partial summary judgment and in opposition to the plaintiffs’ motion. On April 18, 2007, the Myerow Defendants filed a reply brief in support their motion for partial summary judgment and in opposition to the plaintiffs’ motion.

These motions were argued on April 30, 2007, and are the matters presently before the Court. [Note 3] On June 8, 2007, the Pohogonot Trust filed a supplemental response on the issue of laches.

On January 22, 2008, plaintiffs and additional defendants-in-counterclaim filed a motion for leave to file a supplemental brief in support of their motion for partial summary judgment on Count I of their verified complaint as well as said supplemental brief. On February 7, 2008, the Myerow Defendants and the Pohogonot Trust filed an opposition to the plaintiffs’ motion to file a supplemental brief. The motion was argued before the Court on February 8, 2008, and taken under advisement. The Court issued an Order on February 15, 2008, denying the plaintiffs’ motion to file a supplemental brief and refused to enter the supplemental brief in the record.

On April 14, 2008, the parties filed an assented-to motion to dismiss various claims by and against the additional defendants-in-counterclaim. The motion was heard by the Court on September 18, 2008, and allowed. The Court issued an Order on September 19, 2008, dismissing all claims by and against the additional defendants-in-counterclaim.

The Court issued an Order today, denying the Pohogonot Trust’s motions to strike the affidavit of Allen W. Norton, Exhibits B and C to the affidavit of Dean J. Hutchinson, the affidavit of Martin A. Loria, and Exhibit 18 to the affidavit of Donna Goodale as well as allowing in part and denying in part, the Pohogonot Trust’s motion to strike paragraphs 22-27, 30, and 31 of the affidavit of A. Richard Vanozzi, P.L.S.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. South Beach Ocean Front in Edgartown is a beach parcel consisting of approximately 1.7 miles of shoreline on the southwestern shore of Edgartown in Martha’s Vineyard located between Job’s Neck Point in the East and Watcha Line in the West (“Beach”).

2. The southern shoreline of Martha’s Vineyard is eroding. From 1846 to 2005, the shoreline experienced a nearly constant rate of erosion, on average five point two feet (5.2’) per year near Watcha Pond and seven point two feet (7.2’) per year near Edgartown Great Pond (East of the Beach). During this time, the shoreline eroded inland approximately eight hundred and fifty one feet (851’) near Watcha Pond.

3. In 1846, the Beach was abutted to the North by three ponds: Oyster Pond, North of the western border of the Beach; Paqua Pond in the west-center; and Job’s Neck Pond, North of the eastern border of the Beach.

4. As a result of the eroding shoreline, the shorelines of these ponds have migrated northward and been reshaped. Job’s Neck Pond has been fractured into three ponds: (1) Job’ Neck Pond; (2) Pohogonot Cove, once connected to the pond, has separated and stands alone abutting the Beach on its northern border, East of center; and (3)The eastern cove of Job’s Neck Pond has similarly separated—now called Little Job’s Neck Pond—it stands alone North of the eastern border of the Beach. Isaac’s Neck lies between what was formerly Pohogonot Cove on the West and Job’s Neck Pond on the East, and Short Point lies between Job’s Neck Pond on the West and Little Job’s Neck Pond on the East. (A Decision Sketch is attached.)

5. The Beach as it was located in 1846 is an area now submerged in the Atlantic Ocean as a result of this erosion. In fact, the Beach as it was located as late as 1938 is submerged.

6. Plaintiffs’ alleged interest in the Beach derives from a deed dated May 9, 1712 recorded with Dukes County Registry of Deeds in Book 6, page 283, in which John Butler conveyed to Captain Samuel Smith a parcel of land, encompassing, what is today, the Beach. [Note 4]

7. In 1841, Capt. Smith’s land was owned, one-half by Wilmot Smith and one-half by the eight heirs of Samuel Smith. [Note 5]

8. By deed dated September 21, 1841, recorded in Book 28, page 229, Wilmot Smith conveyed to four of the eight heirs, [Note 6] his one-half, undivided interest in an upland parcel known as Paqua and the beach parcel (“1841 Smith Deed”). [Note 7]

9. The 1841 Smith Deed describes Paqua and the beach parcel separately.

10. The 1841 Smith Deed describes the beach parcel as “bounded on the North by the arable land of Paqua and Pohogonot and by the several ponds in the vicinity; on the South by the Ocean; and extending to Job’s Neck Point on the East, and to the Oyster pond opening on the West….”

11. The 1841 Smith Deed describes Paqua as bounded “on the South by the Beach….”

12. By deed dated September 25, 1841, recorded in Book 28, page 232, the eight heirs divided and conveyed to Wilmot Smith, their one-half, undivided interest in an upland parcel known as Pohogonot (“1841 Pohogonot Deed”).

13. The 1841 Pohogonot Deed describes Pohogonot as bounded on the South from Paqua Pond “easterly by [the fence at the edge of the Beach] or Beach to Job’s Neck Pond….”

14. Plaintiffs derive their alleged interest in the Beach from Josiah H. Smith, one of the eight heirs. [Note 8]

15. A warranty deed in the plaintiffs’ title, dated October 31, 1875, recorded in Book 59, page 245, describes the conveyance as “all our right and interest in the beach extending from Job’s Neck Point to Watcha Line, so-called, however the above may be located…” (“1875 Alden Deed”).

16. The plaintiffs’ title may then be traced to the 11/56th interest held by Allen Norton in November 1888. By deed dated November 7, 1888, recorded in Book 79, page 483, Allen Norton divided and conveyed to Edmund G. Beetle, his undivided, 11/56th interest in Paqua but retained his undivided, 11/56th interest in the beach parcel (“1888 Norton Deed”).

17. The 1888 Norton Deed describes the conveyance as “all my right, title, and interest in said ‘Paqua’, except to the beach, extending from Job’s Neck Point to Watcha Line so called.”

18. In or about 1950, Winthrop B. Norton and George D. Flynn, Jr. commissioned Attorney Harry Perlstein to conduct a title exam of the Beach in order to determine the title. In December 8, 1950, Attorney Perlstein made his report in a letter addressed to Mr. Norton and Mr. Flynn and titled “Letter of Opinion, Discussion of Deed, Allen Norton to Edmund G. Beetle, Book 79, Page 483, and Examiner’s Narrative” (“Perlstein Letter”).

19. Upon his death on January 22, 1981, Winthrop B. Norton—who held an 11/56th interest in the beach parcel—attached to and incorporated by reference in his will, the Perlstein Letter, which was subsequently recorded with the will at the Dukes County Probate Court.

20. More contemporary deeds in the chain of title describe the beach parcel as “Ocean Beach Land at Oyster Pond, consisting of 9,300 +/- feet ocean frontage from Jobe’s[sic] Neck Point to the West Tisbury Town Line.”

***

Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party….” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248 (cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006)); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 9] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment. Rule 56(c).

I. LACHES

As a threshold matter, plaintiffs argue that the defendants are barred by laches, estoppel, and waiver from counterclaiming that plaintiffs do not have an interest in the Beach. [Note 10] The doctrine of laches or estoppel is “an equitable defense consisting of unreasonable delay in instituting an action which results in some injury or prejudice to the defendant.” Yetman v. Cambridge, 7 Mass. App. Ct. 700 , 708-709 (1979). I am not persuaded that defendants did not act in good-faith and without delay to enforce their rights.

Even if defendants had been certain in their belief that plaintiffs did not have an interest in the Beach, plaintiffs have not demonstrated that they are prejudiced by the defendants’ delay. See Polaroid Corp. v. Travelers Indemnity Co., 414 Mass. 747 , 759-60 (1993); Myers v. Salin, 13 Mass. App. Ct. 127 , 140-41 (1982). This case arises from a long history of unclear and uncertain title. Defendants were understandably unclear as to whether plaintiffs had an interest in the Beach, and this confusion was only continued by the Perlstein Letter—not clarified or settled by it, as the plaintiffs contend. Since the 1980’s defendants have made known their claim against the plaintiffs’ alleged interest in the Beach and have made good-faith efforts to resolve the dispute out-of-court. See 1993 Letter from John Flynn to Allen Norton. Despite knowledge of the defendants’ claims, plaintiffs have continued to invest in the Beach. See 1995 Memorandum of George Flynn.

Moreover, plaintiffs are seeking, through this motion, a judgment on Count I of their second amended complaint, which prays for declaratory judgment confirming their interest in the Beach. Plaintiffs would have the Court bar defendants from counterclaiming against the plaintiffs’ claim of right, while at the same time asking the Court to determine the status of those very rights. Even if defendants were barred from counterclaiming against the plaintiffs’ rights, the plaintiffs still have the burden of demonstrating that they hold an interest in the Beach. If plaintiffs do not have an interest in the Beach, those rights cannot be gained by barring defendants’ counterclaim. Accordingly, the laches issue is moot.

II. BINDING ARBITRATION

Plaintiffs also argue that in or about 1950, Winthrop B. Norton and George D. Flynn, Jr., the parties’ predecessors-in-title, commissioned Attorney Harry Perlstein to conduct a title exam of the Beach in order to determine the title. Plaintiffs’ assert that when two parties agree to submit a question to an attorney for resolution, they have agreed to a form of quasi-arbitration and are legally bound by the determination made by that attorney-arbiter, and therefore, the parties, in this case, are bound by the conclusions of the Perlstein Letter. Plaintiffs further contend that an agreement to be bound by the arbitration may be implied by the conduct of the parties following the determination. Plaintiffs are effectively arguing that the parties formed an implicit contract to be bound by the conclusions in the Perlstein Letter.

In the instant case there is no express agreement of the parties, before the Court, and I am not persuaded that the subsequent actions of the parties are sufficient evidence of an implicit agreement to be so bound. Rather than demonstrating such a contract, the fact that the Flynn’s acted consistently with this letter after its delivery demonstrates that the Flynn’s believed that the letter was accurate. Accordingly, I rule that the Perlstein Letter has no legally binding effect on the parties and the issue of beach rights must be determined on the merits.

III. BEACH RIGHTS

1. The 1841 Beach Parcel

In 1841, the beach and uplands were owned one-half by Wilmot Smith and one-half by the eight heirs of Samuel Smith. The 1841 Smith Deed is the first deed in the title to describe the beach parcel separately from the upland. Subsequently, the 1841 Pohogonot Deed divided and conveyed the upland parcel known as Pohogonot while the grantors retained interest in the beach parcel. The plaintiffs’ alleged interest in the Beach can then be traced to Allen Norton, who in 1888 owned the upland parcel known as Paqua and the beach parcel. By the 1888 Norton Deed Mr. Norton divided and conveyed Paqua but retained his 11/56th interest in the beach parcel.

It is well-settled and basic property law that where accretions to the shoreline result in gain to the uplands, “the line of ownership follows the changing water line.” Burke v. Commonwealth, 283 Mass. 63 , 68 (1933); see Allen v. Wood, 256 Mass. 343 , 349 (1926); East Boston Co. v. Commonwealth, 203 Mass. 68 , 75 (1909). Similarly, erosions lost to the tide “result in a loss of the eroded property for the owner.” Lorusso v. Akapesket Improvement Ass’n, Inc., Land Court Reg. Case No. 314-S (March 24, 1989) (affirmed Lorusso v. Acapesket Improvement Ass’n, Inc., 408 Mass. 772 (1990)) (citing Michaelson v. Silver Beach Improvement Ass’n, Inc., 342 Mass. 251 , 258 (1961)). If such property erodes away completely, the rights of the property owner are extinguished. See id.

The reason for this rule lies in fairness to those landowners upland of the beach. The owner of a beachfront property assumes the risk that the tide may erode his or her land. However, he or she also stands to be benefited in the event that the tide accretes his or her land. Id. The owner of upland, non-beachfront property does not assume such risk but also does not stand to gain from any such potential benefit. It would be utterly unfair to assign all of the risk of loss to the upland owner and allow the beachfront property owner to retain the potential for benefit. Beachfront property cannot have rights superior to those of inland property, and inland property cannot be treated disparately based solely on its proximity to beachfront property.

In the instant case, the 1841 Smith Deed defines the beach parcel and the 1841 Pohogonot Deed divides and conveys separately most of the upland from that parcel. The 1888 Norton Deed relies on the description of the 1841 Smith Deed to define Paqua and the beach parcel in dividing and conveying separately the remainder of the upland from the beach parcel, in the plaintiffs’ title history. It is undisputed that the southern shoreline of Edgartown is eroding and that the beach as it was located in 1841 is an area now submerged in the Atlantic Ocean as a result of this erosion. In fact, the Beach as it was located as late as 1938 is submerged. Even if the 1888 Norton Deed had re-described the Paqua and the beach parcel as it stood in 1888, such a beach parcel was not located sufficiently upland to save it from total erosion.

2. Moveable Parcel

a. Language of the 1841 Deed

Plaintiffs contend that the description of the beach parcel in the 1841 Smith Deed does not bound the beach in the North or the South by fixed points and, therefore, rather than creating a fixed beach parcel, creates a moveable parcel whose boundaries follow the shifting shoreline and, further, that this understanding has been reflected in subsequent grants ever since. “The basic principle governing the 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 the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) (and cases cited); Doody v. Spurr, 315 Mass. 129 , 133 (1943) (and cases cited). Where land is described in a conveyance by use of “monuments which are certain or capable of being made certain, the monuments govern….” Town of Blackstone v. Town of Millville, 59 Mass. App. Ct. 565 , 568 (2003) (quoting Ryan v. Stavros, 348 Mass. 251 , 258-59 (1964) (and cases cited). This includes defining a boundary by the borders of an abutting parcel. Paull v. Kelly, 62 Mass. App. Ct. 673 , 680 (2005); see also Ryan, 348 Mass. at 258-59; Temple v. Benson, 213 Mass. 128 , 132 (1912).

In the instant case, the 1841 Smith Deed describes the beach parcel as bounded in the North by “the arable land of Paqua and Pohogonot and by the several ponds in the vicinity; on the South by the Ocean….” Plaintiffs firstly contest the sufficiency of the ocean as a fixed boundary. However this argument is wholly unfounded; the ocean is a valid monument, which is properly used in a deed to describe the border of a parcel of property. See Morehardt v. Dearborn, 313 Mass. 40 , 42-43 (1943); Burke, 283 Mass. at 68. The Ocean, as any monument, is presumed to define a fixed parcel of land, located on the ground as of the date of the conveyance—although the border defined by the Ocean, but not other borders, would necessarily follow the changing waterline. See Morehardt, 313 Mass. at 42-43; Burke, 283 Mass. at 68; Lorusso, Land Court Reg. Case No. 314-S.

Plaintiffs also argue that the phrase “arable land” refers to a transitory natural feature, and not a fixed boundary. The parties are in agreement that “arable land” at least means non-beach land and includes those lands upland of the beach dunes. The phrase is intended to bound the beach at the point where the sand ended and the farmable upland began. Natural features may be used to define the boundaries of a property, and the fact that such features are used, alone, is not nearly sufficient to create a moveable estate, even if such features are transitory.

I am further persuaded by the fact that the 1841 Smith Deed and the 1841 Pohogonot Deed describe the southern boundary of both Paqua and Pohogonot, respectively, by the beach parcel. The 1846 Coastal Survey locates a fence between Paqua Pond and Job’s Neck Pond and a fence dividing the Beach from Paqua running between Oyster Pond and Paqua Pond, just as the deeds describe. The remainder of the 1841 beach parcel’s northern border was largely defined by “the several ponds in the vicinity…” The description in the 1841 Smith Deed is sufficient to locate the beach parcel on the ground. [Note 11]

b. Circumstances of the Beach Parcel

Plaintiffs single out the 1875 Alden Deed, which describes the beach parcel as “the beach extending from Job’s Neck Point to Watcha Line, so-called, however the above may be located.” (emphasis added). Plaintiffs also point to more recent deeds in their title, which rest on a general description of the beach parcel as “that beach land” and do not provide any northern or southern border for the beach parcel whatsoever. [Note 12] In the same vein, plaintiffs point to the fact that nowhere in their title is the location of the beach parcel specified by a date in time, e.g. language such as, “the beach as it is located at the time of this conveyance”. In addition, plaintiffs cite to the common knowledge of the residents of Martha’s Vineyard that the southern shoreline of the island is, and has always been, eroding, contending that an intent to convey a moveable beach parcel is obvious from these circumstances and that no reasonable islander could have intended otherwise. I do not agree that this is sufficiently clear as to merit an interpretation of the deed that runs counter to a fundamental tenant of property law. There is insufficient evidence in the language or the circumstances attending the grant to suggest an intention to convey such broad rights as plaintiffs assert. [Note 13]

Moreover, the general and vague descriptions of property in this title, rather than demonstrating that the plaintiffs’ predecessors-in-title understood the beach parcel to be a moveable estate, demonstrates only that these predecessors believed they owned and were conveying “the beach”: a parcel of land covered with sand and abutting the water; that these predecessors believed that the location of this parcel was obvious; and that they conveyed it simply by recalling the collective language of in that long chain of title conveying the beach parcel, deriving from the 1841 Smith Deed.

Accordingly, I rule that the plaintiffs’ predecessors-in-title held title only to the beach parcel as it was located in 1841 and a fixed estate, an area that has since been completely eroded and submerged in the Atlantic Ocean, and therefore, their interest has been liquidated.

IV. PUBLIC TRUST DOCTRINE

Plaintiffs also make the strange argument that if the Court determines that the plaintiffs do not have an interest in the Beach the public would somehow lose their rights to use the public waters of the Beach. Plaintiffs apparently presume to add a legal element to deed interpretation: Harm to the public interest. While sound public policy is always the concern of a Court in equity, such an argument does not require this Court to grant plaintiffs an interest in real estate where none is legally present.

Even if the Court were inclined to consider such an argument, the Beach abuts the public waters of the Atlantic Ocean. It is well-settled law in the Commonwealth that the Colonial Ordinance of 1641-1647, subjects the flats—the land between the high and low watermarks—to private ownership by the owner of the adjoining upland. [Note 14] Colonial Ordinance of 1641-1647, reprinted in The Book of the General Lawes and Libertyes, 50 (1649); Storer v. Freeman, 6 Mass. 435 (1810). The Courts have interpreted the Colonial Ordinance as reserving rights in trust for the benefit of the public superior to those of the private owner; the public holds the right “to have the benefit of the waters for navigation, fishing and fowling.” Fafard v. Conservation Comm’n of Barnstable, 432 Mass. 194 , 198, (2000) (quoting Crocker v. Champlin, 202 Mass. 437 , 441 (1909)); see Colonial Ordinance of 1641-1647; Opinion of the Justices, 365 Mass. 681 , 686 (1974); Boston v. Richardson, 105 Mass. 351 , 362 (1870).

In the instant case, the public has the right to use the flats of the Beach for fishing, fowling, and navigation. These rights are separate and distinguishable from those claimed by plaintiffs. The public rights are reserved to the public and superior to the private upland owner; they are definitionally unaffected by the private ownership of the upland property, no matter who holds the uplands. Moreover, unlike a fee title, the rights held in public trust lie in all land in the Commonwealth between the low and high watermarks. Effectively, the public rights do shift with the flats as the shoreline accretes or erodes, unlike plaintiffs’ interest. See Trio Algarvio, Inc. v. Comm’r of the Dept. of Envtl. Prot., 440 Mass. 94 , 97 (2003); Town of Wellfleet v. Glaze, 403 Mass. 79 , 81 n. 2 (1988); Commonwealth v. Inhabitants of Charlestown, 18 Mass. 180 (1822).

V. RIGHTS HELD BY THE COMMONWEALTH IN THE BEACH

Finally, plaintiffs draw the analogous conclusion that if defendants theory of the case holds water, then the beach has migrated not only onto the defendants’ uplands but also onto land owned by the Commonwealth, as the former location of certain Great Ponds: Oyster Pond, Paqua Pond, and Job’s Neck Pond. However, in the matter presently pending before the Court, the parties do not seek a determination of all rights in the Beach, but merely, pursuant to Count I of the plaintiffs’ complaint, to declare the rights of the plaintiffs in the Beach. The possibility that another party may have interest in the Beach is entirely possible and not foreclosed by this decision. Therefore, the plaintiffs’ argument is inappropriate, and the Court makes no determination on this issue, at this time. [Note 15]

CONCLUSION

For the foregoing reasons, this Court concludes that plaintiffs do not have any rights, title, or interest in the Beach. The plaintiffs’ interest in the beach parcel is derived from the 1841 Smith Deed. Since that time the coordinates of the beach as it existed in 1841 have been completely submerged in the Atlantic Ocean as a result of the erosion of the southern shore of Martha’s Vineyard. Furthermore, the 1841 Smith Deed did not create a moveable beach parcel. The description of the beach in that deed is sufficient to locate the property on the ground and bounds the beach parcel on all sides. Furthermore, neither the language of the deed nor the attendant circumstances surrounding the grant suggest an intention to create a moveable parcel. Accordingly, the plaintiffs’ motion for partial summary judgment is hereby DENIED. The Pohogonot Trust’s cross-motion for partial summary judgment is ALLOWED; the Kohlberg Defendants’ motion for partial summary judgment pertaining to the plaintiff’s alleged ownership of an interest in the current 8200 foot beach is ALLOWED; and the Myerow Defendants’ motion for partial summary judgment pertaining to the issue of beach rights is ALLOWED.

Charles W. Trombly, Jr.

Justice

Dated: April 1, 2009