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 October 26, 2006, the Pohogonot Trust, filed a motion for partial summary judgment on the issue of prescription. Plaintiffs opposed the motion on December 22, 2006. On January 16, 2007, the Pohogonot Trust filed a reply to the plaintiffs’ opposition. This motion was argued on February 1, 2007, and is the matter presently before the Court. [Note 3]

On February 22, 2007, the plaintiffs filed a supplemental brief in opposition to the Pohogonot Trust’s motion. On March 2, 2007, the defendants Michael D. Myerow, as Trustee of the Botar Realty Trust, the Rabor Realty Trust, and the Tarob Realty Trust (“Myerow Defendants”), the Pohogonot Trust, and the Kohlberg Defendants, filed a motion to strike the plaintiffs’ supplemental brief and a motion for sanctions. Plaintiffs opposed the motion on March 9, 2007.

The motion was argued on March 13, 2007, and is another matter presently before the Court. On April 13, 2007, the Pohogonot Trust filed a reply brief to the plaintiffs’ supplemental brief.

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. The Pohogonot Trust is the owner of land in Edgartown consisting of approximately four hundred and thirty one acres bounded by the Atlantic Ocean on the South, Oyster Pond on the West, and Job’s Neck Pond on the East (“Pohogonot Property”).

2. Plaintiffs own various parcels of land in Edgartown, northeast of the Pohogonot Property. (A Decision Sketch is attached).

3. The most direct land access between the land owned by the plaintiffs and the South Beach Ocean Front is by means of certain rights of ways known as Whelden’s Path, Pohogonot Road, and the Road to Short Point (“Beach Paths”).

4. Whelden’s Path runs approximately east/west from the eastern boundary of land owned by the Myerow Defendants to land owned by the Pohogonot Trust and crosses property owned by the Myerow Defendants and the Pohogonot Trust.

5. Pohogonot Road runs approximately southwesterly/northeasterly from the intersection of Whelden’s Path and the Road to Short Point to the Beach near Oyster Pond and crosses properties owned by the Myerow Defendants and the Pohogonot Trust.

6. The Road to Short Point runs approximately southeasterly/northwesterly from the intersection of Whelden’s Path and Pohogonot Road to the Beach near Job’s Neck Pond and crosses properties owned by the Pohogonot Trust, the Kohlberg Defendants, and Short Point, LLC.

7. By deeds dated February 7, 2001, recorded in Book 823, pages 115, 141, and 166, the Pohogonot Trust conveyed to the Myerow Defendants an easement in common with the trust over Pohogonot Road and Whelden’s Path to the extent that it lies on the land of the trust.

8. In 1951, Elizabeth D. Flynn died devising her interest in the Pohogonot Property to her children [Note 4] in life estate, remainder “to the issue of said children then living, share and share alike, absolutely and in fee.”

9. At the time of Elizabeth D. Flynn’s death, G.L. c. 260, § 23 was in effect.

10. On July 20, 1979, G.L. c. 260, § 23 was repealed by Chapter 402 of the Acts of 1979.

11. By deed dated September 13, 1974, recorded at the Dukes County Registry of Deeds in Book 320, page 387, all of the issue of Elizabeth D. Flynn’s children conveyed to the Pohogonot Trust their remainder interest in the Pohogonot Property.

12. George D. Flynn, Jr. was the longest surviving life tenant of the life estates created by the 1951 Flynn Will. He died on July 11, 1991.

13. On June 22, 1999, the Pohogonot Trust caused Deputy Sheriff Linda J. Hanover to post five signs at five different locations on its land, for six consecutive days, reading “Notice to Prevent Acquisition of Easement” and signed by George D. Flynn, II, Richard B. Keeler, and Patricia L. Kolbe, as Trustees of the Pohogonot Trust. On July 2, 1999, the Pohogonot Trust recorded a copy of the notice and a notarized certificate of service executed by Deputy Sheriff Hanover at the Dukes County Registry of Deeds in Book 770, page 201. Between June 23, 1999 and June 28, 1999, the Pohogonot Trust caused copies of this notice to be served on Allen W. Norton, Wilda J. White, Richard L. Friedman, Mark B. Norton, Andrew H. Cohn, and John D. Hamilton. The trust also sent this notice to Allen W. Norton and Richard L. Friedman.

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I. MOTION TO STRIKE PLAINTIFFS’ SUPPLEMENTAL BRIEF

As a threshold matter, defendants have filed a motion to strike the plaintiffs’ supplemental brief in opposition to the Pohogonot Trust’s motion for partial summary judgment. Defendants argue that the plaintiffs’ filing is untimely and noncompliant with the Rules of the Land Court. Moreover, the subject matter of the motion is redundant to the material already on the record concerning the instant issue. In accordance with the foregoing, it is hereby

ORDERED that the defendants’ motion to strike the plaintiffs’ supplemental brief is ALLOWED;

ORDERED that the plaintiffs’ supplemental brief in opposition to the Pohogonot Trust’s motion for partial summary judgment is STRICKEN and is not considered by the Court.

However, the Court does not agree that sanctions are appropriate at this time. Accordingly, it is further ORDERED that the defendants’ motion for sanctions is DENIED.

So Ordered.

II. EASEMENT BY PRESCRIPTION

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 5] 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).

The Pohogonot Trust’s motion for partial summary judgment on the issue of prescription places aside the substantive determination of prescription and seeks a judgment only on the limited issue of by what date plaintiffs must have established an easement by prescription. The trust argues that under the law, as it existed during the life estate ownership of the Pohogonot Property, plaintiffs could establish prescriptive rights to use the Beach Paths against the life estate interest in the property, but not against the remaining future interests. The Pohogonot Trust concludes that if plaintiffs are to hold prescriptive rights to use the Beach Paths, they must have established them prior to the creation of the life estate in 1951.

It is undisputed that in 1951, when Elizabeth D. Flynn died, she devised the Pohogonot Property to her five children in life estate, remainder to the living issue of those children. At the time the life estate was created, Commonwealth law prevented the establishment of prescriptive rights against the future interest holder of a life estate. See G.L. c. 260, § 23. However, G.L. c. 260, § 23 was repealed on July 20, 1979, by Chapter 402 of the Acts of 1979, thereby reinstating the common law rule, which allows such rights against remaindermen. A future interest holder has the same rights as the holder of fee title to bring an action against an adverse user of the estate, but pursuant to General Laws chapter 260, § 21, must do so within twenty (20) years of the first adverse action.

The Pohogonot Trust argues that § 23 was the applicable law at the time the life estate was created and the adverse use began, and therefore, it governs this issue. Generally, the presumption is that “all statutes [are] prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations.” Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1 , 3, (1914), quoted in Child Support Enforcement Div. of Alaska v. Brenckle, 424 Mass. 214 , 219, (1997); Austin v. Boston Univ. Hosp., 372 Mass. 654 , 657 (1977). By contrast, “only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights…operat[e] retroactively….” Hanscom, 220 Mass. at 3; First Federal Sav. & Loan Ass’n v. Napoleon, 428 Mass. 371 , 373 (1998).

A statute of limitations is a restriction of time, in which a cause of action may be brought after the injury has accrued. While the injured right may be substantive, the statute does not restrict that right, but rather imposes procedure limiting the time, in which the right may be enforced. Therefore, a statute of limitations is, generally, considered to affect only procedural rights and, so, is applied retroactively. Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 414 Mass. 323 (1993); see Hanscom, 220 Mass. at 3; First Federal Sav. & Loan Ass’n, 428 Mass. at 373.

By contrast, a statute of repose restricts the exercise of the right itself, to a certain time. This time limit is unrelated to whether the injury is discovered or has even occurred. Klein v. Catalano, 386 Mass. 701 , 702 (1982). When the time has expired, the right is extinguished altogether. Therefore, a statute of repose is, generally, considered to affect substantive rights and, so, only applies prospectively. See Austin, 372 Mass. at 657; Hanscom, 220 Mass. at 3.

In the instant case, it is undisputed that G.L. c. 260, § 21 does not contain any express retroactive language and nothing in the record reflects such legislative intent. Instead, the statute is located in Part III, Title V of the General Laws: “Statutes of Frauds and Limitations,” chapter 260: Limitation of Actions. More persuasively, the characteristics of § 21 are that of a classic statute of limitations: “An action for the recovery of land shall be commenced, or an entry made thereon, only within twenty years after the right of action or of entry first accrued….” 260, § 21 (emphasis added); see Cornwall v. Forger, 27 Mass. App. Ct. 336 , 341 (1989). Therefore, G.L. c. 260, § 21 applies retroactively to bar remaindermen from bringing action to recover land after twenty years of the accrual of that claim. Accordingly, I rule that plaintiffs are not limited to establishing prescriptive rights prior to the creation of the life estate in 1951. [Note 6]

The Pohogonot Trust further argues that they must be granted a grace period beginning after the repeal of G.L. c. 260, § 23 on July 20, 1979, to allow them to bring the cause of action against adverse users of the estate, which otherwise would be foreclosed by § 21. Because retroactive application of law sometimes results in an unconstitutional taking, the Courts have provided an exception to the general rule. In the event that the retroactive application of a statute of limitations removes all opportunity for the valid enforcement of accrued rights, the Court grants a grace period, during which the application of the statute of limitation is stayed and the aggrieved party may bring a cause of action. The length of this grace period is defined as a reasonable time after the application of the statute. Anderson v. Phoenix Inv. Counsel, Inc., 387 Mass. 444 , 454-55 (1982).

In the instant case, the Pohogonot Trust and its predecessors-in-title, were remaindermen of the Pohogonot Property and, therefore, had no standing to prevent plaintiffs from using the Beach Paths while G.L. c. 260, § 23 was in effect. If plaintiffs have established prescriptive rights against the Pohogonot Property during the life estate, under § 23 such rights were valid only against the life tenant and not against the remaindermen. Had § 23 remained in effect, on July 11, 1991, when the Pohogonot Trust took fee title to the property, the trust would have had twenty years, pursuant to § 21, to bring a cause of action against the plaintiffs. However, because § 23 was repealed on July 20, 1979, prior to the Pohogonot Trust taking fee title to the property, and § 21 applies retroactively, plaintiffs would have established prescriptive rights without the trust ever having had any opportunity to prevent it. Therefore, the Pohogonot Trust must be allowed a reasonable time to exercise their rights, before the statute of limitations applies.

Nonetheless, upon gaining standing to exercise their rights on July 20, 1979, the Pohogonot Trust did not bring a cause of action to exclude the plaintiffs’ use of the Beach Paths. In fact the trust took no such action until June 22, 1999, when they posted notices on the Beach Paths, over nineteen (19) years after the repeal of § 23. More significantly, this is over seven (7) years after the death of the last life tenant, George Flynn, [Note 7] in 1991, when the Pohogonot Trust became holders in fee of the Pohogonot Property.

The Pohogonot Trust argues that the reason for this delay is that the future interest holders were in a class defined as the living issue of the children of Elizabeth Flynn. The trust contends that the entire class was not ascertainable until the death of the last life tenant on July 11, 1991 and, therefore, the common law grace period is reasonable only if it spans the time until the contingent remainder vests, no matter the length. The trust’s argument essentially asks for a bright-line rule in the case of a class of contingent remainders subject to open. The application of such a grace period in this case would have the effect of nullifying the application of G.L. c. 260, § 21, not only retroactively but also prospectively. Although without such a bright-line rule, currently unascertained remaindermen may be denied an opportunity to challenge an injury to their future interest, nothing in the current law suggests that contingent remainders subject to open are a class deserving of greater protection. Had the legislature intended such protection, they would not have repealed § 23, outright. In the instant case, even those ascertainable remaindermen did not challenge the plaintiffs use of the Beach Paths for nineteen years after the repeal of § 23. This is, in the opinion of this Court, far beyond any reasonable period for the fair application of G.L. c. 206, § 21 to foreclose such action.

Even if the Court did find such a grace period to be reasonable, the Pohogonot Trust still did not bring a challenge to the plaintiffs’ entrance on the land for over seven years after their interest vested and they became the owners of the property in fee simple. While the Court does not determine what a reasonable grace period would be for the application of G.L. c. 260, § 21, it is the opinion of the Court that in this case, a period of over seven years in length is an unreasonable extent of time for the former remaindermen, now property owners, to exercise their rights.

CONCLUSION

For the foregoing reasons, this Court concludes that plaintiffs are not limited to establishing prescriptive rights over the Pohogonot Property prior to the creation of the life estate in 1951. General Laws chapter 260, § 21 is a statute of limitations affecting procedural rights and, therefore, applies to the Pohogonot Trust retroactively to the time prior to the repeal of G.L. c. 260, § 23. Although, the Pohogonot Trust was granted a grace period following the repeal of § 23 to bring a cause of action against the plaintiff’s use of the Beach Paths, the trust failed to act to protect its rights in a reasonable time. Accordingly, the Pohogonot Trust’s motion for partial summary judgment on the issue of prescription is herby DENIED.

Charles W. Trombly, Jr.

Justice

Dated: April 1, 2009