Home 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

MISC 303223

April 1, 2009

DUKES, ss.

Trombly, J.


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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 2]

On March 16, 2009, the Pohogonot Trust filed an application for a preliminary injunction to enjoin plaintiffs from (1) obtaining an order of conditions from the Edgartown Conservation Commission authorizing a cut through the barrier beach between Oyster Pond and the Atlantic Ocean and (2) making such a cut. Plaintiffs opposed the application on March 20, 2009. The application was argued on March 23, 2009, and is the matter presently before the Court.

Preliminary injunctive relief is appropriate if the risk of irreparable harm to the moving party if the relief is not granted outweighs the probable harm to the non-moving party if the relief is granted. See John T. Callahan & Sons, Inc. v. City of Malden, 430 Mass. 124 , 131 (1999). In balancing the issues, the Court views the risk of injury in light of the parties’ likelihood of success on the merits. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609 , 617 (1980). In addition to saving the moving party from irreparable injury, the Court may also order a preliminary injunction in order to maintain the status quo until the matter may be adjudicated fully on the merits. See Thayer Co. v. Binnall, 326 Mass. 467 , 479 (1950).

In the instant case, the Pohogonot Trust seeks to enjoin plaintiffs from entering the Pohogonot property and the Beach—which defendants contend plaintiffs have no interest in—and from making a cut in the barrier beach between Oyster Pond and the Atlantic Ocean. The Pohogonot Trust and its predecessors-in-title have correctly and diligently opened Oyster Pond, as it was necessary, since 1909—albeit for some time without permit. Conversely, plaintiffs have never conducted such maintenance. Moreover, there is no indication that the Pohogonot Trust is about to lapse in its duties in this regard. Therefore, there does not appear to be any irreparable harm facing plaintiffs should the injunction not be granted.

The harm to the Pohogonot Trust is relatively clear. Plaintiffs ask to drive and operate the equipment necessary to make a cut in the barrier beach over and on the trust’s land, in order to connect a Great Pond and the Atlantic Ocean. There is great risk of damage to the real estate and a certainty of necessary financial expenditure by the Pohogonot Trust in overseeing this activity on its land. In light of the fact that the trust enjoys a likelihood success on the merits and in order to maintain the status quo, plaintiffs should be enjoined from making an opening through the barrier beach.

However, this analysis does not apply to the plaintiffs’ application for an order of conditions from the Edgartown Conservation Commission. Such application, alone, does not pose any risk of harm to the Pohogonot Trust.

In accordance with the foregoing, it is hereby

ORDERED that the Pohogonot Trusts’ application for preliminary injunction is ALLOWED IN PART; plaintiffs are enjoined from making an opening through the barrier beach.

So Ordered

By the Court (Trombly, J.).


[Note 1] The findings and ruling contained herein are necessarily preliminary in nature. They are not intended, nor should they be construed, as having any precedential weight in further proceedings in this case, all of which shall be determined in light of the evidence proffered on those occasions. Should further-developed evidence or circumstances warrant, any party may move for the modification or dissolution of this Order at any time.

[Note 2] On May 23, 2006, plaintiffs, with leave of Court, filed a second amended complaint.