Plaintiffs, John D. Hamilton, Jr. and Andrew H. Cohn, as Trustees of Oyster Pond EP Trust; Richmond L. Friedman, Allen W. Norton, and Judith Norton, individually and with Melissa Norton Vincent, as Trustees of the Quiet Oaks Realty Trust; and Albert White, Toni White Hanover, and Shauna White Smith, as Trustees of the Quampacky Trust, commenced this case 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 Wheldens Path, Pohogonot Road, and the Road to Short Point (Beach Paths), which lie over certain parcels of real property, owned of record by Defendants, Michael D. Myerow, as Trustee of Botar Realty Trust, Rabor Realty Trust, and Tarob Realty Trust; Pamela Kohlberg, as Trustee of the Jobs Neck Trust; Andrew Kohlberg, as Trustee of the High Road Realty Trust (Kohlberg Defendants); Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust (Pohogonot Defendants); and Short Point Holdings, LLC. The originally named Defendants answered the Complaint on December 16, 2004.
On February 17, 2005, the Pohogonot Defendants filed a Motion to Intervene. On February 28, 2005, the 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. The Kohlberg Defendants answered the Complaint on July 7, 2005.
On April 20, 2005, the Pohogonot Defendants filed an Answer and Counterclaims, joining as parties a number of Additional Defendants in Counterclaim. On June 30, 2005, certain of the Additional Defendants in Counterclaim, including Paul E. Konig and Joanne V. Konig, as Trustees of the Paul E. Konig Revocable Living Trust and the Joanne V. Konig Revocable Trust (Konig Additional Defendants in Counterclaim), filed and Answer and Counterclaims against the Pohogonot Defendants. The Pohogonot Defendants answered the Counterclaims on August 17, 2005.
On August 23, 2005, Plaintiffs, with leave of court, filed their First Amended Complaint, adding Short Point Holdings, LLC as Defendant. Short Point Holdings, LLC, answered the First Amended Complaint on June 22, 2006.
On May 23, 2006, Plaintiffs, with leave of court, filed their Second Amended Complaint, naming as Plaintiffs five of the Additional Defendants in Counterclaim: Mark B. Norton, Shauna White Smith, Debra White Scott, Lisa White, and Toni White Hanover. [Note 1]
On April 14, 2008, the parties filed an Assented-to Motion to Dismiss various claims by and against certain of 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 certain of the Additional Defendants in Counterclaim.
On September 9, 2009, Defendants and the Defendant in Counterclaim, Lage, Inc., as general partner of the Jokase Limited Partnership, filed a Motion to Dismiss the claims of the Jokase Limited Partnership with prejudice and the claims of the Defendants against the Jokase Limited Partnership without prejudice. The court allowed the motion on October 9, 2009.
On January 22, 2008, the Pohogonot Defendants filed a Motion for Partial Summary Judgment concerning claimed rights to and over Paqua. Plaintiffs opposed the motion on June 21, 2009, and reference their previously filed Affidavit of David Silverman, in support of that opposition. On August 3, 2009, the Pohogonot Defendants filed a motion to strike the affidavit. Plaintiffs opposed the motion to strike on September 3, 2009. The motions were argued on September 9, 2009, and are the matters presently before the court.
After reviewing the record before the Court, I find that the following facts are not in dispute:
1. The Pohogonot Defendants are the owners of a parcel of real property located on the south shore of Edgartown, known as Pohogonot.
2. Pohogonot contains a parcel of land, known as Paqua.
3. Paqua abuts Oyster Pond on the southwest and the beach to the south.
4. The Myerow Defendants are the owners of parcels of real property which abuts Pohogonot to the northwest.
5. Plaintiffs are the owners of parcel of property abutting the Myerow Defendants property to the northeast.
6. Wheldens Path begins at the common boundary of the Plaintiffs property and the Myerow Defendants property, the so-called White Gate, and runs approximately east/west over the Myerow Defendants Property until it splits into Pohogonot Road and the Road to Short Point.
7. Pohogonot Road begins at the end of Wheldens Path and runs approximately southwesterly/northeasterly over Pohogonot to the beach.
8. Pohogonot Road crosses over Paqua. A Decision Sketch is attached.
9. In September 1841, Wilmot Smith held a one-half, undivided interest in a parcel of real property comprising what is today known as Paqua.
10. Paqua was first created in a deed dated September 21, 1841, recorded at the Dukes County Registry of Deeds in Book 28, page 229, in which Wilmot Smith divided Paqua and conveyed his interest therein to four of his eight co-tenants (1841 Deed).
11. The deed does not contain any mention of an easement over Paqua.
12. In November 1888, Allen Norton held an interest in Paqua, the beach parcel, and land farther north, known as Nonamessett.
13. Mr. Norton did not own any land situated between what is today the White Gate and Paqua.
14. By deed dated November 7, 1888, recorded in Book 79, page 483, Mr. Norton conveyed to Edmund G. Beetle, his interest in Paqua (1888 Norton Deed).
15. The 1888 Norton Deed provides: Reserving also to myself the right to occupy said premises for fishing purposes and the right to pass and repass across said premises to the beach above mentioned.
16. The 1888 Norton Deed does not contain any other mention of an easement over Paqua.
17. Edmund G. Beetle died intestate on October 9, 1900. He was survived by his widow, Mary A. Beetle, and numerous heirs. By deed dated June 25, 1908, Mary A. Beetle conveyed Paqua to Gorge D. Flynn. The deed does not recite any easement over Paqua.
18. Mr. Norton died in 1911.
Motion to Strike the Affidavit of David Silverman
As an initial matter, Defendants move to strike the Affidavit of David Silverman on the grounds that it is irrelevant, hearsay, and speculative. The underlying matter is the Pohogonot Defendants Motion for Partial Summary Judgment, seeking a declaratory judgment concerning the rights of the parties to and over Paqua. The Silverman Affidavit supports the premise that in the 19th century, access to the beach was critical to the livelihood of the inhabitants of the southern shore of Marthas Vineyard. This testimony is not relevant to the present matter. Accordingly, it is hereby ORDERED that the Defendants Motion to Strike is ALLOWED and the Affidavit of David Silverman is STRICKEN.
Motion for Partial Summary Judgment Concerning Claimed Rights of Access to and over Paqua
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. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl 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. Commr 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 opponents 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 2] 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.
Defendants argue that any rights held by Plaintiffs predecessors in title to use the land of Paqua for access to the beach have long since terminated. Prior to 1912 the distinction between an exception and a reservation of an easement in a conveyance was critical in determining whether the easement survived the grantors death. Kakas Bros. Co. v. Kaplan, 331 Mass. 323 (1954); McDermott v. Dodd, 326 Mass. 54 (1950); Ashcroft v. Eastern R. Co., 126 Mass. 196 (1879); see G.L. c. 183, § 13. An easement is excepted from the conveyance if the right or interest existed prior to the conveyance. An easement excluded from the conveyance remains with the grantor in fee and, therefore, survives him or her. To constitute an exception, the easement need not have had a legal existence before the deed. It is sufficient if it exists in fact on the surface of the ground, even though at the time of the deed all the ground is owned by one person. McDermot v. Dodd, 326 Mass. 54 , 56-57 (1950).
An easement is reserved from the conveyance if the right or interest is a new right or interest not before existing in [grantor]. Ashcroft, 126 Mass at 198; McDermot, 326 Mass. at 56; Simpson v. Boston & Main R.R., 176 Mass. 359 , 361-62 (1900). Such a new right does not survive the grantor without words of inheritance accompanying the reservation. Elwell v. Miner, 342 Mass. 450 , 454 (1961) (and cases cited); Kakas Bros. Co., 331 Mass. at 326; Ashcroft, 126 Mass. at 199. [Note 3]
The use of the terms except or reserve in the grant is not determinative. McDermott v. Dodd, 326 Mass. 54 , 56 (1950) (and cases cited). Instead the test is what effect the language has: whether to exclude an existing right from conveyance or vest a new right in grantor. Id.
In the present case, there is nothing in the record to indicate any easement, express or implied, over the Pohogonot Property between the White Gate and Paqua. Plaintiffs have not opposed this limited issue and, therefore, have not met their burden.
With regards to the rights over Paqua, the 1888 Norton Deed predates the 1912 statute and, therefore, is not protected by G.L. c 183, § 13. See 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); see e.g., Elwell, 342 Mass. at 454. In November 1888, Allen Norton held an interest in Nonamessett, Paqua, and the beach parcel. By the 1888 Norton Deed, Mr. Norton conveyed to Edmund G. Beetle, his interest in Paqua, but, reserv[ed] to [himself] the right to occupy said premises for fishing purposes and the right to pass and repass across said premises to the beach above mentioned. There is no evidence to suggest that such a right over Paqua existed prior to the conveyance.
Plaintiffs argue that while there is no evidence of a way on the ground over Paqua in 1888, a landowner has the right to traverse the entirety of his or her land, and therefore, Mr. Norton could have used the land of Paqua, generally, for access to the beach. Plaintiff concludes that because this right existed prior to the conveyance, the easement must have been created by exception and, therefore, would survive Mr. Norton. Plaintiffs argument suggests that in a conveyance prior to 1912, any language creating an easement over the land conveyed, which is generalas opposed to specifically delineating the boundary of the right of waywould be sufficient to establish an easement created by exception. This is not the law. While an easement does not need to have existed, in the legal sense, prior to the conveyance, in order for the easement to survive the grantor, the grantor must show that prior to the conveyance he or she used the property conveyed as a right of way for the benefit of the property retained. Plaintiffs assert only that Norton had the right to cross Paqua to access the beach, but can point to no evidence that he exercised such right. See Bean v. French, 140 Mass. 229 , 231 (1884). Nothing in the language of the 1888 Norton Deed indicates an intent of the parties to except an existing right held by Mr. Norton. Even when considered in the light most favorable to Plaintiffs, they have not met their burden on this issue and the court refuses to weave Plaintiffs a right out of whole cloth. Accordingly, I rule that the 1888 Norton Deed reserves an easement to Mr. Norton. The deed does not contain language of inheritance of that right, and therefore, I further rule that the easement terminated upon Mr. Nortons death in 1911.
Plaintiffs argue in the alternative that the 1888 Norton Deed establishes an implied easement. However, there is no need to imply an easement in the 1888 Norton Deed, because that document contains one expressly. Even if there were no express easement, Plaintiffs cannot demonstrate an implied easement by prior use, because as previously discussed, Plaintiffs have shown no direct facts that Mr. Norton used Paqua for the benefit of Nonamessett.
Moreover, I am confounded by Plaintiffs argument for an easement by necessity. Mr. Norton did not own any land situated between the White Gate and Paqua. Presumably he accessed Paqua by taking a boat from Nonamessett over Oyster Pond. Plaintiffs contend that the beach parcel was left landlocked by the conveyance of Paqua. Plaintiffs argue that water access to a landlocked parcel is not sufficient to destroy the necessity and, therefore, access over Oyster Pond to the beach is insufficient to unlock that property. Therefore, the Plaintiffs request that the court infer an easement by necessity over Paqua for access to the beach. However, neither Plaintiffs nor their predecessors in title held any interest in the land between the White Gate and Paqua. As previously discussed, Plaintiffs have not established an easement over that property. Therefore, in order to access Paqua, Plaintiffs must voyage over Oyster Pond. The difference between a voyage over Oyster Pond from the Plaintiffs property to Paqua and from the Plaintiffs property directly to the beach is negligible, and the argument that an easement over Paqua, accessible only by boat, is necessary because the beach is accessible directly only by boat, is illogical.
Regardless, even if there were an easement resulting from the 1888 Norton Deed, such right was for access to the beach. As this court has previously determined that the beach as it was located in 1841 no longer exists, any easement for access to the beach has been extinguished.
For the foregoing reasons, this court concludes that Plaintiffs do not hold any easement, express or implied, over Paqua. The 1888 Norton Deed reserves an easement to Allen Norton but does not contain language of inheritance. Accordingly, the Defendants Motion for Partial Summary Judgment is ALLOWED.
Charles W. Trombly, Jr.
Dated: October 13, 2009
[Note 1] Named as Toni W. Billings by the Pohogonot Defendants in their Answer and Counterclaims.
[Note 2] A motion for summary judgment can rest in whole or in part on facts set forth in the moving partys pleadings if, but only if, they are conceded in the opposing partys pleadings. Cmty. Natl Bank, 369 Mass. at 557 n.6. It may also rest on the allegations contained in the opposing partys pleadings. G. L. c. 231, § 87 (in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them).
[Note 3] Today, the distinction between an easement created by exception and an easement created by reservation has been largely disposed of by G.L. c. 183, § 13, which was enacted by St. 1912, c. 502, § 19. The statute provides: In a conveyance or reservation of real estate the terms heirs, assigns or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee.