MISC 09-394819

July 22, 2010


Trombly, J.



This case arises out of Plaintiff’s Complaint seeking a declaration that he has, and may lawfully exercise, the right to use the space where the marine railway presently exists for a boat slip and pier, at Unit 8 of the Whites Landing Condominium site, which is located on lots 182 and 183, as shown on Land Court Plan 11210-3 in Falmouth, Massachusetts.

This matter is before the Court on cross motions for summary judgment. The Plaintiff filed his Complaint on March 06, 2009. [Note 1] On April 13, 2010, the Defendants filed a Motion for Summary Judgment accompanied by a supporting Memorandum, a Statement of Material Facts and Legal Elements, and supporting exhibits. On May 13, 2010, Plaintiff filed a Cross-Motion for Partial Summary Judgment, along with a Memorandum in Opposition to Defendants Motion for Summary Judgment and in Support of Plaintiff’s Cross-Motion for Partial Summary Judgment, a Motion to Strike Defendants’ Summary Judgment Exhibit No. 12 and Defendants’ Statement of Material Facts, Responses to Defendants Statement of Facts, and supporting Appendices. On June 15, 2010, Defendants filed a Response and Opposition to Plaintiff’s Cross-Motion for Summary Judgment with a supporting Memorandum, as well as an Opposition to Plaintiff’s Motion to Strike, and a Motion to Strike Plaintiff’s Summary Judgment Exhibits 3 and 12. On June 18, 2010, the Motions for Summary Judgment were argued and taken under advisement.

Based on the record, I find the following facts are not in dispute and justify entry of Partial Summary Judgment in favor of the Plaintiff:

1. The Whites Landing Condominium, formerly known as the Whites Landing Commercial Accommodation Condominium (the “Condominium”), is located along the Childs River in Falmouth Massachusetts, on land known as lots 182 and 183, shown on Land Court Plan 11210-3 (the “Premises”).

2. Patricia Beaudette and Doris Dolbec, Defendants, are Trustees of the Condominium Trust. Helen Sauvageau is a former Trustee.

3. From 1981 through March of 1989, the Premises was held by Robert Hurd (“Hurd”), the sole beneficiary of the Studley Trust. George Dallas and Chester Howe were the Trustees of the Studley Trust.

4. On January 27, 1988 George Dallas and Chester Howe entered into a Purchase and Sale Agreement (“P&S”) with Henry A. Stout (“Stout”) as buyer of the Premises. The terms of the P&S provided that the Premises would be conveyed to the Childs River Limited Partnership (the “Partnership”). Stout had a 99% interest in the Partnership, and Hurd held a 1% interest.

5. The P&S also contained provisions pertaining to the creation of a condominium complex which was to include seven residential units, the Boathouse, and dock facilities. The Whites Landing Commercial Accommodation Condominium was subsequently developed.

6. The Master Deed of the Whites Landing Commercial Accommodation Condominium, dated March 9,1989, executed by Stout and Suzanne P. Stout, was registered with the Barnstable Registry District of the Land Court as document number 482,320 and noted on certificate of title number C-274.

7. The Master Deed references, and was registered with, a site plan entitled “Site Plan Prepared for Atlantic Properties of Whites Land in Waquoit, Falmouth Mass.” dated March 9, by Holmes and McGrath, Inc., Civil Engineers and Land Surveyors. A Decision Sketch depicting the subject property and surrounding area is attached hereto.

8. Hurd, the Plaintiff, purchased Unit 7A and the Boathouse, known as Unit 8.

9. Hurd chose to keep the existing marine railway; however, in Section VII of the Master Deed, the following language is stated: “Boathouse unit 8 shall have appurtenant thereto the exclusive right, easement, and use of the marine railway...Notwithstanding anything to the contrary, the owner of unit 8 shall have the right to remove the marine railway and use that space for a boat slip which shall be appurtenant to unit 8...provided that the same is constructed in compliance with all applicable rules, regulations, permits, approvals, ordinances and laws of the Town of Falmouth, the Commonwealth of Massachusetts, and the United States of America.”

10. Section VII of the Master Deed gives similar appurtenant rights and easements to the owners of units 1 through 7 “to use and occupy the following...a boat slip exclusively designated to such unit as indicated in Exhibit B.” Each unit has a designated boat slip.

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The matter before the Court arises from the Plaintiff’s desire to build a pier that would extend from Unit 8, the boathouse, into the Childs River over a space currently occupied by a marine railway. Plaintiff claims that his easement, which grants him rights to build a “slip” where the marine railway currently exists, translates into the right to build a pier that would act as a “slip” over said space. Defendants contend that Plaintiff’s plan to build a pier is not allowed by the easement he holds over said space, that the proposed pier would interfere with other existing boat slips, and that the proposed pier would encroach on common area.

At issue are (1) the amount of space allotted to the Plaintiff by the easement that grants him rights to a “slip” over the area currently occupied by the marine railway, and (2) whether a deeded right to a “slip” allows for the construction of a “pier.”


As a preliminary matter, the Court denies Plaintiff’s Motion to Strike Defendants’ Summary Judgment Exhibit No. 12, Defendants’ Statement of Material Fact No. 12, and the Affidavit of Todd J. Palmatier, all of which refer to the June 16, 1989 letter from Todd Palmatier of Holmes & McGrath, Inc., to the Department of Environmental Quality Engineering, regarding ramps and floats installed in 1989. Aside from the initial error in which Defendants stated “pier” instead of “ramps” in their Statement of Material Fact, which was later acknowledged and corrected by Defendants, the letter constitutes past recollection recorded, and thus is admissible under the exception to the hearsay rule. Plaintiff is not unduly prejudiced by allowing this evidence because Defendant merely offers a letter, and evidence authenticating it, regarding an opinion from twenty-one years ago that alleges that there were navigational concerns with the then proposed docking arrangement. Defendants do not, as Plaintiff contends, seek to introduce expert opinion based on scientific theories.


In their Motion to Strike, Defendants claim that the Parol Evidence rule bars the Plaintiff from stating his subjective understanding of the meanings of terms contained in the P&S agreement or the Master Deed. The Court denies this Motion to Strike because the Parol Evidence Rule in Massachusetts allows parol evidence to be submitted where the words are ambiguous or the definite meaning is unclear. [Note 2] However, in denying this Motion, the Court bears in mind the objections raised by the Defendant and will consider them in evaluating the weight of the evidence, particularly where the clarification of the term “slip” comes from Plaintiff’s self-serving affidavit.

Additionally, Defendants claim that Paragraph 12 must be stricken because it was prepared and executed after the termination of discovery deadlines. This claim is incorrect, as counsel for Plaintiff served counsel for the Defendants with the corrected answers less than 60 days after the original answers had been served.

Defendants’ Motion to Strike is further denied regarding Plaintiff’s Statement of Facts Nos. 4, 5, 8 through 10, 15 through 21, and 34 through 37, because Defendants, in their Motion to Strike, do not give any explanation for why any of these facts should be stricken.

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“Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). In making a determination as to whether a genuine issue of material fact exists, the court must draw all reasonable inferences from the material accompanying the summary judgment motion in the light most favorable to the party opposing the motion, and resolve all doubt concerning the existence of a material fact against the moving party. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). 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). When appropriate, summary judgment may enter against the moving party. Mass R. Civ. P. 56(c). In the present case, there is no dispute of material fact within the meaning of Mass. R. Civ. P. 56(c), and therefore, this case is proper for partial summary judgment.


There is no dispute amongst the parties that the Plaintiff is entitled to some form of a “slip,” by virtue of Article VII of both the original and amended master deeds, which provide in pertinent part: “Additionally, Boathouse unit 8 shall have appurtenant thereto the exclusive right, easement, and use of the marine railway which shall be maintained, repaired and replaced, as necessary, by and at the sole and separate expense and risk of the owner of unit 8. Notwithstanding anything to the contrary, the owner of unit 8 shall have the right to remove the marine railway and use that space for a boat slip which shall be appurtenant to unit 8, at the sole and separate expense and risk of the owner of unit 8, provided that such owner applies for and obtains all necessary governmental approvals therefore and the same is constructed in compliance with all applicable rules, regulations, permits, approvals, ordinances and laws of the Town of Falmouth, the Commonwealth of Massachusetts, and the United States of America” (emphasis added).

Undoubtedly, the Plaintiff is entitled to the use of a slip. The above stated language of the Master Deed is also consistent with the original plan, which called for a boat slip to be appurtenant to each condominium unit, and is also consistent with the existing use of the current boat slips.

Defendants contend that Plaintiff is precluded from constructing a slip because conversion of the marine railway to a slip would encroach upon common area. This argument fails under the definition of common area as stated in Article VIII of the original Master Deed and the Amended Master Deed, which defines common area as “those portions of the Building not included within the boundaries of the Units contained therein . . . [and] all other elements and features of the condominium property, however designated and described, excepting only the Units themselves as herein defined and the boathouse and marine railway” (emphasis added). If a slip is constructed over the area currently occupied by the marine railway, as Plaintiff has submitted in his 2008 plan, there will be no undue encroachment upon common area because that space is specifically excluded from common area in the Master Deed. [Note 3]


As noted above, parol evidence is necessary in the present case to determine what rights are given to Plaintiff by the use of the word “slip.” Plaintiff claims the right to build a pier, as part of the necessary structure to create a “slip” which he defines as “a docking space.” Plaintiff cites the American Heritage Dictionary of the English Language (ed. 1971) which defines the term “boat slip” as “a docking place for a ship; pier.” Plaintiff further submits the definition of “slip,” taken from The American Heritage Dictionary of the English Language (fourth edition) as “a docking space for a ship between two piers.” Defendants contest Plaintiff’s right to build a pier, yet fail to submit an opposing definition or submit a possible alternative for how a “slip” could be constructed in a manner other than what is proposed by the Plaintiff.

Furthermore, an examination of the boat slips currently in existence for units 1 through 7 indicates that Plaintiff’s definition of “slip” is consistent with existing slips for the Whites Landing Condominium. In particular, an examination of the pictures submitted by Defendants depicting Boat Slip 4, Plaintiff’s neighboring slip to the northeast of the marine railway, reveals a slip that is nearly identical in dimension to that proposed by the Plaintiff, the only difference being that Boat Slip 4 has a floating dock, whereas Plaintiff proposes a fixed pier that would not rest in the water. The existence of the other slips make perfectly clear what was intended by the use of the word “slip” in the master deed, and their present manifestation embodies the definition of the word “slip” for purposes of this case.

Plaintiff also correctly notes the implications of the language in the Master Deed, specifically, “[the slip is to be] constructed in compliance with all applicable rules . . .” (emphasis added). The use of the word “constructed” clearly indicates that the creation of a slip would require the construction of some type of structure, namely a dock or a pier; to simply remove the marine railway would not create a slip.

Plaintiff’s lawful right to construct a slip, however, is nonetheless subject to applicable laws as stated in the Master Deed, and permitting from the appropriate authorities and agencies is still required.


There is a dispute between the parties as to how much space the Plaintiff’s easement grants him to create a slip. Plaintiff claims that he has access over “a width extending a few feet beyond the railway tracks,” while Defendants contend that he does not, and allude to the idea that he is limited to just the space where the marine railway presently exists. A review of the plans, proposals, and pictures on the record indicates that the bounds of the easement are clearly defined by the width of the railway ramp, as marked by the gap in the wooden dock between Boat Slip 3 and Boat Slip 4 as well as the space between the existing bulkheads that create the small inlet for the marine railway and boathouse. This width is approximately thirteen feet ten inches (13' 10") according to Plaintiff’s 2008 proposal, and this allotted space extends into the Childs River. The proposed pier is compliant with this easement; however, the plan calls for a “proposed mooring area” that is fourteen feet wide, which is a space larger than what the Plaintiff is allotted. For that reason, the proposed pier is acceptable, but Plaintiff is restricted to using only the thirteen feet ten inches that is granted by the site plan by way of the Master Deed.

Defendants also claim that Plaintiff is barred from having water and electricity access on the pier. However, Defendants submitted exhibits in the form of pictures of the locus in question. These pictures indicate that the boat slips for units 1 through 7 have electricity and water connection; therefore, it would appear contrary to basic notions of fairness and equity to deny Plaintiff the right to also have electricity and water at his slip.

There is a further dispute regarding whether Plaintiff’s pier can extend into the Childs River; Defendants contend that Plaintiff is limited to just the area where the marine railway sits, and that the pier would interfere with Boat Slip 3. However, Plaintiff’s proposal depicts the pier matching in size and shape that of Boat Slip 4 directly adjacent to the northeast. The existing piling, which currently serves as the westernmost piling for Boat Slip 4, creates a barrier that specifically limits the possibility of infringement on Boat Slip 4.

Moreover, despite Defendants’ overly broad contention to the contrary, which lacks any detailed explanation to support it, there appears to be no infringement on Boat Slip 3 by Plaintiff’s proposed slip. There is no proposed additional piling in any area in or near Boat Slip 3 nor is there any suggestion from the plan that the pier or mooring area will encroach into Boat Slip 3. Defendants offer a letter written in 1989, regarding a different proposal, which states that the previous proposal created navigational concerns. This letter does not speak to the present issue because it regards a different plan.

The record indicates that the owner of unit 8 was intended to be given, and is in fact given, the right to construct a slip in a similar manner to how each of the other units has done. Plaintiff’s right to construct a slip notwithstanding, Defendants are correct to argue that he is not allowed to construct the slip in such a manner as would obstruct neighboring slips, namely Boat Slip 3 located directly adjacent, to the southwest. The proposed slip is evidently designed to avoid any such obstruction; nevertheless, the Court, in recognizing Plaintiff’s right to a slip, emphasizes that this right is subject to the condition that it not detract from the rights of other unit owners, and may not extend wider than the width stated above; nor may it extend further into the Childs River than the neighboring boat slips, such as Boat Slip 4.


When the White Landing Condominiums were developed, there was a definite intention to grant each unit owner a boat slip, appurtenant to the unit, in the Childs River. Consistent with this plan, Plaintiff was specifically deeded the right to a slip in the Master Deed. To now deny Plaintiff’s proposal to construct a slip, in accordance with the easement and in a manner similar to the existing slips for the other units, would be a miscarriage of justice. In short, Plaintiff has a lawful, deeded right to construct a boat slip as he proposes, subject to a duty to not interfere with, or obstruct, neighboring boat slips. Plaintiff is also subject to applicable laws as stated in the Master Deed, including permitting from local agencies as required.

If Plaintiff wishes to pursue his claims for damages and injunctive relief, as sought in the amended complaint in the 1999 action (Case No. 99 MISC 257247), please contact my Sessions Clerk, Elizabeth Missett, at (617) 788-7470 extension 7442 to schedule a pre-trial conference. If no such request is made within twenty days, the Court will conclude that Plaintiff is no longer seeking damages and will enter Judgment as set forth in this Decision.

For the foregoing reasons, I hereby grant Partial Summary Judgment in favor of the Plaintiff.

Charles W. Trombly, Jr.


Dated: July 22, 2010


[Note 1] The present case, case no. 09 MISC 394819, was consolidated with a previous action, case no. 99 MISC 257247, involving the same parties, on Plaintiff’s Motion to Consolidate, allowed on July 15, 2009.

[Note 2] See, e.g., Oldfield v. Smith, 304 Mass. 590 , 600 (1939) (“where words are doubtful or ambiguous it is always competent to give in evidence . . . in order to give a definite meaning to the language used in the deed and to show the sense in which particular words were probably used by the parties, especially in matters of description”); Bourgeois v. Hurley, 8 Mass. App. Ct. 213 (1979) (holding that extrinsic evidence of a document may be shown for purposes of elucidating, but not of contradicting or changing its terms).

[Note 3] Plaintiff’s exclusive right of this area, while evident from the language of the Master Deed, is also supported by case law. See, e.g., O’Brien v. Christensen, 422 Mass. 281 , 283 (1996) (declaration of trust grants each unit owner appurtenant easement for the exclusive use of the porch to which unit had access). The cases cited by Defendants in their Memorandum in support of their Motion for Summary Judgment are not on point because the facts are distinctly different from this case.