MISC 07-346579

December 15, 2010


Grossman, J.


Related Cases:

Daniel and Cynthia Scioletti (Sciolettis / plaintiffs) initiated the present suit seeking a declaration, inter alia, that an express easement benefiting their property in Yarmouthport, encompasses the right (a) to erect a small marina and moorings, as well as (b) to store and maintain boats within the easement area burdening Francis and Jane Thomas’s (Thomases / defendants) property. By order dated December 5, 2008 (Summary Judgment Order), issued in response to the parties’ cross motions for summary judgment, this court resolved virtually all of the claims and issues presented in this action. See Scioletti v. Thomas, 16 LCR 782 , 797 (2008) (Misc. Case. No. 346579) (Grossman, J.). Of particular relevance to the matter at hand, this court concluded that (1) while the Sciolettis’ deeded easement extends to mean low water, (2) such deeded easement is limited by its terms to providing a means of access by foot passage, or its functional equivalent only, to and from Follins Pond. The Sciolettis, therefore, (3) may not store or maintain boats on the Thomases’ property, either within their easement or otherwise, and (4) their use rights do not encompass the right to maintain dock structures within the easement area for boating purposes. [Note 1] Ibid. Although the Summary Judgment Order disposed of all issues concerning the legal effect of the relevant language in the plaintiffs’ chain of title, it reserved for trial the factual matter of what structures, if any, might be reasonably necessary to effectuate plaintiffs’ enjoyment of their 10 foot wide easement of access.

In this decision the court finds and rules that structures [Note 2] are reasonably necessary for the plaintiffs’ use of the easement. First, to the level of mean high water, the plaintiffs are authorized, consistent with the parties’ stipulation, to erect and maintain an elevated walkway so that they might avoid wading through sea grass. Second, from high to low water, the plaintiffs may erect and maintain structures to reach the mean low water mark and thereby avoid getting mired in mud and muck. [Note 3]

Finally, insofar as other easement holders may have been named as defendants herein and were defaulted, and hold use rights granted them by language identical to that used in the Sciolettis’ source deed, they too have the right to use the structures sanctioned by this decision in any manner consistent with the interpretation of that granting language offered by the Summary Judgment Order.


For the sake of judicial economy, this court will not recite the extensive factual background and procedural history set out in the Summary Judgment Order. See Scioletti v. Thomas, 16 LCR at 783-786. It will, nonetheless, provide an abbreviated summary as necessary to the decision at hand.

The Sciolettis initiated this action [Note 4] seeking a determination, inter alia, that their deeded easement constitutes a “general and unrestricted easement” over the Thomases’ property, which includes “the right to construct, maintain and use a raised wooden walkway and dock for access to Follins Pond . . .” Complaint, ¶¶ 18 & 19. In its Summary Judgment Order, this court rejected the Sciolettis’ former claim, i.e., that the express easement is unlimited in character, and might, as a consequence, countenance the storage and mooring of boats. Scioletti v. Thomas, supra at 790-793. Instead, this court concluded as follows:

Having examined the text of the deed itself, the attendant circumstances, and relevant subsequent conduct, . . . [the] plaintiffs’ easement is an easement of access to Follins Pond. As such, . . . the easement at issue permits only foot travel at low tide and its functional equivalent at high tide along the right of way. It does not provide plaintiffs with the right to moor one or more boats on Follins Pond or to store such boat[s] including their kayaks and dinghy. Id. at 793.

In so concluding, this court relied, in part, upon statements in the relevant title documents indicating that, upon planning the relevant subdivision, the original grantor expressed an intent to “protect and preserve the natural beauty . . .” of the subdivision. Id. at 792, quoting from Plaintiffs’ Motion for Summary Judgment, Exh. 3 (internal quotations omitted) (reproducing plaintiffs’ source deed).

As this court observed, the erection and maintenance of a marina would run afoul of the grantor’s original intent to convey rights that “would only minimally disturb the natural conditions of the servient estate.” Ibid.

Notwithstanding its conclusion that the plaintiffs’ easement was limited to a means of foot access only, this court nonetheless determined that the Sciolettis’ circumscribed use right might carry with it the legal authority to erect and maintain structures, based upon a determination of reasonable necessity:

Although this court has concluded that plaintiffs have no right to construct, maintain, and use dock structures for boating purposes, it does not follow that plaintiffs should be required to dismantle the wooden walkway and pier, and to be precluded from building all other structures. As stated in Sullivan v. Donohoe: “[w]hen an easement or other property right is created, every right necessary for its enjoyment is included by implication.” 287 Mass. 265 , 267 (1934), citing, e.g., Allen v. Scott, 21 Pick. 25 , 29-30. In prior sections we were concerned with past intentions; here, however, this court must focus on current conditions. See Mahon v. Tully, 245 Mass. 571 , 577 (1923) (reasonable use of deeded easement may vary over time depending on what is necessary to constitute full enjoyment of rights granted); Davis, 254 Mass. at 547 (reasonable use not necessarily limited to use of easement existing at time of conveyance).

On the issue of reasonable necessity, Tindley v. Department of Environmental Quality Engineering is particularly instructive. 10 Mass. App. Ct. 623 (1980). In Tindley, the Appeals Court reversed a Superior Court decision granting summary judgment in favor of an easement holder who claimed the right to anchor a ramp and floats to a tidal flat by virtue of a deeded easement similar to that at issue in the instant case. Id. at 628. As discussed, supra § V(B), the easement language in Tindley, “to the Annisquam River,” carried with it the right to travel to the low water mark. An affidavit in the summary judgment record established that it was “undisputed that the portion of the right of way from the upland to the low water mark [was] impassable mud at low tide.” Id. at 627. The Superior Court reasoned that, because the easement holder had the right to make the right of way “passable and usable for its entire width,” the use of a ramp and floats to cross the flats at low tide was necessary for the enjoyment of the easement. Id.

The Appeals Court, however, held that a triable question of fact remained as to whether the structures at issue were reasonably necessary to the enjoyment of the easement, which “the affidavits did not obviate.” Id. at 628, citing, e.g., Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 679 (1965). As was the case in Tindley, the record before this court reflects a similarly unresolved factual question of reasonable necessity. Tindley, 10 Mass.App.Ct. at 627-628; Murphy, 348 Mass. at 679, citing Guillet v. Livernois, 297 Mass. 337 , 340 (1937) (dominant estate has the right to make the easement “passable and usable for its entire width, having due regard to the rights and interests of others”). As such, summary judgment must, therefore, be denied as to the issue of what structures, if any, are reasonably necessary to the plaintiffs’ enjoyment of their easement.

Id. at 793-794.

Accordingly, [Note 5] after conducting a view on August 13, 2009, this court held a trial on January 6, 2010, on this remaining issue.

At trial, a court reporter having been sworn, the plaintiffs offered the testimony of six witnesses: Leeann and John Gilligan; [Note 6] Bradford Hall, the town environmental administrator; Lee Colton, a contractor specializing in the construction of marine structures; and plaintiffs Daniel and Cynthia Scioletti. Francis Thomas alone testified for the defendants. Twenty of the proposed exhibits were admitted into the official trial record: Exhibits 1 through 7; Exhibit 8 to the extent that it concerns structures above the mean low water mark, and only insofar as it represents an exemplar of what structures may be reasonably necessary; Exhibit 16; Exhibits 18 through 28; and Exhibit 32.

Immediately prior to trial, the Thomases filed a motion in limine, on January 4, 2010, with the Sciolettis filing their opposition on the same date. With their motion in limine, the Thomases sought exclusion of “any evidence from the trial . . . that is not relevant to the remaining issue to be decided pursuant to” the Summary Judgment Order. Upon hearing their motion, this court stated that it was prepared to take the plaintiffs’ evidence de bene, tacitly denying the defendants’ motion. Nevertheless, to the extent that the plaintiffs adduced evidence immaterial to the remaining triable issue, that evidence was either not considered in rendering this decision, or excluded during the course of trial in response to defense counsel’s specific objections.

In addition, this court excluded from the record Exhibits 9-15. See Transcript (Tr.), pp.199-200. Those exhibits relate to the parties’ applications and proceedings before the local conservation commission and Massachusetts Department of Environmental Protection (DEP). This court excluded those exhibits because they involve state and local regulation of the tidal flats and land held in public trust below low water. They do not concern the property rights over the tidal flats that might derive, by implication, from the plaintiffs’ deeded easement.

Findings of Fact

Based upon the testimony deemed credible, the exhibits admitted into evidence, and all logical inferences derived therefrom, as well as any stipulations of fact entered into by the parties, this court finds as follows:

1. The distance between mean high water and mean low water within the easement area (intertidal zone) presently consists of no more than 10-12 feet, see Tr., pp. 170-171; Exh. 24. The bordering marine vegetation has moved seaward over time, causing the intertidal zone to shrink. See Tr., pp. 158, 176.

2. The intertidal zone, which is not a “beach” in the colloquial sense of the term, see Tr., pp. 81, 89, 144, is beset by muddy, mucky, and bug-infested conditions, see Tr., pp. 53; 80, 89, 145, 167, 169-170, 177, 217-218; Exh. 25-A through 25-C; during the peak summer months, see Tr., pp. 144, 271; this condition is attributable to “thousands of years” of “tide[s going] back and forth over” it, Tr., p. 97, and the disintegration of “benthic plants,” such as algae and sea lettuce. Tr., p. 99.

3. Passage through the intertidal zone by foot at these times, though possible without a structure, is made difficult, see Tr., pp. 53, 55, 72-73 , 77, 90-91, 167, 169-170, 217-218, 223, by virtue of the aforementioned conditions, see Findings, ¶ 2, supra, [Note 7] which render the terrain “not a solid foundation,” Tr., p. 80, and “slippery.” Ibid.

4. In light of these conditions, the use of a walkway, see Tr., p. 49, Ex. 21-A, ramp, and floats finds precedence within the easement area on the part of the Sciolettis’ predecessor in title, see Tr., pp. 128-129, 133, 160, 180; Exhs. 19-20B, commencing approximately in 1987. See Tr., p. 150.

5. In the absence of wooden structures facilitating access to low water, the plaintiffs have been obliged, from a practical standpoint, to don bathing suits in order to use the easement portion extending over the intertidal zone. See Tr., p. 220.

6. Without said structures, the plaintiffs have used their easement with considerably less frequency than was the case when such structures were in place. [Note 8] See Tr., p. 222. Plaintiffs would be disinclined to use the easement, under present circumstances, with their grandchildren. See Tr., p. 223.

7. A number of the homes abutting Follins Pond, as well as those in the surrounding area, were purchased as seasonal residences. [Note 9] See Tr., pp. 40,

8. Consistent with Findings, ¶ 7, supra, and with the parties’ stipulation, see Tr., p. 43, Follins Pond is used by area residents, in the main, for boating purposes. See Tr., pp. 95, 126, 141.

9. Given its use for boating purposes, and due to environmental conditions present in the pond’s tidal flats, elevated walkways, ramps, and floats are all customary and ordinary in the Follins Pond area. See Tr., pp. 94. 140. More specifically, elevated walkways are used to allow access to the pond, while avoiding the sea grass and eel grass found in marsh areas surrounding the pond and terminating at high water; whereas ramps and floats are customarily used to reach mean low water and beyond. See Tr., p. 145. Though used on occasion, stairways leading directly down from elevated walkways onto intertidal zones are disfavored as compared to ramps and floats. Ibid. These configurations are disfavored because (a) they are “permanent [i.e., cannot be taken up during the winter months and, therefore,] get damaged by the ice,” and (b), inasmuch as such stairs are affixed to the intertidal zone, they accumulate muck from the sea grass, and, therefore, become “so slippery that they are unsafe.” Ibid.

10. The intertidal zone is designated a “coastal beach” under the Wetlands Protection Act (WPA), see Tr., p. 97, and under the Yarmouthport wetlands protection bylaw. See Tr., p. 108.

11. The intertidal zone also constitutes a shellfish habitat regulated by the state Natural Resources Department. See Tr., p. 100

12. In light of the fact that Follins Pond is an area of concern under state and local environmental regulation, the construction and use of a stairway into salt marshes “typically is not allowed” for environmental reasons, Tr., p. 105.

13. The use of appropriate wooden structures to allow access to the portion of Follins Pond at and below mean low water would be more environmentally advantageous than the use of stairs descending upon the intertidal zone from high water. See Tr., p. 114.


As previously observed, the Summary Judgment Order established that the Sciolettis hold an easement burdening the Thomases’ property. Also determined by that Order, the Sciolettis’ easement extends to mean lower water and provides a means of access by foot or its functional equivalent to the waters of Follins Pond so that the Sciolettis might effectuate their public trust rights in those waters. The Thomases have stipulated that structures are reasonably necessary to reach mean high water.

The disputed terrain, therefore, is that portion of the easement within the intertidal zone. The Sciolettis contend that structures are reasonably necessary for such access, whereas the Thomases argue that they are not.

“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another. It is ‘a right, which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor.’” Commercial Wharf East Condominium Assoc. v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990), quoting from Ritger v. Parker, 8 Cush. 145 , 147 (1851) (citations omitted). In short, an easement “is a right to use the land of another for a specific, limited purpose.” Ibid. Notwithstanding its limited nature, “[w]hen an easement . . . is created, every right necessary for its enjoyment is included by implication.” Sullivan v. Donohue, 287 Mass. 265 , 267 (1934). See Walker v. E. William & Merrill C. Nutting, Inc., 302 Mass. 535 , 543 (1939) (easement holder “has the right to enter upon the servient estate . . . to make such changes therein as will reasonably adapt it to the purposes of a way, having due regard to the rights of others who may have an interest in the way”). (emphasis added)

Thus an express easement includes with it “all rights reasonably incidental to the enjoyment of” that use right; and, in particular, when an easement constitutes a right of passage, such implied rights include “the right to make reasonable repairs and improvements to the right of way.” Chatham Conservation Found., Inc. v. Farber, 56 Mass. App. Ct. 584 , 589 (2002). Accordingly, when a party holds an easement providing access to a littoral body, the existence of any concomitant right to place structures in the easement area to facilitate that access, is based upon a factual determination as to reasonable necessity. Tindley v. Department of Environmental Quality Engineering, 10 Mass. App. Ct. 623 , 628 (1980). Accord Harrington v. Lamarque, 42 Mass. App. Ct. 371 , 376 (1997) (“walking time and distance between plaintiffs’ lots and the pedestrian pathway available to them could be found, as a matter of fact, to be so great that a parking easement was reasonably necessary for the enjoyment of their right to use the beach”).

In the instant matter, this court finds that the structures to low water are not a matter of mere convenience, but are, rather, reasonably necessary for the plaintiffs’ enjoyment of the easement. Harrington, supra. While such an implied right [Note 10] “is more clearly established ‘where without improvement the way is impassible and useless,’” Chatham Conservation Found. v. Farber, 56 Mass. App. Ct. at 591, quoting from Guillet v. Livernois, 297 Mass. 337 , 340 (1937) “the necessity thus required is not an absolute physical necessity” Churchill v. Harris, 257 Mass. 499 , 502 (1926), quoting from Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402 , 410 (quotations omitted), such that without the implied right the easement would be, literally, impossible to use. See, e.g., Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981) (dominant estate may “flare corners of the entrance” of the right of way “so that access can be less abrupt and so that the field of vision of drivers turning off and into [the public way] is enlarged”).

In light of the fact-bound nature of such inquiries, this court is to consider, inter alia, what improvements are customary and usual with respect to easements of the sort presented. See Guillet, supra at 341 (holding “construction of a sidewalk, a usual incident of such a [right of] way, was proper”). In addition, “[t]he terms of the grant are to be construed in light of the facts as they appear in the record, including the manner in which the [easement area had, perhaps, been used] before the execution of the deed and the purpose which the parties had in mind” in conducting the original conveyance, i.e., the type of use right the grantor intended to convey, and to which the grantee intended to take title. Churchill, supra.

See also, Commercial Wharf East Condominium v. Waterfront Parking., 407 Mass. at 131 (“‘easement to use Condominium Land for vehicular and pedestrian access to the Retained Land for all purposes over the . . . “Parking and Driveway” [area] . . . including the right . . . to control and collect fees for parking of vehicles in such area’” also encompasses “right to control the parking of vehicles on the land”); Anderson v. DeVries, 326 Mass. 127 , 130, 134 (1950) (“‘a right of way to the beach’” carries with it the right to use the entire width of beach for all common uses of a beach); Hodgkins v. Bianchini, 323 Mass. 169 , 173 (1948) (“‘a privilege of a cart road to pass to and from main street’” includes right to place gravel in right of way, so that trucks may transport loam over easement); Churchill v. Harris, 257 Mass. at 501, 502 (reservation of “one-half of the spring water which now runs to the building on said [conveyed] premises” includes the right “to take water from the spring in any reasonable and convenient manner”); Murphy v. Olsen, 63 Mass. App. Ct. 417 , 424 (2005) (“pedestrian easement ‘to the beach’ . . . includ[es] beach rights [and] right of pedestrian passage over [an additional, reasonably necessary right of way]”); Brodeur v. Lamb, 22 Mass. App. Ct. 502 , 504, 505 (1986) (“nighttime access to [a cranberry] bog is reasonably necessary to proper cranberry farming,” where the bog had been conveyed and an easement granted over the remainder of the grantor’s land. Such nighttime access was therefore deemed to be within the scope of the plaintiff’s easement.) with Ward v. McGlory, 358 Mass. 322 , 324, 325 (1970) (“‘right of way . . . on the existing roadway east of the barn’” does not carry with it right to erect electric poles); [Note 11] Crowley v. J. C. Ryan Construction, Inc., 356 Mass. 31 , 34 (1969) (right of way does not carry with it right to change the grade of that way, if such “change was made . . . not to improve [it] for purposes of travel but rather so that . . . [a] subsequently installed sewer system would work as [easement holder] wanted it to work”); Ampagoogian v. Atamian, 323 Mass. 319 , 322 (1948) (“a right of way granted over the land of another . . . does not include the right to lay pipes . . .”).

More specifically, where the grantor has expressed an intent to preserve the natural condition of the encumbered property, “[i]nherent in [such expressions of intent] are environmental concerns.” Chatham Conservation Found. v. Farber, supra at 590. Accordingly, the configuration of structures that would have minimal environmental impact bears upon this court’s determination of reasonable necessity. In the case at bar, the most advantageous configuration from an environmental perspective is one in conformance with the grantor’s expressed intent. Id. at 591.

Based upon Findings, ¶¶ 2-6, 9, & 13, and in light of the foregoing legal standard, this court finds and rules that wooden structures [Note 12] are reasonably necessary to the plaintiffs’ use and enjoyment of their deeded easement within the intertidal zone. [Note 13] As noted, the Sciolettis’ easement provides access to Follins Pond. Considering the conditions that obtain within the easement area during the peak summer months, i.e., the presence of mud which causes the easement area to be slippery, the use of structures is a reasonable incident of the Sciolettis’ easement of access to Follins Pond. The reasonableness of using suitable structures to reach low water is buttressed by usage within the greater Follins Pond community, as well as by the plaintiffs’ predecessor in title. Moreover, the original grantor’s expressed intent to preserve the natural beauty of the subdivision abutting Follins Pond, together with the fact that using suitable structures rather than employing stairs at high water will minimize the environmental impact upon the tidal flats, lend further support to this court’s determination.

Though, as established by the Summary Judgment Order, the Sciolettis’ easement permits neither the erection and maintenance of a marina, nor the mooring and storage of boats, the access that their easement provides was never intended to preclude the use of Follins Pond by the Sciolettis for boating purposes. See supra, note 1. Rather, a basic purpose of the disputed easement is to provide the Sciolettis with a method of effectuating their public trust rights of fishing, fowling, and navigating the waters of Follins Pond. At trial, the Sciolettis were able to demonstrate that absent appropriate structures, their ability to use hand-held boats would be significantly impeded, and their use of Follins Pond materially diminished. Their deeded easement was meant to provide a meaningful method of access. In this regard, structures, including those in the intertidal zone, would be sufficiently connected, both logically and practically, to that purpose as to be considered reasonably necessary.

Lastly, see the case of Mt. Holyoke Realty Corp v. Holyoke Realty Corp., 292 Mass. 332 , 335 (1935) where the Court enunciated the general rule that “owners of servient lands are so limited in the use of their lands as not to interfere with easements to which the lands are subject.” Texon, Inc. v. Holyoke Mach., Co., 8 Mass. 363 , 366 (1979) (“owner of servient estate may not use the property . . . in a way that would lead to a material increase in the cost or inconvenience to the easement holder’s exercise of his rights”). See generally Western Mass. Electric Co. v. Sambo’s of Mass., Inc., 8 Mass. App. Ct. 815 (1979). See also Commercial Wharf East Condominium v. Waterfront Parking, 407 Mass. at 129 (“[t]he law of real property has long recognized the coexistence of possessory interests in land with limited nonownership interests in the same land”).


In light of the foregoing, this court concludes that the Sciolettis have the right, in the first instance, to erect and maintain wooden structures, in order to facilitate their access by foot, within the easement area, to the mean low water mark of Follins Pond. In this fashion, they will be free to effectuate the use and enjoyment of their deeded easement. As previously noted, in addition to the elevated walkway to mean high water, the structures providing access to mean low water may permissibly include a descending ramp and floats.

Judgment to issue accordingly.

Harry M. Grossman


Dated: December 15, 2010.


[Note 1] In a colloquy with defendants’ counsel, this court further explicated what it meant when it ruled that the Sciolettis’ easement did not include the right to erect and maintain dock structures for boating purposes:

THE COURT: The easement cannot be used for the storage of boats. We did talk specifically about carrying boats over the easement and that was perfectly acceptable. That’s not a problem. It depends on how you define ‘boating.’ Can you store . . . boats, for instance, anywhere on the easement? No. Can you tie boats up to the structure within the easement area? No. . . .

In other words, the plaintiffs’ easement consists of a right of access to Follins Pond to effectuate their public trust rights of fishing, fowling, and navigating. Their use right does not include the right to store boats; it does not provide legal authority to erect and maintain a marina of any size.

[Note 2] Composed primarily, though not exclusively, of wood.

[Note 3] To the extent that the structures depicted in Exhibit 22-A extend beyond mean low water, this court express no opinion as to the permissibility of such structures, as such use and construction is not before it, but is instead subject to the jurisdiction of the Massachusetts Department of Environmental Protection under G. L. c. 91.

[Note 4] Initially in Superior Court on September 22, 2004. This matter was transferred to the Land Court by order dated April 30, 2007.

[Note 5] Between the issuance of the Summary Judgment Order and the trial, the Sciolettis brought a motion for reconsideration on April 27, 2009. This court denied said motion by order dated June 17, 2009. In addition, Patrick F. Gilligan and Leeann M. Gilligan filed a Motion to Intervene on April 27, 2009, which this court denied on June 17, 2009, as well. Finally, Old Lyme Realty Trust filed a Motion to Remove Default on April 27, 2009, which too this court denied on June 17, 2009.

[Note 6] The Gilligans, defendants in this matter who were defaulted, are husband and wife. They own Lot 3 on Land Court Plan 34511-C, see Exh. 2, which is part of the subdivision of which the plaintiffs’ and defendants’ properties are a part. The Gilligans hold an easement over the Thomases’ property granted by identical language to that held by the Sciolettis.

[Note 7] Although, through cross examination, defendants’ counsel attempted to attribute the witnesses’ difficulties in reaching low water with kayaks to the weight of those boats, this court credits testimony suggesting that traversing the muddy, slippery conditions of the intertidal zone itself contributed significantly to those difficulties.

[Note 8] Portions of the previous structures were destroyed as a result of storm conditions. To a large degree, only the elevated walkway remains.

[Note 9] See this court’s Order on Summary Judgment, Note 82. Moreover, to the extent relevant herein, it is clear from the exhibits and confirmed by this court’s view, that there is no useable beach area as that term is commonly understood, in the relevant portion of the easement.

[Note 10] i.e. of reasonable necessity.

[Note 11] But see G. L. c. 187, § 5 (providing “owner . . . of real estate abutting on a private way who [has] by deed existing right of ingress and egress upon such way . . . shall have the right by implication” to install utilities); Nantucket Conservation Foundation, Inc. v. Russell Mgmt., Inc., 380 Mass. 212 (1980).

[Note 12] Including structures that are predominantly wooden in nature.

[Note 13] It may be argued that such wooden structures are absolutely necessary if one is to effect passage to low water, when the tide is high.