JOHN J. LEAHY, MARTHA A. LEAHY, JOHN J. TWOMEY, MARGARET B. TWOMEY, WILLIAM O. BILL, ELINOR M. BILL, JOAN DELMORE, BARRY E. EGAN and PATRICIA EGAN, as Trustees of EGAN REALTY TRUST, WILLIAM HENDERSON, MARGARET HENDERSON, JANET HUNT, SANDRA KRISTIANSEN, STUART KRISTIANSEN, ALBERT F. LENZI, JOAN M. LENZI, CRISTIN F. LUTTAZI, SHEILA O. LUTTAZI, BRIAN J. MELIA, MAUREEN WALSH-MELIA, TRACY ANN MURPHY, BERTHA NARINIAN, SANDRA NARINIAN and GREG NARINIAN, as Trustees of NARINIAN REALTY TRUST, CLAIRE NAUEN, PARK AVENUE ASSOCIATES INC., DONALD QUINLAN, PATRICIA QUINLAN, DANIEL R. ROSENTHAL, ELIZABETH WADE WHITEHEAD, as Trustee of LANSING REALTY TRUST, JAMES S. WEAVER and HARRIET S. WEAVER vs. ANN MARIE T. BROWN, CHARLES V. LYNCH, JR., KATHLEEN E. CAVANAUGH, PHYLLIS TIMMINS, MARY A. CRIMMINS, WILLIAM J. DELANEY, D. DELANEY, ROBERT K. LAPOINT, L. LAPOINT, LISA A. DOUGLAS, as Trustee of MALFA REALTY TRUST, RICHARD F. LYMAN, RONALD C. MAFERA, JEANNE M. O’CONNOR, JAMES J. RYAN, JOHN PUGLISI, UNA PUGLISI, DOUGLAS J. RICHARDS, ANNE L. RICHARDS, ROBERT H. ST. GERMAIN and RICHARD S. SMALL, as Trustees of WIDMILL LANE REALTY TRUST, HELEN S. SHAH, ELLEN L. SHRAGO, PAUL T. SOULIOTIS and BURTON L. WILLIAMS, as Trustees under the WILL OF PAUL T. SOULIOTIS, DONNA SPADAFORA and TONI ANN SPADAFORA-SADLER, as Trustees of WINDMILL LANE NOMINEE TRUST, R. BERGEN VAN DOREN, PHILIP D. WRIN, MARY L. WRIN, and MONICA T. GRAVELINE, as Trustees of MONICA T. GRAVELINE TRUST

Plaintiffs filed their unverified Complaint on July 30, 2004, seeking a declaratory judgment pursuant to G. L. c. 231A relative to a claimed easement by implication and easement by prescription in the Hyannis Park beach (the “Beach”) located in Yarmouth, MA. Defendant Helen S. Shah (“Shah”) filed her Answer on September 1, 2004. [Note 1], [Note 2] On September 7, 2004, Defendants Ronald C. Mafera, James J. Ryan and Richard Lyman (“Mafera”) filed their Answer and Counterclaim alleging that none of Plaintiffs have a right to use Stone Avenue as access to the Beach, and Crossclaim against Defendant Linda Ellen Shrago (“Shrago”), alleging that they own land which is in Shrago’s name located on the Beach. [Note 3], [Note 4] On September 30, 2004, Defendants Burton L. Williams and Paul T. Souliotis, Trustees under the will of Paul T. Souliotis (“Souliotis”), filed their Answer. [Note 5] On October 26, 2004, separate Answers were filed by Shrago, Defendants Douglas and Anne Richards (the “Richards”), and Defendants Robert H. St. Germain and Richard S. Small, Trustees of the Windmill Lane Realty Trust dated December 3, 1996 (“Windmill Trust I”). [Note 6] Defendants Ann Marie T. Brown and Charles Lynch, Jr. (“Brown/Lynch”), Kathleen Cavanaugh and Phyllis Timmins (“Cavanaugh/Timmins”), William J. Delaney and D. Delaney (the “Delaneys”), Robert K. LaPointe and L. LaPointe (the “LaPointes”), Jeanne M. O’Connor (“O’Connor”), John Puglisi and Una Puglisi (the “Puglisis”), and Monica Graveline as Trustee of Monica T. Graveline Trust (the “Graveline Trust”) filed their Answer on October 28, 2004. [Note 7] On October 29, 2004, Defendants Donna Spadafora and Toni Ann Spadafora-Sadler, as Trustees of the Windmill Lane Nominee Trust dated November 19, 2000 (“Windmill Trust II”), filed their Answer and Counterclaim, alleging termination of Plaintiffs’ easement, if any, to use the Beach by adverse possession. [Note 8] Plaintiffs filed their Response to Windmill Trust II’s counterclaim on November 15, 2004. On December 20, 2004, Defendants Mary A. Crimmins (Crimmins”), Lisa A. Douglas as Trustee of Malfa Realty Trust (“Malfa Trust”), and R. Bergen Van Doren (“Van Doren”) were defaulted. On December 20, 2004, Plaintiffs filed their Response to Mafera’s counterclaim. On September 14, 2005, a Stipulation of Voluntary Dismissal was filed with respect to Plaintiffs Bertha Narinian, Sandra Narinian and Greg Narinian as Trustees of Narinian Realty Trust (the “Narinian Trust”), owners of property located at 51 Park Avenue, and James S. Weaver and Harriet S. Weaver (the “Weavers”), owners of property located at 5 Russo Road. Defendants Philip D. Wrin and Mary L. Wrin (the “Wrins”) filed their Answer on October 6, 2005.

Plaintiffs [Note 9] filed their Motion for Summary Judgment (“Summary Judgment 1”) on November 15, 2006, together with supporting memorandum, claiming an implied easement in the Beach. The Wrins filed their Opposition on December 14, 2006, together with Affidavit of Michael B. Stusse. On December 15, 2006, Brown/Lynch, the Delaneys, the LaPointes, Windmill Trust I, the Graveline Trust, and Windmill Trust II (the “Six Defendants”) and O’Connor filed their separate Oppositions and Cross-Motions for Summary Judgment, together with Affidavits of Chester N. Lay, Robert Daylor and Andrea Graveline, and portions of Deposition Transcripts of Joan Delmore, Patricia Egan, Christine K. Greeley, Margaret Henderson, William Henderson, Janet L. Hunt, Sandra Kristiansen, Stewart Kristiansen, John J. Leahy, Albert F. Lenzi, Joan M. Lenzi, Sheila Luttazi, Cristin Luttazi, Brian Melia, Tracy Ann Murphy, O’Connor and Barbara Tessmer. On December 20, 2006, Reilly and Shah filed separate Cross-Motions for Summary Judgment. On January 12, 2007, Summary Judgment 1 Plaintiffs filed their Opposition to Cross-Motions of the Six Defendants, O’Connor, Reilly and Shah (together with the Wrins, the “Summary Judgment 1 Defendants”). On the same day, Summary Judgment 1 Plaintiffs filed a Motion to Strike Affidavits of Robert Daylor and Chester Lay. On February 6, 2007, O’Connor and the Six Defendants filed their Replies to Summary Judgment 1 Plaintiffs’ opposition. All motions for Summary Judgment 1 were heard on February 16, 2007, and taken under advisement.

By decision dated August 28, 2008 (“Decision 1”), this court made the following findings: 1) Security and Kelleher, as the original grantors, intended to grant rights in the Beach to all lot owners in Hyannis Park, resulting in an implied easement to use the Beach (the “Easement”), 2) the express right of way contained in the deeds to Summary Judgment 1 Plaintiffs did not negate the intention of Security and Kelleher, as the original grantors, to grant rights in the Beach to all lot owners in Hyannis Park, 3) the O’Connor property is subject to the Easement, 4) Summary Judgment 1 Defendants were not bona fide purchasers without notice of the Easement, and 5) Summary Judgment 1 Plaintiffs who own lots originally deeded out prior to the September 1895 revisions to the 1892 Plans do not have a right to use Stone Avenue to access the Beach. This court also determined that there were disputed facts with respect to the Six Defendants’ and O’Connor’s claims that any implied rights in the Beach have been abandoned or extinguished by adverse possession, and ordered a trial in that regard. A pre-trial conference was held on January 14, 2009, and several status conferences were held thereafter with respect to resolution of various issues raised in Decision 1. Prior to the trial, the following documents were filed with this court: A Consent Judgment between Summary Judgment 1 Plaintiffs and O’Connor dated October 23, 2009, an Agreement for Judgment between Summary Judgment 1 Plaintiffs and the Wackrows dated October 19, 2009, a Stipulation between Summary Judgment 1 Plaintiffs and Shrago dated October 19, 2009, and a letter dated October 16, 2009, acknowledging which plaintiffs and defendants were a part of this case for purposes of trial. [Note 10] This court allowed the Graveline Trust’s Motion to Default Security and Kelleher. A site view and the first day of trial at the Barnstable District Court were held on October 28, 2009. At the commencement of the trial, the Graveline Trust filed a Request for Judicial Notice and a Motion to Dismiss for Failure to Prosecute. The final day of trial was held in the Land Court in Boston on October 29, 2009. [Note 11] Trial Plaintiffs filed their post-trial brief and Motion for Summary Judgment (“Summary Judgment 2”) with respect to the Shah Trust , together with supporting memorandum and Index containing excerpts of depositions of Martha Smith Leahy, John J. Twomey, and Helen Shah, and excerpts from the trial testimony of John Twomey and Brian Hunt, on January 28, 2010. The Graveline Trust filed its post-trial brief on January 29, 2010, and the Shah Trust filed its Motion in Opposition to Plaintiffs Motion for Summary Judgment on March 19, 2010, together with supporting memorandum and Affidavits of Roslyn L. Weiss, Helen S. Shah, and Lester J. Murphy, Jr. At that time the remaining matters were taken under advisement.

Testimony for the Graveline Trust was given by Michelle Graveline, Monica Graveline, Paul Graveline, Andrea Graveline, Rebecca Graveline Bagley, and Kent Stout. Testimony for Plaintiffs was given by Joan Delmore, John Twomey, John Leahy, Brian Hunt, and Joan Lenzi. There were twelve exhibits submitted.

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, as well as the summary judgment record, I find the following material facts:

1. Summary Judgment 1 Plaintiffs, the Graveline Trust, and the Shah Trust are all owners of lots located in Hyannis Park, a beachfront subdivision in Yarmouth, Massachusetts established in 1892 (hereinafter “Hyannis Park”). The Hyannis Park lots are shown on three plans titled “Plan of Lots at Hyannis Park situated in Yarmouth, Mass. December, 1892” prepared by Hayward and Howard, Civil Engineers (the “1892 Plans”): the first (the “1892 Plan 1”) marked “for sale by John V. Scott” and recorded at the Registry in 1892 at Plan Book 26, Page 103; the second (the “1892 Plan 2”) marked “for sale by Hyannis Park Land Co Brockton Mass” and recorded at the Registry in 1894 at Plan Book 26, Page 105; and the third, revised September 1895 (the “1895 Plan”), marked “for sale by Hyannis Park Land Co Brockton Mass” and recorded at the Registry in 1895 at Plan Book 26, Page 113. The 1892 Plan 1 shows 315 small lots (mostly rectangular in shape comprising approximately 4,000 to 4,500 square feet each), twenty six of which are waterfront lots. The 1892 Plan 1 shows five significantly larger, irregularly shaped areas of open space dispersed throughout the subdivision, one labeled “Park” and one lying between the oceanfront lots and the low water line of Lewis Bay (the Beach). Another of the areas of open space depicts the Tidal Creek, lying between Brockton Avenue to the north, the Beach and Lewis Bay to the south, Lots 136-138 and Lot 139 to the east, and Lot 147 and Lots 149-154 to the west. The 1892 Plan 1 shows several streets throughout the subdivision including seven streets which run to the Beach. The 1892 Plan 2 shows eighteen new lots (marked A-R) and a resulting reduction in the open space labeled “Park”. [Note 12] The 1895 plan shows eleven new lots (marked 316-321 and S-W), four of which are waterfront lots, a resulting reduction of another of the open spaces, and a new road called Stone Avenue running from Brockton Avenue to the Beach. Thirty of the 344 lots as shown on the 1895 Plan are waterfront lots.

2. The Security Investment Corporation (“Security”) was the developer for the Hyannis Park subdivision. Dennis B. Kelleher (“Kelleher”) had a 25% interest in Hyannis Park and Security had a 75% interest in Hyannis Park.

3. Advertisements were placed in the Brockton Daily Enterprise for sale of lots in the Hyannis Park subdivision over a period of years. The first ad dated May 20, 1893, advertised 315 lots as “Some of the Best Shore lots in New England,” and stated “Cool breeze all the time, good bathing, boating and fishing, nice beach, no undertow, shade trees on several of the lots . . .” The next ad dated June 29, 1893, advertised “50 Choice Lots”and stated, “The facilities for bathing are unsurpassed. The water is warm. Good sandy beach with no undertow. It is perfectly safe for ladies and children to bathe at all hours of the day. People come from miles around to this beach to bathe.” An ad dated May 26, 1894, stated that 200 lots had been sold and advertised “50 Choice House Lots” and “Being on the South Shore, the water is very warm and for bathing cannot be excelled. A smooth beach, perfectly safe for ladies and children to bathe, good fishing . . .” Four years later the ads continued. An ad dated May 14, 1898, advertised “85 Desirable Lots;” an ad dated May 21, 1898, advertised “Shore Lots” and stated, “We have 65 lots left;” an ad dated May 24, 1898, advertised the final 65 lots.

4. A “Topographic Survey Plan of HYANNIS PARK Yarmouth, Mass.” dated July 27, 2005 and prepared by Donald T. Poole P.L.S. (the “2005 Plan”) shows the high and low water lines for the Beach as of June 22, 2005. Graveline Property Facts:

5. Roger Gagnon and Therese L. Gagnon deeded beachfront Lots 109, 110 and 111 (the “Graveline Property”), known as 7 Grove Street, to Robert Graveline (“Robert”) and Monica T. Graveline (“Monica”) by deed dated January 8, 1963, recorded with the Registry at Book 1186, Page 350. [Note 13] Robert deeded his interest in the Graveline Property to Monica by deed dated March 1, 1993, recorded with the Registry at Book 8469, Page 200. Monica deeded the Graveline Property to the Graveline Trust by deed dated April 26, 2001, recorded with the Registry at Book 13908, Page 303.

6. When Robert and Monica purchased the Graveline Property in 1963, a stone seawall (the “Seawall”) existed along the entire southwesterly boundary of their property, separating the Graveline Property from the Beach. [Note 14]

7. To the south of the Graveline Property is Vernon Street. At the end of Vernon Street is a public beach (the “Vernon Street Beach”). To the north of the Graveline Property is Grove Street. At the end of Grove Street is a public beach (the “Grove Street Beach”). To access the Graveline Beach one would either take a right onto the beach if accessing via Vernon Street or a left onto the beach if accessing via Grove Street.

8. In 1963, the Graveline Beach was comprised of mud, rocks and seaweed and remained that way until the mid to late 1990s, at which time sand accumulated on the Graveline Beach by accretion and dredging. Prior to the dredging, the Graveline Beach was less pleasant for sitting and sunbathing than were the Vernon Street Beach and the Grove Street Beach.

9 . The Army Corps of Engineers dredged Lewis Bay in 1995. As a result, sand began to accumulate on the Graveline Beach. Robert sent a letter to the Department of the Navy dated July 12, 1995, articulating his concern that further accretion of sand along the Seawall may have a detrimental effect on his property. Nonetheless, the dredging took place in 1995 and subsequently the Graveline Beach became more sandy and less muddy and rocky. Prior to the dredging, the Graveline Beach was approximately twenty feet in width. Both before and after the dredging, the Graveline Beach was and is between mean high tide and mean low tide.

10. Shortly after taking possession of the Graveline Property in 1963, Robert built a stockade fence along the northerly and southerly boundaries of his property, running parallel to Grove Street and Vernon Street, respectively. The fences ran from the Graveline parking area in front of their home, down to the Seawall. Initially the stockade fences extended a few feet beyond the Seawall onto the Graveline Beach; however these portions of the fences were torn down by storms in the early 1970s and were not rebuilt. Robert repaired the portions of the fences running north of the Seawall if they were damaged.

11. In the late 1960s Robert and his son Paul built stone jetties at both ends of the Graveline Beach. These jetties began at the Seawall and extended approximately fifteen feet towards Lewis Bay. There was also a third jetty at the middle of the Seawall, described as a large rock, which extended from the Seawall about three feet towards Lewis Bay. During high tide the jetties at either end of the Graveline Beach were almost entirely submerged, and over time those same jetties became covered with sand because of the accretion and the dredging in the 1990s. The jetties were approximately one foot in height.

12. Robert and Monica maintained several signs saying “Private Beach” on either the stockade fence or on wooden sticks inside of the Seawall at the end of either jetty. It is unclear exactly when these signs were first erected, but it was some time around 1963. These signs were not maintained after the late 1970s.

13. Every Fourth of July members and guests of the Hyannis Park community congregate on the Graveline Beach and sit on the Seawall to watch the fireworks. Neither Robert nor Monica have ever objected to this.

14. Trial Plaintiffs accessed the Beach by walking down Grove Street and then going either right or left, depending on how crowded the Beach was on any given day. Trial Plaintiffs' use of the Beach varied individually, but several Trial Plaintiffs testified to walking the entire length of the Beach, including traversing the Graveline Beach along their walks. Joan Delmore (“Delmore”) began walking the Beach in the 1940s as a young girl and has continued to do so through the present. Delmore used the Graveline Beach in the 1940s and 1950s for general beach purposes, but other than walking, Delmore has not used the Graveline Beach since then. John Twomey (“Twomey”) began walking the entire length of the Beach in 1979 and has continued to do so to the present. Twomey would also drag his inflatable boat across the Graveline Beach beginning in 1979 and continued to do this for many years. John Leahy (“Leahy”) continuously walked the length of the Beach from 1982 to the present. In 1983 Leahy moored his sailboat in the water to either the left or the right of Grove Street and often traversed the Graveline Beach to access his moored boat. Throughout the 1980s Leahy and his children would swim, dig in the sand, and play on the Beach; often on the Graveline Beach. When Leahy got tired from these activities, he would sit on the Seawall and rest. Throughout the 1970s Brian Hunt (“Hunt”) would dig in the sand and search for shells or clam holes on the Graveline Beach. During the 1980s (Hunt's teenage years) [Note 15] Hunt and his friends would walk the entire length of the Beach going either left or right from Grove Street. In the late 1980s, Hunt would sit and meet friends at the Seawall at night. Each year from 1969 through the present Joan Lenzi has walked the length of the Beach.

15. Robert, Monica, and the Graveline children (as they got older) consistently asked people to leave the Graveline Beach beginning in 1963 and continuing to the present. [Note 16] Although other members of the Hyannis Park community were asked to leave the Graveline Beach, on only one occasion was any Plaintiff to this action asked to leave the Graveline Beach; Janet Hunt (Hunt's mother) was once told by Robert and Monica that she and her children could not use the Graveline Beach. Aside from this one incident, no one in the Graveline family ever spoke directly with Summary Judgment 1 Plaintiffs informing them they could not use the Graveline Beach. [Note 17], [Note 18] The Graveline family never objected to people walking along the Graveline Beach because they believed the Colonial Ordinance gave the public the right to walk along the beach. Except for walking, the Graveline family would tell people that the Graveline Beach was a private beach.

Shah Trust and Tidal Creek Facts:

16. The Shah Trust is the record owner of the land known as 2 Highland Street, Hyannis Park in West Yarmouth, Massachusetts (the “Shah Property”). Roslyn L. Weiss (“Weiss”) conveyed the Shah Property to Helen Shah (“Shah”) by deed dated September 11, 1996, and recorded with the Registry at Book 10385, Page 263 (the “1996 Deed”). Shah then conveyed the Shah Property to the Shah Trust by deed dated October 8, 2003, and recorded with the Registry at Book 17778, Page 259 (the “2003 Deed”). The 1996 Deed and the 2003 Deed included three separately described parcels.

a. The first parcel described in the 1996 Deed and the 2003 Deed was Lots 147-151 as shown on the 1892 Plans (the “Shah Lots”).

b. The second parcel described in the 1996 Deed and the 2003 Deed was the Shah Trust's interest in the Tidal Creek (the “Shah Tidal Creek”). This parcel is described as follows:

COMMENCING at the southeast corner of lot 147 and running NORTHEASTERLY on the easterly line of Lost 147, 149, 150, and 151, about two hundred fifty-two (252) feet; thence running EASTERLY, thirty-five (35) feet on a line which is an extension of the north boundary line of Lot 151; thence turning and running SOUTHERLY about two hundred eighty (280) feet; and thence turning and running WESTERLY on Lewis Bay, so-called, seventy-five (75) feet to the point of beginning. [Note 19], [Note 20]

c. The third parcel described in the 1996 Deed and the 2003 Deed is beach land (the “Shah Beach”) seaward of Lots 147, 148, and the Shah Tidal Creek (see infra, paragraph 18 for a description of this parcel). The portion of the Shah Beach relevant to this decision is the portion seaward of the Shah Tidal Creek, (the “Shah Tidal Creek Beach”). 17. Lots 147 and 148 are the two beachfront lots on the Shah Property, as shown on the 1892 Plans. Lot 147 was initially deeded out on June 6, 1893, and recorded with the Registry at Book 206, Page 278. The consideration paid to the grantors for lot 147 was $212.50 Lot 148 was initially deeded out on June 12, 1896, recorded with the Registry at Book 222, page 264. The consideration paid to the grantors for lot 148 was $133.34. [Note 21]

18. In September 1906, Security, the developer and common grantor of lots in the Hyannis Park Subdivision, granted by deed the final five unsold lots in Hyannis Park to Oliver Scudder (Lots 10, 12, 229, 221, and T), together with an unnumbered parcel which was described by metes and bounds (the Tidal Creek). The 1906 Deed was recorded with the Registry at Book 274, Page 569. [Note 22] The consideration paid for the five lots plus the Tidal Creek was $1 and other consideration. There is no evidence of any other consideration paid. The Tidal Creek is described in the 1906 Deed as follows:

Beginning at a stake in the south line of Brockton about 91 feet from the street corner of Brockton Avenue and Highland Street, thence southwesterly in the east line of lot # 154, 153, 152, 151, 150, 149, and 147, to high watermark. Thence easterly by high water mark to the corner of Grove Street and the high water mark, thence northerly in line of lots # 138, 137, 136, 139 to Brockton Avenue thence northwesterly in the south line of Brockton Avenue 70 feet to the point of the beginning. [Note 23]

19. J.P. Scudder conveyed a certain parcel of beach land seaward of Lots 147, 148, and the Tidal Creek (the Shah Beach) to Jessie Russell by deed dated July 6, 1929, and recorded with the Registry at Book 466, Page 318 (the “1929 Deed”). The Shah Beach is described in the 1929 Deed as follows:

Beginning at a bound at the South West corner of Lot # 148 as shown on a Plan of Lots at Hyannis Park … thence southerly in a line which is a continuance of the East line of Highland St. (125) feet more or less to Low Water Line as shown on said Plan. Thence Easterly by said Low Water Line (175 feet) more or less Thence Northerly (125) feet (more or less) to a point in the Creek and land of said Jessie Russell Thence Westerly along the South line of said unnumbered strip and the South Line of lots 147 and 148 to a point of beginning.

Both this court in Decision 1 and the court in Weiss (see footnote 25, infra) found that the 1929 Deed was a nullity.

20. There is a large rock jetty at the southeast end of the Shah Property which extends from the Shah Lots to a point between the mean high and the mean low water lines as shown on the 2005 Plan. This jetty separates the Shah Tidal Creek Beach from the portion of the Shah Beach adjacent to the Shah Lots.

21. Children have played in the Tidal Creek for a number of years. Twomey, who purchased property in Hyannis Park in 1979, testified that his kids played there when they were small. [Note 24] Hunt, who was born in 1968 and began using the Beach as a child in the early 1970s, testified that as a child he would “dig holes and search for hermit crabs and minnows and the things kids like to do, both in the creek bed . . .” Shah testified that, since the time that she purchased the Shah Property in 1996, children would often play in the Tidal Creek.

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The Graveline Property

The Graveline Trust's Motion to Dismiss for Failure to Prosecute, pursuant to Mass. R. Civ. P. 41(b)(2), must be addressed first. [Note 25] The Graveline Trust urges the court to dismiss the claims of Plaintiffs who did not proceed to trial (the “Non-trial Plaintiffs”). [Note 26] In Decision 1 this court found that Summary Judgment 1 Plaintiffs have implied easement rights in the Beach. The rights of Summary Judgment 1 Plaintiffs were adjudicated and it is now the burden of the Graveline Trust to establish its own prescriptive rights at trial to extinguish Summary Judgment 1 Plaintiffs’ rights in the Graveline Beach. The Graveline Trust argues that various cases in Massachusetts have been dismissed for failure to prosecute because of prosecutorial inactivity for many years. See State Realty Co. of Boston, Inc. v. MacNeil Bros. Co., 358 Mass. 374 , 379 (1970) (affirming decision of Superior Court dismissing for want of prosecution because case sat dormant on docket for eleven years); see Bucchiere et al v. New England Telephone & Telegraph Company, 396 Mass. 639 , 640-641 (1986) (dismissing for failure to prosecute as plaintiffs failed to participate in nearly all discovery requests). To the contrary, this case has been actively litigated and all Plaintiffs, including the non-trial Plaintiffs, participated in the discovery process and proceeded until their rights had been adjudicated by Decision 1. The burden now rests on the Graveline Trust to show that it has terminated the Easement as to Summary Judgment 1 Plaintiffs, including the Non-trial Plaintiffs, through prescriptive use. As a result, I DENY the Graveline Trust's Motion to Dismiss for Failure to Prosecute.

The Graveline Trust argues that despite the Easement to use the Beach, including the Graveline Beach, Summary Judgment 1 Plaintiffs have abandoned their easement rights in the Graveline Beach. The Graveline Trust also argues that actions taken by members of the Graveline family are sufficient to extinguish the Easement through adverse use. [Note 27] Finally, the Graveline Trust argues Summary Judgment 1 Plaintiffs’ claim of the Easement in the Graveline Beach is barred by laches.

Trial Plaintiffs argue they have not abandoned their easement rights and that the Graveline Trust has not met its burden to establish that the Easement has been extinguished through adverse use; i.e. Trial Plaintiffs argue the use of the Graveline Beach by the Graveline Trust has not been inconsistent with Summary Judgment 1 Plaintiffs’ right to use the Graveline Beach for ordinary beach purposes. Trial Plaintiffs also argue the Graveline Trust’s claim is barred by laches. I shall address each of these arguments in turn. Abandonment.

The Graveline Trust argues that Summary Judgment 1 Plaintiffs abandoned the Easement by non-use. It is well established law that non-use for the statutory period of twenty or more years, without more, is insufficient to show an abandonment. King v. Murphy, 140 Mass. 254 (1885). See also Willets v. Langhaar, 212 Mass. 573 , 575 (1912) (stating the owner of the dominant estate must manifest some intent to abandon his rights).

The Graveline Trust has introduced no evidence manifesting Summary Judgment 1 Plaintiffs’ intent to abandon the Easement. To the contrary, the evidence in the trial record shows that Summary Judgment 1 Plaintiffs did in fact exercise their rights to use the Graveline Beach over a long period of time. Several of the Trial Plaintiffs testified to walking along the Graveline Beach (from at least 1963 through the present), digging in the sand and sitting on the Seawall. This testimony, showing consistent use from 1963 to the present, demonstrates that Summary Judgment 1 Plaintiffs never intended to abandon their easement rights, and thus the Graveline Trust’s burden to establish abandonment of rights by Summary Judgment 1 Plaintiffs has not been met. As a result, I find that Summary Judgment 1 Plaintiffs have not abandoned the Easement. Extinguishment by adverse possession.

The Graveline Trust contends it has extinguished the Easement in the Graveline Beach by adverse use. It is the burden of the party claiming extinguishment of an easement by adverse use to prove the evidence needed to sustain its claim. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 422 (1979). While similar, the burden which must be met to extinguish an easement through adverse possession differs from the standard applied to the creation of an easement through adverse possession. Shapiro v. Burton, 23 Mass. App. Ct. 327 , 330 (1987). The requirement that adverse use must unequivocally obstruct the easement, preventing the easement holder from exercising their rights, is a critical distinction between the types of adverse conduct required to extinguish an easement as compared to adverse use or conduct necessary to create prescriptive rights. 28 Mass. Prac., Real Estate Law § 8.51 (4th Ed.). To extinguish an easement the servient estate must take acts which in substance and effect have rendered the use of the easement practically impossible. The New England Home for Deaf Mutes (Aged, Blind or Infirm) v. Leader Filling Stations Corporation, 276 Mass. 153 , 159 (1930). Acts of the servient tenant which render the use of only part of a right of way impossible, extinguish the easement only as to that part. Pappas v. Maxwell, 337 Mass. 552 , 557 (1958). “To establish a use adverse to the holder of an easement requires a use in a manner so inconsistent with the easement that it is extinguished after a lapse of twenty years.” Id at 331, quoting Lemieux, 7 Mass.App.Ct. at 422. To extinguish an easement, the servient estate must show that its use is irreconcilable with the use as a way, “openly, notoriously, adversely, and without interruption for more than twenty years.” Brennan v. DeCosta, 24 Mass. App. Ct. 968 (1987) (quoting Lemieux, 7 Mass.App.Ct. at 422-424). Adverse use by the servient tenant would warrant an action by the dominant tenant for obstructing the easement. The New England Home for Deaf Mutes, 276 Mass. at 158.

The court in Shapiro found that actions taken by the owners of the servient estate were so inconsistent with the rights of the dominant parcel that the scope of the easement was dramatically limited. The owner of the servient estate maintained hedges over the easement walkway, a fence with shrubs further blocking access, and the servient estate’s predecessor in title “vociferously opposed” any access to the easement walkway. Id. In Pappas the court found that the presence of an outhouse and shrubs making access to the easement physically impossible was so inconsistent with the rights of the dominant estate that the easement was thereby extinguished. Pappas, 337 Mass. at 557. In Lemieux the court upheld the finding of a Master that a twenty foot right of way had been partially extinguished due to the existence of fences and permanent loading platforms installed by the servient estate and his predecessor, which had been open and adverse for more than twenty years. Lemieux, 7 Mass.App.Ct. at 420. Actions taken by the servient estate did not meet the “required inconsistency [to extinguish the easement in its entirety] since the servient left the way available for use during the day by foot or vehicular traffic”. Id at 423.

The Graveline Trust argues it has established exclusive, adverse and actual use of the Graveline Beach for a period of greater than twenty years. Trial Plaintiffs argue that the Graveline Trust’s use of the Graveline Beach has been neither exclusive nor adverse for the requisite twenty year period. [Note 28]

A. Adverse and Exclusive Use by the Graveline Trust

The Graveline Trust argues that its actions have been adverse to Summary Judgment 1 Plaintiffs' Easement rights and that the Graveline Trust has excluded Summary Judgment 1 Plaintiffs from using the Graveline Beach by posting “Private Beach” signs, vociferously opposing the use of the Graveline Beach, and maintaining structures blocking access to the Graveline Beach. The actions taken by the Graveline Trust, however, do not amount to a use irreconcilable with Summary Judgment 1 Plaintiffs' Easement to use the Graveline Beach, would not give Summary Judgment 1 Plaintiffs a cause of action against the Graveline Trust for obstruction of the Easement, and do not render any use of the Graveline Beach practically or effectually impossible.

The Graveline Trust posted “Private Beach” signs in an effort to alert fellow community members of its intentions to exclude all beach users from using the Graveline Beach. It is well settled law in Massachusetts that the intention of the party claiming adverse rights is irrelevant in determining whether those rights exists. Tottman v. Malloy, 431 Mass. 143 , 145 (2000), quoting Kendall v. Selvaggio, 413 Mass. 619 , 623-624 (1992). The Graveline Trust's use of the signs certainly does not make use of the Graveline Beach impossible, nor would the mere posting of signs give rise to a cause of action by Summary Judgment 1 Plaintiffs against the Graveline Trust for obstructing the Easement. [Note 29]

Similarly, the Graveline Trust argues that its opposition to anyone attempting to use the Graveline Beach is sufficient to extinguish the Easement. The evidence indicates that the Graveline family often (primarily in the summer months) monitored the Graveline Beach and asked people using the Graveline Beach to leave. Members of the Graveline family often asked “backlotters” to move to the public beaches on either side of the Graveline Beach. [Note 30] Trial Plaintiffs do not challenge the Graveline family's contention that the family asked people to leave the Graveline Beach, yet each testifying Trial Plaintiff plainly stated that in all of their years at Hyannis Park they have never been asked to leave the Graveline Beach. [Note 31] At first blush the testimony given by members of the Graveline family and Trial Plaintiffs appears to be inconsistent, but the trial record does not disclose that any of Summary Judgment 1 Plaintiffs were asked to leave the Graveline Beach. Moreover, even if the Graveline Trust did ask Summary Judgment 1 Plaintiffs to leave the Graveline Beach, this would not be enough to extinguish the Easement. Although the Graveline family's policing of the Beach appears inconsistent with Summary Judgment 1 Plaintiffs' easement rights, without some permanent structure blocking access to the Graveline Beach, mere vocal opposition against use of the Graveline Beach is not sufficient to extinguish the Easement. [Note 32] Without any structures blocking access to the Graveline Beach, an action for obstruction of the Easement could not be maintained, and thus the opposition of the Graveline Trust, in itself, is not irreconcilable with the rights of Summary Judgment 1 Plaintiffs to use the Graveline Beach.

The Graveline Trust argues that it maintained a stockade fence blocking access to the Graveline Beach and constructed rock jetties on either side of the Graveline Beach which served as permanent structures making access to the Graveline Beach practically impossible. For a number of years a portion of the stockade fence extended a few feet onto the Graveline Beach, however that portion was destroyed by storms and never replaced. [Note 33] The evidence shows that the portion of the fence extending onto the Graveline Beach was destroyed within ten years after it was erected.

Similarly, the rock jetties constructed by Robert and Paul Graveline did not make access to the Graveline Beach practically impossible nor would such jetties result in an action for obstruction of the Easement. The rock jetties were approximately one foot in height and were submerged under water during high tide. Leahy testified that the rock jetties did not deter Summary Judgment 1 Plaintiffs from walking along the Graveline Beach. Neither the stockade fence nor the rock jetties would give rise to a cause of action for obstruction of the Easement nor did they make access to any portion of the Graveline Beach impossible.

Summary Judgment 1 Plaintiffs' use of the Graveline Beach over the years is further evidence that the Graveline Trust's actions have not been irreconcilable with the rights of the Easement holders. Several Trial Plaintiffs credibly testified that they used the Graveline Beach for various purposes dating from Delmore's use of the Graveline Beach as a young girl in the 1940s through the present. [Note 34] Summary Judgment 1 Plaintiffs' use of the Graveline Beach includes walking along the Graveline Beach, traversing the Graveline Beach with inflatable boats, playing and digging in the sand, and sitting on the Seawall. Decision 1 established that Summary Judgment 1 Plaintiffs hold an Easement to use the entire beach along Lewis Bay (the Beach), which includes the Graveline Beach. Trial Plaintiffs' testimony indicates that they have continuously used the Graveline Beach for various purposes, which is entirely consistent and within their rights established by the findings and holding in Decision 1. [Note 35]

The Graveline Trust argues that it can extinguish the Easement for all purposes except for walking along the Graveline Beach, and claims that the Colonial Ordinance, not the Easement, gives Summary Judgment 1 Plaintiffs a right to walk along the Graveline Beach. The Colonial Ordinance establishes a right in the public to use beach land between mean high water and mean low water for the purposes of fishing, fowling, and navigation. There is no authority which extends a right to walk along private beach land between the flow and ebb of the tides. Opinion of the Justices, 365 Mass. 681 , 687-688 (1974). As a result, the Graveline Trust's mistaken belief that the Colonial Ordinance granted Summary Judgment 1 Plaintiffs a right to walk along the Graveline Beach is irrelevant.

The Graveline Trust is correct that rendering part of a use impossible extinguishes the Easement as to that part, but the Graveline Trust has rendered no part of the right to use the Graveline Beach impossible. Taken together, the “Private Beach” signs, the objections to use of the Graveline Beach, and the use of rock jetties and a stockade fence to exclude Summary Judgment 1 Plaintiffs do not render any use of the Graveline Beach impossible. As a result of the foregoing, I find the Graveline Trust's use of the Graveline Beach not irreconcilable with the rights of Summary Judgment 1 Plaintiffs to exercise the Easement.

B. The Graveline Trust's Continuous Use for Twenty Years

The Graveline Trust must prove that it has used the Graveline Beach exclusively and adversely against the Easement holders for a period of twenty years. The credible evidence offered by Trial Plaintiffs shows that the Graveline Trust did not exclude Summary Judgment 1 Plaintiffs from the Graveline Beach for any period of twenty years. Trial Plaintiffs testified that they have walked and continue to walk across the Graveline Beach each summer since they began spending time at Hyannis Park, dating back to the 1940s (approximately twenty years prior to the Graveline Trust's purchase of property in Hyannis Park). Summary Judgment 1 Plaintiffs, as discussed, supra, have continuously used the Graveline Beach for various other purposes over the last fifty years. Based on all of the credible evidence, there seems to be no period of twenty years between 1963 - 2004 where the Graveline Trust exercised exclusive and adverse use over the Graveline Beach. As a result, I find that the Graveline Trust cannot show any period of exclusive use of the Graveline Beach for a period of twenty years.

As a result of the foregoing, I find that the Graveline Trust has not extinguished the Easement, as it relates to the Graveline Beach, through prescriptive use.

Laches

The Graveline Trust asserts that Summary Judgment 1 Plaintiffs’ claim is barred by laches. A finding of laches is appropriate where there is an “unjustified, unreasonable and prejudicial delay in raising a claim.” Weston Forest and Train Ass’n., Inc. v. Fisham 66 Mass. App. Ct. 654 , 657 (2006), quoting Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45 , 49 (1990). The Graveline Trust points to the Appeals Court’s decision in Weiss as the basis for their laches arguments. In Weiss, the Appeals Court affirmed an Easement granting the plaintiffs to that action an easement to use the beach adjacent to the Shah Property. The Graveline Trust argues that Summary Judgment 1 Plaintiffs should have brought this action shortly after the Weiss decision, or in the alternative Summary Judgment 1 Plaintiffs should have brought this action immediately after the Weiss decision had been actively discussed by members of the Hyannis Park Civic Association [Note 36], which was five years prior to the filing of the Complaint. The Graveline Trust notes that during the course of this action Robert passed away, and contends that Robert’s death resulted in a detrimental and a prejudicial impact against its case, especially since Robert would have been able to testify with specificity about actions he took to protect his family’s rights in the Graveline Beach.

Trial Plaintiffs also argue the Graveline Trust is barred by laches. Trial Plaintiffs contend that the Graveline Trust should have taken further action to protect its claimed fee rights in the Graveline Beach, and is now barred from doing so having waited over forty years to adjudicate its rights.

The Graveline Trust’s argument of laches holds little water. The Graveline Trust has failed to show this court how its case has been detrimentally affected by the delay in bringing this claim. Several members of Robert’s family testified in this case. His wife and children were able to recount encounters Robert had with other members of the Hyannis Park community and the Yarmouth Police Department. Robert’s death in 2008, moreover, did not preclude the Graveline Trust from taking Robert’s deposition, video taping any testimony he wished to offer, or entering an affidavit on Robert's behalf, since this action was commenced four years before his death. There was ample time between the filing of the case in 2004 and Robert’s death in 2008 to obtain admissible statements under oath from Robert. Therefore, I find that Summary Judgment 1 Plaintiffs’ claim has not been barred by laches.

As to Trial Plaintiffs’ argument of laches, there is nothing in the trial record to indicate how Trial Plaintiffs were prejudiced by a delay in the Graveline Trust's assertion that it has extinguished the Easement. Moreover, the Graveline Trust has raised this defense as a result of Summary Judgment 1 Plaintiffs’ complaint, affording it the most convenient and appropriate opportunity to have its rights in the Graveline Beach adjudicated. As a result I find that the Graveline Trust's claim is not barred by laches.

The Shah Property

Trial Plaintiffs argue that the Shah Tidal Creek and the Shah Tidal Creek Beach are two separate parcels. They contend that this court (in Decision 1) previously found an implied easement in the Beach and as a result the Shah Trust cannot argue that the Shah Tidal Creek Beach is not subject to the Easement. TrialPlaintiffs also argue that the developers of Hyannis Park intended for all lot owners to have the right to use the Shah Tidal Creek, thus this court should find an easement by implication in the Shah Tidal Creek. If this court finds an easement by implication exists in the Shah Tidal Creek, Trial Plaintiffs assert that their rights to use the Shah Tidal Creek have not been extinguished through adverse use by the Shah Trust or its predecessor in title.

The Shah Trust contends that the Shah Tidal Creek and the Shah Tidal Creek Beach are not separate and distinct parcels, but together form the “Shah Tidal Creek Parcel”. The Shah Trust then argues that the Shah Tidal Creek Parcel is not subject to the Easement found in Decision 1, and that the Shah Trust owns an unencumbered fee interest in the Shah Lots and the Shah Tidal Creek Parcel. The Shah Trust argues Security never intended to convey to all lot owners rights to use the Shah Tidal Creek Parcel. Alternatively, if this Court finds that the Shah Tidal Creek Parcel is subject to an easement, the Shah Trust claims that it and Weiss, its predecessor in title, have extinguished the rights of the Easement holders through adverse use. I shall address each of these arguments in turn.

Implied Easement

An implied easement must be found “in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.” Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940). In determining the existence of an implied easement, the court must consider the deeds to predecessors in title, recorded plans, and subsequent use by the residents. Rahilly . Addison 350 Mass. 660 , 661 (1966). “A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.” Jackson v. Knott, 418 Mass. 704 , 711 (1967), quoting Labounty, supra. “The burden of proving the existence of an implied easement is on the party asserting it.” Reagan v. Weiss, 446 Mass. 452 , 459 (2006).

A. Easement in the Shah Tidal Creek Beach

The Shah Trust argues that when developing Hyannis Park, Security did not intend to create rights in all Hyannis Park lot owners to use the Shah Tidal Creek Parcel. The Shah Trust argues that the Shah Tidal Creek Parcel is one parcel of land, comprised of both the Shah Tidal Creek and the Shah Tidal Creek Beach. The Shah Trust contends that when the lots in Hyannis Park were initially deeded out between 1892-1906, the Shah Tidal Creek Beach did not exist, and therefore Security could not intend to grant to all lot owners rights to use a beach not yet in existence.

The Shah Trust’s claim, arising out of facts articulated in Weiss, that the Shah Tidal Creek Beach did not exist until the 1950s when, subsequent to a hurricane, groins were constructed, causing the accretion of sand and the development of a beach, is inconsistent with the record. [Note 37] The 1906 Deed described the southerly boundary of the entire Tidal Creek to the “high water line”. Such language implies that at the time of the conveyance in 1906, Security reserved for itself a parcel of beach land seaward of the entire Tidal Creek between the high water line and the low water line. Additionally, the 1929 Deed, deeded out by J.P. Scudder, President of Security, conveyed a parcel of land which included the Shah Tidal Creek Beach. [Note 38] The 1929 Deed described the parcel as “A certain lot or parcel of beach land . . .” The fact that the 1906 conveyance of the Tidal Creek by the developer of Hyannis Park initially reserved the land seaward of the Tidal Creek, and that such developer then subsequently deeded out that parcel of land describing it as beach land in the 1929 Deed, is strong evidence that the Shah Tidal Creek Beach existed not only in 1929 but in 1906 as well. Even if the Shah Tidal Creek Beach was in poor condition and not ideal for sitting or sunbathing, that does not change the fact that a beach existed. Moreover, the 1892 Plan 1 and the 1895 Plan showed one continuous parcel of the Beach. The fact that various parts of the Beach were in poor condition did not preclude this court in Decision 1 and Weiss from finding that easement rights existed in the Beach.

The Shah Trust owns three separate parcels of land; the Shah Lots, the Shah Tidal Creek, and the Shah Beach (which includes the Shah Tidal Creek Beach). These three parcels were all deeded out via separate deeds which conveyed distinctly described, individual parcels of land. As a result, I find the Shah Tidal Creek and the Shah Tidal Creek Beach are two separate parcels.

The fact that the Shah Tidal Creek and the Shah Tidal Creek Beach are two distinct parcels, however, is irrelevant in regards to an easement to use the Shah Tidal Creek Beach. This court has twice found an Easement to use the entire beach along Lewis Bay (the Beach). Weiss held that plaintiffs to that action had the right to use the beach seaward of Lots 147 and 148 as shown on the 1892 Plans. Although the 1929 Deed described both the Shah Tidal Creek Beach and the beach seaward of lots 147 and 148 (together the Shah Beach), Weiss did not rule on any rights in the Shah Tidal Creek Beach. In Decision 1, to which both the Shah Trust and Summary Judgment 1 Plaintiffs were parties, this court held that Summary Judgment 1 Plaintiffs had a right to use the entire beach along Lewis Bay (the Beach). The right to use the Shah Tidal Creek Beach (a portion of the Beach) was encompassed within Decision 1. As a result of the foregoing, I find that Trial Plaintiffs have a right to use the Shah Tidal Creek Beach for usual beach purposes.

B. Easement in the Shah Tidal Creek:

Trial Plaintiffs claim that the developers of Hyannis Park intended that all lot owners have a right to use the Shah Tidal Creek. To prove that Security intended to grant rights in all Hyannis Park lot owners to use the Shah Tidal Creek, Trial Plaintiffs rely on the subdivision plan, the physical condition of the premises, the knowledge chargeable to the Shah Trust regarding the developer's intent, and the use by Trial Plaintiffs over the years. See Labounty, supra. The Shah Trust argues that the changes made to the 1892 Plan 1, as well as the 1906 Deed, do not evidence an easement by implication in favor of Trial Plaintiffs to use the Shah Tidal Creek. [Note 39]

1. Development Plans, Deeds, and Physical Layout of Hyannis Park:

Whether the parties intended to create an implied easement must be gathered from the language of the original 1892 documents when read in the light attending their circumstances. Plaintiffs rely heavily on Reagan v. Brissey, 446 Mass. 452 (2006), arguing that the facts in the case at bar are similar to Reagan, and Plaintiffs rely on the facts and arguments established in Decision 1. [Note 40] Reagan involved an 1872 subdivision on Martha’s Vineyard consisting of 917 similarly shaped rectangular lots and four irregularly shaped areas labeled “park” or “plaza” on the development plan. Id. at 453. The developers marketed the community for several months with advertisements that did not mention parks, but suggested recreational amenities for the community. Id. at 460. The plaintiffs in Reagan, whose deeds all referenced the recorded development plan, sued for injunctive relief to prevent the defendants, who claimed they held record title to the “parks”, from building residential homes on those parcels. Id at 453. The Massachusetts Supreme Judicial Court (the “SJC”), overturning both the Land Court decision and the decision of the Appeals Court, determined that all lot owners held an easement by implication to use the open areas labeled as parks. Id. at 460. The SJC reasoned that the smaller lots were designed in a way to create larger, irregularly shaped open spaces throughout the entire community where all lot owners could gather and socialize with one another. Id. The “parks” or “plazas” were found to be a selling point and an amenity available to all lot owners within the subdivision.

In the case at bar the three development plans (the 1892 Plan 1, the 1892 Plan 2, and the 1895 Plan) are substantially similar. Like Reagan, all of the unnumbered parcels, including the Tidal Creek, are substantially larger than the numbered, similarly sized rectangular lots. All of Trial Plaintiffs’ deeds make reference to either the 1892 Plan 1 or the 1895 Plan, and it is well established that, “a plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to convey.” Reagan, 446 Mass. at 459. Thus, all Trial Plaintiffs have a right to rely on the development plans referenced in their deed displaying the Tidal Creek surrounded by buildable lots, the street and the Beach. On the 1892 Plan 1, the 1892 Plan 2, and the 1895 Plan the Tidal Creek appears as a separate and distinct, unnumbered, irregularly shaped parcel rather than an enumerated, similarly sized, rectangular, buildable lot.

Like Reagan, the 344 smaller lots in Hyannis Park were all designed in a scheme which resulted in the creation of the five open areas, including the Tidal Creek. The small lots in the Hyannis Park development were laid out in a common scheme to create open spaces and parks for community members to socialize. The fact that all of the unnumbered parcels are spread throughout the development further implied that the developer intended these common areas to be accessible to all lot owners. Considering the small size of the lots, which were sold individually and referenced by lot number, it is very reasonable to infer that the developer intended the unnumbered lots to be areas for all lot owners to gather and socialize. In fact, Shah's deposition, as confirmed by the trial testimony of Twomey and Hunt, indicates that the Tidal Creek was a popular place for children to play, and that parents would watch them from the Beach. It is a logical inference that the developers of Hyannis Park intended to grant rights in the Tidal Creek to all lot owners, given this attraction adjacent to the Beach and Lewis Bay. [Note 41]

The Shah Trust correctly points out that there are differences between the 1892 Plan 1, the 1892 Plan 2, and the 1895 Plan. The Shah Trust argues the additional lots built along Park Street, the removal of the label “park”, and the addition of Stone Avenue and the houses along this new road imply that the developer did not intend for all lot owners to have rights in the five unnumbered parcels. The Shah Trust distinguishes Reagan, arguing in that case the unnumbered parcels were labeled “park” or “plaza” denoting public use, while the development plan in the case at bar, particularly the 1895 plan, contained no such language.

The changes to the 1892 Plan 1 and the 1892 Plan 2, in addition to the lack of any “park” label on the Tidal Creek, are not fatal to Trial Plaintiffs’ case. Though the SJC mentioned the “park” label in its decision in Reagan, their analysis focused more on the irregular dimensions of the “parks” and the fact that they were spread throughout the development. Reagan at 459. The fact that they contained the “park” label was a factual observation, not a legal conclusion.

The changes to the 1892 Plan 1 are of little consequence considering the similarities between the three development plans. It is true that two of the irregular shaped parcels became smaller, however those parcels remained unnumbered, irregular in shape, and distinct from the numbered lots. Moreover, the Tidal Creek remained unaffected by any changes to the 1892 Plans. The fact that lots were added to the subdivision plan, perhaps due to the success of the development, is not of great consequence relative to the irregularly shaped areas. Given the layout of the smaller parcels creating the irregularly shaped parcels throughout the community, it seems clear the developers of Hyannis Park intended to grant all lot owners the right to use the irregularly shaped parcels, including the Tidal Creek.

2. Knowledge Which the Parties Had or With Which They Are Chargeable:

The developers of Hyannis Park intended to create a grandiose beachfront residential community, making all of the community’s amenities available to all lot owners. See Weiss. The developer’s advertisements in local newspapers evidenced their intent to create a vacation destination. One advertisement states, “Cool breeze all the time, good bathing, boating and fishing, nice beach, no undertow . . .” Hyannis Park was marketed as “the coming watering place of the Eastern States”. The 1892 Plans convincingly showed that the unnumbered parcels were intended for public use, see supra, even though the advertisements do not expressly refer to these common areas. The advertisements representing Hyannis Park as a grandiose beach community are also consistent with lot owners’ rights in the Tidal Creek. The unnumbered Tidal Creek at issue is juxtaposed to the Beach. Although at the time of the initial advertisements there is evidence of the Tidal Creek being similar to a marsh, it makes sense that all lot owners would have rights in this larger, irregularly shaped parcel. Additionally, at least one newspaper advertised that the community was ideal for fishing. Twomey testified that his children and grandchildren would often fish or net for minnows in the Tidal Creek; Hunt testified as to his own use of the Tidal Creek. Considering the Tidal Creek’s attraction for fishing and catching minnows, it is reasonable to infer that Security intended the Tidal Creek to be used as a fishing location within the Hyannis Park development. Thus, the newspaper ads describing the beach and its amenities are consistent with the rights in all lot owners to use the Tidal Creek.

In addition to the newspapers advertisement’s implications of “common areas”, each deed to beachfront property and all original deeds in the record to the non-beachfront properties referenced the 1892 Plans. It is presumed that every lot owner reviewed the 1892 Plans because one or more of such plans were referenced in their deed. See Boston Water Power Co. v. Boston, 127 Mass. 374 , 376 (1879). Any subsequent purchaser having reviewed the 1892 Plan 1 would have been privy to the unmistakable differences between the numbered and unnumbered parcels and could have inferred the developer's intention to grant rights to all lot owners in the unnumbered parcels. [Note 42]

In light of the 1892 Plans, the lack of any major overhaul between the 1892 Plan 1 and the 1895 Plan, the deeds referencing the 1892 Plans, the layout of the Hyannis Park Development, and Security's advertisements of Hyannis Park as a beachfront and fishing community, I find that an easement by implication exists in favor of Trial Plaintiffs to use the Shah Tidal Creek to fish, swim, play, and perform other similar recreational activities (the “Shah Tidal Creek Easement”). [Note 43]

C. Fee Ownership in the Shah Tidal Creek

The Shah Trust argues it is the fee owner of the Shah Tidal Creek and traces its chain of title back to the 1906 Deed. The Shah Trust contends the 1906 Deed conveyed a fee interest in the Tidal Creek and as such, they are the unencumbered owners of the Shah Tidal Creek. Prior to the conveyance of the fee interest in the Tidal Creek in 1906, the developers of Hyannis Park had sold all but five of the numbered lots in the subdivision. As discussed, supra, the 1892 Plan 1, the 1892 Plan 2, and the 1895 Plan established a common scheme and the developers intended to grant rights to all lot owners to use the irregularly shaped common areas for communal purposes. The law in the Commonwealth is clear; when a development scheme establishes an easement, vested rights cannot be unilaterally extinguished by an owner of the servient estate nor adversely affected by later conveyances. See Feldman v. Souza, 27 Mass. App. Ct. 1142 , 1144 (1989). Every Trial Plaintiff holds title to numbered lots which were deeded out by Security prior to the 1906 conveyance of the fee in the Tidal Creek. It follows that the 1906 conveyance of the Tidal Creek cannot extinguish the Shah Tidal Creek Easement in favor of all lot owners, intended by the developers and established herein. Based on the foregoing, I find that the Shah Tidal Creek was encumbered by the Shah Tidal Creek Easement prior to the 1906 Deed, and thus all Trial Plaintiffs have rights to use the Shah Tidal Creek.

D. Extinguishment of Easement by Implication in the Shah Tidal Creek and the Shah Beach

Alternatively, the Shah Trust contends the easement in both the Shah Tidal Creek and the Shah Beach has been extinguished by adverse use. Trial Plaintiffs argue that, as a matter of law, the Shah Trust cannot extinguish the easement given that the Shah Trust has owned the Shah Property for only eight years and there is no evidence of exclusive use of the Shah Tidal Creek or the Shah Beach prior to the Shah Trust’s ownership.

Exclusive Use for Twenty Years

The Shah Trust claims its use of the Shah Tidal Creek and the Shah Beach has been exclusive for the requisite twenty year period. “To establish a use adverse to the holder of an easement requires a use in a manner so inconsistent with the easement that it is extinguished after a lapse of twenty years.” Id. at 331, quoting Lemieux, 7 Mass.App.Ct. at 422. See supra, for further precedent on the issue of extinguishment of an easement. The Shah Trust has the burden of proof in this regard. In order to claim adverse use for twenty years the Shah Trust attempts to tack its adverse use to its predecessor’s adverse use. The only evidence supporting adverse and exclusive use by the Shah Trust’s predecessor in title is an affidavit of Weiss, owner of the Shah Property from 1979 - 1996, stating that

The property to the east of the jetty . . . was not included in [the Weiss decision] for two reasons. First, the so-called beach consisted almost entirely of the inter-tidal zone below Mean High Water. The area landward of mean High Water consisted of marsh and eel grass from the retaining wall to the middle of the tidal creek. Next, during the period of my ownership, very few people used this so-called beach. When people tried to use the beach, they were informed by me, my husband or the O’Connors (owners on the other side of the creek) that the area was private. The warnings were successful in keeping the area private. [Note 44]

Weiss’ affidavit has a number of problems. It references attempts to control only the “beach” (the Shah Tidal Creek Beach), not the Shah Tidal Creek. Moreover, the affidavit is very generalized with no specific facts or specific dates; there is no qualification as to the meaning of “people” who used the “beach” and no mention of any Trial Plaintiffs. [Note 45] The affidavit did not give any details relative to physical impediments to the use by Trial Plaintiffs of the Shah Tidal Creek or the Shah Tidal Creek Beach. As discussed, supra, the burden is on the Shah Trust to show that it excluded Trial Plaintiffs from both the Shah Tidal Creek and the Shah Tidal Creek Beach; it has not done this.

The Shah Trust also presents an affidavit of Helen Shah (Shah) to support its position that the Shah Trust excluded Trial Plaintiffs from use of the Shah Tidal Creek and the Shah Tidal Creek Beach. Shah's affidavit states

the area to the east of the jetty, which was not part of the Weiss v. Kevorkian decision, has been used exclusively by myself and my family with one exception. Because the beach abuts the creek, I have permitted the neighborhood children to play on the beach as they access the creek. Other than that permissive use, we have maintained exclusive use by requesting that all other adults remove themselves from the beach and that they not return.

Shah’s affidavit suffers from the same problems as Weiss’ affidavit; it also references only “the beach” (the Shah Tidal Creek Beach) and contains no mention of exclusive use of the Shah Tidal Creek. Moreover, it is generalized with no specific facts as to the exclusion of Trial Plaintiffs and does not show any physical impediments to the use of either the Shah Tidal Creek or the Shah Beach. The Shah affidavit also references “adults” without any mention of Trial Plaintiffs. [Note 46] [Note 47]

The affidavits of Weiss and Shah, taken together, do not carry the burden to show exclusion of Trial Plaintiffs from either the Shah Tidal Creek or the Shah Beach for a period of twenty years. They contain no specific dates and do not describe any specific encounters with any of Trial Plaintiffs. In fact, as discussed, supra, Shah admits use of the Tidal Creek by children since 1996. Moreover, the affidavits do not show any physical impediment to the use of the Shah Tidal Creek or the Shah Beach. As discussed, supra, once the right to use the Shah Tidal Creek and the Shah Beach have been established (as has been done in this decision), permission to use these areas and requests to leave these areas, even if true, are not relevant. As articulated, supra, vocal opposition without more is insufficient to extinguish an easement. The Shah Trust's only evidence is vocal opposition and it has introduced no evidence in the Summary Judgment 2 record of any physical structure making the use of the Shah Tidal Creek or the Shah Beach impossible. The jetty which protrudes between the mean high and mean low water line does not make use of the Tidal Creek impossible; at best, this would possibly make it more difficult to access the Shah Tidal Creek or the Shah Tidal Creek Beach from the west, if at all. [Note 48]

The evidence in the Summary Judgment 2 record is not sufficient to justify the claim by the Shah Trust that it has excluded Trial Plaintiffs’ use of the Shah Tidal Creek and the Shah Beach. As a result, I find that the Shah Trust has not extinguished the Shah Tidal Creek Easement or the Easement relative to the Shah Beach. I ALLOW Trial Plaintiffs’ Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: December 22, 2010