The Plaintiffs commenced this action on October 29, 2004, seeking to quiet title to a parcel of real property known as South Beach Ocean Front in Edgartown ("Beach") and seeking a declaratory judgment, pursuant to G. L. c. 231A, confirming their rights to use certain rights of way to that Beach, which ways lie over land owned, of record, by the Defendants. In essence, this case involves the Plaintiffs' claims to record ownership interests in the Beach and in ways to the Beach, or, alternatively, claims to have acquired prescriptive easements to use the Beach and to use the ways known as Wheldon's Path, Pohogonot Road, and the Road to Short Point ("Beach Paths"). There have already been a substantial number of motions filed and Orders issued in this case. The sole matter before the Court, at this point, is whether the Plaintiffs have acquired a prescriptive easement over the aforementioned ways, and to use the Beach. For the reasons more fully set forth below, I find and rule that the Plaintiffs have not met their burden of establishing that they have acquired any prescriptive easements over the subject ways or the Beach because their use was neither adverse, nor open and notorious, nor did their activities satisfy the minimum required period of twenty-years. Rather, the relevant use was permissive. And, as already set forth in previous Orders of the Court, any record ownership rights which the Plaintiffs may have previously held in the Beach, essentially, no longer exist because the Beach, as it was located as late as 1938, is now completely submerged under the Atlantic Ocean.
The Plaintiffs in this case are John D. Hamilton, Jr., and Andrew H. Cohn, as Trustees of Oyster Pond EP Trust; Richard L. Friedman, Allen W. Norton, and Judith Norton, individually and with Melissa Norton Vincent, as Trustees of the Quiet Oaks Realty Trust; and Albert White, Toni White Hanover, and Shauna White Smith, as Trustees of the Quampacky Trust. The Defendants are Michael D. Myerow, as Trustee of Botar Realty Trust, Rabor Realty Trust, and Tarob Realty Trust ("Myerow Defendants"); Pamela Kohlberg, as Trustee of the Job's Neck Trust; Andrew Kohlberg, as Trustee of the High Road Realty Trust ("Kohlberg Defendants"); Jeffrey Flynn, Richard Keeler, and Patricia Post, as Trustees of the Pohogonot Trust ("Pohogonot Defendants"); and Short Point Holdings, LLC. These originally named Defendants answered the Complaint on December 16, 2004.
This case has a substantial procedural history, which is as follows. On application by the Plaintiffs, the Court granted a Preliminary Injunction on November 24, 2004, enjoining Defendants, during pendency of this litigation, from blocking or otherwise interfering with Plaintiffs' rights to use their alleged rights of way over the Defendants' property. On April 6, 2005, the Pohogonot Defendants filed an Answer and Counterclaims, joining as parties a number of Additional Defendants in Counterclaim. [Note 2]
On May 23, 2006, Plaintiffs, with leave of court, filed their Second Amended Complaint, [Note 3] naming five of the Additional Defendants in Counterclaim as Plaintiffs: Mark B. Norton, Shauna White Smith, Debra White Scott, Lisa White and Toni White Hanover. [Note 4] On assented-to motion of the parties, the Court issued an Order on September 19, 2008, dismissing all claims by and against all of the remaining Additional Defendants in Counterclaim except for Lage, Inc., as general partner of the Jokase Limited Partnership ("Lage"), and Paul E. Konig and Joanne V. Konig, as Trustees of the Paul E. Konig Revokable Living Trust and the Joanne V. Konig Revocable Trust ("Konigs"). On October 9, 2009, the Court allowed a motion of the Defendants to dismiss the claims of the Konigs with prejudice.
On September 1, 2006, Plaintiffs filed a Motion for Partial Summary Judgment on Count I of the First Amended Complaint. The Pohogonot Defendants opposed the motion on
October 26, 2006, and filed a Cross Motion for Partial Summary Judgment. On October 30, 2006, the Kohlberg Defendants filed a Motion for Partial Summary Judgment Pertaining to the long Plaintiffs' Alleged Ownership of an Interest in the current 8,200 foot long Beach. On November 2, 2006, the Myerow Defendants also filed a Motion for Partial Summary Judgment Pertaining to the Issue of Beach Rights. Following a hearing, the Court issued a Decision on April 1, 2009, denying the Plaintiffs' motion and allowing the three motions of the Defendants, ruling that the Plaintiffs have no deeded interest in the subject Beach. [Note 5]
On October 30, 2006, the Kohlberg Defendants and Short Point Holdings, LLC, filed a Motion for Partial Summary Judgment Pertaining to Alleged Easements to Use the Road to Short Point. Following a hearing, the Court issued a Decision on April 1, 2009, allowing in part the Defendants' motion, ruling that Plaintiffs do not hold any easement, prescriptive, express or implied, over the Road to Short Point.
On January 22, 2008, the Pohogonot Defendants filed a Motion for Partial Summary Judgment concerning claimed rights to and over Paqua - which is a portion of the Pohogonot Defendants' property. Following a hearing, the Court issued a Decision on October 13, 2009, allowing the Defendants' motion, ruling that the Plaintiffs do not hold any easement, express or implied, prescriptive or otherwise, over Paqua.
On December 2, 2009, the Court took a view of the property in the presence of several of the attorneys and parties. Trial was held from December 7, 2009 through December 15, 2009, December 17 and 18, 2009, and March 1, 2010 through March 4, 2010 - a total of thirteen days. Stenographers Pamela St. Armand, Wendy Thomas, and Mary Tarallo Buduo were sworn to record and report the testimony. Two hundred fifty-eight (258) exhibits were admitted into evidence, as well as numerous chalks. In accordance with the Trial Decision dated today, it is hereby
ORDERED and ADJUDGED that, as set forth in an Order entered by this Court on April 1, 2009, Plaintiffs do not have any right, title or interest in the Beach because any such right would have been derived from a deed in 1841 (the Smith Deed), because that deed did not create a "moveable beach", and because the Beach referred to therein in now submerged under the Atlantic Ocean; and it is further
ORDERED and ADJUDGED, as set forth in an Order dated April 1, 2009, that the Plaintiffs do not hold an express easement to use the Road to Short Point to access the Short Point Property or the Beach because any grant purporting to create such an easement, and in particular the 1839 Smith Deed and the 1958 Norton Deed in which Winthrop B. Norton conveyed the Short Point Property while attempting to reserve for himself and his family the right to pass and repass over the Kohlberg property to the Short Point Property, was not assignable, was extinguished upon the death of Mr. Norton, and could not have been unilaterally converted to an easement in gross or attached to a different parcel of land; and it is further
ORDERED and ADJUDGED, as set forth in an Order by this Court dated October 13, 2009, that Plaintiffs do not hold any easement, express or implied, over Paqua, the Court ruling that while the 1888 Norton Deed reserves an easement to Allen Norton, it does not contain language of inheritance and cannot be passed on to a successor owner; and it is further
ORDERED and ADJUDGED, as set forth in the Trial Decision entered today, that this complaint is hereby dismissed, Plaintiffs not having met their burden of proof to establish the existence of the prescriptive easements they claim in this action.
SO ORDERED
By the Court. (Trombly, J.)
JOHN D. HAMILTON, JR and ANDREW H. COHN, as Trustees of OYSTER POND EP TRUST; RICHARD L. FRIEDMAN, ALLEN W. NORTON, and JUDITH NORTON, individually and with MELISSA NORTON, as Trustees of QUIET OAKS REALTY TRUST; ALBERT WHITE, TONI WHITE HANOVER, and SHAUNA WHITE SMITH, as Trustees of the QUAMPACKY TRUST; MARK B. NORTON; SHAUNA WHITE SMITH; DEBRA WHITE SCOTT; LISA WHITE; and TONI WHITE HANOVER v. MICHAEL D. MYEROW, as Trustee of BOTAR REALTY TRUST, RABOR REALTY TRUST, AND TAROB REALTY TRUST; PAMELA KOHLBERG, as Trustee of the JOB'S NECK TRUST; ANDREW KOHLBERG, as Trustee of the HIGH ROAD REALTY TRUST; JEFFREY FLYNN, RICHARD KEELER, and PATRICIA POST, as Trustees of the POHOGONOT TRUST; and SHORT POINT HOLDINGS, LLC