MISC 09-414407

May 16, 2011


Trombly, J.


This case involves the scope of activities permitted in certain right-of-way easements on registered land in Chatham, Massachusetts, said easements having been reserved to the predecessors in title of Plaintiff Quitnesset Associates Inc. (“Quitnesset”), over land now owned by Defendant DMD Properties, LLC (“DMD”).

On October 21, 1957, David M. Davis and Anne Hall Davis conveyed Lot ‘A’ shown on Registration Plan No. 25381A and Lot 4 shown on Registration Plan No. 22613A to Edward R. Noyes, together with covenants to convey certain easements. Noyes, holding Certificate of Title No. 21162, later petitioned the Land Court to “determine an adequate right of way to fulfill the covenants” in said conveyance. By Decision issued on July 26, 1976, the Court (Randall, C.J.) located the easements, described them, and depicted them on a Decision Sketch (the “1976 Decision”). Defendant DMD also acquired land which was previously owned by the Davises, including Lot 106 as shown on Registration Plan 22613-K (sheet 2) (“Lot 106”), and the Coast Guard Lot shown on Registration Plan 22885-A (the “Coast Guard Lot”).

Although the use in all the easements is relevant here, this case particularly concerns the easement “45 feet in width made up of a 20 foot strip of Lot 106 and a 25 foot strip of the Coast Guard Lot,” and located in the vicinity of the water at Stage Harbor (the “Easement”). Quitnesset seeks a declaration that it and its members may “tie dinghies within the [E]asement area... [and] maintain a telephone pole or similar object to which to tie dinghies.” In August 2009, DMD communicated with Quitnesset stating that boats or dinghies cannot be stored in the Easement and, in September 2009, DMD removed the “telephone pole” which had been used to tie up and secure the dinghies. DMD also maintains that it may install a combination lock gate across the Easement to prevent unauthorized persons from using the Easement, as long is it provides the combination to the Plaintiff. Quitnesset seeks a declaration that DMD may not interfere with such access by erecting a gate. Finally, Quitnesset seeks a declaration that DMD may not pave a driveway in the Easement (which DMD has obtained zoning approval to do), because that would unlawfully interfere with said Easement.

The parties submitted the matter to court on a case-stated basis. For the reasons discussed in the Decision issued by the Court (Trombly, J.) this day, it is hereby ORDERED that

(1) The Plaintiff is barred from re-litigating the scope of the easements by res judicata;

(2) Quitnesset and its members may not leave boats, dinghies, telephone poles, or other items inconsistent with the easements, in the area of the easements;

(3) DMD may not place a gate across the area of the easements;

(4) DMD may construct the proposed driveway, and may allow minor, temporary, restriction in the width of the easements for a reasonable period of time in order to complete construction associated with the new proposed dwelling; and

(5) A trial, or further evidence, would be required to determine whether the dinghies, telephone poles, and boats lie beyond the low water mark, and to determine what rights, if any, the Plaintiff and its members would have under those circumstances.


By the court (Trombly, J.)


[Note 1] Unless otherwise indicated, all words and terms used in this Judgment carry the same definitions as employed in the Decision issued today.