Plaintiff Gerard Walraven claims the right to use defendants William and Eleanor Santos lakeside beach on theories of express, implied, or prescriptive easement. The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that Mr. Walraven has no such rights.
Facts and Analysis
The parties are plaintiff Gerard Walraven, the owner of the property at 8 May Avenue in Middleborough, and defendants William and Eleanor Santos, whose home on Woods Pond (sometimes referred to as Woods Lake) (11 May Avenue) is directly across the street from Mr. Walravens. Some geography is helpful to an understanding of the case and is shown on the attached Exhibit 1.
The Santos property is on the pond side of May Avenue and has 111 of shoreline, the center portion of which is sandy beach. The Walraven lot is on the other side of May Avenue and is not on the pond. May Avenue, a private way, connects on its eastern end with Atwood Avenue (formerly called Woods Lake Terrace) which, in turn, leads south to the main roads of Middleborough and north to the private ways and public-access beaches along the eastern side of Woods Pond. May Avenue connects at its other (western) end with Wollow Avenue, a twenty-foot wide private way that dead ends at Woods Pond. There is a flat shoreline area and pier within the May Avenue right of way where it meets the water, used by the nearby residents for swimming, fishing and boating (the Wollow Avenue beach). [Note 1] See Trial Ex. 66 (photograph). The Santos beach (the sandy area of the Santos shoreline) is to the north of the Wollow Avenue beach, separated from it by a wide, grassy strip. See Trial Exs. 42, 49, 50, 58, 64. As noted above, Mr. Walraven claims an appurtenant right to use the Santos beach on theories of express, implied and prescriptive easement. I address each of these contentions in turn.
Whether an express easement exists depends on the terms of the affected parties deeds and deed chains. Both the Walraven and Santos properties were once owned by the late Maria Wiellowicz, so she would have had the right to create a beach easement on the Santos parcel benefiting the Walraven lot had she so chosen. The inquiry thus turns on the proper interpretation of her deeds to those properties. The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances. Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). A party claiming rights over anothers land has the burden of proving the existence of those rights. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66 (2009).
Mr. Walraven received his property directly from Ms. Wiellowicz, and it is described in his deed by reference to a November 5, 1959 plan (the 1959 plan). Deed, Wiellowicz to Walraven (Nov. 20, 1959). A copy of the 1959 plan is attached as Exhibit 2 (the Walraven parcel is Lot 2). That plan neither shows nor references what later became the Santos property, nor shows nor references Woods Pond, nor shows nor references a beach of any type. Likewise, the language of the Walraven deed neither mentions nor references what later became the Santos lot, much less identifies its beach or the location or dimensions of its beach something that would have been relatively easy had the grantor truly intended to grant beach rights on that property.
What the Walraven deed does say is this. It grants a right of way in common with others, over Woods Lake Terrace [now Atwood Avenue] and May Avenue as shown on [the 1959] plan and over the existing rights of way, so far as the same are now in force and being, to the beach and to the public highway. (emphasis added). The beach so referenced is not identified. I find and rule that this language does not grant an easement to use the Santos beach, but rather at most to the Wollow Avenue beach, i.e. the flat area and pier at waters edge within the 20 Wollow Avenue right of way. See Exhibits 1 and 3 and Trial Ex. 66. I make this finding for four reasons.
First, as noted above, there is no reference to the Santos property in the Walraven deed, and no reference to the burden of a beach easement anywhere in the Santos deed chain. Both would have been expected had a beach easement been intended.
Second, the grant is of a right of way over roads, not a more extensive use outside the boundaries of those roads. [Note 2] In the circumstances of this case, if the grant truly had been intended to create an easement to use a beach outside those rights of way, significantly burdening a property soon to be deeded to others without mention of such a burden, [Note 3] surely the grant would have said so in an unambiguous way, making clear the location, scope and purpose of that easement. [Note 4] In these circumstances, the absence of such language is not due to a lack of careful drafting, see Murphy v. Olsen, 63 Mass. App. Ct. 417 , 422 (2005), but rather evidence that there was no such intent.
Third, precisely the same rights, using precisely the same right of way language, were subsequently granted to what is now the Santos property. Deed, Maria Wiellowicz to W. Henry Wiellowicz (Oct. 1, 1963). [Note 5] This shows that that language was intended to grant rights within the Wollow Avenue right of way alone, not rights to the Santos lot. A fee owner does not need, and legally cannot receive, easement rights in his or her own land. See L. Jones, A Treatise on the Law of Easements, Baker Voorhis & Co., New York City (1898) (hereafter Jones on Easements) § 835, pp. 671-672 (No person can have an easement in land which he himself owns.); Goldstein v. Beal, 317 Mass. 750 , 754 (1945) (So long as there was a common ownership of the two parcels there could be no easement in favor of one lot operating as a burden on the other.). The owner of the Santos property would not need the right to use his or her own beach, but would need the right to use the one at Wollow Avenue. [Note 6]
Fourth, Ms. Wiellowicz intent to limit her grant to the Wollow Avenue right of way is clearly reflected in the language of two of her earlier deeds for other nearby lots. The first, a 1956 grant, conveys:
a right in common with others, to pass and re-pass over a passageway or right of way, twenty (20) feet wide, adjacent to the easterly line of the granted premises, to and from Woods Pond and also, with the right to pass and re-pass over a passageway or right of way, twenty (20) feet wide, extending from the granted premises over other land of the grantor, to Woods Lake Terrace, so called, a private way, and over said Woods Lake Terrace to and from the public highway southerly of said private way.
Deed, Wiellowicz to Yarombowski (Jul. 25, 1956) (emphasis added). The second, in 1958, refers to a twenty foot driveway leading to the Beach at Woods Pond and grants the lot:
Together with a right of way in common with the other grantees from this grantor, to pass and re-pass over said driveway, to and from the Beach and over the other driveways established for the benefit of the grantees from this grantor, to and from Woods Lake Terrace.
Deed, Wiellowicz to Derocher (May 27, 1958) (emphasis added). Neither of those grants (pass and re-pass over) can be construed as conveying the right to use the beach on the neighboring lot, i.e. the Santos property, for recreational or similar purposes. Other and further language would have been used if that was the intent.
Mr. Walraven cites Anderson v. DeVries, 326 Mass. 127 (1950) as a contrary holding and one which controls this case. I disagree. The language in Anderson a right of way to the beach over the way shown on [Land Court Plans 15396C & D] as Beaton Road, and along the westerly side of Lot B2 as shown on Plan No. 15396B may bear a surface similarity to the language in the Walraven deed. But the facts in Anderson from which that language was extended to include a right to use a larger area, not just the beach within the right of way, are far different from this situation. First, the party in Anderson contending that such a right was granted was the grantor of all the deeds in question, both the burdened and benefited parcels, and the court found that the grantor specifically told the grantee of the burdened lot that it was subject to these beach rights. Anderson, 326 Mass. at 131. There was thus no question of the grantors intent and the burdened grantees understanding of that intent. In contrast, the fact that the grantor in this case (Ms. Wiellowicz) had no such intention is evidenced by the nature and content of her discussions with the purchasers of her lots, [Note 7] her subsequent deed of the Santos lot to her son Henry Wiellowicz without reference to the burden of any beach easement, and Mr. Wiellowicz consistent and emphatic insistence throughout his ownership of the lot that no rights to its beach had been granted to others. [Note 8] Second, unlike Anderson where over eighty back lots were created and the right of way was only 12 wide (see Land Court Plans 15396A, 15396C, 15396D & 15396F), here there were only a handful of lots and the right of way was 20 wide, with a large flat area and pier at the shoreline. As the Anderson court found, the reasonable beach needs of eighty homes could not be accommodated within the confines of a 12 wide right of way a critical part of its holding that rights to the entirety of the beach were intended. Anderson, 326 Mass. at 134. Here, the Wollow Avenue area with its 20 of shoreline and pier is more than adequate for the handful of homesites created by the Wiellowiczs. See, e.g., the trial testimony of Elizabeth West. Third, the right of way in Anderson was specifically identified and leads only to the beach. Here, the right of way reference is to a series of roads, some towards other beaches. Fourth, the deeds in Anderson were uniform, granting a right of way to the beach without limiting language. Here, the pass and re-pass language in the Yarombowski and Derocher deeds, both earlier than Mr. Walravens, makes plain that rights confined to the right of way were intended, not a right to use the abutting property. Fifth, unlike Anderson where the beach was open and undifferentiated along its entire length, there is a clear separation between the Wollow Avenue beach and the beach on the Santos property. As previously noted, there was a wide belt of grass clearly separating the sandy area on the Santos property from the Wollow Avenue right of way. See, e.g., Trial Exs. 42, 49, 50, 58, 64. There could be no question that another, separate area was being entered when walking from the right of way to the Santos beach. Sixth, the Anderson beach was along the base of a bluff, not immediately in front of the homes being built on the burdened lots. Here, the beach is immediately in front of the Santos home.
In the event that his express easement theory was rejected, Mr. Walraven also argued that he had an implied easement to use the beach on the Santos property based on an alleged common scheme. In support of this, he points to the nature of the community (a number of lots near the pond but without pond frontage), the pond as the attraction to the area, and Ms. Wiellowiczs comments to several of her grantees regarding access to the pond or referencing a beach. This theory, insofar as it claims an easement on the Santos property, is not persuasive. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 832-835 (2008). First, unlike cases that have found a common scheme, there is neither a recorded plan, nor a reference in any of the deeds to a plan either recorded or unrecorded, that shows a community beach or any kind of beach on the Santos property. To the contrary, the plans that were recorded by Ms. Wiellowicz (see Exhibits 2 and 3) either do not show the pond at all (Exhibit 2) or, with respect to common areas at the pond, solely the land at waters edge at the end of Wollow Road within its twenty-foot right of way (Exhibit 3) (i.e. the Wollow Avenue beach). Second, as noted above, none of the deeds to the properties in the area purports to grant an express easement over the Santos property a startling omission if such an easement was ever intended since the burden of a community beach, on a wide stretch (over half) of the propertys limited shoreline, would be a significant burden indeed. Third, when Ms. Wiellowicz granted the Santos parcel to her son, she did not reserve an easement for the benefit of any of the neighboring lot owners again, a telling omission. Fourth, having listened to all of the witnesses, assessed the accuracy of their memories, the effect of their biases, [Note 9] and as discussed more fully both above and below, I am convinced that when Ms. Wiellowicz spoke of a right to pond access or a beach, she referred solely to the area at waters edge within the Wollow Avenue right of way. [Note 10] Her actions and comments regarding the beach on the now-Santos lot (the lot she continued to own and which she shortly thereafter conveyed to her son Henry) were to give those with whom she spoke permission to use that area and, as shown by their actions (again, more fully explained below), those comments were understood by them as such. Fifth, the Wollow Avenue access point, and that access point alone, is fully consistent with the creation of a community area for the non-waterfront lot owners one that could be used, was used, and is used, for boats, to fish, and to swim. As previously noted, Mr. Walravens theory that a larger area, significantly encroaching onto the Santos property, was granted of right is wholly inconsistent with Ms. Wiellowiczs later conveyance of that property without reserving such an easement.
Mr. Walraven contends that he has acquired an easement by prescription in the Santos beach. The requirements that must be met for such an easement are well established. It must be shown by clear proof that the use of the land has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); G.L. c. 187 § 2. To succeed, the claimant has the burden of proving each of these elements. Id.
In this case, the critical element is adversity. As the law makes clear, no easement may be acquired by prescription except through adverse use. Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964). To prove the use to be adverse, it is insufficient to show an intention alone to claim [the area] as of right, but that intention must be manifest by acts of clear and unequivocal character that notice to the owner of the claim [of right] might be reasonably inferred. Houghton, 71 Mass. App. Ct. at 842 (quoting Jones on Easements § 285, p. 235). To create the presumption of a grant of the right of way, the circumstances attending its use must be such as to make it appear that it was established for the benefit of the claimant, or that it was accompanied by a claim of right, or by such acts as manifested an intention to enjoy it, without regard to the wishes of the owners of the land. The use must have been enjoyed under such circumstances as will indicate that it has been claimed as a right, and has not been regarded by the parties merely as a privilege, revocable a the pleasure of the owners of the soil. Jones on Easements § 266, p. 220 (internal quotations and citations omitted). Permission by the landowner whether express or implied negates the claimants adversity. Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009) (noting that express or implied permission . . . . rebuts the presumption of adverse use.) (internal citation omitted). Where there is a special relationship between the parties or, as I find here, the use began with permission, there is an additional burden on the claimant to show by clear evidence that the use has shifted at some point from permissive to adverse, so as to put the owner on clear notice that he should take steps to protect his rights. Begg v. Ganson, 34 Mass. App. Ct. 217 , 221 (1993). See also Lawrence v. Concord, 439 Mass. 416 , 424 (2003) (noting, in that case, that the town had not given the claimant permission to occupy the property). Here, whether analyzed as (1) permissive use, or (2) as an instance where the conduct in question was insufficient to put the owner on notice that a claim of right was being asserted, I find that Mr. Walraven failed to establish a prescriptive easement in the Santos beach.
Totman v. Malloy, 431 Mass. 143 (2000) sets out the general test for distinguishing between permissive and non-permissive uses. Whether a use is [permissive or] non-permissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership [of the land in question].
Id. at 145. To adequately put a landowner on notice that a claim of right is being asserted, the acts must be plain [and] unequivocal . . . , indicating a peculiar and exclusive claim [on the part of the claimant], open and ostensible, and distinguishable from [those] of others. Kilburn v. Adams, 48 Mass. 33 , 39 (1843). See, e.g., Daley v. Swampscott, 11 Mass. App. Ct. 822 , 829-30 (1981) (maintaining beach seven days a week from June 1 to September 15, erecting lifeguard stands, staffing the beach with lifeguards, placing and maintaining signs stating the rules for beach use, and dismantling fencing erected by the beachs private owners, among other open and ostensible acts, resulted in town acquiring prescriptive rights in the beach). The crux thus appears to be the commission of acts that an owner would clearly see as challenging his or her rights of ownership and control over the premises.
Many of the facts are not in material dispute. Mr. Walraven and his wife purchased their lot from Ms. Wiellowicz in 1959. They were Boston residents and they and their family members, until recently, only came to the property in the summertime. They did not have a house on that lot for many years. Instead, they dug a foundation and put up a tent, then a temporary roof over the foundation, only gradually putting up a more permanent structure. When their children were small they spent a good bit of time at the beach, both within the Wollow Avenue right of way (where they fished, swam, and moored their boats) and on the now-Santos, then-Wiellowicz property.
What is significant is what they actually did, and did not do, on the then-Wiellowicz, now-Santos shoreline. Their use of its beach was only in summertime, June to mid-September, mostly on the weekends. At no time did they erect anything permanent. Instead, they would carry their coolers, chairs and toys to the beach in the morning and remove them all when they returned to their lot later in the day. They were careful to remove their trash and rake the beach to ensure their impact was as little as possible. They went to the beach primarily, if not exclusively, for their children to play (when Mr. Walraven went by himself, he would generally fish from the pier or his boat), and their visits to the beach dropped dramatically as their children grew older. They pulled weeds out of the water from time to time to make swimming easier for their children (the weeds were close to the shoreline). But this was all done by hand or hand tools with relatively minor effort, once or twice over the course of the summer, with the weeds taken away by wheelbarrow. Mr. Wiellowicz would often work with them, as well as maintain the beach on his own. They put small, strung-together floats in the water near the shoreline (no more than 4-5 out) to confine their children when they were young, but again were careful to take the floats out of the water and store them to the side of the beach when they left. They would see and speak with the Wiellowiczs at the beach, most typically when Mr. Wiellowicz was working there (he built a house and waterfall directly on the beach and did beach maintenance). The Wiellowicz enjoyed interacting with the children, giving them rides on Mr. Wiellowicz tractor. The Walravens themselves never brought a tractor, vehicle or anything mechanized to the beach while the Wiellowicz were alive. Most telling is the fact that the Walravens, and everyone else, complied with all of the Wiellowiczs instructions regarding the beach. Mr. Wiellowicz instructed them to keep the children off the rocks, and they complied. [Note 11] He told them boats could not be kept at the beach, only moored at the pier. The Walravens complied. As Mr. Wiellowicz made clear, all he wanted was for people to swim. When Mr. Wiellowicz put up fence posts in 1996 to keep vehicles from going from Wollaston Avenue onto his beach, neither the Walravens nor anyone else attempted to remove them until April 2005, after Mr. Wiellowicz death when no one was around to see or stop them. Indeed, the Walravens previously had complied with Mr. Wiellowicz instruction to keep their vehicles off the beach, even from its corner. Trial Tr. 1-211. [Note 12] When Mr. Wiellowicz was constructing his waterfall at beachside, his tractor occasionally needed the entire beach to maneuver. The Walravens stayed away at those times. The newly-constructed waterfall cascaded down to the beach and its water came from a pumping station at the shoreline whose pipe ran over the beach into the pond. The Walravens raised no objection to any of this. When Mr. Wiellowicz put a sign on a tree at the edge of the beach (July 1984), stating it was posted to prevent acquisition of any easement by prescription or adverse possession, they saw the sign and never questioned or challenged it. The Walraven family does not seem to have used the beach much, if at all, after 1997 when their children were grown.
These are not actions of people who believe they have rights to the beach, nor are they consistent with a clear assertion of rights. Rather, they are actions of persons who are there, and know they are there, by permission. It was only in 2005, after Mr. Wiellowicz died and the property was in his estate being marketed for sale (i.e. when there was no one on the property who would see these activities and object) that the Walravens first broke this pattern when their friend David Raymond ripped out the posts along the side of Wollow Avenue, brought sand and a tractor to expand the beach area, placed a picnic table and barrel on the beach, and began leaving his pontoon boat there. To the extent these were adverse acts they were far too recent (2005) to be prescriptive, and the fact that nothing like them had been attempted at any time beforehand is telling.
There was also much direct evidence that permission was expressly granted. As previously noted, Mr. Wiellowicz gave permission to Mr. Jean, a neighborhood lot owner, to use the beach whenever he wanted. Trial Tr. 1-91. Ms. Wiellowicz told Mr. Kilday, another lot owner and friend of the Walravens, that he could use the beach area, absolutely. Trial Tr. 1-160 1-161. We have a beach for you to use. Trial Tr. 1-173. She loved to see people down there. Trial Tr. 1-161. [Note 13] Similarly, Mr. Wiellowicz was fine with the lot owners using his beach. He never kicked us off. Trial Tr. 1-161. Generally, the topic never came up. Both Ms. and Mr. Wiellowicz would see and talk with the people on their beach and never raise an objection to their being there. This was because permission had already been given, and most likely given because the main users were young children (watched by their parents), there only for the summer, and who, in the case of the Walravens, had no real playing space back at their lot (a foundation with only a tent or temporary roof for a good part of their childhood). In the words of Mr. Kilday, the Wiellowiczs were always good neighbors. Letting the children and their parents use the beach was an act of kindness and understood as such, not a cessation of rights. I do not find the testimony otherwise to be credible.
For the foregoing reasons, I find that Mr. Walravens use and maintenance of the beach, irrespective of the extent to which it occurred, was neither plain [or] unequivocal, nor did such use convey a peculiar and exclusive claim, open and ostensible, and distinguishable from that of others, sufficient to put Mr. Wiellowicz on notice that Mr. Walraven was claiming a prescriptive right in the beach area. Kilburn, 48 Mass. at 39 (emphasis added). [Note 14] Thus, whether analyzed as (1) permissive use, or (2) as an instance where the conduct in question was insufficient to put the owner on notice that a claim of right was being asserted, I find that Mr. Walraven failed to establish a prescriptive easement in the Santos beach area. See Rotman, 74 Mass. App. Ct. at 589 (If any element [of a prescriptive easement claim] remains unproven or left in doubt, the claimant cannot prevail.) (emphasis added).
For the foregoing reasons, Mr. Walraven has not established an express, implied or prescriptive easement on any portion of the Santos property and his claims are therefore DISMISSED in their entirety, WITH PREJUDICE. Judgment shall enter accordingly.
[Note 1] See, e.g., Trial Tr., 2-178 2-179 (testimony of Joseph McMahon) describing it as such.
[Note 2] Note that the reference is not confined to the road to this beach (a significant factor in cases that have found a beach rights grant from right of way language) but instead to all the rights of way in the area, both toward this beach, toward other nearby beaches on Woods Pond (there are two within a short distance), and to the public roads.
[Note 3] The area Mr. Walraven claims is not well defined. Some witnesses described it as 50-60 feet long. Mr. Walraven estimated it as 100 feet. Either way, it is a significant part of the Santos 111-foot shoreline, right in the middle of that shoreline, and immediately in front of the Santos house (built by Mr. Wiellowicz in the early 1960s shortly after the conveyance to Mr. Walraven). It is difficult to imagine a location more intrusive for the owner of the Santos lot.
[Note 4] Contrast the circumstances in Anderson v. DeVries, 326 Mass. 127 (1950), discussed below.
[Note 5] The precise language in the Wiellowicz to Wiellowicz deed, which describes the property conveyed (lots 9 and 10 the Santos property was later subdivided from lot 10) with reference to a 1963 plan (a copy of which is attached as Exhibit 3), is together with a right of way in common with the other grantees from said Maria K. Wiellowicz, over the ways as shown on said Plan, to the beach of Woods Lake and to the public highway.
[Note 6] For example, because the Santos property slopes downward to the pond, it is far easier, and far more convenient, to launch and retrieve a boat onto the pond from the Wollow Avenue right of way rather than the Santos property itself.
[Note 7] Some of the purchaser witnesses who had direct contact with Ms. Wiellowicz at or about the time of their purchases testified to her conversations with them about the beach. All of those conversations were casual ones. Having listened carefully to that testimony and all the other evidence in this case, I am persuaded that insofar as rights were being referenced, Ms. Wiellowicz was referring to the Wollow Avenue beach, not the beach on her nearby lot (now the Santos home). Anything related to the beach on her land (later conveyed to her son Henry, and now to the Santos) was intended and understood as permission.
Mr. Walraven claimed that he had two conversations with Ms. Wiellowicz prior to his purchase while both were on her beach (he was fishing there at the time, clearly solely by permission since he had not yet bought anything) in which, he says, she indicated stumps at either end of the sandy area and remarked that, cleaned up, it would be a place where all eight lots would be able to come to the beach and enjoy this area all together. Trial Tr., 2-7 2-9. This is certainly not an accurate recollection of what actually was said. Among other things, eight lots did not exist at that time, and nothing even near that number for many years to come. See Exs. 2 & 3. It is inconsistent with Ms. Wiellowiczs subsequent actions to the extent Mr. Walraven claims that rights were being discussed (e.g. her conveyance of what is now the Santos lot without reflecting the burden of a beach easement on that deed). Even taking Mr. Walravens testimony at face value, these were casual conversations at best (he was fishing; she was walking by). Nothing was said about rights (not even Mr. Walraven claims the word was ever spoken), nor was there any similar discussion at the time of the formal closing. Other than his deed (discussed above), Mr. Walraven never received or requested anything in writing. The work being discussed while he and Ms. Wiellowicz were on the beach was relatively minor clean up (chiefly weeding), and very much consistent with permission only; feel free to bring your children here to play; just help me care for it while youre using it. Everyone agreed that both Ms. Wiellowicz and her son Mr. Wiellowicz enjoyed children and liked to see them around.
[Note 8] The same distinction applies to Murphy v. Olsen, 63 Mass. App. Ct. 417 (2005). There, the pedestrian easement to the beach was an express reservation by the grantors for the benefit of their other property, showing their intent.
[Note 9] When I say biases, I do not mean to imply that any of the witnesses purposely gave inaccurate testimony. In the case of most, it was simply a statement of the dates and circumstances of their presence at the beach, which I find was with the Wiellowiczs express permission and understood by the principals as such. For those who testified on the more central issue of what was said, intended and understood by the principals (the Wiellowiczs, the Walravens, and other lot owners), many of their recollections and testimony were clearly influenced by the passage of time, their direct interest (Mr. Walraven and his family members), the witnesses family relationship or long friendship with the Walravens whose contentions they were asked to support, or their status as fellow lot owners with potentially similar beach claims. What I find was given as permission thus sometimes morphed in their testimony into conclusory statements about rights or actions intended as the assertion of rights. This rewrites history. What was said, what was intended, and what was understood to have been said and intended, is more accurately reflected in contemporaneous actions, as I discuss below.
[Note 10] Among other reasons, this is consistent with the purported statements of Ms. Wiellowiczs son, Henry Wiellowicz, as recalled by Albert Jean in his testimony at trial. According to Mr. Jean, Mr. Wiellocicz told him that that the lot owners were given the rights to use the beach deeded. Trial Tr. 1-89 (emphasis added). As discussed above, this deeded area was the area within the Wollow Avenue right of way. As Mr. Jean conceded, Mr. Wiellowicz never indicated that the area of right was anything more than this. Id. Significantly, Mr. Wiellowicz gave no indication that this area of right included any part of what was then his lot and is now the Santos. To the contrary, when Mr. Jean and Mr. Wiellowicz discussed the beach on Mr. Wiellowiczs (now the Santos) lot, Mr. Wiellowicz gave Mr. Jean permission to use it anytime [Mr. Jean] wanted to. Trial Tr. 1-91. Mr. Wiellowicz would not have needed to grant permission, nor would the subject have come up, if Mr. Jean could use the beach on Mr. Wiellowiczs (now the Santos) land as a matter of right.
[Note 11] There was at least one photograph (clearly posed) of a child sitting on the rocks, but this was either before Mr. Wiellociwzs instruction (perhaps it prompted it) or a minor deviation for purposes of the photograph.
[Note 12] When Mark Walraven told Mr. Wiellowicz that he (Mark) would like to bring his tractor to the beach to work on it, Mr. Wiellowicz told him not no more and Mark complied. Trial Tr. 1-220 1-221. Marks testimony that he didnt think [he] had to have permission to use the beach is thus belied by his actions. Trial Tr. 1-224. Mark retained an attorney and there was an exchange of letters with counsel for Mr. Wiellowicz in 1997, but Marks (and his fathers) lack of follow-through until after Mr. Wiellowicz died is significant.
[Note 13] It is significant that in the conversations Mr. Walraven contends were express representations of beach rights, there was nothing in the tone that suggested anything of the kind. Rather, as Mr. Kilday described his conversation with Ms. Wiellowicz, we was just talking as friends talked as she told him Ill take you down to the beach and walked with him there. Trial Tr. 1-177. Another former lot owner, Dorothy Powers, conceded that the topic of beach rights never came up when we bought the property, Trial Tr. 1-188 a telling omission if express rights to use the Wiellowicz beach were part of the transaction.
[Note 14] Nor can the Walravens and their neighbors, as a group, acquire a prescriptive easement in the Wiellowiczs (now Santos) beach. See Ivons-Nispel, Inc., 347 Mass. at 761-62 ([P]ersons of the local community and the general public are too broad a group to acquire by prescription an easement to use private beaches for bathing and for recreational purposes.).