THOMAS E. DALEY and MARY F. DALEY vs. COMMONWEALTH OF MASSACHUSETTS, TOWN OF SWAMPSCOTT, JOSEPH J. DELLA PORTA and GLADYS A. DELLA PORTA. [Note 1]

Thomas J. Daley and Mary F. Daley, husband and wife, of Swampscott in the County of Essex, seek to register title to a certain parcel of land, on which their home is located, situated on the waterfront in said Swampscott near the former site of a well known summer hotel, the New Ocean House, which was destroyed by fire in 1969. The property claimed by the petitioners is bounded southeasterly by the Atlantic Ocean (Nahant Bay) and northerly by Puritan Road and is located approximately seventy­seven feet easterly of a town way running southeasterly from Puritan Road to the ocean, as shown both on the filed plan in the present case and on the decree plan and subsequent subdivision plans in Case No. 5633 relative to land on the westerly side of the way. Between the easterly sideline of the way and the locus is a parcel of land owned by the Town of Swampscott and acquired by it in the late 1970's. As shown on the filed plan there is a retaining wall which runs at least from the easterly line of the locus in a westerly direction to the town way. Between the retaining wall and mean high water is an area designated as "Beach Area" on the filed plan, and it is the status of the beach which gives rise to the contest in the present proceeding.

The Town of Swampscott, which is an abutter, filed an answer in which it set forth three grounds on which it claims that the land which lies seaward of the retaining wall should be subject to the rights of the Town and its inhabitants. Firstly, the Town claims that by a deed from Ebenezer B. Phillips, dated February 23, 1873 and duly recorded with Essex South District Registry of Deeds in Book 1021, Page 298, [Note 2] the Inhabitants of the Town of Swampscott were granted certain rights to use the area in question for the purposes of recreation and pleasure. Secondly, the Town claims that a large number of its inhabitants have used the beach area for more than twenty years in an open, notorious, continuous and adverse manner so that the public, as well as the individuals, have acquired prescriptive rights to do so. Thirdly, the Town claims that it has used the beach area for municipal purposes in such a manner as to have acquired a continued right to do so. In addition to the Town more than two hundred and fifty of its inha- bitants appeared and over one-half of them answered as well. Each individual respondent generally claims that he has used the beach area as shown on the filed plan in an open, notorious, continuous and adverse manner for well in excess of twenty years; that such use led to the acquisition of prescriptive rights to continue such use and that any decree of registration should be made expressly subject thereto.

A trial was held at the Land Court in Boston on June 14, 15, 19 and 20, 1979. A view was taken by the Court in the presence of counsel on the latter date. At the trial a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The abstract prepared by a Land Court Examiner is Exhibit No. 7. The instruments hereinafter discussed appear therein and are relevant to the present dispute. The description in the deed to the petitioners from J. Evelyn White, dated July 5, 1967 and recorded in Book 5455, Page 783 (Abstract, sheet 51), describes the locus as follows:

A lot which lies on the Southerly side of Orient Street, now called Puritan Road, and is bounded:

Westerly by land now or formerly of Jewell by a line from the Southeasterly corner of said land now or formerly of Jewell, on the Northerly side of said Orient Street, now Puritan Road, perpendicular to the Northerly line of said street;

Northerly by said. Orient Street, now Puritan Road, there measuring one hundred feet;

Easterly by land now or late of Wardwell on a line perpendicular to the line of said street and parallel to the first named line on the Westerly side; and

Southerly by the sea.

This description appears in the deeds in the chain of title commencing with that in a deed from Eben N. Wardwell to Gorham Gray, dated January 23, 1866 and recorded in Book 698, Page 134 (Abstract, sheet 24). The description prior to 1866, however, is puzzling, for, as set forth on sheet 4 of the abstract, a deed from William A. Phillips to John D. Bates, dated March 15, 1851 and recorded in Book 442, Page 138, described an area which includes not only the locus but adjoining parcels as well. in the following manner:

A piece of land at Swampscott in Lynn at Phillips beach (so-called) bounded:

Northerly on the old road leading from Lynn to Marblehead;

Easterly on the beach;

Southerly on the sea; and

Westerly on the beach.

Said piece of land is situate opposite a piece of land sold by me to said Bates as by my warranty deed to him of the same date herewith.

Said land is known by the name of the Great Rock. (Emphasis added). [Note 3]

The Great Rock as it is known today is situated to the east of the locus in front of the former location of the New Ocean House. It is unclear from the evidence whether historically it was comprised of locus, the Jewell parcel hereafter described and land to the east of locus, but it does appear from references in the abstract that the parcel described in the 1851 deed was subse­ quently subdivided and that our locus, although not now considered to be within or part of the Great Rock, formed a part thereof.

The deed referred to at the end of the description appears to be that at sheet 6 of the abstract and is not locus. It is interesting, however, that later in the summer of 1851 Bates acquired from Phillips another parcel of land on the opposite side of Orient (now Puritan Road) Street by deed dated August 14, 1851 and recorded in Book 451, Page 179 (Abstract, sheet 7).Simultan-eously, Phillips also conveyed to Bates "the right and title of all the beach in front of his land recently purchased by said Bates of me at Swampscott in Lynn aforesaid," (Abstract, sheet 8). This may well have referred to the locus as well as adjoining land.

When Bates subsequently conveyed the Great Rock to Stephen H. Wardwell et al in 1856 (Abstract, sheet 11), the warranty covenants were limited and did not run against the claims and demands of the Town of Lynn. No one has as yet pinpointed any such specific claims.

The abstract suggests that from at least 1866 locus is described as bounded easterly by land of Eben N. Wardwell. The grant from Ebenezer B. Phillips on which the Town in part relies gave the Town "a full right and license to use, for purposes of recreation and pleasure, all that portion of Whales Beach, so-called, in said Swampscott below the line of ordinary high water mark extending from land of William R. Blaney on the East to land now or formerly of Ebenezer N. Wardwell on the West," but it specifically provided that the grant and license was not to be construed "to give any right to use or place any bathing house, portable or otherwise, or any other building or structure upon said beach;" the grantor also expressly reserved the right of laying any ways for landing and for hauling up boats on any place he might select upon said beach. (Exhibit No. 2). The abstract at sheet 25 reveals that Wardwell also owned land to the west of the locus which he conveyed to Harvey Jewell by deed dated September 18, 1865 and recorded in Book 698, Page 117. The description in this deed bounds easterly "by a line drawn perpendicular or at right angles to the northerly line of said Street or highway from the southeasterly corner of the lot bought by the said Jewell of said Baker where said lot adjoins the land of the grantor being the southwesterly corner of the lot of the grantor which lies on the northerly side of said street or highway, said perpendicular line being extended across said land, beach or flats to the sea." (Abstract, sheet 25). It seems apparent, and the sketch by the Land Court Examiner which appears at sheet 26 of the abstract so indicates, that the deed to Jewell covers a parcel adjoining locus on the west. The initial problem thus presented to the Court was whether the grant from Ebenezer B. Phillips, which bounded westerly by land of Eben N. Wardwell, included locus. On all the evidence I find and rule that it did not as Wardwell was a predecessor in title of the petitioners, and the Phillips grant therefore terminated at or to the east of the petitioners' land. [Note 4] For purpose of this decision I have assumed that Phillips owned the land to which the grant relates, but in fact no evidence of his title was presented. The conclusion as to the location of the Phillips grant is buttressed by the wording of a report of the Selectmen of Swampscott as to the laying out of two town ways to the sea in 1872 (Exhibit No. 19), one of which is shown on the filed plan. The relevant paragraph reads as follows:

To Mr. E. B. Phillips we make no awards; he having offered the Town, free of costs the land included in the Town Way, and also to throw open to the public all the Beach below high water line as far west as the Easterly line of E. N. Wardwells Estate, to be used by the Public for the purposes of boating, driving and general recreation.

The burden of proof to establish title in a registration case is upon the petitioners. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1941). If the petitioners fail to do this, then the Court does not find title in third parties, but simply refuses to register the title as prayed for. In the present proceeding the respondents do not claim title to the beach area but merely the right to use it for bathing purposes, and they bear the burden of proof of establishing this right. Merry v. Priest, 276 Mass. 592 (1931). There is no question but that the petitioners have shown good record title to the area of the locus between Puritan Road on the north and the retaining wall on the south. The problem with which the Court is faced is whether good title has been shown to the remaining portion of the locus as shown on the filed plan, i.e. the beach area, free from any rights of third parties therein. The petitioners and their predecessors have been assessed by the Town for only 9,060 square feet of land shown as Lot 37 on Plate 21 of the assessors' maps for the Town of Swampscott (Exhibit No. 18); the plate shows beach area in front of locus and the adjoining Lot 38 as a separate unnumbered lot not assessed to the petitioners. Conversely, the owners of the registered land on the opposite side of the town way appear to have been assessed for the entire area of their holdings, presumably because the registration decree bounded southeasterly by the Atlantic Ocean. The decree was subject as to that portion between high and low water mark, to the easement of the public for purposes of navigation and free fishing and fowling, and of passing freely over and through the water without any use of the land underneath, wherever the tide ebbs and flows. (Exhibit No. 32). The area assessed to the petitioners, on the other hand, appears to correspond almost exactly with the dimensions of Lot 6 on Exhibit No. 5 (Abstract, sheet 21), a plan entitled "Land at Swampscott belonging to the Estate of James Phillips and Jonathan Phillips surveyed by Alonzo Lewis." The latter plan is an indication that in 1857 the upland comprised essentially what is shown as the non-beach area on the filed plan. This is in accordance with the position taken by the Town, which has assessed only the smaller area.

The usual rule in Massachusetts as propounded in the Colony Ordinances of 1641-1646 and as set forth in the decree in Land Court Case No. 5333 is that a title bounded by the sea conveys title to low water mark, if the latter is not in excess of 100 rods from the high water mark, subject only to the rights which have been reserved to the general public for fishing, fowling and navigation over the area between high and low water mark. Michaelson v. Silver Beach Improvement Association, 342 Mass. 251 , 260-61 (1961); Burke v. Commonwealth, 283 Mass. 63 , 67 (1933). The rights reserved to the general public historically have been held not to include the right to sit on, bathe from, or walk over the area between high and low water mark. Opinion of the Justices, 365 Mass. 681 , 687 (1974). Absent a record right, which we have not found, or a prescriptive right, to which we soon will turn, neither the Town nor its inhabitants have rights in the beach area above mean high water or between mean high and low water other than as spelled out above. The question also must be faced as to the location of the sea in the last century and whether the construction of the sea wall shown on the filed plan was the cause of accretion to the locus. It is clear that the landowner may not increase his property by building structures which lead to accretion although the result may be different if the accretion results from the acts of others. See Michaelson v. Silver Beach Improvement Association, supra at 254. An informed ruling on this cannot be made as there is no evidence before the Court as to when the retaining wall shown on the plan was constructed nor the effect of such construction. It would seem to a layperson that the wall well might be the causative effect of the buildup of the beach in front of the home of the petitioners and account for the increase in the size of their lot, but this would be a matter for expert testimony. Even though the 1857 plan shows the upland portion of the petitioners' land in approximately the same manner as the assessors' map, the description which appears throughout the title chain of the petitioners and which bounds the land in question southerly by the sea would appear to give record title to the disputed beach area to the petitioners in accordance with the rule set forth above and subject to the limited rights of the public as hereinbefore described.

The Town of Swampscott has requested that public rights of greater magnitude be recognized and claims, as hereinbefore set forth, that the land to the south of the retaining wall should be registered subject to the rights of the town and its inhabitants, acquired by prescription, to use the same. In effect, the Town is asking that the beach in its colloquial sense (see Anderson v. DeVries, 326 Mass. 127 , 134 (1950); Lund v. Cox, 281 Mass. 484 , 491 [1933]) should be subject to the right of the public to use it for usual bathing purposes including the right to sit or lie in the sand, to build sandcastles, to dig holes, to walk and to swim, all pastimes familiar to coastal inhabitants of New England. It is a close question as to whether the Town has borne its burden of establishing an easement by prescription. As was said long ago in Commonwealth v. Low, 20 Mass. (3 Pick.) 408, 412 (1826), "There is no doubt that the inhabitants of a town, in their corporate capacity, are capable of taking an easement...and that they may become seised of a right of way by ... prescription ...." The test by which a town acquires an easement is basically the same as that for individuals. Any unexplained use for more than twenty years which is open, continuous, and notorious is presumed to be adverse and under a claim of right. Lever v. Cook, 355 Mass. 634 , 637 (1969); Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292 , 298 (1940). It is then the burden of the petitioners to rebut the presumption by showing that the use was permissive. True v. Fields, 269 Mass. 524 , 528-29 (1930). In addition to non-permissive use, however, the Town must show "some form of corporate use and general occupation of its citizens." Cerel v. Framingham, 342 Mass. 17 , 20 (1961).

In Enfield v. Woods, 212 Mass. 547 , 554 (1912), the court relied in part on the failure to assess others as evidence to establish the town's case for title by adverse possession; the question of corporate authority was dealt with in this manner:

The finding of the master is 'that the town of Enfield, its selectmen and citizens generally have laid claim to said land as the property of the town of Enfield ever since a time prior to the year 1814.' This is a finding that there was a corporate action, if that is necessary.

In Puffer v. Beverly, 345 Mass. 396 (1963), the Supreme Judicial Court sustained a finding below that the city had acquired rights and land through prescription where the municipal action seemed limited to the maintenance of barrels and a single cleaning of the area, but reliance instead was placed on town records dating back to 1775 which described the area as public land.

It cannot be doubted that at least in recent years the status of Whales Beach [Note 5] has been the subject of considerable dissension in the town with the owners of the shore front property disputing the fact that the town has acquired a prescriptive easement, and many inhabitants of the town contending otherwise. In 1974 the Open Space Land Use Committee, the Conservation Commission and the Recreation Commission sponsored Article 38 in the Town Warrant:

Article 38. To see if the Town will vote to acquire, by gift or purchase, eminent domain or otherwise, for open space and recreation purposes, the following parcels:

1. Whales Beach proper, extending from "Way to Beach" at the easterly end to "Town Way" at the westerly end (as so titled on the Assessors Plan Plate 21), bounded on the northerly side by the existing retaining walls and a line connecting the ends of said walls where they terminate (roughly parallel with Puritan Road), and bounded on the southerly side by the ocean.

As appears from Exhibit No. 31, the article, as amended at the meeting and adopted, did not include paragraph one relative to the acquisition of Whales Beach. There was no evidence at the trial which would explain the action of the town meeting, and it would be speculative to conclude that the town meeting members assumed that Whales Beach already was public.

There was evidence at the trial that the beach in front of the petitioners' home had been cleaned by the Town for many years, that there were signs, posted at times on the land of the petitioners and at other times closer to the town way, setting forth the rules and regulations for the use of the beach, that lifeguards patrolled the area in front of the Great Rock, westward at least to the town way, that occasionally a lifeguard stand was erected in front of the Daley property, that there were also lifeguard stations on the westerly side of the Great Rock and, of course, on the land to the south of the way, that trash barrels were maintained in the area, that the petitioners had never been assessed for the beach and that the area bears no lot designation on the Assessors' Plate 21 (Exhibit No. 18). There are numerous photographs in evidence which show the use of the beach in front of the petitioners' property by multitudinous persons who obviously are not merely guests of the abutting owners. It is apparent from the nature of the bathing suits and other clothing worn by these individuals and also by the evidence at the trial that use of the beach dates back to a period well over twenty years before the petition was filed [Note 6] or the notice to prevent the acquisition of easements pursuant to G. L. c. 187, § 3 recorded (Abstract, sheet 52). Although there is no way of ascertaining from the pictorial evidence whether those using the beach are members of the general public in Swampscott or guests or employees of the New Ocean House, it is, however, corroborative of the other evidence that this beach has been open to others than those claiming under the abutters for a good part of this century. On all the evidence, therefore, I find and rule that the Town of Swampscott has acquired on behalf of its inhabitants an easement to use the beach area as marked on the filed plan.

Even if the Town had not borne the burden of establishing its rights, there are many individual respondents who have in fact established the right to use the beach as Irene Lowe did in the case of Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 761-62 (1964). At the trial, counsel for those respondents who both answered and testified requested that if the Court should find that certain of the respondents have established a right to use the beach, it be held applicable to all respondents. The case last cited makes it apparent that this cannot be done and that each individual must prove his own case. There was uncontroverted evidence that the following respondents have used the beach in front of the home of the petitioners each year for at least twenty years openly, notoriously, adversely and under a claim of right. Rather than reciting the testimony of the respondents I hereby find and rule that each of the following has proved to my satisfaction that he has acquired a prescriptive easement to use the beach for all customary activities, in common with the petitioners and those claiming under them. These respondents are: Louis Gallo, James Fenelon, Ann Whittemore, Daniel Cahill, Phyllis Buccigrasso, Catherine Valleriani, Minnie Pagnotta, Gerald Freedman, Louise Laconte, Vincent Laconte, Beatrice Yasi, Harry Eigner, Morris Weiner, Jane Weiner, Alexander Tennant, Howard Vatcher, Nathan Green, Mary Hatch, Janice Weinstein, Virginia Williams, Muriel Zuchero, Susan Barnes and Michael Martin, a selectman. In some instances the use by the respondent commenced during his minority, but in most cases the respondent showed at least twenty years of using the beach after reaching the age of 18. Some of the respondents originally commenced their use of the beach while a Swampscott resident, moved away for a period of years but continued the use through family members still living in the town and then returned to Swampscott. Others ceased their use when the male petitioner threatened them with arrest, but in every such instance they already had used the beach for twenty years and therefore had acquired a prescriptive right to continue to do so. Abandonment of this right is not shown under the circumstances of this case.

On all the evidence I therefore find and rule that a decree registering and confirming the title of the petitioners to the land shown on the filed plan may be entered subject a) to the rights of the Town of Swampscott, its inhabitants and the above-named individual respondents to use so much of said land as lies seaward of the retaining wall as shown on the plan for all usual purposes for which a beach is used, and b) to the rights of the public below mean high water mark. Such decree also will be subject to such other matters as may appear in the abstract and are not in issue here.

Decree accordingly.