ANTHONY BEACH ASSOCIATION, INC. vs. STANLEY EPSTEIN, ET AL.

Anthony Beach Association, Inc. ("Anthony Beach" or "Petitioner"), seeks to register title pursuant to the provisions of G.L. c. 185, §1 to a certain parcel of land, situated on Clark's' Cove in South Dartmouth. The property claimed by the Petitioner, hereinafter referred to as the "locus," is shown on a plan entitled "Plan of Land in Dartmouth, Mass. owned by Anthony Beach Association, Inc., Dated June 1, 1981, Revised July 23, 1981 by Alan D. Quintin, Registered Land Surveyor" and filed with the Court as Land Court Plan No. 40888A hereinafter referred to as the "Plan."

Various persons filed answers claiming in general rights to cross over and use for recreational purposes certain portions of the Petitioner's land. Some of the respondents did not appear at the trial and were defaulted. The respondents' claims are discussed in the findings below.

A trial was held at the Land Court on March 18 and May 28, 1987 at which 13 witnesses testified, 23 exhibits and 1 chalk were introduced into evidence. These exhibits are incorporated herein for the purpose of any appeal. A view was taken by this Court in the presence of counsel on June 15, 1987.

Upon consideration of the foregoing, the Court finds as follows:

1. The Petitioner is a duly existing corporation with its usual place of business in New Bedford, Massachusetts.

2. In 1929, Everett P. Sherman by deed recorded in Bristol South Registry of Deeds in Book 682, Page 110 (Exhibit 10), conveyed to Anthony Beach a "certain parcel of beach and upland" subject to the rights of the lot owners in an adjacent existing subdivision to use this property for recreational purposes (Exhibit 9). This property is nonlocus and is not involved in the current petition for registration. It appears, however, that certain property owners in the subdivision believed this property to be involved in the registration and accordingly, this finding is included for purposes of clarity.

3. From 1929 to 1938, Anthony Beach acquired three additional parcels of property, which parcels constitute the property shown on the Plan.

4. At the trial, the Petitioner moved to sever and dismiss as to an area in the shape of a quadrangle bordered on the southwest by the center line of large stones; on the east by the easterly border of the original locus registration plan; on the north by the southerly edge of Stone Ledge Road; and in the west by chain link fence as indicated on the Plan. The motion was allowed and a revised plan reflecting this deletion is to be filed by the Petitioner.

5. The respondents appearing at trial allege that they have individually acquired easements by prescription over the property subject to the registration proceeding by virtue of their open, adverse, nonpermissive and continuous use for all purposes for which beaches are commonly used over certain portions of the land shown on the Plan.

6. The Petitioner has stipulated with the Commonwealth of Massachusetts that any decree issued shall be subject to: "the rights of the public in and to the tidewaters adjoining the locus from the line of high water as actually occurring without limitation by distances now shown on the Plan; and also subject to the Petitioner obtaining a license to continue and maintain the pier as shown on said Plan under the provisions of G.L. c. 91, if such license does not currently exist."

In a registration proceeding, the burden of proof is upon the petitioners to establish title to the locus. Hopkins v. Holcombe, 308 Mass. 54 , 56 (1981). In the present proceeding, the respondents make no claim of fee title in the locus but rather allege prescriptive rights over the beach area of the property subject to this registration proceeding. The respondents carry the burden of proving that their use of the beach area was nonpermissive, open, continuous and notorious for a twenty year period prior to the recording of notice of registration. Daley v. Swampscott, 11 Mass. App. Ct. 822 , 829 ( 981); Lever v. Cook, 355 Mass. 634 , 637 (1969); Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292 , 298 (1940).

While some of the respondents used the Petitioner's property to a sufficient degree to establish such rights, such use was, and accordingly such rights are limited to the portions of the Petitioner's property between Clark's Cove and the upland as defined by the location of the wall, concrete platform and existing grassy area ("beach area").

Based on the above findings and the testimony at trial, I rule that:

1. Sidney M. and Edith H. Beserosky of 121 William Street, South Dartmouth have walked the property and used the beach for swimming and sitting since 1946, adversely to the Petitioner's rights, and accordingly, have acquired an easement by prescription over the beach area for such purposes.

2. Stanley M. Epstein of 29 Stone Ledge Road, South Dartmouth has walked the property and used the beach for swimming and sitting since 1954, adversely to the Petitioner's rights, and accordingly, has acquired an easement by prescription over the beach area for such purposes.

3. Joseph A. Correia, Jr. of 46 William Street, South Dartmouth has similarly used the property since 1964, however, this use falls short of the necessary 20 years and thus, he has not acquired any rights in locus.

4. Steven Shuster of 103 William Street, South Dartmouth has walked the property and used the beach for swimming and sitting since 1950, adversely to the Petitioner's rights, and accordingly, has acquired an easement by prescription over the beach area for such purposes.

5. Sandra Siegal of 65 Stone Ledge Road, South Dartmouth has walked the property and used the beach for swimming and sitting since 1954, adversely to the Petitioner's rights, and accordingly, has acquired an easement by prescription over the beach area for such purposes.

6. Dr. James Martin Quinn of 15 Anthony Street, New Bedford has seasonally walked the property and used the beach for swimming and sitting since 1951, adversely to the Petitioner's rights, and accordingly, has acquired an easement by prescription over the beach area for such purposes.

7. Mary Margaret Quinn of 15 Anthony Street, New Bedford has seasonally walked the property and used the beach for swimming, fishing and sitting since 1951, adversely to the Petitioner's rights, and accordingly, has acquired an easement by prescription over the beach area for such purposes.

8. Judge Jack London of 18 Gold Street, New Bedford has not acquired an easement by prescription over the Petitioner's land inasmuch as his use of the beach area was, accordingly to his testimony, permissive and thus not adverse to the Petitioner.

I therefore rule that a decree be entered registering and confirming the title of the Petitioner to the locus shown on Land Court Plan No. 40888A as revised by deleting the portion of property described in paragraph 4 of the above findings subject to 1) the personal rights of the above-named individual respondents to use the locus as specifically set forth; 2) the rights of the public in and to the tidewaters adjoining the locus from the line of high water as actually occurring without limitation by distances now shown on the Plan; 3) the Petitioner's obtaining a license to continue and maintain the pier as shown on the Plan under the provisions of G.L. c. 91 or establishing to the Court's satisfaction that such license exists and 4) the Petitioner filing a revised plan excluding that land described in paragraph 4 of the above findings and delineating the "beach area" from the upland area as described herein. Such decree also will be subject to such other matters as may appear in the abstract and are not in issue here.

Decree accordingly.