ARA SAKAYAN and DORIS PINSLEY, TRUSTEE OF 44 BASS ROCK STREET TRUST vs. JOSEPH D. LILLY, TRUSTEE OF JDL REALTY TRUST and RICHARD SOKOLOW.

This action was commenced in Essex Superior Court in January 1989 and transferred to this Court September 4, 1990. Plaintiffs' amended complaint, filed here September 10, 1990, alleges that plaintiffs each owns property on Bass Rock Lane (the "Lane"), Marblehead and that these properties benefit from rights to use a portion of Bass Rock, a large rock outcropping at the seaward end of the Lane. Plaintiff Pinsley further alleges that she has similar rights by prescription as to all of Bass Rock. Plaintiffs allege that defendant Sokolow, claiming ownership of Bass Rock, proposes to build a house on Bass Rock, in derogation of plaintiffs' rights. Plaintiffs seek injunctive relief and a declaration as to their rights.

A trial was held on February 11 and March 1, 1991, at which a stenographer was appointed to record and transcribe the testimony. Twenty-four exhibits (some with multiple parts) were introduced into evidence, all of which are incorporated in this Decision for purposes of any appeal. The Court took a view of the locus on March 1, 1991. The following witnesses testified: John Kriegel (a Land Court Examiner), Christopher Richard Mello (a registered land surveyor), plaintiffs and Evelyn N. Naigles, the owner of a nearby residence, all testifying for plaintiffs; and John Falat (an architect) and Mitchell Robert Strain (a soils scientist), testifying for defendants.

On the basis of all the foregoing, I find and rule as follows:

1. Plaintiff, Ara Sakayan, owns and resides at 8 Bass Rock Lane (Lots 31, 32 and 33 on the plan attached hereto and marked "A"). Plaintiff, Doris Pinsley, as Trustee of 44 Bass Rock Street Trust, owns the property at that address (Lots 34 through 37 on the plan). Defendant, Joseph D. Lilly, as Trustee of the JDL Realty Trust, is the record owner of Bass Rock itself and possibly also the Lane. Defendant Richard Sokolow ("Sokolow") is the grantee of an unrecorded deed from Mr. Lilly, as Trustee, of the Lane and Bass Rock.

2. The Lane is a private way. It is shown as "Bass Rock Street" on a plan entitled "Plan of Land of Horace Ware At And Near Bass Rock in Marblehead" dated June 14, 1877, recorded at Essex South District Registry of Deeds (all recording referencs in this Decision are to that Registry) at Book 979, Page 138 (the "1877 Plan"), a copy of the relevant portion of which is attached hereto and marked "A". The Lane, as shown on the 1877 Plan, is twenty feet wide and leads from Ocean Spray Avenue southeasterly for approximately 240 feet to Bass Rock itself. The parties differed on whether plaintiffs or defendants own the Lane, but the question is not significant as to the issues in this action, because defendants concede that if they own the Lane plaintiffs have the right to use it.

3. Sokolow proposes to build a residence as shown on Exhibit 10 (the "Sokolow House") on Bass Rock and has applied for municipal permits for that, including a variance. The Sokolow House is a substantial two story residence having a living room, dining room, kitchen, family room, music room, bath and large entry area on the first floor, four bedrooms, two bathrooms, a spa and laundry on the second floor, a two car garage and adjoining parking deck and an outdoor swimming pool. The denial of the variance by the Marblehead Zoning Board of Appeals is the subject of an action in this Court, Misc. Case No. 133395.

4. The land of each of the plaintiffs benefits from appurtenant record rights to use Bass Rock (the "Bass Rock Rights"). The Bass Rock Rights are as follows ("said plan" being the 1877 Plan):

Also with a right thus in common to use within the limits of my ownership and below the line of soil, the rocky point known as Bass Rock, where it is bare of earth, for fishing, boating and recreation, with a right of access to such rock by Bass Rock Street, shown on said plan.

That language comes from a deed in the Pinsley title, recorded at Book 1066, Page 266, and defendants stipulate that similar rights benefit the Sakayan property. These rights are still in force.

5. Plaintiff Pinsley's use of Bass Rock was sporadic and interrupted for at least one summer during the period for which she wishes to establish rights by prescription over all of Bass Rock. I rule that she has not established rights by prescription. There is a greater problem for her on that score. There are on the record two notices of posting under G.L. c. 187, §3, one in 1951 and the other in 1969. Those are effective to prevent the acquisition of rights by prescription over Bass Rock for at least the period 1951 to 1989. Therefore, Ms. Pinsley must stand or fall on the Bass Rock Rights.

6. Defendants assume without case support that the Bass Rock Rights refer to the soil line as it existed in 1877. Plaintiffs suggest that the current soil line is the proper mark, citing Lorusso v. Acapesket Improvement Association. Inc., 408 Mass. 772 (1990). Acapesket involves acquisition of title by accretion and thus is not on all fours with the situation here. However, by analogy to the principles cited in Acapesket, I rule that the Bass Rock Rights should be read as referring to the soil line as it exists from time to time, and not to the line as it existed at any given time. I would reach that result even without Acapesket and its principles. The more reasonable interpretation of the Bass Rock Rights is that the line can move. Otherwise, rights having no limit in time would depend on facts which would recede ever more into the past, presenting increasing problems of proof (as in this case).

7. If the soil line means the current soil line, there is no question that the Sokolow House very substantially extends past the line. That can be seen most graphically on Exhibit 18, a plan prepared by witness Mello, which shows the present grass line and the Sokolow House. The same conclusion appears from defendants' exhibits, however. For instance, Exhibit 23 is a plan on which defendants' expert, Mr. Strain, traced the current line of soil. Exhibit 22B, Sheet A2 is defendants' exhibit showing the footprint of the Sokolow House. The distance from the southwest corner of the Sakayan lot to the southeastern-most point on the Sokolow House (at the edge of the wood deck), as shown on Exhibit 22B, is approximately ninety feet. The distance from the same point on the Sakayan lot to the current soil line as shown on defendants' Exhibit 23 is approximately forty-four feet (both distances derived by scaling). Thus, the deck extends approximately forty-six feet beyond the current soil line. That example is typical.

8. Defendants do not seriously suggest that they come within the current soil line. Rather, they suggest that the Sokolow House falls substantially within the 1877 line. They point to Exhibit 22A, among others, as showing that all but a portion of the deck and the garage of the Sokolow House fall within the 1877 line (they concede that the entire swimming pool falls outside the line).

9. A question exists whether, even on defendants' assumptions, the portions of the Sokolow House falling outside the line would violate plaintiffs' rights. The portions outside the line are indeed small (other than the pool), but I will pass the question because its underlying premises are incorrect.

10. Defendants' contentions are based on a "Limit of Soil" as shown on a November 17, 1987 Plan, Exhibit 20. All calculations of defendants and their architect and soils expert trace to that. Defendants suggest that the "Limit of Soil" on Exhibit 20 is the 1877 line, but there is nothing in the record to substantiate that.

11. There was considerable defendants' testimony to explain how the 1877 soil line could have eroded from that shown on Exhibit 20 to become the current line. Witness Strain testified that the 1877 line could have been in the location shown on Exhibit 20 (that is, where defendants contend it was), but he could not be positive. His conclusions were really speculations and lacked credibility. Among other problems in his testimony, he could not explain why the factors which might explain erosion were limited to the period from 1877. Why could those factors not have been in operation for centuries before 1877, so that the line in 1877 was essentially the same as now?

12. I conclude that the 1877 line is the same as the current line, or so much so that there is no appreciable variation.

13. I am bolstered in that conclusion by the 1877 Plan itself, when considered by other record instruments. The deed into defendant Lilly, and the Posting Notices referred to above (all of which bind defendants) refer to the 1877 Plan and make it clear that the soil line is the line formed by the dashed lines which form the easterly boundary of Lot 33 and the westerly boundary of Lot 34. That line, as it passes by the southerly end of Bass Rock Street, seems to exclude the area shown as "Bass Rock" on the 1877 Plan (although, admittedly, not conclusively so).

14. Finally, I am convinced by the view that I took of the property. The outline of the Sokolow House was painted on the rocks and well over half of the Sokolow House was on barren rock. Given the irregular, gradually sloping nature of Bass Rock, it is not credible to me that erosion since 1877 could account for the difference between the current soil line and the soil line in the location claimed by defendants for it as of 1877.

15. In short, the "line of soil" means the current line, but even if it meant the 1877 line, the two are indistinguishable as far as this action is concerned. More precisely, the "line of soil" as referred to in the Bass Rock Rights, beyond which "it is bare of earth", is the line (the "Current Soil Line") shown on Exhibit 18 by dashed line identified as "Grass Area" but also including the three immediately abutting areas shown as "Pocket of Sparse Grass". It excludes two "Pockets of Sparse Non-Contiguous Grass".

16. These conclusions determine this case, but I note that even if the Sokolow House were properly sited, with respect to the "soil line", the Sokolow House leaves no convenient access to the rest of Bass Rock. There are two stairways provided, one each at the respective seaward corners of the plaintiffs' lots. Each provides access only by a roundabout and inconvenient passage. There was testimony from Architect Falat that access could be obtained directly from the end of Bass Rock Lane, but, on elaboration, it developed that that would mean passing directly between the main residence and the garage and onto the swimming pool area before the rest of the Rock could be reached.

17. Plaintiffs have the right to exercise the Bass Rock Rights seaward of the Current Soil Line, including access thereto. Most of the Sokolow House is seaward of the Current Soil Line. If the Bass Rock Rights were limited to fishing and boating, the question would be limited to access. However, the Bass Rock Rights include "recreation". Plaintiffs have a right to use their entire easement area for recreation and the Sokolow House manifestly prohibits that. This is by no means a "de minimis" case. The Sokolow House makes a substantial intrusion into plaintiffs' easement area, and even more so into the part of the easement area which is usable from a topographical standpoint.

18. Defendants are enjoined from interfering with plaintiffs' exercise of the Bass Rock Rights seaward of the Current Soil Line. In particular, defendants are enjoined from constructing the Sokolow House.

Judgement accordingly.

exhibit 1