DOUGLAS J. BACKMAN vs. JOSIAH K. LILLY, III, GEORGE C. LILLY and KATE L. JARVEY.

The plaintiff Douglas J. Backman complains that the erection of a stone groin on land of the defendant Josiah K. Lilly, III and his two children, George C. Lilly and Kate L. Jarvey, [Note 1] has adversely affected his land. The case presented a novel question of law when it was initially brought in the Superior Court, and the decision of the Supreme Judicial Court in Lummis (a predecessor in title to the present plaintiff) v. Lilly, 385 Mass. 41 (1981), created a new standard of liability among littoral owners. Since this decision there have been proceedings both in this Court and the Superior Court as the title to the Lilly land is registered as is the adjoining parcel owned by Lido Music, Inc. There has been an intervening appeal to the Appeals Court. At long last on January 27 and January 28, 1992 a trial was held in the Land Court to establish the proximate cause of the conditions of which the plaintiff complains and the appropriate remedy. The plaintiff argues that the maintenance of the Lilly groin has caused his beach to be scoured of sand, rocks to be deposited therein and the shoreline to be eroded. The defendants dispute this and contend instead that the damage to the Backman beach is the result of natural causes and other artificial structures on the beaches. The plaintiff has waived any claim for damages and stated that he was seeking injunctive relief only.

At the trial a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. A vew of the beach front of the plaintiff and defendants was taken by the Court in the presence of counsel on January 30, 1992. In Lummis the Court recited that it would henceforth treat littoral owners of real property in the same manner as riparian owners, that is, the Court elected to apply the rule of "reasonable use" to the rights of owners of ocean front property rather than the standard which had come to be known as the "common enemy" rule which originally had been applied to the problems between adjoining owners occasioned by surface water and was rejected by the Supreme Judicial Court in Tucker v. Badoian, 376 Mass. 907 (1978).

In Lummis the Court defined the issue as an inquiry as to whether the defendants had made reasonable use of their property as such use affected the plaintiff's property with the factors to be considered including the following: (a) the licenses issued by the Department of Public Works and the Army Engineers to construct the groin below mean high water mark and whether the conditions have been met; (b) the purpose for which the groin was constructed; (c) the suitability of the use to the watercourse; (d) the economic value of the use; (e) the social value of the use; (f) the extent and the amount of harm which the use causes; (g) the practicality of avoiding the harm by adjusting the use or method of use of one owner or the other; (h) the practicality adjusting the quantity of water used by each owner; (i) the protection of existing values of water uses, land, investments and enterprise; and (j) the justice of requiring the user who is causing harm to bear the loss. The interesting sociological approach which Lummis suggests as a guideline has been followed by the parties in the trial of this case. The Court further stated that "at a minimum the plaintiff might be entitled to equitable relief from prospective injury, if an unreasonable use of the groin is found. In such case equitable relief in the form of an injunction or an order to reduce the size of the groin or to modify its shape may be in order" (at Page 47).

As in instances where the plaintiff proves indefensible conduct, the plaintiff still must establish that such conduct is the proximate cause of his injury although not necessarily the sole cause. Tritsch v. Boston Edison Co., 363 Mass. 179 (1973). However, matters cannot be left so doubtful after the litigation concludes that there is no preponderance in favor of either party. If such be the case, then the plaintiff has not proved its right to relief in the legal sense. Alholm v. Town of Wareham, 371 Mass. 621 , 626-627 (1976).

At the trial the plaintiff called as witnesses the defendant Josiah K. Lilly, III, the plaintiff, Douglas Backman, Wilbur Allan Brown, a retired naval officer and a summer resident of the area and Richard Silviera, president of Tibbets Engineering Corp. The defendants' principal witness was David G. Aubrey, an expert in the field of oceanography, coastal erosion and the effects of wind and tidal waters, who is associated with the Woods Hole Oceanographic Institution and who with family members is a principal in Aubrey Consulting Inc. The defendant also called Dean W. Proctor, another longtime resident of the area. Many of the facts and related background appear in the decision of the Supreme Judicial Court. In addition, and on all the evidence, I find and rule as follows:

1. The area in question extends from Little Sippewisset Creek to Great Sippewisset Creek, only a portion of which is owned by the plaintiff and the defendants. At each end of this expanse of beach front there are barrier beaches which continually migrate. During the years in question, 1967 to date, the plaintiff's land has migrated a thousand feet to the north so that the beach adjoining his land has lengthened appreciably. The land to the south of Little Sippewisset Creek is not a barrier beach but rather a headland and is more firmly fixed.

2. The beautiful sandy beaches on Cape Cod are the product of the endless interaction of the wind and waves upon the bluffs along the shoreline of Buzzards Bay, which has on an average eroded about three feet annually. The glacial deposits were left by the glacier which is responsible for rocks not only along the beaches but in many New England backyards. The sand covers the rocks, at the seashore which nature has left behind to a greater or lesser extent depending on the action of the wind and waves. The tide takes the rocks out and brings them back as those familiar with the seashore are aware. It also changes their location from time to time without the imposition of man-made structures. The two tidal inlets cause more rapid changes than would otherwise occur. There also are shoreline deposits in the area which does not drop off sharply as otherwise might be the case. There's an excess of sand available for transport onto the beaches to nourish them.

3. In the area of Buzzards Bay on which the parties' properties abut the prevailing wind direction in the summer is from south to north and the transport of sand follows the prevailing winds. In the winter the prevailing winds are from the northwest and the transport of sand is in the opposite direction. However, the situation changes year-round from hour to hour, day to day, month to month depending on the interaction of the wind and waves together with other factors not touched upon at the trial, such as the effect of the lunar system upon the properties.

4. When Lilly purchased the locus, he remembered the destruction suffered at his father's Cape properties during the 1938 hurricane with even his mother's trunks lost or damaged when the Buzzards Bay railroad station became submerged during that forceful natural event. He earlier had determined that if he ever acquired ocean front property, he would use his best efforts to protect it from hurricane force winds. He consulted experts on the subject including one at the Oceanographic Institute with his decision to construct a groin the result.

5. Lilly obtained from the Department of Public Works of the Commonwealth of Massachusetts a license to construct and maintain a stone groin [Note 2] in Buzzards Bay, at his property in the Town of Falmouth, in conformity with Plan No. 5032 which accompanied the license (Exhibit No. 11). The plan is attached to the exhibit and there is another copy which was introduced as Exhibit No. 1. Mr. Lilly also obtained from the Corps of Engineers a permit to construct and maintain the stone groin and place rip-rap (Exhibit No. 12). There is no contention by the plaintiff that the existing stone groin was not constructed in accordance with the license and permit.

6. The plan which accompanied the license was prepared by Charles N. Savery Co. The center line of the groin, as shown thereon, is 25 feet from the northerly property line of the Lilly property. Adjoining the Lilly land is registered land in the name of Lido Music, Inc. covering Lots 137 and 138 on Land Court Subdivision Plan No. 12009-12. The Court does not determine the distance of the boundary line on mean high water of land the title to which is registered, but it appears in this instance to be approximately 30 feet. Accordingly the plaintiff's land is approximately fifty-five (55) feet from that of the defendants.

7. The plaintiff relies on the Savery plan to show a change on the mean high water mark. However, land of the plaintiff is not shown on Exhibit No. 1, and while the mean high water mark is shown as a relatively straight line, it does not appear that this was an issue in 1965 or that it was surveyed on the ground by the registered land surveyor at that time. The plan had a limited purpose.

8. The photographs in evidence show a sandy beach extending from Little Sippewisset Marsh northerly to Great Sippewisset Marsh with a relatively straight line through the 1960's at least and into the seventies. However, it seems apparent that the jog north of the Lilly groin has become more apparent in recent years as Exhibit No. 22 shows a moderate jog in 1974 and a more acute one in 1986. In 1943 and again in 1949 the shoreline was more to the west than it is today.

9. During the intervening years the beach has migrated northerly at the rate of approximately 25 feet per year so that the plaintiff now has a beach which extends a thousand feet and is much longer than in earlier years. Prior to the construction of the Lilly groin the Beach Association had constructed a small groin to the south of the Lilly property, and the plaintiff's predecessor at some unknown time had added two small groins and a solid rock revetment to the front of what is now the Backman property.

10. Dr. Aubrey, the defendants' expert witness, testified that without the Lilly groin the changes in the beach in front of the plaintiff's house which have occurred sice 1965 would have taken place. However, he also testified that the groin was one of the causes for the scouring of a portion of the plaintiff's beach and the erosion of the shoreline. Other causes included the natural transport of the sand from south to north during the summer months, erosion from the constant effect of the wind and water breaking on the sand, the general sealevel rise particularly on the Cape, the shoreline structures which include the Association's groin, the Lilly groin, the two Backman groins and the Backman revetment, the latter having interrupted the natural flow to the south during the non-summer seasons and altered the equilibrium of the Backman beach. Dr. Aubrey was of the opinion, and I so find, that it is not scientifically defensible to say any one of the structures has caused the condition of the beach.

11. The presence of large sand dunes at the northerly end of the migrating barrier beach is support for the theory that there is adequate sand in the system and that the groins have not blocked the sand transport northerly. The expert also was of the opinion that the beach itself has always been lower in front of the Lido Music and Backman properties and that this affects the shoreline retreat rate. In his opinion the defendants' groin has not been trapping the sand nature intended for the plaintiff's beach. Rather many factors have contributed to the summer scourging of the plaintiff's beach.

12. In August of 1991 the Cape suffered extensive damage from a hurricane. The force of the hurricane winds destroyed the dunes on the Backman property which had been located at the northerly end of his land and transported the sand over the length of his beach. At the time of the trial the beach was sandier than it had been during Mr. Backman's experience with it, although in the winter generally the situation improves in any event as the winds shift. It is the plaintiff's own shore structures which prevent the improvement in the winter of the portion of the Backman beach immediately north of the Lido Music lot.

13. The rocks which are prevalent on the Lido Music and Backman beaches are a product of the glacier. Dr. Aubrey testified that rocks underlay all the beaches in this area but that the sand covers their presence in many instances. He further testified that there were many rocks on the Lilly property below the water line. The expert witness concluded that if the Lilly groin had never been built or if it were now removed, the Backman beach would continue to look as it does at present. I so find.

14. The plaintiff's expert witness, Richard Silviera, is a registered land surveyor, but he is not an oceanographer. He placed weight on the weathering mark on a huge stone on the Lido Music property which he claimed showed the previous high water mark. In his opinion the proper remedy to protect the plaintiff was first to remove the groin entirely or if not complete removal, to shorten and lower it. I must give less weight to his testimony than that of Dr. Aubrey.

15. The two lay witnesses both testified that the beach changes constantly, and one of them stated that the beach was rocky before the groin and rocky since. He further remembered that there always had been a jog where the present jog is. I find and rule, however, that the jog is now more pronounced and that like all beaches the rocks appear, disappear and reappear through the action of the wind and waves.

The plaintiff seeks injunctive relief to have the plaintiff's groin either removed in its entirety or shortened and made more narrow. The Court would not hesitate to order such relief if indeed the groin appeared to be the proximate cause of the damage suffered by the plaintiff. The evidence, however, is to the contrary. It is clear that the defendants' groin may be a contributing cause to the scouring, in part, of the plaintiff's beach and the erosion of the shoreline, but other contributing factors include the plaintiff's own two smaller groins and large rock revetment, the Association groin and more particularly the natural forces of wind and water. The building of the dunes and the migration of the barrier beach to the north are evidence that sufficient sand is reaching the plaintiff's property. The fact that it generally is not completely returned by natural forces during the winter season to the southerly portion of the plaintiff's beach lies in part with his own shoreline structures. In the face of the expert testimony that with or without the defendants'groin, the Backman beach would appear approximately the same, I cannot under the applicable rules of law order the removal of the Lilly groin. While such removal might not change the Backman beach, its effect on land to the south and on the Lilly land is unclear on this record.

I have weighed the factors which the Supreme Judicial Court has pointed out should be evaluated in making decisions in this area of the respective rights of littoral property owners. I conclude that the Lilly use of their land is reasonable. I also have considered the rules of burden of proof in connection with this determination. I have found as set forth above that it has not been proven that the Lilly groin is the proximate cause of the damage suffered by the plaintiff. Rather I find and rule that the proximate cause of the damage to the Backman property is largely the result of natural forces affected by all the man-made structures discussed herein. I further find and rule that the plaintiff has not shown that the factors set forth in Lummis as applied to the present factual situation require the removal of the Lilly groin. I have weighed each of the matters taken into account by the Supreme Judicial Court and find that on balance the plaintiff is not entitled to the relief which he seeks, an injunction to remove the groin or to make it smaller.

Judgment accordingly.