CHERYL ANN DEWOLF, Trustee of the DEWOLF NOMINEE TRUST u/d/t dated 11/15/02 v. CAROLINE M. APOVIAN and AUGUST J. BAKER

This action derives from a dispute between Mattapoisett neighbors over the seasonal use of a stone jetty located on Buzzards Bay. Portions of the jetty are located on both neighbors’ properties and on the Commonwealth’s tidelands, as well. See (Exhibit A). Certain relevant procedural events will be briefly reviewed in order to clarify the issues currently before the court on summary judgment.

On July 15, 2008, Cheryl Ann DeWolf, as Trustee of the DeWolf Nominee Trust (plaintiff) filed a one count verified complaint seeking relief from her neighbors’ alleged trespass. The neighbors, Caroline Apovian and August Baker (defendants), filed an answer and a counterclaim seeking a judgment declaring that they have an “unlimited right to use the jetty.” Thereafter, the plaintiff moved to amend the initial complaint. That motion was allowed and the plaintiff filed a four count verified amended complaint that included the original count for trespass in addition to three requests for declaratory relief. [Note 1]

The plaintiff subsequently submitted her motion for summary judgment. Approximately two months later, the defendants filed an answer to the amended complaint and a motion to extend the deadlines for discovery and the opposition to the plaintiff’s motion for summary judgment. On the following day, the defendants submitted an opposition to the plaintiff’s motion for summary judgment. Thereafter, the defendants filed another memorandum in opposition to the plaintiff’s motion for summary judgment. This subsequent memorandum contained different arguments than the ones previously advanced by the defendants in their initial summary judgment opposition. Following oral argument, both parties submitted post hearing memoranda.

Summary Judgment Standard

Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419 , 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). A fact is genuinely in dispute only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248 (1986). Material facts are those that might affect the outcome of the case under governing law. Id. The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

On the present record, this court concludes that there is no genuine dispute of material fact as to the rights relating to the use of the jetty. [Note 2] Consequently, the requests for declaratory judgment are ripe for summary judgment. However, the plaintiff’s trespass claim cannot be decided at this junction as there remain unresolved genuine issues of material facts pursuant to Count IV of the complaint. [Note 3]

Background

The plaintiff, as Trustee of the DeWolf Nominee Trust, owns two adjoining oceanfront lots in Mattapoisett. (Statement of Material Facts (St. of Facts), paragraphs 1, 3). The plaintiff, together with Henry D. DeWolf purchased the lots in February of 2000 and subsequently transferred them to the DeWolf Nominee Trust in 2002. (St. of Facts, paragraphs 17, 22). The lots, known and numbered as 64 Shore Drive, consist of registered land, bounded by Aucoot Cove on the east,. (St. of Facts, paragraphs 1, 6).

The defendants own the abutting lot on the plaintiff’s southern boundary. They acquired the property in December of 2001. (St. of Facts, para. 24). The lot consists of registered land bounded by Aucoot Cove on the east. It is known and numbered as 62 Shore Drive. (St. of Facts, paragraphs 2-3).

A stone jetty is located on the parties’ mutual boundary line. (St. of Facts, para. 8) (Statement of Additional Material Facts (St. of Additional Facts), 32). The jetty structure commences on the uplands and runs generally perpendicular to the coastline out beyond the mean low water mark. (St. of Facts, paragraphs 9-11). On the top surface of the jetty is a three and one half (3.5’) foot wide concrete walkway. (St. of Facts, para. 9). The walkway portion is “situated on the Plaintiff’s Property, and the [C]ommonwealth’s tidelands adjacent thereto.” (St. of . Facts, paragraphs 9-11). [Note 4]

The jetty was built by the plaintiff’s predecessors in title sometime prior to 1970. (St. of Additional Mat. Facts, para. 32). In 1995, a land surveyor prepared a site plan of the lots that included the location of the jetty. (St. of Facts, paragraphs 15-16). It is undisputed that this plan accurately depicts the parties’ boundary line and the location of the jetty at issue. (St. of Facts, para. 16). The plaintiff’s Certificate of Title lists a DEP license [Note 5] and the public rights below the mean high water mark as encumbrances on the title. (Pl. Rule 4 App., Ex. G).

In March of 2001, the Massachusetts Department of Environmental Protection (DEP) issued the license to the owners of the plaintiff’s property granting the right to legally maintain the jetty as built. (St. of Facts, para.18). The license authorizes the plaintiff, as Licensee, to maintain the jetty as a structure on her tidal flats and as well as upon the Commonwealth’s tidelands. (Pl. Rule 4 App., Ex. G). The acceptance of the license constitutes “an agreement by the Licensee to conform with all terms and conditions stated [t]herein.” (Pl. Rule 4 App., Ex. G, p. 3, para. 1).

The plaintiff and her invitees utilize the jetty for various leisure and recreational pursuits. (St. of Additional Facts, para.30). One of these activities includes the use of a float. (Id.) The float is attached to the jetty by means of a metal bridge. It occasionally serves as a dock for a boat. (Id.). The plaintiff and her invitees use the jetty to access the metal bridge and the float. (Id.).

The defendants utilize the jetty, as well. [Note 6] Since the acquisition of their property in 2001, the defendants have continually entered onto the jetty and the walkway for “seasonal use.” (Def. Counterclaim, Aug. 18, 2008, para. 11). The plaintiff objects to this use and seeks permanently to enjoin the defendants and their invitees from accessing the portion of the jetty that is on the plaintiff’s property.

The plaintiff, in her four count amended verified complaint, seeks declaratory relief pursuant to Counts I, II and III. Under Count IV, she alleges trespass on the part of the defendants. The plaintiff requests this court to order and declare that the defendants have not acquired a prescriptive easement nor adversely possessed any portion of the jetty on her uplands and tidal flats. The plaintiff further requests a declaration that having lawfully built upon portions of the tidal flats, the defendants and members of the public no longer have any limited public right to enter onto the jetty other than for purposes of lateral passage.

Legal Standard

A party seeking declaratory judgment under G.L. c. 231A must "set forth a real dispute caused by the assertion by one party of a legal relation or status or right in which he has a definite interest and the denial of such assertion by the other party, where the circumstances . . . indicate that, unless a determination is had, subsequent litigation as to the identical subject matter will ensue." Hogan v. Hogan, 320 Mass. 658 , 662 (1947). “[A]n express purpose of declaratory judgment is to “‘afford relief from . . . uncertainty and insecurity with respect to rights, duties, status and other legal relations.’” Boston v. Keene Corp., 406 Mass. 301 , 304-05 (1989), quoting G.L. c. 231A, s. 9. “It is clear that an adjudication of title to tidal flats, as well as the public use of privately held property, is an appropriate subject for declaratory decree.” Pazolt v. Director of the Div. of Marine Fisheries, 417 Mass. 565 , 570-71 (1994), citing Lowell v. Boston, 322 Mass. 709 , 740 (1948).

In this case, the plaintiff claims the right under her certificate of title and the DEP license to exclude the defendants from using any portion of the stone jetty. For their part, the defendants assert a right to use the entire jetty. This court possesses jurisdiction to declare the parties rights to the portion of the jetty located on registered land. See G.L. c. 185, s. 1 (a ½); G.L. c. 231A.

The facts herein are relatively unique. Both properties are registered land, bounded by the sea, and have some portion of a DEP licensed structure built upon them. Consequently, this court must consider multiple issues that include registered land (G.L. c. 185), the Public Trust Doctrine, and the Waterways Act (G.L. c 91). Each issue will be discussed seriatum.

Registered Land

The purpose of the title registration system is to provide a method for making “titles to land certain, indefeasible, and readily ascertainable.” Feinzig v. Ficksman, 42 Mass. App. Ct. 113 , 116 (1997). “[A] certificate of title represents a determination by the Land Court that only those encumbrances appearing on the certificate are valid.” Tetrault v. Bruscoe, 398 Mass. 454 , 460 (1986). These certificates of title are conclusive except as otherwise provided in the relevant statute. G. L. c. 185, s. 54; Michaelson v. Silver Beach Improvement Association, 342 Mass. 251 , 260 (1961).

“‘In order to affect registered land as the servient estate, an easement must appear on the certificate of title.’” Jackson v. Knott, 418 Mass. 704 , 710 (1994), quoting Goldstein v. Beal, 317 Mass. 750 , 757 (1945). General Laws c. 185, s. 46, provides that "every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate." However, there are two exceptions to this general rule: (1) if there are facts on the certificate of title which would prompt a reasonable purchaser to investigate other documents; or (2) if the purchaser has actual knowledge of a prior unregistered interest. Commonwealth Electric Company v. MacCardell, 450 Mass. 48 , 50 (2007).

Additionally, certain rights enumerated in G.L. c. 185, s. 46 will continue to encumber registered land despite their omission from the certificate of title. These encumbrances include those “arising or existing under the . . . the statutes of this commonwealth which are not by law required to appear of record in the registry of deeds in order to be valid against subsequent purchasers or encumbrances of record.” Both the Public Trust Doctrine and the Waterway Act fall within this category. Arno v. Commonwealth, 457 Mass. 434 , 459 (2010).

Public Trust Doctrine

“[T]he shores of the sea have been recognized as a special form of property of unusual value; and therefore subject to different legal rules from those which apply to inland property.” Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 , 631 (1979). Under English common law, private ownership in coastal land extended only as far as the mean high water mark. Arno v. Commonwealth, 457 Mass. 434 , 449 (2010). Land seaward of the mean high water mark was vested in the Crown and divided into two distinct categories: a property interest, known as the jus privatum and a public interest, known as the jus publicum. Commonwealth v. City of Roxbury, 75 Mass. 451 , 483 (1857). While a private landowner could acquire a property interest (jus privatum) below the mean high water mark, the public interest (jus publicum) could not be conveyed and was held in trust for the benefit of the public. Shively v. Bowlby, 152 U.S. 1, 13 (1894). These property rights were passed by charter to the Massachusetts Bay Colony. See Opinion of the Justices, 365 Mass. 681 , 684-85 (1974); Commonwealth v. City of Roxbury, 75 Mass. 451 , 483-84 (1857).

In order to encourage development, the Colonial authorities granted littoral landowners the property interest in the shore extending ownership from the mean high water mark to the mean low water mark. Wellfleet v. Glaze, 403 Mass. 79 , 82 (1988) (“Under the Colonial Ordinance, in order to encourage construction of private wharves, littoral owners were granted title to the shore as far as mean low tide mark or one hundred rods from the mean high tide mark, whichever is less.”). However, the ordinance expressly reserved the public’s interest which it declared to be free fishing, fowling, and navigation. Commonwealth v. Alger, 61 Mass.. 53, 67-68 (1851). Although the ordinance originally impacted only the Massachusetts Bay Colony, “it has long been interpreted as effecting a grant of the tidal land to all coastal owners in the Commonwealth.” See Opinion of the Justices, 365 Mass. 681 , 685 (1974), citing Weston v. Sampson, 62 Mass. 347 , 353-54 (1851).

Thus, under the well settled law of the Commonwealth, every owner of land bounded on tidal waters enjoys title to the adjacent tidal flats to the mean low water mark or one hundred rods, [Note 7] whichever is the lesser. See Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 , 633-637 (1979) (“To induce persons to erect [wharves below high water], the common law of England was altered by an ordinance, providing that the proprietor of land adjoining on the sea or salt water, shall hold to low water mark, where the tide does not ebb more than one hundred rods, but not more where the tide ebbs to a greater distance.”); Spillane v. Adams, 76 Mass. App. Ct. 378 , 389 (2010) (“Mean low tide is defined as ‘the average of all low tides — both low and lower low — over a fixed period.’”, quoting Black's Law Dictionary 1619 (9th ed. 2009)). This ownership in the tidal flats (the land between the mean high and mean low water mark) is subject to the easement of the public for the purpose of navigation, fishing and fowling. Michaelson v. Silver Beach Improvement Association, 342 Mass. 251 , 261 (1961).

The Commonwealth holds title to the lands seaward of the mean low water mark. See Michaelson v. Silver Beach Improvement Association, 342 Mass. 251 , 253 (1961). These submerged lands are held in trust to preserve the general rights of the public. Home for Aged Women v. Commonwealth, 202 Mass. 422 , 427 (1909) ("The waters and the land under beyond the line of private ownership are held by the State, both as owner of the fee and as the repository of sovereign power, with a perfect right of control in the interest of the public"). “‘[N]o littoral landowner or anyone else has any special rights’” in the land lying seaward of the mean low water mark unless it is granted to them by the Legislature. Fafard v. Conservation Comm. of Barnstable, 432 Mass. 194 , 199 n. 8 (2000), quoting Opinions of the Justices, 383 Mass. 895 , 903 (1981). The authority to preserve and regulate the public trust rights, held by the Legislature, may be delegated to State agencies or municipalities. Fafard v. Conservation Comm. of Barnstable, 432 Mass. 194 , 199 n. 10 (2000), citing G. L. c. 91.

Waterways Act

The Legislature has delegated the authority to the Department of Environmental Protection to preserve the public trust and to protect the public's interest. G. L. c. 91, s. 2. The legislation maintains the historical right of access to fish or fowl, defining "Private tidelands'', as "tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.” [Note 8] The DEP has the authority to license and prescribe the terms for the construction or extension of wharves, floats and piers on the tidelands. G.L.c. 91, s. 14. Chapter 91 also sets forth the procedure to which a landowner must adhere when seeking a license. So too, it provides that the DEP “may promulgate regulations for implementation for its authority under this chapter.”

Discussion

The instant dispute centers around two distinct issues. The first concerns the property rights in the tidal flats that directly abut the plaintiff’s uplands. The second issue concerns the plaintiff’s assertion that she has the right to exclude the defendants from the entire jetty structure based upon her status as a DEP Chapter 91 license holder.

The Defendants Have Failed to Put Forth Evidence Supporting Their Claim to a Private Easement on the Plaintiff’s Registered Land

In their counterclaim, the defendants allege that they hold a valid unrecorded easement. They contend that this easement grants them the right to use and enjoy the entire disputed jetty. The plaintiff, on the other hand, asserts that her registered land is immune from a claim of an unrecorded easement. See G. L. c. 185, s. 46.

Title registration of land with a littoral boundary also quiets title in the adjacent tidal flats. [Note 9] Arno v. Commonwealth, 457 Mass. 434 , 457-58 (2010) (“[R]egistration of flats can quiet title and ensure marketability, . . . but it cannot extinguish public trust rights” (internal citations omitted)). Thus the plaintiff’s land, bounded by Aucoot Cove, includes the tidal flats from the mean high water mark to the mean low water mark. (St. of Facts, para. 6; Pl. Rule 4 App., Ex. F); See Pazolt v. Director of the Div. of Marine Fisheries, 417 Mass. 565 , 571 (1994). ("[A] grant of land bounding on the sea shore carries the flats, in the absence of excluding words."). Consequently, any valid encumbrance on the plaintiff’s private tidal flats must be listed on the Certificate of Title. Tetrault v. Bruscoe, 398 Mass. 454 , 460 (1986) (“[A] certificate of title represents a determination by the Land Court that only those encumbrances appearing on the certificate are valid.”). No easement solely benefiting the defendants’ property is listed on the Certificate of Title. (Pl. Rule 4 App., Ex. G).

However, the defendants seemingly rely on the exception to this rule which recognizes non-registered encumbrances if a title holder had actual knowledge prior to the acquisition of the property. See Commonwealth Electric Company v. MacCardell, 450 Mass. 48 , 50 (2007). As purported evidence of the plaintiff’s knowledge of a prior unregistered interest, the defendants offer an Affidavit from Nancy E. Hurley, their predecessor in title. [Note 10] Predicated upon the Hurley Affidavit, they aver that summary judgment is not appropriate at this juncture because a material question of fact exists as to whether or not the plaintiff had prior knowledge of the alleged unrecorded easement. Contrary to the defendants’ contention, this assertion cannot survive summary judgment after a comprehensive review of the record.

“A party seeking to encumber an owner's registered land on the ground that he or she had actual knowledge of the unregistered interest bears the burden of proving the actual knowledge.” See Commonwealth v. MacCardell, 450 Mass. 48 , 51 (2007). “[I]t is insufficient merely to claim that the holder of registered title knew that the land was being used in a way that might indicate an easement.” Commonwealth v. MacCardell, 450 Mass. 48 , 53 (2007). To meet the actual knowledge exception, the defendants must offer some evidence that demonstrates the plaintiff’s prior knowledge of an encumbrance or prior unregistered interest. Commonwealth v. MacCardell, 450 Mass. 48 , 53 (2007).

The Hurley Affidavit fails to meet this standard. First, viewing this Affidavit in the light most favorable to the defendants, no reasonable inference can be drawn to warrant the conclusion that the plaintiff had notice of an unregistered encumbrance prior to taking title. The record is thus lacking any evidence indicating that the plaintiffs had notice of a claim of an easement benefiting their neighbors’ lot prior to taking title. Moreover, the Hurley Affidavit fails to assert the existence or grant of easement rights in her family. (Def. Opp., Ex. B). Rather, she alleges that at some point in time during the 1950’s, the plaintiff’s predecessors in title constructed the jetty and that she and her family “used the jetty every summer for fishing and other recreational purposes such as walking, climbing and diving.” (Def. Opp., Ex. B, ¶ 3-6). At best, Ms. Hurley’s allegations support an argument that she and her family acquired prescriptive rights in the jetty prior to registration.

As a matter of law however, Ms. Hurley and her family could not have secured prescriptive rights in the jetty. “[O]ne may acquire a prescriptive easement upon the land of another by use of that land in a manner which is open, notorious, adverse to the owner, and continuous for a period of at least twenty years.” Boston Seaman's Friend Soc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251 (1985).

Assuming, arguendo, that Ms. Hurley’s family initiated an “adverse” use of the jetty in 1950 or even somewhat earlier, [Note 11] the fact remains that the plaintiff’s predecessors registered their land in 1958 and 1963. (Pl. Rule 4 App., Ex. G). “[T]he filing of a petition to register title to land immediately interrupts adverse possession of that land.” Sandwich v. Quirk, 409 Mass. 380 , 383 (1991). This interruption occurred well before the twenty year period had run and clearly sufficed to block any claim of prescriptive rights. See Id. Additionally, even if one were to concede. arguendo, that Ms. Hurley and her family obtained a prescriptive easement prior to registration, said registration foreclosed that claim. Cf. Gifford v. Otis, 70 Mass. App. Ct. 211 , 214 (2007) (“We conclude that although the plaintiffs may have pleaded sufficient facts to establish a dispute of material fact on the issue of an easement by prescription in the period up to 1986, in its present posture, the plaintiffs' claim fails because the 1988 judgment of registration, affirmed by this court in 1989, foreclosed any claims on the locus prior to that point.”).

Consequently, the defendants have failed to proffer sufficient evidence that would exempt them from the strictures of G.L. c. 185, s. 46.

This court concludes therefore, that title to the plaintiff’s registered land is held free and clear of any encumbrance not listed on the Certificate of Title. [Note 12]

Plaintiff’s Ownership of the Jetty is Subject to the Public Trust Doctrine and the Waterways Act Regulations

The plaintiff contends that as property owner and licensee, she has the right to exclude the defendants from using any portion of the jetty structure. This claim is overbroad. As a general matter, the plaintiff has the right to exclude others from portions of the jetty located on her property. However, this right to exclude is subject to the Public Trust Doctrine.

“‘If a possessory interest in real property has any meaning at all it must include the general right to exclude others.’” Boy Scouts of America v. Yarmouth, 32 Mass. App. Ct. 713 , 718 (1992), quoting Opinion of the Justices, 365 Mass. 681 , 689 (1974). The plaintiff owns the land to the mean low water mark. Thus, the plaintiff can exclude the defendants, in the exercise of their private rights, from entering upon any portion of the jetty located either upon the trust-owned uplands or upon the trust-owned land between the mean high water mark and the mean low water mark.

However, the plaintiff may not preclude the defendants from exercising their public rights on the portion of the jetty located on the plaintiff’s tidal flats. The plaintiff argues that the Department of Environmental Protection authorized her to lawfully interfere with the public’s rights by issuing the Chapter 91 license. This argument is unpersuasive as the Waterways Act, the regulations promulgated thereunder, and the license itself expressly reserve said public rights. See G. L. c. 91, s. 2 (“[T]he department shall act to preserve and protect the rights in tidelands of the inhabitants of the commonwealth . . . .”); 310 CMR 9.35 (3)(a) & (b) (declaring the public rights applicable to tideland projects include fishing, fowling, and on-foot passage); Jubilee Yacht Club v. Gulf Ref. Co., 245 Mass. 60 , 64 (1923) (“All rights of owners of flats between high and low water mark under the colony ordinance are subject to very extensive regulation . . . .”).

Lawful building on tidal flats can result in the loss of the public’s easement rights when such actions make it impossible for the public to exercise those rights. Cf. Arno v. Commonwealth, 457 Mass. 434 , 451 (2010) (“[A]lthough a licensed filling of tidal flats makes the public's limited rights therein impossible to exercise, they are not extinguished until the Legislature takes action to that effect.”). However, that is not the case here as the jetty structure does not extinguish the public’s ability to exercise its rights to fish, fowl and navigate in the area. Moreover, the license by its terms explicitly reserves rights in the public as follows:

In accordance with any license condition, easement, or other public right of lateral passage that exists in the area of the subject property lying between the high and low water marks, the Licensee shall allow the public in the exercise of such rights to pass freely over all structures within such intertidal area.

This License authorizes structures . . . on: Private Tidelands. In accordance with the public easement that exists by law on private tidelands, the licensee shall allow the public to use and to pass freely upon the area of the subject property lying between the high and low water marks, for the purposes of fishing, fowling, and navigation, and the natural derivatives thereof.

(Pl. Rule 4 App., Ex. D).

Accordingly, the structure and land between the mean high and mean low water marks remain subject to the rights of the public encompassed within the Public Trust Doctrine. The defendants as members of the public, possess those rights. However, such rights are limited and may only be used in a reasonable manner. Commonwealth v. Alger, 61 Mass. 53 , 89 (1851) (“Looking at the terms of this law, and the purposes for which it was intended, the object seems to have been, to secure to riparian proprietors in general, without special grant, a property in the land . . . subordinate only to a reasonable use of the same, by other individual riparian proprietors and the public . . . .”).

The limited scope of the public’s easement in the tidal flats has been repeatedly affirmed by the courts of the Commonwealth. Opinion of the Justices, 365 Mass. 681 , 687 (1974) (“We have frequently had occasion to declare the limited nature of public rights in the seashore.”). The easement is confined to the natural derivatives of fishing, fowling, and navigation. Commonwealth v. Alger, 61 Mass. 53 , 67-68 (1851). The public right to fish includes the right to go upon private tidelands to catch fish or to gather shellfish or floating seaweed. See Anthony v. Gifford, 84 Mass. 549 , 550 (1861); Weston v. Sampson, 65 Mass. 347 , 355 (1851). The public also retains the right to walk across private tidelands in order to fish or fowl from land owned by another. See Barry v. Grela, 372 Mass. 278 , 279 (1977) (holding that members of the public have a right to cross over private flats by foot in order to access a jetty for fishing and fowling). Additionally, the public holds the right “to swim or float in or upon public waters as well as to sail upon them.” Butler v. Attorney Gen., 195 Mass. 79 , 83-84 (1907).

While members of the public hold such rights, they are confined to these limited uses. “[T]here is no general right in the public to pass over the land or to use it for bathing purposes.” Wellfleet v. Glaze, 403 Mass. 79 , 85 (1988) (internal citations omitted); Butler v. Attorney Gen., 195 Mass. 79 , 83-84 (1907) (“It is plain, we think, that under the law of Massachusetts there is no reservation or recognition of bathing on the beach as a separate right of property in individuals or the public under the colonial ordinance.”). Thus the defendants, as members of the public, possess only the limited right to use the plaintiff’s tidal flats in a reasonable manner not inconsistent with the rights enumerated in the public. Wellfleet v. Glaze, 403 Mass. 79 , 86 (1988).

The G.L. c. 91 License Does Not Grant Plaintiff the Right to Prohibit the Defendants’ Use of Their Own Tidal Flats or of the Commonwealth’s Tidelands

The plaintiff contends that as holder of the license, she has the right to exclude the defendants and members of the public from the entire jetty. Certain portions of the jetty are located on both the Commonwealth’s Tidelands as well as the defendants’ tidal flats. See (Exhibit A).

It is questionable whether the Land Court possesses the subject matter jurisdiction to construe the impact of a G.L. c. 91 license on the Commonwealth’s tidelands. See Arno v. Commonwealth, 457 Mass. 434 , 441 (2010) (“As it related to whether the Commonwealth could require [the owner] to obtain a Waterways Act license, [the] complaint did not concern title, and thus was not ‘clearly within the Land Court's subject matter jurisdiction.’”). The DEP is charged with the task of determining what portions of Commonwealth tidelands have been encroached upon. See G.L. c. 91, s. 2. Thus, while it is proper for this court to determine legal rights concerning the plaintiff’s tidal flats which are registered land, it is not necessarily within this court’s purview to declare the rights of the parties in the Commonwealth’s tidelands. [Note 13] See G.L. c. 185, § 1(a ½) (“The land court department shall have exclusive original jurisdiction of the following matters: Complaints affecting title to registered land . . . .”). Because the plaintiff does not hold an adequate property interest in the Commonwealth’s tidelands this court will not endeavor to declare the plaintiff’s rights therein. See Pazolt v. Director of the Div. of Marine Fisheries, 417 Mass. 565 , 570-71 (1994) (“A judge enjoys some discretion in deciding whether a case is appropriate for declaratory relief.”).

Additionally, even if this court possessed authority to declare the parties’ rights in those areas, it is evident that the license only permits the plaintiff to use the Commonwealth’s tidelands for the purpose of shoreline stabilization. (Pl. Rule 4 App., Ex. D). Under the Waterways Act, the license does not convey a property right to the plaintiff. See G.L. c. 91, s. 15 (“[T]he grant of a license pursuant to this chapter shall not convey a property right, nor authorize any injury to property or invasion of rights of others.”). A license is only “an agreement that it will be lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal.” Blacks Law Dictionary, 931 (7th Ed. 1999).

The license issued by the Department of Environmental Protection limits the plaintiff’s use of the structures for shoreline stabilization. (Pl. Rule 4 App., Ex. D). As to the use of Commonwealth Tidelands seaward of the mean low water mark, the license authorizes structures, i.e. the jetties, on Commonwealth tidelands and recites in expansive terms, [Note 14] as follows:

Commonwealth Tidelands. The Licensee shall not restrict the public’s right to use and to pass freely, for any lawful purpose, upon lands lying seaward of the low water mark. Said lands are held in trust by the Commonwealth for the benefit of the public. (Pl. Rule 4 App., Ex. D) (emphasis supplied).

Finally, the defendants own the private tidelands upon which a seemingly modest portion of the jetty is built. [Note 15] See (Exhibit A). The license does not purport to vest in the plaintiff any right in this land. See G.L. c. 91, s. 15 (“[T]he grant of a license pursuant to this chapter shall not convey a property right, nor authorize any injury to property or invasion of rights of others.”); (Pl. Rule 4 App., Ex. D., “Nothing in this Waterways License shall be construed as authorizing encroachment in, on or over property not owned or controlled by the Licensee . . . .”). Not surprisingly, the plaintiff has no right to exclude the defendants from their own property.

Count IV: Trespass

Pursuant to G. L. c. 185, s. 1(o), the Land Court’s jurisdiction over civil actions of trespass is limited to actions “involving title to real estate.” A trespasser is one who “enters or remains upon land in the possession of another without a privilege to do so, created by the possessor’s consent or otherwise.” Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988). While the court has declared the parties respective property rights, there remain genuine issues of material fact concerning: 1) the portion(s) of the stone jetty upon which the defendants have gone; [Note 16] and 2) whether such use was permitted under the Public Trust Doctrine and Waterways Act. Such determinations cannot be made by this court, based upon the summary judgment record before it.

Conclusion

In view of the foregoing, this court concludes as follows:

1. The defendants are possessed of no prescriptive or other private unrecorded easement rights, or rights of adverse possession, in the jetty herein at issue.

2. However, the defendants are possessed of those rights enjoyed by the public at large in the plaintiff’s tidelands [Note 17] and in that portion of the jetty owned by the plaintiff. In this respect, the license speaks of a “public right of lateral passage that exists in the area of the subject property [jetty] lying between the high and low water marks.” The license provides, in this regard, that “he Licensee shall allow the public in the exercise of such rights to pass freely over all structures within such intertidal area.” (emphasis supplied) [Note 18]

3. The defendants enjoy full rights to utilize that portion of the jetty which lies upon their property. [Note 19]

4. The defendants are without authority to enter upon the plaintiff’s upland property.

In view of the foregoing, it is hereby

ORDERED that the Plaintiff’s Motion for Summary Judgment be ALLOWED in part, to the extent specified herein and DENIED in part to the extent specified herein. It is further

ORDERED that within thirty days, a pre-trial conference will be scheduled by the court to further define those issues to be taken up at trial.

SO ORDERED.

By the Court (Grossman, J.).