PAUL LIPKE AND MARIAN LIPKE, as Trustees of the BARBARA STIX LIPKE MARTHA'S VINEYARD NOMINEE TRUST, EMILIE J. JACOBI, and KEITH MCNALLY v. WINDY GATES, LLC

By virtue of the instant action, the plaintiffs (Lipke, Jacobi, and McNally) move, pursuant to Mass. R. Civ. P. 56, for partial summary judgment on their Complaint seeking a declaration that they have the right, in accordance with an express grant of easement rights, to construct and maintain a set of stairs over a cliff face on the defendant’s property in order to access a beach area below. The defendant Windy Gates, LLC, (Windy Gates) opposes the plaintiffs’ motion and, for its part, moves for partial summary judgment in its favor on Count I of its Amended Counterclaim seeking a declaration that no easement to access the beach exists in favor of the properties owned by the plaintiffs.

The primary issues presently in dispute concern the following:

(a) Whether plaintiffs’ easements are valid even though they are not expressly recited on Windy Gates’ Transfer Certificate of Title; [Note 2]

(b) Whether the plaintiffs’ easements were granted as appurtenant to their properties or merely in gross to the original grantees; [Note 3] and

(c) Whether the plaintiffs’ easements have been extinguished by the alleged erosion and submersion of the beach [Note 4] area that existed at the time of the original grant.

Based upon the parties’ oral arguments, their memoranda and relevant exhibits, this court concludes that the plaintiffs hold valid easement rights appurtenant to their properties which afford them access to the South Beach area on Windy Gates’ Property. Moreover, the plaintiffs are possessed of the right to construct and maintain a set of stairs that are both safe and stable and subject to the annual approval of the Town of Chilmark Conservation Commission, in order to gain reasonable access to the said Beach area.

Background

The material facts are not in dispute.

(1) The plaintiffs each own one of three parcels of registered land on the south shore of Martha’ Vineyard in the Town of Chilmark. Together with the defendant’s registered parcel, these three parcels previously constituted a larger tract (Tract) under the common ownership of Evelyn Preston (Preston). The original Tract registered to Preston contained approximately 271 acres. The much reduced rectangular shaped parcel currently owned by Windy Gates LLC, consists of approximately 105 acres. [Note 5] A cliff formation, part of the Wequobsque Cliffs, separates these upland areas from the Atlantic Ocean and the private beach that is central to this dispute. That beach area, known as South Beach, sits about 70 feet below the top of the cliffs and is accessed by means of a stairway descending the cliff face. The plaintiffs’ parcels are inland from the cliffs. They require access over the defendant’s property in order to reach the stairway and the private beach area below.

(2) The Tract was first registered to Evelyn Preston in 1936 and became known as “Windy Gates.” That Original Certificate of Title No.784, described the Tract as follows:

NORTHERLY by the State Highway, nine hundred fifteen and 25/100 (915.24) feet;

NORTHEASTERLY by lands now or formerly of Florence B. Mayhew and of Catherine D. West, five hundred twenty-two and 67/100 (522.67) feet;

NORTHWESTERLY by said West land, five hundred fifty-nine and 74/100 (559.74) feet;

NORTHEASTERLY by the State Highway and by land now or formerly of Lucinda P Vincent, twenty-two hundred sixty and 65/100 (2260.65) feet;

SOUTHEASTERLY by the middle line of a way as shown on the plan hereinafter mentioned on said Vincent land, three hundred nineteen and 05/100 (319.05) feet;

NORTHEASTERLY one hundred two and 38/100 (102.38) feet,

EASTERLY one hundred nineteen and 51/100 (119.51) feet and

NORTHERLY one hundred sixty-six and 54/100 (166.54) feet by said Vincent land;

EASTERLY by said Vincent land measuring n the upland about nine hundred thirty-three and 93/100 (933.93) feet and by said line protracted to low water mark so far as private ownership may extend;

SOUTHERLY by the Atlantic Ocean;

WESTERLY by land now or formerly of Stanley King, et al and of Benita Parker measuring on the upland about twenty hundred eighty-eight and 35/100 (2088.35) feet;

NORTHWESTERLY by land now or formerly of William H. Smith, et al and of M.M.R. Norton five hundred seventy-two and 05/100 (572.05) feet;

NORTHEASTERLY seven hundred eighteen and 70/100 (718.70) feet, and

NORTHERLY three hundred fifty and 99/100 (350.99) feet by land now or formerly of scar Flanders;

WESTERLY by said Flanders land and by land now or formerly of Henry M. Look, four hundred eighty-one and 28/100 (481.28) feet;

NORTHERLY by lands now or formerly of Blanche Whitkop and Catherine D. West, eight hundred fifty-seven and 64/100 (857.64) feet; and

WESTERLY five hundred sixty-three and 70/100 (563.70) feet,

NORTHERLY one hundred seventy-six and 49/100 (176.49) feet, and

WESTERLY forty-three and 73/100 (43.73) feet by said West land.

All of said boundaries, except the water line, are determined by the Court to be located as shown upon plan numbered 15557-A, [Note 6] which will be filed with the original certificate of title [No. 874] issued on this decree, [Note 7] the same being compiled from a plan drawn by William S. Swift, Inc., Surveyors, dated July 30, 1932, and additional data on file in the Land Registration Office, all as modified and approved by the Court.

So much of the land hereby registered as is included within the limits of said Way is subject to rights of way thereover appurtenant to said Vincent land. The land hereby registered is subject to rights of way during the lives of the respective grantors as reserved in seven deeds, six given to Daniel W. West, one by Samuel E. West, one by George West, one by Benjamin D. West, one by Joseph E.T. West, one by Deidamia J. Smith and one by Sophronia E. Hillman, and one given by Daniel W. West to Lucy S. Sanford, all dated August 18, 1898, duly recorded in Book 99, Page 77, 79, 81, 83, 85, 87 & 89 respectively. [Note 8]

(3) Between 1943 and 1951, Preston subdivided the said Tract, conveying eleven parcels therefrom to third parties. Two of these parcels, designated Lots A and B, are especially relevant to the case at bar.

In 1943, Preston conveyed Lot A to Philip F. Siff. [Note 9] The relevant Transfer Certificate of Title (Transfer Certificate) No.1077 includes a metes and bounds description of Lot A followed by a recitation that “the above description is that of Lot A, as shown upon sub-division Plan #15557B, filed with this Transfer Certificate # 1077.” The following reservation and encumbrances appear thereafter in the Transfer Certificate:

The Grantor hereby reserves to herself, and to her successors in title, in whole or in part, to that portion of the aforesaid tract of land known as “Windy Gates” which is not being herein conveyed to the Grantee, a right of way over so much of the above conveyed land as is included within the limits of the Ways hereinabove described, as a means of ingress to and egress from the said tract of land reserved to the Grantor, to and from the Massachusetts State Highway, for any and all purposes; and such Right of Way is hereby reserved by the Grantor with as full and free right to use the same as though title thereto had not passed to the Grantee herein.

The Grantor also grants to the aforesaid grantee, over the existing roadway bounding and for a portion of its distance lying one-half within the above conveyed tract of land, a right of way between the building now on said tract of land and the aforesaid Massachusetts State Highway, for the purpose of ingress and egress thereto from said Highway but not otherwise.

The Grantor also grants to the aforesaid grantee, over the existing footpath commencing at the southeast corner of the above conveyed tract of land and running out of the aforesaid roadway at that point in a southerly direction toward a grassy path, thence over said grassy path to the Cliffs and thence down the flight of steps leading to the South Beach, a right of way by foot for the purpose of access to that portion of the beach extending from said steps to the boundary of “Windy Gates” on the east thereof and not otherwise.

It is further understood and agreed between the parties hereto that the above conveyed tract of land and each and every part thereof shall be used solely for residential purposes and not otherwise; and that such limitation upon its use shall continue for a period of twenty-five years from the date hereof unless (1) the Grantor in the meantime uses the remaining unconveyed portion of the aforesaid entire tract known as “Windy Gates”, or any part thereof, for other than residence purpose or shall sell same or any part thereof in conjunction with a right of access to the South Beach without imposing a similar residence restriction, or (2) in the event of foreclosure and sale; in which events the residence restriction herein contained shall immediately cease and terminate. [Note 10] (emphasis supplied)

The easement here at issue concerns the right of way over the “grassy path” and down the cliffs to access South Beach.

In 1944, Preston conveyed Lot B to Thomas L. Stix and Regine K. Stix. The Transfer Certificate of Title No.1087 [Note 11] included a metes and bounds description together with the following language, similar, in essential terms, to that appearing in Transfer Certificate of Title No. 1077 (Lot A):

The Grantor also grants to the above said grantee over the Way leading from land of Preston as aforesaid and for a portion of its length lying on land of Preston and for the balance of its length bounding and / or lying one-half within the tract of land recently conveyed by Preston to Siff [Lot A] (with the reservation of full rights of user therein to the Grantor and to her successors in title in whole or in part) a right of way between the tract of land herein conveyed and the aforesaid Massachusetts State Highway, for the purpose of ingress and egress thereto from said Highway, by foot or vehicle, but not otherwise; the right to use said way to continue only so long as no additional dwelling houses are erected on the land being herein conveyed to the grantee, and, upon the erection of one or more additional dwelling houses thereon, to wholly cease and terminate.

The grantor also grants to the aforesaid grantee, over said Way, thence over a footpath therefrom across the field between the house on land now of Siff and the Preston house to a footpath leading from the said Siff house, thence over said footpath, in a southerly direction toward a grassy path, thence over said grassy path to the Cliffs and thence down the flight of steps leading to the South Beach, a right of way by foot for the purpose of access to that portion of the beach extending from said steps to the boundary of “Windy Gates” on the east thereof and not otherwise.

It is further understood and agreed between the parties hereto that the above conveyed tract of land and each and every part thereof shall be used solely for residential purposes and not otherwise; and that such limitation upon its use shall continue for a period of twenty-five years from the date hereof unless the Grantor in the meantime uses the remaining unconveyed portion of the aforesaid entire tract known as “Windy Gates”, [sic] or any part thereof, for other than residence purpose or shall sell same or any part thereof in conjunction with a right of access to the South Beach without imposing a similar residence restriction; in which event the residence restriction herein contained shall immediately cease and terminate. [Note 12] (emphasis supplied)

Plan 15557-C depicts Lot B. [Note 13]

As with Lot A, the easement in dispute with regards to Lot B, [Note 14] concerns the access over the grassy path and down the cliff to South Beach below.

On or about August 31, 1953, approximately two years after the final conveyance from the Windy Gates Tract, Evelyn Preston Baldwin, also known as Evelyn Preston, entered into an agreement (1953 Agreement) [Note 15] with owners of nine of the eleven parcels which she had previously conveyed. The introductory portion of the 1953 Agreement reads, in pertinent part, as follows:

…BALDWIN has heretofore conveyed to each of the aforesaid other parties…title to one or more parcels of land constituting nine (9) subdivisions of a larger tract, known as “Windy Gates” (registered in the name of Evelyn Preston as the owner in fee simple thereof…) located in Chilmark… together with certain rights of user of ways, for ingress and egress, and for access to the South Beach Atlantic Ocean, by which the property is bounded on the south side thereof, subject to certain reserved rights of user therein for BALDWIN herself and for her successors in title, and also subject to certain limitations upon the use of each of said subdivisions of land (for one family residence purposes only) for periods of twenty-five years in each case…

…[T]he one-family residence limitation upon each such subdivision of the larger tract, in conjunction with the respective owners rights of access to and enjoyment of the South Beach and Atlantic Ocean, were clearly understood and assented to by all the grantees above named, who recognized the advantages to be gained by each and every one of them by thus limiting the number of persons, thereby gaining access to and enjoyment of the aforesaid beach…. (emphasis supplied)

The purpose of the said Agreement is described in the following terms:

…[I]t seems wise to clarify the limitation [on additional dwelling houses] stated in the various deeds and agreements entered into between the parties hereto… and thereby to spell out more definitely and precisely the nature of such limitations and the reasons for them.

In substance, Preston and the individual owners agreed as follows:

• To limit the use of their parcels to a single family residence and to limit South Beach to non-commercial uses for themselves, their families, and their guests;
• To sell or rent their parcels subject to the above limitations;
• That Preston had the right to subdivide the remaining Windy Gates parcel, except that if she chose to do so, her right would be limited to a maximum of six lots with beach access rights subject to the above limitations;
• That their parcels could not be used for commercial purposes or for purposes other than for single family dwellings;
• That all rights granted to the lot owners in their respective deeds extended to their heirs and successors in title; and
• That all covenants were for the benefit of, and could only be enforced by, (1) the then-owners of the parcels encompassed by the respective agreements, (2) the then-owner of the remaining Windy Gates parcel, and (3) the then-owners of the six lots into which the remaining parcel may be divided in the future.

Philip Siff, the owner of Lot A, was a signatory to the 1953 Agreement while Thomas L. Stix and Regine K. Stix, the owners of Lot B, were not.

By Transfer Certificate of Title No. 1893, dated August 29, 1955, the Siff property, designated as Lot A, was conveyed to Marjorie M. Mayer. [Note 16] With this conveyance, Preston and the other subdivision owners entered into a second agreement (1955 Agreement) similar to the 1953 Agreement, which added to the list of named grantees “Marjorie Mayer of New York, New York, successor in title to Philip F. Siff….” [Note 17]

(4) In 1966, ownership of Lot A passed to one of the plaintiffs herein, Emilie J. Jacobi. [Note 18] Her Transfer Certificate of Title No. 2759 included the same description and encumbrances as did the certificates to Siff and Mayer, the prior owners of Lot A. [Note 19] Upon the death of Emilie Jacobi, Frederick A. Jacobi was appointed as executor of her estate on May 6, 2010. [Note 20]

(5) In or about 1985, Lot B was divided into two lots which were designated as Lots 20 and 21, respectively. [Note 21]

Title to Lot 20 passed to Thomas L. Stix, Jr. under the will of Regine Stix. [Note 22] In 1991, Thomas L. Stix, Jr. conveyed Lot 20 to himself and his then wife, Dorothy K. Stix, as tenants by the entirety. [Note 23] Following a metes and bounds description, their Transfer Certificate of Title recited as follows:

All as shown as Lot 20 on Sub-Division Plan 15557-Q, file with Certificate of Title No. 6776, in Book 35, Page 139, in the Dukes County Registry District of the Land Court.

Subject to and with the benefit of Easements and Restrictions as contained in Certificate of Title No. 1087, Book 6, Page 343, insofar as the same may now be in force and applicable.

Lot 20 was thereby made subject to the “Easements and Restrictions” appearing in Certificate of Title No. 1087 [Note 24] relating to Lot B. [Note 25] In 1993, Thomas L. Stix, Jr. and Dorothy K. Stix conveyed Lot 20 to the second of the plaintiffs in this action, Keith McNally. [Note 26] Keith McNally’s Transfer Certificate of Title No. 8704 contained a metes and bounds description together with the following language:

All as shown as Lot 20 on Sub-Division Plan No. 15557-Q, filed with Certificate of title No. 6776, Book 35, Page 139, in the Dukes County Registry District of the Land Court.

Subject to and with the benefit of Easements and Restrictions as contained in Certificate of Title No. 1087, [Note 27] Book 6, Page 343, insofar as same may now be in force and applicable.

Lot 21 was the subject of a deed dated September 9, 1985 to Barbara Stix Lipke (Stix Lipke) from Regine K. Stix. [Note 28] Thereafter, in 1987, Stix Lipke created the Barbara Stix Lipke Martha’s Vineyard Nominee Trust and conveyed Lot 21 to the Trust. [Note 29] The Transfer Certificate of Title standing in the name of the Trust, recited that Lot 21 was “[s]ubject to rights, agreements and rights of way as contained in [Transfer] Certificate of Title #1087, Book 6, Page 343.” [Note 30]

As previously observed, Transfer Certificate of Title No. 1087 conveyed title to Lot B from Preston to Thomas L. Stix and Regine K. Stix. It includes certain restrictions and reservations, together with a recitation of the easement “over a footpath… across the field between the house on land now of Siff and the Preston house to a footpath leading from the said Siff house, thence over said footpath, in a southerly direction toward a grassy path, thence over said grassy path to the Cliffs and thence down the flight of steps leading to the south Beach, a right of way by foot for the purpose of access to that portion of the beach extending from said steps to the boundary of “Windy Gates” on the east thereof and not otherwise.”

In 2007, Stix Lipke resigned as trustee to be succeeded by the plaintiffs Paul Lipke and Marian Lipke as trustees. [Note 31]

(6) The Windy Gates Property remained in Preston’s family, even after her passing, until 1994 when the Dukes County Probate Court approved the sale of the property to Helen V. Benham and her then husband, Richard Robinson. On March 21, 1994, Transfer Certificate of Title 8972 served to vest title to the Windy Gates Property in “Richard Robinson and Helen Benham. husband and wife, as tenants by the entirety….” [Note 32]

(7) Since that time, Helen V. Benham has remained the owner of the Windy Gates Property, which she now holds in a limited liability company known as Windy Gates LLC. [Note 33] According to Helen Benham, “I have owned this property in different capacities since 1994 when my then-husband Richard Robinson, and I first purchased it. I have resided at my property [Windy Gates property] from time to time during summer months since 1994.” [Note 34]

(8) Thus, title to the remaining 105 acre portion of the original Windy Gates Tract passed eventually to the defendant, Windy Gates LLC, by means of Transfer Certificate of Title No. 12322, where it presently resides. [Note 35]

(9) Both the 1953 Agreement and the 1955 Agreement were duly noted on the Memoranda of Encumbrances accompanying Transfer Certificate of Title No. 8972 vesting title in Richard Robinson and Helen V. Benham. Those Agreements were designated in the Memoranda of Encumbrances as Documents Numbered 3530 and Misc 362, respectively.

On May 5, 2004, the Windy Gates Property was conveyed to Helen V. Benham in her sole capacity, pursuant to Transfer Certificate of Title 11596. [Note 36] The accompanying Memoranda of Encumbrances referenced both the 1953 Agreement and 1955 Agreement as Document Numbers 3530 and Misc 362.

Lastly, when the Windy gates property was conveyed to the current owner, defendant Windy Gates LLC, pursuant to Transfer Certificate of Title No. 12322, [Note 37] the accompanying Memoranda of Encumbrances referenced the 1953 and 1955 Agreements as Document Numbers 3530 and Misc 362, as well.

(10) The defendant’s Transfer Certificate of Title No.12322 dated May 5, 2007 contains, as do Transfer Certificates 8972 and 11596, [Note 38] a uniquely drawn description consisting primarily of two discrete elements.

(11) First, although the defendant was acquiring an approximate 105 acre property, her relevant Transfer Certificates contain an extensive metes and bounds description of the full 271 acre Tract identical to that found in the Original Certificate of Title registered to Evelyn Preston in 1936. That description is accompanied by the following recitation:

All of said boundaries, except the water lien, are determined by the [Land] Court to be located upon plan numbered 15557-A, which is filed with the original Certificate of Title No. 784 [February 7, 1936] the same being compiled from a plan drawn by William S. Swift, Inc., Surveyors dated July 30, 1932, and additional data on file in the Land Registration Office, all as modified and approved by the Court.

Second, the following critical language appears after the 1936 metes and bounds description: Excluding therefrom the following lots:

1. Lot A as shown on plan 15557-B filed with Certificate No. 1077

2. Lot B as shown on plan 15557-C filed with Certificate No. 1087 [Note 39]

3. Lot C as shown on plan 15557-D filed with Certificate No. 1094

4. Lot D as shown on plan 15557-E filed with Certificate No. 1116

5. Lots 7 and 8 as shown on plan 15557-F filed with Certificate No. 1376

6. Lots 5 and 6 as shown on plan 15557-G filed with Certificate No. 1394

7. Lots 2 and 4 as shown on plan 15557-H filed with Certificate No. 1437

8. Lot 1A as shown on plan 15557-I filed with Certificate No. 1459

9. Lot 9 as shown on plan 15557-J filed with Certificate No. 1614

10. Lot 12 as shown on plan 15557-L field with Certificate No. 2958 and

11. Lot 19 as shown on plan 15557-P filed with Certificate No. 5672[.] [Note 40]

Consequently, the Transfer Certificate of Title to Windy Gates LLC defines the defendant’s parcel in the first instance, by (a) setting forth the full metes and bounds description of the original Windy Gates Tract, and (b) subtracting therefrom, seriatum, the eleven lots that Preston had conveyed over time to third parties. Every such lot is clearly delineated both by a Land Court Plan Number and Certificate of Title Number.

(11) From approximately 1944 until 2007, a set of wooden stairs descended the cliffs from the grassy path on what is now the Windy Gates’ Property [Note 41] to South Beach. The defendant, as current owner of the Windy Gates Property, the servient estate, typically arranged for the installation of the lower section of stairs each spring around Memorial Day and for the removal of such portion each autumn around Columbus Day. The plaintiffs and their predecessors-in-title, each an owner of a dominant estate, contributed to the cost of such periodic installation and removal. [Note 42]

(12) In 2007, heavy winter storms severely damaged the upper section of stairs, causing considerable erosion to the cliffs in the easement area. As a result, Helen V. Benham (Benham), the manager of Windy Gates LLC, [Note 43] citing safety concerns arising from the alleged instability of the cliffs, “did not [again] have new stairs constructed in the same location.” [Note 44]

(13) Rather, Benham had stairs installed along the cliffs at other locations on property which she owned either jointly or in her sole capacity. [Note 45]

(14) Plaintiffs assert that the defendant’s efforts to curtail the their claimed easement rights have largely served to precipitate this action. [Note 46] On August 26, 2009, this court granted a preliminary injunction prohibiting the defendant “from interfering with the plaintiffs’ surveyor who shall have reasonable access to [Windy Gates’ parcel] in order to make necessary measurements and locate such elevations, and natural and manmade features for the purposes of locating and designing” a safe set of stairs to the beach. [Note 47] The plaintiffs’ surveyor entered upon Windy Gates’ parcel in September 2009 and “prepared a plan for the installation of a safe and stable set of stairs to provide access from the top of the coastal bank down to South Beach.” [Note 48]

(15) The plaintiffs filed a Notice of Intent with the Chilmark Conservation Commission on May 18, 2010 to construct the stairway in accordance with their surveyor’s plan. [Note 49] The Commission approved the plan, issuing an Order of Conditions for the stairway project on June 16, 2010. [Note 50]

Summary Judgment Standard

Summary judgment is to be granted when “pleadings, depositions, answers to interrogatories, and responses to requests for admission … together with affidavits … show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that it deserves a judgment as a matter of law. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993). A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).

Mass R. Civ. P. 56 (c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon a judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved.

With respect to the primary issue whether the plaintiffs hold valid easements to access South Beach, the underlying facts are undisputed. As a consequence, this case is therefore ripe for summary judgment.

Discussion

1. Unregistered Interests

This court first considers the validity of the plaintiffs’ easements of access over the Windy Gates’ Property to South Beach, i.e. notwithstanding the fact that the easements are not expressly recited on the defendant’s Transfer Certificate of Title. This court is satisfied that Windy Gates’ Transfer Certificate of Title [Note 51] contained facts sufficient to prompt a reasonable purchaser to investigate other documents in the land registration system that would disclose the existence of the plaintiffs’ easements. [Note 52]

General Laws c. 185, § 46 provides in relevant part that the holder of a certificate of title takes “free from all encumbrances except those noted on the certificate.” General Laws c. 185, § 47 provides in relevant part that when land is registered, the judgment of registration (and subsequent certificate) “shall set forth … all particular … easements … to which the land or owner’s estate is subject.” These sections are strictly construed because they “provide a method for making title to land certain, indefeasible, and readily ascertainable.” Calci v. Reitano, 66 Mass. App. Ct. 245 , 247 (2006), quoting Feinzig v. Ficksman, 42 Mass. App. Ct. 113 , 116 (1997). See also Goldstein v. Beal, 317 Mass. 750 , 757 (1945) (“No easement can pass as appurtenant affecting registered land as the servient estate, which is not disclosed on its title as registered.”), quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927).

Notwithstanding this rule, an owner of a registered parcel might yet take property subject to an unregistered “easement under either of two recognized exceptions to the above stated rule.” See in this regard, Jackson v. Knott, 418 Mass. 704 , 711 (1994). In Jackson, the Court concluded in relevant part, as follows:

If an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest.

In the case at bar, Windy Gates would have discovered the existence of the relevant easements at the time of purchase by reasonably ascertaining the boundaries of the parcel it acquired. As noted supra, Windy Gates’ Transfer Certificate of Title of May 5, 2007 (Windy Gates Certificate) describes the registered acquisition by first providing a legal description of the original Windy Gates Tract [Note 53] and then effectively subtracting therefrom each of the eleven lots conveyed over time. In unambiguous terms, the Windy Gates Certificate lists the eleven individual parcels by their lot designations, [Note 54] plans, and certificates of title. [Note 55]

Given this highly unique descriptive methodology, this court is satisfied that a reasonably prudent purchaser would be prompted to examine and investigate all eleven conveyances including the referenced plans, and certificates of title with their metes and bounds descriptions, in order to ascertain with requisite precision, the nature and scope of this significant acquisition.

“If a plan is referred to in the certificate of title, the purchaser would be expected to review the plan.” Jackson, 418 Mass. at 711. Given the circumstances which pertain herein, this court is of the view that this rule expressed by the Jackson Court, applies with equal vigor to the eleven Certificates of Title referenced in the defendant’s own Transfer Certificate.

The title certificates and plans for Lots A and B were present in the land registration system and were explicitly listed on the defendant’s Certificate when it acquired the Windy Gate Property. It is well to recall, moreover, that the 1953 and 1955 Agreements which were signed by owners of Lot A and which set forth the easements in express terms, were clearly noted on the defendant’s Memoranda of Encumbrances appended to its Transfer Certificate of Title.

In sum, this court concludes that a reasonable purchaser would have conducted a Jackson investigation which would, in turn, have disclosed the existence of the plaintiffs’ easements. Had Windy Gates done so, it would have been hard pressed to ignore the obvious presence of plaintiffs’ easements in the Transfer Certificates to Lots A and B. [Note 56] Such conclusion leads inexorably to a determination that Windy Gates acquired its parcel subject to the plaintiffs’ easements. [Note 57]

2. Appurtenant Easements

The question next arises whether the relevant easements are appurtenant to the plaintiffs’ parcels or whether they were granted as personal, or in gross, to the original grantees. Windy Gates challenges only the easements granted to the original owner of Lot B, now held by McNally and Lipke. It does not challenge the easement granted to the original owner of Lot A, now held by Jacobi, based upon the effect of the Agreements. [Note 58] Regardless, this court concludes that all of the plaintiffs enjoy appurtenant easements, none of which was intended as personal to the original grantees.

“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.” Commercial Wharf E. Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). “An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land.” Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223 (1996), quoting Restatement of Property § 453 (1944). In contrast, an easement in gross “belongs to the owner of it independently of his ownership or possession of any specific land … [, and] may be described as being personal to the owner of it.” Restatement of Property, supra § 454, comment a. Whether an easement is appurtenant or in gross “ is determined by a fair interpretation of the instrument creating it, aided, if necessary, by the situation of the property and the surrounding circumstances. ” Leonard A. Jones, A Treatise on the Law of Easements § 2 (New York, Baker, Voorhis & Co. 1898):

[T]he real distinction between an easement in gross and an [appurtenant] easement is that in the one there is, and in the other there is not, a dominant tenement to which it is attached…. Easements in gross …. are attached to the person of the grantee rather than to his land. The burden of such easements rests upon the land of the grantor in favor of the person of the grantee. There is a servient tenement, but no dominant tenement.

Id. at § 33 (emphasis added). See also Baseball Pub. Co. v. Bruton, 302 Mass. 54 , 57 (1938) (finding that the plaintiff’s “exclusive right and privilege to maintain” a certain sign on the defendant’s wall was an easement in gross because it was in favor of the person of the plaintiff and did not benefit any parcel of his land, i.e. there was no dominant tenement).

“Absent any language to the contrary, an easement is presumed to be appurtenant to another estate, and not personal to the grantee.” 28 Mass. Practice § 8.3 (West 2004), citing Jones v. Stevens, 276 Mass. 318 , 323 (1931) (“An easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate.”); see also Schwartzman, supra; Willets v. Langhaar, 212 Mass. 573 , 575 (1912); Jones, Easements, § 47 (“An easement is never presumed to be in gross when it can fairly be construed to be appurtenant to some estate.”).

In the instant case, the Certificates of Title to Lots A and B each contain two grants in favor of the grantees and a reservation in favor of the grantor. [Note 59] Windy Gates attempts to rebut the presumption favoring an appurtenant easement by highlighting certain words of inheritance appearing in the reservation language that do not appear in the grant language. Specifically, Windy Gates places significance on the fact that the reservation is “ to the Grantor and to her successors in title in whole or part, ” while the grants recite that they are “ to the above said Grantee ” and “ to the aforesaid grantee.” The defendant contends that this difference indicates that the grantor intended that the reservation run with the land while the grants of easement are personal to the original grantees. This court disagrees.

Massachusetts law provides that “ [i]n a conveyance or reservation of real estate, the terms ‘ heirs, ’ ‘assigns’ or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee.” G.L. c. 183, § 13. [Note 60]

In those States in which the word “ heirs ” is not necessary to the granting of an estate in fee, an easement is not personal because such word is not used, if it appears from the deed that the right to the use of the easement was not to be limited to the lifetime of the party who was to enjoy it. Jones, Easements (1898), § 45.

Thus, it was unnecessary for the grantor to use words of inheritance so as to assure that the easements would run with the land.

Nothing in either Transfer Certificate suggests that the beach access rights conveyed to the original grantees, were to be limited to their lifetimes. Thus, the absence of words of inheritance in the granting clauses did not render the easements personal to the grantees. See also Kenney v. Marino, 350 Mass. 534 , 535 (1966) (noting that the absence of words of inheritance in the description of the easement was “ inconsequential ” to deciding whether the easement was personal).

Moreover, there are relevant circumstances that support the presumption that the plaintiffs’ easements are appurtenant to Lots A and B. Unlike traditional easements in gross, there are dominant tenements in the instant matter that clearly benefit from the easements at issue. Such easements benefit the plaintiffs’ parcels by providing access to South Beach over the defendant’s parcel. Moreover, “ as appurtenant to the particular estate[s], … [the easements] would always enhance [their] value. ” Phillips v. Rhodes, 48 Mass. 322 , ( 7 Met. 322 ), 324 (1843).

For its part, Windy Gates cites Rogel v. Collinson, 54 Mass. App. Ct. 304 (2002) in support of its argument as to the existence of easements in gross. In Rogel, the Court affirmed a decision of the trial court which declared an easement to pass over the defendant’s land on horseback, to be personal rather than appurtenant. As a consequence, “ the easement could not be assigned or transferred by the individual to any other entity.” Id. at 304. The Rogel plaintiff, a successor-in-title to the grantor, wished to operate commercial trail rides from the stable lot over the easement area. However, the case at bar is readily distinguishable from Rogel. For example, at the time of the easement’s creation in Rogel, the commercial horseback trail rides did not use the easement area, proceeding instead over a different lot. In the instant matter, the easements have always been located on the defendant’s parcel, and every conveyance of the plaintiffs’ parcels has included the easements in the relevant instrument.

Other circumstances support an interpretation that the plaintiffs’ beach access easements are appurtenant to their parcels. As noted above, the Transfer Title Certificates for Lots A and B created two easements in favor of the original grantees, one providing access to the State Highway and one providing access to South Beach. The State Highway easements were expressly conditioned on there being no additional dwelling houses built on the lots. Their existence was tethered expressly to the ongoing status of the lots, i.e., that they contain no additional dwellings. These circumstances are indicative of easements that are necessarily appurtenant to each lot. Inasmuch as the language creating the State Highway easements is nearly identical to the language creating the beach access easements, there would be no reasonable basis to treat one easement as appurtenant and the other as personal or in gross.

Furthermore, the Transfer Certificates to Lots A and B each included a residence restriction that would terminate if the grantor were to sell any portion of the larger Windy Gates parcel “in conjunction with a right of access to the South Beach without imposing a similar residence restriction ” on the new lot(s). [Note 61] Such a provision suggests that grantor contemplated a further subdivision of the Windy Gates Tract into residential lots together with appurtenant beach access rights. It is not unreasonable to conclude that the grantor intended nothing less than appurtenant beach access for Lots A and B, as well.

3. Extinguishment of the Easements

The last question before the Court asks whether the plaintiffs’ beach access easements have been extinguished, at least in part, inasmuch as the beach area existing at the time of the original grant is now alleged to be submerged due to significant erosion over time. In support of an extinguishment theory, Windy Gates argues that the easements enjoyed by the plaintiffs afforded them access to a fixed beach parcel limited to that which existed at the time the easements were created. Under this theory, the beach easement did not shift with the eroding shoreline. [Note 62] It is the view of this court, however, that the language creating such easement together with the attendant circumstances, support the notion of shifting beach easements which accord with changing natural conditions.

“There is well-settled authority for the proposition that littoral (shoreline) boundaries are not fixed, because natural processes of accretion or erosion change them, and that easements, stated to run with such a boundary, ordinarily will follow the naturally changing line. ” Bergh v. Hines, 44 Mass. App. Ct. 590 , 592 (1998) (emphasis added). Indeed, easement rights are not “affected by the gradual and imperceptible changes taking place on the sea-shore. Wherever [a] beach exists in front of or below the [upland], there the [easement] right … extends, and it matters not whether the sea has gained upon the land or has receded. The beach remains, and to that the easement is appurtenant.” Phillips, 48 Mass. (7 Met.) at 325. [Note 63] Consequently, our decisional law supports the view that shoreline easement areas are fully capable of evolving or changing as natural conditions dictate. [Note 64]

Moreover, there is nothing in either the language of the easements themselves or in the circumstances at hand that would support the theory of extinguishment. It is notable that the easements are described in relatively non-specific terms of the sort that can readily accommodate a changing seashore and cliff face. In this regard, the Transfer Certificates describe each easement as “a right of way by foot for the purpose of access to that portion of the beach extending from [the flight of steps leading to the South Beach] to the boundary of ‘Windy Gates’ on the east and not otherwise.” [Note 65] There are but two boundaries specified in the easement: the flight of stairs and the eastern boundary of the Windy Gates’ parcel. At that, only the eastern boundary is capable of being located on the ground, as the location of the flight of stairs is no more than approximate and has changed from year-to-year. See, in this regard, the uncontroverted Affidavit of Peter Nathan Lipke at paragraphs 3-4, as follows:

3. When the owner of the Windy Gates Property installed the stairs, their location often shifted to take advantage of the safest and most practicable location on the cliff. In general, the stairs were built either where the ‘grassy path’ reached the cliff or within 20 yards on either side of that point.

4. The ‘cliff’ above the beach was subject to erosion, to a greater or lesser extent, each year, typically in the winter, and/or during hurricanes or northeasters. Consequently, the workmen putting in the stairs often changed the location of the stairs on the cliff from year to year in response to the changes in the configuration of the cliff. I believe this was done for ease of construction and to place the stairs in the safest and most stable location on the cliff. I have seen the stairs installed directly in front of the grassy path and in locations up to about 20 yards on either side of the grassy path over the years since 1944. [Note 66]

Similarly, the circumstances attending the creation of the easement suggest that the cliff and beach easements areas may be of a shifting character. As explained above, the act of subdividing the original Windy Gates parcel demonstrated the grantor’s intent to convey lots for single-family residential use, with appurtenant access to the South Beach. In Bergh, “[t]he language of the easement[s] in question has not been changed from the time of the original grants, and is not ambiguous.” Bergh, 44 Mass. App. Ct. at 592. Here, the easements grant access in non-specific terms, to an area of South Beach between the flight of stairs and the eastern boundary of the Windy Gates property, i.e. wherever the beach may now exist as a result of the shifting shoreline. Accordingly, the fact that the beach as it existed in 1955 or earlier is now submerged is inconsequential and does not extinguish the plaintiffs’ easement rights to access South Beach as it currently exists.

4. Right to Construct Stairs

Having established that the easements held by the plaintiffs are valid, this court is of the view that they are entitled to construct and maintain a “safe and stable” stairway in the easement area. “This follows from the general principle that when an easement is created, every right necessary for its enjoyment is included by implication.” Guillet v. Livernois, 297 Mass. 337 , 340 (1937); see also Mt. Holyoke Realty Corp., 298 Mass. at 514. “The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use,” and such “right exists even more clearly where without improvement the way is impassable and useless.” Guillet, 297 Mass. at 340. “The owner of an easement bears the responsibility of keeping it in day-to-day repair…. The owner of the property burdened by the easement, on the other hand, may not use his land in a way that will interfere with the easement owner’s right of use.” Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363 , 365 (1979) (internal citations omitted).

In the instant case, the plaintiffs’ right to access South Beach is of little use without a stairway creating a passable route down the cliff. In order to appropriately utilize their easements then, the plaintiffs may construct and maintain a stairway in the easement area. The plaintiffs’ have produced a design for a “safe and stable stairway” satisfactory to the Chilmark Conservation Commission. See in this regard, Affidavit of Richard Barbini, [Note 67] a registered professional engineer in the Commonwealth, as follows:

Because of the risk of erosion, and in particular because of erosion associated with winter storms, it has been the practice in recent years for the Conservation Commission, when issuing Orders of Condition for stairways providing access to a beach, to require that the stairs be removed in the fall and that an engineer examine the state of the coastal bank in the spring and modify the design of the stairs, if necessary, to provide safe access…. [I]t is my professional opinion that a safe and stable set of stairs can be installed at the Windy Gates property…. Like other stairways along the coastal bank, it will have a foundation system based upon four inch by four inch posts inserted into the ground…. While the design of the stairway may have to be modified in succeeding years to take account of any intervening erosion, this is a common practice with similar stairways along the coastal bank.

In this connection, see also paragraph 12 of Defendant’s Counterclaims, as follows: The [Chilmark Conservation] Commission has issued Orders of Condition… which requires [sic] that the Stairs must be removed in the fall of each year and can only be installed the following spring after the Commission’s Conservation Officer has approved the design and location of the Stairs. [Note 68]

Conclusion

Based on the foregoing, this court finds as follows:

(1) The plaintiffs, and each of them, possess valid easements as a matter of law, to access and use South Beach over the grassy path on the defendant’s property and down the cliff.

(2) Though said easements are not expressly set forth on defendant’s Transfer Certificate of Title, they are nonetheless valid, as being appurtenant to each of the plaintiff’s parcels.

(3) The said easements have not been extinguished by virtue of changing natural conditions but can be located on the ground in accordance with the relatively non-specific provisions of the easements themselves.

(4) The plaintiffs are possessed of the right to construct and maintain a safe and stable stairway in the easement area, subject, however, to the requirement that all appropriate permitting and approvals of the Chilmark Conservation Commission or other necessary governmental entities, be first secured.

Accordingly, it is hereby

ORDERED that the plaintiffs’ Motion for Partial Summary Judgment be, and hereby is, ALLOWED to the extent specified herein. It is further

ORDERED that the defendant’s Cross-Motion for Partial Summary Judgment be, and hereby is, DENIED.

SO ORDERED.