HUGH C. TAYLOR, JEANNE S. TAYLOR and BRIAN M. HURLEY, TRUSTEES of the TAYLOR REALTY TRUST vs. THE MARTHA'S VINEYARD LAND BANK COMMISSION

Plaintiffs Hugh C. Taylor and Jeanne S. Taylor (together, the "Taylors") filed their unverified Complaint on June 9, 2010, seeking a declaratory judgment pursuant to G. L. c. 231A, § 1, that The Martha's Vineyard Land Bank Commission ("Defendant") does not have a right to use or make available to the public a certain way that crosses the Taylors' land for the purpose of accessing certain land owned by Defendant. Defendant filed its Answer on August 6, 2010, as well as an Amended Answer as to Paragraph 10 (of the Complaint) on August 31, 2010. A case management conference was held on September 16, 2010. Plaintiffs filed their Motion for Leave to File Amended Complaint and Substitute Parties-Plaintiff, their Motion for Preliminary Injunction, and their Motion for Summary Judgment on March 28, 2011, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix, including Affidavits of Brian M. Hurley (the "Hurley Affidavit") and Hugh C. Taylor (the "Taylor Affidavit"). [Note 1] Defendant filed its Opposition to Plaintiffs' Motion for Summary Judgment on May 13, 2011, together with its Appendix, Response to Plaintiffs' Statement of Material Facts and Additional Material Facts, and Mass. R. Civ. P. 56(f) Affidavit of James Lengyel (Defendant's Executive Director) ("Lengyel Affidavit 1"). On June 15, 2011, Plaintiffs filed their Reply Brief and Motion to Strike Portions of Lengyel Affidavit 1. On July 19, 2011, Defendant filed its Response to Plaintiffs' Reply Brief, its Opposition to Plaintiffs' Motion to Strike Portions of Affidavit of James Lengyel, and a second Affidavit of James Lengyel ("Lengyel Affidavit 2"), together with Exhibit A, the "Hubert Email" (as hereinafter defined), and Exhibit B (a Notice of Intent filed with the Aquinnah Conservation Commission). A hearing on Plaintiffs' Motion for Summary Judgment was held on August 8, 2011, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. [Note 2] [Note 3] See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c).

I find the following material facts are not in dispute:

Plaintiffs' Title.

1. Isaac and Gertrude Taylor registered a parcel of land (the "Taylor Parcel") labeled as Lots 1, 2, and 3 on Land Court Plan 35915A, Plan of Land in Gay Head, dated October 10, 1968 (the "1968 Plan"). The Original Certificate of Title, dated August 9, 1971, states: "So much of the land hereby registered as is included within the areas marked 'Way - 20.00 feet wide', and 'Way - 40.00 feet wide', approximately shown on the plan, is subject to the rights of all persons lawfully entitled thereto in and over the same."

2. The Taylors took title to a portion of the Taylor Parcel ("Plaintiff Property") pursuant to Transfer Certificate of Title 3806, dated July 19, 1974. [Note 4] The Taylors reside on Plaintiff Property, which is located on Lighthouse Road (also known as Lobsterville Road) in Aquinnah, Massachusetts. [Note 5] Plaintiff Property is described in Transfer Certificate of Title 3806 and is shown as Lot 4 on Land Court Plan 35915B, Subdivision Plan of Land in Gay Head, dated May 30, 1974 (the "1974 Plan"). Plaintiff Property would be in the southwesterly corner of Lot 1, as shown on the 1968 Plan.

3. By deed dated October 30, 1998, and recorded with the registered side of the Dukes County Registry of Deeds (the "Registry") at Book 189, Page 102, the Taylors conveyed Plaintiff Property to the Taylor Realty Trust, of which the Taylors, with others, are trustees and beneficiaries.

The Vanderhoop Parcel.

4. By deed dated December 30, 1976, and recorded with the Registry at Book 341, Page 314, [Note 6] John O. Vanderhoop, Pauline Vanderhoop, and Leonard F. Vanderhoop, Sr., conveyed a parcel of land (the "Vanderhoop Parcel") to David E. and Evelyn Vanderhoop (the "Vanderhoops"). The Vanderhoop Parcel is labeled "Edwin D. Vanderhoop" on the 1968 Plan. [Note 7]

5. By deed dated April 28, 1994 (the "Vanderhoop Deed"), and recorded with the Registry at Book 632, Page 752, the Vanderhoops conveyed the Vanderhoop Parcel to Defendant.

6. On November 20, 1953, Frances A. Ginnochio ("Ginnochio") registered property including lots abutting the Vanderhoop Parcel on the north and on the south. Such registration included two stipulations by Ginnochio and the Vanderhoops' predecessors, one of which stated their agreement that any decree registering the title in Lot 45 [Ginnochio Lot 1], marked B on the [Swift Plan], shall subject the fee therein to a right of way over the so-called Coast Guard Station Road as laid out on said plan to Lots 41 and 42 [the Vanderhoop Parcel] as laid out on said plan for the benefit of the present owners of said lots, their heirs or assigns. [Note 8]

Ginnochio Lot 1.

7. On November 20, 1953, Ginnochio registered two parcels (the "Ginnochio Parcels") shown as three lots on Sheet 1 and Sheet 2 of Land Court Plan 19215A, Plan of Land in Gay Head, dated September 18, 1950 and July 14, 1951 (the "1951 Plan"), labeled "1" ("Ginnochio Lot 1"), "2" ("Ginnochio Lot 2"), and "3" ("Ginnochio Lot 3"), and described in an Original Certificate of Title entered November 20, 1953 (the "Ginnochio Certificate"). [Note 9] The Ginnochio Certificate states: "There is appurtenant to [Ginnochio Lot 1 and Ginnochio Lot 2] the right to use the way forty (40) feet wide, approximately shown on said plan, in common with all other persons lawfully entitled thereto." The Ginnochio Certificate does not grant any rights in the Disputed Way (as hereinafter defined) to Ginnochio Lot 3. The Ginnochio Certificate does not subject Ginnochio Lot 1 or Ginnochio Lot 2 to any rights in favor of the Walker Parcel (as hereinafter defined).

8. The registration of the Ginnochio Parcels included an Agreement for Decree (the "Agreement for Decree") executed by Ginnochio and the United States, dated September 4, 1947, that reserved "to the United States of America a perpetual easement in a strip of land twenty (20) feet each side of the center line of existing ways as identified by dotted lines on [the Swift Plan], with full right of egress and ingress over said lands . . ." [Note 10] Such easement benefitted land (the "Coast Guard Parcel") conveyed by George S. Homer ("Homer") to the United States by deed dated August 10, 1894, and recorded in the Registry at Book 92, Page 319. [Note 11]

9. The United States constructed a Coast Guard station on the Coast Guard Parcel and operated it until approximately the 1950s. It was demolished in 1961. It is not clear from the summary judgment record who currently owns the Coast Guard Parcel. [Note 12]

10. The registration of the Ginnochio Parcels included two stipulations by Ginnochio and certain members of the Vanderhoop family, [Note 13] the first of which related to an easement benefitting the Vanderhoop Parcel, as discussed, supra. The second stipulation was joined by Julia Andrada, who owned the Vanderhoop Parcel from 1942 to 1962, and stated that:

It is . . . agreed . . . that the Petitioner [Ginnochio], her heirs or assigns, shall have a right of way over the way shown on the Petitioner's plan crossing Lots 223 and 48, [Note 14] said way beginning at the Massachusetts State Highway and branching off to the Coast Guard Station and to . . . Parcel D [Ginnochio Lot 3]. [Note 15]

11. As shown on the 1951 Plan, Ginnochio Lot 1 abuts the southerly side of the Vanderhoop Parcel.

12. Defendant asserts in its Opposition to Plaintiffs' Motion for Summary Judgment that it holds title to Ginnochio Lot 1, [Note 16] which Plaintiffs do not deny. However, Plaintiffs' Statement of Undisputed Material Facts states that Page 102 (as hereinafter defined) "outlines in green the approximate external boundary of the three parcels making up the North Head section" (emphasis added), a statement that Defendant admits; it appears that the North Head section should contain four parcels if it includes Ginnochio Lot 1. The record title of Ginnochio Lot 1 is not in the summary judgment record, but no party disputes such title. Such record title is not relevant to the outcome of this case.

Ginnochio Lot 2.

13. Defendant acquired title to Ginnochio Lot 2 by four deeds (the "Ginnochio Deeds"), three of which were from Mary H. Preston, Arnold Zack, and Janet Shands, and were dated December 31, 1992, and were recorded with the Registry at Book 44, Page 103. The fourth such deed to Defendant was from Joan Wallen, dated April 9, 1993, and was recorded with the Registry at Book 45, Page 289. As shown on the 1951 Plan, Ginnochio Lot 2 abuts the northerly side of the Vanderhoop Parcel.

14. The Ginnochio Certificate states: "There is appurtenant to [Ginnochio] [L]ot 2 . . . the right to use the way forty (40) feet wide, approximately shown on [the 1951] [P]lan, in common with all other persons lawfully entitled thereto."

Ginnochio Lot 3.

15. As shown on the 1951 Plan, Ginnochio Lot 3 abuts the Walker Parcel (as hereinafter defined) on the east. [Note 17]

16. The Ginnochio Certificate states: "There is appurtenant to [Ginnochio] [L]ot 3 the right to use the way twenty (20) feet wide leading to the State Highway, approximately on said plan, in common with all other persons lawfully entitled thereto." [Note 18]

The Walker Parcel.

17. Pursuant to Transfer Certificate of Title 2580, dated May 25, 1964 (the "Walker Certificate"), Isaac M. Taylor ("Isaac") and Getrude W. Taylor acquired title to a parcel of land (the "Walker Parcel") shown on Land Court Plan 31560A, dated February 9, 1962 (the "1962 Plan"). [Note 19] [Note 20] The Walker Parcel included two lots, labeled "1" ("Walker Lot 1") and "2" on Land Court Plan 31560A; as shown on the 1962 Plan, both such lots had frontage on Lighthouse Road. The Walker Parcel is described in the Walker Certificate and separates Ginnochio Lot 2 from Ginnochio Lot 3, as shown on Sheet 2 of the 1962 Plan, with Ginnochio Lot 2 abutting on the west and Ginnochio Lot 3 abutting on the east. [Note 21]

18. Sheet 1 of the 1962 Plan shows a portion of the Twenty-Foot Way (as hereinafter defined), labeled "WAY" and "(20' wide)" running southwesterly across Walker Lot 1, from Ginnochio Lot 3 to the Taylor Parcel. As shown on Sheet 1 of the 1962 Plan, the Twenty-Foot Way intersects on Walker Lot 1 with the Dirt Road (as hereinafter defined), labeled "WAY", which runs southeasterly across Walker Lot 1 to the Hubert Property (as hereinafter defined), labeled "James H. Hubert".

19. The Walker Certificate states: "So much of [Walker Lot 1] as is included within the Ways approximately shown on [the 1962] [P]lan is subject to the rights of all persons lawfully entitled thereto in and over the same."

20. By deed dated November 7, 1986, Isaac conveyed his interest in the Walker Parcel to the Isaac M. Taylor Revocable Trust (the "Taylor Revocable Trust"). Such deed states: "So much of [Walker Lot 1] as is included within the Ways approximately shown on [the 1962] [P]lan is subject to the rights of all persons lawfully entitled thereto in and over the same."

21. By deed dated December 15, 1986 (the "Diem Deed"), Thomas B. Bracken, as Trustee of the Taylor Revocable Trust, and Gertrude W. Taylor conveyed a portion of Walker Lot 1 (the "Diem Parcel") to Peter Diem ("Diem"). The Diem Deed did not convey the portion of Walker Lot 1 labeled "3" ("Walker Lot 3") on Land Court Plan 31560B. The Diem Parcel had over two-hundred fifty feet of frontage on Lighthouse Road.

22. Paragraph 6 of the Diem Deed ("Paragraph 6") provides that:

Grantee, his heirs, successors and assigns, shall make use of the existing dirt road . . . currently used by Grantor, Gertrude W. Taylor, and her family as access from Lobsterville [Lighthouse] Road over property now or formerly of James H. Hubert to the Premises [the Diem Parcel]. In the event that any person asserts adverse rights to said dirt road, or in any manner otherwise formally calls into question by written notice or physical action the Grantee's right to make use of said dirt road, or in the event that said dirt road in its then condition is deemed inadequate to support a subdivision of the Premises into not fewer than four (4) lots by the Planning Board . . . and any other board of the Town of Gay Head, the Commonwealth of Massachusetts and any other sovereignty having jurisdiction over the subdivision of such land, Grantee, his heirs, successors and assigns, first shall be obligated to use his reasonable best efforts to construct a means of access to the Premises with an entrance from the portion of the Premises fronting on Lobsterville Road. In the event that Grantee shall be unsuccessful in obtaining permission to construct such a means of access, which shall include obtaining approval from and otherwise complying with all laws, rules and regulations of all boards of the Town of Gay Head, the Commonwealth of Massachusetts and any other sovereignty having jurisdiction, Grantee shall have the right to travel over and install utilities under the 'Way (40.00 Wide)' and the 'Way (20.00 Wide)' shown on Land Court Plan No. 35915A [the 1968 Plan] and No. 35915B [the 1974 Plan]. Hugh C. Taylor and Jeanne S. Taylor, son and daughter-in-law of Grantor, Gertrude W. Taylor, and owners of a portion of the land over which such ways cross, join in this deed and become parties hereto only to confirm their obligation to be bound by the terms of the provisions of this paragraph. In no event hereunder shall Grantee be obligated to commence or defend a lawsuit before exercising his alternative rights under this paragraph. In the event that any person asserts such adverse rights, Grantor Gertrude W. Taylor, her heirs or successors, may, at their option, take such measures as they deem appropriate to clarify the right of Grantee to use the dirt road for access to the Premises. If the person asserting such rights formally withdraws such assertions or a final judgment is entered by a court having jurisdiction over the Premises establishing the rights of the Grantee to use the dirt road, Grantee shall thereafter not use the aforedescribed 'Way (40.00 Wide)' and the 'Way (20.00 Wide)'.

23. At the time of the Diem Deed (i.e., 1986), neither the Taylors, nor the Grantors of the Diem Deed, nor Diem owned parcels over which the Disputed Way ran, except for Plaintiff Property. [Note 22]

24. Diem subdivided the Diem Parcel as shown on Land Court Plan 31560D Plan of Land in Gay Head, Mass. Surveyed for Peter Diem, dated October 7, 1987, with a scale of fifty feet to one inch (the "Diem Plan"). [Note 23] From north to south, the Diem Plan shows four lots, numbered "5" ("Diem Lot 5"), "6" ("Diem Lot 6"), "7" ("Diem Lot 7"), and "8" ("Diem Lot 8"). The Diem Plan also shows Walker Lot 3, labeled "L.C. 31560 B Lot 3". [Note 24] [Note 25]

25. By deed dated December 14, 1989, and recorded with the Registry at Book 41, Page 189, Diem conveyed Diem Lot 5 to J. B. Nayduch ("Nayduch"), Trustee of Gay Head Bluffs Realty Trust (the "Gay Head Realty Trust").

26. By deed dated October 22, 1992, and recorded with the Registry at Book 45, Page 55, Nayduch, as Trustee of the Gay Head Realty Trust, conveyed Diem Lot 5 to Defendant.

27. Diem's deed to the Gay Head Realty Trust, the Gay Head Realty Trust's deed to Defendant, and Defendant's Transfer Certificate of Title all state:

Grantee shall have the perpetual right and easement appurtenant to said lot 5 to cross and recross by foot and by vehicles over the ways and easements on Lots 6, 7 and 8 as shown on Land Court Plan No. 31560-D. Said easement shall be for the benefit of the Grantee, his successors and assigns and shall run with said Lot 5. [Note 26]

28. By deed dated December 8, 1998, [Note 27] Amy L. Domini, Trustee of the Taylor Irrevocable Alimony and Family Trust, and Gertrude Taylor conveyed Diem Lot 8 to Donald G. Ogilvie and Fanny S. Ogilvie.

The Disputed Way.

29. A forty-foot wide right-of-way (the "Disputed Way") is shown on the 1951 Plan, the 1968 Plan, and the 1974 Plan. As shown on the 1968 Plan, the Disputed Way originates at Lobsterville Road (Lighthouse Road), is labeled "WAY - 40.00 wide", and crosses Plaintiff Property onto Ginnochio Lot 1, labeled "Frances A. Ginnochio L. C. No. 19215A Cert. No. 1756", and another parcel labeled "Georgianna Broacher" (the "Broacher Parcel"). The 1974 Plan shows the Disputed Way, labeled "WAY (40.00 Wide)" following the same course shown on the 1968 Plan, and also shows the boundaries of Plaintiff Property. As shown on the 1951 Plan, the Disputed Way continues northwesterly from Plaintiff Property's boundary with Ginnochio Lot 1 and the Broacher Parcel, across Ginnochio Lot 1, labeled "1", [Note 28] the Vanderhoop Parcel, labeled "Pauline Vanderhoop", and Ginnochio Lot 2, labeled "2", and terminates at a Coast Guard Station abutting Ginnochio Lot 2. [Note 29] The 1951 Plan does not show Lighthouse Road or the Disputed Way's origin at Lighthouse Road. [Note 30] As shown on the 1951 Plan, the Disputed Way, labeled "WAY 40 feet wide" runs southwesterly over Plaintiff Property, leaving Plaintiff Property before turning southeasterly and intersecting a public way labeled "STATE (Public) HIGHWAY". [Note 31] The 1951 Plan does not show any way or easement on the Broacher Parcel, Ginnochio Lot 1, Ginnochio Lot 2, or the Vanderhoop Parcel other than the Disputed Way and a footpath that also has its northerly terminus at the Coast Guard Station.

30. On October 4, 1988, the Taylors commenced an action in the Land Court (88 MISC 129925) against the Vanderhoops seeking a declaratory judgment that the Vanderhoops had no right to use the Disputed Way to cross Plaintiff Property. The Land Court found that the Vanderhoops "possess[ed] rights to pass and repass over the entire length of the [Disputed] Way for purposes of accessing their land," holding that the Vanderhoops had an easement by implication (the "Vanderhoop Easement") to enter upon and to pass and repass without obstruction, by foot or by vehicle, over and along the entire length of the forty (40) foot wide Way, such easement encompassing each and every right necessary or incidental to . . . enjoyment thereof, and that . . . their heirs and assigns are members of the class so entitled to use the Way. Taylor v. Vanderhoop, Land Court Misc. Case No. 129925, at 12-13 (July 19, 1989) (Cauchon, J.) (the "1989 Decision").

31. The 1989 Decision found:

The [Disputed] Way appears to have been created some time in the late nineteenth century for purposes of accessing the [Coast Guard] Station. . . . The evidence is somewhat vague as to the precise year of the [Disputed] Way's establishment, but I note that the 1887 U.S. Geodetic Survey Map on file with the Land Court shows what now appears to be South Road as the only road then located in [Aquinnah]. Id. at 5-6. [Note 32]

The 1989 Decision also found that the evidence demonstrated that the Disputed Way "ha[d] been the accepted means of access to and from the surrounding parcels since its establishment in the late 1800s." Id. at 10.

The Twenty-Foot Way.

32. On Plaintiff Property, and as shown on the 1951 Plan, the 1968 Plan, and the 1974 Plan, the Disputed Way intersects with a twenty-foot wide way (the "Twenty-Foot Way") that runs northeasterly, crosses Diem Lot 8 and Diem Lot 7, and continues onto Ginnochio Lot 3. [Note 33]

33. As shown on the Diem Plan, the Twenty-Foot Way runs from the easterly boundary of land designated "N/F of Julia M. Andrada" onto Diem Lot 8, continuing northeasterly along the westerly sides of Diem Lot 8 and Diem Lot 7, labeled "dirt road" and "20 ft. wide WAY (private)", before continuing onto Ginnochio Lot 3.

34. As shown on the Diem Plan, on Diem Lot 7, near the northeasterly corner of Diem Lot 6, the Twenty-Foot Way intersects with a way labeled "20 ft. wide WAY to lots 5 & 6". Such way runs northwesterly across a panhandle of Diem Lot 7 and the most northerly part of Diem Lot 6, to the northerly boundary of Diem Lot 6. At such boundary, such way connects to a dirt road (not the "Dirt Road") that continues northwesterly across Diem Lot 5, terminating at a point on the westerly side of Diem Lot 5, but not adjacent to any other lot. [Note 34] [Note 35]

The Dirt Road.

35. As shown on the Diem Plan, the "existing dirt road" referenced by the Diem Deed (the "Dirt Road") diverges from the Twenty-Foot Way at the northerly end of Diem Lot 8. From the Twenty-Foot Way, the Dirt Road, designated "dirt road" and "WAY", runs southeasterly along the easterly side of Diem Lot 8. The Dirt Road joins with and intersects an easement designated "20 ft. Easement" (the "Ogilvie Easement") that runs southwesterly from such intersection along the southeasterly boundary of Diem Lot 8 and connects to Lighthouse Road. The Dirt Road diverges from that intersection and continues southeasterly onto the northwesterly corner of land abutting Lighthouse Road and labeled "N/F James H. Hube[rt]" (the "Hubert Property"). [Note 36] The Diem Plan does not show the course of the Dirt Road after it passes onto the Hubert Property. [Note 37]

Defendant's actions and alleged rights.

36. Defendant owns the Vanderhoop Parcel, Ginnochio Lot 2, and Diem Lot 5, which comprise the Aquinnah Headlands Preserve ("Defendant Property"). It is unclear from the record whether Defendant Property includes Ginnochio Lot 1. [Note 38]

37. Defendant has prepared an Aquinnah Headlands Preserve Management Plan (the "Management Plan"), excerpts of which were submitted as Exhibit 22 to the Hurley Affidavit. An annotated aerial photograph and map on page 102 of the Management Plan ("Page 102") shows two existing trails that lead onto Defendant Property. One such trail is the Disputed Way; it begins at Lighthouse Road, proceeds northwesterly over Plaintiff Property, then over Ginnochio Lot 1, an abutting lot, and the Vanderhoop Parcel, before terminating on Ginnochio Lot 2. The other existing trail runs easterly from a point on the northerly side of Diem Lot 5 and leaves the southeast corner of Diem Lot 5.

38. The two existing trails shown on Page 102 do not connect to one another on land owned by Defendant.

39. The additional trails Defendant proposes to install would form a loop trail (the "Loop Trail") that accesses Ginnochio Lot 1, the Vanderhoop Parcel, Ginnochio Lot 2, and Diem Lot 5. [Note 39] The Loop Trail is shown on Page 102, partly as a dashed white line and partly as a dashed black and white line. [Note 40]

40. Defendant proposes to install and maintain additional signage and trails over the property shown in the Management Plan to allow for public recreation, including hiking, skiing, bicycling, horseback riding, dog walking, and hunting.

41. Defendant intends to encourage public use of the Aquinnah Headlands Preserve and its trails by providing the public with information, including by posting maps.

42. Defendant has started to clear brush for its new trails.

43. On February 17, 2010, Defendant received an email (the "Hubert Email") from James W. Hubert ("Hubert"), addressed to "Ms. Schaeffer." [Note 41] The Hubert Email states, in part:

. . . [A]s trustee of the 'Stone House' property, [Note 42] I am not inclined to consent to allowing any portion of the property to be utilized as a 'walking trail.' . . . [T]here is no way for anyone to determine . . . who is a 'visitor' and who is a trespasser. I am not personnally [sic] capable of (nor willing to) fulfill[ing] such roll [sic]. . . . My understanding is that the Land Bank is not willing to indemnify me, my mother, and/or any putative trustee/trustor, in the event some injury or calamity befalls a person utilizing the trail. I am unaware of any 'easement' or right of way that creates either a privilege or necessity in favor of the Land Bank over my objections. . . .

[M]y obligations as trustee require that I maintain the property on behalf of all beneficiaries. In that regard, the property is leased to a tenant. He is not interested in having random individuals disturbing his right to quiet enjoyment and as his landlord I can only say I agree.

I realize your 'public hearing' is tomorrow. I only was advised of this yesterday. It will not be possible for me to attend. But what I have expressed in this communication captures the essence of my position. Please advise the Advisory Board accordingly.

44. Defendant filed a Notice of Intent (the "NOI"), dated July 15, 2011, with the Aquinnah Conservation Commission (the "ConCom"), relative to construction of an access way (the "Proposed Access") to Diem Lot 5 from Lighthouse Road, such access way being an alternative to travel over the Hubert Property. As proposed in the NOI, the Proposed Access would run from Lighthouse Road across the Ogilvie Easement, before intersecting the Dirt Road where the Dirt Road leaves the westerly boundary of the Hubert Property, as shown on the Diem Plan.

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As an initial matter, Plaintiffs move to strike Lengyel Affidavit 1, alleging that it contains inadmissible statements of hearsay, relative to the Hubert Email, and of belief and conjecture, with respect to the ConCom. [Note 43] Furthermore, Plaintiffs argue that Lengyel has impermissibly offered expert opinion and conjecture about identifying wetland resource areas, constructing alternative access to Diem Lot 5, and the likelihood of obtaining permits from governmental authorities, even though he has not set forth any qualifications as an expert.

Certainly an element of speculation exists in Lengyel Affidavit 1. For example, Lengyel states, in paragraph 6, "Given the regulatory framework and practicalities of constructing an access route through a wetlands resource area, it is unlikely that reasonable efforts will result in [Defendant] obtaining the necessary permits to construct access from [Lighthouse] Road." However, this and other of Plaintiffs' objections to Lengyel Affidavit 1 have been addressed in Lengyel Affidavit 2. [Note 44] In connection with Lengyel Affidavit 2, Defendant provided the actual text of the Hubert Email, to which Lengyel Affidavit 1 only alluded. With Lengyel Affidavit 2, Defendant also provided an NOI, which is more definite than the mere assertion in Lengyel Affidavit 1 that Defendant "is in the process of determining whether such access is feasible which requires consultation with the conservation commission . . . and most likely the filing of [an NOI]." Taken together, Lengyel Affidavit 1 and Lengyel Affidavit 2 show at least a minimal basis in Lengyel's personal knowledge for consideration by this court.

In light of Lengyel Affidavit 2 and the foregoing, Lengyel Affidavit 1 will remain before this court for whatever it may add to Defendant's argument. Based on the foregoing, I find that Plaintiffs' Motion to Strike Portions of Lengyel Affidavit 1 is DENIED.

Jurisdiction and summary of the issues.

Defendant owns three contiguous parcels: from south to north, the Vanderhoop Parcel, Ginnochio Lot 2, and Diem Lot 5. [Note 45] It is undisputed that Defendant has easements to access both the Vanderhoop Parcel and Ginnochio Lot 2 by the Disputed Way. At issue in this case is Defendant's access to Diem Lot 5 by the Disputed Way, as well as the basis for and extent of that access. [Note 46] This court has jurisdiction pursuant to G.L. c. 185, § 1.

Plaintiffs argue that Defendant's use of the Disputed Way to access Diem Lot 5 would overburden or overload the Disputed Way, because Defendant has no right to use the Disputed Way to access Diem Lot 5. [Note 47] Plaintiffs contend that the Disputed Way has historically never provided access to Diem Lot 5 over either of the two potential routes, and that no rights relative to the Disputed Way were ever deeded to the owners of Diem Lot 5. Furthermore, Plaintiffs assert that, through the Diem Deed, only Diem personally, and not his assigns, was granted an easement to travel the Disputed Way to the Twenty-Foot Way, as an alternative to the Dirt Road. In addition, Plaintiffs argue that Defendant has not satisfied the conditions established by the Diem Deed that would allow it to use the Disputed Way as an alternative easement to the Dirt Road, if it has such an easement. Finally, Plaintiffs contend that any such alternative easement would only include the section of the Disputed Way that connects Lighthouse Road to the Twenty-Foot Way, not the section of the Disputed Way that continues onto Ginnochio Lot 2, in part because the parties to the Diem Deed had no reason to access Ginnochio Lot 2.

Defendant asserts a right to access Diem Lot 5 by the Disputed Way, over both routes, for three reasons. First, Defendant argues that the Disputed Way has historically provided access to Diem Lot 5, and that such access was a basis for the Vanderhoop Easement, which Defendant maintains benefits Diem Lot 5; therefore, Defendant asserts that its use of the Disputed Way to access Diem Lot 5 would not overload the Disputed Way. Second, Defendant contends that it has a right to use the Disputed Way to access Diem Lot 5 because it already has a right to use the Disputed Way to access property adjacent to Diem Lot 5 (i.e., Ginnochio Lot 2). Third, Defendant argues that it has a right to use the Disputed Way to access Diem Lot 5 pursuant to a conditional grant of such access in the Diem Deed.

A. Historical use of the Disputed Way and the 1989 Decision.

The parties disagree about whether the Disputed Way has historically provided access to Diem Lot 5. Plaintiffs define the Disputed Way separately from the Twenty-Foot Way, arguing that the Disputed Way has never provided access to Diem Lot 5, and that the holding in the 1989 Decision has nothing to do with the Twenty-Foot Way. Defendant argues that the Disputed Way and the Twenty-Foot Way were historically used and considered as one way, contending that the 1989 Decision establishes rights in both ways. [Note 48]

Plaintiffs assert on the basis of the findings in the 1989 Decision that the Disputed Way was created in the late 1800s for access to the Coast Guard Parcel. Plaintiffs also contend that nothing in the record title indicates that the Disputed Way ever extended to Diem Lot 5 by way of Ginnochio Lot 1 or Ginnochio Lot 2. To the extent that the 1989 Decision held that the Vanderhoops had an implied easement to use the Disputed Way, Plaintiffs maintain that such easement was not intended to benefit Diem Lot 5.

Defendant denies that the Disputed Way was created for access to the Coast Guard Station and that it terminates there. Defendant maintains that the Disputed Way continued (from Plaintiff Property) as the Twenty-Foot Way, which passes to the east of Diem Lot 5, and also connects to Ginnochio Lot 3. [Note 49] Defendant bases this assertion on several sources that it has not placed into evidence: a Coast Guard Guardsman's testimony, [Note 50] the U.S. Geological Survey Map of 1943, the Land Court Atlas for Dukes County, and affidavits and pleadings filed in Land Court registration cases 19215 and 31560. Moreover, Defendant argues that the Vanderhoop Easement benefits Diem Lot 5, insofar as the Taylor court found that the evidence demonstrated that the Disputed Way "ha[d] been the accepted means of access to and from the surrounding parcels since its establishment in the late 1800s." Taylor at 10. [Note 51]

The Guardsman's testimony, the U.S. Geological Survey Map, the registration cases, and the Land Court Atlas are not part of the summary judgment record. The evidence in the record creates two main problems for Defendant's arguments. First, the summary judgment record indicates that the Disputed Way was principally an access way to the Coast Guard Station, and that, as such, the Disputed Way did not continue to the Twenty-Foot Way. Second, the 1989 Decision, by its terms, does not establish rights in the Twenty-Foot Way.

Both the Swift Plan and the 1951 Plan show the Disputed Way terminating at the Coast Guard Station, without continuing from the Coast Guard Station onto Diem Lot 5. Both the Swift Plan and the 1951 Plan show the Twenty-Foot Way running to Ginnochio Lot 3, away from the Disputed Way, without ever extending onto Diem Lot 5. [Note 52] [Note 53] As shown on the Swift Plan, the Disputed Way is labeled as a way to the Coast Guard Station, but the Twenty-Foot Way is labeled as a way to Ginnochio Lot 3. These two ways are also described separately in the Ginnochio Certificate and stipulations in the Ginnochio registration. [Note 54] Moreover, the Taylor court found that the "forty (40) foot wide Way appears to have been created . . . for purposes of accessing the [Coast Guard] Station," Taylor at 5, a finding supported by the Agreement for Decree and its reference to a forty-foot easement.

On the basis of the foregoing, I find that there is no basis in historical usage for an easement over the Disputed Way in favor of Diem Lot 5.

The 1989 Decision does not provide an adequate basis either for an easement benefitting Diem Lot 5 or for an easement benefitting the Vanderhoop Parcel that includes a right to travel over the Twenty-Foot Way. The 1989 Decision "[found] and [ruled] on the evidence that the [Vanderhoops] . . . acquired an easement by implication or necessity to pass and repass . . . for purposes of access to and egress from their property." See id. at 6-7 (emphasis added). The 1989 Decision bases the Vanderhoop Easement on a rationale that does not apply to the Twenty-Foot Way, because the Twenty-Foot Way is not necessary to reach the Vanderhoop Parcel from a public way. [Note 55] The mention in the 1989 Decision of "surrounding parcels" is most reasonably understood to refer to parcels surrounding the Disputed Way, not those surrounding the Vanderhoop Parcel or the Twenty-Foot Way. [Note 56] The 1989 Decision makes a "reasonable inference" that at the time of the Ginnochio registration "the parties deemed the way to be the access route to their properties." See Taylor at 10 (emphasis added). In fact, the 1989 Decision references the Twenty- Foot Way only once, when quoting a provision from the Taylors' original Certificate of Title, a provision it immediately applies to the Disputed Way only. See Taylor at 3. [Note 57] [Note 58]

The 1989 Decision speaks for itself, where it finds, see Taylor at 12, that Isaac and Gertrude Taylor's Original Certificate of Title's "reference to the [Disputed] Way, and to the rights contained therein, . . . further substantiate an acknowledgment on the part of the [Taylors'] predecessors in title that the Vanderhoops . . . possess rights to pass over the entire length of the [Disputed] Way for purposes of accessing their land." [Note 59] The 1989 Decision also speaks for itself, where it rules, see Taylor at 12-13, that

the . . . Vanderhoops have acquired a right of way by implication to enter upon and to pass and repass without obstruction, by foot or by vehicle, over and along the entire length [Note 60] of the forty (40) foot wide Way, such easement encompassing each and every right necessary to the [Vanderhoops'] enjoyment thereof, and that the Vanderhoops, their heirs and assigns are members of the class so entitled to use the Way. [Note 61]

Based on the foregoing, I find that there is no basis for Defendant's argument that the Vanderhoop Easement allows travel to Diem Lot 5.

B. Rights to access Diem Lot 5 based on other rights to use the Disputed Way.

Plaintiffs argue that any right Defendant has to use the Disputed Way for access to Diem Lot 5 must come from the Diem Deed, since there is no basis for such a right in historical usage, and since the Ginnochio Certificate did not grant such a right, even though it did grant rights relative to other properties. Defendant, however, argues that it has a right to use the Disputed Way to access Diem Lot 5 based on its right to use the Disputed Way to access its other properties, such as the Vanderhoop Parcel and Ginnochio Lot 2, which abuts Diem Lot 5.

Defendant argues that use of the Disputed Way to reach Diem Lot 5 would not overload the existing easements in favor of its other properties, because (1) the easement would not be used to open otherwise inaccessible property, and (2) "the Loop Trail's presence on Diem Lot 5 is integral to and merged with [Defendant's] use of the dominant estate and its use of the [Disputed Way]." [Note 62] Defendant concedes that case law does not make any explicit distinction based on those two factors, but argues that such a distinction is warranted. Furthermore, Defendant argues that it is "nonsensical" to require a landowner to leave one property by one easement and access an adjacent property by another easement. Defendant asserts that this would take jurisprudence on overburdening far beyond its current application.

It is the established rule in Massachusetts that "[a] right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant." Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-79 (1965). Defendant invites this court to delineate an exception to this rule, and bases its argument on distinguishing three cases: Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 (2005); McLaughlin v. Board of Selectmen of Amherst, 38 Mass. App. Ct. 162 (1995); and Murphy. [Note 63] Defendant attempts to distinguish the case at bar from Southwick and McLaughlin because in each of those cases the challenged easement would have provided vehicular access to a new subdivision unconnected to the dominant estate and with no other means of access, whereas the Disputed Way would not open up otherwise inaccessible property. Defendant would distinguish Murphy, insofar as the challenged easement would have provided new access to a use unrelated to the use of the dominant estate, but Diem Lot 5 would be used for the same purposes as Ginnochio Lot 2 and the Vanderhoop Parcel.

Contrary to Defendant's assertions, a fair reading of these cases does not justify distinguishing the case at bar, inasmuch as these cases' holdings are clearly based on the established rule, and not based on unique facts. [Note 64] The Southwick court stated that the rule in Murphy "governed [its case] in all material respects" and offered McLaughlin as "a recent application of the rule." 65 Mass. App. Ct. 315 , 318 (2005). [Note 65] [Note 66]

Therefore, I find that Defendant's use of the Disputed Way for the benefit of Diem Lot 5 would overload any easement Defendant has to use the Disputed Way for the benefit of Ginnochio Lot 1, the Vanderhoop Parcel, or Ginnochio Lot 2.

C. Rights to use the Disputed Way based on the Diem Deed.

The parties agree that the Diem Deed provides that Diem Lot 5 may be accessed by the Twenty-Foot Way as an alternative to the Dirt Road, if certain conditions are met. Defendant contends that such alternative access includes a right to travel over the Disputed Way, if the same conditions are met. Plaintiffs maintain that such alternative access only allows travel over that portion of the Disputed Way that connects Lighthouse Road to the Twenty-Foot Way. Plaintiffs argue that the Diem Deed only made such alternative access available to Diem himself, and not his assigns. Moreover, Plaintiffs argue that Defendant has not fulfilled the conditions for alternative access by the Twenty-Foot Way or travel over the Disputed Way, even if such access were available to Defendant by the terms of the Diem Deed. Defendant maintains that such access is available to it and that it has satisfied the conditions in the Diem Deed.

1. Personal rights.

Paragraph 6 imposes the requirements for alternative access on "Grantee, his heirs, successors and assigns". In contrast, the Diem Deed grants the conditional "right to travel over and install utilities under" the Twenty-Foot Way [Note 67] simply to "Grantee". Plaintiffs argue that this is an intentional omission, intending to limit the alternative access, and should be interpreted according to the maxim expressio unius est exclusio alterius. [Note 68] Defendant argues that the language of the Diem Deed makes it clear that the parties intended to prevent the parcel from becoming inaccessible and that the parties would have established an easement in gross if they had been concerned primarily with Diem's rights.

Taken as a whole, the Diem Deed implies rights for Diem's heirs, successors, and assigns, and Paragraph 6 uses the term "Grantee" in a way that is most reasonably understood to include them. [Note 69] Furthermore, the terms "Grantee" and "Grantee, his heirs, successors and assigns" appear to be used interchangeably throughout Paragraph 6. As one example, unless successors are included in Grantee's rights, Paragraph 6 makes no provision either for a party to challenge successors' rights to use the Dirt Road, or for Grantor to clarify such rights. [Note 70] Plaintiffs therefore rely too much on the maxim expressio unius est exclusio alterius, "which is at most a fallible aid to decision" that should be "abandoned" when it leads to an "awkward" result. See Michael Sellers's Case, 452 Mass. 804 , 813 (2008) (quoting Mailhot v. Travelers Ins. Co., 375 Mass. 342 , 348 (1978)). [Note 71]

Grantor had no obvious reason to prefer that Diem resort to using the Twenty-Foot Way than that his successors use it. As Defendant points out, if Grantor truly intended to limit use of the Twenty-Foot Way to Diem, it would have been easy to include a provision to that effect; in other words, Plaintiffs' reading of the Diem Deed would exclude Diem's successors in an unusual and subtle way, without any clear benefit to the parties to the Diem Deed.

Based on the foregoing, I find that the language of the Diem Deed did not limit an alternative easement over the Twenty-Foot Way to Diem personally.

2. Use of the Disputed Way.

Since Defendant may have or may obtain a right to use some portion of the Disputed Way pursuant to Paragraph 6, this court must determine the extent of that right. Plaintiffs argue that the alternative access to Diem Lot 5 available pursuant to Paragraph 6 allows access over only that part of the Disputed Way from Lighthouse Road to the intersection of the Disputed Way with the Twenty-Foot Way, from which point the alternative access continues over the Twenty-Foot Way. Defendant maintains that the plain language of Paragraph 6 grants a right relative to the Disputed Way as it appears on the 1968 Plan and the 1974 Plan, which includes the portion of the Disputed Way that proceeds northwesterly across Plaintiff Property from the Disputed Way's intersection with the Twenty-Foot Way onto Ginnochio Lot 1 and the Broacher Parcel, the Vanderhoop Parcel, and Ginnochio Lot 2.

Defendant only has rights to access Diem Lot 5 to the extent that Diem received such rights in the Diem Deed and conveyed them. Paragraph 6 specifically references the rights granted by that paragraph as for purposes of "access from [Lighthouse] Road . . . to the [Diem Parcel]." Aside from Paragraph 6, the Diem Deed does not grant Diem any specific access rights, stating only in general terms that "[s]o much of [the Diem Parcel] as is included in the ways approximately shown on [the 1962 Plan] is subject to the rights of all persons lawfully entitled thereto in and over the same." The ways shown on the 1962 Plan do not include the Disputed Way or any way passing from Diem Lot 5 to Ginnochio Lot 2. Likewise, the easement conveyed by Diem to Nayduch, and by Nayduch to Defendant, refers only to "ways and easements on Lots 6, 7 and 8 as shown on [the Diem Plan]," which do not include the Disputed Way. Therefore, any deeded right Defendant has must be based on the references in Paragraph 6 to a "right to travel over and install utilities under the 'Way (40.00 Wide)' and the 'Way (20.00 Wide)' shown on [the 1968 Plan] and [the 1974 Plan].'"

Defendant relies on Goldstein v. Beal, 317 Mass. 750 , 755 (1945), for the proposition that "[a] plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." However, Goldstein immediately thereafter reaffirms that "[t]he purpose and effect of a reference to a plan in a deed, is a question of the intention of the parties." Id. (quoting Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350 , 354 (1926) (emphasis added)). Moreover, "'[i]n determining [such] intent, the entire situation at the time the deeds were given must be considered. For example, whether the ways in question . . . were then actually used as appurtenant to the granted premises; or whether they were remote or in close proximity.'" Goldstein at 755 (quoting Prentiss v. Gloucester, 236 Mass. 36 , 52-53 (1920) (emphasis added)).

Consideration of the entire situation at the time of the Diem Deed indicates that the parties could not have reasonably intended for the alternative access to include the Disputed Way, except as it connected to the Twenty-Foot Way. The purpose of allowing Defendant to use the Disputed Way pursuant to Paragraph 6 was to provide an alternative access to Diem Lot 5. Neither of the parties to the Diem Deed owned Ginnochio Lot 1, the Vanderhoop Parcel, or Ginnochio Lot 2, all of which must be crossed to reach Diem Lot 5 by the Disputed Way without turning onto the Twenty-Foot Way. Therefore, the Diem Deed could not convey any rights to travel over the Disputed Way on those parcels. Likewise, Diem did not have any known need or right to access those parcels. Moreover, Paragraph 6 states that the Taylor family accessed Diem Lot 5 by way of the Dirt Road at the time of the Diem Deed, implying that the parties to the Diem Deed presumed that the Dirt Road was the proper access way.

Furthermore, the intentions of the parties to the Diem Deed are best served without a grant of access to the Disputed Way beyond its intersection with the Twenty-Foot Way. As stated in Paragraph 6, the Taylors joined in the Diem Deed "only to confirm their obligation to be bound by the provisions of [Paragraph 6]." The Taylor Affidavit asserts that "[o]ne purpose of Paragraph 6 . . . was to minimize the possibility that Diem or his buyers would use the sellers' land or [Plaintiff Property] for access to his parcel." Such assertion is credible, insofar as Paragraph 6 required the grantee to attempt access by two other ways first, one of which was not yet constructed. Since the grantor intended to prevent travel over Plaintiff Property altogether, it is in keeping with that intention to restrict whatever such travel the terms of Paragraph 6 may allow. As for Diem, the Disputed Way and the Twenty-Foot Way together provide a relatively direct course northeasterly from Lighthouse Road onto the Walker Parcel, toward Diem Lot 5. In contrast, access to Diem Lot 5 over the entire Disputed Way follows a circuitous, inconvenient route that would likely be undesirable, especially for the installation of utilities.

In addition, the principles already discussed make clear that any easement that Defendant might have pursuant to Paragraph 6 is for the benefit of the Diem Parcel, and not for the benefit of other properties owned by Defendant. As discussed, supra, "[a] right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to . . . that to which the easement is appurtenant." Murphy at 678-79. Therefore, any such easement pursuant to Paragraph 6 would be overloaded to the extent that it was used to access Ginnochio Lot 1, the Vanderhoop Parcel, or Ginnochio Lot 2.

Based on the foregoing, I find that the conditional "right to travel over and install utilities under the 'Way (40.00 Wide)' and the 'Way (20.00 Wide)' shown on Land Court Plan No. 35915A and No. 35915B" pursuant to Paragraph 6 of the Diem Deed (the "Conditional Right") includes a right to travel over and install utilities under the Disputed Way from Lighthouse Road up to the point of its intersection with the Twenty-Foot Way, as well as a right to travel over and install utilities under the Twenty-Foot Way. I further find that the Conditional Right does not include a right to travel over and install utilities under the Disputed Way as it continues northwesterly beyond its intersection with the Twenty-Foot Way. [Note 72]

3. Condition 1.

With respect to the Conditional Right, Paragraph 6 states two requirements that must both be met before the Twenty-Foot Way may be used as an alternative to the Dirt Road. First, Paragraph 6 requires that

[a]ny person [assert] adverse rights to [the Dirt Road], or in any manner otherwise formally [call] into question by written notice or physical action the Grantee's right to make use of said dirt road, or . . . that [the Dirt Road] in its then condition [be] deemed inadequate to support a subdivision of the Premises into not fewer than four (4) lots by the Planning Board. [Note 73]

("Condition 1").

Defendant contends that it satisfied Condition 1 when it received written notice, in the form of the Hubert Email, that Hubert objects to Defendant's use of the Dirt Road, which crosses the Hubert Property, of which Hubert asserts he is trustee. In addition to the Hubert Email, Defendant presents Lengyel Affidavit 1 and Lengyel Affidavit 2.

Aside from Plaintiffs' Motion to Strike Portions of Lengyel Affidavit 1, discussed, supra, Plaintiffs have not seriously challenged Defendant's contention that the Hubert Email satisfies Condition 1. Plaintiffs' memorandum in support of summary judgment, which predates Lengyel Affidavit 1, is content to assume "arguendo" that Condition 1 has been satisfied and challenges the Conditional Right on other grounds.

Interpreted broadly, the Hubert Email is clearly a "written notice" from "any person" that either "calls into question" Defendant's right to use the Dirt Road or asserts adverse rights to the Dirt Road. [Note 74] On that basis, and considering that Plaintiffs have not challenged this interpretation, I find that the Hubert Email satisfies Condition 1.

4. Condition 2.

In addition to Condition 1, Paragraph 6 requires that

Grantee, his heirs, successors and assigns, first shall be obligated to use his reasonable best efforts to construct a means of access to the premises with an entrance from the portion of the Premises fronting on Lobsterville Road. In the event that Grantee shall be unsuccessful in obtaining permission to construct such a means of access, which shall include obtaining approval from and otherwise complying with all laws, rules and regulations of all boards of the Town of Gay Head, the Commonwealth of Massachusetts and any other sovereignty having jurisdiction, Grantee shall have the right to travel over and install utilities . . .

("Condition 2").

Plaintiffs argue that Defendant has not satisfied Condition 2. Defendant contends that it satisfied Condition 2 because it has submitted an NOI for the Proposed Access to the ConCom, as well as performed preliminary surveying.

With regard to Condition 2, Defendant presents Lengyel Affidavit 2, which states:

The NOI is attached as Exhibit B to Lengyel Affidavit 2, and is dated July 15, 2011. Included with the eight-page NOI (and in the record) was a Project Description, a MESA (Massachusetts Endangered Species Act) Project Review Checklist, and several deeds, photographs, and diagrams related to the Proposed Access.

Plaintiffs argue in their Memorandum of Law in Support of Summary Judgment and in their Reply Brief, both of which predate Lengyel Affidavit 2 and the NOI, that Defendant is unable to produce evidence that it used "reasonable best efforts" to construct the Proposed Access. Plaintiffs further contend that Defendant is unable to show that it was "unsuccessful in obtaining permission to construct such a means of access." In support of their arguments, Plaintiffs present the Taylor Affidavit, which states in Paragraph 4: "I am not aware of any action taken by [Defendant], J. B. Nayduch or . . . Diem to construct a means of access to their land with an entrance from the portion of the premises conveyed by the Diem Deed fronting on [Lighthouse] Road." [Note 75]

The core requirement of Condition 2 is "the event that Defendant shall be unsuccessful in obtaining permission to construct" the Proposed Access. The language directly connects such event with Defendant's conditional right to use the Twenty-Foot Way. Although Condition 2 also establishes Defendant's obligation "to use [its] reasonable best efforts to construct a means of access . . . with an entrance from . . . [Lighthouse] Road", which would include efforts to obtain necessary permissions, a right to use the Twenty-Foot Way does not explicitly follow from use of reasonable best efforts. Therefore, to the extent that permissions are required, Condition 2 cannot be satisfied until denials are issued.

As for the obligation of using reasonable best efforts, Defendant submitted the NOI pursuant to G.L. c. 131, § 40, which provides that

[n]o person shall remove, fill, dredge or alter any bank, riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on any estuary, creek, river, stream, pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding, . . . , without filing written notice of his intention to so remove, fill, dredge or alter, including such plans as may be necessary to describe such proposed activity and its effect on the environment and without receiving and complying with an order of conditions and provided all appeal periods have elapsed.

(emphasis added). To use reasonable best efforts, Defendant clearly must submit the NOI, because the NOI is a legal requirement to proceed with construction. However, as the statute indicates, Defendant's actions are otherwise significantly restricted until the ConCom acts on the NOI and any appeal period elapses. It is not clear that "reasonable best efforts" would entail additional action while the NOI is pending. Insofar as Lengyel Affidavit 2 expresses plausible doubt that the ConCom will approve the NOI, Defendant does not cease to use reasonable best efforts merely by waiting until the ConCom acts to expend further resources. Therefore, I find that, at least up to the point of filing the NOI, Defendant has used its reasonable best efforts to construct a means of access from Lighthouse Road, within the meaning of Paragraph 6. However, the summary judgment record does not indicate whether the ConCom has acted on the NOI, or what action Defendant may have taken relative to the NOI after filing it. [Note 76] Therefore, I find that this court is unable to determine on this summary judgment record whether or not Condition 2 has been satisfied, inasmuch as the summary judgment record does not contain evidence of the ConCom's action on the NOI. [Note 77]

As a result of the foregoing, Plaintiffs' Motion for Summary Judgment is ALLOWED IN PART, inasmuch as Defendant does not have a right to use the Disputed Way to benefit Diem Lot 5. Plaintiffs' Motion for Summary Judgment is DENIED IN PART, inasmuch as there is not enough evidence in the summary judgment record to rule on whether Defendant has rights to travel over and install utilities under (a) that portion of the Disputed Way running from Lighthouse Road to the intersection of the Disputed Way and the Twenty-Foot Way, and (b) the Twenty-Foot Way, for the benefit of Diem Lot 5. [Note 78]

The parties shall attend a status conference on Thursday, November 15, 2012 at 11:00 A.M., to discuss the status of the NOI and how the parties intend to proceed on the basis of the foregoing.

Judgment shall enter on the resolution of all the issues in this case.