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

Introduction

This Order follows upon and hereby incorporates the Order of August 2, 2012 by which this court allowed in part and denied in part plaintiff’s Motion for Summary Judgment (Motion). This court has, as well, promulgated an Order of December 17, 2012 [Note 1] on defendants’ Motion to clarify aspects of the Order of August 2, 2012 (collectively,“Orders”). The latter concluded with a notation that a pre-trial conference would be scheduled so as to “further define those [remaining] issues to be taken up at trial. However, the pre-trial conference, while scheduled, did not take place, at the request of the parties. Moreover, at oral argument on the defendants’ Motion for Clarification, counsel advised the court that they had stipulated to the dismissal of Count IV sounding in Trespass.

The defendants now request that this court reconsider its Order of August 2, 2012, arguing that the court failed to address one of defendants’ arguments, i.e. an argument raised in connection with the plaintiff’s claim that the defendants may not access the portion of the jetty lying on the plaintiff’s property between the mean high and mean low water marks (tidelands / tidal flats). This court will Allow defendants’ Motion for Reconsideration to the extent set forth herein, and will in that context, address the defendants’ arguments infra.

Discussion

The defendants’ assert that the plaintiff is equitably estopped to deny defendants use of that portion of the jetty lying between the mean high and mean low water for purposes of fishing, fowling, and navigation. They basis for this claim rests primarily upon a letter that the plaintiff submitted to one Sandy Dawson, a real estate broker marketing the property at 62 Shore Drive. The broker, in turn, provided a copy of the letter to the defendants who had recently executed a purchase and sale agreement in connection with 62 Shore Drive, directly abutting the property of the plaintiff at 64 Shore Drive. Defendants claim to have relied upon this letter to their detriment; as a consequence, they argue that the plaintiff is estopped from denying them the use of the jetty. For her part, the plaintiff responds that the defendants have no right to use the portion of the jetty built upon her property except for the right of lateral passage under the Public Trust Doctrine. [Note 2] For the reasons set forth below, this court concurs with the plaintiff.

I. The Interest Claimed by the Defendants in the Plaintiff’s Property.

Defendants argue that the plaintiff may not preclude them from using that portion of the jetty located in the intertidal portion of plaintiff’s property to fish, fowl, and navigate. [Note 3] Since “[i]f a possessory interest in real property has any meaning at all it must include the general right to exclude others,” [Note 4] plaintiff, to the extent she is owner of the jetty, may, as a general matter, exclude all others from her property. The right to maintain an action against those who intrude on private property is a corollary of the right to exclude. [Note 5] However, when others hold a valid interest in the property, the right to exclude is limited. [Note 6] By contending that plaintiff is estopped from denying them use of her land, the defendants argue, in essence, that they possess an interest or right in the plaintiff’s property and that, as a consequence, the plaintiff may not maintain an action to exclude them from said property.

The right defendants claim here is defined essentially in negative terms. They assert no explicit right other than to claim that the plaintiff is estopped from preventing them from going upon her property in order to fish, fowl, and navigate. Defendants do not give name, in positive terms, to the right or interest they purport to hold. [Note 7] This court will, therefore, look to the substance of that which the defendants are seeking so as to label the interest claimed by them.

Defendants contend that their estoppel claim is premised “upon the Plaintiff’s inability to prevent them from acting as though they retained [rights under the public trust doctrine].” [Note 8] Defendants do not claim to possess an ownership interest in plaintiff’s property; therefore, any purported interest or right must be nonpossessory in character. A nonpossessory interest permitting one to use the property of another, is designated as a “servitude.” [Note 9] Servitudes fall into several categories: [Note 10] easements, [Note 11] licenses, [Note 12] and profits. [Note 13] “An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.” [Note 14] A license differs from an easement in that it does not create an interest in land, [Note 15] and is freely revocable by the grantor at any time. [Note 16] A profit, or profit a prendre, is a right to take part of the land or things produced by or on the land. [Note 17] Defendants are not claiming a profit inasmuch as they are not seeking a part of plaintiff’s land, or things produced by or on the land. Consequently, the concepts of easement and license remain.

Further examination indicates that the defendants assert that any such right is not attached to their property but is, rather, personal to them. [Note 18] A personally held right to use another’s property may be classified as either an easement-in-gross, [Note 19] or a license. [Note 20] As a license is freely revocable at any time, any argument that they hold a license will not serve to advance the defendants’ position. In fact, the defendants’ claim of estoppel suggests that they consider any such rights to be irrevocable. As set forth supra, the defendants’ definition of their claimed right, as a “personal right to use a property,” [Note 21] is most consistent with the definition of an easement-in-gross, i.e. “a personal interest in or right to use land of another.” [Note 22] Having affixed a label to the defendants’ claimed interest, this court can more readily address the merits of the defendants’ argument.

II. Acquisition of Property Rights By Means of Equitable Estoppel

The creation of property interests are subject to the Statute of Frauds under which a conveyance of a real property interest, if it is to be enforceable, must be in writing and signed by the person to be charged. [Note 23] G.L. c. 259 § 1. As there is nothing in the court record to indicate the existence of such a writing, the defendants’ claim to an interest in or right to use plaintiff’s property would generally be precluded under the Statute of Frauds. However, the defendants are relying upon the principles of estoppel in asserting their claimed interest. Such claim, if successful, would allow the defendants to avoid the constraints of the Statute of Frauds. It is this court’s view, however, that the defendants’ claim must fail as a matter of law.

The law within the Commonwealth is clear to the extent that property interests may not be created based upon general principles of estoppel. [Note 24] See Blue View Const., Inc. v. Franklin, 70 Mass. App. Ct. 345 , 355 (2007), further app. review denied, 450 Mass. 1105 (2007); Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). Defendants assert that they have “a personal right to use the property,” [Note 25] while at the same time asserting that they claim no easement. As per the discussion supra, while they do not expressly describe it as such, the defendants claim is tantamount to an easement-in-gross. At the same time, the defendants acknowledge that easements cannot be created by invoking the doctrine of equitable estoppel. [Note 26] In the case of Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 482 (1989), the Court cited two limited instances of easement by estoppel that are, however, neither applicable nor relevant to the case at bar. The Court went on to observe that “[w]e are aware of no case in Massachusetts recognizing the creation of an easement on broader principles of estoppel.”

In the more recent case of Blue View Const., Inc. v. Franklin, 70 Mass. App. Ct. 345 , 356 (2007), the Court foreclosed any possibility of recognizing an easement by estoppel and stated “[w]e are not persuaded that there are changed circumstances that warrant alteration of the development of the common law with respect to such easements.” Although, as defendants point out, the Patel and Blue View cases dealt with easements appurtenant [Note 27] and not easements-in-gross, the Court’s language in each refers merely to “easements.” In evaluating the Court’s rationale, this court sees no reason to differentiate between the two easement types. It is satisfied, therefore, that neither an appurtenant easement nor an easement in gross, may be created under general principles of estoppel. Notwithstanding, the defendants are, in essence, asking this court to do just that. Even were it otherwise, and such an interest could be established by invoking the doctrine of equitable estoppel, the defendants would fail to qualify for such relief given the record presently before this court.

II. Equitable Estoppel

Equitable estoppel is doctrine that is applied “to prevent one from benefiting from his own wrongdoing and to avoid injustice.” Harrington v. Fall River Hous. Authy., 27 Mass. App. Ct. 301 , 307 (1989). “It is in the main to accomplish the prevention of results contrary to good conscience and fair dealing that the doctrine of estoppel has been formulated and taken its place as a part of the law.” MacKeen v. Kasinskas, 333 Mass. 695 , 698 (1956). The essential elements of equitable estoppel are “(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.” Bongaards v. Millen, 440 Mass. 10 , 15 (2003). “[T]he doctrine of estoppel is not applied except when to refuse it would be inequitable.” Cleaveland v. Malden Savings Bank, 291 Mass. 295 , 297 (1935), quoting Boston & Albany R.R. v. Reardon, 226 Mass. 286 , 291 (1917). “All of the elements of estoppel must be present and the party asserting the estoppel theory has a heavy burden to prove that all [three] elements are present.” Clickner v. Lowell, 422 Mass. 539 , 544 (1996) (internal citations omitted) (emphasis supplied).

A. A Representation Intended to Induce Reliance on the Part of the Person to Whom the Representation Is Made

Defendants assert that the representation intended to induce reliance may be found in the letter of November 26, 2001 from the plaintiff to Sandy Dawson, a real estate broker. The collective statements in the letter reasonably amount to a “representation.” While not specifically addressed to the defendants, the letter recites that “[w]e are requesting that potential owners of 62 Shore Drive are provided with this information.” Plaintiff intended, therefore, that the representation be made to potential owners of 62 Shore Drive, including the defendants. Therefore, one might reasonably conclude that the plaintiff’s letter constitutes a representation intended to induce reliance by those in the position of the defendants.

B. An Act or Omission in Reasonable Reliance on the Representation

Defendants state that they were provided with a copy of the plaintiff’s letter prior to their purchase of 62 Shore Drive. [Note 28] They claim that they relied on that letter when “deciding to consummate purchase of 62 Shore Drive without renegotiating the purchase price.” [Note 29] The court construes this quoted language to mean that, in reliance upon the said letter, the defendants omitted to do a certain act. That is to say that they did not attempt to renegotiate the purchase price in an attempt to lower it.

As an initial matter, “the reliance of the party seeking the benefit of estoppel must have been reasonable.” Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119 , 125 (1992). Defendants claim that it was reasonable for them to rely on the letter when deciding to not renegotiate the purchase price of their property. The specific representation that defendants point to in the letter reads as follows:

It is not our intent to prohibit the owners and guests of 62 Shore Drive from climbing on the jetty rocks below the ‘mean high water mark’. In the state of Massachusetts, access to that area is everyone’s right. [Note 30]

Defendants argue that this quote effectively recognizes their rights, as members of the public, to use those portions of the jetty that lie below the mean high water mark. [Note 31] And indeed, the defendants do possess the same rights as do other members of the public to use that portion of the jetty lying in the intertidal area. Thus, they possess the right of lateral passage over the jetty, as discussed in this court’s previous Orders. However, in their Motion for Reconsideration, defendants ask the court to determine that they have the right “to fish, fowl and navigate upon that portion of the jetty that is located in the intertidal portion of [plaintiff’s] property.” [Note 32] (emphasis supplied)

In support of this expansive view of their public rights, the defendants rely upon the above-quoted sentence in plaintiff’s letter. [Note 33] In so doing, however, the defendants pay no heed to the sentence immediately preceding, which reads as follows:

We respectfully request that the owners of 62 Shore Drive and their guests not use and otherwise enter on the pier/jetty structure where it falls within the extended property line of 64 Shore Drive . . .” (emphasis supplied).

Indeed, the generally tenor of the letter is one of exclusion from that portion of the jetty lying within the plaintiff’s property bounds. It is well therefore to quote liberally from that letter, as follows:

Sandy Dawson

Dawson Real Estate:

RE: Property located a [sic] 64 Shore Drive, Mattapoisett, MA and specifically the licensed Pier / Jetty at the southerly most side of the property adjacent to 62 Shore Drive.

I am writing this letter as a follow-up of our conversation earlier today. I hope you found the information provided regarding the recording of the Waterways license helpful...

We [the DeWolfs] purchased the property [64 Shore Drive] in 2000 after the seller’s agents represented to us that the pier on the property was a private pier. The attached engineering diagrams show the licensed pier / jetty located adjacent to 62 Shore Drive, Mattapoisett, MA [the defendant’s residence]. As the plans show, the extended property line of 64 Shore Drive places the majority of the pier/jetty, including the concrete walkway and the poured concrete foundation surrounding the walkway, within the property limit of 64 Shore Drive. The previous owner of our property purposely built the pier on the north side of the property line because the then adjacent owner did not wish to participate in the construction or maintenance of the pier. Subsequently, a waterway’s license for the structure was granted to our predecessors, [Note 34] the Moores, and the Moores paid the appropriate licensing fees…. [emphasis supplied]

We are requesting that potential owners of 62 Shore Drive are provided with this information. Further, we respectfully request that the owners of 62 Shore Drive and their guests not use and otherwise enter on the pier / jetty structure where it falls within the extended property line of 64 Shore Drive as referenced in the attached engineering diagrams. [emphasis supplied]

It is not our intent to prohibit the owners and guests of 62 Shore Drive from climbing on the jetty rocks below the ‘mean high water mark.’ In the state of Massachusetts, access to that area is everyone’s right. [Note 35] [emphasis supplied]

[Signed, Cheryl and Hank DeWolf]

This court concludes that the plain language of the letter may not reasonably be construed as inviting the defendants to use the jetty in the manner they contend. As the letter makes clear, the plaintiff nowhere invite such reliance. Quite to the contrary. To the extent they purport to rely on the said letter, the defendants were made aware that (a) they lacked permission or authority to utilize the portion of the jetty lying on the plaintiff’s property and certainly the concrete walkway, for purely personal reasons, and (b) the plaintiff did not intend to grant rights beyond those otherwise available to members of the general public under the Public Trust Doctrine. [Note 36]

Given the language and consequent tenor of the letter [Note 37] this court is satisfied that there exists no basis upon which the defendants could conclude that they possessed “the right to fish, fowl and navigate upon that portion of the jetty that is located in the intertidal portion of [plaintiff’s] property.” [Note 38]

Beyond that, there is nothing in the record to indicate that the defendants were in any way induced by representations in the letter to purchase the 62 Shore Drive property, or to agree to a particular price. In this regard, the defendants nowhere argue that they intended to renegotiate the purchase price but were somehow induced to refrain from doing so on the strength of the letter.

Simply put, there is no evidence that any representation on the part of the plaintiff caused the defendants to act in a manner contrary to what they were otherwise already inclined to do, or had already done. See Gamache v. Mayor of North Adams, 17 Mass. App. Ct. 291 , 294 (1983).

Defendants argue that, at the very least, whether they were induced to accept a particular purchase price for the property is a question of fact. Although the question of reliance is often a question of fact, in an appropriate case it can present an issue of law. See Moran v. Gala, 66 Mass. App. Ct. 135 , 141 (2006), further app. review denied, 447 Mass. 1103 (2006); Cataldo Ambulance Serv., Inc. v. Chelsea, 426 Mass. 383 , 387 (1998). The court views the instant matter as such a case.

Conclusion

Based upon the foregoing, this court hereby confirms in all respects, its Order of August 2, 2012 subject however, to (a) the explicit clarification reflected in the Order of December 17, 2012, and (b) the court’s conclusions herein with regard to claims of equitable estoppel. Accordingly, it is hereby

ORDERED that the defendants’ Motion for Reconsideration is hereby Allowed to the extent specified herein. It is further

ORDERED that the Doctrine of Equitable Estoppel does not operate to vest in the defendants any right or interest in that portion of the jetty situated on plaintiff’s property, other than the right to lateral passage that exists under the Public Trust Doctrine as enunciated in the Chapter 91 License and as set forth by this court in its previous Orders.

Judgment to issue accordingly.

SO ORDERED.

By the Court (Grossman, J.).