HAROLD G. NABHAN and VIOLET ANN NABHAN vs. TOWN OF SALISBURY.

Plaintiffs filed their unverified Complaint (10 MISC 442909) (the “Easement Case”) on November 12, 2010, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to the status of a travel easement (the “Easement”) held by Defendant Town of Salisbury (the “Town”) over land owned by Plaintiffs and located at 402 North End Boulevard, Salisbury, MA (“Plaintiff Property”). [Note 1] The Town filed its Answer on December 17, 2010. A case management conference was held on January 26, 2011. On March 11, 2011, the Commonwealth of Massachusetts (the “Commonwealth”), as current owner of Salisbury Beach, filed its Motion to Intervene as a Defendant. This court allowed that motion on May 24, 2011.

Plaintiffs are seeking a building permit (the “Building Permit”) from the Town for the construction of a single family residence on Plaintiff Property. The Town’s Building Inspector denied the Building Permit because the residence would interfere with the Easement. The Town’s Zoning Board of Appeal (the “ZBA”) upheld the Building Inspector’s decision. Plaintiffs filed their unverified Complaint (11 MISC 448384) (the “Building Permit Case”) on May 10, 2011, pursuant to G. L. c. 40A, §17, appealing the decision of the ZBA. [Note 2] The Commonwealth was also a defendant and intervener in the Building Permit Case. A case management conference was held on June 22, 2011, and the two cases were consolidated.

On July 21, 2011, the Town filed its Counterclaim seeking declaratory judgment relative to the Easement and an injunction prohibiting Plaintiffs from construction within the Easement. Plaintiffs filed their Answer to the Counterclaim on October 26, 2011. On June 24, 2013, a Settlement Agreement between Plaintiffs and the Town dated May 31, 2013, relative to the status of the Easement, was filed with this court. The Commonwealth filed its Motion for Summary Judgment in the Easement Case on June 26, 2013, together with supporting memorandum and Statement of Material Facts. [Note 3] The Town filed its Cross-Motion for Summary Judgment in the Easement Case on July 25, 2013, together with supporting memorandum and Statement of Additional Material Facts. On the same day, Plaintiffs filed their Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and Affidavit of Harold G. Nabhan. The Commonwealth filed its Reply to the Cross-Motions on July 31, 2013. A hearing was held on all motions on August 5, 2013, and the matter was taken under advisement.

Pursuant to Mass. R. Civ. P. 56 (c), summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Mass. R. Civ. P. 36, together with the affidavits, if any, 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. See Cassesso v. Commissioner of Correction, 390 Mass. 419 , 422 (1983). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

I find that the following material facts are not in dispute:

1. The Town conveyed land (the “Commoners Land”) to the Commoners of Salisbury (the “Commoners”) by instrument dated July 9, 1903, and recorded with the Essex County South District Registry of Deeds (the “Registry”) at Book 1710, Page 252 (the “1903 Indenture”). [Note 4]

The Commoners Land is described in the 1903 Indenture as:

[T]he parcel of land situated for the greater part in the Town of Salisbury…and bounded East by the ocean, South by the Merrimac River, West by the marshes of private owners [Note 5], and North by the old state line between Massachusetts and New Hampshire. [Note 6]

2. The 1903 Indenture described the Easement. The 1903 Indenture states:

excepting however from its conveyance any right of the public and the marsh owners in and to the old way to the marshes as the same now exists and is used, and in and to the way seventy five feet wide running across said beach in continuation from the town road leading to the same, and reserving to itself, and its successors, the right to use and to permit any person residing in said town to use, for purposes of travel only, the following ways running from the sea to the marshes, namely…The way forty-six to fifty-one feet wide as shown on said plan [Note 7] and bounded Southerly on land of the Life Saving Station…The location of said ways may be changed from time to time as agreed in by writing by the Selectmen of said Town and by said Commoners, their successors and assignees.

The Easement, which appears to cover only a portion of the Commoners Land, is shown on the “Subdivision Plan of Land in Salisbury (3200-208)” prepared by W.C. Cammett Engineering, Inc. (“Cammett”) and dated December 16, 2002 (the “2002 Plan”) as “13th Street East.” It is approximately 210 feet long and between forty-six and fifty-one feet wide, comprising all of Lot 854 and a portion of Lot 853, as shown on the 2002 Plan.

3. The Commoners Land was registered with the Land Court, Certificate of Title No. 2377 dated June 26, 1913 (the “1913 Registration Decree”), by the successors to the Commoners, Salisbury Beach Associates. The 1913 Registration Decree provides the following:

The above described land is subject to all rights of way legally existing in and over said land and in particular the rights of way specified in an indenture between the inhabitants of the town of Salisbury and the Commoners of Salisbury recorded with Essex South District Deeds, book 1710, page 252.

The Commoners Land is shown on Plan of Land in Salisbury, 3200A, Sheet 5, Land Court Registration Case No. 1247 dated January 2, 1911 (the “1911 Plan”).

4. The Commoners Land was subdivided on March 31, 1920, as shown on “Subdivision of Land Shown on Plan 3200A Sh.5 Cert. of Title No. 1247 South Registry District of Essex County Land in Salisbury,” dated February 19, 1920 (the “Subdivision Plan”).

5. Salisbury Beach Associates conveyed a portion of the Commoners Land (“the Beach”) to the Commonwealth, on June 10, 1933, as shown on Plan 320046, Sheet 5, dated June 10, 1933 (the “1933 Plan”). Certificate of Title No. 10041 issued by the Land Court states that:

[s]aid land is also subject to rights of way there over between the respective lots shown on said plan and the Ocean and over the portions of said land shown on said plan as Ocean Street Extension, Murray Street, Lawrence Street, the Passageway shown on Sheet 10, 14th Street East, 13th Street East, and Bay State Road.

6. Plaintiff Property is currently a vacant beachfront lot located between North End Boulevard (State Highway) and the Beach within the R3 Zoning District, (“Lot 854” and “ Lot 853”). It contains over 18,000 square feet of lot area and 91 linear feet of frontage. The dimensional requirements for a single family residence are .25 acre of lot area and 40 linear feet of frontage.

7. Plaintiffs acquired title to Plaintiff Property by deed dated August 5, 1974, from Annie L. Humphrey, the sole surviving Trustee of Salisbury Beach Associates, recorded with the Registry on August 8, 1974, in Book 5, Page 1247.

8. In Land Court Case No. 3200-S-2003-09, filed on September 23, 2003, Plaintiffs petitioned this court to subdivide Plaintiff Property into two lots, 854 and 853, as shown on the 2002 Plan. The 2002 Plan is registered with the Registry with Certificate of Title No. 79194.

9. By decision dated November 18, 2005 (the “Land Court Subdivision Decision”), this court approved Plaintiffs’ subdivision as shown on the 2002 Plan.

10. In 2008 Plaintiffs filed a complaint in the Essex Superior Court (No. ESCV2008-02102-D) seeking declaratory judgment establishing that the Town did not hold an easement over Plaintiff Property, and permanently enjoining the Town from asserting such easement right (the “Superior Court Case”). The Commonwealth, as owner of the Beach, was granted leave to intervene as a third-party defendant to assert the rights and interests of the public in accessing the ocean.

11. By decision dated August 20, 2010 (the “Superior Court Decision”), the Essex Superior Court upheld the Easement as a right-of-way for the Town to access the ocean. [Note 8] The Superior Court Decision held the following:

Pursuant to the comprehensive scheme for land registration set forth in G. L. c. 185, a Land Court decree of registration is issued only upon a final determination and adjudication of all rights in the affected land. G. L. c. 185, §§ 26-63. Additionally, in issuing a decree of registration, the Land Court must review all asserted encumbrances, and those that appear affirmatively on a certificate of registration are valid. Thus, the Decree of Registration unequivocally confirmed the existence of the easement in favor of the Town. The Nabhans’ complaint to effectively open the Land Court’s 1913 judgment is proscribed as a matter of law by G. L. c. 185, §45…the easement created in the 1913 Registration continues in effect on the property absent further action by the Land Court. (citation omitted).

12. By Settlement Agreement dated May 31, 2013 (the “Settlement Agreement”), Plaintiffs and the Town agreed to release the Easement in exchange for a payment by Plaintiffs to the Town of $65,000, and Plaintiffs agreed to deed a fee interest to the Town of an area 15 feet wide and 211.16 feet long (with a trapezoidal portion at the ocean end) conveying a large portion of Lot 854 and a small portion of Lot 853 as shown on plan titled “Lot Line Adjustment Plan” dated October 7, 2010 and prepared by Cammett (the “2010 Plan”). The fee interest provided the Town with access to the Beach and ocean. The Settlement Agreement was executed by the Town’s Board of Selectmen. The Commonwealth was not a party to the Settlement Agreement.

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In their Motions and Cross-Motions for Summary Judgment, the parties raise three questions of law suitable for summary judgment:

1. Whether the Easement is subject to Article 97 of the Articles of Amendments to the Constitution of the Commonwealth of Massachusetts (“Article 97”). The Commonwealth argues that the Easement cannot be extinguished without compliance with Article 97. The Town argues that the Easement, by its terms, is wholly outside the purview of Article 97. Plaintiffs argue that because the Settlement Agreement does not seek to use for other purposes or dispose of the Easement as contemplated in Article 97, the legislative vote requirement is not triggered.

2. Whether the Easement is protected by the doctrines of prior public use and/or public trust. The Commonwealth argues that because the Easement may be accessed by the general public it is protected under the prior public use doctrine, and is subject to rights of the public held in trust by the Commonwealth, and as such the Easement cannot be conveyed without prior legislative approval. The Town argues that where it has followed the appropriate statutory procedures for the abandonment of the Easement, the prior public use and/or public trust doctrines do not apply. Plaintiffs argue that both doctrines are inapplicable where the terms of the Settlement Agreement do nothing to affect the purpose of the Easement, nor increase the burden upon the Town and its residents in their usage.

3. Whether the parties are bound through collateral estoppel and res judicata because of the Superior Court Decision. The Commonwealth argues that the Town cannot refute that the Easement is vested in the general public under the doctrine of collateral estoppel because the Town successfully argued that point in the Superior Court Case. The Town argues that the Superior Court Decision did not reach the issue of whether Article 97 applies to the Easement, and that the Town’s position is entirely consistent with its position in the Superior Court Case. Plaintiffs did not address this issue in their supporting memoranda.

I shall examine each issue in turn.

I. Article 97

Article 97 provides in relevant part:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose…Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court. (emphasis added).

The relevant authority on the applicability of Article 97 is found in Mahajan v. Dep’t of Environmental Protection, 464 Mass. 604 (2013), and Hanson v. Lindsey, 444 Mass. 502 (2005). In Hanson, the Supreme Judicial Court of Massachusetts (the “SJC”) considered the impact of Article 97 on a town’s conveyance, to a bona fide purchaser, of land which had been acquired by the town as a tax forfeiture and held as general corporate property but never designated for conservation purposes. The SJC reasoned that “[t]he fact that the town took no further action…and that no deed was prepared for and accepted by the town means that the locus never became specifically designated for conservation purposes.” Hanson, 444 Mass at 508. Accordingly, the SJC held that “[b]ecause the locus was not held for a specific purpose, namely conservation, compliance with the provisions of art. 97” was not required. Id. at 509.

In Mahajan, the SJC considered the effect of Article 97 on the issuance of a waterways license to the Boston Redevelopment Authority to redevelop a portion of a public waterfront as an urban renewal project. The SJC held that “[t]he critical question to be answered is not whether the use of the land incidentally serves purposes consistent with art. 97, or whether the land displays some attributes of art. 97 land, but whether the land was taken for those purposes, or subsequent to the taking was designated for those purposes in a manner sufficient to invoke the protection of art. 97.” (emphasis added), Mahajan, 464 Mass. at 615. The fact that the land “display’s some of the attributes of [Article 97 land] and serves the purpose of the utilization of natural resources—in that it promotes access to the waterfront and the sea—this specific use is incidental to the overarching purpose of urban renewal for which the land including the project site was originally taken.” (emphasis added). Id. In holding for the plaintiffs, the SJC explicitly rejected a “more expansive reading of art. 97,” where failing to do so would suggest “that the vast majority of land taken for any public purpose may become subject to art. 97 if the taking or use even incidentally promotes the ‘conservation, development and utilization of the…forest, water, and air.’”(emphasis added) Id. at 613.

In the case at bar, the material facts are undisputed. Included in the 1903 Indenture was the Town’s express reservation “to itself, and its successors, the right to use and to permit any person residing in said town to use, for purposes of travel only,” certain ways to the ocean. (emphasis added). The only reasonable interpretation of the 1903 Indenture is that the Easement was reserved to access the ocean. See the Superior Court Case. As an access easement, it undoubtedly “serves the purpose of the utilization” of the Beach, now owned by the Commonwealth. Mahajan, 464 Mass. at 615. However an easement reserved for access is not synonymous with a conservation easement, nor does it become one by virtue of its proximity to conservation land. G. L. c. 184 §31 defines conservation as such:

A conservation restriction means a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use.

The Easement was neither expressly taken or acquired for the “conservation, development and utilization of” the Beach, nor subsequently dedicated as such. Therefore it is not within the purview of Article 97. Promoting access to the Beach is merely an incidental result of the Easement’s proximity to the Beach. As a result I find that the Easement may be extinguished without a vote of the Legislature under Article 97.

II. Prior Public Use & Public Trust

a. Prior Public Use Doctrine

Pursuant to the prior public use doctrine, “land appropriate to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation to that end.” (emphasis added). Higginson v. Treasurer & Sch. House Commrs. of Boston, 212 Mass. 583 , 591 (1912), citing Eldredge v. Cnty. Commissioners, 185 Mass. 186 (1904); Boston & Albany R.R. v. Cambridge, 166 Mass. 224 (1896); Old Colony R.R. v. Framingham Water Co. 153 Mass. 561 , 563 (1891); Quincy v. Boston, 148 Mass. 389 (1889); Boston Water Power Co. v. Boston & Worcester R.R., 40 Mass. 360 (1839). The prior public use doctrine is applicable to the case at bar because the Easement, established by the 1903 Indenture, is for the public use of allowing residents of the Town to access the ocean and the conveyance of the Easement through the Settlement Agreement involves the public use of Town residents accessing the ocean. However, the prior public use doctrine requires plain and explicit legislation only if the public use to which the property is being diverted is inconsistent with the initial public use. Here, the public use of the Settlement Agreement is not only consistent with the prior public use but is the same public use that has been provided by the Easement since 1903: access to the ocean by the residents of the Town of Salisbury. Contrast Board of Selectmen of Braintree v. County Com’rs of Norfolk, 399 Mass. 507 , 510 (1987) (holding that commissioners’ attempt to appropriate a portion of a hospital for use as a correctional facility was inconsistent with the hospital use). The terms of the Settlement Agreement do not diverge from the purpose of the original Easement and do not represent any changes to the use of the Easement by Town residents to access the ocean. As such, I find that the Easement is not protected by the doctrine of prior public use. [Note 9]

b. Rights “Held in Trust” for the Public

The only rights held in trust for the public by the Commonwealth are those protected by the public trust doctrine. However, the Commonwealth’s reliance on the public trust doctrine would be similarly misplaced. “The public trust doctrine, ‘an age-old concept with ancient roots…[is] expressed as the government's obligation to protect the public's interest in…the Commonwealth's waterways [sic].’ Under the public trust doctrine, the Commonwealth holds tidelands [sic] in trust for traditional public uses of fishing, fowling, and navigation.” Spillane v. Adams, 76 Mass. App. Ct. 378 , fn5 (2010), citing Trio Algarvio, Inc. v. Commissioner of the Dept. of Envtl. Protection, 440 Mass. 94 , 97 (2003); Fafard v. Conservation Commn. of Barnstable, 432 Mass. 194 , 198 (2000). Arno v. Commonwealth, 457 Mass. 434 (2010), relied heavily upon by the Commonwealth, is easily distinguishable in that it involved land which was previously submerged in Nantucket Harbor and subsequently filled to create a tideland. The public trust doctrine applied to that land specifically because it was previously a waterway. In the case at bar, the Easement at issue does not involve a waterway, though it does provide access to the ocean. As such, the Easement does not gain protection from the public trust doctrine. Moreover the public trust doctrine has not been expanded by any court to apply to every right-of-way in which the general public has access to a water source. We decline to do so today, for taking the Commonwealth’s argument to its logical conclusion would prohibit the disposition of nearly every public way giving access to public water in the Commonwealth, without the Commonwealth’s prior assent.

1. Whether Town Inhabitants or the General Public Has Right to Easement

The Commonwealth argues that the Easement deserves protection because the general public has the right to use the Easement; namely that all persons, whether Town inhabitants or not, have enjoyed an equal right to use the Easement to access the Beach and ocean, and this right is “held in trust” by the Commonwealth. The Commonwealth is correct in its assertion that, if the general public has a right to use the Easement, the Attorney General for the Commonwealth is the proper channel through which such right can be vindicated. Dube v. Mayor of Fall River, 308 Mass. 12 , 14 (1941); “[i]f the public or any part of it, are injuriously affected by erroneous action…in laying out or discontinuing a way, their remedy must be sought through the Attorney General”); see also Attorney General v. Tarr, 148 Mass. 309 , 314 (1888). In order to determine whether the general public has a right to use the Easement we must turn to the language of the 1903 Indenture that established the Easement. The Indenture states:

[E]xcepting however from its conveyance any right of the public and the marsh owners in and to the old way to the marshes as the same now exists and is used, and in and to the way seventy five feet wide running across said beach in continuation from the town road leading to the same, and reserving to itself, and its successors, the right to use and to permit any person residing in said town to use, for purposes of travel only, the following ways running from the sea to the marshes, namely…The way forty six to fifty one feet wide as shown on said plan [Note 10] and bounded Southerly on land of the Life Saving Station…The location of said ways may be changed from time to time as agreed in by writing by the Selectmen of said Town and by said Commoners, their successors and assignees. (emphases added).

The Indenture is clear in providing the Easement for the residents of the Town and, as such, the Easement’s original purpose was to allow Town inhabitants to travel to and from the ocean. When the Beach was conveyed to the Commonwealth in 1933, making the Commonwealth an owner of one of the servient estates, the Commonwealth took ownership of the Beach subject to the terms of the Easement that limited the right to travel over the Easement to the inhabitants of the Town. Limitations or restrictions on the use of a right of way created by grant, or reservation, limit the use to those designated in the grant. G. L. c. 183, §15 (in a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically). Here the use was restricted to the Town, and did not extend to the general public. Furthermore, there is no evidence in the summary judgment materials that any additional rights in the Easement were expressly granted by the Town to the Commonwealth. [Note 11] The scope of the Easement as established in the 1903 Indenture was clear and the Commonwealth, accepting the Easement as created, could not overburden the Easement by extending the scope of the Easement to allow the general public access to the ocean. See Doody v. Spurr, 315 Mass. 129 , 133 (1943) (“The servient estate cannot be burdened to a greater extent than was contemplated or intended at the time of the grant”).

The Commonwealth’s sole basis for its claim for rights in the Easement comes from the unfounded presumption that the general public’s ability to use the Easement is the result of an implied dedication or property interest therein. [Note 12] The case law upon which the Commonwealth relies for its supposition that there are rights in the Easement belonging to the public that are held in trust, fails to lend the support envisioned. First, the Commonwealth cites Dube, to stand for the proposition that the rights reserved by the Town are vested in the public at large. In Dube, the petitioners contended that an order of the city council sought to discontinue a portion of a public highway and, without authority, to create a public park. The petitioners’ claims were disallowed on standing issues. Specifically the court held that absent a showing of particularized injury, the petitioners could not rely upon their status as taxpayers alone to bring their claim. Where a private injury is common to all citizens, “the right is to be vindicated on the petition of the Attorney General or some officer representing the commonwealth” because “the public interests are entrusted to the attorney general.” Id. at 15. Thus, Dube is distinguishable from the case at bar because there the land was in-fact public. Similarly, the Commonwealth cites Warner v. Mayor of Taunton, 253 Mass. 116 (1925), a petition for mandamus against the mayor to compel removal of gasoline pumps encroaching on public land. Again, there the land in question was public, and thus the case is also distinguishable from the one at bar.

The aforementioned Tarr, 148 Mass. at 314, which is cited for the general proposition that non-citizens of a town have a right to use town ways, is similarly distinguishable. In Tarr, the issue before the court was whether the reservation “all the common land on the western side of the above said line is left and reserved free for landing places for the public use for the inhabitants of Gloucester forever, by order of the committee,” created rights in the public as well as the town. The court declined a narrow construction, stating:

It was inconsistent to say that the landing place was ‘for the public use,’ if it was for the inhabitants of Gloucester only. When the word ‘and’ is supplied between the two phrases, its meaning is seen to be that the reservation was alike for the public and the inhabitants of Gloucester. Id.

In the case at bar, there is no need for such construction of the reservation. The plain, unambiguous words of the reservation indicate that it was for the benefit of the Town, not the public at large.

Higginson v. Inhabitants of Town of Nahant, 11 Allen 530 (1866), a case whose central issue was the validity of a taking to establish a town way, also provides minimal support for the Commonwealth’s position that the general public has rights to the Easement. The Higginson court stated:

It is certainly no objection to a town way that it will be serviceable not only to the inhabitants of the town, but also to the public generally. Though it is laid out by the officers and constructed and paid for by the inhabitants of the town, all persons have an equal right to use it after it is completed. (Emphasis added). Id. at 534.

There is nothing in the summary judgment record to indicate that the Town permitted the general public to use the Easement or that the general public has indeed used the Easement to access the ocean. However, even if the Town permitted the general public’s use of the Easement, this permission is not tantamount to the same property rights held by the holder of an easement appurtenant. The use envisioned in the case at bar, if it exists, is more easily understood as a license. “A license merely excuses acts done by one on land in possession of another that without the license would be trespasses, [and] conveys no interest in land.” Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 55 (1938), citing Cook v. Stearns, 11 Mass. 533 , 538 (1814); Grasselli Dyestuff Corp. v. John Campbell & Co., 259 Mass. 103 , 107 (1927); Nelson v. American Telephone & Telegraph Co., 270 Mass. 471 , 479 (1930). “A license to use another’s land is revocable not only at the will of the owner of the property on which it is to be exercised, but by alienation of the land by him.” Sturnick v. Watson, 336 Mass. 139 , 142 (1957), citing Hodgkins v. Farrington, 150 Mass. 19 , 21 (1889); Scionscia v. Iovieno, 318 Mass. 601 , 603 (1945). The Commonwealth seems to conflate public rights in the tidelands with public rights in private property. Only inhabitants of the Town, and not the general public, have the right to use the Easement to access land (the area between high and low tide) which the general public has the right to use for fishing, fowling and navigation.

Lastly, Inhabitants of Monterey v. Berkshire Cnty. Com’rs, 7 Cush. 394 (1851), does not provide the relief prayed for by the Commonwealth. There, the issue before the court was whether the county commissioners had the authority to create roads that would be open to the public as well as inhabitants of the town. The court stated:

It by no means follows from the limitation of town ways to ways for the use of their respective towns, that such a way may not be used as a link in a chain of continuous roads of great public travel. The convenience of the inhabitants of the town may require the establishment of the road because of its direct connection with some great thoroughfare; and when thus established, it is open to the use of the public generally, as well the inhabitants of other towns as those of the town in which it is situated. (emphasis added). Id. at 400.

Neither this case, nor those discussed above, stand for the general proposition that where the general public is permitted to use ways created, or reserved, by a municipality, it also has property rights equal to that of the municipality. The Commonwealth’s conflation of permissive use with use by right is wholly without support, and cannot serve as a basis to prevent the lawful disposition of municipal property into private ownership or to allow the general public easement rights over private property to access the Beach from a public road. [Note 13] The relevant statute regarding the disposition of municipal property is found in G. L. c. 40, §3. Pursuant to G. L. c. 40, §3:

[a] town may hold real estate for the public use of the inhabitants and may convey the same by deed of its selectmen thereto duly authorized…and may make such orders as it may deem necessary or expedient for the disposal or use of its corporate property…All real estate or personal property of the town, not by law or by vote of the town placed in charge of any particular board, officer or department, shall be under the control of the selectmen, except as is otherwise provided.

G.L. c. 40, §3 makes it clear that the disposition of the Easement is a right well within the authority of the municipality, and the section outlines the processes through which such conveyance may be accomplished. See e.g., Sancta Maria Hospital v. Cambridge, 296 Mass. 586 (1976). Nevertheless, the Commonwealth requests this court to add a prohibition to this municipal function, given its interest in the Beach. However “[w]e may not, by process of construction, add a prohibition to a statute when it is not contained therein.” Mangano v. Town of Wilmington, 51 Mass. App. Ct. 857 (2001), quoting J.E. White Contracting Co. v. Massachusetts Port Auth., 51 Mass. App. Ct. 811 , 815 (2001). See also Ballantine v. Falmouth, 363 Mass. 760 , 766 (1973); Springfield v. Miller, 12 Mass. 415 (1815); Bowers v. Bd. of Appeals, 16 Mass. App. Ct. 29 , 32 (1983). As a result of the foregoing, I find that only the inhabitants of the Town, and not the general public as the Commonwealth contends, has the right to use the Easement.

2. Commonwealth as a Necessary Party to the Settlement Agreement

The Settlement Agreement between Plaintiffs and the Town involves the relocation of the Easement. By analogy, in M.P.M. Builders, the SJC held that, absent express prohibition, the servient estate holders (Plaintiffs and the Commonwealth) and dominant estate holder (the Town), may relocate an easement, provided it does not increase the burden on the easement or frustrate its purpose and the servient estate holder pays the cost of relocation. If the Settlement Agreement were to fall under the guidelines of M.P.M. Builders, the purposes for which the Easement exists (i.e., providing Town residents access to and from the ocean) will not be frustrated. The evidence before this court establishes that the actual use of the Easement by pedestrians is actually limited to a small, narrow section of the Easement measuring approximately three feet wide, and the servient estate holder (Plaintiffs) is paying the cost of relocation, thus bringing the Settlement Agreement well within the rule established by M.P.M. Builders. See 442 Mass. at 92. Moreover, in the case at bar, the Easement created by the Indenture expressly allows for the periodic relocation of the Easement so long as there is agreement in writing between the Town and the successors and assignees of the Commoners. Plaintiffs are undoubtedly successor in interest to the Commoners and as such can enter into an agreement with the Town.

However, as the Commonwealth was deeded the Beach by Salisbury Beach Associates, the successors in title of the Commoners, the Commonwealth, as well as Plaintiffs, is a successor in interest of the Commoners. Thus, in light of the language of the Easement, the Commonwealth argues that it would be a necessary party to any agreement, such as the Settlement Agreement, to change the Easement. As the 1903 Indenture’s language only requires agreement in writing between the Town and the successors and assignees of the Commoners, without providing that the agreement of all the successors and assignees is necessary, the relocation of the Easement contemplated in the Settlement Agreement does satisfy each of the prongs of the M.P.M. Builders test. The dominant estate owner (the Town) and one of the servient estate owners (Plaintiffs) have agreed to the Settlement Agreement over their portion of the Easement, and the Commonwealth not being a party to the Settlement Agreement does not prohibit the changes made to the portion of the Easement controlled by Plaintiffs. [Note 14]

As a result of the foregoing, I find that the Town and Plaintiffs are, by the very terms of the 1903 Indenture, not expressly prohibited from disposing of or modifying their portion of the Easement without the Commonwealth being a party to such agreement.

III. Collateral Estoppel & Res Judicata

“The term ‘res judicata’ includes both claim preclusion, also known as true res judicata, and issue preclusion, traditionally known as collateral estoppel.” Mancuso v. Kinchla, 60 Mass. App. Ct. 558 , 564 (2004), citing Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627 , 637 (1998); Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 449 (1982). The Commonwealth argues that both concepts prohibit the Settlement Agreement. I shall examine each in turn.

a. Collateral Estoppel

Collateral Estoppel “bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Alicea v. Commonwealth, 466 Mass. 228 , 235 (2013). “[T]he purpose of the doctrine is to conserve judicial resources, to prevent the unnecessary costs associated with multiple litigation, and to ensure the finality of judgments.” Martin v. Ring, 410 Mass. 59 , 61 (1987). “An issue is actually litigated when ‘an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.” Jarosz v. Palmer, 436 Mass. 526 , 532 (2002), citing Restatement (Second) of Judgments §27.

The issue in the Superior Court Case was whether the Town held a valid easement over the portion of Plaintiff Property known as 13th Street East. In that case Plaintiffs argued that (1) the 1903 Indenture did not create a valid easement over Plaintiff Property, or alternatively, that (2) the Easement was released by a November 2002 Town meeting vote. The Town claimed that the 1903 Indenture created a valid easement, and that the Easement was not released by the action of the November 2002 Town meeting. The Commonwealth, as current owner of the Beach, was granted leave to intervene in the Superior Court Case as a third-party defendant to assert the rights and interests of the general public in accessing the Beach. In the case at bar, neither Plaintiffs nor the Town are re-litigating the issues adjudicated in the Superior Court Case (i.e. the validity of the Easement), nor is either party asserting a position contrary to that held in the Superior Court Decision. The Commonwealth continues to take the position that the Easement is for the purpose of allowing the general public, not just the inhabitants of the Town, to access the Beach and the ocean. Whether a valid easement was created by the 1903 Indenture or whether it was released is not in dispute in the present case. As such I find that the doctrine of collateral estoppel serves no bar here.

b. Res Judicata

“Under the doctrine of claim preclusion, a final judgment forecloses ‘successive litigation of the very same claim, whether or not re-litigation of the claim raises the same issues as the earlier suit.” Alicea, 466 Mass. at. 235., quoting Taylor v. Sturgell, 553 U.S. 880, 891 (2008); New Hampshire v. Maine, 532 U.S. 742, 748 (2001). “With respect to real property, ‘[a] judgment in an action that determines interests in real…property…[h]as preclusive effect upon a person who succeeds to the interest of a party to the same extent as upon the party himself.’” McCarthy v. Oak Bluffs, 419 Mass. 227 , 233 (1994), quoting Restatement (Second) of Judgments, § 43 (1) (b) (1982). “To preclude a claim on the basis of res judicata, three elements must be satisfied: ‘(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.’” Lee v. Vander, 2012 Mass. App. Div. 172 , 174 (2012), quoting Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005).

Plaintiffs, the Town and the Commonwealth were all parties to both the Superior Court Case and the case at bar. However, in the Superior Court Case, Plaintiffs sought declaratory judgment establishing that the Town did not hold an easement over Plaintiff Property, and permanently enjoining the Town from asserting that property right. In contrast, this action was commenced by Plaintiffs seeking to relocate the Easement. As such I find res judicata serves no bar here.

For the foregoing reasons, the Commonwealth’s Motion for Summary Judgment is DENIED, and the Town’s and Plaintiffs’ Cross-Motions for Summary Judgment are ALLOWED. [Note 15]

Judgment to enter accordingly.