ANDREW P. RIGO v. HOWARD ISRAEL, ADELE ISRAEL, A. CAMERON FERGUSON and ANNE B. FERGUSON.

Andrew Rigo, Howard and Adele Israel, and A. Cameron Ferguson and Anne Ferguson own (or owned, see note 1, infra) abutting, registered properties on Crowell’s Bog Road in Brewster, situated between two Great Ponds. The Rigo property is located to the south of Crowell’s Bog Road and is bounded by Long Pond. The Israel and Ferguson properties are located immediately to the north of Crowell’s Bog Road, directly across from the Rigo property, and both are bounded by Sheep Pond. Mr. Rigo claims he has the benefit of an express 20 foot- wide easement—half over the Israel property, half over the Ferguson property—that provides access to a beach area on Sheep Pond, which he has an express right to use for “beach purposes.” The beach area is located entirely on the Israel property. The defendants contend that the easement has been extinguished because the present condition of the beach and a variety of wetlands regulatory issues make it impossible for Mr. Rigo to use the beach for beach purposes, thus negating the specific purpose of the easement. As discussed below, the defendants have not established conclusively that the easement has been extinguished because of impossibility. However, because of the regulatory issues, the precise scope of Mr. Rigo’s rights—what he may or may not be permitted to do within the easement and the beach area—is properly left to the discretion of other state and local agencies that have jurisdiction over activities in environmentally sensitive locations.

Procedural History

The plaintiff Andrew Rigo filed his complaint on May 28, 2013, naming as defendants Howard and Adele Israel and A. Cameron and Anne Ferguson (collectively “the defendants”). The complaint asserts the following claims: Count I, Declaratory Relief; and Count II, Injunctive Relief. The Plaintiff’s Motion for Preliminary Injunction was denied on June 19, 2013. The defendants filed Defendants’ Answer and Counterclaim on July 2, 2013. The counterclaim has two counts, one for a Declaratory Judgment declaring the rights of the parties, and the second for Trespass and Damages. Mr. Rigo filed his Reply to Counterclaim on July 26, 2013.

A pretrial conference was held on July 2, 2013. A view was taken on August 14, 2013. Trial was held on August 15, 16, 20, and 28, 2013. The parties stipulated to the Agreed Facts in the Joint Pretrial Memorandum. The court heard testimony from Howard Israel, Andrew Rigo, Catherine Diane Boretos, John O’Reilly, Paul Shea, and Derek Ball. Exhibits 1-60 were marked. The plaintiff’s motion for mandatory dismissal of the defendants’ counterclaim was heard and denied.

The plaintiff’s Post-Trial Brief Submitted by Andrew Rigo was filed on November 12, 2013. The defendants’ Motion for Leave to File Late was allowed and Defendants’ Request for Findings of Fact and Rulings of Law was filed on November 14, 2013. The court heard closing arguments on November 22, 2013 and took the matter under advisement. This Decision follows.

Findings of Fact

Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. Andrew Rigo owns 550 Crowell’s Bog Road, a registered parcel of land in Brewster, Massachusetts (Rigo Property). He took title to the property by quitclaim deed from JP Morgan Chase Bank, National Association, dated January 8, 2013 and registered on January 16, 2013 as Document No. 1,212,125 (Rigo Deed) in the Barnstable Land Court Registry (Registry). The Rigo Property is also shown as Lot 5 on Land Court Plan 38182-A (Sheets 1 and 4) (Plan). A copy of Sheet 4 of the Plan is attached as Exhibit 1 to this Decision. Exhs. 2, 24.

2. Until July 31, 2014, Howard and Adele Israel owned 555 Crowell’s Bog Road, a registered parcel of land in Brewster, Massachusetts (Israel Property). [Note 1] They took title by quitclaim deed from John Zakoworotny, dated September 18, 1987. This deed was registered as Document No. 439,855 on Transfer Certificate of Title No. 112,180, dated September 18, 1987. The Israel Property is shown as Lot 3 on the Plan. Exhs. 2, 15, 16.

3. A. Cameron and Anne Ferguson own 537 Crowell’s Bog Road, a registered parcel of land in Brewster, Massachusetts (Ferguson Property). They took title by quitclaim deed from Robert and Elizabeth Weiss, dated June 18, 2012. This deed was registered as Document No. 1,195,430 on Transfer Certificate of Title No. 197,550, dated July 2, 2012. The Ferguson Property is shown as Lot 2 on the Plan. Exhs. 2, 11, 12.

4. Title to all of the land shown on the Plan was originally registered in Peter Sykes by decree of the Land Court in Registration Case No. 38182, issued on June 28, 1982. Upon entry of the decree, the Registry issued Original Certificate of Title No. 89008 in the name of Mr. Sykes. Agreed Facts ¶ 4; Exh. 3.

5. The Plan shows a fourteen lot subdivision with a fifteenth lot on Long Pond labeled “Beach Area ‘A’.” The Rigo Property is located to the south of Crowell’s Bog Road and is bounded on the south by Long Pond. The Israel and Ferguson Properties are located on the northern side of Crowell’s Bog Road and are bounded on the north by Sheep Pond. The Plan shows a “WAY, 20.00 wide” (the Way) extending from Crowell’s Bog Road to Sheep Pond and bisected by the common boundary of the Israel and Ferguson Properties so that half of the Way’s width is on the Israel Property and half is on the Ferguson Property. The Plan also shows “Beach Area ‘C’” adjacent to Sheep Pond and located entirely within the Israel Property. Agreed Facts ¶¶ 5-7; Exh. 2.

6. Mr. Sykes’ initial Petitioner’s Plan filed in Registration Case No. 38182 describes the Way as a “20 FT. FOOT PATH (EASEMENT)”. Exh. 1.

The Israel Property’s Chain of Title

7. Mr. Sykes conveyed Lot 3 on the Plan, the Israel Property, to John Zakoworotny by deed registered as Document No. 383,706 on Transfer Certificate of Title No. 104,861 dated January 7, 1986. Document No. 383,706 provides the following:

Said lot is conveyed together with the right to use the way twenty (20) feet wide running along the common boundary line between Lots 2 and 3, as shown on plan annexed hereto, from Crowell’s Bog Road to Sheep Pond in common with the Grantor and the now or future owners of Lots 1 through 14, as shown on Subdivision Plan 38182-A (Key Sheet 1) for access to Beach Area “C”, as shown on said plan, and to use said Beach Area “C”, as shown on said plan, for beach purposes in common with the Grantor and the now or future owners of Lots 1 through 14.

Exhs. 13, 14.

8. The Zakoworotny Transfer Certificate of Title No. 104,861 does not contain the easement language that appears in Document No. 383,706, but the certificate does state, “Said land is subject to and has the benefit of the restrictions and reservation set forth in Document No. 383,706.” Exh. 14.

9. The deed from Mr. Zakoworotny to the Israels, registered as Document No. 439,855 on Transfer Certificate of Title No. 112,180, states that “Said land is subject to and has the benefit of the restrictions and reservation set forth in Document No. 383,706.” The Israels’ Transfer Certificate No. 112,180 similarly states, “Said land is subject to and has the benefit of the restrictions, reservation and right to use Lot 15 as set forth in Document No. 383,706.” Exhs. 15, 16.

The Ferguson Property’s Chain of Title

10. Mr. Sykes conveyed Lot 2, the Ferguson Property, to Sanford and Carol Kreiger by deed registered as Document No. 301,591 on Transfer Certificate of Title No. 90088 dated November 4, 1982. Document No. 301,591 provides: Said lot is to be conveyed together with the right to use the way twenty (20) feet wide running along the common boundary line between Lots 2 and 3, as shown on plan annexed hereto, from Crowell’s Bog Road to Sheep Pond in common with the Grantor and the now and future owners of Lots 1 through 14, as shown on Subdivision Plan 38182-A (Key Sheet 1) for access to Beach Area “C”, as shown on said plan, and to use said Beach Area “C”, as shown on said plan, for beach purposes in common with the Grantor and the now or future owners of Lots 1 through 14.

Exh. 4.

11. The Krieger Transfer Certificate No. 90088 states, “Said land is subject to and has the benefit of the restrictions, additional rights and reservation as set forth in Document No. 301,591.” Exh. 5.

12. The Kreigers conveyed Lot 2 to Stephen and Lesley Shimer by deed registered as Document No. 392,218 on Transfer Certificate of Title No. 106,135 dated April 25, 1986. Both the deed and the certificate contain identical language stating, “Said land is subject to and has the benefit of the restrictions, additional rights and reservation as set forth in Document No. 301,591.” Exhs. 6, 7.

13. On January 25, 1993, Mr. Sykes, the Israels, and the Shimers executed a document entitled “Termination of Rights”, which was registered as Document No. 577,979 on March 22, 1993. Up until that time, Mr. Sykes had conveyed not only Lots 2 and 3, but also Lot 4 and Lot 5 (the Rigo Property). He continued to hold title to Lots 8, 9, 10, 11, 12, and 15 in the subdivision and had reserved the right to grant easements for the benefit of those lots to use the Way and Beach Area “C”. The parties acknowledged in the Termination of Rights agreement that “Sykes has granted as appurtenant to Lots 2, 3, 4 and 5 the right to use the way twenty (20) feet wide running along the common boundary line between Lots 2 and 3 as shown on Land Court Subdivision Plan No. 38182-A (Sheet 4) and to use Beach Area ‘C’ also shown on said plan.” The document further provided that:

1. Sykes, his heirs and assigns forever, hereby relinquishes and terminates any and all right, title and interest in the Right of Way and Beach which may now or in the past has been appurtenant to the lots which he is the fee owner, those lots being Lots No. 8, 9, 10, 11, 12, 15 [] described in Certificate of Title No. 89008 on Plan 38182-A and Lots 17, 18, 19, 20 on Plan 38182-B,

2. Sykes, his heirs and assigns forever, hereby relinquishes and terminates any rights he may have or have had to grant an easement, right of way, license or any other encumbrance whatsoever over the Right of Way and/or the Beach described on Land Court Subdivision Plan 38182-A,

3. Sykes represents and warrants that no other rights to use either the Right of Way or Beach have been granted except as appurtenant to the said Lots 2, 3, 4 and 5.

Exh. 8.

14. The Shimers conveyed Lot 2 to Robert and Elizabeth Weiss by quitclaim deed registered as Document No. 821,332 on Transfer Certificate of Title No. 160,315 dated January 5, 2001. Following the execution of the Termination of Rights agreement, neither the Weiss deed nor their transfer certificate reference the easement rights contained in the first deed from Mr. Sykes to the Kriegers, Document No. 301,591. However, the Memoranda of Encumbrances, attached to the Wiesses’ Transfer Certificate, lists Document No. 301,591 along with the notation, “RTS RS & RESERVE” and Document No. 577,979 (the Termination of Rights agreement) with the notation, “RTS TO GRANT EASEMENT”. Exhs. 9, 10.

15. The Weisses conveyed Lot 2 to the Fergusons by quitclaim deed registered as Document No. 1,195,430 on Transfer Certificate of Title No. 197,550 dated July 2, 2012. Like the prior conveyance, the deed to the Fergusons and their Transfer Certificate do not contain any reference to the easement rights granted in Document No. 301,591. However, once again, the Memoranda of Encumbrances attached to the Fergusons’ Transfer Certificate of Title includes Document No. 301,591 along with the same notation, “RTS RS & RESERVE” and Document 577,979 with the notation, “RTS TO GRANT EASEMENT.” Exhs. 11, 12.

The Rigo Property’s Chain of Title

16. The Rigo Deed provides that Lot 5, the Rigo Property, is benefited by an easement to use the Way, as follows:

Said lot is conveyed together with the right to use the way twenty (20) feet wide running along the common boundary line between Lots 2 and 3, as shown on the [Plan], from Crowell’s Bog Road to Sheep Pond, in common with all others entitled thereto for access to Beach Area “C” as shown on said plan, and to use Beach Area “C” as shown on said plan for beach purposes in connection with all others entitled thereto.

Exh. 24.

17. This language is nearly identical to that contained in the initial deed for Lot 5 from Mr. Sykes to Ronald and Patricia Messer, registered as Document No. 314,992 on July 15, 1983, which provides:

Said lot is conveyed together with the right to use the way twenty (20) feet wide running along the common boundary line between Lots 2 and 3, as shown on the [Plan], from Crowell’s Bog Road to Sheep Pond, in common with the Grantor and all others entitled thereto for access to Beach Area “C” as shown on said plan, and to use Beach Area “C” as shown on said plan for beach purposes in common with the Grantor and others entitled thereto.

Exh. 20.

18. This language is found in all subsequent deeds conveying Lot 5, first from the Messers to Frank and Kathleen Kardos, and then from Mr. and Ms. Kardos to Iris Martin. Ms. Martin’s interest was foreclosed on by JP Morgan Chase according to the Memoranda of Encumbrances accompanying Ms. Martin’s Transfer Certificate of Title No. 142,085. Exhs. 20, 22, 23.

The Present Dispute

19. Shortly after Mr. Rigo purchased Lot 5 in January 2013, he hired a surveyor to survey and stake the boundaries of the Way. When the Israels came back from vacation some time in February 2013, Mr. Israel noticed the survey work. There was close to a foot of snow on the ground, and it looked like some trees had been cut down. Mr. Israel got Mr. Rigo’s phone number from the real estate broker who sold the Rigo Property and the two of them spoke on the phone. Mr. Rigo told Mr. Israel that he had easement rights to use the Way and Beach Area “C”, but Mr. Israel responded that that was “subject to question.” Mr. Rigo acknowledged that he had cut some pine trees, saplings, and brush in the Way and also in the vicinity of the Sheep Pond when he was with his surveyor. Tr. I-51-53, 107-109.

20. Mr. Israel went away on another trip, and when he returned later in February, the snow had melted, and he noticed more extensive cutting than he had anticipated. Other trees had red tags on them, indicating that they would be cut down in the future. Later on, Mr. Israel observed Mr. Rigo standing in the Way. Mr. Israel had never met Mr. Rigo in person and he asked who he was. Mr. Rigo identified himself and said he had the right to be in the Way. Mr. Israel then called the police who asked Mr. Rigo to leave the Israel Property, which he did without incident. Tr. I-54-56.

21. Mr. Israel contacted the Brewster Conservation Commissioner and made a complaint regarding the cutting of trees and vegetation in the Way. On March 27, 2013, the Conservation Commission issued an Enforcement Order to Mr. Rigo prohibiting “any further vegetation or soil disturbance, or other work within 100 feet of wetland resources until written permission is obtained from the Conservation Commission.” Exh. 40; Tr. I-59-60, 63-64.

22. Mr. Israel testified that since June 2013, the path that is within the Way leading to Sheep Pond appears to have been widened further. On July 13, 2013, Mr. Israel observed Mr. Rigo and his fiancée along with their attorney walking within the Way. He heard rustling and branches snapping in the thicket. Mr. Rigo acknowledged that he has walked within the Way several times, and in the course of so doing has likely walked on vegetation. On August 2, 2013 the Conservation Commission issued a Notice of Violation to Mr. Rigo, alleging that since March 2013, there had been “trampling and destruction of vegetation” within 100 feet of wetlands resources without prior authorization by the Conservation Commission. Exh. 41; Tr. I- 65-70, 111.

23. The defendants presented the testimony of Catherine Boretos. Ms. Boretos is a wetland wildlife biologist and professional wildlife tracker. She earned a bachelor’s degree in environmental studies from the University of Massachusetts Amherst and has worked in the town of Barnstable as the Conservation Administrator. She also spent six years in the southeast regional office of the Massachusetts Department of Environmental Protection. She now owns her own environmental consulting business. Tr. I-145-146.

24. Ms. Boretos visited the Way and Beach Area “C” on June 28, 2013. Beginning from Crowell’s Bog Road, she observed pitch pines, oaks, stumps and shrubbery in the upland area of the Way, farthest from Sheep Pond. As she moved north on the Way, toward the Pond, she observed vegetation that included tupelo canopy, pepperbush, and high blueberry, species which are categorized as wetlands species under the Massachusetts Wetlands Protection Act, G.L. c. 131, § 40 (Wetlands Protection Act) and the Brewster Wetlands Protection Bylaw (Brewster Wetlands Bylaw). She measured this area as 82.5 feet from the edge of Sheep Pond, and placed three vegetated wetlands flags across the Way, which, in her opinion, marked the boundary between bordering vegetated wetlands (a protected resource area under the Wetlands Protection Act) and upland. Tr. I-147-150, 155.

25. The regulations of the Wetlands Protection Act provide the following definition of bordering vegetated wetlands:

Bordering Vegetated Wetlands are freshwater wetlands which border on creeks, rivers, streams, ponds and lakes. The types of freshwater wetlands are wet meadows, marshes, swamps and bogs. Bordering Vegetated Wetlands are areas where the soils are saturated and/or inundated such that they support a predominance of wetland indicator plants. The groundwater and surface water regime and the vegetational community which occur in each type of freshwater wetland are specified in M.G.L. c. 131, § 40.

310 CMR 10.55(2)(a).

26. The regulations of the Brewster Wetlands Bylaw use the term “vegetated wetlands” [Note 2] and provide a similar definition:

Vegetated Wetlands are freshwater wetlands. The types of freshwater wetlands are wet meadows, marshes, swamps and bogs. They are areas where the topography is low and flat, and where the soils are annually saturated. The ground and surface water regime and the vegetational community which occur in each type of freshwater wetland are specified [] below.

Exh. 28, Brewster Wetlands Bylaw Regulations, Section 3.02(2)(a).

27. Under the Wetlands Protection Act, activities that are proposed within 100 feet of a protected wetlands resource area, such as a bordering vegetated wetland, are subject to regulation by the local Conservation Commission. 310 CMR 10.02(2)(b).

28. The Brewster Wetlands Bylaw also regulates activity within 100 feet of a protected resource area, and also imposes a further prohibition on any activity within 50 feet of a vegetated wetland except as permitted by a variance from the Brewster Conservation Commission. Exh. 28, Brewster Wetlands Bylaw Regulations, Section 3.02(3).

29. On the south side of Beach Area “C”, Ms. Boretos identified a vernal pool in the area labeled “Vegetated Wetland” on Exhibit 26A. A copy of Exhibit 26A is attached to this Decision as Exhibit 2. While examining this area, Ms. Boretos observed a juvenile spotted salamander. The spotted salamander is an obligate species, which means a species that only breeds in vernal pools. Based on these observations during the site visit, Ms. Boretos completed a “Vernal Pool Field Observation Form” on July 11, 2013, which she submitted to the Natural Heritage and Endangered Species Program of the Massachusetts Division of Fisheries and Wildlife. Exhs. 26, 30; Tr. I-161-164, Tr. II-55.

30. The Wetlands Protection Act regulations provide the following definition of a vernal pool habitat:

Vernal pool habitat means confined basin depressions which, at least in most years, hold water for a minimum of two contiguous months during the spring and/or summer, and which are free of adult fish populations, as well as the area within 100 feet of the mean annual boundaries of such depressions, to the extent that the such habitat is within an Area Subject to Protection Under M.G.L. c. 131, § 40 as specified in 310 CMR 10.02(1). These areas are essential breeding habitat, and provide other extremely important wildlife habitat functions during non-breeding season as well, for a variety of amphibian species such as wood frog (Rana sylvatica) and the spotted salamander (Ambystoma macultum), and are important for other wildlife species.

310 CMR 10.4.

31. On August 20, 2013, while the trial was in progress, the Division of Fisheries and Wildlife issued a certification of the vernal pool identified by Ms. Boretos. This certification creates a rebuttable presumption that “may be overcome upon a clear showing to the contrary.” Exh. 49; Tr. II-104, III-129-132, IV-5; 310 CMR 10.57(2)(a)(5).

32. Under the Wetlands Protection Act regulations, a project that alters a vernal pool habitat beyond certain minimum thresholds “may be permitted only if [the alterations] will have no adverse effects on [the] wildlife habitat.” 310 CMR 10.60.

33. A significant portion of Sheep Pond, including all of Beach Area “C” and part of the Way, has been designated on a map by the Massachusetts Division of Fisheries and Wildlife as Priority Habitat 1195 (PH 1195) pursuant to the Massachusetts Endangered Species Act, G.L. c. 131A (Endangered Species Act). Additionally, a small area in the vicinity of Beach Area “C” shown on a map developed by the Massachusetts Department of Environmental Protection in conjunction with the University of Massachusetts has also been designated as a Habitat of Potential Regional or Statewide Importance. These maps are developed based on field observations by biologists. Exhs. 31-33; Tr. I-169-177; Tr. II-68, 88.

34. These designations indicate the presence of the Pine Barrens Bluet, which is listed as a “threatened species” by the Endangered Species Program of the Massachusetts Division of Fisheries and Wildlife. Exh. 34; Tr. I-177.

35. Ms. Boretos observed a pair of Pine Barrens Bluets adjacent to Beach Area “C” when she was at the site on June 28, 2013. Exh. 35; Tr. I-178.

36. The Pine Barrens Bluet is a type of semi-aquatic damselfly approximately one inch in length with blue and black stripes. The Bluets mate on emergent vegetation along pond shorelines. During summer months, the females lay eggs within the vegetation, which hatch during the fall. The nymphs go into the water and develop during the winter and spring. In the summer, they emerge from the water and crawl onto the emergent vegetation where they transform into adults over the course of a few hours. They fly to the upland where they feed for a week or two before returning to the wetlands where they mate. An adult Bluet’s lifespan lasts approximately three to four weeks. Exh. 34; Tr. I-179-180.

37. There is emergent vegetation in the vicinity of Beach Area “C” as well has along the shoreline of the Israel and Ferguson properties. Exhs. 27, 39B, 39C; Tr. I-181-182; View.

38. Projects that are proposed for areas that have been designated as Priority Habitats are subject to additional regulation under the Endangered Species Act. 321 CMR 10.00.

39. For a project within a Priority Habitat, the project proponent must file plans with the Division of Fisheries and Wildlife, which reviews the project to determine whether there is a “take” of a state-listed species. 321 CMR 10.18.

40. The Endangered Species Act regulations define a “take” as:

Take, in reference to animals, means to harass, harm, pursue, hunt, shoot, hound, kill, trap, capture, collect, process, disrupt the nesting, breeding, feeding or migratory activity or attempt to engage in any such conduct, or to assist such conduct, and in reference to plants, means to collect, pick, kill, transplant, cut or process or attempt to engage or to assist in any such conduct. Disruption of nesting, breeding, feeding or migratory activity may result from, but is not limited to, the modification, degradation or destruction of Habitat.

321 CMR 10.02.

41. If the Division of Fisheries and Wildlife determines that a project will result in a take, the regulations provide that a project proponent may request a consultation to discuss options that will avoid a take. 321 CMR 10.18(3).

42. Under the Wetlands Protections Act, a proponent of a project that lies within the habitat of a state-listed species must also submit a copy of the Notice of Intent to the Endangered Species Program, which assists the Conservation Commission in determining whether the project will have “any short or long term adverse effects on the habitat of the local population of that species.” If so, such projects “shall not be permitted.” The regulations also provide that the Endangered Species Program may assist the project proponent and the Conservation Commission with determining whether the project can be designed in such a way that it will meet the no “short or long term adverse effects” performance standard. 310 CMR 10.59.

43. Mr. Rigo presented the testimony of John O’Reilly, a professional engineer and land surveyor. Mr. O’Reilly has presented projects to the Brewster Conservation Commission in the past and has appeared in front of other conservation commissions throughout Cape Cod hundreds of times since the late 1980s. Tr. II-155.

44. On July 17, 2013, Mr. O’Reilly prepared a survey of the Way and Beach Area “C” (Survey Plan). The Survey Plan is attached to this Decision as Exhibit 2. The Survey Plan shows the edge of Sheep Pond as of June 2, 2013 as well as the edge of the Sheep Pond as of July 21, 1980 as shown on Land Court Plan 38182-A. Mr. O’Reilly was able to superimpose the 1980 line on the Survey Plan by using a computer program. It is common for pond boundaries to fluctuate over time with the changing levels of water within a pond. From his prior experience doing survey work on Sheep Pond and his knowledge of precipitation levels during the previous spring, Mr. O’Reilly testified that the water level was at the highest he had seen in some time. Exhs. 25, 26A; Tr. II-166-173.

45. Mr. O’Reilly disagreed with Ms. Boretos’s opinion that the water levels in the Pond had been lower than average, and that there was evidence of overwash, or sand found beyond the shoreline bank. In Mr. O’Reilly’ opinion the root massing that he observed at the bottom of tree trunks was not conclusive evidence that those trunks had been submerged beneath Sheep Pond. Rather, such massing could be caused by an elevated groundwater table. Mr. O’Reilly found no evidence of overwash and concluded, based on his field observations, that Beach Area “C” had never been submerged or completely underwater. Tr. II-16-17, 173-178.

46. I credit Mr. O’Reilly’s observations and conclusions, which align with my own observations at the view. Beach Area “C’ is presently overgrown with vegetation, but there is still enough room to place beach chairs or launch a small canoe or kayak from the shore. I thus find that Beach Area “C” still exists, and while its boundary with the Pond varies with the level of water in the Pond, the Beach has not been submerged beneath Sheep Pond. Exh. 27; View.

47. Mr. O’Reilly placed wetland flags 1-5, as shown on the Survey Plan, to delineate what he believes constitutes the bordering vegetated wetlands boundary. Mr. O’Reilly testified that he determined this boundary by relying on the Massachusetts Department of Environmental Protection’s handbook for identifying wetlands, which focuses on evaluating three components: soils, hydrology, and plants. Exh. 26A; Tr. II-180-183.

48. Ms. Boretos set her bordering vegetated wetlands boundary further up the Way, approximately 82.5 feet from the edge of Sheep Pond. In doing so, she relied on the Brewster Wetlands Bylaw, which defines the boundary of vegetated wetlands as “the line within which 50 percent or more of the vegetational community consists of the wetland plant species identified [in the Bylaw].” Although the 50 percent proportion of wetlands species plants is the only parameter called for in the Brewster Wetlands Bylaw, Mr. Boretos also testified that the soil from the test pit she dug was dark with organic material, indicating a hydraulic soil condition. Exhs. 26A, 28, Brewster Wetlands Bylaw Regulations, § 3.02(2)(c); Tr. I-149, 151-155.

49. Mr. Rigo also presented the testimony of Paul Shea, a certified professional wetland scientist who is the president of Independent Environmental Consultants, Incorporated. Mr. Shea received a bachelor’s degree in 1980 from Northeastern University in environmental science and a master’s degree from Brown University in 1989 in environmental studies with a concentration in wetlands and hydrology. He served as the conservation agent for Cohasset, Scituate, and Brewster from 1999 to 2002. He also represents private landowners before conservation commissions, primarily in southeastern Massachusetts. After ceasing employment with the town of Brewster in 2002, Mr. Shea has represented property owners before the Brewster Conservation Commission approximately 25 to 30 times. He has filed approximately 50 to 75 applications under the Endangered Species Act. Exh. 46; Tr. III-134-139.

50. Mr. Shea testified that in 1995, the Massachusetts Department of Environmental Protection (DEP) changed its wetlands regulations regarding the delineation of bordering vegetated wetlands. Prior to 1995, DEP regulations focused only on areas where there was greater than 50 percent wetland vegetation. In March of 1995, DEP implemented the “three parameter method” which takes into account 50 percent wetland vegetation, as well as hydric soils and wetlands hydrology. This method was developed by the Army Corps of Engineers in 1987. Tr. III-140-141.

51. Mr. Shea testified that based on his own site inspection and review of DEP data sheets compiled by Mr. O’Reilly’s firm, he agreed with Mr. O’Reilly’s vegetated wetlands boundary. Mr. Shea dug a test pit on August 19, 2013 approximately two feet down gradient from where Ms. Boretos set her vegetated wetlands flag 82.5 feet from the Pond. Mr. Shea dug his test pit 36 inches down into the ground and found no saturated soils or hydric soils, just “basically dry upland soils.” Exh. 26A; Tr. III-144-148, 211.

52. Mr. Shea opined that based on past experience, officials at the Division of Fisheries and Wildlife would take into account the existence of emergent vegetation along the southern shore of Sheep Pond when determining whether a project by Mr. Rigo might result in a “take” with respect to the Pine Barrens Bluet. This was in response to a question posed by Mr. Rigo’s counsel that incorrectly implied that the Natural Heritage and Endangered Species Program was responsible for determining whether a project in a Priority Habitat results in a take. The regulations of the Endangered Species Act vest that responsibility with the Division of Fisheries and Wildlife. Tr. IV-81-82; 321 CMR 10.18.

53. The defendants presented Derek Michael Ball as a rebuttal witness. Mr. Ball is a wetland scientist. He earned his bachelor’s degree in plant biology from the University of Massachusetts. He works at Wilkinson Ecological Design in Orleans where he consults on rare species and wetlands matters. Mr. Ball dug his own test pit 18 inches deep approximately five feet from Ms. Boretos’ wetlands flag. Mr. Ball examined the characteristics of the soil profile and classified the soil as spodosol, which indicates the presence of aluminum and iron and what Mr. Ball deemed “redoximorphic features” which is a technical term for mottling. These features are associated with wet soils. On cross-examination, Mr. Ball acknowledged that he did not find actual saturation in his test pit, but the characteristics of the soil profile indicated to him there is soil saturation during some periods of the year. Exhs. 26A, 54, 55, 56, 57, 58, 59, 60; Tr. IV-97-99, 101, 104-105, 107-111, 113-115, 126.

54. Although there was extensive expert testimony from both sides regarding the bordering vegetated wetlands boundary, for the purposes of this decision, I need not determine the precise location of that boundary.

55. Under either Ms. Boretos’s proposed vegetated wetland boundary or the boundary set by Mr. O’Reilly, the experts agree that Beach Area “C” is within a bordering vegetated wetland. Ex. 26A; Tr. III-92.

56. Since Beach Area “C” lies within a bordering vegetated wetland, whether or not Mr. Rigo can use Beach Area “C” for beach purposes—the specific purpose for which the easement was granted—is subject to the performance standards set forth in the Wetlands Protection Act regulations and the regulations promulgated under the Brewster Wetlands Bylaw. 310 CMR 10.55(4)(a); Exh. 28, Brewster Wetlands Bylaw Regulations, Section 3.02(3).

57. The Brewster Conservation Commission has the authority to enforce the Wetlands Protection Act and the Brewster Wetlands Bylaw and its regulations. G.L. c. 131, § 40; Exh. 28, Brewster Wetlands Bylaw, Section 172-1.

58. The Brewster Conservation Commission has the discretion to allow projects that alter a bordering vegetated wetland and a rare species habitat so long as it finds, in its discretion, that the project meets the performance standards set forth in the Wetlands Protection Act regulations. The Conservation Commission may also grant variances in its discretion from the Brewster Wetlands Bylaw, in accordance with certain general conditions. 310 CMR 10.55(4)(b); Exh. 28, Brewster Wetlands Bylaw Regulations §§ 3.02(3) and 5.01.

59. Mr. Rigo has not filed any Notice of Intent with the Brewster Conservation Commission or developed any plans for using the Way and Beach Area “C”. Tr. I-104-106.

60. Mr. Rigo testified that gaining access to Sheep Pond has value to him because, unlike Long Pond, Sheep Pond has better protection from wind, popular fishing areas, more stringent limits on motorized boats, and would likely offer superior ice skating conditions in winter months. Tr. I-124-130.

61. Mr. O’Reilly opined that the Conservation Commission would likely approve a meandering four foot wide pathway, contained within the bounds of the Way and terminating at Sheep Pond. Based on his work on four or five walkways leading to ponds in Brewster over the last four years, Mr. O’Reilly testified that he believed the Commission would approve using a natural bark or mulch product to cover the surface of the pathway. As an alternative to a surface pathway, Mr. O’Reilly might propose an elevated boardwalk supported by posts that would be constructed through the bordering vegetated wetland area. This would allow vegetation to continue to grow underneath and around the boardwalk. Tr. III-8-11, 33-35.

62. Since 2012, Mr. O’Reilly has obtained permits from the Brewster Conservation Commission for two projects that involved obtaining access to ponds in Brewster. In the first project, situated on Blueberry Pond, Mr. O’Reilly proposed a raised walkway through the 100 and 50 foot buffer zones and a bordering vegetated wetland that transitioned into two seasonal docks. The docks served as community docks for a large condominium development. A second project involved access to Seymour’s Pond in Brewster. In that project, Mr. O’Reilly proposed a four foot wide on the ground path through the bordering vegetated wetland coupled with an elevated stairway extending out into the water. The second project was approved even though the property owners had access to a nearby beach and dock through their subdivision’s homeowner’s association. Tr. II-156, 200-204, 208-209, III-38-43, 107.

63. Mr. O’Reilly has never applied for variances to gain access to a freshwater pond for projects adjacent to a vernal pool habitat or a rare species habitat and could offer no opinion on the likelihood that the Brewster Conservation Commission might approve such a project. Tr. III-116.

Conclusions of Law

Mr. Rigo’s complaint has two counts. Count I seeks a declaration that Mr. Rigo enjoys the right to use the Way to get to Beach Area “C” and the right to use the Beach for “beach purposes.” Count II is for injunctive relief permanently enjoining the defendants from interfering with Mr. Rigo’s use of the Way and Beach Area “C”. The defendants’ counterclaim has two counts. The first seeks a declaration that Mr. Rigo’s easement rights have been extinguished. The second is for trespass against Mr. Rigo for cutting trees on the defendants’ properties without permission. Based on the findings of fact set forth above, I treat each claim in turn.

Notice of the Easement. Owners of registered land take title “free from all encumbrances except those noted on the certificate,” G.L. c. 185, § 46, and the decree of registration and all other subsequent certificates “shall set forth … all particular … easements … to which the land or owner’s estate is subject.” G.L. c. 185, § 47; see Jackson v. Knott, 418 Mass. 704 , 710 (1994). Mr. Rigo seeks a declaration that the defendants had sufficient notice of the easement such that it remains binding on their properties.

In the Defendants’ Requests for Findings of Fact and Rulings of Law, they concede that the easement burdens the Israel Property, but with respect to the Ferguson Property, they contend “there is no reference in the Ferguson Certificate of Title to the 20 foot way (Beach Area “C” is entirely on the Israel land) and … therefore the Ferguson land is free of any easement running in favor of the Plaintiff.” Defendants’ Requests for Findings of Fact and Rulings of Law at n. 1.

Following the Termination of Rights agreement executed by Mr. Sykes, the Israels, and the Shimers (the Fergusons’ predecessors in title), subsequent transfer certificates of title for the Ferguson Property no longer referenced the easement rights contained in the first deed out from Mr. Sykes, Document No. 301,591. Mr. Rigo’s claim that he has an express registered easement over the Ferguson property would therefore appear to fail, since “[i]n order to affect registered land as the servient estate, an easement must appear on the certificate of title.” Jackson, 418 Mass. at 710, quoting Tetrault v. Bruscoe, 398 Mass. 454 , 461 (1986).

There are, however, two well-established exceptions to this rule. “If an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest.” Id. at 711. The Fergusons’ Transfer Certificate of Title references Lot 2 on Plan 38182-A (Sheet 4). “If a plan is referred to in the certificate of title, the purchaser would be expected to review that plan.” Id. The plan clearly shows the Way, half of which runs over the Ferguson Property. The plan should have prompted the Fergusons to investigate the registered documents for other lot owners in the subdivision to determine whether they had an interest in the Way shown on the plan. Id. at 712 (a plan showing a way should have led purchasers to examine certificates of other landowners). Such an investigation would have revealed the grant of easement burdening the Ferguson Property and benefiting the Rigo Property that was contained in the deed from Frank and Kathleen Kardos to Iris Martin, Mr. Rigo’s predecessor, which was registered as Document No. 676,610 on September 20, 1996 and was available to the Fergusons at the time they purchased Lot 2.

Furthermore, the Memoranda of Encumbrances that accompanied the Fergusons’ Transfer Certificate also contains facts that gave the Fergusons notice of the easement. The Memoranda lists Document No. 301,591 along with the notation “RTS RS & RESERVE.” Document No. 301,591 is the first deed from Peter Sykes conveying Lot 2, which states that the lot is conveyed with the right to use the Way in common with the Grantor and the now or future owners of Lots 1 through 14. The Memoranda of Encumbrances also lists Document No. 577,979 with the notation “RTS TO GRANT EASEMENT.” That document is the Termination of Rights agreement between Mr. Sykes, the Israels and the Fergusons’ predecessors, the Shimers. That agreement plainly acknowledges that Mr. Sykes had already granted the right to use the Way to Lots 2, 3, 4, and 5 (Lot 5 is the Rigo Property). I therefore conclude that there were enough facts contained in the Fergusons’ Transfer Certificate and other documents within the registration system to give the Fergusons’ sufficient notice of the easement to use the Way that burdens their property. The Rigo Property has the benefit of an easement to use the Way.

Scope of the Easement. When an easement is created, every right necessary for its enjoyment is included by implication but “the extent of the easement is still regulated, however, by the intent of the parties as manifested by the language used in the grant.” Commercial Wharf E. Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 138 (1990). The principles for interpreting the deeds and other instruments in the chain of title are similar to those for interpreting contracts. Estes v. DeMello, 61 Mass. App. Ct. 638 , 642 (2004). The meaning of the deed, “derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.” Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998).

In the court’s Order Denying Motion for Preliminary Injunction (Jun. 19, 2013), I ruled that the language of the easement does not grant a right to use the Way to reach Sheep Pond. The easement, by its explicit terms, only grants a right to use the Way to access Beach Area “C” so that the easement holder may take advantage of the easement’s other grant to use Beach Area “C” for “beach purposes.” I now reaffirm that ruling.

Although no Notice of Intent has yet been filed with the Brewster Conservation Commission, the plaintiff’s expert witnesses testified that they contemplated a plan that consists of a four foot wide walkway leading to the edge of Sheep Pond. During closing arguments, however, Mr. Rigo requested this court enter a judgment declaring that the right to use the Way is not limited to foot traffic, but also extends to motorized vehicles such as ATVs.

The grant of easement from Mr. Sykes does not expressly limit use of the Way to foot traffic. Mr. Sykes’ intent, however, may be gleaned from the surrounding circumstances at the time the easement was granted. Mr. Sykes’ Petitioner’s Plan filed in Registration Case 38182- A4 describes the Way as a “20 FT. FOOT PATH (EASEMENT).” See Exh. 1. At the time the easement was granted to Mr. Rigo’s predecessor, Mr. Sykes had reserved the right to grant other easements over the Way for the benefit of all other lot owners in the subdivision. [Note 3] If he had intended these grants to include the right to use motorized vehicles, he would have needed to provide an area for these lot owners to park their vehicles while using Beach Area “C”, but no such area is shown on any subdivision plan and Beach Area “C” is certainly not large enough to accommodate both beach users and their vehicles. From these attending circumstances, I conclude that Mr. Rigo’s right to use the Way is limited to foot traffic and other non-motorized means of travel.

Extinguishment. Mr. Rigo holds a record easement to use the Way for foot traffic to access Beach Area “C”. The defendants now seek to establish that this easement has been extinguished because of impossibility. As discussed above, the easement grants the right to use the Way only to access Beach Area “C”. It does not include the right to use the Way to reach Sheep Pond directly from the Way. The only purpose of the Way is to provide access to Beach Area “C” so that the easement holder can take advantage of the easement’s other grant to use Beach Area “C” for beach purposes. The defendants seek to establish that these two easement rights have been extinguished under two theories of impossibility. The first is that Beach Area “C” no longer exists and thus it cannot be used for beach purposes. The second is that given the significant regulatory hurdles associated with the protection of wetlands and rare species, it is legally impossible for the Brewster Conservation Commission to permit Mr. Rigo to access Beach Area “C” or use Beach Area “C” for beach purposes. If either theory is correct, then the purpose of the Way—to provide access to Beach Area “C” to use for beach purposes—would be negated. See Makepeace Bros., Inc. v. Town of Barnstable, 292 Mass. 518 , 525 (1935) (“When a right in the nature of an easement is incapable of being exercised for the purpose for which is created, the right is considered extinguished.”). The burden of proving extinguishment rests on the defendants.

The defendants first contend that Beach Area “C” is no longer a beach. They allege the area shown on the Land Court decree plan is now regularly submerged beneath the waters of Sheep Pond, and what remains is densely vegetated and unwelcoming to any prospective beach user. To be sure, Beach Area “C” hardly fits the ideal image of a beach. But from the testimony and exhibits admitted at trial, which were confirmed by my observations at the view, there is enough space on Beach Area “C” to place a chair to read a book or sunbathe, to go swimming or fishing, or to launch a small boat or kayak into the Pond. Thus, Beach Area “C’ is still capable of being used for these beach purposes, which is the specific purpose of the easement described in the granting instrument.

The defendants next contend that the regulatory issues associated with this site make it a legal impossibility that the Conservation Commission will ever permit Mr. Rigo to use Beach Area “C” for beach purposes. The Way travels through the 100 foot buffer zone under the Wetlands Protection Act regulations, the 50 foot buffer zone under the Brewster Wetlands Bylaw, bordering vegetated wetlands, and likely also a vernal pool habitat and priority/rare species habitat. The Brewster Conservation Commission and other state agencies have the authority to evaluate projects within these resource areas, but as of yet, Mr. Rigo has not filed any plans with either the Conservation Commission or any other agency.

The extinguishment of an easement due to impossibility requires that the purpose for which the easement was created be totally and permanently incapable of enjoyment. See First Nat’l Bank of Boston v. Konner, 373 Mass. 463 , 468 (1977). Thus, in Makepeace Bros., Inc. v. Barnstable, the Supreme Judicial Court held that an easement reserved for the particular purpose of operating “try yards” (an area where whale blubber was boiled to extract oil) had been extinguished since the whaling industry was no longer in existence. Makepeace Bros. Inc., 292 Mass. at 525. Similarly, in Murphy v. Conway, 20 LCR 26 (2012), this court ruled that an easement that provided access over a cliff to get to the sea had been extinguished by erosion, which dramatically changed the cliff from a gradual slope to a steep slope incapable of passage. Id. at 32-33. By contrast, in First National Bank of Boston v. Konner, the SJC affirmed a Land Court judge who concluded that a profit à prendre, which gave the right to take sand from one property for the purpose of sanding a cranberry bog, had not been extinguished despite the “practical, scientific, economic and legal impediments to a successful cranberry bog reclamation and growing process.” Konner, 373 Mass. at 468. The trial judge noted that there was a possibility, “however unlikely that possibility might be,” that the defendant might be able to exercise the sanding rights, provided the cranberry bog was restored from its overgrown and unused condition. Id.

The Brewster Conservation Commission has the discretion to approve a project that impacts wetland resource areas, provided the Commission finds that the project meets the appropriate performance standards under the Wetlands Protection Act. G.L. c. 131, § 40; 310 CMR 10.02, 10.55(4), 10.59, 10.60. The Conservation Commission also has the discretion to grant variances from the Brewster Wetlands Bylaw and its regulations. Brewster Wetlands Bylaw Regulations §§ 3.02(3), 5.07. Similarly, the Endangered Species Act regulations permit the Division of Fisheries and Wildlife to consult with a project proponent on ways to avoid a take if the project lies within a priority habitat. 321 CMR 10.18(3). Mr. Shea also testified credibly that the emergent vegetation found along the southern shore of Sheep Pond would be weighed by officials at the Division of Fisheries and Wildlife when considering whether a project by Mr. Rigo would result in a take.

As described in the findings above, the Brewster Conservation Commission has exercised this discretion with respect to two of Mr. O’Reilly’s recent projects on Blueberry Pond and Seymour’s Pond. Although I recognize the defendants’ argument that those projects might not have involved all of the protected resource areas present in this case, I decline to speculate on how the Conservation Commission or any state agency might review a project submitted by Mr. Rigo, which at this time has not even been reduced to a concrete plan. Because the discretion afforded to the Conservation Commission and to state agencies creates a possibility that Mr. Rigo could obtain an Order of Conditions to access and use Beach Area “C”, I cannot conclude, as a matter of law, that the easement has been extinguished based on the various regulations that might be at issue at this location.

Trespass. The Israels seek damages for the trees that were cut down within the Way, alleging that these acts by Mr. Rigo constituted a trespass to their property. A trespass is an invasion of a property owner’s interest in the exclusive possession of his land, as by an entry upon it. Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 90-91 (2005). To prevail on their trespass claim, the Israels must prove that (a) they have actual and lawful possession of the property, and (b) Mr. Rigo’s entry was intentional and illegal. Gillespie v. Aliot, 14 LCR 429 , 430 (2006); see New England Box Co. v. C&R Constr. Co., 313 Mass. 696 , 707 (1943). It is undisputed that the Israels have actual and lawful possession of their property. And there is also no dispute that Mr. Rigo entered their property and removed trees that were within the Way. However, since Mr. Rigo holds an easement to use the Way for access to Beach Area “C”, his entry on to the Israel property was not illegal and thus did not constitute a trespass.

“An easement is an interest in land which grants to one person the right to use or enjoy land owned by another.” Commercial Wharf E. Condominium Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 133 (1990). It “is by definition a limited, nonpossessory interest in realty.” M.PM. Builders, LLC v. Dwyer, 442 Mass. 87 , 92 (2004). “[W]hen an easement or other property right is created, every right necessary for its enjoyment is included by implication.” Guillet v. Livernois, 297 Mass. 337 , 340 (1937) quoting Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934). Ordinarily what follows from this principle is that an easement holder has the right to make improvements to a way that would otherwise be impassable and useless. Guillet, 297 Mass. at 340. Thus, under Mr. Rigo’s private easement rights, he is entitled to make reasonable improvements to the Way, which may include the removal of trees, without incurring liability to the Israels.

But here there is an important caveat. Because the Way travels through protected wetlands areas (whether beginning 82.5 feet from Sheep Pond or closer), Mr. Rigo’s private easement rights are ultimately subject to regulation by the Brewster Conservation Commission. The Enforcement Order and subsequent Notice of Violation from the Conservation Commission have undoubtedly made him aware of this. Thus, while I have concluded that Mr. Rigo retains his private easement rights over the Ferguson and Israel Properties, any use of or activity within the Way or Beach Area “C” must be carried out with the consent of the Conservation Commission and other appropriate state agencies. In other words, Mr. Rigo’s easement rights are subject to whatever limitations the Brewster Conservation Commission or any state agency places on their exercise. Any non-authorized activity, such as cutting trees or disturbing vegetated areas, is at Mr. Rigo’s own risk and subject to fines and sanctions imposed by the Conservation Commission or other state agency.

Judgment accordingly.