JAMES KANE, IRENE KANE, DONALD MANN, GERALDINE MANN and CROW POINT COMMUNITY CLUB vs. ROBERT STIMSON, CYNTHIA STIMSON, MICHAEL DONAHUE, MARY DONAHUE, AMYRA O'CONNELL, GEORGE SCHWARTZ and MARTHA SCHWARTZ, et al.

Plaintiffs James and Irene Kane (the “Kanes”), Donald and Geraldine Mann (the “Manns”), and the Crow Point Community Club filed their unverified Complaint and Jury Demand with the Plymouth Superior Court (Case Number PLCV2004-00828) on June 29, 2004, seeking a declaratory judgment as to deeded rights of access to Melville Walk, a private way, and a prescriptive easement in Melville Walk. [Note 1] Petitioners Michael Donahue and Mary R. Donahue (the “Donahues”) filed their unverified Complaint for Registration of Title pursuant to G. L. c. 185, § 26 (Registration Case No. 43381) with the Land Court on July 23, 2004, relative to land located at 2 Alice Walk, Hingham, MA (the “Donahue Property”). On the same day, Petitioner Amyra O’Connell (“O’Connell”) filed her unverified Complaint for Registration of Title pursuant to G. L. c. 185, § 26 (Registration Case No. 43382) with the Land Court relative to land located at 143 Downer Avenue, Hingham, MA. (the “O’Connell Property”), and Petitioners Robert C. Stimson and Cynthia J. Stimson (the “Stimsons”) filed their unverified Complaint for Registration of Title pursuant to G. L. c. 185, § 26 (Registration Case No. 43383) (together with Registration Case Nos. 43381 and 43382, the “Registration Cases”) with the Land Court relative to land located at 5 Melville Walk in Hingham, MA (the “Stimson Property”). The Donahue Property, the O’Connell Property, and the Stimson Property all abut Melville Walk. On August 30, 2004, title to the properties involved in the Registration Cases was referred to Land Court Title Examiner Jan E. Dabrowski, who filed his report on July 11, 2005. On October 18, 2004, the Plymouth Superior Court Case was transferred to the Land Court as Miscellaneous Case No. 302869 (the “Miscellaneous Case”). The central issues in all four of these cases are rights in the Beach and the status of Melville Walk, which provides the only access to the Beach other than Alice Walk, also a private way.

This court (Sands, J.) issued its Decision (the “Land Court Decision 1”) and Judgment (the “Judgment”) in this case on December 12, 2007, finding that: (1) the Donahues own the fee interest in the Beach and all of Alice Walk adjacent to their property; (2) each of O’Connell, the Stimsons, the Donahues, and the Schwartzs own the fee to the center line of Melville Walk adjacent to their respective properties; and (3) the Manns, the Dillons, the Arnolds, Campbell, the Kanes, Handrahan, and the Murrays have established prescriptive rights in both the southerly portion of Melville Walk for access to the Beach, and the Beach for uses consistent with the uses established by them over the last quarter to half century. On December 21, 2007, the Donahues filed their Motion for Clarification, Amendment and/or Reconsideration of the Judgment. [Note 2] On the same day, the Stimsons filed their Motion for Reconsideration and Clarification and to Alter and Amend the Decision and Judgment, [Note 3] and Plaintiffs filed their Motion for Reconsideration to Alter, Amend or Vacate the Judgment. [Note 4] On December 24, 2007, the Schwartzs filed their Motion for Clarification, Amendment and/or Reconsideration of the Judgment. [Note 5] A hearing on all motions was held on January 16, 2008, at which time issues relative to the definition of the Beach and the definition of uses of the Beach as specified in the Decision were raised. At that time the parties requested additional time to resolve these issues. Additional status conferences were held on March 4 and March 25, 2008, and on April 2, 2008 all parties filed a Notice of Status of Stipulations indicating that they needed more time to resolve their issues. Another status conference was held on July 1, 2008, at which time the parties asked for yet additional time to resolve their issues. On July 18, 2008, the Kanes, Handrahan, Dillon, Campbell, Kathleen Arnold and Carol Murray (“Benefitted Plaintiffs”), the Schwartzs, and the Donahues filed a Joint Report (the “Joint Report”) redefining the Beach, its uses, and the parties with rights in the Beach and Melville Walk. The Stimsons filed an opposition to the Joint Report and a proposed new report on July 23, 2008. Additional status conferences were held on September 18, 2008, and October 9, 2008. At the October 9, 2008 status conference, the parties (except the Stimsons) filed a Stipulated Amendment to Joint Report adding the Manns as Benefitted Plaintiffs, and redefining certain terms in the Joint Report. The Stimsons filed a final Report on October 10, 2008, and the Benefitted Plaintiffs and the Donahues filed a final Response on October 15, 2008. A final status conference was held with all parties on November 6, 2008. Despite their best efforts, there was no agreement among the parties as to the Stimson’s proposed new report.

On November 14, 2008, this court issued an Order and Revised Decision (“Revised Land Court Decision 1”) and Revised Judgment (the “Revised Judgment”), which amended Land Court Decision 1 as follows:

1. In the Decision, this court determined that the Donahues owned the Beach and that the Benefitted Plaintiffs had established prescriptive rights in the Beach. In the Decision, the Beach is delineated as follows:

[O]n the west by Melville Walk and the portion of Alice Walk abutting the Donahue Property, [Note 6] on the south by the Schwartz Property, on the east by Hingham Harbor, and on the north by Alice Walk and the land of the owners of lots 3-7 as shown on the 1897 Plan. The Beach is separated from the Schwartz Property on the south end by a row of rocks. On the north end and west end, it is marked by sea grass and a sea wall, and contains both a lower beach and an upper beach. The upper beach contains a picnic table with two attached benches, and the lower beach contains large logs used as benches. On the east end the Beach extends to the mean low water line of Hingham Harbor. [Note 7]

By agreement of the Donahues and the Benefitted Plaintiffs, the revised description of the portion of the Beach to which the Benefitted Plaintiffs have access (the “Permitted Beach”) is as follows, all as shown on the sketch attached hereto: on the west and south starting at a point on the south end of the Stone Retaining Wall, continuing in an arc southeasterly across Alice Walk to the midline of Melville Walk and continuing along the midline of Melville Walk to the point of intersection of the Stimson Property and the Schwartz Property, then continuing in a northeasterly direction to Hingham Harbor; on the east by Hingham Harbor,and on the north by a line running from Hingham Harbor to the southerly end of the Stone Retaining Wall along Alice Walk. [Note 8]

2. The Decision defined the use of the Permitted Beach as “uses consistent with the uses established by them [the Benefitted Plaintiffs] over the last quarter to half century,” and referenced uses including “activities such as swimming, wading, boating, walking, sitting, reading, skimming stones, playing, building rafts, and socializing.” The Joint Report indicates that the uses of the Permitted Beach shall be “for bathing and swimming purposes,” but there is also a reference in the Joint Report to use for boating purposes. As a result of discussions at the November 6, 2008, conference, the defined uses as stated in the Decision shall stand. In addition, the Joint Report stipulates that the Benefitted Plaintiffs shall have the right to place one bench (the “Bench”) on the Permitted Beach, just south of a rock that is permanently set into the Permitted Beach, and in line with the Stone Retaining Wall. The location of the Bench is shown on the sketch attached hereto. The use of the Permitted Beach shall be limited to the Benefitted Plaintiffs, their immediate families, and a total of three unrelated friends at any one time, with visits involving unrelated friends never to exceed four times in any one month. Any use of the Permitted Beach must include at least one Benefitted Plaintiff or a member of their immediate family. No such use of the Permitted Beach shall result in any party obtaining additional rights by prescription.

3. The Decision stated that “each of O’Connell, the Stimsons, the Donahues and the Schwartzs own the fee to the center line of Melville Walk opposite their respective properties.” The Decision further stated that the Benefitted Plaintiffs “have established prescriptive rights in . . . the southerly portion of Melville Walk for access to the Beach.” As a result, the Stimsons shall have the right to plant a privet row on the boundary of the Stimson Property and the portion of Melville Walk which they own.

4. The Benefitted Plaintiffs shall indemnify and hold harmless the Donahues, the Schwartzs, the Stimsons, and O’Connell, their heirs and assigns, relative to the Benefitted Plaintiffs’ use of the Permitted Beach, the Schwartz Beach, and Melville Walk.

5. The parties shall file a recordable plan to indicate the boundaries of the Beach, the Permitted Beach, and the Schwartz Beach as defined in this Order and Revised Decision. The parties shall also place markers on the ground to define the limits of the respective beaches.

6. Except as expressly modified herein, the remainder of the Decision shall remain as is. The Stimsons appealed Revised Land Court Decision 1 to the Appeals Court on December 5, 2008. Plaintiffs and the Donahues appealed Revised Land Court Decision 1 on December 15, 2008. The Schwartzs appealed Revised Land Court Decision 1 on December 18, 2008. The Stimsons filed a Motion for Relief Pending Appeal. By Order dated January 28, 2009, this court ordered that, during the pendency of the appeal:

1. Paragraph 5 of the Order (and the next to last paragraph of the Revised Judgment) requiring the parties to “file a recordable plan to indicate the boundaries of the Beach, the Permitted Beach, and the Schwartz Beach as defined in this Order and Revised Decision” is hereby stayed.

2. The final paragraph of the Revised Judgment requiring Defendants to “remove the Gate and any impediments to access over both the southerly portion of Melville Walk and the Permitted Beach” shall be modified to allow Defendants to keep the Gate up so long as it is not locked and the Benefitted Plaintiffs have unimpeded access to both Melville Walk and the Permitted Beach.

3. Paragraph 2 of the Order (and the fourth paragraph from the end of the Revised Judgment) stating the persons entitled to use the Permitted Beach shall be revised as follows: “The use of the Permitted Beach shall be limited to the Benefitted Plaintiffs and their immediate families.” [Note 9] There shall be no limit on the number of Benefitted Plaintiffs and their immediate families who can use the Permitted Beach at any one time.

By decision of the Appeals Court dated February 16, 2011 (the “Appeals Court Decision”), the Appeals Court held as follows:

The judgment is reversed insofar as it declares that the Donahues own the fee interest in the beach, that the 1929 deed conveyed no rights in the beach or Melville Walk to the deeded rights plaintiffs, that the deeded rights plaintiffs hold no easement rights in Melville Walk, and that certain of the deeded rights plaintiffs have acquired prescriptive rights to use Melville Walk and the beach. The case is remanded to the Land Court for determination of the rights held by the deeded rights plaintiffs. The judgment is affirmed insofar as it declares that the prescriptive plaintiffs have established prescriptive rights in the southerly portion of Melville Walk. The judgment is vacated insofar as it imposes an obligation on the prescriptive plaintiffs to indemnify and hold the defendants harmless from loss or damage resulting from the prescriptive plaintiffs’ use of Melville Walk and the beach. The judgment is also affirmed insofar as it dismisses the claims of the remaining plaintiffs. [Note 10]

On March 1, 2011, Defendants Vanzura and Donahue (the “Appeal Defendants”) filed a Petition for Rehearing with the Appeals Court. [Note 11] By Order on Petition for Rehearing dated March 28, 2011 (the “Appeals Court Order”), the Appeals Court denied the petition but added new language to the Appeals Court Decision. Subsequent to the Appeals Court Decision, the parties met a number of times to try to resolve their differences. This court held status conferences on May 8, 2013 and May 30, 2013, and when the parties could not resolve their differences, set a schedule for filing of briefs in this regard. On July 8, 2013, Plaintiffs filed a Motion for Entry of Final Judgment, together with supporting memorandum. The Appeals Defendants filed a Joint Motion to Strike Plaintiffs’ Motion for Entry of Final Judgment on July 19, 2013. At a status conference on September 3, 2013, this court accepted Plaintiffs’ filing as a Motion for Summary Judgment. The Appeals Defendants filed their Motion for Summary Judgment on September 25, 2012, and Plaintiffs filed their Reply Memorandum on October 4, 2013. After review of the papers, a status conference was held on October 28, 2013, at which this court expressed its view that no further decisions could be made relative to the Beach unless the Downer Estate (as defined in Land Court Decision 1) was brought in as a party. Additional status conferences were held on February 21, 2014, May 6, 2014, and May 9, 2014.

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The Appeals Court Decision remanded Revised Land Court Decision 1 to this court “for determination of the rights [in the Beach, Melville Walk and Alice Walk] held by the deeded rights plaintiffs.” [Note 12] The Appeals Court Decision noted that the May 1929 Deed had not been analyzed by the trial court, stating

Because the judge concluded that the 1929 instrument was ineffective to convey any rights in the beach and the ways, he did not reach or consider any other question that may exist concerning the claims of the deeded rights plaintiffs to rights derived from the 1929 instrument, and we decline to undertake such a determination in the first instance.

The May 1929 Deed granted

to WILLIAM DALEY, of Hingham, Plymouth County, Massachusetts, and to those claiming under him as their respective interests may appear as appurtenant to the land on Downer Avenue and Jarvis Avenue in that part of said Hingham called Crow Point . . . the right, so far as I have power to grant the same, to use the beach and shore of Hingham harbor opposite the end of Melville Walk and Lot 1 . . . for bathing, boating and all proper forms of recreation.

The two issues that require analysis in the interpretation of the May 1929 Deed are 1) who has rights in the Beach and 2) what are those rights. [Note 13] All parties agree that the issue of establishing what the rights in the Beach are will require bringing the Downer Estate into the litigation. At this point, they have not done so. In a telephone status conference held on May 15, 2014, Plaintiffs stated that they did not intend to amend their complaint to add the Downer Estate as a Defendant. The parties disagree as to whether the Downer Estate needs to be brought into the litigation to determine who the “deeded rights plaintiffs” are. Plaintiffs argue that the “deeded rights plaintiffs” are all of the parties mentioned in the Appeals Court Decision footnote as claiming such rights. Defendants argue that the “deeded rights plaintiffs” only include the Kanes, Arnolds, Mark G. Patrolia and Gayle Callahan, because the other Plaintiffs own their respective interest in their properties from a predecessor in title outside of the chain of title of the May 1929 Deed. All parties suggest that the issue of who the “deeded rights plaintiffs” are is a legal issue which the trial court can determine on its own without bringing in the Downer Estate. This court, however, feels that its determination of who the “deeded rights plaintiffs” are requires the Downer Estate being a party to the case, as the Downer Estate has the right to weigh in on who has rights in its Beach. [Note 14] [Note 15]

As a result of the foregoing, unless the Downer Estate is brought in as a party, I find that this court cannot adjudicate anyrights under the May 1929 Deed. Consequently, the Amended Judgment, as further amended by the Appeals Court Decision and the Appeals Court Order, stands.

Second Amended Judgment to enter accordingly.