JOHN L. COON III as Trustee of REXHAME TERRACE LAND TRUST, JOHN L. COON III as Trustee of REXHAME TERRACE BEACH PRESERVATION TRUST, DANA H. GALLUP, JOHN PARKS, and ELEANOR SLAWSON, as Trustees of REXHAME TERRACE BEACH TRUST, JOHN L. COON III, JUDITH F. COON, KATYA COON, DANA H. GALLUP, JOHN B. PARKS, SYLVIA PARKS, ELEANOR SLAWSON, as Trustees of MC SMITH FAMILY TRUST, TIMOTHY BURKE, SARAH BURKE, WILLIAM D. LEPERE as Trustee of EARLY BIRD REALTY TRUST, WILLIAM MOSTYN, SANDRA MOSTYN, JOHN O'DONOHUE, VICTORIA O'DONOHUE, MARTHA RODERICK as Trustee of ANOTHER REALTY TRUST, REYA SHOFFNER as Trustee of HAPPY HOUSE REALTY TRUST, FREYA SHOFFNER as TRUSTEE of BOAT HOUSE REALTY TRUST, DANIEL J. SULLIVAN and MARJORIE O. SULLIVAN, as Trustees under Indenture of Trust, WILLIAM TAYLOR, RICHARD J. WALKER and JANE WALKER v. MARIANNE MCCABE, AGNES MCCABE, LEO DELANEY, CLARE DELANEY, BRENDA JOHNSON, GEORGE JOHNSON, JAMES MCDERMOTT, CAROLE MCDERMOTT, WILLIAM MCGOWAN, JAMES ELIZABETH MCMANUS, KRISTEN PERRY, STEPHEN LEONARD, TOWN OF MARSHFIELD, and the COMMONWEALTH OF MASSACHUSETTS.

Reduced to its essence, the instant action concerns two principal issues. The first concerns the ownership of the area known as “Rexhame Beach,” [Note 1] which lies adjacent to the Rexhame Terrace Subdivision (Rexhame Terrace / Subdivision) in the town of Marshfield, Plymouth County, Massachusetts. The second issue, in general terms, concerns the right of the public to access the “beach” [Note 2] over the subdivision’s internal roadways.

Originally filed on July 22, 1998, this case has amassed an extensive procedural record. The current plaintiffs, described in further detail infra, consist of owners of various parcels within Rexhame Terrace and also of six so-called “beach lots” abutting the Subdivision. The defendants are the Commonwealth of Massachusetts (Commonwealth), the Town of Marshfield (Town), and individual defendants who have used the “beach” for many years and have gained access to it by means of the Subdivision roads. In the simplest terms, the plaintiffs allege that Rexhame Beach, including the tidal flats, and the ways within the Subdivision are privately owned. The defendants maintain that the Town owns the said “beach” and that the public enjoys a right to access over the Subdivision roads.

The plaintiffs’ four-count Amended Complaint includes: a claim of trespass against the individual defendants (Count I); a quiet title claim, pursuant to G.L. c. 240, § 6 against the individual defendants and the Commonwealth (Count II); and a claim to remove a cloud on title as a result of the reported decisions in Briggs Thomas v. Inhabitants of Marshfield, 27 Mass. 364 (1830) and Briggs Thomas v. Marshfield, 30 Mass. 240 (1832). Both of these decisions, dating to 1830 and 1832, respectively, involved the plaintiffs’ predecessor-in-title as well as the land here at issue (Count III). Lastly, the Amended Complaint also seeks a declaratory judgment that the Commonwealth and the individual defendants have no rights in the plaintiffs’ land in Rexhame Terrace or Rexhame Beach (Count IV). Although the Amended Complaint originally only named the Commonwealth and the individual defendants as defendants, the Town intervened in 2008, filed an Answer, and is presently a defendant in the instant action.

For the reasons that follow, this court concludes that the plaintiffs have no ownership interests in the tidal flats at Rexhame Beach and a portion of the “uplands,” which comprises some or all of the “beach lots.” As to the internal Subdivision ways, this court concludes that while Winslow Avenue, also known as Winslow Street Extension is a county way, the defendants have failed to demonstrate that the other Subdivision ways are “open to public use.”

BACKGROUND

Procedural History

The plaintiffs originally filed this action on July 22, 1998. On November 3, 1998, the plaintiffs filed a four-count Amended Complaint against the individual defendants and the Commonwealth, the specific counts of which are detailed supra. On December 8, 1998, the Commonwealth filed its answer, together with several counterclaims seeking declaratory, injunctive, and equitable relief. The Answer and Counterclaims of the Individual Defendants followed on January 8, 1999. On January 22, 1999, the Individual Defendants filed a Motion to Stay Proceedings Against Certain Defendants (Motion to Stay). The Motion to Stay asked that this court (Lombardi, J.) “stay further proceedings against [the individual defendants] and Agnes McCabe and Marianne McCabe (McCabe defendants) until such time as the plaintiffs’ claims against the Commonwealth of Massachusetts have been adjudicated and decided.” [Note 3] This court (Lombardi, J.) granted the Motion to Stay on March 12, 1999.

In late 2002, the plaintiffs moved for Summary Judgment. Subsequently, the Commonwealth filed a cross-motion for partial summary judgment. [Note 4] All pending motions for summary judgment were denied on November 12, 2003. After several years of “legal wrangling,” [Note 5] the plaintiffs and Commonwealth reported to this court (Grossman, J.) in a July 10, 2008 status conference that they had reached a settlement. Thereafter, on August 14, 2008, the Town of Marshfield (Town) moved to intervene, pursuant to Mass. R. Civ. P. 24, stating that it had “recently become aware of a proposed settlement of the case that might prejudice the rights of the inhabitants of the Town . . .” [Note 6] This court granted the Town’s Motion on October 10, 2008. The Town’s Answer to the Amended Complaint asserted several affirmative defenses, including, inter alia, that the plaintiffs were barred by res judicata and collateral estoppel, by virtue of the 1830s Briggs Thomas cases, from claiming any title to the “beach” at issue herein.

On October 8, 2008, the plaintiffs filed a Joint Motion to Enforce Settlement with the Commonwealth of Massachusetts (Motion to Enforce Settlement), alleging that “negative and ill informed public media comment, fomented by a campaign largely of misinformation, caused the Commonwealth to back way from the Agreement.” [Note 7] This court subsequently issued an order requesting that the parties “brief a legal issue not previously addressed by them, i.e. the applicability and effect, if any, of Article 97 of the Articles of Amendment to the Constitution of the Commonwealth, upon the alleged settlement agreement.” [Note 8] Prior to this court’s ruling on the Motion to Enforce Settlement, the plaintiffs filed a Motion to Substitute, given that a number of plaintiffs had died or sold their properties during the course of this litigation. Following several additional years of what the Town has referred to as “legal wrangling,” this court issued a detailed Order on Plaintiffs’ Motion to Substitute, which is incorporated by reference herein. [Note 9] The next day, this court denied the Motion to Enforce Settlement, stating:

In sum, this court is satisfied that neither the identities of the purposed Plaintiffs entering into the proposed settlement, nor the scope of the “public” on whose behalf the Commonwealth entered into settlement discussions, were known at the time of the settlement discussions. They have yet to be determined. The failure to properly identify, or even be aware of the parties to an agreement, is a material failing that in the view of this court precludes enforcement of that agreement. [Note 10]

On January 18, 2013, this court allowed multiple Motions for the Joinder of additional parties. [Note 11] At the same time, this court—having previously granted the plaintiffs’ motion to lift the stay against the non-government defendants imposed in March 1999 [Note 12]—bifurcated the trial. As to the bifurcation, “the so-called public portion of the matter [i.e. between the plaintiffs and the government defendants] will be tried and resolved. Thereafter, any remaining private claims will be tried as necessary.” [Note 13] In 2013, the Commonwealth waived its counterclaims. Following extensive oral arguments on pre-trial motions and rulings thereon, [Note 14] the trial limited to a consideration of “public rights” commenced.

Findings of Fact

The trial together with closing arguments spanned thirteen days. At that time a stenographer was sworn to take the testimony more than twenty (20) witnesses. [Note 15] Closing arguments took place on September 16, 2014. Approximately six hundred exhibits and chalks, many of them ancient documents, were admitted into evidence and are incorporated by reference for purposes of appeal. Proposed findings of facts were submitted post-trial by the Represented Plaintiffs, the Sullivans, the Town of Marshfield, the Commonwealth of Massachusetts, the Individual Defendants, and Marianne McCabe. The parties’ proposed findings of facts are incorporated herein to the extent they are consistent with this decision. They are otherwise denied. On all the credible testimony, exhibits, and other evidence properly introduced at trial or otherwise before this court, and the reasonable inferences drawn therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, this court finds as follows:

Brief Description of Present-day Rexhame Terrace and Surrounding Area

1. Rexhame Terrace is an area of land near the ocean, situated at the end of Marshfield Neck, between the South River and the Green Harbor River [Note 16] in the Town of Marshfield, which is situated in Plymouth County. Marshfield Neck is the neck of land— south of the South River and north of the Green’s Harbor River—that runs between the two river valleys.

2. The Subdivision was created [Note 17] by Sarah Ames in the late 1800s when she subdivided a portion of her farm. The first subdivision plan showing Rexhame Terrace is dated 1872, entitled “Plan of Lots at Rexhame Terrace (Farm of Elijah Ames), Marshfield, Mass.” (1872 Plan). The second plan is dated 1890 and recorded on August 29, 1891, entitled “Plans of Lots at Rexhame, Marshfield, MA, Farm of Elijah Ames, No. 2.” (1891 Plan).

3. Rexhame Terrace is bounded northerly and southerly by Circuit Avenues North and South, respectively. Circuit Avenues West and East connect Circuit Avenues

North and South. Between Circuit Avenues North and South, there are five (5) streets running west to east through Rexhame Terrace. These five streets, beginning with the northernmost street, are as follows: Ames Avenue, Raleigh Road (formerly Thomas Avenue), [Note 18] Winslow Avenue, Kent Avenue, and Waterman Ave.

As depicted on the 1891 Plan, the following streets run from Circuit Avenue West to Circuit Avenue East: Raleigh Road and Ames, Kent, and Waterman Avenues. The fifth, Winslow Avenue, begins at Circuit Avenue West and extends past Circuit Avenue East into the area labeled “Marshfield Beach” on the 1891 Plan. Circuit Avenues North, South, and East are paper streets. Circuit Avenue West is a paved street.

4. Situated easterly of Circuit Avenue East are six lots, referred to herein as the “beach lots.” The beach lots are vacant parcels which are nowhere depicted on the 1891 Plan. [Note 19] They are currently shown on the Town Assessors’ Map (Assessor’s Map), see Exhibit 470. The court is unaware of any other exhibits which graphically depict the beach lots.

The Parties

Current Record Title to Lots Westerly of Circuit Avenue East

The plaintiffs in this case are both individual lot owners within Rexhame Terrace and the Trusts and individual owners who claim to own the six “beach lots” east of Circuit Avenue East:

5. The plaintiffs, William J. Mostyn III and Sandra Mostyn, own and reside at the property known and numbered as 39 Ames Avenue, Marshfield, MA. This parcel is shown as K11-32-04B on the Assessor’s Map. [Note 20] This parcel includes Lot 2 and part of Lot 4 on the 1891 Plan. [Note 21] The Mostyns also own Lot 6A on Waterman Ave, which is identified as Parcel K11-25-08 on the Assessor’s Map. [Note 22]

6. The plaintiffs, John L. Coon III and Judith F. Coon, own and reside at the property known and numbered as 34 Ames Avenue, Marshfield, Massachusetts. [Note 23] This parcel is identified on the Assessor’s Map as K11-31-05. The Coons’ property is shown as Lot 16 on the 1891 Plan. [Note 24]

7. The plaintiff, Freya Shoffner, in her capacity as Trustee of the Dawson/Shoffner Family 2001 Revocable Trust (“Dawson/Shoffner Trust”), owns the property known and numbered as 18 Ames Avenue. The Dawson/Shoffner Trust property is Parcel K11-31-07 on the Assessor’s Map and Lot 20 on the 1891 Plan. [Note 25]

8. The Rexhame Terrace Land Trust (Land Trust), Ken O’Donoghue, Trustee, owns certain parcels of land situated westerly of Circuit Avenue East—one located between Ames Avenue and Raleigh Road and a second parcel situated between Raleigh Road and Winslow Avenue. These lots are identified as Parcels K11-31-04 and K11-31-05 on the Assessor’s Map. The Land Trust owns Lots 12-15 (Parcel K11-31-04) and 26-31 (K11-31-05) on the 1891 plan. [Note 26]

9. The plaintiff, Freya Allen Shoffner, in her capacity as Trustee of the Dawnson/Slawson Trust, also owns the property known and numbered as 5 Raleigh Road, shown on the Assessor’s Map as K11-31-01. The property at 5 Raleigh Road is Lot 25 and the westerly twenty-four (24) feet of Lot 23 on Raleigh Avenue the 1891 Plan. [Note 27]

10. The plaintiff, Jane M. Walker, in her capacity as Trustee of the Walker Family Trust, owns the property known as and numbered 38 Raleigh Road, Marshfield, Massachusetts. This parcel is numbered K11-30-04 on the Assessor’s Map. On the 1891 Plan, this property includes Lots 28, 29, 30, and 31. [Note 28]

11. The plaintiff, Victoria O’ Donoghue, owns as a tenant-in-common the property known and numbered as 17 Raleigh Road. This property is labeled K11-31-02 on the Assessor’s Map and consists of Lots 21, 19, and the easterly half of Lot 23 on the 1891 Plan. Victoria O’Donoghue did not appear pro se and was not identified at trial as a party represented by either of the lawyers representing the respective plaintiffs.

12. The plaintiffs, Seth Coon, Keilah Coon, and Elena Prentice (a/k/a Elena Carleton Coon and Elena Carleton), in their capacities as Trustees of the Raleigh Road Family Trust of 2009 (Raleigh Road Trust), own the property known and numbered as 14 Raleigh Road Marshfield, Massachusetts. This property is depicted as K11-30-01A on the Assessor’s Map and as Lot 36A on Plan 801, of 2007, Plan Book 54, Plymouth County Registry of Deeds, as set forth in Exhibit 318. On the 1891 Plan, this parcel includes Lots 36, 38, and part of Lot 37. [Note 29]

13. The plaintiffs, Daniel J. Sullivan and Marjorie O. Sullivan, as Trustees under Indenture of Trust (Sullivans), own property known and numbered as 28 Winslow Avenue, Marshfield, Massachusetts. [Note 30] These parcels are identified as Lots K11-29-06A, K11-29-08, K11-29-02, K11-29-03A, and K11-29-04A on the Assessor’s Map. These are Lots 40, 42, 44, 48, and a part of Lot 50 as shown on the 1891 Plan.

14. The plaintiffs, Charles A. and Jacqueline Pesko (the Peskos), own the property known and numbered as 53 Kent Avenue, Marshfield, Massachusetts. This property is identified as parcel K11-29-07C on the Assessor’s Map. On the 1891 Plan, this parcel includes Lot 41 and the easterly half of Lot 43. [Note 31]

15. The plaintiffs, Timothy and Sarah Burke, own the property known and numbered as 9 Kent Avenue, Marshfield, Massachusetts. The property is identified as parcels K11-29-01D and K11-29-09 on the Assessor’s Map. The Burkes own Lots 49, 51, and 52 on Kent Avenue on the 1891 Plan. [Note 32]

16. The plaintiffs, Susan S. Brown and Karen L. Slawson, in their capacities as Trustees of the Slawson-Rexhame Realty Trust (Slawson-Rexhame Trust), own the property known and numbered as 11 Waterman Avenue, Marshfield, Massachusetts. On the Assessor’s Map, this parcel is identified as K11-27-12. On the 1891 Plan, it is Lot 65 on Waterman Avenue. [Note 33]

Current Record Title to the Beach Lots Easterly of Circuit Avenue East

17. The R.B. Preservation Trust, Ken O’Donoghue, Trustee (Preservation Trust), purports to own a “beach lot” easterly of Circuit Avenue East (Preservation Trust Beach Lot). The property is a vacant parcel, identified as K11-36-01, and bounded as follows:

NORTHERLY by the southerly line of Circuit Avenue North as shown on said Plan [the 1891 Plan], extended easterly to the sea at low water mark; EASTERLY by the sea at low water mark; SOUTHERLY by the northerly line of said Ames Avenue as shown on said plan, extended easterly to the sea at low water mark; and WESTERLY by the easterly line of said Circuit Avenue East as shown on said plan . . . [Note 34]

Ray Ames conveyed whatever interest he might have had in the Preservation Trust Beach Lot in 1910 to a predecessor-in-title of the Preservation Trust. [Note 35]

18. The Land Trust purports to own two vacant beach parcels, identified as K11-35-01 (Land Trust Beach Lot 01) and K11-34-01 (Land Trust Beach Lot 02) on the Assessor’s Map (collectively, Land Trust Beach Lots). Both beach parcels are bounded easterly by the high water mark. Ex. 213. Ray Ames conveyed whatever interest he may have had in the Land Trust Beach parcels in 1913 to a predecessor-in-title of the Land Trust.

19. The Sullivans purport to own a beach lot easterly of Circuit Avenue East, identified as K11-33-02 on the Assessor’s Map (Sullivans’ Beach Lot). The Sullivans’ Beach Lot is bounded easterly by the sea. [Note 36] Ray Ames conveyed whatever interest he may have had in the Sullivans’ Beach Lot to a predecessor-in-title in 1913.

20. The Peskos also claim to own a beach lot, identified as Parcel K11-33-01 on the Assessor’s Map (Peskos’ Beach Lot). The Peskos Beach Lot is bounded easterly by the sea. [Note 37] Ray Ames conveyed whatever interest he may have had in the Peskos’ Beach Lot to one of their predecessors-in-title in 1913. [Note 38]

21. The Rexhame Terrace Beach Trust (RT Beach Trust), William Mostyn, Trustee, claims to own the vacant beach lot marked as K11-28-01 on the Assessor’s Map (RT Beach Trust Beach Lot). The RT Beach Trust Beach Lot is bounded easterly by the sea. Ex. 216. This parcel is a part of the property that Ray Ames, conveying whatever interest he may have had, granted to a Beach Trust’s predecessor-in-interest in 1913. [Note 39]

22. Another Realty Trust, Martha Roderick, Trustee, purports to own the properties identified as K11-26-01 and K11-26-02 on the Assessor’s Map. There is a house built on parcel K11-26-01 (the Rodericks’ Beach Lot), known and numbered as 20 Rexhame Road. The Northerly and southerly bounds run to the sea. Ray Ames conveyed whatever interest he may have had in this property to a predecessor-in-title of Another Realty Trust in 1913. Martha Roderick, Trustee, though named as a plaintiff in the complaint, did not appear at trial.

23. The six Beach Lots were created by four deeds from Ray Ames between 1910 and 1916. [Note 40] There is no dispute that the plaintiffs have established a chain-of-title in the record between the deeds from Ray Ames and their current deeds for each of their lots. The dispute is as to what, if any interest, was conveyed in the original “beach lot” deeds.

24. At trial, the following individuals and Trusts were represented by one attorney:

Ken O’Donoghue, Trustee Rexhame Terrace Land Trust; Ken O’Donoghue, Trustee, R.B. Preservation Trust; William Mostyn, Trustee of the Rexhame Terrace Beach Trust; Jane Walker, Trustee of the Walker Family Trust; Freya Allen Shoffner, Trustee of the Dawson-Shoffner Family 2001 Revocable Trust; Seth Coon, Trustee for Raleigh Road Family Trust of 2009; Karen Slawson and Susan Brown, Trustees of the Slawson-Rexhame Realty Trust; William Mostyn, Sandra Mostyn; Timothy Burke; Sarah Burke; John Coon, III; Judith Coon; Charles Pesko and Jacqueline Pesko.

When speaking of these parties hence forth in this decision, they will be referred to as the “represented plaintiffs,” so as not to be confused with parties who were named in the complaint, but either did not appear pro se or at all.

25. The plaintiff Sullivans were represented by their own attorney.

26. When using the terms “plaintiffs” henceforth in this decision, the court will be speaking of both the “represented plaintiffs” and the Sullivans.

The Defendants

27. The public defendants include the Town of Marshfield (Town) and the Commonwealth of Massachusetts (Commonwealth).

28. The defendants, George and Brenda Johnson, own the property known and numbered as 41 Ford Street, Marshfield, Massachusetts.

29. The defendant, Elizabeth McManus, owns the properties known and numbered as 41 and 44 Vincent Drive, Marshfield, Massachusetts.

30. The defendant, James McGowan, owns the property at 16 Vincent Drive, Marshfield, Massachusetts, as a surviving joint tenant. [Note 41]

31. The defendants George and Brenda Johnson, James McGowan, and Elizabeth McManus (collectively, “the individual defendants”) were represented by the same attorney at trial. [Note 42]

32. The defendant, Marianne McCabe (McCabe), an attorney, owns and resides at the property known and numbered as 15 Homestead Avenue, Marshfield, Massachusetts. [Note 43] She appeared on her own behalf at trial.

33. The defendant, Stephen Leonard (Leonard), owns the property known and numbered as 19 Vincent Drive, Marshfield, Massachusetts. He entered his appearance pro se on December 10, 2013, the fifth day of trial. The defendant, Kristin Perry did not appear at trial either represented by counsel, or in a self-represented capacity.

Early Property Transactions at Rexhame Hill

34. The Town of Marshfield is located in what was once Plymouth Colony. It was incorporated as a township on March 2, 1640 by an act of the General Court of Plymouth Colony, which declared the following:

It is enacted by the Court That Green’s Harbor shall be a Towneship and have all the privileges of a Towneship that other Townes have and that it shall be called by the name of Rexhame [Note 44] but now Marshfield. [Note 45]

35. Rexhame Hill lies at the end of Marshfield Neck. Cynthia Krusell, the plaintiffs’ expert [Note 46] and the Marshfield Town Historian, described Marshfield Neck as follows: “It’s the neck of land that runs easterly from the center of Marshfield. It’s to the north of the South River and to the south of it is the Green Harbor River.” [Note 47] Today, Marshfield Neck Road is Route 139 (Ocean Street), which runs from the center of Marshfield easterly toward the ocean, curving down toward Brant Rock. Winslow Street runs northeasterly from Ocean Street. Winslow Street Extension runs at an approximate ninety degree angle from Winslow Street to the seashore.

36. The earliest settlers in the Marshfield Neck area were Joseph Beadle, Josiah Winslow, Kenelm Winslow, Thomas Bourne, and Robert Waterman. Beadle was the first settler in Rexhame. Kenelm Winslow lived at the rise of Rexhame Hill, south of Beadle. The other settlers lived along Marshfield Neck Road.

A. Early Land Grants at Rexhame Hill: Joseph Beadle to Briggs Thomas

37. The plaintiffs’ chain-of-title begin with Joseph Beadle (Beadle). [Note 48] Beadle acquired title to his property in a series of grants between 1640-49.

38. In 1640, the General Court of Plymouth Colony granted Beadle thirty (30) acres of meadow at the North River.

39. At a Marshfield Town Meeting on February 12, 1643, the town:

appointed that the other half of the marsh and meadow that is granted to John Dingley and Thomas Chillingsworth and all the marsh given up to the town by Josiah Winslow and all the rest of the mowable marsh and meadow ungranted about the South River, shall be divided between the town and Roger Cook and Luke Lilly, provided that the said Roger and Luke do build houses upon their lots and dwell there or else have liberty from the town to sell their lands. (emphasis added)

40. Subsequently, on April 10, 1645, town granted the following to Beadle: the eastward boundmark of Kenelm Winslow’s meadow first granted the salt marsh granted to Kenelm Winslow between the two . . . and all the meadow about the reed ponds lying between this . . . and the beach . . . to have and to hold to him and his heirs forever.

41. On June 24, 1649, Luke Lilly acknowledged at the town meeting that he had sold to Joseph Beadle:

all his part of meadow and marsh given up to the town by Josiah Winslow and all the part of the meadow mowable undisposed according to the grant bearing the date 12 February 1643 [the grant dividing land between the town/Luke Lilly/Roger Cook] for and in consideration of the sum of seven shillings to him and his heirs forever.

Additionally, at the same town meeting on June 24, 1649, Robert Waterman acknowledged that he sold to Joseph Beadle: “all that parcel of meadow, being nine acres of mowable grass, lying southward of Josiah Winslow’s marsh on the South River, to him and his heirs forever.”

42. Of the four aforementioned conveyances to Beadle—from the colony, the town, Luke Lilly, and Robert Waterman—only one deed mentioned the “beach.” The 1645 grant from the town to Beadle stated that the grant was bounded “east with the beach.” The title experts who testified on behalf of each side agree that this conveyance did not include any “beach.”

43. Beadle died in 1672 without issue of his own. His estate passed by will to his stepdaughter, Martha Dean. [Note 49] Martha Dean married Ralph Powell. In 1687, Powell sold the Beadle farm to Isaac Little. The Powell to Little deed described the Beadle farm as “one hundred and twenty (120) acres of upland and meadow” bounded “Eastward with the beach.” [Note 50] [Note 51] The conveyance to Little also included “all our [Ralph and Martha Powell] and either of our right of common in the undivided land in the s’d Township.” The term “beach” is not referenced in this conveyance. However, this court credits the testimony of the defendants’ expert title examiner Edward Rainen that this conveyance also did not include beach. He opined as follows:

The form of construction of the deed descriptions that was common at the time is similar to what we use today. And when a boundary, a physical boundary is described, many times the word ‘with’ is used. . . . That doesn’t mean you get the beach, that mean that your land stops at the beach. . . The beach is a boundary.

44. Isaac Little’s son, Charles Little, inherited the Beadle farm from his father. In a deed dated December 8, 1709 and recorded December 21, 1709, Charles Little conveyed to John Kent: “All my housing and lands in the town of Marshfield . . . more particularly all my farme which my honoured father Isaac Little Esq. late of Marshfield deceased purchased of Ralph Powell of said Marshfield and of Martha his wife . . bearing date 21 April, 1687 on record. . . .” This deed, as with the Powell to Isaac Little deed, described the premises as both “upland and meadows . . .” [Note 52] Again, there is no reference to “beach” in the conveyance.

45. The Beadle farm also became known as the Kent farm (and later the Ames and Thomas farm), depending on the name of the owner at the time. John Kent died in 1753. His will divided his estate between his nine (9) living children and the children of his deceased son, Benjamin. In 1755, the Probate Court appointed fiduciaries to divide the Kent farm (formerly known as the Beadle farm) into equal shares (the Kent Division Deed). The first portion of the division deed divides the upland; the second portion divides the “salt meadow” or “marsh.” In the division deed, dated December 24, 1755 and recorded on May 6, 1756, five of the ten upland shares have bounds that reference the sea or high water mark.

The ninth share, granting twelve (12) acres to Samuel Kent, included a bound that ran to “a Stake and Stones on the edge of the bank about high water mark . . . and from thence bounded south a little easterly by the edge of the upland until it comes to the land of Kenelm Winslow Esq.” [Note 53]

The eighth share, granting thirteen (13) acres to Mary Kent and included a bound “to a stake and stones standing in the edge of the upland by the Sea and from thence about sixteen degrees east upon the Edge of the Bank to a Stake and Stones . . . .”

The seventh share, granting seventeen (17) acres to the heirs of Benjamin Kent, includes a bound which runs to “a Stake and Stones standing on the edge of the bank by the Sea, and from thence bounded by the edge of the upland . . .”

The sixth share, granting twelve (12) acres to Hannah Kent, included a bound that ran to “a Stake and Stones and from thence seventy degrees east to the edge of the upland near the Sea, and from then bounded southeasterly by the edge of the bank to a stake and stones . . .”

The fifth share, which granted nineteen (19) acres to Sarah Kent, included a bound that ran from “a Stake and stones standing on the edge of the bank near a high water mark on high tide, and then beginning again at Ezekial Kent’s northeast corner . . . .”

The Kent Division Deed, in 1755, was the first time that any deed in the plaintiffs’ chain-of-title explicitly used the term “sea” or any such verbiage identifying tidewater when describing the bounds of the farm.

46. In a series of deeds between 1759-70, Anthony Thomas purchased shares of the Kent heirs. [Note 54]

47. Anthony Thomas died in 1781. In 1787, the estate of Anthony Thomas was divided between Briggs Thomas, Waterman Thomas, and Judah Thomas—all of whom were children of Anthony Thomas (Thomas Division Deed). The Thomas Division Deed granted Briggs Thomas, in relevant part, the following:

[S]aid Briggs shall have the Kent farm, so called, containing about ninety seven acres upland and forty three acres salt marsh be it more or less, being and lying in Marshfield . . . and is the land and marsh that the said Anthony Thomas dec’d in his lifetime bought of the heirs of John Kent, as may more fully appear reference being had to the deed of Said heirs to the Said Anthony Thomas dec’d. [Note 55]

Further, the Thomas Division Deed granted Briggs Thomas “all the Privilege of the beach adjoining Said Land.” [Note 56]

48. Between 1792-96, Briggs Thomas acquired three other pieces of property in Marshfield. However, none of these other properties descended to Briggs Thomas through his father, Anthony Thomas. These conveyances are as follows:

First, in a deed dated May 24, 1792 and recorded May 26, 1792, Asa Waterman conveyed to Briggs Thomas twenty-seven (27) acres of land commonly known as the “fatting pasture.” The deed described the bounds on the “East by the beach. . . .”

Second, in a deed dated December 10, 1795 and recorded May 18, 1796, Luke Wadsworth conveyed to Briggs Thomas “a certain piece of meadow” 7.5 acres, bounded northeasterly and southeasterly by the beach.

Third, in a deed dated July 6, 1789 and recorded May 18, 1796, John J. Thomas conveyed to Briggs Thomas “a certain piece of fresh meadow and upland in said Marshfield containing five acres” near the Green’s Harbor River. [Note 57]

49. Both O’Donnell and Rainen, the plaintiffs’ and the defendants’ title experts, respectively, agree on the chain-of-title from Beadle through Briggs Thomas. They disagree however, on the extent of the early grants to Beadle. Kathleen O’Donnell believed that the conveyance to the beach went to high-water mark, whereas Edward Rainen testified that the conveyance stopped short of the high-water mark because of the town’s grant of commoning along the beach.

50. On February 27, 1822, Briggs Thomas deeded the homestead farm to his son, Waterman Thomas. [Note 58] The homestead farm contained “upland and meadow about one hundred and seventy acres be it more or less, for a further description of the same may be had to the division deed between the heirs of John Kent, deceased, and my deed from Luke Wadsworth.” The homestead farm was described as bounded “northeasterly by the sea to the place first mentioned,” the first place being the “beach at the corner of the dike Meadow” which Briggs Thomas had purchased from Luke Wadsworth. The deed to Waterman Thomas was not recorded until November 7, 1832. See Ex. 72; 72T.

The Briggs Thomas Cases

Timeline of Early Actions Relevant to the Briggs Thomas Cases

51. At a town meeting on October 10, 1645, the town granted the following right of commoning to the residents of Marshfield Neck:

At the same time such commoning [Note 59] as lies upon the neck of land between the South River and Green’s Harbour River and between Green’s Harbor River and the Sea, viz. the beach from the South River’s mouth to Green’s Harbor river’s mouth, to be given to that neighborhood of the town from Duxbury-ward on the south side of the South river to the mouth of the Green’s Harbor river where it falls into the sea, and that it shall not be lawful for any other of this town or elsewhere to common there, nor for any within the presented list to inclose any part thereof without special leave of the rest, nor any division thereof to be made amongst the present inhabitants, but to belong to the neighborhood, as well such as may arise and shall hereafter, as those that are now raised upon the same.

52. Commoning is more often referred to as “commonage.” Edward Rainen, the Town’s expert testified as to the meaning of the word “commonage”:

A: The purpose – the term ‘commonage’ is – I’ve seen it in legal dictionaries and other places that it is a place in common for the purpose almost exclusively of grazing.” [Note 60]

53. In January 1710, the town voted that “all the common land in this town be divided among the freeholders thereof, in proportion to each man’s real estate as it was rated in the last province tax.” Briggs Thomas v. Inhabitants of Marshfield, 30 Mass. (13 Pick.) 240, 241 (1832).

54. On July 7, 1685, the General Court of Plymouth Colony passed an ordinance (1685 Ordinance), which, at the outset, recites that Court had the power to “examine allow and confirm” all claims of land of former grants for Townships and other grants of court to particular persons. Several agents of the Town of Marshfield appeared before the court and proved that prior to 1640, the Governor of Plymouth Colony and his associates had made grants of land of “several tracks and parcels of lands at and upon Greensharbor River South and North River” and that these said parcels were excepted out of the neighboring Duxbury Township when those bounds were drawn, and said lands were later declared in 1640 to be the Township of Marshfield. This Ordinance additionally confirmed the bounds of the town of Marshfield, confirmed the prior grants to which it referred, and lastly stated:

[T]o have and to hold to the said town of Marshfield and to all the respective proprietors of the land within the boundaries of the same . . . with all the rights, members, benefits, profits, privileges, commons, fishings, [cover], creeks, harbors, rivers, heriditaments, and appurtenances, whatsoever within being . . . See Ex. 474.

55. In 1692, a highway was laid out by the General Court along the beach from the mouth of the Green’s Harbor River to the mouth of the South River. [Note 61] This layout is described in further detail infra in the findings of fact relating to the subdivision roads.

56. An Act of 1828 (1828 Act), which the town of Marshfield accepted in May 1829, prohibited neat cattle, [Note 62] horses, and sheep from going “at large on said [Marshfield] Beach.” [Note 63] The 1828 Act also provided that “any person [who] has a legal title in, or to said beach, or any part thereof, . . . shall have a right to a compensation in damages, to be paid by said town of Marshfield, for any injury he may sustain under any of the provisions of this act . . . .” See Ex. 481; Briggs Thomas II, 30 Mass (13 Pick.) 240 (1832); Ex. 482.

The 1830s Briggs Thomas Cases

57. Following the passage of the Act of 1828, Briggs Thomas brought suit against the Town of Marshfield—resulting in two separate decisions of the Supreme Judicial Court in the early 1830s. The first case was Thomas v. Inhabitants of Marshfield, 27 Mass. (10 Pick.) 364 (1830) [hereinafter Briggs Thomas I ]; the second case was Thomas v. Inhabitants of Marshfield, 30 Mass. (10 Pick.) 240 (1832) [hereinafter Briggs Thomas II ] (collectively, the Briggs Thomas cases). As noted in Briggs Thomas II, Briggs Thomas proved that there was no fence between his farm and Marshfield Beach and that “the “pasture in which he usually depastured his cattle… adjoined the beach, and that his cattle… fed at pleasure on the beach and were occasionally seen on all parts of it from Hewitt’s Island [south of Rexhame Terrace] to South River, which is more than half the length of the beach.” Briggs Thomas II, 30 Mass. at 247.

58. The area of Rexhame Beach is the same as that which was at issue in the Briggs Thomas cases. The chain-of-title is identical to the early chain-of-title for the Rexhame Terrace land. The Briggs Thomas II Court described Briggs Thomas’ farm as that “which descended to him from his father, it being assigned to him in the division of his father’s estate.” 30 Mass. at 247. Additionally, Briggs Thomas II, when summarizing what Briggs Thomas had proven in the case, stated that “for more than forty years he had owned and occupied a farm adjacent to the beach” and described the chain-of-title for the farm as descending from Ralph Powell to Isaac Little to John Kent to Anthony Thomas. [Note 64] The land which provided the bases for Briggs Thomas’ claims was the Kent farm. Although Briggs Thomas had purchased several other pieces of land prior to the Briggs Thomas cases, he acquired those parcels from persons other than his father. Specifically, he had acquired them from Asa Waterman, Luke Wadsworth, and John Thomas, respectively. The Kent farm, however, descended to Briggs Thomas from his father in the 1787 Thomas Division Deed and had the same chain-of-title as that described in these Briggs Thomas cases. Moreover, at the time of Briggs Thomas II, Briggs Thomas had owned the Kent farm for well over forty years.

The credible testimony at trial lends further support to this conclusion. The plaintiffs’ title examiner, Kathleen O’Donnell, acknowledged as much in the course of her testimony, in the following exchange:

Q: Are you contending that in this case, Attorney O’Donnell, that the land that’s referenced in the Briggs Thomas case is not the same land in this Rexhame Terrace subdivision?

A: No, I am not contending that.

Q: . . . And, in fact, do you believe that it is the same land?

A: As much as somebody could determine, I do. Tr. 4-170.

Moreover, the plaintiffs’ coastal geologist, Lester Smith, placed the land at issue in the Briggs Thomas cases, in the approximate location of the Rexhame Terrace Subdivision. Smith used a process known as georeferencing to create Chalk H, which is an overlay of a 1785 Plan of Marshfield Sea Coast (Ex. 2/1785 Seacoast Map) onto a T-Sheet showing the Marshfield Coastline, including the location of Rexhame. Georeferencing is a process in which one uses a fixed point common to two maps or charts—a point which does not change over time—to create an overlay. Tr. 3-88. Both maps showed Beadle’s Rocks, a grouping of rocks north of Rexhame Terrace, which still exist today. The 1785 Seacoast map depicts an unfenced section of Briggs Thomas’ pasture [Note 65] as 140 rods from Beadle’s Rocks. Smith converted the 140 rods measurement on the 1785 Seacoast plan into feet, which measured 2310’, [Note 66] and thereafter measured 2310’ feet from Beadle’s Rocks on the T-Sheet. The end result demonstrates the Subdivision is located in approximately the area of Briggs Thomas’ unfenced pasture.

59. As a consequence of the Act of 1828, Briggs Thomas first brought suit in the trial court, the Court of Common Pleas. The Common Pleas Court held that Briggs Thomas “had no such title to or in the beach mentioned in his complaint or any part thereof and no such right or rights of common therein as set forth in his complaint.” [Note 67]

60. In Briggs Thomas I, Briggs Thomas claimed a compensable legal title in the beach, that of an alleged a right of commonage to the beach for his neat cattle, horses, and sheep by virtue of a “title by grant from the town of Marshfield.” In so claiming, he relied upon the 1645 Grant of Commoning to the residents of Marshfield Neck. The Briggs Thomas I Court, after concluding that “a right of common of pasture” is a type of title recognized under the 1828 statute, held that Briggs Thomas had no right of commonage in the beach by virtue of the 1645 Grant because the grantees were indefinite. [Note 68]

61. In Briggs Thomas II, Briggs Thomas alleged that he had a prescriptive right of commonage in the beach as appurtenant to his farm. He admitted the fee of the beach to be in another, and argued that the Town of Marshfield owned the beach [Note 69] by virtue of the 1685 Ordinance. The Court found as follows:

It was proved on the part of the respondents [the Town of Marshfield], that in the year 1692 a highway was laid out the whole extent of the beach from Green’s Harbour River to South River, and from the beach through the complainant’s farm to the county road . . . . It was also proved that the beach was a place of common resort for fisherman, fowlers and haymakers, coming from all parts of Marshfield and the adjacent towns, who time out of mind had been used to turn out their horses on the beach for depasturing, the fisherman and haymakers at the fishing and haying seasons, and the fowlers at all times of the year.

The Court did not determine whether the Town or Commonwealth owned the beach, but noted “it was left open for the public use and convenience as a highway, common, and landing place, and has been so used for more than a century.” Additionally, it stated:

[T]he beach was used as such [a public way], and as a common, by every one having occasion to use it, -- by fisherman, fowlers, and haymakers, who turned out their horses upon it to feed; and although the complainant may have been more accommodated than others, there is nothing in the case to show that he has any better right, or that he has acquired any title whatever in the beach.

Lastly, the Supreme Judicial Court again reiterated that “the complainant having thus failed to show title to any part of the beach, the judgment of the Court is, that he take nothing by his complaint.” Briggs Thomas was awarded no damages whatsoever under the 1828 statute.

The Will of Sarah Ames

62. More than twenty years after the decision in Briggs Thomas II, in a deed dated April 12, 1858 and recorded July 7, 1858, Waterman Thomas, the son of Briggs Thomas, conveyed the homestead farm to his daughter, Sarah A. Ames, the wife of Elijah Ames. The homestead farm was described as “containing one hundred and eighty acres” and bounded “Easterly by the beach or Sea.” Ex. 78. The farm included the land out of which Rexhame Terrace would be later subdivided.

63. As noted supra, Rexhame Terrace was set out in accordance with two subdivision plans—the 1872 Plan and the subsequent 1891 Plan. [Note 70] Prior to her death in 1899, Sarah Ames had conveyed out a number of the Rexhame Terrace lots. Sarah Ames died on February 1, 1899.

64. Sarah Ames’ will first gave a life estate to her husband, Elijah Ames (Item Two). Following her husband’s death, the will divided her homestead farm in two parts.

“Item Third” conveyed the following to Sarah Ames’ son: “[t]he part of said homestead hereby bequeathed to said Ray T. Ames is all that part lying westerly of what is called Circuit Avenue on Rexhame Terrace, and Lot 36 . . . and Lots 68, 69, 70, 71, 80, 82, 83, 84, 85, and A & B (the “trapezoid lots”). [Note 71] (emphasis added).

She stated further: “Ray T. shall have . . . all the farm upon which I now reside, excepting that part of Rexhame Terrace lying easterly of Circuit Avenue, so called . . .” Ex. 93. The Circuit Avenue referenced in “Item Third” may refer logically only to Circuit Avenue West. [Note 72]

65. “Item Fourth” of Sarah Ames’ will conveyed, in relevant part, the following to her six children and the children of her deceased daughter (collectively, the heirs of Sarah Ames):

The part of the said homestead hereby bequeathed and devised to my children Sarah D.T., Mary A., Elijah, William, Lucy J. & Ray T. and my grandchildren, Alfred A. Eldridge, Sarah A. Eldridge, and Helen S. Eldridge is that portion of Rexham [sic] Terrace lying easterly of Circuit Ave., so called, to the sea, excepting Lot No. 36 [which is] bequeathed to Ray Ames. [Note 73]

66. The 1891 Rexhame Terrace plan was the most current plan prior to Sarah Ames’ death. This plan does not depict any beach lots. It merely labels the area beyond Circuit Avenue East as “Marshfield Beach” and labels the ocean as “Massachusetts Bay.” [Note 74]

67. This court concludes that based on the express language of Sarah Ames’ will, both in granting Ray Ames everything west of Circuit Avenue West and thereafter conveying the land east of Circuit Avenue [Note 75] expressly “to the sea,” she intended to grant all the land east of Circuit Avenue West to all of her heirs—heir six children, including Ray Ames, and the grandchildren of her deceased daughter. Such grant includes both any portion of Rexhame Terrace and any portion of the beach she believed she owned east of Circuit Avenue East. This court finds that under her will, Sarah Ames intended that her son Ray Ames take no more than a one-seventh interest in the land east of Circuit Avenue east, i.e. the present-day beach lots. Ray Ames simply did not possess the interest in the beach lots that he purported to convey subsequently in his own name. Edward Rainen, in testimony which this court credits, testified as follows as to his professional opinion on the will of Sarah Ames:

Q: If Sarah Ames had not conveyed out all of the beach and she owned it at the time of her death, who would title to the beach lots be vested in after her death?

A: If Sarah Ames owned the beach, it would be vested in her seven children, or her six children plus her three grandchildren.

Q: Second question, do you find any deed from the heirs of Sarah Ames other than Ray Ames conveying all of their fractional interest [in the beach lots] to Ray Ames?

A: No. . . .

Q: And if they [the plaintiffs] derive title from Ray Ames, do they have a complete title to the beach?

A: They would only have one-seventh. Tr. 10-109.

The 1916 “Release Deed”

68. The predecessors of the current record title holders to the “beach lots” obtained their deeds from Ray Ames. Between 1910 and 1913, Ray T. Ames made conveyances purporting to convey certain “beach lots” east of Circuit Avenue East. See Exs. 123; 134 [Note 76]

69. On June 3, 1916, the Town of Marshfield, acting by and through its treasurer, Horatio Sprague, conveyed to Ray Ames by means of a quitclaim deed (the Release Deed) all its “right title and interest” to thirty-one (31) acres of “upland and beach” located north of Rexhame Terrace. The thirty-one acres were bounded as follows:

Bounded southerly by the northerly line of Circuit Avenue North . . . extended to the sea, at high water mark; westerly by land of said Ames; Northerly by the land conveyed by Sarah A. Ames to J.W. Dearborn, trustee for the Sea Rivers Club . . . Easterly by the sea at high water mark. [Note 77]

Circuit Avenue North is the northern bound of Rexhame Terrace.

70. The Release Deed further recites as follows:

This conveyance is made subject to the restriction that no buildings . . . shall be built . . . upon that portion of the premises lying between the natural growth of vegetation,--other than beach grass—and the sea, and is intended to confirm in Ray T. Ames full title in all that portion of the Ames or Thomas farm claimed by him, between the upland and the sea, at highwater mark, but heretofore at time in dispute, and to release all interest of the town in the premises described, whether a portion of said farm or otherwise. [Note 78]

71. The very next day, on June 14, 1916, Ray T. Ames conveyed to John Dana Thomas the Ames homestead farm, along with the thirty-one (31) acres of upland and beach that he received from the Town on June 13, 1916. The deed to John Dana Thomas specifically mentioned “the confirmatory deed and release from the Town of Marshfield to be recorded herewith” as one basis of Ames’ title. [Note 79] The Release deed and the deed to John Dana Thomas of the homestead farm were recorded simultaneously on June 21, 1916.

72. On testimony which this court finds credible, Edward Rainen, the Town’s expert title examiner, testified as follows regarding the scope of the Release Deed:

Q: Do you see the words [in Ex. 141] “and to release all interest of the town”?

A: ‘Release all interest of the town in the premises described.’

Q: Do you know what the – do you have an opinion as to the words ‘in the premises described,’ what that relates to?

A: It relates to the premises that we’ve described earlier [the 31 acres of upland and beach north of Rexhame], [Note 80] being the premises easterly by the water, southerly by the northerly line of Circuit Avenue, westerly by the land of Ames and northerly by land sold by Ames to another.”

Q: Is that land that abuts Rexhame Terrace? A: No, it does not. Tr. 10-117 to 10-118.

73. Rainen further opined as to the import of the confirmatory language in the release deed:

Q: Can you explain the impact [of the confirmatory language in the deed] based upon – your professional opinion?

A: When trying to understand the construction of deed descriptions, a parcel is described in some detail, as it was here, and if there are issues concerning the use or occupancy of those premises, many times there will be an explanatory paragraph that allows people to understand the nature of the grant and why it occurred.

Q: And do you have an understanding as to what was –or do you have an opinion as to what was being confirmed in that language?

A: Yes, I do.

Q: What is that opinion?

A: . . . The purpose of this deed was to convey to Ray Ames any right and title of the town in the area described therein.

Q: And did that include the land that abutted the Rexhame Terrace subdivision in your opinion?

A: That included only the land to the north of this land [i.e. north of Rexhame Terrace]. Tr. 10-116.

74. The Release Deed was signed by the Town’s Treasurer, Horatio Sprague.

75. A subsequent Land Court registration case known as the Barger Registration concerned the land northerly and westerly of Rexhame Terrace. The Land Court Title Examiner raised questions as to the validity of the 1916 release deed to Ray Ames questioning the authority of the Treasurer to sign the deed and the validity of the deed and the town’s authority to impose restrictions on the upland area. However, prior to any ruling on the validity of the 1916 deed, the Town entered into a stipulation which stated that the registration petitioners’ land above high water mark would be free of the 1916 Release Deed restrictions and confirmed the fee in the Town of the land between high and low water mark. See Ex. 498.

76. This court concludes that the Release Deed dealt only with the premises specifically described, i.e. the 31 acres of upland and beach north of Rexhame Terrace. This conclusion finds support in the almost immediate conveyance of the 31 acres of upland and beach by Ray Ames to John Dana Thomas, along with the conveyance of the homestead farm.

Topography of Rexhame Beach

77. Neither the 1828 Statute, nor the Briggs Thomas cases, defined the term “beach” as used therein.

78. As to the geographical makeup of Rexhame Beach, this court finds convincing the expert testimony of Amy Ball (Ball), a senior project ecologist at Horsely Witten Group who routinely delineates wetlands boundaries and examines the ecology of coastal resource areas [Note 81] in Massachusetts. The Rexhame Beach area is comprised of the following three geological components:

(a) an area of beach below the mean high water area (Coastal Beach)

(b) an elevated dune area landward of the beach (Coastal Dune)

(c) landward of the dune area, portions of land with wetland characteristics. Tr. 8-233.

Ms. Ball testified that, under modern regulatory definitions, a “Coastal Beach” “by definition, is an area, a low-lying are[a] of unconsolidated sediment, sands, cobbles, pebbles, that extends –it’s the land body between the upland areas and the ocean or a body of salt water, and it’s subject to the ebb and flow of the tide, as well as storm surge.” Tr. 8-236. Further, a Coastal Dune is “an elevated land form, often seaward facing, that is located up gradient of a coastal beach. It’s typically made of wind-borne sediments or overwash sediments.” Tr. 8-237. Under modern regulatory definitions, [Note 82] these three features comprise a “barrier beach.” Ms. Ball explained:

The coastal beach and coastal dune area are two resources areas that we have under the Wetlands Protection Act. The combination of the coastal beach and the coastal dune with the wetland area behind it is another resource area called a barrier beach. . . . [A barrier beach is] a dune beach complex with the wetland area landward of that, as you would expect from the terminology, barrier, it provides a physical barrier to the land masses landward of this barrier beach, provides protection for storm damage and flooding. Tr. 8-234.

79. Using the information compiled by Ms. Ball during her site visit to Rexhame Beach in November 2011, Daniel McKenzie, the Town’s expert surveyor, charted the resource areas in the Rexhame Area, as shown on Chalk J.

“Beach” Vegetation and Growth

80. The Briggs Thomas cases are replete with references to cattle and horses feeding on the “beach” at issue therein. Briggs Thomas I speaks of “a right of common to pasture,” whereas Briggs Thomas II notes that Briggs Thomas proved that his “cattle fed at pleasure on the beach.” Briggs Thomas II makes several references to horses and cattle feeding and depasturing on the “beach.” [Note 83]

81. The 1828 Statute, which was passed to preserve and secure Marshfield Beach, in addition to prohibiting neat cattle, horses, and sheep from going at large on the Beach, also references what grew on Marshfield Beach. The statute fined persons between $1-$10 dollars for anyone caught “cutting or carrying away any trees, bushes, or beach grass, growing on said beach. . . .” See Ex. 483.

82. Ball, in testimony which this court credits, opined as to the types of grasses, herbaceous, and shrub species that grow in coastal dunes and/or coastal marsh. She divided them into lists based on where they grow and whether the species are likely to grow above or below the mean high water mark. Mean high water mark means “the mean high level the tide reaches on a daily basis. It may not be the highest of high tides. It may not include storm surge, but it is the area that the high tide would reach at the apex of a day.” Tr. 8-243. Her lists are identified as Chalk Q. Ball based her lists on species she directly observed at Rexhame Beach and on what one would expect to find in coastal resource areas in southeastern Massachusetts. Tr. 9-29; 9-15; 8-242. [Note 84]

83. Stephen Herbert (Dr. Herbert), an agronomy professor in the Stockbridge School of Agriculture at the University of Massachusetts Amherst, testified as an expert for the Commonwealth. He testified as to the types of grasses that cattle and sheep would feed on based on the lists generated by Ball. Dr. Herbert, who has a P.h.D in agronomy and crop physiology, described an agronomist a “person who understands the crop, the plant-soil interactions and how to make plants grow productively.” Tr. 8-163. [Note 85] Tr. 8-186.

Dr. Herbert has a broad agricultural [Note 86] degree—which included studies in crop, pasture, and soil sciences and has studied sheep, beef, and cattle as part of an agricultural system. He has taught courses on different types of agriculture and crop management, which included pastures. Tr. 8-149; 8-152. As part of his research at the University of Massachusetts, he has studied ways of improving the protein content of forage [Note 87] for cattle, including an extensive experimental study with twenty-eight (28) different pasture blends.

Using the lists generated by the wetland scientist and undertaking additional research to confirm his opinions, [Note 88] Dr. Herbert identified the types of coastal dune and salt marsh vegetation that cattle would graze on. In this regard, he testified that, assuming the plants he identified were growing roughly 200 years ago at the time of the Briggs Thomas cases, [Note 89] the cattle would have grazed on the same plants, inasmuch as the grazing habits of cows, sheep, and horses have not appreciably changed. Tr. 8-181; 182. 179

84. A “vascular plant is what you would think of typically as a plant, your trees, your shrubs, grasses, herbaceous flowers, that sort of things. There are three basic components, they’ve got leaves, they’ve got a stem and they have a root system.” Tr. 8- 236. Ball opined, again on testimony which this court credits, as follows:

Q: Now in your opinion, Ms. Ball, would you expect to find a vascular plant growing in a beach, such as you just defined it for us [the meaning of “coastal beach” under the Wetlands Regulatory definition]?

A: No

Q: Why is that?

A: Coastal beaches are subject to the ebb and flow of the tide, but they’re also subject to tidal action, and so wave action and velocity and energy. It’s not a very hospitable place to grow and plants do not grow there. Tr. 8-237 [Note 90]

85. Ball did not observe any vascular plants growing below high tide on her site visit to Rexhame Beach. Tr. 8-237. She reiterated that “plants do not grow on a coastal beach”, i.e. “the vascular plants that we’ve been discussing….So no plants grow on the beach.” Tr. 9-22. Tr. 8-237. However, Ball did identify on Chalk Q a variety of vegetation that would grow in the Coastal Dune and Salt Marsh/wetland areas in a barrier beach system like Rexhame Beach.

86. A salt marsh, as explained by Ms. Ball, is a “coastal wetland area. It is characterized by an area comprised of plant species that are tolerant of inundation by salt water. It typically ranges from mean low water or mean low tide to high tide.” Tr. 9-9. Ms. Ball described the ecological components of a salt marsh in the following exchange:

Q: Now within the category of salt marsh, are there further smaller categories or subcategories of salt marsh in the Rexhame Area?

A: Yes. A salt marsh is broken down ecologically into three basic areas. You have a low marsh that is typified by a single species, Spartina Alterniflora. There is a high marsh, which is a greater diversity of plant species. And then there is an upper marsh fringe, which has further species but perhaps are not as adapted to regular or frequent daily inundation by salt water.

. . . Q: And how are the different categories of marshes defined by the tides or how frequently the tides occur?

A: Well, the low marsh is inundated at least twice daily – well, in this case, twice daily by tides, high tides. The upper [high] marsh can be inundated more than once a day. It depends on the tidal cycle, whether it’s a higher high tide, for instance. The upper fringes of salt marsh would only typically be inundated with salt water infrequently, perhaps during a storm surge, that type of scenario. Tr. 9-13 to 14.

87. Virtually all of the vegetation identified by Herbert as edible by livestock grew above high water mark on the Coastal Dune. Though Herbert did identify certain vegetation that would be edible by livestock below high water mark these species grow below the high water mark on the landward side of a barrier beach, i.e. in the wetland areas.

88. Testimony of Cynthia Krusell (Krusell), Marshfield Town Historian, furthers supports the conclusion that the marshes were on the landward side of the beach. Krusell, who has studied Marshfield history in depth and written several books on the Town’s history, testified that the salt haying industry was an important part of the early Marshfield economy. The early settlers used to cut saltmarsh cordgrass (Spartina Patens), colloquially known as “salt marsh hay,” and use it for food to feed their cattle.

When asked about the location of the marshes in the 19th century relative to Rexhame Terrace, Krusell testified that there was an area of marsh located to the northwest of Rexhame Terrace by the South River. Additionally, there was a more expansive marsh located southwest of Rexhame Terrace by the Green’s Harbor River. Krusell twice acknowledged that the marshes were located on the landward side of the beach. In one exchange, Krusell when discussing salt marsh hay stated: “And that [the salt marsh hay] would have been on the backside of Rexhame Hill, not – I don’t know of any along the beach.” Tr. 6-122. She again testified similarly in the following exchange:

Q: Now you looked at all these maps and you’ve done research, was there any salt marsh between Fieldston [Note 91] and the mouth of the Green Harbor River?

A: South?

Q: Yes.

A: Not on the beach side. There was plenty of marsh on the inland side of the tidal –tidal estuary of the Green Harbor River . . . .” Tr. 6-50.

89. As testified to by Ball, estuarine areas [Note 92] are subject to tidal inundation. [Note 93] Tr. 9-42. However, Ball distinguished between the “influence of the tide” versus “wave energy.” She explained:

Q: And this rise and fall of the tides in the estuarine area, is that subject to the energy of the waves?

A: Not wave energy the way you’re thinking of crashing waves, perhaps on a beach. It’s an influence of the tides, but it’s usually in a more protected area. Tr. 9-63

90. Finally, Ball opined that since the Briggs Thomas cases dealt with the “grazing of livestock on a beach, and I’ve testified that there are no plants growing on a beach and therefore there would be nothing to graze upon. . . [S]o it would lead me to believe that the interpretation of the word ‘beach’ as used in the 1800s [in the Briggs Thomas cases] involved more than just the beach as we know it today from a regulatory standpoint, that it may also include coastal dunes and/or coastal salt marsh.” Tr. 9-26.

91. Krusell too testified that cattle would eat salt marsh hay (Spartina Padens) although she did not know of any which grew along the beach in historic Marshfield. On cross examination, she acknowledged the following:

Q: In any event, you would agree with me that the beach at the time [of the Briggs Thomas cases] apparently had some properties or some vegetation that cows grazed on at or about this time; is that correct?

A: Would seem that way.

Q: And that was included as part of the beach; is that correct? A: As far as I know. Tr. 6-123.

92. Based on the foregoing, this court is satisfied that based upon: (a) the expert testimony as to the type of vegetation that grows above the coastal beach high water mark in a “Barrier beach” system and (b) the types of plants in a Coastal Dune and wetland area on which cattle are likely to graze, that (c) the use of the word “beach” in the Briggs Thomas cases included some portion of upland area above the high water mark of the Atlantic Ocean. Moreover, this court concludes, that although salt marsh is subject to tidal action, the relevant facts herein lead to the conclusion that any marshes in Marshfield were located on the backside of the “barrier beach system,” i.e. subject to tidal inundation of salt water as part of a tidal estuary versus the ebb and flow of the tide of the ocean.

Findings of Fact Specific to the Roadways Running Through Rexhame Terrace Subdivision

93. Exhibit 559 includes certain orders of the General Court of the “colony of New Plymouth in New England.” One such order dated 1684 provides in relevant part as follows:

…[B]e it hereby enacted, that all necessary country ways within this colony shall, between this time and ye next October Court, be laid out by a jury where it is not already so done, at the charge of the respective towns through whose land or townships such ways may lead.… [Note 94]

94. In that portion of Exhibit 559, at page 8 consisting of “Laws 1623-1682” appears the following:

That fowling, fishing and hunting be free:

That the old path ways be still allowed and that every man be allowed a convenient way to the water wheresoever the lot fall….

95. In 1639 the following Order was promulgated by the General Court of the Plymouth Colony:

It is enacted by the Court that if an highway be wanting in any township of this Government upon due complaint that then the Governor or any of the Assistants impanel a Jury and upon oath charge them to lay out such ways both for horse and foot as in conscience they shall find most beneficial for the Commonwealth…and that all old paths shall be allowed except other provision has been orderly made….

96. In 1659 the following was enacted by the General Court of the Plymouth Colony:

[T]hat where highways are wanting in any township of this Jurisdiction that there the next Magistrate unto such Township shall impanel a jury for the laying out of such ways as shall be found by them convenient. [Note 95]

97. As briefly noted supra in Finding of Fact ¶ 55 and explained in further detail herein, on June 1, 1692 a “Jury in Marshfield” laid out certain public ways in the Town of Marshfield (1692 Layout). Included among them was a way commencing “on the north side of Green’s Harbor River. Its course continues as described “until it comes to the beach… and so along the beach till it cometh to the mouth of the South River.” The area so described encompasses that which today comprises the Rexhame Terrace Subdivision.

98. This court finds that at the time of the 1692 Layout, there was no requirement in the New Plymouth Colony that the Layout be recorded or that the way so laid out be constructed. See Tr. 4-203:19-21. See also Tr. 4-205:1-17.

99. The jury laid out a continuous public way that ran along the approximately four miles [Note 96] of beach between South River in a southerly direction to the “north side of the Greens Harbor River.” [Note 97]

100. The 1692 layout continues as follows:

And also a way up from the said beach leading through the land of Lieut. [Isaac] Little [Note 98] by the south side of a reed pond and turning by the corner of the stone wall, [Note 99] and so upward by a stone ditch, leaving his house on the southerly side of said way, and so on by the corner or his orchard land, and so straight down the hill leading through the land of Nathaniel Winslow… and so as the way now lieth though the land of Joseph Waterman and Thomas Bourne, on straightward from the eastward end of a puddle at the head of a cove of meadow and from thence through said Bourne’s pasture by the southeast side of a rock…. [Note 100] (emphasis added)

See Exhibits 475 and 475T. See also, Chalk “O” depicting the home of Thomas Bourne.

Inasmuch as Lieut. Isaac Little is a predecessor in title to the current plaintiffs, this court is satisfied that, more likely than not, the foregoing describes the initial laying out of at least a portion of what has come to be known as Ocean Street up Winslow Street to Winslow Avenue, also known as Winslow Street Extension.

101. Ocean Street is a county way. It is currently known, as well, as Route 138, a state highway. [Note 101]

102. The plaintiffs’ title expert testified as follows on cross-examination:

Q. So you believe a 1692 layout laid out a town way?

A. Yes.

Q. But that has since been abandoned in the 20th century.

A. It was discontinued by town meeting vote.

Q. Right. So it has been discontinued?

A: Yes.

Q. So today that part of Winslow Street Extension or Winslow Ave. east of . . . Circuit avenue west was once a town way but has since now been discontinued.

A. That is my opinion. (emphasis added).

This court construes the foregoing testimony of the plaintiffs’ expert as confirmatory of the defendants’ argument that a public way was laid out along Winslow Street Extension, by virtue of the 1692 Layout. Ms. O’Donnell and the defendants differ, however, on the nature of the way so laid out, i.e. whether a county way or a town way. Ms. O’Donnell espouses the latter view; the defendants, the former.

103. The basis for Ms. O’Donnell’s view that the laid-out way was a town way may be deduced from the following testimony:

Q. Do you remember a difference about who assembled the jury in the two different ways to lay out ways in the New Plymouth Colony?

A. In one, they would have been laid out by a jury appointed by the General Court [of Plymouth Colony]; and the second would have been a jury of the local neighborhood . . . .

Q. So the 1692 Marshfield layout, are you familiar with who assembled that jury?

A. My assumption is from reading where it talks about “a jury of men in Marshfield,” does not mention appointed by commissioners or the General Court, that it’s a layout by the town.

Q. So within the four corners of the document is how you’re relying on the fact who assembled it; is that what you’re saying?

A. Yes.

For their part, the defendants argue that the layout of 1692 was a colony layout, and therefore a county layout, inasmuch as it nowhere describes an assembly of the jury by a Magistrate. Plaintiffs’ expert appears to concur with the view that were the way laid out by the colony in 1692, it would effectively constitute a county way.

However, this court finds that the document itself is not determinative of the entity laying out the way at issue. Rather, a number of factors and circumstances must be considered by the court in reaching a final conclusion in this regard.

104. In the course of its decision in Briggs Thomas II, the Supreme Judicial Court observed as follows: [Note 102]

It was proved on the part of the [Inhabitants of Marshfield] that in the year 1692 a highway was laid out the whole extent of the beach from Green’s Harbour River to South river and from the beach through the complainant’s farm to the county road, and that for more than sixty years last past the owners of the farm had kept a gate across such way leading to such county road near [Briggs Thomas’] dwellinghouse. (emphasis added)

105. Thereafter, the Briggs Thomas II Court referenced the 1692 layout once again. It observed as follows at page 249:

Whether the fee in the beach remains in the commonwealth, or vested by ancient grant in the town of Marshfield, it was left open for the public use and convenience as a highway, common and landing place, and has been so used for more than a century. (emphasis added)

At page 250, the Court stated as follows:

Here was a highway laid out the whole extent of the beach, and from thence to the county road. The erection of a gate across the way near the county road did not essentially obstruct the use of it by the public….. If the complainant [Briggs Thomas] obtained any title to the beach by erecting and keeping up a fence or gate near the county road, it would be title by disseisin, a title which the complainant does not attempt to maintain, and for which there is no pretense…. The way still remained a public way, and the beach was used as such….

106. This court specifically finds that the highway laid out in 1692 and referenced by the Court in its decision of 1832 [Note 103] was not only laid out as a public way, but was actually utilized as such, running along the length of the beach and in a line through the land of Isaac Little, [Note 104] predecessor in title to the plaintiffs. [Note 105]

107. A series of Maps have been admitted into evidence. Said maps generally depict a distinctively shaped way running directly through the Rexhame Terrace Subdivision perpendicular to the seashore. [Note 106] This court is able clearly to identify that way from early maps and plans. It includes Ocean Street, Winslow Street and Winslow Street Extension. See, for example, Exhibit 5 (1831), Exhibit 6 (1838), Exhibit 7A (1879), Exhibit 487 (1857), and Exhibit 493 (1978). See also Exhibit 491, the 1903 Richards Map which clearly depicts the relevant ways in conjunction with the Rexhame Terrace Subdivision.

Many such maps designate Winslow Avenue as a county way. See, for example, Plymouth County Highway Maps, Exhibits 491 (1903), [Note 107] 493 (1978), 494 (1989), 552 (1947), 553 (2008), [Note 108] See also Exhibit 492 (1953) a designated Map of Marshfield. Daniel McKenzie, the defendants’ expert witness, a surveyor, [Note 109] opined as to the general reliability of such maps. Much of Winslow Avenue is a dirt road [Note 110] that leads to the ocean.

108. The Rexhame Terrace Subdivision Plan of 1872, Exhibit 484, designates Winslow Avenue as a “Town Road.” [Note 111] [Note 112]

109. A Town Report of April 4, 1818 concerns a Committee “being appointed… to layout a new road through the land of Major Briggs Thomas instead of the one that has lately been discontinued by said Town….” The Report recites that the Committee “laid out a new road”. There follows a description of the road at issue. See Exhibits 12 and 12T. Given the great breadth of Briggs Thomas’ land holdings, including those to the north and south of present day Rexhame Terrace, this court is unable to conclude the extent to which, if at all, this layout concerns Winslow Avenue.

110. On March 7, 1957, the Town of Marshfield Annual Town Meeting voted affirmatively on Article 40 of the Town Meeting Warrant which read as follows:

[T]o release any, rights, title and interest in, and abandon pursuant to Chapter 82 of the General Laws…a certain way known as Winslow Avenue and sometimes known as Winslow Street Extension from its junction with Circuit Avenue West easterly to the beach. Exhibit 24.

111. Pursuant to the foregoing March 7, 1957 Town Meeting vote, the Board of Selectmen promulgated and recorded with the Plymouth County Registry of Deeds at Book 2561, Page 213, a document captioned “Order of Abandonment Of Winslow Avenue As Town Way.” Exhibit 26.

112. The following year, the Town Meeting “voted to rescind the action taken pursuant to Article 40 of the March 4, 1957 Annual Town Meeting” relative to the abandonment or discontinuance of Winslow Street Extension.

113. In a letter dated June 24, 1960 from the Town Counsel to the Chairman of the board of Selectmen, Town counsel opined that the “action taken by the town Meeting in 1958 [to rescind the previous vote pursuant to G.L. c. 82] was invalid and of no legal consequence.” Exhibit 410. 22. Tr. 4-76:6-18.

114. In 1883, Elijah Ames, and others petitioned the County Commissioners [Note 114] as follows:

[T]he public highway in Marshfield… from the main road to Brant Rock, at a point near the late residence of Capt. Otis Baker past the residence of Capt. B. Goodsill-thence to a point near the residence of Deacon Elijah Ames and thence by right angles to the beach, requires widening, straightening and improvement-portions thereof being almost impassable and dangerous to public travel-and improvement of said highway is necessary; and praying that said County Commissioners view the same and widen, straighten and grade said highway….

[A]fter viewing the premises…they adjudicate and determine…that the common good and public necessity require, that said highway be widened and altered as prayed for in said petition, and as is hereinafter specified, and set forth. . . .

Then proceeded to widen and alter said highway, beginning on the Easterly side thereof, at a stone bound standing at the Westerly end of a bar-way, in Elijah Ames’ land-thence running South 20 deg. West, 234 feet on land of Elijah Ames, to the highway and a stone bound. (emphasis added)

See Exhibits 16 and 16T; see also Exhibit 7A depicting the dwellings of Captain Goodsill, Baker and Ames.

115. This court specifically finds that by virtue of the foregoing, Elijah Ames, more likely than not, petitioned the Plymouth County Commissioners to improve an already existing county way which included Winslow Avenue.

116. Exhibit 546 [Note 115] is a highway index “prepared from books in the care of the Plymouth County Commissioners”. Spanning the years of 1686 through 1828, it depicts an entry dated “circa 1721” and concerning a highway alteration petitioned by John Kent. It references too, a “layout through lands of Winslow and Kent.” These entries are indicative of a county way on the property of John Kent, a predecessor in title to the plaintiffs.

117. In the following exchange on cross-examination, Ms. O’Donnell acknowledged that Winslow Street proper is a county way as is Ocean Street into which Winslow Street Runs:

Q. So there are examples of county ways running internally within a town.

A. I can’t think of one offhand, other than Winslow Street….

Q. But you did testify… that Ocean Street is a county way; right? You know that.

A. Yes. [Note 116] (emphasis added)

118. A way, though laid out by the county and deemed a county way, may be maintained by the town in which it is situated. [Note 117] The Plymouth County Administrator, Brian McDonald, testified in this regard, as follows:

Q. And has the county ever been responsible for maintaining these roads, county roads in Marshfield?

A. Not that I’m aware of; possibly. …

Q. And do you know who has the responsibility for maintaining roads designated or regarded by the county to be county ways in Marshfield?

A. Town of Marshfield mostly take—the towns have most—taken over the roads. The county is no longer in the road business.

Q. And when did the town take over the roads?

A. I can’t speak to the exact date; many years go. [Note 118]

119. Simply because one government entity has laid out a way, does not preclude one or more other governmental entities from laying out the same way thereafter. [Note 119]

120. There is no evidence on the trial record that Winslow Avenue, also known as Winslow Street Extension, has ever been discontinued by Plymouth County. As a county way, Winslow Avenue could not effectively be discontinued by the town of Marshfield. [Note 120]

121. Other ways in the subdivision, Ames Avenue, Raleigh Road, Kent Avenue and Waterman Avenue (Subdivision Ways) are private ways.

122. Plaintiff John Coon testified to problems with the septic system in the area of Ames Avenue and Raleigh Road [Note 121] in the late 1960s and early 1970s. “[T]he system that was in place didn’t work anymore.” [Note 122] As a consequence, the town of Marshfield installed a sewer system in the area in the 1970s, [Note 123] to which the homes were obliged to tie in. [Note 124]

123. The Rexhame Terrace Homeowners Association (Association) [Note 125] collected dues. Mr. Coon, a resident of Ames Avenue and former president of the association, [Note 126] testified that a lot of the money so collected went for “the parties. So people get reimbursed for any alcohol or cocktails or other things they serve.” [Note 127] The Association made decisions with regard to the placement of signs in the subdivision. According to Mr. Coon “three large signs were put up in the dunes area. They put up signs at the top of Kent Avenue. We put up two signs at Ames and Raleigh. For the most part, the signs read “Private Property.” [Note 128] See Exhibits 585 through 588 showing home-made signs.

124. In the late 1960s or early 1970s, [Note 129] concerned with the extent of the public use of the Subdivision Ways, the Association hired details consisting of “mostly sheriffs, either retired or not on duty at the time. But it could also have been the Marshfield Police. I’m not positive.” [Note 130]

“[T]hey were hired to remind people going down to the beach that this was a private area….[A] police car would usually be parked in the – Circuit Avenue West, normally up near Kent avenue.” [Note 131]

After being so reminded, “[v]ery often, [the people from outside the Rexhame Terrace Subdivision] would just keep on going.” [Note 132]

125. According to Mr. Coon, “they [the private details] were just trying to slow down the bulk of people going to the beach.” [Note 133] (emphasis added)

According to George Johnson until 1996 or 1997 when the private patrols ceased, he observed police “[p]rimarily at the top of Kent Avenue.” The following exchange took place on cross-examination:

Q. Did they turn people away or say it was a private way?

A. They asked people where they lived….

Q. Did they turn people away that didn’t have a satisfactory answer?

A. I never observed that.

Q. Were you ever stopped by the police?

A. They questioned most everybody most of the time.

Q. And did they tell you this was a private way?

A. No.

Q. Never said that?

A. Never said it to me, no.

126. After the sewer system was installed in approximately the mid-1970s, the town of Marshfield paid for the paving of the Subdivision Ways. [Note 134] Mr. Coon testified on redirect examination as follows:

Q. At some point the streets became paved. Do you recall how Ames and Raleigh came to be paved?

A. Yes. They were paved after—when the sewer was put in…. [Note 135]

Q. The town paved it—

A. Yes….

And on cross-examination:

Q. And who paid for the pavement of the roadways in Rexhame Terrace— the streets?

A. …I believe the town paid for that. We [the Association] didn’t—I don’t recall that we paid for paving of the roads.

127. From approximately the year 2000 though the present, the town of Marshfield has borne the responsibility as well as the cost for plowing the Subdivision Ways. According to Mr. Coon: “From about 2000 to the present, the town’s plow has been plowing—2002, 2003 to the present, they’ve been plowing the roads.” [Note 136] Since that time, “no portion of the Association budget has gone toward snow plowing.” [Note 137] Kenneth O’Donoghue, a resident of Rexhame Terrace confirmed that he had noticed that in past years Winslow Avenue has not been plowed “when the other streets are plowed.” [Note 138]

128. Joseph Daniel McDonald, Sr. is a resident of Rexhame Terrace Subdivision residing at 25 Waterman Avenue. [Note 139] He observed town employees plowing and sanding ways in Rexhame Terrace on behalf of the town in the early 1970s. [Note 140]

129. He was one of those who received a letter from the municipal Department of Public Works (DPW) dated December 13, 1984. By virtue of that letter, Exhibit 43, the Superintendent expressed concern regarding signs “indicating a private way.” As is indicated by the trial record, a number of such signs were posted at various locations in the Rexhame Terrace Subdivision. In his letter, the Superintendent indicated as follows:

[T]he posting of such signs will prohibit the Town from performing necessary maintenance on those roadways [where such signs are posted]. If necessary maintenance cannot be performed, it will reflect on the possibility of not being able to remove snow on those roadways. We are looking for any such signs which would indicate your road is not open to the public be taken down prior to the snow season arriving so that you can have the necessary benefits as desired by most residents.

130. Soon after the issuance of the DPW letter, fifteen or twenty Subdivision residents, including Mr. McDonald, met with the “board of public works.” The residents were concerned with the possible loss of trash pickup. [Note 141] The DPW agreed to continue the pickup of trash for the subdivision residents. That pickup has continued through the present. It is presumed that the Subdivision residents pay a fee to the town for such services, as do all town residents. [Note 142] See, however, the testimony of Kenneth O’Donoghue who opined that rubbish service “gets paid through our taxes.” [Note 143]

131. Further meetings to discuss snow plowing became unnecessary as the town plowed the Subdivision ways thereafter. [Note 144] This court is satisfied that the town continues to plow the Subdivision ways, with the possible exception of Winslow Avenue, through the present time, at no cost to the Subdivision residents. [Note 145]

132. This court specifically finds that numerous individuals residing outside the subdivision have continuously utilized the Subdivision ways, notwithstanding the presence of “No Trespassing” signs or police details. [Note 146] They have done so primarily, though not exclusively, to access the beach area. [Note 147] The private police details were secured on some weekends during the summer time “when it would get busy down there.” [Note 148]

In testimony that this court credits, several witnesses testified to simply ignoring the said signs. Others, testified that though they resided outside the Subdivision, they were never stopped or questioned by the police as they proceeded down one of the Subdivision ways. According to Stephen Leonard, while he observed one or two such details on Circuit Avenue [West], “[t]hey never stopped me….I never witnessed them stopping anybody…. I would walk right by them.” [Note 149]

The plaintiff John Coon was asked on direct examination whether he had known Winslow Street Extension to have been “used by the public.” He responded as follows:

I’ve never known it to be used—you mean people going to the beach or – no, I’ve never known it to be used as a public access, like other roads. [Note 150] (emphasis added)

133. George W. Johnson has resided since 1994 on Ford Street, outside of the Rexhame Terrace Subdivision, approximately 500 yards from Rexhame Beach. He testified to walking with members of his family, his dog and friends to the beach. During the summertime, they walked to the beach “[a]lmost on a daily basis.” [Note 151] They travel over Circuit Avenue West to Ames Road, Raleigh Road and Waterman Avenue. He has observed similar activity on the part of neighbors who reside outside of the Subdivision.

134. George Johnson further testified that the beach gets very crowded during the summertime, especially on weekends. He estimated that on a typical weekday, there are approximately 150 to 200 people sitting in his general area. On the weekends, this number increases to approximately 500. [Note 152] He observed that he knew “quite a number” of these people and “that they were not residents of the terrace[,] that were on the beach.” [Note 153]

135. In 1954, the town voters approved the following local option ballot question:

Shall the Town vote to accept the provisions of Section 6C of Chapter 40 of the General Laws, which authorizes cities and towns to appropriate money for the removal of snow and ice from private ways therein open to public use.

136. Barry Bartlett the Director of Operations for the Marshfield Department of Public Works (DPW) for the past nine years, testified to the services provided to the residents of Rexhame Terrace. He stated that “[w]e plow there and sand…--and there’s rubbish pickup.” [Note 154] The town has provided these services at least for the period he has served as operations director. [Note 155] He stated further, that “they [Rexhame Terrace residents] have town water and sewer….” [Note 156] And also recycling, too: they have their recycling picked up.” [Note 157]

Mr. Bartlett recalled repairing a sewer line break on Ames Avenue within the Subdivision. The following exchange ensued:

Q. [I]f there were a problem with the sewer lines or something associated with the sewer line, would that be something that you would be responsible to perform service on?

A. Perform service on, yes…. [Note 158]

Q. …[H]ave you ever had any involvement in performing any work to maintain any of the streets and ways in Rexhame Terrace?

A. Yes.

Q. And do you recall when that was?

A. …[I]t would probably be [2007] or [2008]….There was a washout. It was after a rainstorm. There was a washout on the side of the road, and I was asked to go repair it….

Q. And do you remember what street that was on?

A. Yes, it was on Waterman [Avenue].

Mr. Bartlett testified further that “if there’s a break or work is needed on the sewers or water mains, the town takes care of that.”

Q. And that’s part of the fees you pay for sewer and water use?

A. …yes. [Note 159]

137. Mr. Coon testified regarding the relative lack of maintenance by the town on paved Subdivision ways. He observed that “it’s [the paved area] so new it’s never needed it [maintenance or repair].” [Note 160]

138. On cross examination, Mr. Bartlett acknowledged the existence of a street listing issued by the town in 2005 that lists Winslow Avenue as “Private Way; Closed to Public (PC)”. Among the designees to the committee responsible for drawing up the street list, was Bartlett’s former secretary. [Note 161] The same designation was applied to the other Rexhame Terrace ways.

139. Paul Halkiotis, the town planner testified with regard to the town street listing, Exhibit 322A as follows:

There is a yellow covered booklet that was prepared by some of the secretaries that work for the planning department which contains a listing of the streets in the town. [Note 162]

He observed in this regard as follows:

The individuals that prepared that reference document are not qualified by credentials…” [Note 163]

He further testified that he was without knowledge whether those who compiled the town street listing considered whether a way might be a county road, in making their determination. [Note 164]

140. Predicated upon the trial record as a whole, [Note 165] this court is satisfied that the street listing [Note 166] is of questionable reliability and in any event, is in no way determinative, as a matter of law, as to the legal status of the ways listed therein. [Note 167]

141. “The Colony of Plymouth was divided into the counties of Plymouth, Barnstable and Bristol, by an act [of the General Court] of 1685, before its annexation to Massachusetts by the Province Charter.” Commonwealth v. City of Roxbury, 9 Gray 451 (1857).

DISCUSSION

This court will first address the beach ownership portion of the case and subsequently turn to the public access issues regarding the subdivision roads. [Note 168]

Ownership Interests at Rexhame Beach

The plaintiffs claim to own the “beach lots” easterly of Circuit Avenue East to the high and low water mark and thus assert ownership of the tidal flats. The Town, however alleges that since Plaintiffs are faced “with a superior title claim by the Town of Marshfield to an ‘upland’ beach area used as a public highway and common for pasturing which adjoins the tidal flats and predates the merger of Plymouth Colony and Massachusetts Bay Colony in 1692, and is distinguishable [from the meadow, etc.] granted into the plaintiffs’ chain-of-title, the plaintiffs claim of record title cannot be sustained.”

The plaintiffs’ claims of ownership are primarily grounded in two theories. The first arises from the original grants to Joseph Beadle, the earliest settler in the plaintiffs’ respective chains-of-title. Essentially, the plaintiffs maintain that Beadle was granted land to the highwater mark, and as a result of the Colonial Ordinance, ownership of the tidal flats vested in the plaintiffs’ predecessors-in-title and such ownership has continued on to the present day unaffected by the Briggs Thomas cases. Alternatively, the plaintiffs maintain that even if this court finds that they cannot succeed on their first theory, the Town nonetheless released any title it had in the “beach lots” by virtue of the 1916 Release Deed.

Contrarily, the defendants maintain that the original grants to Beadle never went all the way to the sea because when the town granted land to Beadle, it retained commonage rights in what would today be the coastal dune area above high tide. As such, they allege that the plaintiffs did not gain ownership of the tidal flats by virtue of the Colonial Ordinance because they never owned land adjoining the sea or high water mark. Additionally, they vehemently maintain the Briggs Thomas cases determined that the plaintiffs’ predecessor-in-title did not have title to the “beach,” however defined.

Further, the Town avers that even if the court deemed the plaintiffs’ alleged title to the “beach” unaffected by the Briggs Thomas cases such that Sarah Ames may have held title to the sea, they nonetheless argue that Ray Ames only received a fractional interest in the land east of Circuit Avenue West. Thus, they maintain the plaintiffs’ only have a 1/7th interest in the beach lots and tidal flats. Lastly, the Town argues that the 1916 Release deed was limited to land northerly of Rexhame and had no effect on, nor released any interest of the Town in the “beach lots” east of Circuit Avenue East.

Each of these arguments will be addressed in turn in the discussion below. Central to the resolution of this case is an examination of the Briggs Thomas cases, the application and development of littoral law in Massachusetts—particularly the Colonial Ordinance as applied to properties in the former Plymouth Colony, and an examination of the meaning of “beach.”

A. Burden of Proof

As the parties initiating an action to quiet title, the plaintiffs bear the burden of affirmatively establishing their title. See Spillane v. Adams, 76 Mass. App. Ct. 378 , 381 (2010); U.S. Bank Nat. Ass’n v. Ibanez, 458 Mass. 637 , 645 (2011) (“The plaintiffs brought actions under G.L. c. 240, § 6 . . . [a]s such, the plaintiffs bore the burden of establishing their entitlement to the relief sought.”). It is insufficient for the plaintiff “to merely demonstrate the weaknesses or nonexistence of the defendant’s title . . . [rather] the plaintiff’s burden requires the plaintiff to prove sufficient title to succeed in its action.” Sheriff’s Meadow Found., Inc. v. Bay-Courte Edgartown, Inc., 401 Mass. 267 , 269 (1987), citing Buttrick v. Tilton, 141 Mass. 93 , 96 (1886). The length of a chain of title holds no weight where there is a prior, superior title. Id. At 269-70; Spillane, 76 Mass. App. Ct. at 382 (noting that a chain-of-title dating back approximately over 100 years would ordinarily be sufficient in the absence of countervailing evidence).

B. The Briggs Thomas cases

The defendants maintain that the plaintiffs are precluded from arguing ownership of the flats and “upland beach” inasmuch as the Briggs Thomas cases determined that the plaintiffs’ predecessor-in-title, Briggs Thomas, possessed no legal title to any portion of the “beach,” however defined, abutting Rexhame Terrace. The court deems this argument to be especially persuasive.

Res judicata is the “generic term for various doctrines by which a judgment in one action will be held to have a binding effect in another. Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). The term includes both “claim preclusion” and “issue preclusion.” Kobrin v. Bd. of Registration, 444 Mass. 837 , 843 (2005). The defendants rely primarily on issue preclusion, which “is the modern term for the doctrine traditionally known as ‘collateral estoppel,’ and prevents relitigation of an issue determined in an earlier action where the same issue arises between the same parties or their privies . . . .” Heacock, 402 Mass. at 23 n.2. The party asserting issue preclusion must establish the following: (1) there was a final judgment on the merits in the prior action; (2) the party against whom preclusion is asserted (or in privity with a party) was a party to the prior action; (3) the issue in the prior litigation was identical to the current issue; and (4) the issue in the prior action was essential to an earlier judgment. See Kobrin, 444 Mass. 837 , 844 (2005), citing Tuper v. No. Adams Ambulances Serv., Inc., 428 Mass. 132 , 134 (1998).

The defendants aver that the Supreme Judicial Court previously had determined that Briggs Thomas had no title in or to the beach, however defined. The Briggs Thomas cases centered on Thomas’ claims to compensation under the Act of 1828 [Note 169] which prohibited cattle from going at large on Marshfield Beach. It provided damages for anyone who had “a legal title in, or to said beach, or any part thereof.” Briggs Thomas first brought suit in the Court of Common Pleas. The Court of Common Pleas held that Thomas had no “such title in or to the beach mentioned in his complaint or any part thereof and no such right or rights of common therein.” Ex. 528. Thomas, a predecessor- in-title to the plaintiffs, twice went before the Supreme judicial Court regarding his title in the beach. In Briggs Thomas I, Thomas claimed legal title in the beach by an express right of commonage based on the 1645 Grant of Commoning from the Town of Marshfield. Finding that the grantees of the 1645 Grant of were too indefinite, the Court held that “It is impossible for him [Briggs Thomas], therefore, as the law and the facts are, to maintain any title under this grant.” Briggs Thomas I, 27 Mass. 364 (10 Pick.) 364, 374 (1830).

In Briggs Thomas II, following a new trial, Thomas readily admitted that he did not own the beach. He, nonetheless, claimed a prescriptive right to graze his cattle on the beach. The Court noted that the defendant Town of Marshfield had proved, inter alia, that a highway had been laid out along the beach in 1692 and that “the beach was a place of common resort for fisherman, fowlers and haymakers . . . who time out of mind had been used to turn out their horses on the beach for depasturing.” Thomas II, 30 Mass. at 248. The Court detailed the extensive use by the public of the beach as a highway and for its use as a common. It concluded as follows:

“Whether the fee of the beach remains in the commonwealth, or vested by the ancient grant in the town of Marshfield, it was left open for the public use and convenience as a highway, common, and landing place, and has been so used for more than a century . . . .” (emphasis added)

After concluding that the “beach” was publicly owned, the court definitively stated that Thomas has no “title whatever in the beach.” The Court reiterated that “[t]he complainant . . . thus failed to show title to any part of the beach.” Whereupon, it dismissed Briggs Thomas’ complaint.

The Briggs Thomas cases concerned not only the plaintiffs’ predecessor-in- interest but the land at issue therein included the same land which the plaintiffs now claim to own. Court rendered a final judgment to the effect that Briggs Thomas had no “title whatever in the beach.” The Court’s determination in that regard, was essential to the “judgment of the Court . . . that he [Briggs Thomas] take nothing by his complaint,” This court is satisfied, therefore, as the defendants posit herein, that the Briggs Thomas cases have preclusive effect upon the plaintiffs’ claims to ownership of the “beach,” however the plaintiffs may wish to define that term.

C. Notwithstanding the Briggs Thomas cases, the Plaintiffs Do Not Own to the Sea

The Supreme Judicial Court had determined that for its purposes, the “beach” was publicly owned either by the Town of Marshfield or by the Commonwealth. Based upon the entirety of the extensive record before it, this court concludes that, more likely than not, it is the Town of Marshfield which owns the “beach.” There can be no doubt that such “beach” includes a portion of the upland area above high water mark. That portion of upland, the commoning or commonage as it was then called, was interposed between the Briggs Thomas farm and the seashore.

1. “The Meaning of Beach”

At the time of the Briggs Thomas decisions, the term “beach” as used by the Supreme Judicial Court clearly included a portion of the upland vegetated dune area above high water mark—which would today comprise part of the current day “beach lots.”

In Massachusetts, the primary meaning of “beach” is “the area between ordinary high water mark and low water mark, over which the tide ebbs and flows.” Hewitt v. Perry, 309 Mass. 100 , 104 (1941). See , e.g. Niles v. Patch, 79 Mass. 254 (9 Gray) (1859) (“Beach in its ordinary signification, when applied to a place on tide waters, means the space between ordinary high and low water mark, or the space over which the tide ebbs and flows.”); Castor v. Smith, 211 Mass. 473 , 474 (1912). In Massachusetts, beach is used synonymously with “shore” or “flats.” See, e.g., Storer v. Freeman, 6 Mass. 435 , 439 (1810), Doane v. Willcut, 71 Mass. 328 (1855). Upland, as it is used in the Commonwealth today, is the area above the high water mark. See Storer v. Freeman, 6 Mass. 435 , 439 (1810). However, the Supreme Judicial Court has recognized that “beach” may have a secondary meaning and in the past has recognized “beach” to include certain land above the usual high water line. See Hewitt v. Perry, 309 Mass. 100 , 105 (1941).

The plaintiffs allege that “beach” as used both in the Briggs Thomas cases and in the early lands grants to Beadle and the subsequent persons in the plaintiffs’ chain-of-title means the land “over which the tide ebbs and flows, i.e. between the ordinary high tide and the extreme low water mark.” [Note 170] Thus, they argue that the land grants to Beadle went to the high water-mark and as a result of the Colonial Ordinance vested title in the flats to their predecessors-in-title. Contrarily, the Town argues that “based on what the right to common is (the right to graze one’s animals on common land of the town) and what is known today about the lack of vegetation that neat or domesticated cattle or sheep would eat in the intertidal area in Rexhame, its impossible to conclude the “beach” referred to land below high water mark, but rather, an elevated dune area now known as the coastal dune or a vegetated dune which supports plants such that cattle and horses could feed.” [Note 171]

Notwithstanding the usually understood meaning of the term “beach,” this court concludes that the only reasonable interpretation of term “beach” in colonial and historical Marshfield included some “upland” area above the high water mark on which cattle and horses could graze. The Briggs Thomas cases are replete with references to cattle and horses depasturing the “beach.” Thomas proved his cattle “fed at pleasure on the beach.” Moreover, the Thomas II Court speaks of fisherman, fowlers, and haymakers turning out their horses to “depasture” on the beach. It speaks too of “pasturing cattle on an open common,” the fisherman, fowlers, etc. “turn[ing] out their horses on [the beach] to feed,” and Thomas I also speaks of a “right of common to pasture” on the beach. See generally, Thomas I and Thomas II. A right of common [Note 172] to pasture in itself is defined as the “right to pasture one’s cattle on another’s land.” See Black’s Law Dictionary, (7th Ed. 1999).

This court credits the testimony of Amy Ball, the wetlands scientist as to the “Barrier Beach” nature of the Rexhame Beach Area—i.e. a coastal beach intertidal area, an upward coastal dune and a wetlands area landward of the coastal dune. Based on her credible testimony that “vascular plants” cannot grow on a coastal beach subject to wave action, in tandem with the opinion of Dr. Herbert as to the types of plants on which cattle graze, this court concludes that, more likely than not, the cattle and horses that were “feeding” or “depasturing” on the “beach” in the Thomas cases could only have been feeding on some area of coastal dune above the line of high tide.

The plaintiffs argue two points to this court: (1) cattle and horses historically ate salt marsh hay, i.e. saltmarsh cordgrass (Spartina Patens), which grew in the marshes around the Green’s Harbor River and the South River; and (2) that salt marsh is subject to tidal action. From these two contentions, it appears that the plaintiffs are seeking a determination to the effect that the grants to Beadle in the 1640s including marsh, meadow, and mowable marsh [Note 173] must have bounded on the tidewaters of the sea and that the marsh is subject to the “tidal action” of the ocean (as opposed to the tidal action of salt water flowing into a river in an estuarine area).

Based upon the trial record, including the testimony of Amy Ball, this court has no doubt that marshes are subject to the tidal action of salt water. Such tidal action does not however, equate with the “wave action” of the sea. Thus, while cattle may have grazed on plants below high tide in the salt marsh, they likely did so on the inlet of the tidal estuary, i.e. the landward side of a barrier beach. This conclusion gains support from the plaintiffs own expert, Town Historian Krusell, who testified that cattle historically grazed on salt marsh hay. In this regard, she acknowledged on more than one occasion that she was aware of no marsh on the beach side facing the Atlantic Ocean.

She stated further that “[t]here was plenty of marsh on the inland side of the tidal –tidal estuary of the Green Harbor River . . . .” Tr. 6-50.

Lending yet additional support is the 1838 John Ford map, Exhibit 6, which specifically shows an area of land, labeled “beach” thereon, between the “Massachusetts Bay,” i.e. the tidewaters of the sea, and the area identified as “Green’s Harbor Marsh.” Several other historical maps of Marshfield, though not as clearly labeled as the 1838 Map, purport to show an area of land between the marshes and the sea. This is consistent with the meaning of “beach” as including land above the high water mark. It demonstrates that there was some type of coastal dune dividing the ocean on the seaward side and the marshes/wetlands on the landward side.

2. The Grants to Beadle did not go all the way to the High-Water Mark because the Town Granted Commonage to the residents of Marshfield Neck Which Ran the Length of the “Beach” from the South River to Green’s Harbor River

The plaintiffs argue that they are presumed to hold title to the flats by virtue of their deeds which extend to the seashore. “Since the passage of the [colonial] ordinance, a grant of land bounding on the sea shore carries the flats in the absence of excluding words.” Pazolt v. Dir. of Div. of Marine Fisheries, 417 Mass. 565 , 571 (1994), citing Com. v. Roxbury, 9 Gray 451 , 524 (1857). The chains-of-title herein extend back well before the Colonial Ordinance; the defendants herein by direct and plentiful evidence at trial, have convinced this court that the grants to Beadle and the early predecessors-in- title of the plaintiffs did not, in fact, ever extend to the high water mark or to the tidewaters of the sea. This conclusion derives from the fact that the Town of Marshfield granted commoning rights in the entire length of the beach from Green’s Harbor River to the South River on the “upland” beach vegetated dune area between the land of the plaintiffs’ predecessors-in-title and the ocean’s high water mark.

a. The 1640s Grants to Beadle

Joseph Beadle, the earliest of these predecessors-in-title, received several grants of land in the 1640s. He first received 30 acres of meadow directly from the Colony and then obtained additional grants of meadow, marsh, mowable meadow and grass either from the town, or acknowledged by individuals at the Town Meeting.

In April 1645, the Town granted Beadle “all the meadow about the reed ponds lying between this . . . and the beach . . .” Six months later, in October of 1645, the town granted a right of commoning [Note 174] to the residents of Marshfield Neck on the “beach” from the South River’s mouth to the Green’s Harbor River’s mouth.

Given what is known about (a) the use of the “beach” in the Briggs Thomas cases as commoning for the pasture of cattle together with (b) this court’s conclusion that “beach” included some vegetated dune on which they grazed, this court concludes, inexorably so, that the original grants to Beadle did not go all the way to the tidewaters of the sea as is alleged by the plaintiffs. The defendants’ title expert, Edward Rainen, testified as follows:

Q: And if beach in colonial times in Marshfield referred to an area that not only included the intertidal area but the area where there was a highway and the area where cows grazed, was that land excluded from the grant to Mr. Beadle?

A: That’s Correct.

The town kept open an area of common, which ran from the South River mouth to the Green’s Harbor River mouth on the upland portion of the vegetated dune. This area of common was a strip of land on the upland vegetated dune area of “beach” between the ocean and any wetlands area landward of the dune, including any marshes or “wet meadows.” [Note 175] Additionally, although the plaintiffs argue that the grants of meadow, mowable meadow, and marsh bordered on the ocean, this court concludes for the reasons set forth in its findings of fact, that any marsh or meadow was located on the landward side of a barrier beach and did not adjoin the tidal waters of the sea.

b. Development of Littoral Rights in Plymouth Colony and Application of the Colonial Ordinance to Marshfield

Given that Beadle did not own land abutting on the tidewaters of the sea, this court concludes that under the principles enunciated in Litchfield v. Scituate, [Note 176] the Colonial Ordinance did not vest title to the tidal flats in the plaintiffs’ predecessors-in-title upon the merger of the colonies in 1692. [Note 177] As such, none of the subsequent owners in the chain-of-title derived title to the seashore. See Litchfield v. Ferguson, 141 Mass. 97 , 99 (1886) (noting that although plaintiff’s title conveyed to the low-water mark, predecessor-in-title could only convey what he had and if the predecessor had no title to the low water mark, he could convey none to plaintiff).

Under the English common law, private ownership in coastal land extended only as far as the mean high water mark. Arno v. Commonwealth, 457 Mass. 434 , 449 (2010). Land seaward of the mean high water mark was vested in the Crown and divided into two distinct categories: 1) a property interest, known as the jus privatum and 2) a public interest, known as the jus publicum. Commonwealth v. City of Roxbury, 75 Mass. 451 , 483 (1857). While a private landowner could acquire a property interest (jus privatum) below the mean high water mark, the public interest (jus publicum) could not be conveyed and was held in trust for the benefit of the public. Shively v. Bowlby, 152 U.S. 1, 13 (1894). These property rights were passed by charter to the colonies in Massachusetts. Opinion of the Justices, 365 Mass. 681 , 684 (1974).

In the 1640s, Massachusetts Bay Colony “in order to encourage littoral owners to build wharves, . . . took the extraordinary step of extending private title to encompass land as far as mean low water line or to 100 rods from the mean high water line, whatever was the lesser measure.” Opinion of the Justices, 365 Mass. 681 , 684 (1974). The English Common law was thus altered by an ordinance, today known as the Colonial Ordinance of 1641-47. [Note 178] See Boston Waterfront Dev. Corp. v. Com., 378 Mass. 629 (1979); Opinion of the Justices, 356 Mass. 681 , 684 (1974). “The effect of the ordinance of 1647, as established by a long course of decisions, is, that the title which the proprietor of land bounded by tidewater had above high water mark was thereby extended over the shore or flats, subject only to the public rights of navigation or fishing.” City of Boston v. Richardson, 105 Mass. 351 , 354 (1870) (emphasis added). [Note 179] Thus, under the Colonial Ordinance, an owner of land abutting a tidal body of water, “shall hold title to the land out to the low water mark or 100 rods (1,650 feet), whichever is less.” Pazolt v. Dir. of the Division of Marine Fisheries, 417 Mass. 565 , 570 (1994), citing Boston Waterfront Dev. Corp., 378 Mass. at 365.

Marshfield was, until 1692, a part of the former Plymouth Colony. The Massachusetts Bay Colony and Plymouth Colony merged in 1692 under the Province Charter (Province Charter). Litchfield v. Inhabitants of Scituate, 136 Mass. 39 , 46 (1883). Although the Colonial Ordinance was “never extended over Plymouth [Colony] by any act of the General Court,” the Colonial Ordinance “has been extended to Plymouth . . . by usage and judicial decision.” Id. at 46; see also Opinion of the Justices, 365 Mass. 681 , 685 (1974) (“Although strictly the [colonial] ordinance was limited to Massachusetts Bay Colony, it has long been interpreted as effecting a grant of the tidal land to all coastal owners in the Commonwealth.”); Barker v. Bates, 30 Mass. 255 , 258 (1832).

As further noted in Litchfield:

The different in the retrospective operation of the ordinance in the territory of the two Colonies upon grants under which the Ordinance would, and under the common law of England would not, convey the shore or flats, is this: in the Massachusetts Colony the ordinance enures to the benefit of the grantees, or of those claiming under them, if the Colony had not conveyed the shore or flats to others before the passage of the Ordinance; in Plymouth Colony, the ordinance enures to the benefit of the grantees, or of those claiming under them, if that Colony had not conveyed the shore or flats to others before the Province Charter.” Litchfield, 136 Mass. at 39.

Prior to 1692, the common law of England applied. See id.; City of Boston v. Richardson, 105 Mass. 351 (1870) (“It is true that by the common law a grant from the sovereign of land bounded on tide water did not pass the shore below high water mark without express words to that effect.”). As of 1692, “the ordinance then enured to the benefit of whomsoever then held [in 1692] title to lands adjoining the sea.” Litchfield, 136. Mass. 39, 42 (1882).

Thus, if the Town of Marshfield held title to any portion of the shore in 1692, as this court concludes that it did, the Colonial Ordinance would have inured to the benefit of the Town; if it was held by individual property owners, then the Colonial Ordinance would have inured to their benefit. Commonwealth v. Roxbury, 75 Mass. 451 (9 Gray) 498 (1857). Grants after 1692 are treated the same way as grants after 1641 in Massachusetts Bay Colony.

Finally, since the passage of the Ordinance, the “presumption of law is that title to the flats follows that of the upland on which they lie, and proof of title to the upland established title to the flats. . . . . [A]n owner may separate his upland from his flats, by alienating the one, without the other. But such a conveyance is to be proved, not presumed, and therefore ordinarily proof of the title in the upland carries the flats in the absence of excluding words.” Pazolt, 417 Mass. at 570-71.

In 1692, when the Colonial Ordinance became applicable in the former Plymouth Colony, Isaac Little held title to the Beadle farm. The Powell to Little deed of 1687 describes the Beadle farm as “one hundred and twenty acres (120) acres of upland and meadow” bounded “Eastward with the beach.” While there is no evidence that the Colony ever conveyed the tidal flats out prior to 1692, Litchfield specifically states that the ordinance would inure to those holding property adjoining the sea. Based on this court’s finding that “beach” in colonial Marshfield included an upland coastal dune on which cattle could graze, Little could not have held title to the tidewaters of the sea and did not gain ownership of the tidal flats as a result of the Colonial Ordinance.

This situation, while clearly not identical, is analogous to property bounding on a way. “A boundary by a way excludes the flats beyond.” Commonwealth v. Roxbury, 75 Mass. (9 Gray) 451, 525 (1857). In Kane v. Vanzura, 78 Mass. App. Ct. 749 (2011), the Appeals Court noted that: “the tidelands at issue in the present case are not adjacent to the uplands conveyed under the deed in the ordinary sense, as the uplands abut a way on one side, and the tidelands abut the way on the other. . . In such circumstances, the way is considered a bounding monument, and ‘[a] boundary by a way excludes the flats beyond.” Kane, 78 Mass. App. Ct. 754 , 749 (2011). At the time of the Colonial Ordinance, the Beadle farm abutted public commoning ground granted by the Town to the residents of Marshfield Neck, which ran the entire length of the beach from the South River to the Green’s Harbor River. While the Town cannot demonstrate, to the satisfaction of this court, the precise bounds of the commonage granted 369 years ago, this court is nonetheless left with the firm conviction that the defendants have proven by a preponderance of the evidence that neither Beadle, nor any of his successors-in-title ever owned upland all the way to the high water mark or the tidewaters of the sea.

c. Countervailing Evidence of Superior Title is More Likely than Not in the Town of Marshfield

As observed, the Briggs Thomas Court determined that “whether the fee in the beach remains in the commonwealth, or vested by ancient grant in the town of Marshfield, it was left open for public use and convenience as a highway, common, and landing place, and has been so used for more than a century.” Thomas II, 30 Mass. (13. Pick) 240 (1832). Notably, the Commonwealth does not assert herein any rights in any portion of the beach in the instant action other than those fishing, fowling, and navigation rights afforded to the public by virtue of the Colonial Ordinance.

The Town of Marshfield, as respondent in Thomas II proved, inter alia, that the highway was laid out the whole extent of the beach from Green’s Harbor River to South River and more importantly, that the beach was a “place of common resort for fisherman, fowlers, and haymakers, who time out of mind had been used to turn their horses on the beach for depasturing.” Critically, the Court noted that regardless of which public entity owned it, the beach was left “open for public use as a highway, common, and landing place, and has been so used for more than a century.” Briggs Thomas himself went before the Supreme Judicial Court and argued that the fee of the beach was in the Town of Marshfield. The remaining question left open by Thomas II is whether the Town or the Commonwealth owned the “beach.”

This court finds that more likely than not ownership of the beach was vested in the Town of Marshfield. First, none of the grants to Beadle conveyed any portion of the coastal vegetated dunes that exists in the “barrier beach system” of Rexhame. Second, a 1685 General Court Ordinance confirmed the bounds of the Town of Marshfield and confirmed title to all grants previously made in the town.

Edward Rainen, the Town’s title expert, opined on the import of the 1685 Ordinance:

Q: What is your understanding of the effect of that language [in the 1685 Ordinance]?

A: This is a confirmatory document that establishes the bounds of the town and confirms that all deeds out of the town prior to this time are valid and effective and that all the rights that have existed as a result of the town are effective. Tr. 11-113.

Rainen further testified that although he could not specifically say what the commoning grant consisted of, he noted that “[it] was set forth in the Briggs Thomas case that described it pretty precisely.” Tr. 11-85.

Moreover, that the Town has title to the upland area of “beach” that was described as the common area in the Briggs Thomas cases gains further support from the testimony of Edward Rainen: He opined as follows:

Q: Sir, now based on your review of the deeds and your review of the Briggs Thomas cases and the language that describes the beach that was adjacent to Briggs Thomas’ land, are you able to form an opinion as to whether the plaintiffs’ title included beach if it derived through Sarah Ames?

A: Yes, I’m able to.

Q: And what is that opinion?

A: Plaintiff’s title includes no portion of the beach.

Q: And are you able to form an opinion as to who owns the beach based upon your review of the title information, the deeds in the chain of title, and your consideration of applicable case law?

A: Yes.

Q: Who owns that beach?

A: Town of Marshfield. Tr. 10-69.

Given the whole of the extensive and voluminous record in this case, this court determines that where the Supreme Judicial Court concluded in 1832 that the “beach” was publicly owned either by the Town or the Commonwealth, that more likely than not any such title was in the Town, which in the first instance, granted rights in the commonage. Consequently, the Town presently owns some or all of the upland portion of the beach lots above high water mark together with the tidal flats to the low water mark.

Even if it could be demonstrated that the town of Marshfield did not own the beach including a portion of uplands and the tidal flats, the plaintiffs would be in no better position. For then, under the Briggs Thomas cases, title would reside in the Commonwealth.

D. The Fractional Interest of Ray Ames Prevents This Court from Finding that the Plaintiffs have Sufficient Title in the Beach Lots.

Even if it could be said that Sarah Ames possessed title to the sea as the plaintiffs claim, [Note 180] whatever interest that Ray Ames could be said to have obtained from his mother Sarah Ames in the land east of Circuit Avenue East, [Note 181] would still have been subject to the “fractional interests” of the other heirs of Sarah Ames. This is because any such interest “to the sea” was purportedly conveyed under the will not only to the grandchildren of Sarah Ames’ deceased daughter, but to all her children, of which Ray Ames was but one person. Nonetheless, he purported to convey such interest east of Circuit Avenue East in his own name only. At best he could have conveyed no more than a one-seventh interest that was purportedly derived from his mother, Sarah Ames.

E. The 1916 Release Deed was Applicable to Upland “beach” area North of Rexhame Terrace and had No effect on the Beach Lots

Alternatively, the plaintiffs allege that the Town released any title it may have had in beach lots east of Circuit Avenue East by virtue of the 1916 Release Deed. The court finds this theory unavailing. First and foremost, the Release Deed related to land northerly of Rexhame Terrace. This is clearly evident by the very specific description of the (31) acres of upland and beach bounded southerly by the northerly line of Circuit Avenue North. Circuit Avenue North is the northernmost bound of the Rexhame Terrace Subdivision. Second, although the plaintiffs argue that this Deed somehow confirmed in Ray Ames title to the beach lots east of Rexhame Terrace, this court interprets that “intended to confirm” language differently.

As this court concludes that the release deed specifically confirmed and released title only the premises specifically described in the release deed, i.e. the 31 acres of upland and beach northerly of the beach lots, this court need not address the validity of the underlying deed owing to its execution by the Town Treasurer, rather than by the Selectmen as called for in the Town Bylaws.

The Subdivision Roadways

In no small measure, this case also concerns the legal status of several roadways which run through the Rexhame Terrace Subdivision. One such issue concerns the status of Winslow Avenue, also known as Winslow Street Extension. [Note 182] The plaintiffs argue that Winslow Avenue is at present a private way owned by its abutters pursuant to the Derelict Fee Statute, so-called. G.L. c. 183, § 58. For their part, the governmental defendants argue that Winslow Avenue is a public way, specifically a county way, which runs to the seashore, that it was laid out in 1692 and never abandoned or discontinued by Plymouth County. Winslow Avenue is depicted on Elijah Ames subdivision plan of Rexhame Terrace of July 1890. See Exhibit 9 which shows Winslow Avenue running easterly of Circuit Avenue West.

Winslow Avenue

This court is satisfied and so concludes that Winslow Avenue, also known as Winslow Street Extension was initially laid out as a public way by virtue of the 1692 Layout. In this conclusion, the court finds support in the testimony of the plaintiffs’ own expert witness.

As a matter of law, the burden rest with the party asserting the public status of the way. See Witteveld v. Haverhill, 12 Mass. App. Ct. 876 , 877 (1981) (When the fact of a public way is disputed, the burden of proof falls on the party asserting the fact). Having demonstrated to the satisfaction of this court that Winslow Avenue, Winslow Street and at least a portion of what is now Ocean Avenue, were more likely than not laid out by virtue of the 1692 Layout, this court is satisfied that the burden has been met by the Town of Marshfield and the Commonwealth of Massachusetts.

Perhaps the more challenging question concerns the nature of that public way, i.e. whether it was laid out as a town way or county way. As observed above, the plaintiffs’ expert opined that Winslow Avenue was laid out as a town way arguing that the 1692 Layout lacked indicia that would ordinarily attach to the layout of a county way. For their part, the defendants argued that the 1692 Layout lacked any reference to a Magistrate, and must therefore have been conducted by the colony.

The distinction between a town way and a county way is critical inasmuch as the town disclaimed all interest in Winslow Avenue as a town way in 1957. Had it not done so, Winslow Avenue would today be deemed a public, town way.

As a consequence, if this court were to conclude that Winslow Avenue were laid out as a town way, the town’s interest has been effectively disclaimed thereby vesting title to the way in the abutting owners pursuant to the Derelict Fee Statute, G.L. c. 183, s. 58. Alternatively, were this court to conclude that Winslow Avenue was laid out as a county way, then it would continue to be so inasmuch as there is no evidence that Plymouth County, in which the town of Marshfield resides, has ever abandoned or discontinued the way.

This court concludes that a preponderance of the evidence favors the conclusion that Winslow Avenue also known as Winslow Street Extension is a county way. While the 1692 layout provides no definitive conclusion in this regard, other evidentiary materials in the trial record, when viewed in the aggregate, support the notion that by virtue of the 1692 Layout, the Plymouth Colony laid out what were to become county ways. It is noteworthy in this regard, that Winslow Avenue as depicted on a number of county maps extends to the seashore.

Both Ocean Street and Winslow Street are depicted on the maps referenced supra, as county ways. Winslow Avenue also known as Winslow Street Extension, not surprisingly, extends beyond Winslow Street through the Rexhame Terrace Subdivision to the seashore. The plaintiffs’ own expert witness has acknowledged, and this court so finds, that Ocean Street [Note 183] and Winslow Street are county ways. [Note 184] This court finds too, that Winslow Avenue, Winslow Street and at least a portion of Ocean Street were laid out simultaneously in 1692. This simultaneous layout of the three ways, the fact that two of the said ways are admittedly county ways, and the fact that Winslow Avenue is an extension of a county way, support the notion that Winslow Avenue was also laid out as a county way.

Additionally, there are references in the records of the Plymouth County Commissioners to a circa 1721 “Layout through lands of Winslow and Kent” and to an alteration presumably by the county commissioners, at an “Unknown Location” on the land of John Kent. Standing alone this entry is of limited evidentiary value; however, it indicates that one or more county ways ran over or through the property of John Kent, a predecessor in title to the plaintiffs.

Of significance is the Elijah Ames petition of 1883 to the Plymouth County Commissioners. By virtue of this request, Mr. Ames seeks improvements to a way or ways that include, at a minimum, Winslow Avenue. See in this regard, the Ames petition containing a reference to a way proceeding “by right angles to the beach.” Such description is wholly consistent with the distinctive layout of Winslow Avenue as depicted on numerous maps and surveys which appear in the trial record. From this fact, this court infers that Winslow Avenue was deemed a county way by Elijah Ames, a predecessor in title to the plaintiffs herein. There is no credible evidence to the contrary, on the trial record.

Lastly, this court has referenced a number of official Plymouth County Maps which clearly depict Ocean Street, Winslow Street and Winslow Street Extension as county ways. As previously noted, the plaintiffs’ expert title examiner has readily acknowledged that two of these ways, Ocean Street and Winslow Street are indeed county ways. The defendants’ expert witness, Daniel McKenzie, a professional testified as to the reliability of such maps.

In view of the foregoing, this court concludes that Winslow Street Avenue also known as Winslow Street Extension, never having been abandoned or discontinued by Plymouth County, continues as a public way.

Other Subdivision Ways

A second roadway-related issue concerns the use and designation of Ames Avenue, Raleigh Road, Kent Avenue and Waterman Avenue, the private ways running through the Rexhame Terrace Subdivision. In arguing that the said ways are private ways open to the public, the defendants rely in no small measure upon G.L. c. 40, s. 6C.

In 1954, the voters of Marshfield approved a local option ballot question pursuant to G.L. c. 40, s. 6C [Note 185] which, in general terms, authorizes cities and towns to expend public monies for the removal of snow and ice from private ways which are open to the public. The defendants appear to argue that as the town of Marshfield accepted G.L. c. 40, s. 6C and years later commenced snow plowing and sanding within the Subdivision, that the Subdivision roads ought to be deemed “open to public use.” However, the mere fact that the town accepted this local option statute and pays for such services out of its budget, does not, in the view of this court, render the affected ways “open for public use.” It does no more than, in general terms, permit the expenditure of public funds on ways which it deems to be open for public use.

Section 6C provides in pertinent part, as follows:

A city or town which accepts this section…may appropriate money for the removal of snow and ice from such private ways within its limits and open to the public use as may be designated by the city council or selectmen….

In arguing that the private subdivision ways are “open to the public”, the Commonwealth asserts as follows:

In determining whether a private way is open to the public, the court should evaluate whether the benefit to the private parties is primary or secondary to the benefit to the general public…. In the instant case, the stated reasons for plowing the roads in Rexhame Terrace was for public safety so that police, fire and ambulance services would be able to travel down the roads. Emergency services would more likely benefit the private residents as the primary beneficiary of the snow plowing. (emphasis added)

In Opinion of the Justices To The Senate, 313 Mass. 779 (1943), the Supreme Judicial Court rendered an opinion as to the Constitutionality of the underlying Bill authorizing cities and towns to expend “public money for the removal of snow and ice from private ways therein open to public use.” The Court observed in relevant part, as follows:

The words “open to public use” in the pending bill…require interpretation…. The meaning of the words is not necessarily limited to “open to the public use” as of right or permanently, and may include “open to the public use” by license or permission, although such license or permission is terminable at the will of the owner of the private way in question…. But “open to public use” as applied to a private way naturally means that such way is actually susceptible of use by the public other than for purposes that are merely incidental to the use of the way by the owner thereof, and also that the way is open to the public at large for purposes of travel…in a manner similar to the ordinary use for purposes of travel in a public way of the same general nature… [Note 186]

It is a fundamental principle, conforming to constitutional requirements…and frequently declared that “money raised by taxation can be used only for public purposes and not for the advantage of private individuals”…. [Note 187] (emphasis added)

Nor are such expenditures [by the municipality] precluded by the fact that the use of the ways by the public is permissive and may be terminated at will by the owner of the way. The expenditures provided for by the pending bill are themselves of a temporary nature and are to be made concurrently with the use of the ways by the public…. [Note 188]

The fact that the owner of a way may profit by expenditures “for the removal of snow and ice” therefrom does not invalidate expenditures therefor, where the primary purpose of such removal is the benefit of the public to whose use the way is open…. (emphasis added) [Note 189]

Indeed, the benefit accruing to the owner from such “removal of snow and ice” may not be the equivalent of the benefit accruing to the public from the use of the way. But the constitutional validity of the expenditures does not depend upon a balancing of the benefits so long as the primary purpose of the expenditures is the benefit of the public. (emphasis added)

In its post-trial brief, the Town of Marshfield states as follows:

In the instant case, the stated reason for plowing roads in Rexhame Terrace was for public safety so that police, fire and ambulance services would be able to travel down the roads. Emergency services would more likely benefit the private residents as the primary beneficiary of the snow plowing. [Note 190]

In arguing that the town expenditures for the private ways at issue would primarily benefit the residents of those ways as opposed to members of the public at large, a conclusion that gains ample support from the trial record and one with which this court concurs, the town is without a constitutional basis for the expenditure of public funds in this instance. Moreover, the trial record lacks sufficient evidence that the selectmen ever designated the Rexhame Terrace Subdivision private ways for purposes of providing plowing or other such services, in the first instance.

There is ample evidence on the trial record to permit this court to conclude, and this court does so conclude, that the Town has plowed and sanded the private ways in Rexhame since at least the early 2000s; the Town has paved the ways, presumably in conjunction with the installation of sewer lines; it has carried out maintenance or repair operations from time to time as needed; [Note 191] it provides sewer and water service, as well as trash pickup to the residents of the Subdivision. This court is also satisfied, that some or all of the private ways have been used for many years by pedestrians residing beyond the Subdivision for purposes of accessing the beach or merely walking the streets. Such access has taken place notwithstanding (a) the sometime presence of police patrols which likely ended in the late 1990s and (b) “No trespassing” signs which have been covered from time to time presumably so as not to discourage snow plowing or trash pickup.There is no credible evidence of vehicular use by those residing outside the Subdivision.

Notwithstanding the foregoing, however, the defendants have presented no compelling legal theory and supporting decisional law that would permit this court to conclude that use of private ways by members of the public for a prolonged period of time coupled with snow plowing and maintenance by the town “somehow transformed a private way into a public way” [Note 192] or at least into a way permanently open for use by the public.

Moreover, it is the view of this court that the defendants’ reliance on Massachusetts Rule of Civil Procedure 8(b) is misplaced. Rule 8 (b) provides in relevant part as follows:

An allegation in any pleading that a place is a public way shall be taken as admitted unless a party specifically denies such allegation.

While the defendant, the Commonwealth of Massachusetts, may have alleged in pro forma fashion that the ways at issue are public ways, in fact, neither the Commonwealth nor the Town of Marshfield has advanced such argument herein, with the exception of Winslow Avenue, in fact, the defendants do not argue that the ways at issue are public ways at all, but rather that they are private ways open to the public. Rule 8(b) is simply without application in the current circumstances.

In their Amended Complaint, filed prior to the intervention by the town of Marshfield, the plaintiffs present four counts. They seek relief as follows:

a. On Count I, order injunctive relief, permanently enjoining the individual Defendants from trespassing upon Plaintiffs’ private ways at Rexhame Terrace and Plaintiffs’ private tidal flats at Rexhame Beach;

b. On Count II, quiet title to the real property at Rexhame Terrace by adjudging Plaintiffs the record owners in fee simple of the ways in Rexhame Terrace and the tidal flats at Rexhame Beach;

c. On Count III, remove the cloud on Plaintiffs’ title created by the reported decision in Thomas v. Marshfield by declaring Thomas v. Marshfield has no affect on Plaintiffs’ ownership interests at Rexhame Beach or in the private ways in Rexhame Terrace, and further declare that the Commonwealth has no interest at Rexhame Beach or in the private ways in Rexhame Terrace except for the rights created by the Colonial Ordinance of 1641/1647;

d. On Count IV, enter a binding declaratory judgment that the Commonwealth of Massachusetts has no rights in Plaintiffs’ land as a result of Thomas v. Marshfield, and that the individual Defendants have no rights in Plaintiffs’ land in Rexhame Terrace and Rexhame Beach;

e. [A]ward Plaintiffs their reasonable attorneys’ fees and costs of this action;

f. [G]rant such other and further relief as this Court deems just.

Prior to trial, this court lifted a stay that had been in place with regard to claims advanced by the individual Defendants. It also bifurcated the case contemplating separate trials and judgments, i.e. the first regarding claims concerning the governmental defendants; the second regarding claims concerning the individual defendants and any rights they may have at Rexhame Terrace. The decision herein results from the first trial only concerning claims or rights asserted by the governmental defendants.

As a consequence, this court finds and rules as follows with regard to the relief sought by the plaintiffs in its Amended Complaint:

a. The claims of the individual Defendants with regard to the private ways at Rexhame, will await a second trial or such other suitable arrangement to which the parties may mutually agree. The court declines, therefore, to issue the requested injunction at this time.

b. With the exception of Winslow Avenue, there appears to be no dispute as to the ownership per se of the other ways at Rexhame Terrace and that such ownership is vested in the private abutters of Ames Avenue, Raleigh Road, Kent Avenue and Waterman Avenue. The dispute concerned rights of the public in those private ways. That issue has been adjudicated herein. As to the tidal flats, this court finds that ownership of such flats [Note 193] at Rexhame Terrace resides in the Town of Marshfield by virtue of a superior title.

c. This court is satisfied that the Briggs Thomas decisions have no affect on any of the plaintiffs’ ownership interests in Ames Avenue, Raleigh Road, Kent Avenue and Waterman Avenue. For reasons discussed supra, this court concludes that the Town of Marshfield possesses rights of ownership in and to Rexhame Beach including the tidal flats. The court concludes further that the town of Marshfield possesses ownership rights in all or a portion of the so- called beach lots abutting the seashore. The defendants have failed to adequately demonstrate the extent of the commonage at Rexhame that existed between the Briggs Thomas farm and the seashore. All or a portion of the Beach Lots more than likely served as such commonage between the Briggs Thomas farm and the seashore. Given the preclusive effect of the Briggs Thomas cases and the superior title in the town of Marshfield, this court must decline the request to eliminate any cloud attributable to the Briggs Thomas cases.

d. This court is satisfied that solely as a consequence of the Briggs Thomas decisions, which this court deems to have preclusive effect regarding the plaintiffs’ claims concerning Rexhame Beach, that said decisions do not implicate the plaintiffs’ ownership interests in their Rexhame Terrace Subdivision lots west of Circuit Avenue East or their interests in Ames Avenue, Raleigh Road, Kent Avenue, and Waterman Avenue. The existence of any personal rights that the individual defendants may possess in the ways or otherwise, must await a second, albeit limited trial.

e. This court declines to award attorneys’ fees and costs to the Plaintiffs. [Note 194]

Judgment to issue accordingly,