HUGH C. TAYLOR, JEANNE S. TAYLOR, and BRIAN M. HURLEY, Trustees of the Taylor Realty Trust vs. THE MARTHA'S VINEYARD LAND BANK COMMISSION.

This action involves a dispute between adjacent property owners in Aquinnah, Massachusetts, on Martha’s Vineyard, as to whether Defendant The Martha’s Vineyard Land Bank Commission (“Defendant”) has a right to use and open to the public several rights of way (viz., the rights of way defined, infra, as the Disputed Way and the Twenty-Foot Way) for purposes of creating a public walking trail. The proposed trail would follow several historical easements running to the benefit of Defendant’s properties, as well as other properties in the vicinity of Defendant’s land. [Note 1] Plaintiffs Hugh C. Taylor (“Hugh”), Jeanne S. Taylor (together with Hugh, the “Taylors”), and Brian M. Hurley, Trustees of the Taylor Realty Trust (the “1998 Taylor Trust”) (altogether, “Plaintiffs”) are concerned that the proposed trail would overload and/or overburden the easements in question, in particular, as said easements affect their own property (the “Inn Property”).

Plaintiffs commenced this action by filing an unverified complaint on June 9, 2010, by which Plaintiffs sought, pursuant to G. L. c. 231A, § 1, a declaratory judgment that Defendant does not have a right to use or make available to the public the Disputed Way. [Note 2] Defendant filed an answer to the complaint on August 6, 2010, and filed an amended answer (responding to Paragraph 10 of the complaint) on August 31, 2010. A case management conference was held on September 16, 2010. On March 28, 2011, Plaintiffs filed a Motion for Summary Judgment. Defendant filed its opposition to Plaintiffs’ motion on May 13, 2011. On June 15, 2011, Plaintiffs filed their reply brief on the motion. On July 19, 2011, Defendant filed a response to Plaintiffs’ reply brief. A hearing on the motion was held on August 8, 2011. By Decision dated October 26, 2012 (“Land Court Decision 1”), this court ruled on Plaintiffs’ Motion for Summary Judgment, finding, inter alia, as follows:

(a) that there was no basis in historical usage for an easement over the Disputed Way in favor of Diem Lot 5 (defined, infra);

(b) that the Vanderhoop Easement (defined, infra) did not allow travel to Diem Lot 5;

(c) that Defendant’s use of the Disputed Way for the benefit of Diem Lot 5 would overload any easement Defendant had to use the Disputed Way for the benefit of Ginnochio Lot 1 (defined, infra), the Vanderhoop Parcel(defined, infra), and/or Ginnochio Lot 2 (defined, infra); [Note 3]

(d) that the language of the Diem Deed (defined, infra) did not limit an alternative easement over the Twenty-Foot Way (defined, infra) to Diem (defined, infra) personally;

(e) that the conditional “right to travel over and install utilities under the ‘Way (40.00 Wide)’ [i.e., the Disputed Way] and the ‘Way (20.00 Wide)’ [i.e., the Twenty-Foot Way] shown on Land Court Plan No. 35915A and No. 35915B” pursuant to Paragraph 6 (defined, infra) of the Diem Deed (defined, infra, as the Conditional Right) included a right to travel over and install utilities under the Disputed Way from Lighthouse Road (defined, infra) up to the point of its [the Disputed Way’s] intersection with the Twenty-Foot Way;

(f) that the Conditional Right did not include a right to travel over and install utilities under the Disputed Way where it continues northwesterly beyond its intersection with the Twenty-Foot Way;

(g) that the Hubert Email (defined, infra) satisfied Condition 1 (defined, infra);

(h) that, at least up to the point of filing the NOI (defined, infra), Defendant had used its reasonable best efforts to construct a means of access from Lighthouse Road, within the meaning of Paragraph 6; and,

(i) that this court was unable to determine, on the basis of the summary judgment record, whether or not Condition 2 (defined, infra) had been satisfied, since the summary judgment record contained no evidence as to what action (if any) was taken by the Aquinnah Conservation Commission (the “ConCom”) in response to the NOI.

On August 12, 2013, the parties submitted their pre-trial memorandum, in which they framed the two issues for disposition at trial as follows:

(a) Whether “the existing public access set forth in the Land Bank Management Plan constitute[s] an overburdening of the easement [Note 4]”; and,

(b) Whether “the Land Bank used reasonable efforts to obtain approval of an alternative access to Diem Lot 5 such that it may [ ] use the conditional easement over the Taylor property”. [Note 5]

A pre-trial conference was held on September 23, 2013. A site view of the subject properties was held on May 19, 2014, and the trial was held on May 20, 2014 at the Edgartown District Court. Testimony at trial for Plaintiffs was given by Hugh. Testimony at trial for Defendant was given by James Lengyal (Defendant’s Executive Director) (“Lengyal”) and Matthew Dix (an employee of Defendant) (“Dix”). Sixty-seven exhibits were submitted into evidence. The parties filed post-trial briefs on August 15, 2014, and, at that time, this matter was taken under advisement.

Based on the sworn pleadings, the evidence in the summary judgment record and submitted at trial, the reasonable inferences drawn therefrom, and the findings previously made in Land Court Decision 1, I hereby make the following findings of material fact. [Note 6]

The Martha’s Vineyard Land Bank and its Activities

1. The Martha’s Vineyard Land Bank (the “Land Bank”) was established in 1985 by a special act of the Legislature (Chapter 736 of the Acts of 1985) for the purpose of acquiring land for environmental protection, conservation, and managed public use. See Act Establishing the Dukes Cnty. Land Bank, 1985 Mass. Acts 1133 (as amended) (the “Land Bank Act”) at §§ 2,4-5. The activities of the Land Bank are overseen and administered by Defendant. See id. at § 3. In order to advance the Land Bank’s goals, Defendant prepares management plans for Land Bank projects, which require approval on the local level from the Gay Head Town Advisory Board (the “Board”). See id. at §§ 3, 1. Land Bank management plans are subject to public hearings before a plan receives approval. See id. at § 3. Such management plans must then receive the approval of the Secretary of the Executive Office of Energy and Environmental Affairs (“EOEEA”) before implementation of the management plan may begin. See id.

2. One of the projects owned and managed by Defendant is the Aquinnah Headlands Preserve (the “Preserve”), a nature preserve atop the Gay Head Cliffs -- a designated landmark by the National Park Service since 1965 -- on the far western point of Martha’s Vineyard. The Preserve consists of two areas: the South Head (which is located to the south of the properties at issue in this case, and is not at issue here) and the North Head (the “North Head”). The North Head is located to the north and west of the Inn Property, and it contains a trail system running through the Vanderhoop Parcel, Ginnochio Lot 1, and Ginnochio Lot 2 (all defined, infra), which connects to Lighthouse Road south of the Inn and continues southward to a public parking lot and the South Head.

3. The North Head is open to public pedestrian access annually from September 15 through June 15, and is closed to the public annually from June 16 to September 14 -- the majority of the high season on Martha’s Vineyard. [Note 7]

4. On March 1, 2010, Defendant approved a Management Plan(the “Management Plan”) prepared by its employees [Note 8] for Defendant’s operation of the North Head, which was approved by the Board on February 25, 2010. Lengyel testified that EOEEA approved the Management Plan in May of 2010. Having received the necessary approvals, Defendant opened the North Head to the public for the first time in March of 2011.

5. Pursuant to Section 3 of the Land Bank Act, Defendant is required to appear before the Board annually and to deliver to the Board annual reports with respect to all of its projects (including the North Head). In the Spring of 2012, as a condition of its renewed approval of the Management Plan, the Board required Defendant to prohibit dogs from the North Head and to monitor public usage of the North Head. In accordance with these conditions (and per the request of the Taylors’ daughter), Defendant installed “no dogs” signs around the North Head property and in the off-premises public parking areas located to the south of the subject properties (but not on the Inn Property or on the Disputed Way), and edited its website to reflect this change. In addition, Defendant purchased and installed an infrared trail counter (the “Counter”) [Note 9] to monitor the number of people who use the North Head hiking trails. [Note 10]

The Inn Property

6. The Inn Property is located at 81 Lighthouse Road (also known as “Lobsterville Road”) in Aquinnah, Massachusetts (also known as “Gay Head”), near the far southwestern corner of Martha’s Vineyard.

7. In 1968, Hugh’s parents, Isaac M. Taylor (“Isaac”) and Gertrude W. Taylor (“Gertrude”), registered a parcel of land (the “Taylor Parcel”) that included what is today the Inn Property. The Taylor Parcel is depicted on a plan of land (“Plan 35915A”) dated October 10, 1968 entitled “Plan of Land in Gay Head", which was registered as Land Court Plan 35915A on December 9, 1968 and was filed in the Dukes County Registry of Deeds (the “Registry”) on August 10, 1971. Plan 35915A depicts the Taylor Parcel as comprising three lots labeled as lots “1” (“Taylor Lot 1"), “2” (“Taylor Lot 2"), and “3” (“Taylor Lot 3"), with Taylor Lots 1 and 2 located adjacent to each other to the north of Lighthouse Road, and Taylor Lot 3 located across from Taylor Lot 1 on the south side of Lighthouse Road. On August 11, 1971, Isaac and Gertrude filed in the Registry at Registration Book 18, Page 209 their Original Certificate of Title No. 3391 dated August 9, 1971 (the “1971 Taylor Certificate”) for the Taylor Parcel. [Note 11]

8. The 1971 Taylor Certificate states that “[s]o much of the land hereby registered as is included within the areas marked ‘Way - 20.00 feet wide’ [the “Twenty-Foot Way”], and ‘Way - 40.00 feet wide’ [the “Disputed Way”], approximately shown on the [1968 Plan], is subject to the rights of all persons lawfully entitled thereto in and over the same.” The 1971 Taylor Certificate does not identify who (if anyone) held such rights, specify the scope of said rights, or identify the original grant of said rights.

9. In or around 1971, Hugh, on behalf of Isaac and Gertrude, caused a residence to be built near the southwest corner of Taylor Lot 1 (on what is now the Inn Property). Plaintiffs have resided in this residence, at least part of the year, since it was built.

10. In 1974, Isaac and Gertrude registered the Inn Property, which represents the southwesternmost area of Taylor Lot 1, and is depicted as lot “4" on a plan of land (“Plan 35915B”) dated May 30, 1974 entitled “Subdivision Plan of Land in Gay Head”, which was registered as Land Court Plan 35915B on July 15, 1974 and was filed in the Registry on February 10, 1975. Pursuant to Transfer Certificate of Title 3806 dated July 19, 1974 and filed in the Registry at Registration Book 20, Page 256 (the “1974 Taylor Certificate”), Isaac and Gertrude conveyed the Inn Property to the Taylors. [Note 12] The Inn Property represents a portion of the Taylor Parcel at the southwesterly corner thereof. Although not depicted on Plan 35915A, the Inn Property represents the southwestern corner of lot “1” on said plan.

11. In 1988, the Taylors completed a permit process to modify the use of the house on the Inn Property so that they could open and operate the house as a hotel. Today, the house on the Inn Property is operated by the Taylors as a hotel called The Outermost Inn (the “Inn”), which has been continuously in operation since March of 1989. The Inn contains seven guest rooms and a restaurant, and is open seasonally from mid-May until Columbus Day weekend. There is no signage at the Inn indicating that it is an inn, that the Inn Property is private property, and/or that the Inn and the surrounding land on the Inn Property are intended for guest use only. [Note 13] The Taylors reside on the Inn Property seasonally from late April until mid-November, but have not resided on the Inn Property during the winter months since 1993.

12. Bydeed dated October 30, 1998 and recorded in the Registryas Document No. 43034 at Book 189, Page 102, the Taylors conveyed the Inn Property to the 1998 Taylor Trust, of which Plaintiffs are both trustees and beneficiaries. [Note 14] Pursuant to Transfer Certificate of Title No. 10310 dated November 18, 1998 and filed in the Registry at Registration Book 54, Page 327, Plaintiffs, as trustees of the 1998 Taylor Trust, were certified as the fee simple owners of the Inn Property.

13. The Inn Property abuts the North Head to the south and east, and is subject to several easements and ways of relevance to this case.

The Land Bank Properties

14. Defendant’s property at issue herein is comprised of three lots located to the north and west of the Inn Property, which lots came to be held by Defendant under several separate chains of title.

A. Ginnochio Lot 2

15. On November 30, 1950 and July 20, 1951, Frances A. Ginnochio (“Ginnochio”) registered three non-adjacent parcels of land (together, the “Ginnochio Lots”) that are depicted on a plan of land (“Plan 19215A”) dated September 18, 1950 and July 14, 1951 entitled “Plan of Land in Gay Head”, which was registered as Land Court Plan 19215A. [Note 15] The Ginnochio Lots are labeled on Plan 19215A as lots “1” (“Ginnochio Lot 1”), “2” (“Ginnochio Lot 2”), and “3” (“Ginnochio Lot 3”), and are described in Original Certificate of Title No. 19215 dated November 20, 1953 (the “Ginnochio Certificate”). [Note 16]

16. The Ginnochio Certificate states that the Ginnochio Lots were benefitted by and subject to several easements. First, “[s]o much of [Ginnochio Lot 3] as is included within the limits of the [Twenty-Foot Way] is subject to the rights of all persons lawfully entitled thereto in and over the same.” Conversely, “[t]here is appurtenant to [Ginnochio Lot 3] the right to use the [Twenty-Foot Way] in common with all other persons lawfully entitled thereto.” Next, “[s]o much of [Ginnochio Lots 1 and 2] as is included within the limits of the [Disputed Way] is subject to the rights of all persons lawfully entitled thereto in and over the same . . . .” Conversely, “[t]here is appurtenant to [Ginnochio Lots 1 and 2] the right to use the [Disputed Way] in common with all other persons lawfully entitled thereto.” Finally:

[t]here is reserved in the Inhabitants of the Town of Gay Head as to [Ginnochio Lots 1 and 2] the right to take and remove clay and fossils from the Bank, as it may exist from time to time, for the purposes for which it is now being used, and said lots [ ] are subject to access by said Inhabitants of the Town of Gay Head on foot to and from the Banks for said purposes.

The Ginnochio Certificate does not specifically subject any of the Ginnochio Lots to any rights in favor of the Taylor Parcel or the Walker Parcel (defined, infra).

17. In connection with Ginnochio’s registration of the Ginnochio Parcel, Ginnochio entered into three stipulations (which are referenced in the Ginnochio Certificate and were filed with the Land Court as part of Ginnochio’s registration case on June 25, 1947) with several owners of surrounding properties for the purpose of preserving access to and from the Ginnochio Parcel lots, the Vanderhoop Parcel, a former United States Coast Guard Station (the “USCG Station”), and severalother unrelated properties. These stipulations are discussed, in the Ginnochio Certificate, with reference to the “way forty (40) feet wide, approximately shown on [Plan 19215A] . . . .”

18. The first stipulation (between Ginnochio and Pauline A. Vanderhoop et al.) (the “Vanderhoop Stipulation”) states that “any degree registering the title in [Ginnochio Lot 1] shall subject the fee therein to a right of way over the so-called Coast Guard Station Road as laid out on said plan to [the Vanderhoop Parcel] . . . .” The second stipulation (the “Ginnochio Stipulation”) was also joined by Julia Andrada, who owned the Vanderhoop Parcel from 1942 to 1962 (as well as various other lots in the area), and stated as follows:

It is . . . agreed . . . that the Petitioner [Ginnochio], her heirs or assigns, shall have a right of way over the way shown on the Petitioner’s plan crossing Lots 223 and 48 [Note 17], said way beginning at the Massachusetts State Highway and branching off to the Coast Guard Station and to . . . Parcel D [Ginnochio Lot 3]. [Note 18]

A third stipulation (the “USCG Stipulation”) [Note 19] between Ginnochio and the United States of America, benefitted a small lot (the “USCG Lot”) depicted on Plan 19215A as a small enclave carved out of the western part of Ginnochio Lot 2, where the former USCG Station was located. [Note 20] The USCG Stipulation granted:

a perpetual easement in a strip of land twenty (20) feet each side of the center line of existing ways as identified by dotted lines on [the Swift Plan], with full right of egress and ingress over said lands by those in the employ of the United States, on foot or with vehicles of any kind, with boats or any articles used for the purpose of carrying out the intentions of Congress provided for the establishment of life- saving stations; and the right to pass over said lands in any manner in the prosecution of said purpose.

19. As shown on Plan 19215A, Ginnochio Lot 1 abuts the southerly side of the Vanderhoop Parcel, and Ginnochio Lot 2 abuts the northerly side of the Vanderhoop Parcel. As shown on Plan 19215A, Ginnochio Lot 3 is located to the east of Ginnochio Lot 2, on the other side of the Walker Parcel (defined, infra).

20. As shown on Sheet 1 of Plan 19215A, the Disputed Way runs from the State Highway into the Taylor Parcel, turns to the east, crosses property of Charles W. Vanderhoop, Ginnochio Lot 1, the Vanderhoop Parcel (defined, infra), and extends across Ginnochio Lot 2 to the USCG Station. [Note 21] Sheets 1 and 2 of Plan 19215A show the Twenty-Foot Way running along the same path as the Disputed Way to the point where the latter turns eastward, and from there running across the Walker Parcel to Ginnochio Lot 3.

21. Defendant acquired title to Ginnochio Lot 2 by four deeds (together, the “Ginnochio Deeds”) [Note 22], three of which were from Mary H. Preston, Arnold Zack, and Janet Shands, which were dated December 31, 1992 and were recorded in the Registry at Book 44, Page 103 (Document Nos. 31974, 31975, and 31978, respectively). The fourth such deed to Defendant was from Joan Wallen, dated April 9, 1993, and was recorded with the Registry at Book 45, Page 289 (Document No. 32434). As shown on Plan 19215A, Ginnochio Lot 2 abuts the northerly side of the Vanderhoop Parcel. Evidence as to the ownership of Ginnochio Lot 2 from 1953 to 1992 is not in the record.

22. The Ginnochio Certificate states: “There is appurtenant to [Ginnochio] [L]ot 2 . . . the right to use the way forty (40) feet wide, approximately shown on [Plan 19215A], in common with all other persons lawfully entitled thereto.” 23. Defendant does not own Ginnochio Lot 1 [Note 23] or Ginnochio Lot 3. [Note 24] [Note 25]

B. The Vanderhoop Parcel

24. By deed dated December 30, 1976 and recorded in the Registry at Book 341, Page 314, [Note 26] John O., Pauline, and Leonard F. Vanderhoop conveyed to David E. and Evelyn Vanderhoop (together, the “Vanderhoops”) the lot depicted on Plan 19215A as separating Ginnochio Lots 1 and 2 and labeled “Pauline Vanderhoop” (the “Vanderhoop Parcel”). The Vanderhoop Parcel is partially depicted on Plan 35915A, with the label “Edwin D. Vanderhoop”. [Note 27]

25. By deed dated April 28, 1994 (the “Vanderhoop Deed”), and recorded in the Registry at Book 632, Page 752, the Vanderhoops conveyed the Vanderhoop Parcel to Defendant.

26. As discussed, supra, pursuant to the Vanderhoop Stipulation, the Vanderhoop Parcel acquired an appurtenant right to use the Disputed Way for access to Lighthouse Road, and, pursuant to the Ginnochio Stipulation, was burdened by appurtenant rights in favor of Ginnochio Lots 1 and 2 to use the Disputed Way for the same purpose.

C. Diem Lot 5

27. Defendant’s third property represents the land shown in Plan 19215A as separating Ginnochio Lots 2 and 3, which historically formed part of a larger tract of land that was subdivided over the course of many years until it came to be owned by Defendant in 1992.

i. The Walker Parcel

28. Pursuant to Transfer Certificate of Title 2580, dated May 25, 1964 (the “Walker Certificate”), Isaac and Gertrude received title to a registered parcel of land adjacent to the Taylor Parcel (the “Walker Parcel”). [Note 28] The Walker Parcel no longer exists as it did at that time, having subsequently been subdivided into several sub-lots, as discussed, infra.

29. The Walker Parcel is depicted on a plan of land (“Plan 31560A”) dated February 9, 1962 entitled “Plan of Land in Gay Head”, which was registered as Land Court Plan 31560A on July 3, 1962. As depicted on Plan 31560A, the Walker Parcel was composed of two sub-lots, which were labeled as lots “1” (“Walker Lot 1”) and “2” (“Walker Lot 2”), located across from each other on opposite sides of Lighthouse Road. [Note 29] Walker Lot 2 was located entirely on the south side of Lighthouse Road, and is not at issue in this case.

30. The Walker Parcel separates Ginnochio Lot 2 from Ginnochio Lot 3, as shown on Sheet 2 of Plan 31560A, with Ginnochio Lot 2 abutting on the west and Ginnochio Lot 3 abutting on the east. [Note 30] Plan 31560A also shows the land representing what would become the Taylor Parcel to the southwest (two then-separately-owned portions of which are labeled “Julio M. Andrada” and “Wesley M. Martin”), and the Hubert Property (defined, infra), labeled “James H. Hubert”.

31. Sheet 1 of Plan 31560A shows a portion of the Twenty-Foot Way, labeled “WAY (20' wide)” running southwesterly from Ginnochio Lot 3 to the Taylor Parcel across Walker Lot 1. Sheet 1 of Plan 31560A also depicts another way (the “Dirt Road”), which is labeled “WAY”, and is shown as starting within the area of the Twenty-Foot Way and running southeasterly across Walker Lot 1 to the Hubert Property. [Note 31]

32. The Walker Certificate states that “[s]o much of [Walker Lot 1] as is included within the Ways approximately shown on [Plan 31560A] is subject to the rights of all persons lawfully entitled thereto in and over the same.”

33. In 1985, Isaac and Gertrude granted two easements (recorded in the Registry Registration Book as Documents Nos. 19032 and 19033 on Certificate of Title No. 2580) (together, the “Eastern Passage Easements”) to Ann Vivian Dintenfass and Andrew S. Dintenfass (who owned property to the east of Ginnochio Lot 3) and to the Levitases to provide utilities and vehicular access across the Walker Parcel via a new right of way (the “Eastern Passage”), which runs from the southwest corner of Ginnochio Lot 3 to a point where it connects with the Dirt Road (defined, infra), where it turns and runs along the same path as the Dirt Road up to the point where the Dirt Road exits into the Hubert Property (defined, infra), where it turns and runs along the boundary of the Walker Parcel to Lighthouse Road. The Eastern Passage was first depicted in 1987 on Land Court Plan 31560C, discussed, infra. In connection with granting the Eastern Passage, the Levitases released their right to use the Twenty-Foot Way for the benefit of Ginnochio Lot 3. In addition, pursuant to the documents creating the Eastern Passage, Isaac and Gertrude reserved for themselves, as grantors, the right to use the Eastern Passage for the benefit of the entire Walker Parcel.

34. By deed dated November 7, 1986 (the “1986 Taylor Trust Deed”) and recorded in the Registry as Document 21505, Isaac (in connection with his divorce from Gertrude) conveyed his interest in the Walker Parcel to Thomas B. Bracken, as Trustee of the Isaac M. Taylor Revocable Trust (the “1986 Taylor Trust”), which was established by Deed of Trust dated November 7, 1986 and registered in the Registry as Document No. 21500. The 1986 Taylor Trust Deed contains the same language as the Walker Certificate preserving the easements on Walker Lot 1 that are depicted on Plan 31560A. The 1986 Taylor Trust Deed does not reference the Eastern Passage.

35. On December 11, 1986, Gertrude and the 1986 Taylor Trust registered a subdivided portion of Walker Lot 1 depicted as lot “3” (“Walker Lot 3”) on a plan of land (“Plan 31560B”) dated February 22, 1983 entitled “Subdivision Plan of Land in Gay Head”, which was recorded as Land Court Plan 31560B. Plan 31560B depicts Walker Lot 3 as an irregularly-shaped parcel located between the Walker Parcel’s boundary with the Taylor Parcel to the west and the Twenty-Foot Way to the east, with a new boundary line dividing Walker Lot 3 from the remainder of the Walker Parcel to the north, which line runs from the northernmost point of the Taylor Parcel to a point of the Twenty-Foot Way near where it intersects with the Dirt Road. [Note 32]

ii. The Diem Lots

36. By deed dated December 15, 1986 and recorded in the Registry as Document No. 21538 (Certificate of Title No. 7167) at Book 37, Page 205 (the “Diem Deed”), the 1986 Taylor Trust and Gertrude conveyed the portion of Walker Lot 1 that remained after Walker Lot 3 was created (the “Diem Parcel”) to Peter Diem (“Diem”). [Note 33]

37. Paragraph 6 of the Diem Deed (“Paragraph 6”) provides as follows:

Grantee [Diem], his heirs, successors and assigns, shall make use of the existing dirt road [i.e., the Dirt Road] . . . currently used by Grantor [Gertrude] and her family as access from [Lighthouse] Road over [the Hubert Property] to the [Diem Parcel]. [Note 34] In the event [“Condition 1"] that any person asserts adverse rights to said dirt road, or in any manner otherwise formally calls into question by written notice or physical action [Diem]’s right to make use of [the Dirt Road], or in the event that said [Dirt Road] in its then condition is deemed inadequate to support a subdivision of the [Diem Parcel] into not fewer than four (4) lots by the Planning Board . . . and any other board of the Town of Gay Head, the Commonwealth of Massachusetts and any other sovereignty having jurisdiction over the subdivision of such land, [Diem], his heirs, successors and assigns, first shall be obligated [“Condition 2"] to use his reasonable best efforts to construct a means of access to the [Diem Parcel] with an entrance from the portion of the Premises fronting on [Lighthouse] Road. In the event that [Diem] shall be unsuccessful in obtaining permission to construct such a means of access, which shall include obtaining approval from and otherwise complying with all laws, rules and regulations of all boards of the Town of Gay Head, the Commonwealth of Massachusetts and any other sovereignty having jurisdiction, [Diem] shall have the right [the “Conditional Right”] to travel over and install utilities under the [Disputed Way] and the [Twenty-Foot Way] shown on [Plan 35915A] and [Plan 35915B]. [The Taylors], son and daughter-in-law of [Gertrude], and owners of a portion of the land [i.e., the Inn Property] over which such ways cross, join in this deed and become parties hereto only to confirm their obligation to be bound by the terms of the provisions of this paragraph. In no event hereunder shall [Diem] be obligated to commence or defend a lawsuit before exercising his alternative rights under this paragraph. In the event that any person asserts such adverse rights, [Gertrude], her heirs or successors, may, at their option, take such measures as they deem appropriate to clarify the right of [Diem] to use the [Dirt Road] for access to the [Diem Parcel]. If the person asserting such rights formally withdraws such assertions or a final judgment is entered by a court having jurisdiction over the [Diem Parcel] establishing the rights of [Diem] to use the [Dirt Road], [Diem] shall thereafter not use the aforedescribed [Disputed Way] and the [Twenty-Foot Way].

38. The Diem Deed also preserved a right to use the Twenty-Foot Way(described therein as a “walking easement”) as a footpath for the benefit of the Inn Property and Taylor Lot 2 for so long as those properties are owned by members of the Taylor Family. The Diem Deed does not reference the Eastern Passage in any way. [Note 35]

39. On November 16, 1988, Diem subdivided the Diem Parcel into four sublots, which are depicted on a plan of land (the “Plan 31560D”) dated October 7, 1987, which was registered as Land Court Plan 31560D. From north to south, Plan 31560D shows four lots, labeled as lots “5” (“Diem Lot 5”), “6” (“Diem Lot 6”), “7” (“Diem Lot 7”), and “8” (“Diem Lot 8”). [Note 36] Plan 31560D shows the Eastern Passage as running along the southern boundary of Diem Lot 7, where it turns and runs to Lighthouse Road near the eastern edge of Diem Lot 8.

40. By deed dated December 14, 1989 and recorded in the Registry at Book 41, Page 189 (the “GHBRT Deed”), Diem conveyed Diem Lot 5 to J. B. Nayduch (“Nayduch”), Trustee of Gay Head Bluffs Realty Trust (the “Gay Head Realty Trust”). The GHBRT Deed provides that “[g]rantee shall have the perpetual right and easement . . . to cross and recross by foot and by vehicles over the ways and easements on [Diem Lots 6, 7, and 8] as shown on [Plan 31560D].” The easements depicted on Plan 31560D include the Twenty-Foot Way, the Eastern Passage, and the Dirt Road. [Note 37]

41. In or around 1990, Diem defaulted upon the Diem Mortgage. As a result, Gertrude and the 1987 Taylor Trust commenced a foreclosure action entitled Coolidge v. Diem (Dukes Cnty. Sup. Ct., Case No. 90-0005). Orders approving the foreclosure upon the Diem Mortgage and approving the entry upon and sale of Diem Lots 6-8 issued on July 2, 1990. By foreclosure deed dated June 13, 1990 and recorded in the Registry at Book 64, Page 207D (Document No. 27504), Gertrude and the 1987 Taylor Trust acquired title to Diem Lots 6-8. [Note 38]

42. By deed (the “Lot 5 Deed”) dated October 22, 1992 and recorded in the Registry at Book 45, Page 55, the Gay Head Realty Trust conveyed Diem Lot 5 to Defendant. The Lot 5 Deed and Defendant’s Transfer Certificate of Title No. 8584 (recorded as Document No. 31524 in the Registry at Book 45, Page 55) contain the same language found in the GHBRT Deed, as follows: Grantee shall have the perpetual right and easement appurtenant to said lot 5 to cross and recross by foot and by vehicles over the ways and easements on Lots 6, 7 and 8 as shown on Land Court Plan No. 31560-D. Said easement shall be for the benefit of the Grantee, his successors and assigns and shall run with said Lot 5.

None of these documents references the Eastern Passage in any way.

43. Defendant does not own Diem Lot 6 [Note 39], Diem Lot 7 [Note 40], or Diem Lot 8 [Note 41], and the owners of these lots were not parties to this case.

Relevant Easements

A. The Disputed Way

44. The Disputed Way is a forty-foot wide right-of-way shown on Plan 19215A, Plan 35915A, and Plan 35915B. As shown on Plan 19215A, the Disputed Way extends as far south as State Road, running across property south of the Inn Property. [Note 42] Plans 35915A and 35915B do not depict any portion of the Disputed Way south of Lighthouse Road, but rather show it as originating at Lighthouse Road, crossing the Inn Property, and running onto Ginnochio Lot 1 (and another parcel labeled “Georgianna Broacher”). [Note 43] From that point, Plan 19215A shows the Disputed Way running northwesterly across Ginnochio Lot 1 and the Vanderhoop Parcel, and onto Ginnochio Lot 2, where it turns to the east and back to the west, and then runs to its point of termination at the USCG Lot. [Note 44]

45. On October 4, 1988, the Taylors commenced an action in the Land Court (Taylor v. Vanderhoop, Case No. 88 MISC 129925) seeking a declaratory judgment that the owners of the Vanderhoop Parcel had no right to use the Disputed Way to cross the Inn Property. The Land Court ruled against the Taylors, finding that the owners of the Vanderhoop Parcel “possess[ed] rights to pass and repass over the entire length of the [Disputed] Way for purposes of accessing their land,” holding that the Vanderhoops had an easement by implication (the “Vanderhoop Easement”):

to enter upon and to pass and repass without obstruction, by foot or by vehicle, over and along the entire length of the forty (40) foot wide Way, such easement encompassing each and every right necessary or incidental to . . . enjoyment thereof, and that . . . their heirs and assigns are members of the class so entitled to use the Way.

Taylor v. Vanderhoop, 88 MISC 129925, available at 1989 WL 1183091 at *6 (Mass. Land Ct. July 19, 1989) (Cauchon, J.) (the “1989 Decision”).

46. The Disputed Way appears to have been created in the 1890s, in connection with the 1895 construction of the former USCG Station. Multiple plans and deeds in the record refer to the Disputed Way with reference to the USCG Station. The Management Plan describes the Disputed Way as the “Life-saving station road built in [the] 1890s”.

B. The Twenty-Foot Way

47. As shown on Plan 19215A and the Swift Plan (and as confirmed by the stipulations associated with the Ginnochio Certificate), the Twenty-Foot Way coincides with the Disputed Way from the latter’s point of origin on State Road to the point (located on the Inn Property) where the Disputed Wayturns westward and runs up to the USCG Station. At that point, the Twenty-Foot Way branches off of the Disputed Way (as seen in the 1951, 1968 and 1974 Plans), and runs northeasterly across the Inn Property, Taylor Lot 1, and Walker Lot 1 to the northeastern corner of Ginnochio Lot 3, where it apparently terminates (as seen in Plan 31560A). Plan 31560D shows the Twenty-Foot Way crossing Diem Lot 8 (the Olgilvie Property), running along the western edge of Diem Lot 7, and continuing onto Ginnochio Lot 3. [Note 45]

48. The Twenty-Foot Way does not itself connect to Diem Lot 5, but connects thereto via the Diem Parcel Subdivision Easement. [Note 46]

C. The Dirt Road and the Eastern Passage

49. As shown on the Diem Subdivision Plan and Plan 31560A, the Dirt Road diverges from the Twenty-Foot Way at the northerly end of the Olgilvie Property near the point where Diem Lots 3, 6, 7, and 8 converge. From the Twenty-Foot Way, the Dirt Road runs southeasterly along the easterly side of the Olgilvie Property along the same path as taken by the Eastern Passage. At or about the point where the Dirt Road turns and runs onto the northwesterly corner of land to the east labeled “N/F James H. Hube[rt]” (the “Hubert Property”) [Note 47], the Eastern Passage continues running southwesterlyalong the southeasterlyboundaryof the Olgilvie Propertyto Lighthouse Road. No plan in the record shows the course of the Dirt Road after it passes onto the Hubert Property. [Note 48] The Dirt Road is today known as Pilots Landing Road.

Defendant’s Proposed Access Plan

50. As proposed in the Management Plan, Defendant intended to develop a walking trail on its North Head Properties. The trail would be accessed via the Disputed Way, and would extend north to a loop system on Ginnochio Lot 2 and Diem Lot 5. An additional branch off this loop would extend to the location of the former camp site on Diem Lot 5 (which is today a lookout point), and from there connect to Pilots Landing Road (i.e., the Dirt Road).

51. As discussed, supra, this court determined in Land Court Decision 1 (a) that Defendant does not have the right to allow the public to use the Disputed Way for the benefit of Diem Lot 5, since that easement was not appurtenant to Diem Lot 5, and (b) that Defendant’s use of the Vanderhoop Easement to access Diem Lot 5 would constitute an overloading of the easement.

52. At or around the time that the Management Plan for the North Head project was approved, Defendant received an emaildated February 17, 2010 (the “Hubert Email”) from the owner of the Hubert Property, James W. Hubert (“Hubert”), which was addressed to Schaeffer, [Note 49] and stated, in relevant part, as follows:

[A]s trustee of the ‘Stone House’ property [i.e., the Hubert Property], I am not inclined to consent to allowing any portion of the property to be utilized as a ‘walking trail.’ . . . [T]here is no way for anyone to determine . . . who is a ‘visitor’ and who is a trespasser. I am not personnally [sic] capable of (nor willing to) fulfill[ing] such roll [sic]. . . . My understanding is that the Land Bank is not willing to indemnify me, my mother, and/or any putative trustee/trustor, in the event some injury or calamity befalls a person utilizing the trail. I am unaware of any ‘easement’ or right of way that creates either a privilege or necessity in favor of the Land Bank over my objections. . . . [M]y obligations as trustee require that I maintain the property on behalf of all beneficiaries. In that regard, the property is leased to a tenant. He is not interested in having random individuals disturbing his right to quiet enjoyment and as his landlord I can only say I agree. I realize your ‘public hearing’ is tomorrow. I only was advised of this yesterday. It will not be possible for me to attend. But what I have expressed in this communication captures the essence of my position. Please advise the Advisory Board accordingly.

53. Accordingly, Defendant sought alternative access rights to Diem Lot 5, pursuant to Paragraph 6 of the Diem Deed. To that end, Defendant filed a Notice of Intent (the “NOI”) dated July 15, 2011 with the ConCom, by which Defendant sought approval to construct an alternative access way to Diem Lot 5 from Lighthouse Road via the southern branch of the Eastern Passage (across the Olgilvie Property). Pursuant to the NOI, Defendant proposed to access Diem Lot 5 via the Eastern Passage from Lighthouse Road across the northeasterly-sloping southern edge of the Olgilvie Property to the point where the Eastern Passage intersects with the Dirt Road. From that point, Defendant would be able to access Diem Lot 5 via the Dirt Road, which connects to the Twenty-Foot Way and the Diem Parcel Subdivision Easement.

54. The NOI proposed to construct a twelve-foot wide roadway, a small pull-off, a culvert, and a new curb cut on Lighthouse Road. Access across the Eastern Passage would run roughly parallel to an intermittent stream along the boundary of the Hubert Property.

55. A public hearing was held on the NOI. Dix, a land foreman employed by Defendant, testified that the owners of the Olgilvie Property were in attendance at the public hearing in strong opposition to the NOI. The public hearing closed on September 13, 2011.

56. By Order of Conditions dated September 13, 2011 the ConCom unanimously denied the NOI based upon the Olgilvie Easement’s proximity to an intermittent stream and the fact that the NOI could not meet the standards of the Aquinnah Wetland Water Resource Bylaw (the “Bylaw”) and the Massachusetts Wetland Protection Act (the “WPA”). [Note 50]

Trail Signs

57. Hugh testified that visitors seeking access to the North Head trails by way of the Disputed Way are often confused as to where the North Head property begins, and that they sometimes park in the Inn’s parking lot. Hugh stated that the Taylors sometimes speak with these visitors to explain the Inn Property is not part of the North Head trail system, but that they do not ask the visitors to move their car to the public lot to the south. Hugh stated that visitors sometimes inquire about the availability of restrooms at the Inn, which the Taylors generally allow.

58. Defendant’s advertisement of the North Head is limited to Defendant’s website and to trail signs posted at the beginning of the trail heads on Defendant’s properties. Lengyel stated that Defendant prefers to limit access to the North Head to visitors who specifically and intentionally come to the North Head for the purposes of walking the trails and conducting wildlife research, and that Defendant does not wish to encourage passers-by to walk the trails.

59. Dix testified that Defendant offered to post signs on the Inn Property informing North Head visitors that the Inn, as well as its parking lot and amenities, are for private use only and not part of the North Head trail system, but that the Taylors declined this offer, as confirmed by Hugh.

********************************

This court already determined in Land Court Decision 1, inter alia, that Defendant’s use of the Disputed Way to access Diem Lot 5 would overload the right to use the Disputed Way that is appurtenant to Ginnochio Lots 1 and 2 and the Vanderhoop Parcel. Now before this court are only the two specific issues noted, supra. First, the court must determine whether Defendant can use the Twenty-Foot Way to access Diem Lot 5. Plaintiffs argue that Defendant may not do so, since Condition 2 in the Diem Deed (relative to using “reasonable best efforts” to construct another access roadway as an alternative to the Dirt Road) has not been satisfied. Defendant argues that they have, in fact, used “reasonable best efforts” by filing the NOI to lay out the Proposed Access, but that such access was disallowed by the ConCom. Second, the court must determine whether Defendant can use the Disputed Way and/or the Twenty-Foot Way for public access to any of the lots comprising the North Head. Here, Plaintiffs claimthat the rights appurtenant to the lots benefitted bythese easements were limited in scope to use by the private landowners who originally held title to those lots, and that if Defendant were to expand the use of the Disputed Way to allow public access thereto, such expanded use would amount to an overburdening. Defendant opposes this claim, and argues that the data compiled by the Counter demonstrate that the general public’s use of the North Head trails would not overburden the Disputed Way or the Twenty-Foot Way.

Diem Lot 5, the Twenty-Foot Way, and Defendant’s “Reasonable Best Efforts”

Pursuant to the Lot 5 Deed, Defendant has “the perpetual right to an easement appurtenant to said lot 5 to cross and recross by foot and by vehicles over the ways and easements on Lots 6, 7 and 8 as shown on Land Court Plan No. 31560-D.” In addition, since Diem Lot 5 is a subdivision of the Walker Parcel, the benefit of the Eastern Passage is appurtenant to Diem Lot 5 (as well as all the other Diem Parcel lots).

Despite the fact that the Diem Parcel had frontage on Lighthouse Road, pursuant to Paragraph 6 of the Diem Deed, Defendant, as successor in interest in Diem Lot 5, was required to use the Dirt Road for access to Lighthouse Road. Pursuant to Paragraph 6 of the Diem Deed, in the event that use of the Dirt Road was opposed or became unmanageable (Condition 1) [Note 51], Defendant was required to use reasonable best efforts to obtain alternative access (Condition 2) [Note 52]. Only if both conditions were satisfied would the Conditional Right to use the Twenty-Foot Way (as well as the portion of the Disputed Way as is depicted on Plan 35915A and Plan 35915B) to access Lighthouse Road arise. Plaintiffs, as signatories to the Diem Deed, consented to the Conditional Right to use the Twenty-Foot Way (which crosses the Inn Property) for purposes of accessing Diem Lot 5.

At or around the time that the Management Plan was approved, Hubert sent Defendant the Hubert Email, which objected to Defendant’s use of the Dirt Road over the Hubert Property; as a result, Defendant filed the NOI, by which it sought alternative access to Diem Lot 5 via the Eastern Passage. In Land Court Decision 1, this court found that Condition 1 was satisfied by the Hubert Email. However, the court found that it was, at that time, not possible to determine if Condition 2 had been satisfied, since the ConCom had not acted on the NOI as of the date the parties’ dispositive motions had been taken under advisement. On September 13, 2011, the ConComunanimouslydenied Defendant’s NOI over the Eastern Passage on the basis that the NOI could not conform to state and local wetland regulations due to the Eastern Passage’s proximity to an intermittent stream. Pursuant to the Bylaw, “no person may remove, fill, dredge, build upon, or alter any land lying within 200 feet of a wetland resource.” The entire scope of the Eastern Passage falls within this protected zone, so the NOI was denied.

Plaintiffs argue that Defendant’s application to the ConCom did not constitute “reasonable best efforts” in accordance with Condition 2, since, as stated by Lengyel, Defendant made such application with full knowledge of its likely denial. In response to this line of argument, Defendant notes that it had a right to cross the Olgilvie Property only in the location of the Eastern Passage, and that its proposed alternative access plan was therefore limited by such rights.

Paragraph 6 entails that Defendant may make use of the Twenty-Foot Way over the Olgilvie Property, Walker Lot 1, and the Inn Property if they are “unsuccessful in obtaining permission to construct a means of access.” Under Paragraph 6, a failure to obtain such permission includes the failure to “obtain [ ] approval from and otherwise compl[y] with all laws, rules, and regulations of all boards of the Town of [Aquinnah].” As a result, I find that Defendant’s inability to obtain approval of the NOI from the ConCom (due to the NOI’s noncompliance with the Bylaw and the WPA) satisfies the definition of an “unsuccessful attempt” under Paragraph 6, that Defendant’s application to the ConCom for approval of the NOI did constitute “reasonable best efforts” under Paragraph 6, that Defendant has satisfied Condition 2, and that the Conditional Right has arisen.

Based upon the foregoing discussion, I find that Defendant has the right to use the Twenty- Foot Way to access Diem Lot 5, and that Defendant has the right to use the portion of the Disputed Way depicted on Plan 35915A and Plan 35915B (i.e., the portion of the Disputed Way that overlaps with the Twenty-Foot Way) to access Diem Lot 5. [Note 53]

Overburdening the Disputed Way and/or the Twenty-Foot Way

“The concept of overburdening applies most frequently when an easement holder has expanded the use of its easement to the detriment of the servient landowner.” Cannata v. Berkshire Nat. Res. Council, Inc., 73 Mass. App. Ct. 789 , 797 (2009). Thus, in cases like this, where multiple parties hold rights in an easement:

holders of separate easements or profits in the same land must act reasonably to avoid unreasonably interfering with the enjoyment of other servitude holders, as well as with the servient estate. Their uses of the land are governed by equitable principles, namely, what is reasonable in the exercise of their respective privileges. This calls for a balancing of their interests as holders of an easement in common.

Id.

Mere increased use of an easement is not the proper test for overburdening; rather, use of the easement must be in excess of its original scope to support a finding of an overburdening. E.g., Wright v. Patriakeas, 04 MISC 298839, 18 LCR 453 , 457 (Mass. Land Ct. Aug. 27, 2010) (Sands, J.). The scope of the easement “is regulated ‘by the intent of the parties as manifested by the language used in the grant.’” Id. at 457 (quoting Commercial Wharf E. Condo. Ass’n v. Waterfront Parking Corp., 407 Mass. 123 , 138 (1990)). However, in the absence of specifically-prescribed limitations, “an ‘easement is not to be limited to such use as seemed likely to be made about the time of the conveyances which created it.’” Cannata, 73 Mass. App. Ct. at 795 (quoting Tehan v. Sec. Nat’l Bank of Springfield, 340 Mass. 176 , 182 (1959)). Rather,“[i]n the absence of express limitations . . . a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant.” Tehan, 340 Mass. at 182.

The record is clear that Defendant has title to Ginnochio Lot 2 and the Vanderhoop Parcel, each of which have appurtenant rights to use the Disputed Way for access. [Note 54] Specifically, pursuant to the Ginnochio Certificate, “[t]here is appurtenant to said lot 2 [i.e., Ginnochio Lot 2] the right to use the way 40 feet wide, approximately shown on said plan [Plan 19215A], in common with all other persons lawfully entitled thereto.” And, pursuant to the Vanderhoop Stipulation, “any degree registering the title in [Ginnochio Lot 1] shall subject the fee therein to a right of way over the so-called Coast Guard Station Road as laid out on said plan to [the Vanderhoop Parcel] . . . .” Further, the 1989 Decision held that appurtenant to the Vanderhoop Parcel was the right “to enter upon, to pass and repass without obstruction, by foot or by vehicle, over and along the entire length of the [Disputed Way].” It is clear, therefore, that Defendant has the right to use the Disputed Way over the Inn Property to access Ginnochio Lot 2 and the Vanderhoop Parcel.

The record is also clear that the scope of the Disputed Way includes a right of vehicular access. This is explicitly stated in the USCG Stipulation [Note 55], as well as in the 1989 Decision -- in which the court found that the Vanderhoop Parcel had an appurtenant right “to enter upon, to pass and repass without obstruction, by foot or by vehicle, over and along the entire length of the [Disputed Way].” [Note 56] This conclusion is further supported by the fact that the Disputed Way is forty feet wide -- obviously far more than would be needed to accommodate two-way vehicle traffic. Therefore, I find that all parties’ rights to use the Disputed Way for access purposes include making use of the Disputed Way for access to and from Lighthouse Road, by foot and vehicle alike.

While Defendant unquestionably enjoys said rights, the question remains whether Defendant’s use of the Disputed Way to allow public access to the North Head trails would amount to an increased use of the Disputed Way that would detrimentally affect the Inn Property, the relevant servient estate, and therefore overburdens the easement. See Cannata, 73 Mass. App. Ct. at 797. In Cannata, the Appeals Court considered whether an abutter to a residential subdivision with an appurtenant right to use several rights of way created to access the residences in said subdivision had the right to open that right of way to the public. The court found that, where the language in the easement grant did not specifically limit the use of the rights of way to residents or guests of the subdivision, that the general public’s use of the rights of way would not constitute an overburdening. See Cannata, 73 Mass. App. Ct. at 797. [Note 57]

Similarly, in Bedell, 13 LCR at 150, the court found that allowing the public to use a private beach that came to be owned by the town would not amount to an overburdening. The facts in Bedell were somewhat different (i.e., the town owned the formerly-private beach, and the plaintiffs had an easement to use the beach), but the holding is relevant here, as it was found that, so long as the public’s use of the beach did not unreasonably interfere with the easement holders’ right to use the beach (something that was regulated by specific conditions mandated by the court as a condition of public use), the town could open the beach to the public. See id.

Plaintiffs cite Hewitt v. Perry, 309 Mass. 100 (1941) and Broude v. Mass. Bay Lines, Inc., 13 LCR 332 (Mass. Land Ct. 2005) in support of their contention that permitting public use of the Disputed Way would necessarily amount to an overburdening. These cases, however, are distinguishable, as they turned not on whether a way could be opened to members of the public, but rather on whether such use could be made for commercial purposes. Here, by contrast, there is no proposed commercial use; rather, Defendant only intends to use the North Head for non-profit conservation and recreation purposes -- and specifically intends to limit public exposure to the existence of the North Head to discourage widespread use. Compare Bedell, 13 LCR at 150 (allowing public non-commercial use); Cannata, 73 Mass. App. Ct. at 797 (same); with Hewitt, 309 Mass. at 100 (disallowing public commercial use); Broude, 13 LCR at 332 (same).

In sum, at issue is not simply increased use (even by the public), but whether such use comports to the scope of the easement and the intention of the grantor thereof. Where, as here, there is no stated specific limitation to the use of the easements at issue, it becomes necessary to balance the equities. A number of factors suggest that the limited use of the Disputed Way by the public proposed by Defendant would not be unreasonable. First, the Disputed Way is forty-feet wide, allowing both vehicular and pedestrian use, and it is nonexclusive to Plaintiffs (i.e., a number of parties have a right or potential right to use the Disputed Way); indeed, the deeds in Plaintiffs’ chain of title specifically note that the Inn Property is subject to the rights of “all other persons lawfully entitled” to use the Disputed Way -- which includes (or at one time included), at minimum, the owners of the Ginnochio Lots, the Vanderhoop Parcel, and the USCG Lot. Second, Defendant now owns two lots, which formerly had separate owners, all of whom would have had a right to use the Disputed Way, and which, Hugh testified, were, in the past, to be developed into residential uses. According to the reasoning of Cannata, such use would arguably extend not only to residents and guests, but also to any person with business to be there. [Note 58] Third, the historical usage of the Disputed Way was to access the USCG Station, which permitted access by any/all Coast Guard personnel. Fourth, whereas the Disputed Way allows vehicle traffic, Defendant has limited the use of the Disputed Way primarily [Note 59] to pedestrian use; additionally, there is no parking allowed at the trail site, and the trails are not open to the public during the summer months. Fifth, there is no language of limitation in the record that would restrict the means of access to the abovementioned parcels solely for private or residential purposes, as could easily have been set forth in the deeds to Defendant’s properties. [Note 60] Sixth, Defendant owns the North Head properties solely for purposes of conservation and preservation; these purposes (for which the Land Bank exists and the North Head was created), by their very nature, preclude commercial or residential development of North Head properties, and inherently limit the possible uses of the land and the level of possible disturbance that could result from the lawful use thereof.

These factors must be weighed against the possible detriment that public usage of the Disputed Way might cause to the Inn Property. Plaintiffs’ concerns are not entirely frivolous, as they suggest the possible intrusion by trespassers straying (inadvertently) from the Disputed Way and the Twenty-Foot Way. The impact of such intrusions is measurable, based upon the data compiled by the Counter. Dix testified that “between the Fall of 2012 and the fall of 2013", the Counter measured a total of “38 direct comings and goings during daylight hours.” [Note 61] Taking into account the likelihood of groups of visitors registering as a “one break of the beam” by walking side by side, Dix estimated total traffic over the course of the year at “100 [persons] plus or minus”. In other words, based upon the data collected by the Counter, total traffic on the Disputed Way would be projected as one visitor every 3.65 days; based upon the 38 measured “comings and goings”, the data would suggest foot traffic only once every 9.6 days.

In addition to the Counter data, which indicates that public use of the North Head trails is minimal, Hugh testified that the Taylors do not actually reside at the Inn for at least half of the calendar year (roughly from just after Columbus Day to just before Memorial Day), during which period the Inn (and its restaurant) are closed and the Taylors only sporadically visit. Thus, the period in which the North Head trails are open and the period in which Plaintiffs operate the Inn and reside at the Inn Property are almost opposite, overlapping only for about six weeks in the autumn and approximately another six weeks in the spring. Based upon the data from the Counter and Dix’s calculations, it could reasonably be expected that there would be approximately four groups of walkers (fewer than twelve individuals) for each of the two periods in which Plaintiffs’ use of the Inn Property overlaps with the period in which the public would have access to the North Head -- that is, fewer than one minor disturbance every ten days.

In sum, Plaintiffs’ alleged harms appear to be limited to sporadic incursions by members of the public trying to access the North Head. Whereas the limited intrusions by members of the public might be unreasonable if the Inn Property were used exclusively as a private residence, Plaintiffs use their property to engage in commerce -- to wit, operating the Inn, which is available for booking by any member of the public who wishes to avail themselves of the Inn’s accommodations. The Taylors, as innkeepers, are engaged in the hospitality industry, which, by definition, requires contact with the general public. Presumably, even inadvertent foot traffic to the Inn apprises members of the public of the existence of the Inn, and may even generate business Plaintiffs would not otherwise enjoy. Moreover, Plaintiffs did not allege or provide evidence that the public’s use of the easement is adversely affecting the profitability of their business.

In fact, Hugh acknowledged at trial that Defendant’s use of the North Head actually benefits the Inn Property and the Inn, as Defendant’s conservation efforts preserve the unique character of the North Head and maintain relatively unblemished views, which would be obstructed if Defendant’s land were developed into residential use. [Note 62] Indeed, Hugh testified that Plaintiffs actually encourage their guests to avail themselves of the Twenty-Foot Way to access the North Head property -- clearly indicating that they reap a very real benefit from Defendant’s activity in the form of an attractive amenity they can offer to their guests. Moreover, Plaintiffs’ stated goal of providing a welcoming and hospitable environment for the public suggests the public use of the area in general.

In addition to the foregoing, it is obvious that Defendant has clearly gone out of its way to accommodate local landowners in connection with its development of the North Head, even offering to address Plaintiffs’ concerns (at its own cost) by installing signs indicating that the Inn and its parking lot are private and are not part of the North Head trail system. In his trial testimony, Hugh acknowledged that the public could be more effectively managed by the presence of such informational signs. [Note 63] He even conceded that, while he preferred not to post negatively worded signs, positively worded signs (viz., “Parking for inn guests only”) would likely be effective. Yet, Plaintiffs declined Defendant’s offered solution, opting instead to pursue a five-year course of costly litigation.

Clearly, the most optimaland cost-effective wayto accommodate Plaintiffs’ concerns -- while also permitting the most optimal use of the North Head -- would be to install signs indicating the direction of the trails and the location of private property. Plaintiff could also install fencing to ensure that walkers do not inadvertently stray from the path onto the Inn grounds. The fact that Plaintiffs’ refused these very modest solutions bears on the balancing of the parties’ respective equities, and whether the public’s use of the North Head would unreasonably affect Plaintiffs; having refused to even attempt such solutions, Plaintiffs cannot now complain about the de minimis effect of sporadic public traffic on the Disputed Way.

In view of the foregoing, I find that Defendant’s use of the Disputed Way to allow members of the public to access the Vanderhoop Parcel and Ginnochio Lot 2 (but not Diem Lot 5) does not exceed the scope of the Disputed Way or the intent of the grantors thereof, and therefore does not amount to an overburdening of the Disputed Way. [Note 64]

With respect to the Twenty-Foot Way, per the court’s discussion, supra, of the Conditional Right, it is clear that the parties do not dispute that Diem Lot 5 enjoys at least a conditional right to use said way. Thus, in accordance with the discussion of overburdening and for the same reasons as stated with respect to public use of the Disputed Way, supra, I find that Defendant’s use of the portions of the Disputed Way and the Twenty-Foot Way located on the Inn Property, and its use of the portion of the Twenty-Foot Way located on Walker Lot 1, the Olgilvie Property, and Diem Lot 7 to allow public access to Diem Lot 5 from Lighthouse Road, does not amount to an overburdening of these easements. [Note 65]

Conditions Upon Public Use [Note 66]

Following the reasoning in Bedell, the court’s within findings as to public use of the Disputed Way and the Twenty-Foot Way shall be conditioned upon the following requirements. First, Defendant shall, at its cost, and if consented to by Plaintiffs, post reasonable signage to advise members of the public as to the location of the North Head trails, as well as the fact that the Inn Property is private property. Second, Defendant shall, at its cost, and if consented to by Plaintiffs, erect reasonable fencing to ensure that members of the public do not stray from the Disputed Way. Third, Defendant shall reasonably ensure, through its personnel, that members of the public do not (a) use the Disputed Way to access Diem Lot 5, and (b) use the Twenty-Foot Way to access Ginnochio Lot 2 or the Vanderhoop Parcel. Fourth, Defendant shall ensure that the Counter is operational at all times so as to monitor the ongoing use of the North Head trail system.

Judgment to enter accordingly.

exhibit 1