PETER R. BROWN vs. COMMONWEALTH OF MASSACHUSETTS and TOWN OF HARWICH.

Plaintiffs Leslee Anne Greene and Arthur R. Greene, Jr. (the “Greenes”), Nancy P. Powers-Ferris (“Powers-Ferris”), and John J. Powers and Lauren K. Powers, Trustees of John J. Powers Qualified Personal Residence Trust, dated March 7, 2008 and Lauren K. Powers Qualified Personal Residence Trust, dated March 7, 2008 (the “Trusts”) filed these three cases involving land accretion to three registered parcels of land in Harwich (the “Related Cases”) on September 29, 2011. Robert J. Moriarty, Jr. was appointed as Title Examiner on November 29, 2011, and filed his title report on March 23, 2012. A citation by certified mail was issued on June 29, 2012, returnable August 13, 2012. The Commonwealth of Massachusetts (the “Commonwealth”) filed its Answer and Objections on July 30, 2012. An Objection of the Town of Harwich (the “Town”) was filed on August 14, 2012. On September 4, 2012, two of Plaintiffs filed an Assented-to Motion to Substitute Plaintiff because of sales of two registered parcels involved in this action, which motion was allowed the same day. [Note 1] Because several of the parties on the title report were deceased, this court authorized publication on November 2, 2012, which was returnable on December 3, 2012. On December 20, 2012, Jan H. Kalicki (“Kalicki”), a neighbor, filed a Motion to Intervene and File Objection Late in the Related Cases, together with supporting memorandum. [Note 2] [Note 3] [Note 4] At a status conference on January 4, 2013, the Town indicated that it was preparing an engineering study relative to the effect of a Town jetty on the accreted land, which study would be completed by mid-March, 2013. [Note 5]

A pre-trial conference was held on June 17, 2013. Because of a dispute over boundary lines resulting from a tax taking, the parties set up a meeting with the Land Court surveyors and title examiners on October 8, 2013. On January 30, 2014, the Commonwealth filed its Withdrawal of Answer and Objection in the Related Cases. On June 2, 2014, a Settlement Agreement between the Town and Plaintiffs was filed with this court, resolving all of their issues. Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Material Facts, and Affidavit of Brian M. Hurley, on June 13, 2014. On August 8, 2014, the Intervenors filed their Opposition, together with supporting memorandum, Statement of Additional Material Facts, and Appendix. Plaintiffs filed their Reply Brief on August 20, 2014. A hearing on all motions was held on September 25, 2014, and the matter was taken under advisement. On October 20, 2014, a Stipulation of Dismissal was filed between Plaintiffs in cases 1 and 2, and Intervenor Susan Cole. [Note 6]

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419 , 422 (1983); Community Bat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c)).

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

1. On April 17, 1923, the Land Court issued Certificate of Title No. 688 to Anne Thorburn vanBuren (“vanBuren”) covering two parcels of land (Lot A and Lot B) as shown on “Plan of Land in Harwich” prepared by Arthur L. Sparrow and dated April 1922 (Land Court Plan 8898A). Lot B was bounded “Southwesterly by Nantucket Sound . . .”

2. On January 19, 1933, the Land Court issued Certificate of Title No. 3150 to vanBuren covering a parcel of land (“Lot 2”) shown on “Plan of Land in Harwich” prepared by Arthur L. Sparrow and dated January 1932 (Land Court Plan 15247A). The lot was bounded “Southerly by Nantucket Sound . . .” This parcel abutted Lot B on the west.

3. By Land Court Plan 8898B, Lot B and Lot 2 were combined into Lot E shown by plan dated September 1936 and prepared by Arthur L. Sparrow.

4. On March 20, 1939, the Land Court issued Certificate of Title No. 4991 to Alice G. Kales covering a parcel of land (“Lot 1-16896”) shown on “Plan of Land in Harwich” prepared by Arthur L. Sparrow and dated May 1938 (Land Court Plan 16896A). The lot was bounded “Southerly by Nantucket Sound . . .” This parcel was located to the west of Lot E (but did not abut Lot E).

5. Lot E was subdivided into Lot 1-8898 (shown as Lot E1) and Lot 2-8898 (shown as Lot E2) by plan dated September 16, 1943 prepared by C. B. Humphrey (Land Court 8898C).

6. Lot 1-8898 was transferred to Francis R. vanBuren by Certificate of Title No. 6660 dated October 1, 1943.

7. Lot 2-8898 was transferred to Harold Sheffield vanBuren by Certificate of Title No. 6661 dated October 1, 1943. One boundary is described as “Southwesterly by Nantucket Sound . . .”

8. The current owner of Lot 1-8898 is Brown by Certificate of Title No. 197774 dated July 30, 2012. [Note 7] The current owner of Lot 2-8898 is John E. Ferris and Nancy Powers-Ferris, Trustees of the Davis Lane Realty Trust (the “Realty Trust”) dated October 19, 2011, by Certificate of Title No. 154986 dated October 1, 1999. [Note 8]

9. The current owners of Lot 1-16896 are John J. Powers and Lauren K. Powers, Trustees.

10. By Land Court Plan 8898D, Lot 1-8898 (shown as Lot 1) has increased on its southwesterly boundary by 347' and has increased on its southeasterly boundary by 358' shown on plan dated June 20, 2011 (the “2011 Plan”) and filed with this court September 14, 2011, from the shore line shown by Land Court Plan 8898C. [Note 9]

11. By Land Court Plan 8898E, Lot 2-8898 (shown as Lot 2) has increased on its southwesterly boundary by 358' and on its southeasterly boundary by 355' shown on 2011 Plan and filed with this court September 14, 2011, from the shore line shown by Land Court Plan 8898C. [Note 10]

12. By Land Court Plan 16896B, Lot 1-16896 (shown as Lot 1) has increased on its northwesterly boundary by 273' and on its southeasterly boundary by 289' shown on plan dated 2011 Plan and filed with this court September 14, 2011, from the shore line shown by Land Court Plan 16896A.

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The sole issue for Summary Judgment is whether the Intervenors have acquired a prescriptive easement over the three registered parcels. Plaintiffs argue that each of their registered parcels include accreted land to the current low water mark of Nantucket Sound. Plaintiffs contend that as land accretes on the boundary of each of their parcels it becomes registered upon its formation. As such, Plaintiffs’ individual parcels are protected by G.L. c. 185, §53 against the Intervenors’ claim of prescriptive rights and each parcel is subject only to public rights granted by the Colonial Ordinances of 1641-1647, including fishing, fowling, and navigation. The Intervenors conversely claim that the accreted land does not become automatically registered upon its formation and is subject to claims for a prescriptive easement by private parties until such time as it becomes registered through a court procedure.

Plaintiffs’ Ownership of the Accreted Lands

The parties agree that Plaintiffs own their property to the mean low water mark and the dispute to be resolved is whether that land became registered upon its formation or required subsequent registration. The court, however, finds it helpful to review the case law relative to ownership. Plaintiffs each own property bounded by Nantucket Sound, historically meaning that each owns the tidal flats, the area between the high and low water lines, attached to the upland property. Unless explicitly severed, the owners of upland own their property to the low–water mark and title to the flats is presumed to follow that of the upland to which they are attached. Pazolt v. Director of the Div. of Marine Fisheries, 417 Mass. 565 , 570 (1994). Such ownership is, however, subject to the rights of the public to fish, fowl, or navigate in the tidelands as established by the Colonial Ordinances of 1641-1647. Id. at 571, Boston Waterfront Development Corp. v. Commonwealth, 378 Mass. 629 , 633-637 (1979), Michaelson v. Silver Beach Imp. Ass’n. Inc., 342 Mass. 251 , 261 (1961).

The common law of Massachusetts has long recognized that property bounded by water lines are subject to a moveable boundary that changes due to natural processes of accretion or erosion. Id. at 254, White v. Hartigan, 464 Mass. 400 , 407 (2013). As the boundary between land and water changes through the “gradual deposit of sand and clay and the like, then the line of ownership ordinarily follows the changing water line.” Lorusso v. Acapesket Improv. Ass’n, 408 Mass. 772 , 780 (1990), citing Michaelson. See also, White:

The considerations underlying this doctrine include: (1) the interest in preserving the water-abutting nature of littoral property; (2) the promotion of stability in title and ownership of property as it concerns newly accreted property; and (3) the equitable principle that a property owner who enjoys the benefit of an increase in property when the waterlines shift seaward ought also bear the burden of a decrease in property when the water-lines shift landward.

The Intervenors claim that the tidelands were, in part, the result of the erection of a jetty by the Town. [Note 11] This fact, however, does not defeat Plaintiffs’ claim of ownership. A littoral owner may still acquire ownership of accreted land that is created with human intervention so long as such accretions were not caused by the owner himself. Lorusso,408 Mass. at 780. [Note 12] [Note 13] As a result of the foregoing, I find that the accreted land is owned by the owners of the registered upland.

Registration of Accreted Lands

Plaintiffs in this case each hold registration decrees stating that their parcels are bounded by Nantucket Sound, which Plaintiffs claim automatically includes accreted land. The registration of accreted land was specifically addressed by this court in Lorusso v. Acapesket Imp. Ass’n., Land Court No. 314-S at 7-12, March 24, 1989. [Note 14] In the Land Court case, Judge Fenton found that owners of registered land maintained their common law rights as littoral property owners, allowing them “title to accretions as they are deposited on their property” Id. at 11, and that “accretions became registered land at the time of their formation.” Id. at 12. In reaching this result, Judge Fenton reasoned that littoral boundaries “frequently change, so that the actual boundaries will rarely correspond exactly with what is depicted on a registered owner’s certificate of title or land court plan.” Id. at 8. If accreted land did not become registered upon its creation, it would cause owners of registered litoral property to “amend their Certificates of Title on a regular basis to prevent any loss in their property rights due to adverse use by another.” Id. at 12.

To hold that accreted land could not automatically become registered would create a heavy burden on littoral property owners. Property owners would not only need to closely monitor their changing water lines but would also have to bear the cost of having to update their certificates of title regularly. Failure to periodically update their registration would create the constant need to protect their property line from being claimed by outside parties, despite its initial registration. This is contrary to the purpose of the registration system, “to make titles certain and indefeasible,” Id. at 12, and would make the registration of littoral properties less meaningful than the registration of landlocked parcels.

The considerations laid out in White further support the rationale that land should become registered upon its accretion. First, automatic registration would preserve the water-abutting nature of littoral property. As registration protects property from adverse claims, a littoral owner will not lose the waterline to his property because land has accreted past the original boundary line. Automatic registration certainly promotes stability in title and ownership of accretions, assuring that newly formed land holds the same rights and protections held as the attached uplands. Finally, allowing the automatic registration of accretions provides a balance to the burden faced by owners of registered littoral property. This court has held that “at common law, as well as with registered lots, if property erodes completely away then the owner of that lot loses all interest in the land.” Lorusso, Land Court No. 314-S, 8. As registered land still bears the risk of eroding, owners should enjoy the protections of the registration system if their property increases through accretion.

The Intervenors contend that the sheer amount of accretion should prevent the land from becoming part of Plaintiffs’ registered parcels. [Note 15] They argue that such a large increase in land could not have been contemplated at the time the parcels were first registered, and allowing these parcels to become automatically registered would lead to private ownership of property regularly used by the public. A large amount of accretion, however, cannot prevent the registration of littoral property. Though it is true that Plaintiffs could not have contemplated how much land would accrete to their property when they purchased or registered their parcels, the same can be said for any littoral owner. No owner can know when they take possession of waterfront property whether their property line will grow or recede or by how much. It has never been found that there is a limit on how much a property owner could benefit from accretion, nor that excessive accretion will subject owners to more obligations, including the need to regularly update their certificates of title. It has also never been held that a littoral owner may not benefit from accreted land because the land had previously been used by the public. As land accretes, new tidelands are created and the public retains access to tidelands regardless of how much a lot has increased in size. Allowing a littoral owner’s land to become registered upon its accretion does not divest the public of such rights. To follow the Intervener’s logic, littoral owners would lose their common law rights to claim ownership of accreted lands because their land has benefitted from accretion.

The Intervenors further argue, according to Arno v. Commonwealth, 457 Mass. 434 (2010), that registration can not extinguish rights held in former Commonwealth tidelands, namely that the accreted lands are subject to a condition subsequent that they be used for a public purpose because the newly formed tidelands lie over former Commonwealth tidelands. In Arno, the Supreme Judicial Court found that only an express delegation by the Legislature could extinguish the public’s rights in filled tidal flats or submerged land, and that registration of a filled parcel did not have the proper authority to divest the public’s rights. Id. at 448. Arno’s parcel, the subject of the dispute, consisted of two formerly submerged water lots which had been filled pursuant to two licenses through the Waterways Act. Id. at 438-439. The first license was issued in 1882 to the Nantucket Railroad Company to construct a roadway; this project resulted in the creation of a tidal basin landward of the new road. Id. at 437. The second license was issued in 1895, and allowed for the filling of the tidal basin created in 1882. Id. at 438. Both licenses were subject to the provisions of G.L. c. 91. Id. As a result of the fillings, the two parcels consisted almost entirely of filled uplands and the only waterline in existence was between a bulkhead that lay between the parcels and Nantucket Harbor. Id. The owners of these two filled lots petitioned to register them in 1922, and in such registration a title examiner concluded that because the parcels were licensed fill and had never been conveyed to a private party, the Commonwealth was the owner of the lots. Id. at 439. The Attorney General appeared to respond on behalf of the Commonwealth and stated, “he had no objection to the entry of the [registration] decree[s]... provided the same [are] made subject to any and all rights of the public.” Id at 440. The lots were subsequently registered with a caveat that the title was subject to “any and all public rights legally existing in and over the same below mean high water mark.” Id.

The distinguishing factor in the case at bar is that the created land at issue was accreted, not filled pursuant to a chapter 91 license. Commonwealth tidelands are held by the state in a trust “for the benefit of the public or held by another party by licence or grant of the Commonwealth subject to an express or implied condition subsequent that it be used for a public purpose.” G.L. c. 91 §1. Structures or fill on Commonwealth tidelands must “serve a proper public purpose and that such purpose shall provide a greater public benefit than public detriment to the rights of the public in said lands.” G.L. c. 91 § 14. Examples of public benefits include pedestrian and waterfront walkways, public boat landings, and piers and floats for public recreational boarding facilities. [Note 16] To find that land created over former Commonwealth tidal lands was subject to the restrictions associated with filled, former submerged land as the Intervenors argue it should, would divest littoral property owners of their historic rights to those lands. Littoral owners bear the risk that their property may erode but also are permitted to take the benefit of land that is added to their shoreline. White, at 407.

The court in Arno specifically found that registration of a parcel was not sufficient to divest the land of public rights. Plaintiffs, however, are not seeking to extinguish the public’s rights through their registration or otherwise. The properties, as they were registered, implicitly allowed for the rights of the public to fish, fowl, and navigate in the tidelands area.

To strictly apply the ruling in Arno to the current case would allow the Commonwealth to continue to exercise rights on accreted land that are normally reserved for tidelands simply because the water line has changed. Property owners would then be subject to the condition that their dry land be used for a public purpose, thus limiting their ability to use the land as they wish. Further, the public’s rights in littoral land are water-related. The rights to fish, fowl and navigate are intended to be restricted to the tidelands, and these rights cannot be exercised over dry land.

At common law, “a littoral land owner acquires title to accretions as they are deposited on their property.” Lorusso, Land Court No. 314-S at 11. It has not been held that accreted land is subject to the same restrictions as Commonwealth tidelands. Because the disputed area is comprised of accreted land rather than land filled pursuant to a licence, it is only subject to the rights granted by the public trust doctrine for fishing, fowling, and navigating in the tideland and the parcels are not required to be used for a public purpose.

Plaintiffs have provided sufficient evidence to this court that demonstrates that accreted land becomes registered upon its formation. Each Plaintiff holds ownership of the dry lands and the flats between the high and low water mark as the two have never been severed. The properties are bounded by the low water mark wherever that may fall due to the naturally changing shoreline. It would be unfair to force Plaintiffs or other littoral owners to amend their property registration each time the shoreline changes and to hold such would be contradictory to what this court has previously held. Registered lands are protected by G.L. c. 185, §53, and as such the accreted land cannot be subjected to any prescriptive easement claims by the Intervenors. As a result of the foregoing, I find that the accreted land automatically became a part of the registered land as it was formed.

Conclusion

As a result of the foregoing, I ALLOW Plaintiffs’ Motion for Summary Judgment.

Judgment to enter accordingly.