JAMES KANE, IRENE KANE, DONALD MANN, GERALDINE MANN, and CROW POINT COMMUNITY CLUB v. ROBERT STIMSON, CYNTHIA STIMSON, MICHAEL DONAHUE, MARY DONAHUE, and AMYRA O'CONNELL, Defendants. [Note 1]

FOOTNOTES

[Note 1] This is the original caption of the case, per Land Court practice. As discussed, infra, a number of the parties to the case have been substituted by successor owners over the twelve years this dispute has been pending.

[Note 2] The “Disputed Beach” refers to the same area defined in my prior decisions as the “Beach”. I adopt this new term in order to avoid confusion with several other nearby beaches that were relevant to this case at trial, namely, the “Schwartz Beach” and the “Alice Walk Beach” (both defined, infra). In my original Decision (“Land Court Decision 1”) and Judgment (the “Judgment”) issued on December 12, 2007, I described the Disputed Beach (defined there simply as the “Beach”) as follows: “On the west by Melville Walk and the portion of Alice Walk [defined infra] abutting the Donahue Property [defined infra], on the south by the Schwartz Property [defined infra], on the east by Hingham Harbor, and on the north by Alice Walk and the land of the owners of lots 3-7 as shown on the 1897 Plan [defined infra]. The [Disputed] Beach is separated from the Schwartz Property [defined infra] on the south end by a row of rocks. On the north end and west end, it is marked by sea grass and a sea wall, and contains both a lower beach and an upper beach. The upper beach contains a picnic table with two attached benches, and the lower beach contains large logs used as benches. On the east end the [Disputed] Beach extends to the mean low water line of Hingham Harbor.” The Appeals Court, in Appeals Court Decision 1 (defined infra) described the Disputed Beach slightly differently: “on the seaward (southeasterly) side of Alice Walk, across from the Donahue property, and on the northeasterlyside of Melville Walk, across from the Vanzura property”, further noting that, per my November 14, 2008 Revised Decision (“Land Court Decision 2”) and Revised Judgment (the “First Amended Judgment”), “the beach area at issue consisted solelyof the area behind the Donahue property, and excluded the area behind the Schwartz property.”

Also often referred to in relation to the Disputed Beach is Alice Walk. Land Court Decision 1 did not specifically define Alice Walk, but did discuss it at length and made numerous findings of fact about it. It is a private way, and is shown on the 1897 Plan as running from Downer Avenue southwesterly along the beach-facing lot lines of the Alice Walk Lot (defined infra) and the Donahue Property to its intersection with Melville Walk. A portion of Alice Walk is also shown on a plan titled “Plan of Lot at Downer Landing belonging to the Estate of Samuel Downer” dated September 20, 1892, and prepared by Charles F. Baxter (the “1892 Plan”), described as “Driveway to Melville Gardens.” As noted, supra, the fee to the area of Alice Walk adjacent to lots “3" through “7" on the 1897 Plan are part of the Alice Walk Lot (defined, infra), as is the fee to the beaches and flats seaward of those lots.

In order to be as precise as possible as to the location of the Disputed Beach and the surrounding properties, ways, and beaches, and to minimize any ambiguity or confusion that might have arisen due to the different ways they have been described in this case, I have annexed as Exhibit A to the Decision of even date hereof (the “Third Revised Decision") a plan depicting the Disputed Beach and surrounding properties and ways. As shown on Exhibit A, the Disputed Beach is the triangular area of beach on the seaward side of Alice Walk, across from the Donahue Property (defined, infra). It is bounded as follows: (a) by the seaward edge of Alice Walk (which also appears to be the mean high water mark) between the side lot lines of the Donahue Property, (b) by the easterly edge of the Alice Walk Beach (defined, infra) (which, as noted, forms part of the Alice Walk Lot (defined infra) and extends to the mean low water line), and (c) by the northerly edge of the Schwartz Beach (defined, infra) (which, as noted, forms part of the Schwartz Property (defined, infra) and extends to the low water line). See Land Court Plan 8311A, which depicts the seaward edge of Alice Walk as the mean high water mark. Thus, the Disputed Beach would appear to lie entirely between the mean high water and mean low water marks of Hingham Harbor in this area, as shown on Exhibit A.

[Note 3] In Land Court Decision 1, I defined Melville Walk as follows: “Melville Walk is also shown on plan titled “Plan of Land Melville Walk in Hingham, MA” dated October 18, 2004 and prepared by Aaberg Associates Inc. (the “2004 Plan”). The 2004 Plan shows Melville Walk as twenty feet in width, 160 feet in length from Downer Avenue, a public way, to the intersection with Alice Walk, a private way, and 227.32 feet in length from Downer Avenue to the intersection of the Stimson Property [defined infra] and the Schwartz Property [defined infra].” Melville Walk runs southeast from the point of intersection of Jarvis Avenue and Downer Avenue, and provides access to the Disputed Beach.

[Note 4] Related to this case are three Registration cases filed just after this case was commenced. On July 23, 2004, the Donahues, O’Connell, and the Stimsons commenced, respectively, Registration Case Nos. 43381, 43382, and 43383 (the “Registration Cases”), seeking to register their properties in Hingham pursuant to G. L. c. 185, § 26. Such properties are, respectively, 2 Alice Walk, Hingham, MA (the “Donahue Property”), 143 Downer Avenue, Hingham, MA. (the “O’Connell Property”), and 5 Melville Walk in Hingham, MA (the “Stimson Property”). All three properties abut Melville Walk. On August 30, 2004, the Registration Cases were referred to Land Court Title Examiner Jan E. Dabrowski, who filed his title report on July 11, 2005. By Order dated September 28, 2005, the Registration Cases were consolidated with the Miscellaneous Case for joint trial “on the status of rights in Melville Walk”. The Registration Cases are still open and are being held in abeyance, awaiting the outcome in this case because the properties sought to be registered all include part of the fee in Melville Walk (as discussed more fully, infra), and thus the registration of these properties will need to take into account all rights in Melville Walk.

[Note 5] As noted, the initially-named parties were the Kanes, the Manns, and the Community Club as Plaintiffs, and the Stimsons, the Donahues, and O’Connell as Defendants. The Community Club was dismissed as a Plaintiff by stipulation filed on May 19, 2005. On June 13, 2005, George and Martha Schwartz (the “Schwartzes”) (owners of the property adjacent to the Stimsons’ lot to the southeast, which abuts a small portion of Melville Walk) were added as Defendants. On January 27, 2006, O’Connell was dismissed as a Defendant. On March 9, 2006, the following additional Plaintiffs were added to the case: Melinda Ponder (“Ponder”), Ronald C. Cates and Dana R. Malcolm (“Cates and Malcolm”), Richard and Virginia McCourt (the “McCourts”), Maryanne Campbell (“Campbell”), Arthur W. Handrahan (“Handrahan”), Stacy A. Dow (“Dow”), Robert P. and Anne D. Masland (the “Maslands”), Alfred and Edythe Cox (the “Coxes”), Mark G. Patrolia and Gayle Callahan (“Patrolia and Callahan”), Anthony and Kathleen Arnold (the “Arnolds”), Mary T. Dillon (“Dillon”), Margaret S. Iser (“Iser”), and Charles J. and Carol A. Murray (the “Murrays”). These additional Plaintiffs were owners of other inland lots who also claimed rights to use Melville Walk and the Disputed Beach. Such was the alignment of the parties when the case went to trial in August of 2007.

Subsequent thereto, property records indicate that (a) Donald and Geraldine Mann passed away in 2007 and 2010, respectively, and the estate of Geraldine Mann deeded the Manns’ property to Valerie B. Robin and Brian J. Cavanaugh (“Robin and Cavanaugh”) in August, 2010; (b) Ponder sold her property to Timothy Madden and Tara Hanley in December, 2007, who sold it to Michael Kranzley in May, 2012, who sold it to Jon and Cassandra Annello (the “Annellos”) in June, 2015; and (c) the Arnolds sold their property to Neil Flaherty and Alanna Whelan (“Flaherty and Whelan”) in August, 2013.

[Note 6] It is important to note that, while the Schwartz Property does not contain the northern five feet of lot “104" on the 1897 Plan, (which is part of the Stimpson Property), it contains all of the beaches and flats adjacent to the entirety of lot “104", which were not conveyed into the Stimpsons’ chain of title. See Deed (White, Trustee to Allen) dated June 19, 1914 and recorded in the Registry at Book 1189, Page 404 (defined in Land Court Decision 1 as the 1914 Deed); Deed (Allen to Whiting) dated January 2, 1920 and recorded in the Registry at Book 1415, Page 76.

[Note 7] See Deed (White, Trustee to Harvey) dated March 15, 1920 and recorded in the Registry at Book 1391, Page 111 (defined in Land Court Decision 1 as the 1920 Deed). For further details of the chains of title to Defendants’ properties and the Alice Walk Lot, see my discussion in Land Court Decision 1 at 9-16.

[Note 8] As discussed in Land Court Decision 1 and more fully infra, the Downer-Cushing Indenture (the “Indenture”) was an agreement between Downer and C.W. Cushing (“Cushing”) dated September 1, 1879 and recorded in the Registry at Book 455, Page 68, which granted, for a term of fifty years, the use of several beaches in the Crow Point neighborhood (including the Disputed Beach and Alice Walk Beach, though not the Schwartz Beach) “for the purposes of bathing and boating” to all grantees (past and future) of the land in Crow Point (also known as “Downer Landing”) shown on a plan entitled “Copy of a portion of a Plan of Samuel Downer and C. W. Cushing’s Land at Downer Landing, Hingham, Mass.”, which was dated 1871, prepared by Quincy Bicknell, surveyor, and recorded in the Registry at Plan Book 1, Page 128 (the “1871 Plan”). The Indenture was never extended, and thus it expired by its own terms on August 31, 1929.

[Note 9] While not noted in the Judgment, Land Court Decision 1 also held that, by implication of my finding that the Donahues owned the Disputed Beach, “the Donahues [also] own the fee to all of Alice Walk adjacent to their property”.

[Note 10] The May 1929 Deed is the deed dated May 14, 1929 and recorded in the Registry at Book 1575, Page 195.

[Note 11] While not noted in the Judgment, Land Court Decision 1 also held that, by implication of my finding that the Downer Estate retained no fee interest in Melville Walk, “each of O’Connell, the Stimsons, the Donahues and the Schwartzes own the fee to the center line of Melville Walk opposite their respective properties.”

[Note 12] Land Court Decision 1 has a typographical error in that it states that “the Dillons” have such rights. Only one person by the name of Dillon has been a party to this case. That error is hereby corrected.

[Note 13] As noted in Land Court Decision 1, the evidence of prescriptive use of Melville Walk was limited to the southerly half of Melville Walk.

[Note 14] Land Court Decision 1 did not specifically coin a term defining these parties. In Land Court Decision 2, I defined this group of Plaintiffs, collectively, as the “Benefitted Plaintiffs”, as they were the only parties, at the time, found to be the beneficiaries of rights in the Disputed Beach and Melville Walk. I hereby redefine this group as the “Prescriptive Rights Plaintiffs” in order to better differentiate them from the Deeded Rights Plaintiffs, defined infra.

[Note 15] Five hearings on these motions (at which the parties raised numerous issues relative to the definition of the Disputed Beach and what uses could be made of it) were held between January and July 2008. Throughout that time, the parties also were engaged in settlement discussions in an effort to resolve those issues among themselves.

[Note 16] For reasons unknown, the Manns were not originally parties to this Joint Report. They were later added as parties to it in an October 10, 2008 amendment, which also slightly modified several terms of the original Joint Report.

[Note 17] For a discussion of the Permitted Beach, see Land Court Decision 2. That term, and the parties’ agreement in the Joint Report is now moot following Appeals Court Decision 1's (defined, infra) determination that the Donahues did not own the Disputed Beach, and therefore lacked the authority to permit or regulate the use of the Disputed Beach.

[Note 18] The Permitted Beach was described in Land Court Decision 2 as follows: “all as shown on the sketch attached hereto: on the west and south starting at a point on the south end of the Stone Retaining Wall, continuing in an arc southeasterly across Alice Walk to the midline of Melville Walk and continuing along the midline of Melville Walk to the point of intersection of the Stimson Property and the Schwartz Property, then continuing in a northeasterly direction to Hingham Harbor; on the east by Hingham Harbor, and on the north by a line running from Hingham Harbor to the southerly end of the Stone Retaining Wall along Alice Walk.”

Land Court Decision 2 also directed that “the Stimsons shall have the right to plant a privet row on the boundary of the Stimson Property and the portion of Melville Walk which they own.” Further, “[t]he [Prescriptive Rights] Plaintiffs shall indemnifyand hold harmless the Donahues, the Schwartzes, the Stimsons, and O’Connell, their heirs and assigns, relative to [said] Plaintiffs’ use of the Permitted Beach, the Schwartz Beach, and Melville Walk.” It also recited several supplemental agreements in the Joint Report as to a separate beach owned by the Schwartzes (defined as the “Schwartz Beach”). Finally, it directed the parties to “file a recordable plan to indicate the boundaries of [the Disputed Beach], the Permitted Beach, and the Schwartz Beach as defined in this Order and Revised Decision. The parties shall also place markers on the ground to define the limits of the respective beaches.” All such rulings are now null and void.

[Note 19] Because, as discussed, infra, the Appeals Court later reversed my determination that the Donahues owned the fee in the Disputed Beach, the Donahues did not have the authority to enter into an agreement defining its scope and use. Thus, to the extent the Joint Report purported to redefine the Disputed Beach as the Permitted Beach, it is null and void, and of no legal force and effect. To the same extent, Land Court Decision 2 is also of no force and effect.

[Note 20] These appeals were taken by Defendants the Stimsons, the Donahues, the Schwartzes; and by Plaintiffs the Kanes, the Manns, Campbell, Handrahan, the Arnolds, Dillon, Ponder, Dow, the Coxes, and Patrolia and Callahan. The Stimsons also filed a motion seeking a stay pending appeal of this court’s directives. By Order dated January 28, 2009, this court granted limited injunctive relief governing the use of the Permitted Beach and Melville Walk during the pendency of the appeals. Little occurred while the case was pending appeal from 2009 to 2011. Of note: in 2009, Cedric J. and Elizabeth K. Vanzura (the “Vanzuras”) purchased the Stimson property, moved to intervene in this case, and were substituted as Defendants in place of the Stimsons with consent of all parties. Additionally, former Defendant O’Connell moved for leave to rejoin the case as a Defendant. That motion was denied.

[Note 21] This deleted sentence had stated as follows: “The plaintiffs claiming rights under the 1929 instrument, see n. 5, supra, are entitled to a judgment declaring their rights to use the beach and the ways as set forth in that deed, at least as against any contrary contention by the defendants.”

[Note 22] This deleted sentence had stated as follows: “A new judgment shall enter, declaring that the deeded rights plaintiffs hold an easement to use Melville Walk for access to the beach and tidelands on the seaward side of Alice Walk, across from the Donahue property.”

[Note 23] The term “Deeded Rights Plaintiffs”, as used herein, refers to the group of Plaintiffs defined by the Appeals Court in Appeals Court Decision 1 as those Plaintiffs “claiming” deeded rights under the May 1929 Deed, to wit: the Kanes, the Manns, Ponder, Dow, the Coxes, Patrolia and Callahan, and the Arnolds.

[Note 24] This sentence had previously read: “The judgment is affirmed insofar as it declares that the prescriptive rights plaintiffs have established prescriptive rights in the southerly portion of Melville Walk and the beach.” This was the alleged transcription error, as the Appeals Court had overturned my finding of prescriptive rights in the Disputed Beach.

[Note 25] Because the Appeals Court found that the Downer Estate, not the Donahues, owned the Disputed Beach (as well as the fee to the seaward half of Alice Walk to the center line of that way adjacent to the Disputed Beach), by implication, this provision had the effect of vacating Land Court Decision 2 and the First Amended Judgment to the extent they gave effect to the Joint Report’s modifications to the scope and use of the Disputed Beach (redefined as the Permitted Beach).

[Note 26] As noted, supra, the first version of Appeals Court Decision 1 went even further, specifically directing the entry of a new judgment “declaring that the deeded rights plaintiffs hold an easement to use Melville Walk for access to the beach and tidelands on the seaward side of Alice Walk, across from the Donahue property.” Further: “The plaintiffs claiming rights under the 1929 instrument . . . are entitled to a judgment declaring their rights to use the beach and the ways as set forth in that deed, at least as against any contrary contention by the defendants.” Amended Appeals Court Decision 1 used more general language on this issue: “The case is remanded to the Land Court for determination of the rights held by the deeded rights plaintiffs.” Amended Appeals Court Decision 1, 78 Mass. App. Ct. at 759 As Defendants had not disputed the issue of rights in Melville Walk in their petition for rehearing (which, as noted supra, occasioned the modification of Appeals Court Decision 1), these changes were apparently based on the fact that this court had not yet considered the scope of rights in Melville Walk, nor the issue of the identity of the Deeded Rights Plaintiffs.

[Note 27] This holding applied only to Dillon, Campbell, Handrahan, and the Murrays. In a footnote, the Appeals Court further held that “[t]he judgment is vacated insofar as it imposes an obligation on the prescriptive plaintiffs to indemnify and hold the defendants harmless from loss or damage resulting from the prescriptive plaintiffs’ use of Melville Walk and the beach. The judge cited no authority for the imposition of that obligation, and we are aware of none. Any rights the defendants may have to recover for any such loss or damage arise from the common law.” Id., 78 Mass. App. Ct. at 759, n. 22. This refers to a directive issued in Land Court Decision 2.

[Note 28] This holding refers to those parties belonging both to the Prescriptive Rights Plaintiffs and the Deeded Rights Plaintiffs (i.e., the Manns, the Kanes, and the Arnolds). The court’s rationale here was as follows: “our conclusion that the 1929 instrument validly conveyed rights to use the beach and ways compels the conclusion that none of the plaintiffs with deeded rights may sustain a claim of prescriptive use, since their use was authorized under the 1929 instrument.” Id. at 757 (emphasis added). In other words, because these Plaintiffs had deeded rights in Melville Walk and the Disputed Beach, they could not have established prescriptive rights in Melville Walk and the Disputed Beach.

[Note 29] This appears to refer to my directed verdict against Cates and Malcolm, the McCourts, the Maslands, the Coxes, Patrolia and Callahan on their prescriptive rights claims; and my dismissal on the merits of the prescriptive rights claims of Iser, Dow, and Ponder. Recall, however, that Ponder, Dow, the Coxes, and Patrolia and Callahan were all among the parties defined by the Appeals Court as the Deeded Rights Plaintiffs, who claimed deeded rights.

[Note 30] The Appeals Court’s rulings leave it somewhat unclear as to their intentions for what the scope and purpose of the remand was to have. As noted, in Amended Appeals Court Decision 1, the Appeals Court “conclu[ded] that the 1929 instrument validly conveyed rights to use the beach and ways”. Id. at 757. Yet, “[b]ecause the judge concluded that the 1929 instrument was ineffective to convey any rights in the beach and the ways, he did not reach or consider any other question that may exist concerning the claims of the deeded rights plaintiffs to rights derived from the 1929 instrument, and we decline to undertake such a determination in the first instance.” Id. at 751, n. 5; see also Appeals Court Decision 2 (defined, infra) at 3 (even without the Downer Estate as a party, there is “a sufficient basis for determining the scope of the rights granted.” (emphasis added)). Thus, the Appeals Court was not entirely clear here as to whether this court’s task on remand was to determine whether the May 1929 Deed conveyed rights in Melville Walk and the Disputed Beach, or was onlyto rule on the nature and scope of those “validlyconveyed rights”. Amended Appeals Court Decision 1, 78 Mass. App. Ct. at 757.

[Note 31] Also during this time period, Thomas and Dawn Martel (the “Martels”) purchased the Vanzuras’ property and moved to intervene in this case and to substitute themselves in place of the Vanzuras, which motion was allowed. Also, Andrew Schlosberg (“Schlosberg”) purchased the Donahues’ property and moved to intervene in this case and to substitute himself in place of the Donahues, which motion was allowed.

[Note 32] It is not entirely clear the extent to which the parties actually attempted in good faith to locate Downer’s heirs. In an April 15, 2014 notice, the Plaintiffs advised the court that they had traced Downer’s heirs to two generations (his children and grandchildren), but claimed that “the third generation and their successors have not, and appear will not, be identifiable absent further efforts”. It does not appear that they ever considered retaining a genealogist for that purpose. Instead, they proposed publishing notice in several newspapers, directed to the heirs of Downer and several of his descendants -- clearly, an inadequate solution.

[Note 33] The second time this case made its way to the Appeals Court, it was assigned to a new panel of justices (Trainor, Agnes, and Blake, JJ.).

[Note 34] Contrast this determination with Amended Appeals Court Decision 1, 78 Mass. App. Ct. at 750 (“Because the parties to this action do not include the holder of the record interest in the beach, we vacate the judgment insofar as it adjudicated rights in the beach itself.”); see also id., 78 Mass. App. Ct. at 757, n. 16 (“no party in the present action appears to hold an interest in the fee of the beach, as successor in interest to the estate of Samuel Downer. The judgment accordingly cannot adjudicate any question of the rights of any such successor in interest.”). In other words, the Appeals Court, in Amended Appeals Court Decision 1, found the Downer Estate’s absence from this case to bar adjudication of prescriptive easement rights in the Disputed Beach, but it later found, in Appeals Court Decision 2, that the Downer Estate’s absence did not bar adjudication of deeded easement rights in the Disputed Beach. It is unclear to this court what basis in law and fact there might be for such a distinction -- especially because, as discussed infra, the granting document at issue here is clearly ambiguous. It was for exactly that reason that this court determined, in Land Court Decision 3, that nothing further could be decided on that issue absent the Downer Estate, who, conceivably, might have something to say as to their predecessors’ intent.

[Note 35] Appeals Court Decision 2 also states that “the language of [the May 1929 Deed] itself, combined with the relevant circumstances surrounding the execution of the deed in 1929, provides a sufficient basis for determining the scope of the rights granted.” Id. How this comports with the Appeals Court’s acknowledgment -- only two sentences prior -- that deed interpretation calls for the consideration of extrinsic evidence if “the meaning of an essential term or phrase is ambiguous”, id., is unclear. As noted, it is on this very question that, in the view of this court, the input of the Downer Estate would be particularly helpful. I am nonetheless constrained to decide the matter without the benefit of such input.

[Note 36] The March 1929 Deed is defined as the deed dated March 5, 1929 and recorded in the Registry at Book 1569, Page 446. Pursuant to the March 1929 Deed, Cole deeded to Daley a parcel of land (formerly part of the Downer Tract) described as lot “3" on a plan of land entitled “Plan of Subdivision of Land at Crow Point Hingham, Mass.”, dated February 25, 1929, prepared by Russell H. Whiting, and recorded in the Registry at Plan Book 4, Page 862 (the “February 25, 1929 Plan”).

[Note 37] The February 28, 1929 Plan is the subdivision plan entitled “Plan of Subdivision of Land at Crow Point Hingham, Mass.”, dated February 28, 1929, prepared by Russell H. Whiting, and recorded in the Registryat Plan Book 4, Page 623. Land Court Decision 1 defined the February 28, 1929 Plan simply as the “1929 Plan”, and, while it referred to the February 25, 1929 Plan, it did not specifically define that term. I now adopt this new terminology to differentiate the two plans. As an aside, the February 25, 1929 Plan appears to have been recorded on March 6, 1929 (as its Registry stamp states), but, for unknown reasons, was assigned a higher page number (862) in Plan Book 4 than was the subsequently recorded February 28, 1929 Plan (stamped April 18, 1929, but assigned page 623).

[Note 38] As noted above, the Manns’ property was sold to Robin and Cavanaugh in August, 2010; Ponder’s property was sold to the Annellos in June, 2015, and the Arnolds’ property was sold to Flaherty and Whelan in August, 2013.

[Note 39] Notably, in addition to the Deeded Rights Plaintiffs themselves and/or their successors, the owners of the other properties whose chains of title trace back to the March 1929 Deed (i.e., lots “A”, “B”, “C”, “D”, “E”, “K”, “L”, and “N” on the February 28, 1929 Plan) would also hold the same rights. Those landowners are not parties to this case.

[Note 40] The Deeded Rights Plaintiffs’ right to use the “ways”, plural, include not only the right to use the full length (but not the full width, as found infra) of Melville Walk from Downer Avenue to the Disputed Beach, but also the small portion of Alice Walk that, as found in Amended Appeals Court Decision 1, 78 Mass. App. Ct. at 754-755, is still owned by the Downer Estate, namely, the seaward one-half side of Alice Walk in the area where that way is adjacent to the Disputed Beach, as shown on Exhibit A. Based upon the topography of the land, as seen in photographs in the trial record, that would appear to give them rights to use the sandy area above the mean high water line, where, in the past, a picnic table and benches once were located. The Deeded Rights Plaintiffs’ right to use that area of Alice Walk is governed by the same considerations with respect to the scope of their rights in Melville Walk, discussed infra.

[Note 41] It should be noted not only that, based on the evidence in the record, it does not appear that the Deeded Rights Plaintiffs ever used the northerly side of Melville Walk adjacent to the Donahue Property, but also, they do not ever appear to specifically argue for or claim such rights.

[Note 42] Indeed, the name, Melville Walk, itself suggests that its use should be limited to foot traffic only. Yet, as discussed in Land Court Decision 1, there was evidence at trial from multiple sources suggesting that Melville Walk had accommodated vehicle traffic (although not by any of the Plaintiffs) for decades. See discussion, supra, n. 78. Moreover, the May 1929 Deed included a right to use the Disputed Beach for “boating” (discussed more fully infra), thus implying that Melville Walk could be used to facilitate that use.

Clearly, the use of Melville Walk has changed over time. Perhaps when originally laid out, it might have accommodated two-lane traffic. At some point in the middle of the Twentieth Century, the practice of neighbors apparently shifted so that only one lane of traffic was used (as a “common driveway”), as substantiated by photos in the record. That use, in turn, apparently dropped off substantially after the Donahues purchased their property (in 1985), and the onlysubsequent vehicle use was occasional use bythe Town and later bythird-parties building the house on the Stimson Property, after which Melville Walk was grassed over.

As noted, supra, the May 1929 Deed is silent as to rights in Melville Walk, so it is of no help in ascertaining whether the grantor of that deed might have intended that it be used for vehicle traffic. The Plaintiffs, for their part, showed no evidence at trial of their use of Melville Walk for anything other than foot traffic and transporting the small boats they would pull or carry to the Disputed Beach. In their pleadings, Plaintiffs do not specifically argue for vehicular rights. Thus, it does not appear, from the testimony of the Plaintiffs, that they actually want or need to use Melville Walk for motorized vehicles. Likewise, the Plaintiffs do not appear to dispute the fact that Melville Walk was fully grassed over in or around 2005 -- only that their access to Melville Walk was blocked by the gate installed at or around that time. As such, because they appear to be content to continue to use Melville Walk for the purposes to which they testified, the court will not disturb that state of affairs.

[Note 43] These appurtenant easement rights are not transferrable, and may be enjoyed only by these parties and their family members in residence at their respective benefitted properties. See Schwartzman v. Schoening, 41 Mass. App. Ct. 220 , 223-224 (1996); Brown v. Ryan, 16 LCR 29 , 33 (Mass. Land Ct. Jan. 14, 2008) (Piper, J.) (“[o]thers may make use of the easement rights only when actively accompanying those residents.”).

[Note 44] As noted, supra, these appurtenant easement rights are not transferrable, and may be enjoyed only by these parties and their family members in residence at their respective benefitted properties.