In this case Dana Johnson, Patricia Jamieson, and Patricia MacDonald, individually and on behalf of the Colonial Park Beach Association, seek, among other relief, declaratory judgment establishing the location and extent of a beach easement on property (Property) at 25 Colonial Road, Webster, MA, [Note 1] owned by defendants Brian Bohenko and Dawn Bohenko. The Property lies on Lake Chargoggagoggmanchauggagoggchaubunagungamaugg (locally known and referred to in this case as Webster Lake). The Colonial Park subdivision (Colonial Park) was laid out in a plan (1924 Plan) created by the Narrows Land Company, dated November 15, 1924. [Note 2] In 1925, the Narrows Land Company conveyed a parcel (original Lot 2) designated on the 1924 Plan as Lot 2" to Emil Fritzsche and Bertha Fritzsche (Fritzsches). The deed (Fritzsche Deed) to the original Lot 2 established that that parcel was subject to an easement (1925 Beach Easement), which allows the owners of Colonial Park lots shown on the 1924 Plan, and their families and guests, to use a beach on that parcel. The Fritzsche Deed also states that the original Lot 2 is subject to a right-of-way (10' right-of-way) at least ten feet wide, to afford access to the 1925 Beach Easement. [Note 3] The Colonial Park Beach Association (Association) is an unincorporated association of Colonial Park residents; the Association has professed over the years an interest in cleaning and maintaining the beach, and protecting rights to use the 1925 Beach Easement and the 10' right-of-way.4 Plaintiffs contend that defendants own a portion of the original Lot 2, and that defendants are interfering with plaintiffs rights to use and enjoy a section of the 1925 Beach Easement on defendants property.
Two prior cases regarding the 1925 Beach Easement have been brought by Colonial Park residents. In the first case, residents brought suit individually and on behalf of the Association to enjoin David Graves and Kimberly Graves (Graves) from interfering with their right to use the 1925 Beach Easement. The Graves owned a portion of the original Lot 2, which had been divided, and owned Lot 3 as depicted on the 1924 Plan (the original Lot 3). The original Lot 3 was improved with a house and not burdened by the 1925 Beach Easement. In that litigation, the Superior Court Department enjoined the Graves from interfering with the beach easement rights. The Appeals Court, in Cheever v. Graves, 32 Mass. App. Ct. 601 (1992) (Cheever), affirmed the judgment in part, finding that plaintiffs in that case had standing individually, and as representative members of the Association, [Note 5] and that the language in the Fritzsche Deed was sufficient to create an easement over the original Lot 2 because, while there was no express easement called out in the individual lot deeds in plaintiffs chains of title, rights and appurtenant easements pass by grant without specific mention. Id. at 606, citing G.L. c. 183 § 15. [Note 6] The Graves sold their property to Richard Manjerovic and Mary Manjerovic.
In 2008, the Manjerovics divided their property, creating two parcels relatively equal in size. Norman Ruskin (Mr. Ruskin) purchased the southern piece (entirely a portion of the original Lot 2) from the Manjerovics, and built a retaining wall at the edge of Webster Lake. In 2009, residents of Colonial Park brought suit in this court seeking to prevent Mr. Ruskin from interfering with the rights of plaintiffs to use the 1925 Beach Easement. [Note 7] After trial, this court (Piper, J.) entered judgment which ordered Mr. Ruskin to remove the retaining wall, and established the extent of the 1925 Beach Easement over Mr. Ruskins lot, a judgment affirmed by the Appeals Court in Barnett v. Ruskin, 83 Mass. App. Ct. 1121 (2013) (Ruskin). That judgment fixed the dimensions of the beach easement, including its reach from the water of Lake Webster landward. The original Lot 2 extended north beyond Mr. Ruskins lot to land then owned by the Manjerovics, and south to land owned by the Kaplows. The plaintiffs in Ruskin elected not to join either the Manjerovics or the Kaplows in that litigation, despite inquiry by this court, evidently because at the time of the Ruskin case, there was no dispute apparent with those adjoining parcel owners. The extent to which the parcels of these neighboring landowners were subject to the 1925 Beach Easement (or if their parcels were subject to the easement) was not expressly adjudicated; the judgment did not run against parties other than those joined in the Ruskin litigation.
Brian Bohenko and Dawn Bohenko (Bohenkos) purchased the remaining Manjerovic parcel in 2013, and this action is brought to determine what portion of the Bohenkos property, if any, is subject to the 1925 Beach Easement, and to enjoin the Bohenkos from interfering with plaintiffs use of the easement to the extent it burdens their parcel.
II. PROCEDURAL POSTURE AND PRIOR LEGAL AND FACTUAL DETERMINATIONS
Plaintiffs filed their complaint on August 1, 2013 in which they seek the following:
1. That the court adjudge and declare that a portion of defendants lot (a portion of land shown as Lot 1 on the plan recorded in Worcester District Registry of Deeds Plan Book 872, as Plan 73) was part of the original Lot 2 on the plan recorded in Plan Book 61, as Plan 31, and is subject to the 1925 Beach Easement.
2. That the court establish the extent of the 1925 Beach Easement over so much of the Bohenkos lot that was within the original Lot 2.
3. That the court permanently enjoin the Bohenkos from interfering with the rights of plaintiffs to enjoy the 1925 Beach Easement.
The Bohenkos filed an Answer and Counterclaim on September 17, 2013, requesting, among other things: declaratory relief that the easement was lost to plaintiffs by merger, an order declaring the scope and location of the easement on defendants property, a declaration that plaintiffs are overburdening the easement, a declaration that plaintiffs use constitutes a nuisance and a trespass, a declaration that defendants have the right to change the location of the easement, injunctive relief requiring plaintiffs to establish rules for beach use, an order prohibiting plaintiffs from perpetuating a nuisance or trespassing on defendants property, and a request for damages and attorneys fees. Plaintiffs filed a reply to defendants counterclaim on October 7, 2013. From September 18, 2013 through February 28, 2014, the parties participated in mediation and attempted to settle the dispute. On February 28, 2014, the parties filed a joint written status report advising that the dispute had not been resolved through alternative means.
On March 31, 2014, defendants filed a motion for summary judgment requesting judgment enter on the following counts:
1. That the existence and scope of the easement was defined by the Land Court in Ruskin, and therefore did not need to be defined in the present action.
2. That the 1925 Beach Easement was extinguished as a matter of law through the merger doctrine. [Note 8]
Plaintiffs filed an opposition to defendants motion for summary judgment on April 29, 2014. On May 15, 2014, defendants filed a reply to plaintiffs opposition. On May 27, 2014, the court (Piper, J.), after a hearing, denied defendants motion for summary judgment, issuing the ruling from the bench as reflected in the courts docket for this case. [Note 9]
On September 9, 2015, the court held the first of two pre-trial conferences. In this first conference the court ordered plaintiffs to send copies of the complaint, answer and counterclaim, and the courts docket (with copy to opposing counsel and the court) to the owner(s) of each lot benefited by the 1925 Beach Easement, so these lot owners might become aware of (and have an opportunity to participate in) this litigation; these filings were to include an instruction that the court had directed that the notice be sent, and that any easement holder who wished to intervene should, if they elected, file an appropriate motion by October 31, 2015. A copy of the letter sent to Colonial Park residents in accordance with the courts order was received by the court on September 23, 2015. No parties given notice have intervened in this action.
On November 5, 2015, defendants filed a motion in limine to exclude the testimony of plaintiffs expert witness Norman G. Hill, which was opposed by plaintiffs in a filing made on November 9, 2015. On November 12, 2015, the court held a second pretrial conference and a hearing on the motion in limine. At the hearing, the court, concluding both that the introduction of an expert a month before trial was unfairly prejudicial, and that Mr. Hills testimony was unlikely to be helpful in deciding issues genuinely in contest in this case, allowed defendants motion to exclude the testimony of this plaintiffs expert. The court did not allow a requested separate hearing on the issue of plaintiff Associations standing, but preserved that issue for trial.
The court held the evidential portion of the trial on December 14 and 15, 2015. The court heard testimony from Patricia MacDonald, Patricia Cheever, Dawn Bohenko, Brian Bohenko, Richard Bohenko, Patrick Riley, and Jill Sherman. Forty-four exhibits, numbered 1 through 43, and 58, some in subparts, and all as reflected in the transcripts, were admitted into evidence. A court reporter was sworn and present at all times to create a transcript of the testimony and proceedings. The trial was suspended on December 15, 2016; counsel were instructed to await the receipt of the trial transcript, and, after receiving the transcript, to file and serve post-trial legal memoranda and proposed findings of fact and rulings of law. In the presence of counsel and several representatives of the parties, I took a view of the subject property on January 27, 2016.
On February 26, 2016, defendants filed their post-trial memoranda of law, and proposed findings of fact and rulings of law. On February 29, 2016, plaintiffs filed their post-trial memorandum of law, and proposed findings of fact and rulings of law. On March 22, 2016, trial resumed for closing arguments. Upon receipt of the transcript of the closing arguments, the case was taken under advisement. I now decide the case.
III. FINDINGS OF FACT
Based on all the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise properly before me and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I make the following factual findings:
1. The Colonial Park subdivision was laid out in a plan entitled Plan of Lots at Colonial Park Owned by The Narrows Land Company, Webster, Mass. by J.R. Kleindienst, dated November 15, 1924, and recorded in the Worcester District Registry of Deeds (Registry) in Plan Book 61, as Plan 31 on June 25, 1930.
2. The Narrows Land Company conveyed a parcel designated as Lot 2 on the 1924 Plan in the Fritzsche Deed, recorded with the Registry on June 30, 1925 in Book 2374, Page 194, which created the 1925 Beach Easement and the 10' right-of-way with the following language: The beach on said lot and a right of way at least 10 feet in width to same shall be forever kept open for use of owners of land at said Colonial Park and their families and guests.
3. Lot 2 described in the Fritzsche Deed is said to run about 99 feet by said lake between two iron pipes. The iron pipes are marked on the 1924 Plan.
4. The Fritzsches operated a restaurant on Lot 2 named the Dug Out. The restaurant was located on what is now the Kaplows property. While the restaurant was open, Colonial Park residents had free access to the beach on Lot 2, and non-residents paid for use of the beach. No one attempted to prohibit Colonial Park residents or paying members of the public from using the beach on the original Lot 2 while the Dug Out was in operation.
5. Plaintiffs submitted into evidence a picture from 1943 and postcards depicting the beach over the original Lot 2 during the 1940s. These postcards, though not truly photographic likenesses, are an accurate depiction of the kinds of activities that took place on the beach, the locations in use for those activities, and specifically show that the beach on the original Lot 2 was used for sitting, bathing, boating, and general lakeside recreation.
6. The Dug Out closed in the 1960s and the building burned down in the early 1970s.
7. On April 29, 1964, the Fritzsches conveyed the original Lot 2 along with a number of other lots in the subdivision to Otto Berg (Berg) and Paul H. Hornbeck (Hornbeck) in a deed (Berg Hornbeck Deed) recorded May 1, 1964 with the Registry in Book 4461, Page 84. The Berg Hornbeck Deed recited that Lot 2 was subject to the 1925 Beach Easement and the 10' right-of-way. Additionally, the deed described the northwesterly corner of the lot as being marked by an iron pipe, and frontage on Webster Lake which totaled ninety-nine feet.
8. On August 25, 1964, Berg and Hornbeck conveyed Lot 2 and other lots to New-Web Realty, Inc., in a deed (New-Web Realty Deed) recorded with the Registry on September 4, 1964 in Book 4497, Page 573, which stated that the lot is subject to the 1925 Beach Easement and the 10' right-of-way.
9. In 1967, New-Web Realty, Inc. merged into Webster Academy, Inc.; the Articles of Merger were recorded with the Registry in Book 4748, Page 540.
10. On June 30, 1972, Webster Academy, Inc. conveyed all land acquired by New-Web Realty, Inc., along with additional land acquired from other lot owners, to Colonial Park Realty, Inc. in a deed (Colonial Park Realty Deed) recorded with the Registry in Book 5236, Page 465 on July 6, 1972.
11. On March 21, 1974, Colonial Park Realty, Inc. conveyed the original Lot 2 to Webster Academy Corporation, subject to the 1925 Beach Easement and the 10' right-of-way, in a deed (Webster Academy Corporation Deed) recorded with the Registry in Book 5456, Page 211.
12. The Fritzsche Deed, the Berg Hornbeck Deed, the New-Web Realty Deed, the Colonial Park Realty Deed, and the Webster Academy Corporation Deed all contain a notation of lake frontage described as ninety-nine feet in length along the shore of Webster Lake. The deeds also each note that [Lot 2] . . . is subject to beach rights and ten foot right of way thereto.
13. During the 1970's, William Zenon, president of the Webster Academy Corporation when the Brightwood School for Troubled Boys was located on the Webster Academy land, established the 10' right-of-way on the northern boundary of the Webster Academy Lot, defined below. The 10' right-of-way was bounded by a stone wall on the northernmost boundary of the property and a chain link fence south of the stone wall and roughly parallel to it.
14. On May 18, 1979, Webster Academy Corporation recorded a plan of land (1979 Plan) with the Registry in Plan Book 463, as Plan 67, which divided the original Lot 2, yielding a Lot 10 and leaving the remaining land (Webster Academy Lot) labeled on that plan as an abutted with the legend Webster Academy. The 1979 Plan showed the Webster Academy Lot having 90.0 feet of frontage on the lake. The 1979 Plan made no reference to beach rights or a right-of-way over the Webster Academy Lot, but the plan does show a looping line a few feet from the northern (on this plan, more northeastern) boundary of the lot adjoining a lot marked with the name Robert Waskiewicz to the north and east. I do not give the placement of these symbols on this plan any great weight in deciding the location of the stone wall which formed the northern side of the 10' right-of-way in its former, northern, position. This is because the 1979 Plan does not really concern itself with this particular parcel; unlike the new Lot 10, the Webster Academy Lot it is not one of the surveyed, fully-dimensioned subdivided lots that were established in this definitive plan of the Indian Lane Development. The Webster Academy lot shows merely as an abutter lot to those being subdivided. I conclude that the looped symbols, suggestive of the rock or stone wall, were placed without precision or measurement relative to the undepicted northern lot line of the Webster Academy parcel sketched out on the 1979 Plan. I find, rather, based on the testimony of witnesses I credit, such as Patricia Cheever, that the stone wall which formed the northern line of the access route from Colonial Road to the beach during the earlier period was positioned along, on, or very close to, the northern line of the Webster Academy parcel. That is to say, the stone wall stood at or near the northern limit of the parcel originally impressed with the 1925 Beach Easement.
15. Residents of Colonial Park would travel down the 10' right-of-way toward Webster Lake and exit onto the beach. Initially, there were no stairs at the end of the way--the way simply ended and opened up at the beach. Residents would use the beach area extending southerly from the area at the water at the end of the right of way to the southern boundary of the original Lot 2, along the shore of Webster Lake. Residents also would sit in grassy areas along the water just to the south of the water side terminus of the right of way when it was located between the stone wall and the fence. Children would play in the rocky area at the end of the 10' right-of-way at this northern boundary of the beach easement.
16. There is a tree clearly shown in the pictures entered into evidence within the 10' right-of- way when it was bounded by a stone wall to the north and a chain link fence a bit to the south. At trial this tree was referred to in testimony as Tree A. This tree is the same tree seen in later photographs close to the current location of the Bohenkos house. Tree A shows where the right of way was when it was located on the north end of the beach, and where the stone wall was in relation to the Bohenkos house prior to later renovations.
17. On April 30, 1980, David J. Graves and Richard A. Donohue purchased from Robert J. Waskiewicz the original Lot 3, which had frontage on Webster Lake and benefited from, and was not burdened by, the 1925 Beach Easement and the 10' right-of-way, as shown by a deed (Graves Donohue Deed) recorded with the Registry in Book 7218, Page 135.
18. Colonial Park residents continued to use the full length of the beach from the location near where the right of way reached the beach at the north end of Original lot 2 to the south or southwestern boundary of the original Lot 2 after the purchase by David Graves and Richard Donohue.
19. Webster Academy Corporation conveyed the Webster Academy Lot to David J. Graves and Kimberly E. Graves, subject to a 10 foot drain easement for the benefit of Webster Academy Corporation in a deed dated March 18, 1985 (Graves Deed) recorded with the Registry on May 16, 1985 in Book 8708, Page 312. The Graves Deed states that the Webster Academy Lot is a portion of the original Lot 2. The Webster Academy Lot is described in the deed as having ninety feet of frontage along Webster Lake, being bounded to the north by Lot #3 now or formerly of Robert Wakiewicz, and being subject to all beach rights of record affecting above premises.
20. David Graves graded the Webster Academy Lot and the original Lot 3, and moved the 10' right-of-way from the northern to the southern end of the Webster Academy Lot, where the 10' right-of-way currently runs, roughly perpendicular to the water, alongside the Kaplow property. Around this time the Graves manicured the lawn almost to the waters edge, leaving a few feet of sand near the water. When the Graves purchased the Webster Academy Lot in 1985, they attempted to keep residents with easement rights off of the 1925 Beach Easement and from using the 10' right-of-way. [Note 10]
21. The Graves conveyed the Webster Academy Lot and Lot 3 to Richard M. Manjerovic and Mary K. Manjerovic (Manjerovics), in a deed (Manjerovic Deed) recorded with the Registry in Book 14445, Page 12 on August 13, 1992. The Manjerovic Deed states that the property is subject to all beach rights of record affecting above premises, and subject to a 10 foot drain easement for the benefit of Webster Academy Corporation.
22. The Manjerovics divided their property in 2008. The division plan (2008 Plan), endorsed as approval not required by the Planning Board, was recorded on December 30, 2008 with the Registry in Plan Book 872, as Plan 73. The Plan created a new Lot 1 and Lot 2 out of the original Lot 3 and the Webster Academy Lot. The 2008 Plan shows Lot 2, south of Lot 1, as having 65.09 feet of frontage on Webster Lake. The 2008 Plan shows Lot 1 having 51.01 feet of frontage on Webster Lake. Lot 1 contains two parcels of land: Parcel 2 (the southern portion of Lot 1) and Parcel 3 (the northern portion of Lot 1). Parcel 3 is the original Lot 3, and contains Existing House # 25. This house is the same house currently owned by the Bohenkos, which was renovated and extended southward after their purchase.
23. The 2008 Plan shows an iron rod marking the northwesterly corner of Parcel 2, and an iron pipe marking the northeasterly corner of Parcel 2. Parcel 2 has 24.80 feet of frontage on Webster Lake. Parcel 3 has 26.21 feet of frontage on Webster Lake.
24. During the years that the Manjerovics owned the land, plaintiffs and other Colonial Park residents occasionally used the beach (north to south) from where the right of way entered the beach on the southern end of the easement up to approximately where the stairs on the Manjerovic property (now the Bohenko property) are located. The stairs are in the same location now as they were when the Manjerovics owned the property. The 10' right-of- way, both before and after it was moved by the Graves in the 1980s to the southern boundary of Lot 2 bordering the Kaplow property, ended and opened out onto a beach. Although the evidence conflicts on this point, I am satisfied, and find, that the terminus of the 10' right-of-way before it was relocated by Mr. Graves, was located at the water side about where the stairs on the Manjerovic/Bohenko land are located. The route down the right-of-way, after passing between the stone wall and the fence, deposited beach goers on an area, forming and treated as part of the beach, in close proximity to where the stairs are today. The passage down the right-of-way took pedestrians quite close to the southern facade of the house as it existed prior to the Bohenkos expansion.
25. Colonial Park residents, including the Manjerovics, occasionally would get together to clean up the 1925 Beach Easement area from the relocated 10' right-of-way northward to approximately where the stairs are, by raking debris off of the beach. At one point Colonial Park residents dumped a truck-load of sand onto the shore of Webster Lake at Lot 2 and spread it over this length of the beach easement.
26. Norman Ruskin purchased Lot 2 as designated on the 2008 Plan from the Manjerovics at the end of 2008, and built a retaining wall at the edge of Webster Lake, which interfered with Colonial Park residents use of the 1925 Beach Easement. Prior to Mr. Ruskins ownership of the property, the land comprising Lot 2, as designated by the 2008 Plan, had been unimproved since the Dug Out burned down in the 1970s, except for fences marking the 10' right-of-way on the southern end of the property.
27. I credit the testimony of Patricia MacDonald that the plaintiffs in Ruskin did not also file suit against the Manjerovics to determine the location of the 1925 Beach Easement over the Manjerovic property because the Manjerovics had not objected to the plaintiffs use of the beach easement extending all the way up to the stairs.
28. The Bohenkos purchased Lot 1 as set out on the 2008 Plan from the Manjerovics in 2013. The Bohenkos had considered purchasing the entire Manjerovic property before it was subdivided in 2006, but decided not to purchase the property because it was subject to the 1925 Beach Easement, and the 10' right-of-way.
29. The Bohenkos believed that the 1925 Beach Easement only burdened Lot 2 as designated on the 2008 Plan, and did not burden Lot 1 as designated on the 2008 Plan.
30. When the Bohenkos purchased their property, the house was located entirely on the original Lot 3. The Bohenkos constructed an addition on the southern side of the house, which measures fifteen feet in width (north to south), and thirty feet in length (east to west). When constructing the addition, the Bohenkos found remnants of the stone wall which marked the northern line of the 10' right-of-way, before it was moved to the southern end of the property.
31. On the lakefront of the northern portion of the Bohenko lot, a concrete retaining wall runs north and south along Webster Lake. This wall is marked as Retaining Wall on the 2008 Plan. The retaining wall stops four feet before the iron pipe marking the boundary between Parcel 2 and Parcel 3. The iron pipe is no longer on the property.
32. There were no trespassing signs located around the wooden stairs at the lakefront when the Bohenkos purchased their property from the Manjerovics. One of the no trespassing signs was moved by the Bohenkos after purchase. The no trespassing signs were not meant to establish the location or extent of the 1925 Beach Easement by the Manjerovics, but only to warn against use of the stairs themselves.
33. Through the maintenance of no trespassing signs, reports to law enforcement complaining of trespass, and behaving in a confrontational manner when encountering users of the easement, the Bohenkos have interfered with Colonial Park residents use of the beach area immediately adjacent to and south of the wooden stairs.
34. The Bohenkos have a dock, which is in front of and attached entirely to Parcel 3 as designated by the 2008 Plan, which also is the original Lot 3.
35. The Bohenkos occasionally have guests come to their property by boat or jet-ski. These guests have docked their boats and jet-skis on the Bohenkos dock, or have parked them on the beach.
36. Plaintiff Dana Johnson lives at 23 Black Point Road, Webster, within Colonial Park.
37. Plaintiff Patricia Jamieson lives at 2 Bathhouse Road, Webster, within Colonial Park.
38. Plaintiff Patricia MacDonald lives at 28 Colonial Road, Webster, within Colonial Park. One reason Patricia MacDonald and her late husband purchased the property in July, 2004 was because of access to the beach.
39. Patrick Riley lives at 31 Colonial Road, Webster, within Colonial Park.
40. Patricia Cheever lives at 13 South Shore Road in Thompson, Connecticut, and has lived there since 1970. This property is within Colonial Park.
41. The Association is made up of Colonial Park residents whose lots claim rights to use and enjoy the 1925 Beach Easement and the 10' right-of-way.
42. Patricia Cheever was a former president of the Association, Joe Barnett was the president of the Association in 2008, and Dana Johnson is the current president.
43. Michael MacDonald, prior to his death, was the vice president of the Association. He was elected in 2008 by the members of the Association, estimated by Patricia MacDonald to be 30 members at that time.
44. Patricia MacDonald is the former secretary of the Association, and the current secretary is Christine Joiner.
45. Patricia Jamieson is the former treasurer of the Association, and Patricia MacDonald is the current treasurer.
46. While officers of the Association, including those designated as such above, have been elected at a meeting by members in the past, they were not always formally elected by a majority of the members.
47. At trial Patricia MacDonald, when asked to name people who are members of the Association, listed Pat Cheever, Chris, Pat Jamieson, Chris, Melissa who moved, Jennifer Bradford, Dana, everybody as members of the Association.
48. Some Association members went to other members houses to inform members about the current lawsuit, and have them sign a document indicating their support for the lawsuit. This document was not introduced into evidence, nor was a list of members who signed it.
49. At one time residents of Colonial Park had to sign up to become an Association member; these member records were kept by Cynthia Mercer and Dennis Mercer who since have moved out of Colonial Park. If someone moved into Colonial Park today, acquiring a lot benefited by the 1925 Beach Easement, and wanted to be a member of the Association, applicants would not need to fill out an application, but could simply submit their name and address.
50. No evidence was introduced regarding who collects names and addresses, who retains Association records or a list of current members, or where this information is stored, and I find that there currently is no formal system agreed upon by Association members or established by Association officers for collecting and maintaining in any organized or accurate way a list of Association members. No list of Association members was entered into evidence except for the names of six members offered by Patricia MacDonald as part of her testimony.
51. Norman Ruskin, defendant in a prior lawsuit whose property is burdened by the easement, was not allowed to join the Association when he requested to do so.
52. Patricia MacDonald joined the Association to protect her easement rights in the lawsuit against Mr. Ruskin.
53. I credit Patricia Cheevers testimony that the Association is a loose-knit organization that would get together, word of mouth to discuss matters when there was a perceived challenge to the beach rights. If no one was challenging the beach rights, the Association did not hold any meetings.
54. Patrick Riley is a resident of Colonial Park whose lot benefits from the easement, but is not a member of the Association. Patrick Riley never received notice of meetings, was never asked if he supported this litigation, and has not received any updates regarding the litigation. He received one notice from a law firm regarding the case (presumably the notice the court in this case ordered plaintiffs to send to other Colonial Park residents with lots holding the benefit of the 1925 Beach Easement). He received some pamphlets regarding the Association which included information about yard sales five or six years ago.
55. Association members have met occasionally to discuss matters affecting members rights to property within Colonial Park. There is some evidence that members in the past have been notified about the infrequent Association meetings, by letters mailed, or delivered to members doors.
56. There are no regular Association meetings. The Association meetings, when held, do not have formal rules or protocol, do not have a quorum requirement, and do not involve formal decision making.
57. The last Association meeting occurred in the spring of 2014 at Patricia Jamiesons house, and was attended by thirty-five to forty people.
58. Notice of Association meetings is not always or consistently given to members.
59. The Association does not have by-laws, rules and regulations, a constitution, or another formal governing documents.
60. The Association has not established rules regarding use of the 1925 Beach Easement.
61. The Association has no insurance.
62. The Association does not file an annual report, or send an annual notice to members.
63. The Association does not file tax returns or report any money received as income.
64. The Association once kept minutes, but there are no Association minutes from the most recent meeting in 2014, and minutes of meetings are not always kept.
65. The Association maintains a bank account at Commerce Bank in Webster.
66. Association members can make payments, referred to at times in testimony as dues, which the Association collects approximately on a yearly basis by sending out reminders. Association dues are not required in a specific amount, and members can contribute what they wish to contribute. There is no requirement that a resident pay dues to become or remain a member; members can choose not to pay dues and retain membership.
67. The Association raises funds through yard sales and can drives. The yard sales were held in Patricia MacDonalds driveway.
68. The Association held a fund-raising event as part of the Webster Downtown Days, where it sold used items donated by people in the neighborhood. No list of members who attended, participated in, or contributed to any fund-raising event, can drive, or yard sale was introduced into evidence.
69. Between the dues and the fund-raising events, the Association raised around $500 a year every year since 2008.
70. Plaintiffs introduced no evidence of how much money each member contributed, or which members contributed to the Association.
71. Association members discussed filing suit against the Bohenkos for not recognizing the beach easement rights. This initiative was communicated by word of mouth to about eight to ten other members. Following this outreach, the most recent Association meeting in the Spring of 2014 was held with thirty-five to forty members.
72. I do not find that Association members voted to bring a lawsuit or agreed to bring a lawsuit against the Bohenkos at this meeting. Rather, I find they held a meeting where the topic of bringing a lawsuit was discussed. I do not find that any formal vote or action of the Association authorized it to initiate and pursue the litigation now pending before the court.
Plaintiffs Dana Johnson, Patricia Jamieson, and Patricia MacDonald bring this action individually and on behalf of the Association. Plaintiffs individual standing as residents of Colonial Park was unchallenged by defendants, and I find that they have standing in that capacity. Plaintiffs each live within Colonial Park and own in fee lots that are benefited by the easement over the original Lot 2 that is the subject of this case. Plaintiffs, as owners of these dominant estates, have established adequately that they are injured by being excluded from a portion of the beach easement. This court, if it finds the easement burdens the Bohenkos property, may enforce the easement rights the plaintiffs individually hold as appurtenant to their lots. The section of the original beach easement in contest in this case is nearly 25 feet in length. The overall beach easement is, at most, the 99 feet of lakefront identified in the Fritzsche Deed. If these plaintiffs can establish by a preponderance of the evidence that the disputed 25 feet, lying on a portion of the land the defendants now own, is burdened with the 1925 Beach Easement, and that the defendants have interfered with plaintiffs individual use of that easement, there is sufficient injury to give them standing as individual lot owners.
Plaintiffs also assert standing as representative members of the Association. Colonial Park residents brought suit individually and as representatives of the Association on two prior occasions, see Cheever, 32 Mass. App. Ct. 601 and Ruskin, 83 Mass. App. Ct. 1121 . The defendant in Ruskin did not challenge plaintiffs standing as Association representatives. [Note 11] The defendants in Cheever did challenge plaintiffs associational standing, and the court found that, as representatives of the larger group, they had standing. Given the many years since that determination in Cheever, the testimony that since that time several past Association members moved out of Colonial Park, the testimony I credit about the infrequency and informality of the more recent doings of the Association, and the fresh evidence and arguments presented by defendants to challenge associational standing here, which were not raised in Cheever, I do not give any weight in this case to the conclusion that the plaintiffs in Cheever had standing to represent the Association. Rather, I consider anew defendants challenge to plaintiffs standing as Association representatives.
The Association is unincorporated, and [a]n unincorporated association cannot be party to litigation. Save the Bay, Inc. v. Dept of Pub. Utilities, 366 Mass. 667 , 675 (1975). However, litigation may be brought by representative individual members of the an association who will fairly and adequately protect the interests of the association and its members. Mass. R. Civ. P. 23.2; Cheever, 32 Mass. App. Ct. at 604.
Concerned that all other Colonial Park lots benefited by this easement might have an interest in the outcome of this case, a determination by this court which would be at least persuasive in any further adjudication of this question, the court directed the provision of notice. Plaintiffs, who had not done so of their own initiative, were required by the court to serve notice of this case on all benefited lot owners, giving those owners an opportunity to join the case to protect their interests. Plaintiffs assert that the Association is composed of many of the benefited lot owners in Colonial Park, thirty-five to forty of whom attended a meeting related to this litigation. Defendants assert that the Association members not party to this litigation directly cannot be bound by it, because the group is too informally constituted and conducted, and none of the members chose to be so bound. Defendants point to the loose organization of the group, a lack of organizational documents, a lack of a voting procedures, a lack of consistent record keeping, a lack of required dues, a lack of tax filings, a lack of formal meeting notice, a lack of evidence that any of the other members agreed to be bound by litigation, and the fact that plaintiffs have not apprised the members of the progress of this litigation.
I agree with these contentions, and find that the current Association, as of the bringing of this case at least, is not in any real sense a formal group. Patricia Cheever, the former president of the Association, aptly characterized the Association as a loose-knit organization. There is evidence that the Association did, in the past, keep a list of members names and addresses, but a current list was not entered into evidence. Patricia MacDonald testified that she had a list of Association members, but when asked, identified only six members by name, most of whom were officers or former officers of the Association at the time of trial. Despite plaintiffs claims of several dozen Association members, they failed to name the members in testimony or produce a member list at trial. I have no way to determine which residents of Colonial Park not specifically named by plaintiffs might be members. Furthermore, the fact that a person asked to be a member at one point in the past (to support the Ruskin litigation, for example) does not show that they consider themselves to be a member of this voluntary organization now, nor does it show that they support this litigation.
While I credit the evidence that some Association members pay dues, some of which are put toward litigation, I also find that members can contribute as little money as they want, or no money at all, to the Association. There is no requirement that a benefited lot owner pay dues to be or remain a member of the Association. There is no record of which members contributed money to the Association, the purpose for which they contributed money, or the amounts contributed. While the Association has held can drives, yard sales, and other fund-raising events, there is no evidence of which members donated to or participated in these events, or, more importantly, contributed to the payment of legal fees in this action.
After the last member meeting held to discuss whether to file the present suit, attended by a majority of Association members, some members went door to door in some manner of effort to obtain signatures of approval to file the present action. Neither plaintiffs nor other Association officers gave updates on the progress of litigation to the members who attended this meeting. The list of signatures obtained was not entered into evidence, nor was the number of signatures furnished, nor any evidence of support for this litigation by specific Colonial Park residents. I do not find that those present at that meeting formally decided as a group to bring the present suit, nor do I find that they requested to be or were apprised of its progress. I find, instead, that there has not been any formal vote or other action taken by and on behalf of the Association to initiate and pursue this latest round of litigation.
Members of unincorporated associations can agree to be bound by specific actions of an association as defined by the associations by-laws, rules and regulations, or constitution, which is in the nature of a contract between the association and its members. See, e.g., Snay v. Lovely, 276 Mass. 159 , 163 (1931) (members joining an association agree to be bound by its constitution and governing rules). Generally, the bylaws, rules and regulations, or constitution of the association may grant authority to, and define the authority of, the representatives of an unincorporated association, who then can act on behalf of other members. Mass. Employers Ins. Exch. v. Propac-Mass. Inc., 420 Mass. 39 , 41-42 (1995) (It is hardly a surprise that we rule that an organization may act through its designated representatives.). If the Association makes a decision outside the scope of its bylaws or organizing documents, it will not bind the members. See, e.g., Byam v. Bickford, 140 Mass. 31 , 34 (1885) (decision not in accordance with bylaws did not bind members of unincorporated association). The Association does not have bylaws, rules and regulations, or a constitution. There is also no evidence I credit that Association members took a vote at a meeting or in any way selected plaintiffs to represent their interests in the present action.
Mere membership in a voluntary association does not make all the members liable for acts of their associates done without their knowledge or approval, and liability is not to be inferred from mere membership. Sweetman v. Barrows, 263 Mass. 349 , 355 (1928) (citing cases). [O]nly the members of an association organized for recreational purposes who participated in or authorized or ratified the action of those acting as their agents are entitled to enjoy the benefits or are subjected to liability for the acts of their agents. Barry v. Covich, 332 Mass. 338 , 344 (1955) (citing cases). Plaintiffs have not established what the requirements for membership in the Association are, what the benefits of membership are, who the members of the Association are, which of those members supported this litigation through donation or vote, how the current officers of the Association were selected, that those officers selected plaintiffs to represent the Association, or that anyone in the Association, aside from plaintiffs and Patricia Cheever, decided to participate in this litigation in any meaningful way. Plaintiffs have not established member approval to represent the Association in litigation either through written agreement, vote, a constitution, rules and regulations, bylaws, or any other organizational document. Plaintiffs did not provide the members with any reports or information regarding this litigation after it began. For these reasons I do not find that plaintiffs can be said to fairly and adequately represent the interests of Association members, nor do I find that members of the Association, by virtue of being members, can be bound or benefited by the judgment of the court in this case.
Another factor cutting against plaintiffs representation of the Association is that the number of easement holders are not so numerous that joinder of all members is impracticable. Mass. R. Civ. P. 23(a). The easement rights at issue in this case are conferred on all Colonial Park landowners individually by the Fritzsche Deed. [Note 12] Plaintiffs in this litigation made no claim that they represented the interests of all Colonial Park residents with easement rights, but, following an express order of the court requiring it, did inform all of the easement holders of this litigation. This order issued with the intention of inviting a request for intervention by any party with easement rights who wished to be heard in this action, and the court could have accommodated all of these parties given the narrow issue present in the casethe scope of an express easement derived from the deed of the original burdened parcel.
A finding that an unincorporated association has standing, if supported by the facts, falls within discretion of the trial judge. Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc., 420 Mass. at 44. Respectful of the different outcome at an earlier time reached in Cheever, I find plaintiffs did not show that they were chosen to represent the Association in this litigation by a majority of the members, because the Association and its membership are too undefined, and because the number of parties that could be joined in this case is not too numerous. Plaintiffs have no standing as representatives of the Association.
II. Existence, location, and scope of the 1925 Beach Easement.
Plaintiffs, as among the landowners benefiting from the 1925 Beach Easement, have the burden of proving the existence, nature, and extent of the easement. Martin v. Simmons Properties, LLC, 467 Mass. 1 , 10 (2014). The Appeals Court confirmed that there is,
[A]n easement appurtenant to the lots in the Colonial Park subdivision shown on the plan recorded in the Worcester County registry of deeds in Plan Book 61, Plan 31, except for and excluding those lots held at one time in common ownership with Lot 2 by New-Web Realty, Inc., and its successors in title,[ [Note 13] ] to enjoy the beach area on Lot 2 shown on the above plan and a reasonable and safe access over that portion of Lot 2 owned by the defendants, the location of which is to be defined by the defendants.
Cheever, 32 Mass. App. Ct. at 610-611. Plaintiffs, to meet their burden of showing the existence of the easement on the Bohenko property, introduced into evidence photographs depicting, and testimony describing, a stone or rock wall, constructed by William Zenon, that I find existed at or very close to the northern boundary of the original Lot 2 and was the northern limit of the 10' right-of-way when the Graves purchased the property. The plaintiffs also introduced photographs showing a tree, identified at trial as Tree A, growing in the former right of way between the rock wall and the fence parallel to and south of that wall. The Manjerovic Deed indicates that Parcel 2 is a portion of Lot #2 recorded with the Registry in Plan Book, 61, Plan 31 or the 1924 Plan. The Bohenkos house originally was entirely on Lot 3 as designated by the 1924 Plan. When the Manjerovics subdivided the property in 2008, a portion of land (Parcel 2 as designated on the 2008 Plan) was added to Lot 3, which, when combined, became Lot 1 on the newly configured plan. The fact that Parcel 2 was part of the original Lot 2 is further established by the fact that the Bohenkos discovered remnants of the rock wall marking the 10' right-of-way when they were constructing their addition, which demonstrates that part of the Bohenkos house addition sits very near, and most likely on, the original Lot 2. Finally, Parcel 3 (as designated by the 2008 Plan) was the original Lot 3 as designated by the 1924 Plan and shown on the 1979 Plan. Land south of Lot 3 was the original Lot 2 on the 1924 Plan, and the Webster Academy Lot on the 1979 Plan. The Graves Deed states that the Webster Academy Lot is a portion of the original Lot 2. Parcel 2, which is immediately south of Parcel 3, is a portion of the Webster Academy Lot, and therefore, a portion of the original Lot 2. Plaintiffs also testified at length to the location of the beach, which many of them have been using for years, and I credit generally this testimony. I find that the portion of the Bohenkos lot identified as Parcel 2 on the 2008 Plan is part of the original Lot 2 and is subject to the 1925 Beach Easement.
Plaintiffs, as the parties asserting their easement rights, also have the burden of proving the dimensional limits of the easement which they ask the court to fix and enforce. Martin v. Simmons Properties, LLC, 467 Mass. at 10. While the Fritzsche Deed firmly establishes the existence of the 1925 Beach Easement, neither the Fritzsche Deed nor the 1924 Plan defined the beach area that plaintiffs and other Colonial Park residents enjoy rights to use. Therefore, the court is authorized and obliged to determine the location and extent on the ground of the 1925 Beach Easement. See Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 80 (2004); Wood v. Wilson, 260 Mass. 412 , 414 (1927). Plaintiffs put forward sufficient evidence which I credit demonstrating that historically the beach area extended into the Bohenkos Lot 1 up to approximately where the stairs are now located. I find that Colonial Park residents would travel down the 10' right-of-way between the rock wall and the fence on the northern boundary of the Webster Academy Lot, and exit onto the beach. The residents also used the beach up to the southern boundary when the Graves owned only Lot 3 as shown on the 1924 Plan. Finally, I find that when the Manjerovics owned the land currently belonging to the Bohenkos, they allowed beach use up to where the wooden stairs are located. Those stairs have not changed location. The retaining wall shown on the 2008 Plan now ends at a wooden post at the northern end of the stairs, approximately four feet from the southern boundary of the original Lot 3, which is the northern boundary of the original Lot 2. This long consistent history of use is adequate for me to conclude that the original reach of the beach easement, from its inception in earlier years, was intended to be, and in fact was, all the way to the point where the wooden stairs on the Bohenko property are. Plaintiffs have met their burden of showing that the beach on the Bohenkos property extends northward to the southern edge of the stairs, and that a portion of the Bohenkos property, the full distance from the stairs southward to the Ruskin lot line, is subject to the 1925 Beach Easement. The Fritzsche Deed states that the Fritzsche parcel runs for ninety-nine feet along Webster Lake, I find that, while the beach easement may or may not extend along the full length of the original Lot 2 abutting the lake, it does extend from where the 10' right-of way currently is located to where the 10' right-of-way once stood on the northern end of the original Lot 2 and where the stairs now are on the Bohenko Lot.
I further find that the portion of the Bohenkos property designated by the 2008 Plan as Parcel 2 was part of the original Lot 2 and that the portion of Parcel 2 running along Webster Lake is subject to the 1925 Beach Easement. Because plaintiffs have an express easement to use the portion of the Bohenkos property covered by the 1925 Beach Easement, defendants counterclaims of trespass and nuisance do not lie here for activity consistent with beach use such as sitting, bathing, sunbathing, launching boats, fishing, and other typical recreational beach use within the easement area.
The evidence is less robust about the landward width of the 1925 Beach Easement on the Bohenkos property. But I am convinced that the easement as originally cast, contemplated that in this area there would be active use of a strip of land sufficiently ample to accommodate a varied range of typical beach activities by a sizeable number of lot owners, their guests, and others paying or entitled to use the beach. While the postcards in evidence are stylized, I take from them some instruction about the kinds and extent of uses that were made in the 1940's, and I infer that those activities were consistent with the earlier uses and the original intent of the parties to the creative document. Based on the range of waterfront activities within the scope of the easement, and the number of people entitled to carry out those activities, I find that a swath of land, twenty feet in width off the lakeside property line, was at a minimum what was the original beach, and what was intended to be burdened by the easement at all times since its establishment. I therefore find that the easement for beach purposes which burdens the Bohenkos land runs south along the waters edge from the edge of the wooden stairs on the north to the Ruskin property line, and extends landward twenty feet from the Bohenkos waterfront property line.
Defendants request that if the court finds that the defendants land is subject to the 1925 Beach Easement, the easement be relocated entirely on Mr. Ruskins property because the portion of the beach on their property is de minimus. Defendants, as the parties burdened by the 1925 Beach Easement, can, either by agreement with the easement holders, or by judicially-obtained permission, make reasonable changes in the location or dimensions of an easement . . . if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 91 (2004), citing Restatement (Third) of Property (Servitudes) § 4.8(3) (2000).
There are several problems with this request. First, the easement benefits quite a few lot owners in Colonial Park. The counterclaim seeking relocation would operate only as to those individual plaintiffs who have brought this action. I do not see the wisdom, or even the possibility, of ordering involuntarily the reduction of a beach easement as to only a handful of the many more lot owners entitled to use the record easement. This is an unavoidable consequence of the courts determination, successfully sought by the defendants in this action, that these plaintiffs are before the court not as representatives of the Association, but in their own right only. It would accomplish little to reduce the length of the beach easement as to just the individual plaintiffs, and not do so as to the many more easement holders not party to this case.
More fundamentally, I do not find that it would be equitable to reduce the shoreline distance of this relatively small beach area. Doing so would not be possible in a way which would satisfy the requirements under M.P.M. Builders that the adjusted easement be of equivalent utility to the benefited owners. The beach extends up to the wooden stairs, which is the portion of Parcel 2 that has frontage on Webster Lake. The 2008 Plan designates that this frontage is 24.80 feet along Webster Lake. A reduction of ninety-nine feet of shoreline referred to in the Fritzsche Deed by 24.80 feet would reduce by 25% the usable length of the beach. We are not dealing here with a rather long and widely available beach area which more than adequately serves the purposes of the many easement holders. I was struck, on the view I took of these properties, by the relative brevity of the overall shoreline and the limited availability of lake front area in which the easement rights might be used. This is not a long and wide sandy beach of the sort seen along the ocean, or elsewhere even aside large lakes. No long walks along the beach are available here under any circumstances. Given the number of benefited lots, there is not really any excess territory within the easement area. The sense one has visiting the locus is that it is compact, and that the easement area is not readily able to be curtailed without a loss of benefit. Shortening the easement to lift its burden from the Bohenko land would lessen the utility and frustrate the purpose for which the easement was created, which is to provide a place for Colonial Park residents, particularly those without direct access to the lakefront from their lots, to enjoy the shoreline of Webster Lake. I do not find merit in defendants requests to be able to move the easement or change the scope and location of the easement, and no such relief will be granted.
This court determined, and the Appeals Court affirmed, the location and extent of the 1925 Beach Easement over Mr. Ruskins portion of the property:
The area of the Beach Easement created in the deed from the Narrows Land Company to Emil W. And Bertha Fritzsche, recorded in the Registry at Book 2374, Page 194, starts at the waters edge, and extends landward to a line parallel to the lakeside edge of Lot 2 as shown on the 2008 Plan; that line encompasses the landward side of the multi-trunk maple tree as it is currently located on Lot 2.
Barnett v. Ruskin, Land Court Misc. Case No. 09 MISC 408930 (GHP) (2001), affd, 83 Mass. App. Ct. 1121 . I now confirm that the 1925 Beach Easement extends onto the Bohenko property, which is part of the original Lot 2. The area of the 1925 Beach Easement over the Bohenko property created in the Fritzsche Deed starts at the waters edge, and extends landward, for a width of twenty feet, from the Bohenko waterfront property line that is shown on the plan as 24.80 feet long. The easement over the Bohenko lot begins on the south at the Ruskin property line, and extends to the north just to the wooden stairs. In other words, the 1925 Beach Easement as it exists over the Bohenko property consists of the beach area in front of Parcel 2 (now the southern portion of Lot 1) as designated by the 2008 Plan that fronts Webster Lake. The easement stops at the foot of the wooden stairs, and does not lie in front of the retaining wall or in front of Parcel 3 on the 2008 Plan, which was the original Lot 3.
III. Defendants dock, defendants use of a boat, and defendants guests use of boats and jet-skis do not interfere with plaintiffs use and enjoyment of the 1925 Beach Easement.
Plaintiffs contend that defendants dock, the docking of boats and jet-skis on the dock, and their periodic placement on the beach, interferes with plaintiffs use and enjoyment of the 1925 Beach Easement. A determination whether defendants use of the 1925 Beach Easement interferes with plaintiffs use and enjoyment of the easement requires a balancing of interests. Shapiro v. Burton, 23 Mass. App. Ct. 327 , 334 (1987). The northern portion of defendants lot, Parcel 3 as designated by the 2008 Plan, is not burdened by the 1925 Beach Easement.
Defendants dock is located entirely on Lot 3 as shown on the 1924 Plan (Parcel 3, or the northern portion of Lot 1, on the 2008 Plan). I do not find that the dock blocks access to the lake from the 1925 Beach Easement, nor do I find that this dock interferes with plaintiffs use and enjoyment of the 1925 Beach Easement. I also do not find that only defendants boats or jet-skis can permissibly be attached to the dock. Defendants are entitled to receive guests, and to dock their boats and their guests boats on their dock as long as they do not interfere with plaintiffs access to the water and the plaintiffs use and enjoyment of the 1925 Beach Easement. I do not find that having guests visit the Bohenkos by small recreational boats approaching from the water, or having them dock on the Bohenkos dock, interferes with plaintiffs use and enjoyment of the 1925 Beach Easement. In reaching this determination, I rely on my finding that the use of the dock has been carried out, as far as the credible evidence shows, in a reasonable manner, intended for actual and needed boating purposes, and not in an unreasonable manner calculated to block access by the easement holders to and from the water. Use of the dock in an unreasonable manner, not for legitimate actual boating purposes, or in a manner that does markedly infringe on the plaintiffs water access rights in the area burdened by the easement, would not be tolerated by the court. With this caveat, the use of the dock complained of by the plaintiffs requires no judicial remedy.
I do find, however, that defendants or defendants guests placement of boats or jet-skis on the portion of the beach subject to the easement is problematic. The benefit of the beach easement is in jeopardy when physical objects, including watercraft, are left for any length of time along the beach area burdened by the easement. The benefit of the beach easement includes, undoubtedly, the right to walk in the this area along the waters edge up and down the full length of the easement. Plaintiffs ought not be denied this aspect of the easement because watercraft are left for any length of time in the plaintiffs path, as has happened. Defendants are to be enjoined from parking or placing a boat or jet-ski on the shore in a way that interferes with plaintiffs use and enjoyment of the easement. Examples of prohibited activity include beaching or leaving for any material length of time boats or jet-skis on the beach so as to preclude others from using the beach, leaving a boat or jet-ski on the beach for a long period of time, during a time when the beach typically is used, or navigating or pulling watercraft onto the beach near residents who are bathing on the beach or swimming in the water directly in front of the easement area, in a manner that is intrusive, presents a risk of unsafe interaction between the watercraft and those residents, or which otherwise limits normal passage along, and other recreational use of, the beach easement.
IV. Defendants counterclaims regarding overburdening of the easement and the creation of an enforceable management system, including rules and regulations, to control use of the beach easement.
Defendants request that the court declare that plaintiffs use of the beach amounts to overburdening of the beach easement. The language of the easement itself in no way limits the use to which the beach shall be put by the owners of land at said Colonial Park and their families and guests, but simply states that the beach is for the use of these residents. There is in the operative instrument no limitation imposed upon the kinds of uses that then were authorized, and, while the uses established by the seminal deed is the touchstone for determining the scope of uses allowed, there is no basis to limit strictly the allowed uses to those that would have been made of a lakefront beach in 1925. See Marden v. Mallard Decoy Club, Inc., 361 Mass. 105 , 107 (1972) (an easement granted in general terms is not necessarily limited to the uses made of the dominant estate at the time of the creation of the easement). The beach typically has been used, based on the evidence presented, over many generations, for sitting, bathing, sunbathing, launching boats, walking the shoreline, and general beach recreation. These uses are entirely consistent with the language of the easement. I find that they are consistent with the intention of the parties at the easements inception, and have been reflected in the pattern of use that continued over many decades thereafter.
Many of the facts that underlie defendants counterclaims--claimed behavior by the plaintiffs which defendants say amounts to confrontation, verbal abuse, littering, and noise--sound in tort, raising concerns about the courts jurisdiction over such claims. Certainly, standing alone, these claims present as allegations of tortious behavior. However, when the nature, location, scope, and extent of a record title easement is legitimately in contest, this court can guide the parties conduct by declaring what it is the disputed easement authorizes, and what it does not. It is clear, for example, that the plaintiffs hold no right to travel onto the Bohenko property outside of the area encompassed by the easement. The court will enjoin plaintiffs from walking on and using that portion of defendants property which is not within the 1925 Beach Easement. Plaintiffs have a right to access and use the beach; they do not have a right to use defendants lot beyond the limits of the easement as the court has located it, and plaintiffs are to be enjoined from doing so. Further injunctive relief against the plaintiffs is not, on the record evidence I credit, indicated currently.
Defendants also request that this court compel plaintiffs to create an enforceable management system. Plaintiffs are before the court as individual lot owners, the court having found in favor of defendants on the question of these plaintiffs asserted standing to represent the Association. The easement benefits all owners of the lots in Colonial Park individually, and the court, without having all of the lot owners joined in this case, cannot grant to defendants relief that would require the creation of an enforceable comprehensive system for easement use. And on the evidence presented, I do not see a sufficient basis for doing that, even had the plaintiffs ability to represent the Association been proved.
I have in this decision resolved all issues in the case by making findings of fact and rulings of law on the evidence as the case was tried to me. It remains to direct entry of judgment consistent with those findings and rulings and this decision.
I will afford the parties, through counsel, the opportunity to fashion a form (or forms) of judgment to propose to me. I think it better that the parties consult with each other through counsel to accomplish this task. In this way, the form(s) of judgment they put in front of me will come from a full airing of the issues that should be addressed in the courts final judgment, and will focus the court on the terms of the judgment that best will resolve the parties dispute consistently with the courts decision. I also will invite the parties, should they wish, to prepare a recordable plan to accompany the judgment to record, showing the dimension of the easement over the Bohenko property as found by the court. Alternatively, depending on the time that effort would require, the case may go to judgment without such a plan, with a recordable plan later to be prepared and submitted to the court for its approval. The court will welcome the suggestions of counsel about that as well.
Counsel promptly are to confer. Counsel for plaintiffs are to serve on defendants counsel, within fourteen days of this decision, a proposed form of judgment. Counsel for defendants, within fourteen more days, are to prepare and serve an assent to the plaintiffs form (with a full reservation of appellate rights) or (with the same reservation) a competing form. Ten days after that, the form or forms of proposed judgment then are to be filed with the court, with any explanatory memoranda counsel would like to offer. The court then will settle the form of judgment on the papers submitted, without further hearing unless otherwise ordered.
[Note 1] The property is that described in a deed dated March 15, 2013 recorded with the Worcester District Registry of Deeds on April 2, 2013 in Book 50677, Page 395.
[Note 2] The 1924 Plan was filed with the Worcester District Registry of Deeds on June 25, 1930 in Plan Book 61, as Plan 31.
[Note 3] See deed from Narrows Land Company to the Fritzsches recorded with the Worcester District Registry of Deeds on June 30, 1925 in Book 2374, Page 194.
[Note 4] The 10' right-of-way is not at issue in this case, although earlier litigation, discussed infra, has taken place concerning the 10' right-of-way. The 10' right-of-way is located entirely on Norman Ruskins lot, south of the Bohenkos property.
[Note 5] The Appeals Court found that because the plaintiffs in that case all were property owners within Colonial Park, plaintiffs had standing in their own right, and because they all were officers of the Association, all claimed the same shared access rights benefiting the lots generally, and would fairly represent the interests of the Association and its members, they could represent adequately the interests of the Association. Cheever v. Graves, 32 Mass. App. Ct. 601 , 604-605 (1992). The Appeals Court noted that the Graves defendants did not challenge plaintiffs status as officers of the Association, asserting only that the suit could not be brought in a representative capacity on behalf of an unincorporated association. Id.
[Note 6] The Appeals Court in Cheever analyzed the Fritzsche Deed and determined that the Narrows Land Company expressly reserved the right to use the beach fronting Lot 2, and the 10' right-of-way. Cheever, 32 Mass. App. Ct. at 605. The Appeals Court found that the beach was specifically identified as the beach on Webster Lake along Lot 2, which lot is described by metes and bounds and shown on a plan recorded in the Worcester County registry of deeds. Id. Even though the precise location of the beach was not identified in the deed, the right of access still existed. Id., citing Rice v. Vineyard Grove Co., 270 Mass. 81 , 87 (1930). Further, the Appeals Court also confirmed that the parties could fix the location of the right-of-way. Cheever, supra, at 605-606, citing Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 , 445 (1990).
[Note 7] Plaintiffs again filed the suit individually and on behalf of the Association. Defendants in that litigation did not challenge plaintiffs standing to bring the suit as representatives of the Association, nor did the court raise the issue sua sponte. Ruskin, supra.
[Note 8] In Cheever, defendants argued that some of the lots in Colonial Park and Lot 2 were owned by the same persons or entity, and therefore, the doctrine of merger applied to extinguish the 1925 Beach Easement. The Appeals Court reversed the finding of the Superior Court that no merger had occurred, and held that when New- Web Realty, Inc. acquired the common ownership of Lot 2 and several other lots in Colonial Park, the 1925 Beach Easement and 10' right-of-way were extinguished as to particular benefited lots in Colonial Park. Cheever, supra, at 607. The Appeals Court also concluded that neither the 1925 Beach Easement nor the rights to the 10' right-of- way were created anew in these lots, and that plaintiffs failed to prove that the easements were established subsequently by implication. Id. The 1925 Beach Easement and access to the 10' right-of-way appeared to have been extinguished by merger as to lots 137-147, 154, 158, 167-174, 202-204, 211-213, 250-251, 254-258, and 300, as shown on the plan of lots in Colonial Park recorded in the Worcester District Registry of Deeds in Plan Book 61, as Plan 31. Id. at n.8.
[Note 9] The docket entry for the summary judgment hearing is as follows: Hearing Held on Defendants' Motion for Summary Judgment. Attorneys Lane, Johnson, and Heyer Appeared. Following Argument, for the Reasons Laid upon the Record from the Bench and Summarized Below, Which Are Substantially the Reasons in the Plaintiffs' Opposition, the Court DENIED the Motion for Summary Judgment. (1) Defendants' Argument that Either a Prior Adjudication Determined the Beach Easement Does Not Encumber Defendants' Property, or that Plaintiffs Are Estopped from Asserting Otherwise, Both Fail as a Matter of Law. Nothing in the Land Court's Decision and Judgment in Barnett v. Ruskin, Land Court Misc. Case No. 09 MISC 408930 (GHP) (2011), 83 Mass. App. Ct. 1121 (2013), Adjudicated the Location and Extent of the Beach Easement Beyond the Bounds of the Ruskin Lot, Nor Could it Have. Ruskin Was the Sole Defendant, the Litigation Sought Only to Prevent Ruskin's Interference with the Beach Easement Following His Alteration of the Waterfront (and Installation of a Retaining Structure) on His Lot and His Lot Only, and There Was No Attempt to Determine the Rights of Others Not Joined, Nor Any Reason to Have Done So. The Failure to Join in the Ruskin Litigation the Owners of the Last Two Parcels Comprising (With Ruskin) the Original Lot 2 on the 1924 Plan Does Not, as a Matter of Law, Prevent the Assertion of Easement Rights in this Case. No Doctrine Required the Joinder of These Other Owners to Adjudicate the Location and Reach of the Beach Easement on Ruskin's Lot in the in Personam Action Brought Against Him. The Defendants as Remaining Owners of Other Parts of the Original Lot 2 Are Fully at Liberty to Challenge the Existence, Location, and Scope of the 1925 Beach Easement on Their Own Land in the Pending Case. The Existence and Extent of the Beach Easement on the Defendants' Property Remains a Live Issue, and One That Will Require the Taking of Evidence at Trial for the Court to Resolve. (2) Defendants' Argument That the Beach Easement Was Extinguished by Merger Fails as a Matter of Law. Court Is Aware of No Appellate Decision in the Commonwealth Where a Court Declared the End of an Easement Solely as a Result of Taking a Purchase Money Mortgage over the Burdened Estate Simultaneously with a Conveyance Out of the Lot Subject to the Easement Then Being Established. Many Things Militate Against Such a Result in this Case. First, Finding Merger Would Disrespect the Decision in Cheever v. Graves, 32 Mass. App. Ct. 601 (1999). In Cheever, the Appeals Court Undertook an Analysis of Merger. The Cheever Court Recognized Merger Had Terminated This Same 1925 Easement as to Benefited Lots Held in Common Fee Ownership, But Evidently Found No Merger Resulted from the 1925 Grant of the Purchase Money Mortgage. The Cheever Court Saw No Issue with the Perpetuation of the Easement in Light of the Deed Out and Simultaneous Mortgage Back of Lot 2 on the 1924 Plan. To Now Hold, Based on the Same Record Title, That a Merger Extinguished the Easement as a Matter of Law, Is Inconsistent with the Holding in Cheever. Even Without the Cheever Decision, There Was No Extinguishment by Merger Because Mere Acquisition of a Mortgagee's Title (Which Is Defeasible) Is Not Sufficient (Absent Foreclosure). See Ritger v. Parker, 62 Mass. 145 , 148 (1851). The 1925 Mortgage Never Was Foreclosed. The Courts Decline to Find Merger Where Doing So Would Be Contrary to the Intention of the Parties, and in the Absence of Full Identity of Vested Ownership of Both the Benefited and Burdened Parcels in Their Entirety. To Find Merger Based on the Taking Back of the Mortgage of Lot 2 in 1925 Would Require the Court to Conclude That the Parties to That Transaction Recorded a Deed with a Beach Easement They Never Intended to Come into Existence; this Would Fly in the Face of Those Parties' Obvious Intention to Establish a Beach Easement. Discovery to Close September 30, 2014. By Close of Discovery, Parties to File Joint Report Indicating Discovery Is Complete and Requesting that Court Schedule Pretrial Conference. (Piper, J.)
[Note 10] In Cheever the Appeals Court affirmed the judgment of the Superior Court, which found that an express easement for beach rights existed along the beach fronting the Webster Academy Lot. Id. at 605. However, neither the Superior Court nor the Appeals Court established the particular location or scope of the 1925 Beach Easement. The litigation in Cheever only established that the 1925 Beach Easement and 10' right-of-way existed for the benefit of some of the residents of Colonial Park, and confirmed the parties themselves could establish the location of the right of way. See, supra, notes 3 and 5.
[Note 11] The issue of plaintiffs standing as representatives of the Association was raised in Cheever, but standing was not raised at all by the parties or sua sponte by the court in Ruskin. See, supra, notes 2 and 4. There may have been more evidence in the Cheever courts record of formality on behalf of the Association and its representatives, including more evidence of the formation and actions of the Association itself, that allowed the court to find that plaintiffs were adequate representatives of the Association and that members of the Association should be entitled to the benefit of, and be bound by, judgment entered in that litigation. See, supra, note 3.
[Note 12] As explained in note 8, supra, not all Colonial Park lots have easement rights.
[Note 13] See note 8 supra.