Plaintiffs commenced this lawsuit on October 29, 2004. This long-running dispute involves Plaintiffs' claimed rights in an approximately 1.7-mile stretch of beach on the south shore of Martha's Vineyard (the "Beach" [Note 3] ), and in ways providing access to the Beach. On April 20, 2011, judgment entered in the Land Court that Plaintiffs hold no deeded interest in the Beach, do not have an express easement to use the Road to Short Point for beach access, and do not hold any express or implied easement over Paqua. Additionally, the Judgment dismissed Plaintiffs complaint, ruling that Plaintiffs had not "met their burden of proof to establish the existence of the prescriptive easements they claim in this action."
Upon direct appellate review of the April 20, 2011 Judgment, the Supreme Judicial Court (SJC) affirmed "that portion of the judgment declaring that [Plaintiffs] do not have a title interest in the beach as it exists today, since their title interest is to a beach now submerged under the Atlantic Ocean." White v. Hartigan, 464 Mass. 400 , 402-03 (2013). [Note 4] However, with respect to Plaintiff's alternative prescriptive beach easement claim, the SJC concluded that "the record does not contain such subsidiary findings of fact as are necessary to permit adequate review of the judge's conclusion that [Plaintiffs'] use of the beach [as it exists today] was not open and notorious, adverse, or for a period of twenty years." Id. at 420. Accordingly, the SJC vacated "[s]o much of the judgment as declares that the plaintiffs have not established a prescriptive easement to use the beach," and "remanded [the matter] to the Land Court for further proceedings, as necessary, and for findings of fact, consistent with this opinion." Id. at 423. The SJC took "no view on whether the evidence produced at trial is sufficient to support the conclusion that [Plaintiffs] did not establish a prescriptive easement; we simply require additional findings of fact, based on this evidence, so as to permit an adequate review." Id. at 420.
After remand and re-assignment to a new judge (Cutler, C.J.), [Note 5] the Parties filed their respective Proposed Findings of Fact and Requested Rulings of Law on September 9, 2013. Following a series of motions, status conferences, and hearings, the court ultimately determined that neither a new trial nor further evidentiary hearing would be necessary, and that it would adjudicate the prescriptive easement claim and make the subsidiary findings based upon the existing trial record. On January 14, 2015, the court heard the Parties' oral arguments on the basis of that record, and took the prescriptive beach easement claim the only remaining claim in this case under advisement.
In a Post-Remand Decision dated April 19, 2017, this court has, on the basis of the evidence presented at the original trial in this matter, determined that Plaintiffs have failed to meet their burden of proof to establish any prescriptive rights to use the Beach or any portion thereof.
Accordingly, so much of the original Judgment entered on April 20, 2011 that has been affirmed by the SJC and/or not appealed, remains intact, to wit:
ORDERED and ADJUDGED that, as set forth in an Order entered by this Court on April 1, 2009, Plaintiffs do not have any right, title or interest in the Beach because any such right would have been derived from a deed in 1841 (the Smith Deed), because that deed did not create a "moveable beach", and because the Beach referred to therein in now submerged under the Atlantic Ocean; and it is further
ORDERED and ADJUDGED, as set forth in an Order dated April 1, 2009, that the Plaintiffs do not hold an express easement to use the Road to Short Point to access the Short Point Property or the Beach because any grant purporting to create such an easement, and in particular the 1839 Smith Deed and the 1958 Norton Deed in which Winthrop B. Norton conveyed the Short Point Property while attempting to reserve for himself and his family the right to pass and repass over the Kohlberg property to the Short Point Property, was not assignable, was extinguished upon the death of Mr. Norton, and could not have been unilaterally converted to an easement in gross or attached to a different parcel of land; and it is further
ORDERED and ADJUDGED, as set forth in an Order by this Court dated October 13, 2009, that Plaintiffs do not hold any easement, express or implied, over Paqua, the Court ruling that while the 1888 Norton Deed reserves an easement to Allen Norton, it does not contain language of inheritance and cannot be passed on to a successor owner.
Moreover, in accordance with this court's Post-Remand Decision issued this date and the directives set forth in the SJC's Decision in White v. Hartigan, the vacated portion of the April 20, 2011 Judgment [Note 6] is hereby replaced to read as follows:
ORDERED and ADJUDGED, as set forth in the Trial Decision entered on April 20, 2011, that Plaintiffs' claims for prescriptive access easements are DISMISSED due to Plaintiffs' failure to meet their burden of proof to establish the existence of the prescriptive access easements they claim in this action; and it is further
ORDERED and ADJUDGED, as set forth in the Post-Remand Decision issued this date, that Plaintiffs' claims for prescriptive easement rights to use the Beach as it exists today are hereby DISMISSED due to Plaintiffs having failed to meet their burden of proof to establish any such prescriptive easement.
SO ORDERED.
ANDREW H. COHN [Note 1] as TRUSTEE OF OYSTER POND EP TRUST; RICHARD L. FIREDMAN; ALLEN W. NORTON; JUDITH A. NORTON and MELISSA NORTON VINCENT as TRUSTEES OF THE QUIET OAKS REALTY TRUST; ALBERT WHITE, TONI W. HANOVER, and SHAUNA WHITE SMITH, as TRUSTEES OF THE QUAMPACKY TRUST; MARK B. NORTON; SHAUNA WHITE SMITH; DEBRA WHITE SCOTT; and LISA WHITE v. MICHAEL D. MYEROW, as TRUSTEE OF BOTAR REALTY TRUST, RABOR REALTY TRUST and TAROB REALTY TRUST; JEFFREY FLYNN, PATRICIA POST, and RICHARD B. KEELER, as TRUSTEES OF THE POHOGONOT TRUST; PAMELA KOHLBERG, as TRUSTEE OF THE JOB'S NECK TRUST; ANDREW KOHLBERG, as TRUSTEE OF THE HIGH ROAD TRUST; and SHORT POINT HOLDINGS, LLC [Note 2]