MISC 04-303223

April 19, 2017

Dukes, ss.




This long-running dispute involves Plaintiffs' claims to hold deeded rights in an approximately 1.7-mile stretch of beach on the south shore of Martha's Vineyard, or alternatively to have acquired prescriptive rights to use that beach. On April 20, 2011, judgment entered in the Land Court that Plaintiffs hold no deeded interest in the beach as it exists today, 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." See generally, Hamilton v. Myerow, 19 LCR 176 (2011) (Misc. Case No. 04-303223) (Trombly, J.). [Note 3]

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 Plaintiffs' 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 were given an opportunity to argue their positions as to whether or not it would be necessary to conduct either a new trial or further evidentiary hearings. On May 10, 2013, the Defendant Trustees of the Pohogonot Trust and the Defendant Trustee of the RABOR, TAROB, and BOTAR Realty Trusts moved for a new trial pursuant to Mass. R. Civ. P. 63, later joined by the Defendant Trustee of the Job's Neck Trust. Plaintiffs' Opposition to Defendants' motion for a new trial was filed on May 24, 2013. Following a hearing on May 28, 2013, the court deferred action on the motion in order to allow the Parties an opportunity to submit proposed findings of fact and rulings of law, based upon 2011 trial evidence and testimony, as well as any stipulated facts. 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. [Note 6] On January 14, 2015, the court heard the Parties' oral arguments on the basis of that record, and took the prescriptive beach easement claim under advisement.

Now, based on my subsidiary findings of fact as set forth below, and for the reasons discussed herein, I conclude that Plaintiffs failed to meet their burden of establishing a prescriptive beach easement over the "whole" beach, as they claim, nor any part thereof. Plaintiffs have not established any prescriptive beach rights, either because their various uses of the beach were occasional and sporadic, did not continue uninterrupted for the full, requisite twenty-year period, and/or were not substantially confined to a regular part or parts of the beach.


1. The beach in dispute is an approximately 50-acre, 1.7-mile stretch of beach located in Edgartown, Dukes County, Massachusetts on the southern coast of Martha's Vineyard (the "Beach"). [Note 7] Its southern boundary is the Atlantic Ocean. [Note 8]

2. The southern shoreline of Martha's Vineyard has retreated in a northward direction from 1846 to the present date, due to a combination of sea level rise, waves, tides, storms, and winds. [Note 9] As a result, the northern boundary of the Beach is migrating further northward each year.

3. For many generations, two families – the Norton family and the Flynn family – each owned land in the southwest corner of Edgartown. The Flynn land holdings include what is today the disputed Beach.

4. At one time, both the Flynn family holdings and the Norton family holdings included fractional interests in a beach parcel abutting what are known as the Pohogonot and Paqua properties (eventual Flynn family holdings). However, that beach parcel became submerged beneath the Atlantic Ocean no later than 1938. See White, 464 Mass. at 413. As a result of the northward migrating shoreline, the now-existing Beach in dispute lies on what was formerly upland and the beds of coastal ponds, and is distinct from the now- submerged beach.

5. The Beach includes three main segments, which are depicted on the attached Decision Sketch:

a) The "Job's Neck Section" refers to the easternmost segment of the Beach, extending from the western edge of Big Job's Neck Pond to the eastern edge of Little Job's Neck Pond. It is directly south of Big Job's Neck Pond, the Short Point Property, and includes the approximately 4.4-acre "Kohlberg Option Beach" that lies below Little Job's Neck Pond. The Job's Neck Section of the Beach includes two fairly-distinct barrier beaches: one located below Big Job's Neck Pond, and one below Little Job's Neck Pond, which separate these Ponds from the Atlantic Ocean.

b) The "Center Section" refers to the stretch of the Beach running from the eastern edge of Oyster Pond to the western edge of Big Job's Neck Pond.

c) The "Oyster Pond Section" refers to the barrier beach on the western end of the Beach, separating Oyster Pond from the Atlantic Ocean. This barrier beach is "cut" open once each year to allow salt water from the Atlantic Ocean into the Pond.

6. Plaintiffs herein are various members of the Norton family and their successors-in-interest (collectively, the "Nortons"/"Plaintiffs"). [Note 10] Plaintiffs own properties located to the northeast of Oyster Pond, either individually or as Trustees. The sole access from their properties to the Beach is by boat across Oyster Pond, to the Oyster Pond Section of the Beach. [Note 11]

7. Defendants include a limited liability corporation and the Trustees of six real estate trusts, each of which holds title to one or more parcels of the original Flynn family holdings, including title to or rights in the disputed Beach. [Note 12]

a) The Pohogonot Trust owns approximately 431 acres bounded by the Atlantic Ocean on the south, Oyster Pond on the west, and Job's Neck Pond on the east ("Pohogonot Property"). The Pohogonot Property includes within it a majority of the Beach in dispute—running from the Oyster-Watcha Line to approximately the western edge of Little Job's Neck Pond, where the Kohlberg Option Beach begins.

b) Michael Myerow, as Trustee of RABOR, TAROB, and BOTAR Trusts, owns land to the north between Oyster Pond and Job's Neck Pond acquired from the Pohogonot Trust in February 2001 (the "Myerow Properties"). The Myerow Properties abut the Pohogonot Property to the northwest. The Myerow defendants have a recorded easement to use a portion of the Beach near Oyster Pond. [Note 13]

c) Pamela Kohlberg, as Trustee of Job's Neck Trust, owns land east of Job's Neck Pond acquired from the Pohogonot Trust in 1995 (the "Kohlberg Property"). The Job's Neck Trust also owns an approximately 4.4-acre parcel of the Beach at its easternmost end, situated directly below Little Job's Neck Pond (the "Kohlberg Option Beach").

d) Andrew Kohlberg, as Trustee of the High Road Trust, owns upland property northeast of the Kohlberg Property (not depicted on the Decision Sketch).

e) Short Point Holdings, LLC owns an approximately thirty-acre parcel acquired from the Pohogonot Trust in 1998 (the "Short Point Property"). It is bounded by Big Job's Neck Pond on the west, Little Job's Neck Pond on the east, the portion of the Beach owned by Pohogonot Trust on the south, and the Kohlberg Property on the north.

8. In the 1930s, Frank L. Norton and Elizabeth Norton (grandparents of Plaintiff Allen Norton) owned a large swath of land northeasterly of Oyster Pond, running north towards the state highway, including the areas known as "Nonamessett" and "Quampachy" (collectively, the "Oyster Pond Property"). The Oyster Pond Property eventually passed to Winthrop ("Sonny") Norton in 1951.

9. Between 1951 and 1981, Sonny Norton and George D. Flynn, Jr. ("Uncle George") – the patriarchs of the Norton and Flynn families, respectively – controlled their family properties.

10. Plaintiffs herein who are members of the Norton family include: Allen Norton and several members of his immediate family, along with Plaintiff Albert White (Wilda White's widower) and several of their daughters.

11. After Sonny died in 1981, the Norton family began selling off parcels of the Oyster Pond Property. All of Plaintiffs acquired interests in their respective properties out of what was once the Oyster Pond Property owned by Sonny Norton. [Note 14]

12. In 1983, the Nortons sold a parcel of the Oyster Pond Property to Richard Friedman ("Friedman"), who also began using portions of the Beach. Friedman acquired additional parcels of the Oyster Pond Property in 1995 and 1997.

13. The controversy over rights to access and use the Beach appears to have been sparked after Allen Norton began selling and conveying portions of the Oyster Pond Property outside of the Norton family. When Plaintiff Friedman acquired his property and began riding on horseback on the beach and across Flynn land, Flynn family members asked him not to do so, and began to more openly question the rights of the Nortons' and their successors-in-interest to use the Beach and various paths. Ultimately, in November, 1999, the Flynns caused a public notice of their intention to prevent the acquisition of easements over their lands to be posted, served, and recorded in accordance with G. L. c. 187, §§ 3 and 4. [Note 15]

Additional facts pertinent to the Beach and the uses of the Beach between 1938 and 1999 are set forth in the discussion below.


Issues on Remand

Plaintiffs seek a prescriptive beach easement over the entire Beach for "usual and customary beach uses and purposes throughout the year, in common with all others legally entitled to use the [Beach]." They claim to have used the entire 1.7 mile length of Beach adversely, notoriously and continuously since at least 1938. In doing so, Plaintiffs rely on an accumulation of various uses and activities conducted by numerous members of the Norton family (especially Plaintiff Allen Norton), their tenants, and guests in the years between 1938 and 1999, in several locations on the Beach. These uses and activities included swimming, sunbathing, clamming, and picnicking during the summer season, as well as riding the Beach in vehicles and on horseback, fishing, duck hunting, and surfcasting throughout different seasons of the year.

On remand from the SJC, this court is required to make subsidiary findings of fact relative to whether Plaintiffs met their burden at trial to establish a prescriptive beach easement. That is, this court is required to make findings of fact relative to whether the Norton Family used the Beach for beach purposes, continuously and without interruption for at least twenty years during the period running from 1938 to November 1999, and whether the Nortons' use of the Beach was open, notorious, and adverse.

Prescriptive Easement Standard

"An easement by prescription is acquired by the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another's land (4) for a period of not less than twenty

years." White, 464 Mass. at 413; see also G.L. c. 187, § 2. Plaintiffs must demonstrate their entitlement to prescriptive rights in the Beach by "clear proof." Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008) (citing Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007)). "The burden of proving every element of an easement by prescription rests entirely with the claimant. If any element remains unproven or left in doubt, the claimant cannot prevail." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). As discussed below, I find, as a threshold matter, that Plaintiffs have met their burden to show that their use of the Beach in the period between 1938 and 1999 was open, notorious, and adverse. However, Plaintiffs failed to demonstrate that their use continued for any uninterrupted twenty-year period.

The Nortons Used the Beach Openly and Notoriously

The requirement that a party's adverse use of another's land be "open and notorious" centers on notice to the affected landowner, and "'is intended only to secure to the owner a fair chance of protecting himself.'" White, 464 Mass. at 417 (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)). "'To be 'open,' the use must be without attempted concealment'; to be notorious, the use must put the landowner on constructive notice of the adverse use." White, 464 Mass. at 416 (quoting Boothroyd, 68 Mass. App. Ct. at 44). The character of the affected land determines what level of openness and notoriety is required to acquire title by adverse use. Boothroyd, 68 Mass. App. Ct. at 44. As to beach property, seasonal use for bathing, picnicking, and other recreational activities usually associated with beaches, constitutes open and notorious use. See, e.g., Labounty v. Vickers, 352 Mass. 337 (1967). [Note 16]

The evidence supports a finding that the Norton family's various uses of the Beach were open—that is, without attempted concealment. The evidence reveals that the Nortons believed they owned a fractional interest in the Beach and had every right to be there, and thus the Nortons had no reason to conceal their usage, and did not do so. That the Norton family kept its distance from the Flynn family out of respect for privacy (and not as an attempt to conceal their presence) is borne out by consistent testimony, including acknowledgments by several Flynn family members. Flynn family members, Harry Flynn, Judy Flynn Palmer, Dorothy Chafee, Florence Peters, and John Flynn all testified to encountering members of the Norton family making various uses of the Beach on a number of occasions over the years. Both Norton and Flynn family members (e.g., Natalie Conroy (Norton), Dorothy Chaffee (Flynn), and Florence Peters (Flynn)) also testified to encountering one another during their respective Sunday gatherings—usually in the Oyster Pond Section in the later years, where the two families would congregate on opposite sides of the barrier beach cut to the ocean.

This same evidence also supports the conclusion that the Nortons' uses of the Beach were notorious—that is, either actually known to the Flynns, or sufficient to put the Flynns on constructive notice of adverse use. See Boothroyd, 68 Mass. App. Ct. at 44 ("For a use to be found notorious, it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property."); see also Foot, 333 Mass. at 218 ("'To be notorious [the use] must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises.'" (quoting American Law of Property § 8.56)). Here the Flynn family members' testimony that they observed the Nortons using the Beach in various locations and at various times over the years, is sufficient to support a finding of actual knowledge.

Because the evidence bears out that the Nortons made no attempt to conceal their use of the Beach during the relevant time period, and that the Flynns actually knew of the Nortons' uses of the Beach, I find that the Nortons met their burden to show that when they used the Beach in the years between 1938 and 1999, their use was both open and notorious.

The Nortons Used the Beach Adversely

"To be adverse, the use must be made under a claim of right." White, 464 Mass. at 418 (citing Gower v. Saugus, 315 Mass. 677 , 681-82 (1944)). "'[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription . . . unless controlled or explained.'" Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (quoting Flynn v. Korsack, 343 Mass. 15 , 18 (1961)).

The trial testimony and evidence bear out the Nortons' assertion that they used the Beach under a sincere belief that they owned a deeded, fractional interest therein. Although the SJC in White affirmed that the Nortons did not in fact own a fractional interest in the Beach as it exists today (their deeded interest being confined to the boundaries of a now-submerged parcel of land), the great weight of the evidence suggests that, throughout the majority of the time period under consideration (1938 to 1999), the Norton family and the Flynn family both believed that the Nortons held an ownership interest in the entirety of the Beach as it existed from 1938 onward.

In 1950, Uncle George and Sonny, together, engaged attorney Harry Perlstein to provide a legal opinion on the ownership interests in the then-existing beach. The Perlstein Opinion concluded that the Flynns owned an approximately three-fifths interest, and the Nortons owned an approximately one-fifth interest. There is no evidence in the trial record that Uncle George or any other Flynn family members repudiated or rejected the Perlstein Opinion either at the time it was rendered, or in the over-thirty years that followed. [Note 17]

To the contrary, the trial record contains several examples of the Flynns' recognition of the Nortons' claim of right to use the Beach as fractional owners. Growing up, John Flynn was told by Uncle George and his father that the Nortons owned a fractional interest in the Beach "running from Oyster Pond all the way to Job's Neck." In May 1982, Uncle George wrote a note to John Flynn that was critical of Allen Norton's actions in conveying beach rights with the sale of certain Norton Properties, but that nonetheless acknowledged Sonny's long-time claim to own a one-fifth interest in the Beach, noting: "Sonny always said 'I own a fifth of the beach.'" Moreover, when John Flynn, at the behest of Uncle George, confronted Allen about his sale of fractional beach interests, Allen unequivocally asserted his ownership interest in the Beach and cited the Perlstein Opinion. When John Flynn then asked Uncle George about the Perlstein Opinion, Uncle George gave him a copy, and the Flynns thereafter ceased challenging Allen's authority to convey the Norton Properties with beach rights. [Note 18]

Accordingly, I find that the Nortons used the Beach under a claim of right and that the Flynns recognized that claim. Moreover, even if the Flynns did not agree with the Nortons' ownership claim, they took no definitive action to stop the Nortons from using the Beach until November, 1999 when they posted the notice to prevent the acquisition of easement pursuant to G. L. c. 187, §§ 3 and 4. Any uses the Nortons made of the Beach under claim of right between 1938 and 1999 were, consequently, adverse. See Houghton, 71 Mass. App. Ct. at 836 ("[A]dverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto.")

Likewise, the evidence is sufficient to establish that, contrary to Defendants' assertions, the Nortons' use of the Beach was without "permission" from the Flynns. There are no specific examples in the trial record of the Nortons either seeking or obtaining permission from the Flynns for any of their uses of the Beach between 1938 and 1999, as distinguished from seeking and obtaining permission to use the Flynn upland properties, roads, or paths. See, e.g., White, 464 Mass. at 418 & ns. 23 & 24. Defendants call attention to a time around 1989 or 1990 when Shauna White Smith (Norton) contacted Florence Peters (Flynn) to ask permission to traverse the Short Point Property to head to a beach near Edgartown Great Pond. However, there is nothing remarkable about Shauna White Smith seeking permission to cross the Flynns' upland Short Point Property; nor does her request suggest an acknowledgement that the Nortons had no claim of right to cross over the Beach itself. [Note 19]

Similarly, the testimony from some Flynn family members that Albert White and Allen Norton each obtained "blanket permission" from Uncle George to pass over or use certain portions of the Flynn Properties for hunting or fishing is not at all inconsistent with the Nortons' testimony that they believed they did not need permission to use the Beach because they owned fractional beach rights. It merely reflects the Nortons' recognition that permission was required to traverse or use the Flynns' upland properties, even if only to get to the Beach. Because the Nortons used the Beach under a claim of right (notwithstanding that their claim ultimately proved to be mistaken), the evidence shows that they did not seek or obtain permission from the Flynns to use the Beach. Accordingly, I find that any uses the Nortons' made of the Beach during the relevant time period were adverse.

The Nortons Did Not Continuously Use a Regular or Particular Part of the Beach

My findings that the Norton family's uses of the Beach during the period from 1938 to 1999 were open, notorious, and adverse do not depend upon subsidiary findings as to the type or frequency of their uses, the location(s) of their uses, or the timing and continuity of use. Plaintiffs are mistaken in relying on various Flynn family "acknowledgements" of having observed the Norton family's beach uses to demonstrate that—in addition to "open and notorious" use—the Nortons' used the entire beach continuously and without interruption for more than twenty years. Notwithstanding the several occasions between 1938 and 1999 when the Flynns encountered the Nortons on the Beach, Plaintiffs still carry the burden to demonstrate a consistent, regular pattern of their beach uses that continued for at least twenty years in one or more defined locations. They cannot simply rely upon a cumulative set of sporadic, disjointed, or intermittent uses – occurring in several different locations at different times – over the span of sixty years.

"Continuous" use need not be "constant." Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870). And seasonal use will not defeat a claim for a prescriptive easement when seasonal property is at issue. See Mahoney v. Heeber, 343 Mass. 770 , 770 (1961) ("Seasonal absence of plaintiff and his predecessors from their summer home did not require a finding that the adverse use was not continuous"); see also Lawrence v. Houghton, 296 Mass. 407 , 409 (1937) ("The fact that the land and the road were not used in the winter did not destroy the continuity of the use of the road for purpose of prescription."). One may, therefore, acquire an easement by prescription over a beach, notwithstanding the traditionally seasonal uses associated with such land. See, e.g., Ivons-Nispel, 347 Mass. at 762-63; Labounty, 352 Mass. at 348. Nevertheless, a claimant must at least establish a pattern of regular or consistent use throughout the statutory twenty-year period. See Stagman v. Kyhos, 19 Mass. App. Ct. 590 , 593 (1985). Uses which are "intermittent" or "disjointed" in time are insufficient, Boothroyd, 68 Mass. App. Ct. at 45, as are sporadic uses. Cf. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996).

The Nortons endeavor to show their "continuous and uninterrupted" use of the "entire" Beach over the course of sixty years by adding together several different activities conducted on one or more of the distinct Beach Sections, by multiple family members, guests, or tenants, within several different time periods. Citing a case from North Carolina, Concerned Citizens of Brunswick County Taxpayer's Assn. v. State, 404 S.E.2d 677, 684 (N.C. 1991), the Nortons argue that they need not establish that they used each and every square foot of the Beach, so long as their use was extensive enough to show a claim to the entire beach during the prescriptive period. In Concerned Citizens, the North Carolina court determined that deviations in the use of a "dynamic" beach path through shifting sand dunes were "slight" or insubstantial and did not defeat a claim to a public prescriptive easement of travel. Id. at 684.

The standard in Massachusetts, however, is not as relaxed as Plaintiffs urge; nor does the Concerned Citizens case stand for the expansive proposition that Plaintiffs press. The extent of any prescriptive right created by twenty years of continuous and uninterrupted use is measured by the type, extent, and location of the use made during the prescriptive period. It is settled in Massachusetts that, in order to establish a prescriptive easement, the claimant must prove that the adverse use was "substantially confined" to a specific part of the parcel. See Boothroyd, 69 Mass. App. Ct. at 45 ("The law as to this specific evidentiary element is well-settled."); see also Stone v. Perkins, 59 Mass. App. Ct. 265 , 268 (2003) ("[T]he absence of a definite location renders doubtful whether the adverse use was sufficiently notorious and continuous to place the potentially servient landowner on notice of the adverse right that is maturing."); Bruce & Ely, The Law of Easements and Licenses in Land § 5:12 (2015) ("In other words, the prescriptive use must define the boundary of the easement with reasonable certainty."). [Note 20] Thus, under the applicable legal standard, although a claimant need not show the existence of a single or the same definite and specific line of travel or location of use to acquire a prescriptive easement, the evidence must nonetheless show that the claimant's use was "'confined substantially' to a regular or particular trail or part of the locus." Boothroyd, 68 Mass. App. Ct. at 46 (emphasis added). [Note 21]

Moreover, case law does not support Plaintiffs' assertion that they may cobble together distinct periods of use made of different sections of the Beach to acquire prescriptive rights to use the whole 1.7-mile long Beach. See Glenn v. Poole, 12 Mass. App. Ct. 292 , 292 (1981) ("The extent of an easement arising by prescription … is fixed by the use through which it was created."); see also Dahlgren v. Boston & Maine Railroad, 210 Mass. 243 , 245 (1911) ("Nor could a prescriptive right in the more recent way be acquired by tacking together two distinct periods of use of the two substantially different routes.").

With this guidance in mind, [Note 22] and after examining the evidence as to the size and character of the Beach and the patterns of land ownership adjacent to the Beach, as well as the types of uses and activities the Nortons conducted on the Beach, the location(s) on the Beach where such activities were shown to have occurred, and the periods of time during which they occurred, I find that the evidence and testimony does not sustain the Nortons' claim to have adversely used the whole beach consistently, uninterruptedly, or regularly for twenty years or more. I reach the same finding for each given Section of the beach, where no continuous period of use in such Section extended the requisite twenty years. Below, I discuss, in the context of each of the three Beach Sections (the Job's Neck, Center, and Oyster Pond Sections), the uses alleged to have occurred in each Section, and the alleged period of time such uses continued, in order to determine whether the Nortons have demonstrated by clear evidence that they used any of these Beach Sections for beach purposes, continuously, and uninterruptedly for a period of at least twenty years.

Use of the Job's Neck Section

Plaintiffs failed to demonstrate continuous and uninterrupted beach use of the Job's Neck Section of the Beach for the twenty-year period from 1938 to 1958. Most importantly, Plaintiffs provided no reliable evidence of use of the Job's Neck Section during the two-year period when Allen was stationed with the U.S. military in Guantanamo Bay, Cuba from 1956 to 1958. [Note 23] This two-year gap in the evidence of beach use, prevents creation of a prescriptive easement in the period between 1938 and 1958.

Between 1958 and the early 1980s, the Norton family gathered on summer Sundays in the Job's Neck Section of the Beach approximately 75-80% of the time. The testimony as to the frequency and regularity of their gatherings on the Job's Neck Section of the Beach over this twenty-plus year time period, however, is not sufficient to establish continuous use, when viewed in light of the drastically inconsistent testimony of the Norton witnesses as to where in the Job's Neck Section the Norton family gathered during this period. Allen and his daughter Melissa both testified that they usually gathered below Big Job's Neck Pond, and only occasionally used the area below Little Job's Neck Pond (the Kohlberg Option Beach). [Note 24] But Allen's wife, Judy, testified that the family usually gathered below Little Job's Neck Pond, and only "once in a while" gathered below Big Job's Neck Pond. [Note 25] Mark Norton, Allen's son, and Shauna White Smith, Wilda's daughter, each testified that the family alternated using the areas below both of these ponds, but neither quantified the frequency that either area was used. John Flynn acknowledged seeing the Nortons occasionally using the southwestern corner of Big Job's Neck Pond for their summer gatherings.

To meet their burden of proof, Plaintiffs had to demonstrate that their beach use was "substantially confined" to a specific "part of the locus." Boothroyd, 69 Mass. App. Ct. at 45. Even with respect to the Job's Neck Section (as opposed to the whole Beach), this is not an insignificant matter considering that the Job's Neck Section of the Beach spans over half a mile in length from the southwestern corner of Big Job's Neck Pond to the southeastern corner of Little Job's Neck Pond. It includes the two barrier beaches below Big Job's Neck Pond and Little Job's Neck Pond (the Kohlberg Option Beach), and the beach area between the two Job's Neck Ponds below the Short Point Property.

The evidence does not support a finding that the Nortons ever routinely used the portion of the Beach that lies between the two Job's Neck Ponds (below the Short Point Property). Also, because of the conflicting testimony of the Nortons as to whether the Norton family congregated at the beach area below Big Job's Neck Pond (almost a quarter mile in length) or below Little Job's Neck Pond (almost 750 feet in length) the evidence was insufficient to demonstrate where on this long expanse of Beach the family "substantially confined" its activities, let alone that the activities consistently and regularly occurred over the entire Job's Neck Section of the Beach.

Finally, once Allen and Wilda's families moved from central Edgartown to Oyster Pond after Sonny's death in 1981, the Nortons shifted their regular Sunday gatherings to the Oyster Pond Section of the Beach. Thereafter, the Nortons only occasionally used the Job's Neck Section for beach activities. [Note 26] I find that Plaintiffs' occasional beach activities in the Job's Neck Section after 1981 are thus insufficient to create any prescriptive rights therein.

Consequently, given the contradictory testimony as to where within the Job's Neck Section the Nortons regularly concentrated their beach activities between 1958 and 1981, and given the further testimony that the Nortons shifted their regular beach activities to the Oyster Pond Section after Sonny's death in 1981, I find that Plaintiffs have not met their burden to demonstrate that they substantially confined their beach use to any particular part of the Job's Neck Section of the Beach for any twenty-year period between 1958 and 1999. Accordingly, Plaintiffs have failed to establish any prescriptive rights to use the Job's Neck section of the Beach.

Use of the Center Section

The trial evidence demonstrates that from 1938 forward, the Nortons' use of the Center Section of the Beach primarily consisted of occasional walks, shell or driftwood gathering, clamming, surfcasting and fishing, horseback riding, and Jeep or "beach buggy" riding. No witness testified to ever using the Center Section for beach activities like swimming, sunbathing, or picnicking. Rather, the evidence indicates that the Nortons' most common use of the Center Section from 1938 to 1999 consisted of occasional beach rides for pleasure, often incidental to their Sunday gatherings at one of the other Beach sections. [Note 27]

The limited testimony as to surfcasting from the Center Section did not establish that use as a routine or regular activity, nor identify where within the three-quarters of a mile long stretch of the Center Section, this activity would usually occur. Moreover, while recreational in nature, horseback riding and driving a Jeep or "beach buggy" on the beach are not traditional "beach activities." [Note 28] And there is little or no evidence substantiating that any such activities occurring on the Center Section were "'confined substantially' to a regular or particular route or part of the locus." See Boothroyd, 68 Mass. App. Ct. at 46. To the extent the Nortons wish to establish a prescriptive right of passage on the Beach, there was no evidence that the Nortons followed any regular path or route when horseback riding or when riding on the Beach in a Jeep or beach buggy. And the Nortons' repeated assertions that they always used the "whole" or "entire" Beach indicate that there was no regular route or area to which the use was confined. Stone, 59 Mass. App. Ct. at 267 ("'Passing over a tract of land in various directions at different times from year to year not only has no tendency to establish a right over a particular route, but would seem to be inconsistent with such a claim.'" (quoting Hoyt v. Kennedy, 170 Mass. 54 , 56-57 (1898)). Plaintiffs "may not claim a right to pass generally over a premises 'wherever it is most convenient to themselves….'" Id. (quoting Jones v. Percival, 5 Pick. 485 , 486 (1827)).

Accordingly, I find that Plaintiffs have failed to establish that any prescriptive rights to use the Center Section of the Beach arose from their activities in that area between 1938 and 1999.

Use of the Oyster Pond Section

As discussed above, if, as Plaintiffs claim, the Norton family's adverse beach use commenced in 1938, [Note 29] the lack of regular use of any part of the Beach between 1956 and 1958 prevented a prescriptive easement from accruing to Plaintiffs during this initial twenty-year time span. Plaintiffs did not present sufficient evidence of Norton family members making regular beach use of the Oyster Pond Section during the two-year period from 1956 to 1958. [Note 30] Allen was stationed in Guantanamo Bay, Cuba from 1956 to 1958, during which time he and his future wife, Judy, visited the Oyster Pond Section of the Beach, on only two occasions when Allen came home on leave. [Note 31] The generalized acknowledgments by Flynn family members that they observed either Frank or Sonny taking a catboat down through Oyster Pond to fish near the Oyster Pond Section do not assist Plaintiffs because they were not pegged to any specific time frame or location. [Note 32] They also fall far short of demonstrating a consistent, regular pattern of beach use on this Section of the Beach. Thus, Plaintiffs were unable to show continuous and uninterrupted use of the Oyster Pond Section during the twenty-year period prior to 1958.

The Nortons fare no better in establishing their continuous beach use of the Oyster Pond Section between the time Allen returned from Cuba in 1958 and Sonny's death in 1981. As discussed above, between 1958 and 1981, the Nortons primarily gathered in the Job's Neck Section (approximately 75-80% of summer Sundays), using the Oyster Pond Section only 3-4 Sundays of each summer (approximately 20-25% of summer Sundays). [Note 33], [Note 34] These limited and sporadic uses, even though acknowledged by Flynn family members, do not constitute "continuous" use for purposes of establishing a prescriptive easement over the Oyster Pond Section of the Beach during this time frame. See Houghton, 71 Mass. App. Ct. at 841 (noting that "plaintiff was required to show more than a collective but individually sporadic" use of the disputed area); see also Boothroyd, 678 Mass. App. Ct. at 46.

It was only following Sonny Norton's death in 1981, and the moves of Allen's family and Wilda's family to certain of the upland Norton Properties shortly thereafter, that the Nortons' routine Sunday beach gatherings shifted from the Job's Neck Section to the Oyster Pond Section of the Beach. [Note 35] The Nortons regularly gathered on the west side of the cut to the ocean in the Oyster Pond Section from 1981 forward. However, this period falls short of the twenty-years needed to perfect a prescriptive easement prior to the Flynns' posting of the Notice to Prevent Easement in 1999. So, in order to establish at least twenty years of continuous beach use of the Oyster Pond Section, the Plaintiffs would have to show that the Norton family's use after Sonny's death was a continuation of Sonny's use of that Section of the Beach. "A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own." Lawrence v. Concord, 439 Mass. 416 , 426 (2003).

The Plaintiffs did adduce evidence that Sonny Norton's tenants, the Carrolls, used the beach in the Oyster Pond Section almost every "decent" summer day in the fifteen years prior to Sonny's death in 1981 (1966-1981). [Note 36], [Note 37] However, the evidence of the Carrolls' uses of the Beach – derived entirely from the admission of a February 5, 2010 deposition of Robert Carroll, and designations and counter-designations from a September 30, 2005 deposition of Robert Carroll – lacks clarity, details, and specificity about any regular location within the Oyster Pond Section to which his family substantially confined their beach activities.

For example, several Flynn family members testified that they often gathered on summer Sundays in the Oyster Pond Section of the Beach to the east of the cut running from the Atlantic Ocean to the Pond, and that the Nortons only began to gather to the west of the cut after 1981. Mr. Carroll, however, was not asked and did not offer consistent information as to where his family would gather relative to the cut when his family used the Beach during this time frame. [Note 38] Given the vague and generalized description of the Carrolls' use of the Oyster Pond Section of the Beach, uncorroborated by any witness testimony or other evidence at trial, the court cannot resolve on this trial record whether the Norton family's uses of the Oyster Pond Section of the Beach after 1981 actually continued in substantially the same location as the Carroll's uses before that time.

Moreover, even if the Carrolls' use of the Oyster Pond Section of the Beach as the tenants of Sonny, could be characterized as derivative of Sonny's claim of right (albeit mistaken) to a one-fifth interest in the Beach and, and thus adverse to the Flynns' interests, it is worth noting Robert Carroll's 2005 deposition testimony that he was friendly with several Flynn family members, including Uncle George, and often accompanied the Flynns at the Oyster Pond Section of the Beach. [Note 39] This testimony supports an inference that the Carrolls were the sometime-guests of the Flynns and used the Beach at the Flynns' invitation, or at least with their permission, thus calling into doubt the adverse nature of the Carrolls' use. Were the Carrolls using the Beach under Sonny's claim of right, or were they using the Beach with permission of the owners? Without evidence to demonstrate that the Carrolls used the Beach without permission, the Plaintiffs cannot rely upon the Carrolls' use to establish continuous, uninterrupted and adverse use of the Oyster Pond Section for more than twenty years.


Based on my subsidiary findings of fact and the reasonable inferences to be drawn therefrom, and for all the reasons discussed above, I find that Plaintiffs have failed to carry their burden of establishing that their adverse, open, and notorious uses of the Beach continued uninterrupted in any particular or regular location for any twenty-year period between 1938 and 1999. Accordingly, a new judgment shall enter for Defendants.

exhibit 1

Decision Sketch


[Note 1] John Hamilton, Jr., an original Plaintiff in this case, stepped down from his position as Trustee of the Oyster Pond EP Trust during the course of this litigation.

[Note 2] Several other additional named Defendants-in-counterclaim have been released from the case after settling with Defendants/Plaintiffs-in-counterclaim over their claims to interests in the Beach.

[Note 3] Prior summary judgment decisions had determined that Plaintiffs did not hold any record title to the beach as it exists today, given that the southern coast of Martha's Vineyard experienced significant erosion over the last 150 years, causing the section of beach to which Plaintiffs held record title (as it was bounded and described by deed) to become completely submerged under the Atlantic Ocean. Hamilton, 19 LCR at 177.

[Note 4] Plaintiffs did not appeal the Land Court's ruling that they held no title to, nor prescriptive rights to use Whelden's Path, Pohogonot Road, or the Road to Short Point. See id. at 402 n.6.

[Note 5] Justice Charles W. Trombly retired from the bench on May 20, 2011.

[Note 6] It is Plaintiffs' burden to prove that they acquired a prescriptive easement over the lands of Defendants, and Plaintiffs opposed a new trial or further evidentiary hearing or reopening of the trial record.

[Note 7] See the attached decision sketch.

[Note 8] In Massachusetts, the term "beach" is generally used to define the area between ordinary high water mark and low water mark. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 828-29 (2008) (citing Storer v. Freeman, 6 Mass. 438 , 439 (1810)). "'Upland' is the area above high water mark." Id. The Beach at issue herein includes a significant sandy beach area above the mean high water mark, along with some coastal dune area. Both of these areas are traditional "upland" areas. Notably, however, the northern boundary of this Beach is not defined by Plaintiffs, given their theory of a "moving beach," and thus presents a problem of proof concerning the exact bounds of the prescriptive easement they claim.

[Note 9] "From 1846 to 2005, the shoreline eroded at a rate of roughly five feet per year near the western boundary of the beach, and at a rate of approximately seven feet per year near its eastern boundary." White, 464 Mass. at 405.

[Note 10] Plaintiffs are Richard L. Friedman, Allen W. Norton, Judith Norton, individually, and with Melissa Norton Vincent, as Trustee of the Quiet Oaks Realty Trust; Albert White, Toni White Hanover, Shauna White Smith, as Trustees of the Quampachy Trust; Shauna White, Lisa White, Debra White Scott, and Mark B. Norton, individually; Andrew H. Cohn, as Trustee of Oyster Pond EP Trust, and their successors-in-interest.

[Note 11] They previously claimed rights to use certain routes over the Flynn Property — Wheldon's Path, Pohogonot Road, and the Road to Short Point — leading to the Beach. The trial judge (Trombly, J.) determined that Plaintiffs held no deeded or prescriptive rights to use these roads. Plaintiffs' did not appeal this finding.

[Note 12] The beneficiaries of the Pohogonot Trust and Short Point Holdings, LLC are Flynn family members.

[Note 13] The Beach Easement obtained from the Pohogonot Trust runs from approximately the Oyster-Watcha Line to the western edge of Paqua Pond.

[Note 14] Sonny Norton's will also devised his claimed "fractional beach interest" in the now-submerged beach to his son, Allen Norton, and his daughter, Wilda White, with a remainder interest in his grandson, Mark Norton.

[Note 15] The filing of such a notice constitutes "a disturbance of the easement to which it relates," G.L. c. 187, § 4, thereby interrupting any adverse use.

[Note 16] There is not an adequate factual basis in the record on which to make a "factual finding that [the Beach at issue] is suited for uses other than the 'usual beach and bathing purposes.'" Accordingly, I do not apply the heightened standard of Gadreault v. Hillman, 317 Mass. 656 , 663 (1945). See White, 464 Mass. at 416 & n.21.

[Note 17] The Land Court's earlier summary judgment opinion made a similar finding, concluding that "the fact that the Flynn[s] acted consistent with [the Perlstein Opinion] after its delivery demonstrates that the Flynn[s] believed [it] was accurate." See White, 464 Mass. at 418 & n. 25. Moreover, that Sonny Norton believed he held an ownership interest the Beach is evident from his devise of the Beach interest in his will, which referred to and annexed the Perlstein Opinion.

[Note 18] Defendants argue that there is no evidence of what Sonny or Uncle George thought about the Perlstein Opinion, or that either family changed their behavior with regard to the Beach after the Perlstein Opinion. I disagree. The testimony of John Flynn that Uncle George and Tom Flynn always told him that the Nortons owned a fractional interest in the Beach is indicative of acceptance of the Perlstein Opinion, which set forth the basis for that fractional interest claim. The statement attributed to Sonny by Uncle George – that Sonny held a one-fifth interest in the Beach – also derives from the Perlstein Opinion and indicates Sonny's acceptance of its conclusion, which was left apparently unchallenged by Uncle George. Finally, the fact that Uncle George and John Flynn relented in their challenge to Allen Norton's authority to sell the fractional beach interests when confronted with the Perlstein Opinion also provides circumstantial evidence of the Flynns' deference to it.

[Note 19] There is also nothing remarkable about Shauna White Smith's request for permission to use the Oyster Pond Section of the Beach in 2000 for a wedding and party, after the dispute among the families had arisen and after the Flynns had already posted their Notices to Prevent Acquisition of Easements on the Beach. If anything, this reflects a "spirit of neighborly accommodation" exercised by Shauna (i.e., despite her family's alleged claim of right) with regard to making an "extraordinary use" of the Beach for a party (i.e., not a usual and customary beach use) in the midst of the erupting dispute among the families.

[Note 20] Notably, Plaintiffs do not (nor can they) claim their prescriptive rights in the Beach through a "color of title" theory. In Massachusetts, if a party establishes adverse possession under color of title, i.e., based on an ineffective document or instrument of title, "the land possessed will be adjudged coextensive with the land described by the deed." Long v. Wickett, 50 Mass. App. Ct. 380 , 382 (2000). Thus, under color of title, an adverse possessor may obtain rights in the whole area described by deed, even if only actually possessing a portion thereof for the required twenty years. Plaintiffs here do not have a deed that provides color of title to the Beach as it exists today (or in any time period after 1938).

[Note 21] While Concerned Citizens does not control here, it is noteworthy that the standard articulated in that case at page 682 – that there must be "substantial identity" between the prescriptive easement claimed and the use made during the prescriptive period – does not deviate appreciably from the Massachusetts "confined substantially" standard expressed in Boothroyd and Stone.

[Note 22] I recognize that the cases squarely addressing this issue fall within the category of prescriptive right of way disputes, and not disputes involving recreational beach easements. (Even Concerned Citizens, the case upon which Plaintiffs rely, is one involving a prescriptive easement of travel.) Nonetheless, these long-standing principles of Massachusetts law guide my resolution of the issues in this case concerning prescriptive beach rights of use, because no argument has persuaded me to deviate from these well-reasoned authorities, nor to articulate a new principle of law, a matter best left to the sound discretion of the appellate courts.

[Note 23] Judy testified that when she visited Allen at Nonamessett during his time in the Navy, she went with him to the Job's Neck Section of the Beach as well as to the Oyster Pond Section. Her testimony, however, was vague, confusing, and contradictory of Allen's more specific testimony concerning their visits to the Oyster Pond Section of the Beach. In fact, Judy also testified that she "was only [at the Norton properties] for one weekend" during the summers of 1956 and 1957. Accordingly, I do not find Judy's testimony to support a finding of any specific continuous uses made of the Job's Neck Section of the Beach by the Nortons during this time frame.

[Note 24] However, Allen testified that he would set up the diving board at both Big Job's Neck Pond and Little Job's Neck Pond.

[Note 25] A home video from the 1970s shows at least ten Norton family members and their vehicles on the beach near Big Job's Neck Pond. Judy Norton, however, stated that the location shown in the home video was a different location than the one the family generally used.

[Note 26] Indeed, Mark Norton testified to having been to the Job's Neck Section of the Beach only three times in the prior twenty-five years. Both Albert and Shauna testified that, following the family's move to the Homestead in 1981 after Sonny's death, they only used the Job's Neck Section of the Beach two to three times per year. Laura Malo, Friedman's longtime girlfriend who lived with him at Nonamesset for seven summers, recalled that they went to the Job's Neck Section for short visits only three to four times per summer, where they congregated on the western shores of Big Job's Neck Pond.

[Note 27] There was also testimony that some Norton family members would drive over the "whole" Beach a few times each year during the off-seasons to check on the land, or in connection with their hunting or fishing activities. However, the evidence demonstrates that these off-season activities were sporadic, at best. In any event, there was no testimony or evidence that these activities were "'confined substantially' to a regular or particular trail or part of the locus." Boothroyd, 68 Mass. App. Ct. at 46.

[Note 28] Plaintiffs presented no testimony nor argument to support a finding that these activities are traditional or commonplace in the Martha's Vineyard beach areas.

[Note 29] See White, 464 Mass. at 413 n.18.

[Note 30] Albert made a general statement that he thought the Norton Family used the Oyster Pond Section more than the Job's Neck Section between 1954 and 1981. This testimony lacks any meaningful specificity. Moreover, Albert's later testimony that the Norton family went to Job's Neck more often than to Oyster Pond until the Short Point Property was sold to Florence and Landon Peters in 1977, contradicts this earlier statement, as does the testimony of virtually every other Norton family member.

[Note 31] Judy testified that she visited the Beach every time she visited with Allen, but admitted that she did not ever visit the Beach in this time frame without Allen, leaving no evidence of beach use beyond the two visits during Allen's leave.

[Note 32] Harry Flynn testified that he saw Frank (Sonny's father) bring his catboat down Oyster Pond to fish on the western part of the Oyster Pond Section, but that it was "rare" and "infrequent." Dorothy Chafee, another Flynn family member, testified that she saw Frank take his boat down to fish in "those early years," but did not provide a specific time frame or frequency for such observations. Judy Flynn Palmer testified that she saw Sonny fishing along the Oyster Pond Section of the Beach during the 1940 to 1972 time frame, before she moved to New Hampshire. She did not indicate how often she observed Sonny fishing. John Flynn testified that he observed Sonny Norton fishing in Oyster Pond (not the Atlantic Ocean) at the Oyster Pond Section of the Beach in the 1950s. This testimony was not couched by any specific dates or with any indication of the frequency that John Flynn made these observations. Moreover, there is no specificity as to where Sonny was located while fishing in Oyster Pond, which is a "Great Pond" in Massachusetts and thus also subject to a public easement for fishing, fowling, and navigation. See Arno v. Commonwealth, 457 Mass. 434 , 449 (2010).

[Note 33] Natalie Conroy, Allen's niece, testified somewhat in contradiction to her other family members, that she joined Allen, Wilda, and their families at the Oyster Pond Section of the Beach on weekends during the summers in this time frame. However, Natalie Conroy did not specify with what frequency she joined the Nortons at the Oyster Pond Section of the Beach. Accordingly, in light of the great weight of the testimony from several other Norton family members (e.g., Allen, Judy, Melissa, and Shauna), as well as Natalie Conroy's testimony that she accompanied the Nortons during these visit to the Oyster Pond Section (and was not, therefore, visiting the Beach in their absence), I find that Natalie Conroy's uses of the Oyster Pond Section of the Beach were coextensive with the Norton's uses during this time frame, i.e., approximately 3-4 Sundays per summer (as described above).

[Note 34] Dorothy Chaffee testified that she spent 2-3 weeks each summer at the Flynn Properties from 1973 to 1984 and then moved to a house at Job's Neck Cove on the Flynn Properties in the early 1980s, spending full summers there. She testified that she saw the Nortons use the Beach at the Oyster Pond Section just to the west from where her own family used the Oyster Pond Section of the Beach. No details were given as to the number of times she made this observation. Dorothy Chaffee's son, Richard "Brad" Keeler testified that he encountered the Nortons and Whites at various sections of the Beach when he was in his 40s (i.e., from 1996 to 2006). The testimony was not any more specific than this. Florence Peters testified via deposition, to her memory that the Nortons "always" used the western portion of the Beach in the Oyster Pond Section (to the west of the cut to the Atlantic Ocean) from when she was a child (in the 1930s) until Sonny died (in 1981). Her testimony, however, is entirely inconsistent with the testimony of nearly every other witness on the subject, including several Norton family members themselves. This portion of Florence Peters' testimony is also contradicted by other portions of her admitted deposition testimony in which she stated that the Nortons' Sunday uses of the Oyster Pond Section began in the 1980s, had "never happened before" then, and that all that she recalled the Nortons ever doing on the beach was fishing. She also testified to her growing irritation with the Nortons' use of the Oyster Pond Section of the Beach beginning in the 1980s, particularly when they congregated in large numbers on the east side of the cut to the Atlantic Ocean.

[Note 35] Upon Sonny's death in 1981, Allen inherited the parcel known as the "Point Camp," along with several other Norton Properties, and Wilda inherited the "Homestead" parcel. It was approximately then, that the Nortons shifted their summer Sunday gatherings to the Oyster Pond Section of the Beach. More particularly, the testimony establishes that, from that point forward, the Nortons consistently gathered on the barrier beach, west of the opening of the cut to the ocean.

[Note 36] Plaintiffs have also pointed to a lease between Sonny and Dr. and Mrs. Gene Gordon dating from 1961-1965, which purported to authorize beach use in the approximate area of the Oyster Pond Section. However, no testimony or evidence was admitted demonstrating any actual use of any section of the Beach by the Gordons.

[Note 37] Robert Carroll testified that he used the Oyster Pond Section of the Beach for "[s]wimming in the ocean. Swimming in the pond. Crabbing in the pond. Did about anything you want."

[Note 38] For example, In his 2005 deposition testimony, Mr. Carroll gave this vague description: "When [Uncle] George opened the beach…from Oyster Pond to the ocean, it would be on that side and there would be Flynns there…. We would go down there…to the opening and do all kinds of stuff. And there were Flynns there on one side, either side they wanted to be.

[Note 39] Robert Carroll also testified in 2005 to accompanying Uncle George at the Paqua Pond when Uncle George would cut the Pond open to the Atlantic Ocean for salinization.