MISC 14-483041

July 11, 2017

Dukes, ss.




Plaintiff Martha's Vineyard Land Bank Commission (the "Land Bank") is the owner of a small, remote, undeveloped oceanfront parcel of land on the Gay Head peninsula in Aquinnah known locally as "Steamboat Landing." [Note 1] The parcel is covered in dense brush and trees and, except near the cliff-side overlooking Vineyard Sound, is surrounded by woods. The Land Bank has no staffed facilities either on the parcel or anywhere near. The nearest public road is a distance away, and the parcel cannot be seen from the road. If there is an isolated part of the Vineyard, this is it.

The area's rolling landscape and dense vegetation hide a narrow sandy path that extends from the overgrown southwest corner of the parcel to the cliff-side above the ocean, from which, by clambering down the rocks on the cliff, a person can get to a secluded section of the town-owned beach below. For decades, with the permission of the Land Bank and its predecessors in title, local residents have occasionally used that path for access to and from the beach, primarily for fishing. There is no public access to the parcel or its path (the path connects to other paths on the private properties around it), and the local residents are alert to outsiders' cars and chase them away. Because of the parcel's remote location, the hilly terrain, and the overgrowth surrounding it, unless the observer is herself on the parcel at the time someone else is walking on it, it is impossible to notice such use. [Note 2] It is also impossible to tell if any particular person is going to the parcel because the way there is occupied by paths and driveways accessing the neighboring houses and properties, and thus in frequent use by persons going to those properties, not the parcel at issue.

During the summer, defendants Hugh and Jeanne Taylor operate a seven-guestroom inn and gourmet restaurant on the Gay Head peninsula (the Outermost Inn), which is less than a ten-minute walk through the woods to the plaintiff's parcel. Despite having at least two other legitimate means of beach access, and without ever giving notice or seeking permission from the Land Bank, the Taylors encourage the guests staying at their Inn to use the path on the plaintiff's parcel to get to the beach, and many of those guests do. They typically cross it twice a day – once to get to the beach, and once to return to the Inn. They are on the plaintiff's parcel only a minute or two as they walk to the beach, none linger on the parcel itself, they leave no sign of having been there, and their passage cannot be seen from the road as they walk through the woods and underbrush. If they were seen, nothing about their dress or activities would distinguish them from the local residents to whom the Land Bank has given permission to use the path.

In this action, in furtherance of its goal to preserve and conserve the land, the Land Bank seeks a declaration that the Taylors, their invitees, and their Inn guests have no right to use the Steamboat Landing parcel, and an associated injunction prohibiting such use. The Taylors object, and contend that their Inn has an appurtenant prescriptive easement, for unrestricted pedestrian use by them and their paying guests, to cross over Steamboat Landing to access the beach. The burden of proving such an easement is on the Taylors and, to do so, they must show, by "clear proof," that they and their guests continuously, openly, notoriously, and adversely used the Steamboat Landing parcel for access to the beach for a period of at least twenty years. See White v. Hartigan, 464 Mass. 400 , 413 (2013); Tinker v. Bessel, 213 Mass. 74 , 76 (1912). Each of these elements must be proved, and "if any element remains unproven or left in doubt, the claimant cannot prevail." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009) (emphasis added).

The case was tried before me, jury-waived. I also took a view. Based on the testimony and exhibits admitted into evidence, my observations at the view, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that the Taylors' and their Inn guests' past use of the Steamboat Landing path was effectively undetectable, and thus was not notorious as the law requires. Accordingly, neither the Taylors nor their guests have a prescriptive easement over Steamboat Landing.


These are the facts as I find them after trial.

Steamboat Landing

Steamboat Landing is a remote, undeveloped, cliff-side parcel of land on the Gay Head peninsula in Aquinnah. [Note 3] It overlooks the ocean (Vineyard Sound) to the north and abuts a larger cliff-side parcel to the west (the "Diem Parcel") that is now also owned by the Land Bank.

Several larger privately-owned wooded parcels to the east and south separate Steamboat Landing from the nearest public way, Lighthouse Road. The Steamboat Landing parcel has no frontage and is accessible only by a path in its southwest corner that connects to several secluded private paths and driveways that branch in different directions over the surrounding properties, [Note 4] or by a steep thirty-foot climb up or down the rocks on the cliff-side on the north where the path ends. The beach at the bottom of the rocks is town-owned, and accessible by entry from other places.

The Steamboat Landing parcel is covered by trees, shrubs, and thick brush. The height and density of the vegetation on the property are relatively constant throughout the year. Because of the vegetation and the area's rolling landscape and rising headlands, the beach is not visible anywhere from Steamboat Landing except from the top of the cliffs. The Steamship Landing parcel itself, much less the path on it, are not visible from the road, only by going overland, through the woods, on the driveways and paths that lead to the other properties on this part of the Gay Head peninsula.

The path at issue is a narrow sandy path, running in a northerly direction from the overgrown southwestern corner of the parcel through the brush and trees to the top of the cliffs, and ending at the cliff-side rocks on which one can clamber to and from the beach. As more fully described below, the Land Bank and its predecessors in title have given permission to the handful of local, year-round residents to use the path to get to the beach, primarily for fishing. [Note 5]

When the Inn is in operation, and pretty much from the time the Inn opened for business in 1990, the Taylors and their paying guests have also used the path. That use, while regular, is typically minimal and brief – a walk across the path in the morning to get to the beach, and a walk back in the afternoon. As I observed during the view, the rolling landscape, dense brush, and trees conceal the route to the Steamboat Landing path, as well as much of the path itself. The pathway on the parcel is so short in length that persons using it to get to or from the beach are on it for only a minute or two, and none linger or leave any sign of their passage. They spend their time on the beach itself. Lighthouse Road (the nearest public way), Pilots Landing Road (the private way which gives vehicle access to the handful of residences on this part of the Gay Head peninsula), those residences, and the Inn itself are all too far away for anyone in those locations to observe persons using the path on Steamboat Landing, and the Land Bank has no staffed facilities either on or in sight of the parcel. The path has been in the same location since at least the mid-1960s, long before the Inn began operations, and looked the same as it does today. [Note 6] Accordingly, I find that Inn guests walking across Steamboat Landing were not, and could not reasonably have been, detected by the Land Bank or its predecessors in title and, even if they had been seen, would have been indistinguishable in dress and conduct from the local residents who had permission to use it.

The Land Bank purchased Steamboat Landing on October 21, 2011 from the Trustees of the Vineyard Open Land Foundation, which had acquired the property on December 30, 1996 from the Trustee of the Cape Cod Company Limited Partnership Nominee Trust (the "Cape Cod Company"). [Note 7] The Land Bank also owns several other properties on or near the Gay Head cliffs, some of which are part of its Aquinnah Headlands Preserve. The Land Bank holds Steamboat Landing for conservation purposes, has no plans to develop it, and is currently in the process of formulating explicit restrictions on its use.

Before the Land Bank purchased Steamboat Landing, persons unknown (but presumably local residents) occasionally placed low chains and stones across the paths on the parcels to the south, thus blocking vehicular access to the area. Sometimes, a "no trespassing" sign was placed on or near those chains. At least some level of pedestrian use continued, however.

The Land Bank began negotiating the purchase of the parcel from the Vineyard Open Land Foundation shortly after the Vineyard Open Land Foundation acquired the property in 1996. By 1996, the Land Bank was aware that Steamboat Landing had a history of use by its nearby residents, that the Steamboat Landing path was being used by those residents for beach access, and that someone had placed a chain across the path leading to Steamboat Landing. It was not until 2010, however, that the Land Bank became aware of the Taylors' and the Inn guests' use of the Steamboat Landing path to reach the beach. [Note 8]

At some point in the past, a small parking area (big enough for only a car or two) existed on the Steamship Landing parcel. After the Land Bank acquired Steamboat Landing, all vehicular access to the parcel was blocked. In October 2011, the Land Bank applied to the town's planning board for a special permit to install fences and gates on Steamboat Landing. It has not yet, however, put any fences or gates there. In June 2013, the Land Bank had the sheriff post a G.L. c. 187, § 3 Notice to Prevent Acquisition of Prescriptive Easement at the southwestern corner of Steamboat Landing at the beginning of the Steamboat Landing path. That notice was recorded at the registry on June 11, 2013.

The Inn Parcel and the Outermost Inn

Steamboat Landing is less than a ten-minute walk from the Inn over dirt driveways and paths that run through the woods between the properties. [Note 9] That route begins near the Inn and proceeds northeast past the Taylors' barn on the adjoining field that is owned in trust by Mr. Taylor and his siblings. The route then continues over Mr. Taylor's sister's wooded land near her summer cottage and then extends further north through an overgrown wooded area over the neighboring private properties. Approximately half-way between the Inn and Steamboat Landing, the route intersects with Pilots Landing Road, a dirt private way, which connects with Lighthouse Road to the east, crosses the path, continues a short distance to the west, and provides vehicle access to the handful of residences on this part of the Gay Head peninsula. As the route continues to the northwest, it intersects with a few private drives before it connects with the southern portion of the Steamboat Landing path. There are no businesses between Steamboat Landing and the Inn and the few houses in the area are barely visible, if at all, from the route and then the path on Steamboat Landing because of the trees and overgrowth surrounding them.

The Inn was previously part of a larger parcel of land owned by Mr. Taylor's parents, who began acquiring property in Aquinnah in the 1960s. Mr. Taylor's parents subdivided their land over time and, in the mid-1970s, conveyed the Inn property to the Taylors. [Note 10] On October 30, 1998, the Taylors conveyed the Inn to the Taylor Realty Trust. The Taylors are the beneficiaries of that trust, and they and Brian Hurley are its trustees.

The Taylors have lived on the Inn parcel since 1970, when Mr. Taylor, a former contractor, started building a house on the property. At that time, there were no other houses between the Taylors' and Steamboat Landing. When the Taylors first moved to the Inn parcel, they built a small house as a temporary residence while they constructed a larger house on the property. They moved into the larger house after it was completed in December 1971, and Mr. Taylor later combined the two houses into one structure that is now the Taylors' seasonal home and the site of the Inn. [Note 11] The Inn's seven guest rooms are on the second floor, the dining area is on the first floor, there is a bar area on the patio, and the Taylors live in the basement.

The Taylors opened the Inn in March 1990. They spent the previous year renovating and expanding the house to accommodate guests, and since then have constructed a number of additions. The Inn was initially open year-round, but since 1993 has been open seasonally from mid-May through mid-October. The Taylors run the Inn and employ approximately thirty staff members each summer. The Inn's occupancy rate is typically between 85% and 90%. Many guests return to the Inn each year, and some visit multiple times each season. For some guests, the Inn's proximity to the beach by Steamboat Landing, which the Inn now advertises on its website, is the primary reason they stay there. Despite this, the Taylors have never paid the Land Bank or any of the predecessor owners of the Steamboat Landing parcel for their guests' use of the path. Moreover, their guests have easy and legitimate access to at least two other beach areas in Aquinnah.

In the early 1990s, the Taylors opened a "fine dining" restaurant at the Inn that is now open to Inn guests each morning for breakfast and to the public six evenings a week for dinner. The restaurant has fourteen tables, each of which seats up to six dinner parties in the evenings.

Use of the Steamboat Landing Path

Prior to 1970

Steamboat Landing has an interesting history. At the turn of the nineteenth century, the Fall River Steamboat Company brought passengers to the beach in front of it to view the Gay Head cliffs. As late as the 1980s, people would drive over Pilots Landing Road, continue driving, park their vehicles on Steamboat Landing, and climb down the cliffs to the beach. [Note 12] Times are different now, particularly with respect to concerns over conservation and preservation from erosion. The Land Bank was created to further such purposes.

Like many other nearby residents, both of the Taylors occasionally used the Steamboat Landing path as children. Ms. Taylor, a life-long resident of Martha's Vineyard, first used the Steamboat Landing path in the mid-fifties when she was five or six years old. As a child, she sometimes accompanied her grandmother on car trips from Menemsha over Pilots Landing Road to Steamboat Landing, where they would park in the area now long-since chained off [Note 13] and then walk over the Steamboat Landing path to the beach.

Mr. Taylor first used the Steamboat Landing path as a child in the early 1960s when his parents began acquiring land by the Gay Head cliffs. Part of the parents' land abutted the westerly and southerly boundaries of Steamboat Landing and extended as far south as the Inn parcel. In the mid-1960s, Mr. Taylor and his family went on family outings and picnics on their land and at times used the Steamboat Landing path to access the beach. Mr. Taylor also used the Steamboat Landing path occasionally during the summers in the mid- to late-1960s when he and his brothers lived in a house on the part of their parents' land to the west of Steamboat Landing (the present-day "Diem Parcel" now owned by the Land Bank) and later, after their mother had the house demolished, when they camped there in tents along the cliffs.

1970 to 1990

After the Taylors moved to the Inn parcel in 1970 and before they opened the Inn in 1990, they each occasionally used the Steamboat Landing path for access to and from the beach where they would sunbathe, swim, look for fossils, and take walks. Ms. Taylor claims that she walked the path from the Inn parcel to the Steamboat Landing path once a month or so, sometimes with her friends, her children, or other relatives. Mr. Taylor claims that his use of the path ranged from up to three times a week to once every two months, depending on beach conditions. The Taylors' son Isaac Taylor, [Note 14] who grew up on the Inn parcel and now lives across the street, claims that as a child in the 1980s he used the Steamboat Landing path with other members of the Taylor family about once every week or two and that he did so with other children from the neighborhood about once a week during the summers and once a month during the "shoulder seasons."

I do not believe that the Taylors used the Steamboat Landing path as often or as regularly as they claim. There are several other routes to the beach by Steamboat Landing, and there are other beaches in the area that the Taylors used as well. Those include the two public beaches to the south of the Inn parcel —Philbin Beach, which is open to local residents (and the Inn's guests), and Moshup Beach, which is open to the general public. The Taylors and their friends often went on walks on the road between the Inn parcel and Moshup Beach, which is within walking distance to the beach by Steamboat Landing. They also walked along the coast between those two beach areas. To the east of Steamboat Landing, there are various other privately-owned paths to the beach that are less steep and easier to use than the thirty-foot high array of rocks up the cliff to the Steamboat Landing path. From the mid-1970s to the mid-1980s, during the summers the Taylors stayed in their cottage on Dogfish Bar, a beach about one-and-one-half mile east of Steamboat Landing, and rented out their house on the Inn parcel. During those summers, the Taylors usually went to the beach by the cottage and seldom used the Steamboat Landing path.

Beginning in 1971, Mr. Taylor occasionally used a tractor and brush box to mow the Diem Parcel and the path that extended from the Inn parcel towards Steamboat Landing up to its intersection with Pilots Landing Road, i.e. well short of the Steamboat Landing parcel itself. He claims that sometimes after mowing the Diem Parcel, he would back his tractor onto Steamboat Landing to the crest of the cliff to trim the brush, brambles, and weeds that covered the area. I doubt that he did this more than a few times. As he admitted at trial, his work on Steamboat Landing was "perfunctory" and "for the benefit of the community that used that access" because no one else in the area had a tractor. He stopped using the tractor there in 1986 when his family sold the Diem Parcel to Peter Diem.

As a matter of courtesy, the successive owners of the Steamboat Landing parcel have allowed local residents to use the path to the beach. [Note 15] Such use has been occasional – fishermen, birdwatchers, school groups looking for fossils on the cliffs – and thus with minimal impact. The use by the Taylors' Inn guests is something else entirely – commercial in nature (the Taylors currently market such use as an amenity of their property), in greater numbers, and daily, when the Inn is open, back and forth.

1990 to the Present

Since opening the Inn in 1990, the Taylors have used the Steamboat Landing path themselves much less often. Ms. Taylor rarely uses it when the Inn is open because she spends most of her time working. She generally walks to the beach only during the "shoulder seasons" and the Taylors' occasional holiday visits to the Inn parcel in the winter. About once every two weeks, Mr. Taylor inspects the path from the Inn to and over Steamboat Landing to ensure that it is in suitable condition for the Inn's guests. [Note 16] About five times a season, he drives guests in a golf cart from the Inn parcel towards the beach, but lets them out before reaching Steamboat Landing because the path becomes too overgrown and unstable for the golf cart. An Inn employee does the same three or four times a season.

Isaac and his children use the Steamboat Landing path for recreation approximately once a month. Isaac, who has a landscaping business, testified that he performed minor maintenance work on the path from the Inn parcel to the beach in 1992 and, since then, occasionally uses a lawnmower, weed whacker, or brush saw on it, sometimes clipping weeds and brush by hand. He testified that he works on the Steamboat Landing path once every week or two during the growing season, but I do not believe that he has ever done anything more than minor trimming, with no noticeable effect. He certainly has not done anything that would alert the path's owners, the Land Bank, that work was being done. The Steamboat Landing parcel is coastal land, under the jurisdiction of the town's Conservation Commission. The Taylors never applied for or obtained any permits for the work they claimed to have done, which would have been needed for anything more than minor trims. As I observed while on my view, the brush that surrounds the Steamboat Landing path is so overgrown that I do not find it credible that Isaac, the Taylors, or anyone on their behalf did anything more than sporadic trimming there, if that. To the extent that they did any work to the Steamboat Landing path, the area is so remote and obscured, and the work done so minor, that no one would have noticed.

The Taylors encourage their Inn guests to use the Steamboat Landing path to access the beach, and have done so since the Inn opened. Indeed, it is currently part of their on-line marketing. At check-in, the Inn receptionist tells arriving guests about the path and how to get there. The Taylors also keep written directions at the reception desk and in the guest rooms. In the past, the Taylors placed small markers such as saw blades, canoe paddles, and arrows at forks in the road along the path and directed guests to follow the markers to reach the beach. They intentionally kept the markers subtle to avoid attracting the public's attention to the route to the beach. They have never placed any markers on Steamboat Landing itself, however.

During the summer season, Inn guests typically use the beach at least once each day of their stay. They wear bathing suits, flip flops, or other beach attire, bring lunches, and carry beach paraphernalia such as beach chairs, towels, blankets, umbrellas, and fishing equipment. Sometimes they take the Inn's unmarked beach towels and beach chairs with them. In this, they look exactly like the local residents who have the Land Bank's permission to use the beach. Inn staff members sometimes use the beach on their time off. The Taylors allow family members and people they know to park on the Inn parcel so they can walk to the beach, but when Ms. Taylor notices people she does not know on their property, she tells them to leave.

Two beaches south of the Inn, Philbin Beach and Moshup Beach, are the main beaches in the area, and Inn guests have full rights to use them. [Note 17] The Taylors give their guests directions on how to walk or drive to these beaches. Inn guests and other members of the public frequently walk along the coast between those beaches, and sometimes further north around the headland to the beaches there, including the area at the bottom of the Steamboat Landing cliff. It is thus impossible to tell how a person on those beaches got to that location simply by looking at them.

The Taylors have never asked or received permission to use the Steamboat Landing path for themselves or their Inn guests, have never told its owners that they and their Inn guests are using the path, and have never made payment or other compensation to the Land Bank or the prior owners of that parcel for such use.

Further relevant facts are set forth in the Analysis section below.


To establish a prescriptive easement, a claimant must show "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 G.L. c. 187, § 2 ("No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years."). The claimant has "the burden of proof on each and every element mentioned above." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). Because a prescriptive easement "is contrary to record titles, and begins in disseizin, which ordinarily is wrongful[,]" the claimant's acts "are to be construed strictly and the true owner is not to be barred of his right except upon clear proof." Tinker, 213 Mass. at 76 (internal citations and quotations omitted). "If any element remains unproven or left in doubt, the claimant cannot prevail." Rotman, 74 Mass. App. Ct. at 589.

The Taylors and their Inn guests have, at least occasionally, used the Steamboat Landing path for over twenty years. They have not attempted to conceal that use, but they have not made it obvious, either. For a prescriptive easement to accrue, the use must be "open and notorious." Because I find that their use was not notorious, the Taylors and their Inn guests have no prescriptive easement over Steamboat Landing. [Note 18]

The purpose of the "open and notorious" requirement is "'to secure to the owner [of the affected land] a fair chance of protecting' his or her property interests." Boothroyd, 68 Mass. App. Ct. at 44 (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)). A use is "open" if it is "without attempted concealment." Boothroyd, 68 Mass. App. Ct. at 44. A use is "notorious" (a separate and independent element) if it is "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." Id. "[A] property owner's actual knowledge of a claimant's adverse use of the property satisfies this element," White, 464 Mass. at 417, but such actual knowledge is not required. See Boothroyd, 68 Mass. App. Ct. at 44. "It is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use." Boothroyd, 68 Mass. App. Ct. at 44.

The Land Bank had actual knowledge of the Taylors' and their Inn guests' use of the Steamboat Landing path at the time it acquired title to the parcel on October 21, 2011. [Note 19] There was no evidence, however, that the prior owners of the parcel had any actual knowledge of the use, and the twenty-year period required for a prescriptive easement stopped in 2013 when the Land Bank posted G.L. c. 187, §3 notice, and certainly no later than April 16, 2014 when the Land Bank filed this action. [Note 20] The burden is thus on the Taylors to prove that their use was "notorious" for at least twenty years prior to those dates, and they have failed to meet that burden. For that use to have been "notorious," it must have been sufficient to have placed the owner of Steamboat Landing on constructive notice of it. Boothroyd, 68 Mass. App. Ct. at 44. I find that it was not.

"'The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land.'" Id. (quoting Tinker, 213 Mass. at 76). In thickly wooded areas with dense brush, such as Steamboat Landing, the claimant must "establish a use, of a degree or character, that would reasonably permit a trier of fact to infer that such a use could have been discovered by a reasonably diligent landowner standing in the shoes of [the owner of the property claimed]." Boothroyd, 68 Mass. App. Ct. at 44-45. In Boothroyd, the neighbor of a landowner claimed that he had a prescriptive easement to use paths on the landowner's thickly wooded property. The neighbor used the paths for recreational purposes such as walking, cross-country skiing, biking, and picking fruits and vegetables, and he occasionally cleared trees that fell in the area. See id. at 40-43. The Appeals Court determined that a reasonably diligent landowner could not have known of or discovered the neighbor's use of the paths, which "were obscured by the trees or dense brush that grew on the land," id. at 46, and thus held that the use was not notorious. See id. at 45-47. The same is the case here.

Here, a reasonably diligent owner of Steamboat Landing would not have discovered that the Taylors and their guests used the Steamboat Landing path for access to the beach because the character of the land obscured their use. Steamboat Landing is isolated in a remote wooded area, undeveloped, covered in trees and dense brush, and separated from the nearest public way by several larger wooded parcels. The Land Bank has no staffed facilities on either the parcel or anywhere nearby. Most of the surrounding area is also undeveloped, except for a few private residences that are set back far in the woods. Steamboat Landing's rolling landscape and dense overgrown vegetation conceal the narrow Steamboat Landing path, which is not visible from the neighboring residences or Lighthouse Road. Both entrances to the Steamboat Landing path — one surrounded by brush in the woods and the other at the top of the steep rocky cliffs overlooking the ocean — are inconspicuous. For those reasons, anyone using the Steamboat Landing path for access to or from the beach, including the Taylors and their guests, would be obscured. Moreover, their use was fleeting (only a minute or two to cross the parcel), infrequent (typically only twice a day – once on the way to the beach, and once returning), they left nothing on the parcel to indicate they had been there, they placed no markers or signs of any kind on the path on the parcel, and the minimal trimming they occasionally performed was unnoticeable. Even had they been seen (and there was no evidence that anyone other than the Taylors or other Inn guests ever did so), nothing about their use or dress would have distinguished them from the local residents who had the Land Bank's or its predecessors' permission. See Boston Seaman's Friend Soc., Inc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251–252 (1985) (holding that defendant's employees' and invitees' parking of vehicles on plaintiff's parking lot was not notorious where their use was indistinguishable from that of employees and invitees of tenant of plaintiff's predecessor in title who also parked there).

In short, neither the Taylors nor their guests did anything on the Steamboat Landing path that would have alerted a reasonably diligent landowner of their use. Compare Bagley v. Senn, 19 LCR 6 (2011) (Piper, J.) (finding that walking, picking berries, playing, and occasionally weedwacking footpaths over wooded lot was not open and notorious "because of the topography, geography, and vegetation of the area, and the difficulty and rarity of seeing others on the footpaths") with Higginbottom v. City of Boston, 23 LCR 98 (2015) (Foster, J.) (finding that clearing and leveling, keeping heavy machinery and trucks on, and putting company signs on fences on undeveloped property, was sufficiently notorious to establish adverse possession of the land). [Note 21]


For the foregoing reasons, neither the Taylors' nor the Inn guests' use of the path on Steamboat Landing was sufficiently pronounced to have placed the prior owners of Steamboat Landing on notice, directly or indirectly, of their use. I thus find and declare that neither the Taylors, their Inn guests, nor the Inn parcel has a prescriptive easement over any portion of Steamboat Landing, and they are thus enjoined from passing through it.

Judgment shall enter accordingly.



[Note 1] As more fully described below, the name dates from a time in the late 1800s when small steamships taking tourists to view the Gay Head cliffs landed at the beach in front of the parcel. All traces of those activities have long since disappeared.

[Note 2] Pilots Landing Road, which gives vehicle access to those residences, is a dirt private way. The path on the Steamboat Landing parcel cannot be seen from that road either.

[Note 3] The Steamboat Landing parcel is shown as Lot 48 on the attached Exhibit 1 (aerial photograph from the Aquinnah assessors' office) and is described in the Land Bank's deed recorded at the Dukes County Registry of Deeds on October 21, 2011 at Book 1257, Page 981. The defendants' Inn parcel is Lot 32.

[Note 4] The driveways lead to the handful of private homes on the peninsula, and the paths to the vacant lots.

[Note 5] There was no testimony of direct permission but, from the totality of the evidence, I infer that such permission was implicitly given and understood as such by the local residents. Unlike the Taylors, none of them have ever made commercial use of the path.

[Note 6] As more fully described below, the Taylors will occasionally do minimal trimming along the edge of the pathway. None of that trimming is obvious, and none makes a noticeable difference to the pathway's appearance.

[Note 7] The exact date the Cape Cod Company acquired title to Steamboat Landing is unclear, but it seems to have done so by the 1960s.

[Note 8] On one occasion before 2010 (he was not sure exactly when), Michael Stutz, who served on the Land Bank's central commission from 1991 to 2006 and has served on the town of Aquinnah's advisory board to the Land Bank since 1999, observed Mr. Taylor point towards Steamboat Landing, tell a guest that he could use the Inn's "private beach," and make quotation signs in the air when he said the word "private." I find that that single incident, without any comment, explanation, or disclosure by Mr. Taylor to Mr. Stutz or anyone at the Land Bank, is not enough to attribute knowledge to the Land Bank of the Taylors' or their guests' use of the Steamboat Landing path. I credit Mr. Stutz's testimony that, before 2010, he did not know that Taylors and their guests used the Steamboat Landing path for beach access.

[Note 9] The route between the Inn and the Steamship Landing parcel over the properties between them (nearly all of which is on driveways and paths that provide access to those other properties) is not at issue in this case.

[Note 10] The Inn parcel is located at 81 Lighthouse Road in Aquinnah, is shown as Lot 4 on Land Court Plan 35915B, and is Lot 32 on the attached Exhibit 1.

[Note 11] The Taylors have used the Inn property only as a summer residence since the winter of 1992/1993. They typically stay there from April or May through October and spend the remainder of the year at their seasonal home in the Bahamas except for occasional holidays spent on Martha's Vineyard.

[Note 12] Vehicles stopped travelling to Steamboat Landing in the late 1980s or very early 1990s after a chain was placed across the path to Steamboat Landing.

[Note 13] See supra note 12.

[Note 14] For ease of reference, I refer hereafter to Isaac Taylor as "Isaac" because he shares a last name with his father.

[Note 15] Because there is no public parking anywhere near the Steamboat Landing parcel, and because the local residents actively enforce the privacy of Pilots Landing Road (a private way) and trespasses on their properties, I find that use by the general public is infrequent, if at all.

[Note 16] The inspection is primarily of the route before it gets to Steamboat Landing, presumably to see what branches may have fallen after storms. The path on Steamboat Landing itself is a narrow sandy path, nothing more, with nothing to inspect, except perhaps for poison ivy.

[Note 17] Philbin Beach is a town beach, requiring a resident's sticker. The Inn provides its guests with such stickers.

[Note 18] The Land Bank contends that is an instrumentality of the Commonwealth, that its predecessor in title, the Vineyard Open Land Foundation, is a non-profit conservation organization, and thus that their respective periods of ownership of Steamboat Landing are exempt from the usual twenty-year period for prescriptive easement claims under G.L. c. 260, § 31 and G.L. 260, § 21. Because I find that the Taylors have no prescriptive easement over Steamboat Landing on other grounds, I need not, and do not, decide whether either statute precludes or affects the Taylors' prescriptive easement claim.

[Note 19] As previously noted, the Land Bank first learned of the Taylors' use in 2010.

[Note 20] "In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land." Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n. 8 (1996).

[Note 21] The elements of adverse possession are the same those required to establish a prescriptive easement, except that the adverse possession claimant's use must also be exclusive. See Boothroyd, 68 Mass. App. Ct. at 44 n.9.