JOHN R. LOISELLE and JANE W. LOISELLE, as Trustees of the Loiselle Family Trust, et al. vs. BRIAN S. HICKEY and MARY P. HICKEY, et al.

This action is the latest episode in a long-running dispute between neighbors in a seaside community in Dennis. [Note 1] At the center of the dispute is the alleged right of inland owners to use various rights of way originally laid out in the early part of the Twentieth Century to gain access to Cape Cod Bay. Plaintiffs claim that they and their predecessors had done so for decades without incident. [Note 2] However, in 2009, the owners of two seaside lots whose properties abutted one of the ways (Defendants Brian and Mary Hickey (the "Hickeys") and the Hay Dennis Realty Trust (the "Hay Dennis Trust")) allegedly decided that they wanted the practice (to the extent it was in fact occurring) to stop, and thus sued Plaintiffs, seeking a ruling that they owned the fee in the relevant way, and that their inland neighbors had no right to use the way.

That effort was unsuccessful. In Hickey v. Pathways Association, Inc., 472 Mass. 735 (2015) ("Hickey I"), the Supreme Judicial Court ("SJC") held, among other things: (a) that "[the developers] reserved for themselves, and presumably their heirs, the fee interest in the ways to the beach", id. at 752, (b) that "[r]etaining the fee in the way provided [the developers] . . . rights to the waterfront which they could convey to subsequently developed inland lots", id. at 749, (c) that "[t]he way thus created, along with the two other ways between waterfront lots shown on the [same plan], are, on the face of the plans, part of an integral scheme of ways in a neighborhood, providing access to the waterfront", id. at 749, and (d) that "[the developers] intended to grant rights over the way to [most of the Defendants in Hickey I]", id. at 761. [Note 3] [Note 4]

Having secured a ruling that they held rights in the way at issue in Hickey I (hereinafter, the "Hickey Way"), Plaintiffs thereafter filed this case, seeking declaratory judgments with respect to (a) the ownership of the tidal flats between the lines of mean high water and mean low water (the "Disputed Flats"), and (b) Plaintiffs' appurtenant easement rights (if any) to use said Disputed Flats for normal beach purposes. [Note 5] In other words, having been adjudged to hold rights in the Hickey Way, Plaintiffs now seek a ruling as to the scope of their rights in the area accessed by that way.

To that end, Plaintiffs [Note 6] filed their unverified Complaint on June 17, 2016, seeking, pursuant to G. L. c. 185, § 1(k), a judicial declaration(a) that Defendants [Note 7] do not own the portions of the Disputed Flats abutting their respective properties, and that the Disputed Flats were severed and reserved by the original developers of the land; and (b) that Plaintiffs' properties are benefitted by appurtenant easements to use the Disputed Flats for normal beach purposes.

The Hickeys filed their Answer on June 27, 2016. The Conservation Trust filed its Answer on July 20, 2016. On July 21, 2016, the Copps, Lepore, the Sulimans, the Greenfields, and the Bayview Trust each filed their Answer and Counterclaim. The Galvanis filed their Answer and Counterclaim on July 25, 2016. Shore Drive filed its Answer and Counterclaim on August 10, 2016. The Hay Dennis Realty Trust, Keady, the Daniels Trust, the Springer Trust, Schimmel, [Note 8] and the Andreottolas jointly filed an Answer on August 12, 2016. Eysie filed his Answer and Counterclaim on August 16, 2016. [Note 9] Happiness Ass'n filed its Answer and Counterclaims, and the Thurmonds filed their Answer, on August 18, 2016. Also on August 18, 2016, Plaintiffs filed their Answers to the Counterclaims of Shore Drive, the Galvanis, Lepore, Greenfield, the Sulimans, the Copps, and the Bayview Trust. A case management conference was held on August 18, 2016. Thereafter, the Wells Trust filed its Answer on September 2, 2016, and Salamone filed his Answer on September 6, 2016. On January 31, 2017, Plaintiffs filed an Answer to the Counterclaims of Happiness Ass'n and Eysie.

On November 14, 2016, the Daniels Trust, the Springer Trust, the Hickeys, the Schimmel Trust, Keady, the Andreottolas, and the Hay Dennis Trust filed their Motion for Summary Judgment. [Note 10] On December 13, 2016, the parties appeared for a status conference to set the date for a hearing on the Rackemann Defendants' Summary Judgment Motion, and to determine which of the remaining Defendants should be defaulted. On the same date, Lepore, the Sulimans, the Copps, the Greenfields, Shore Drive, the Bayview Trust, and the Conservation Trust filed their own Motion for Summary Judgment. [Note 11] A hearing was held on both Summary Judgment Motions on February 13, 2017, and the matter was taken under advisement at that time. [Note 12]

Based upon the parties' statements of proposed undisputed facts and the admissible evidence annexed to the parties' summary judgment briefs, I FIND that the following material facts are not in dispute for purposes of the Rackemann Defendants' and the Nutter Defendants' Motions for Summary Judgment:

1. As noted, Plaintiffs are forty-four owners of inland registered land within the original Tobey Tract, whose properties are shown on Plans 647-G, 647-I, 647-M, 647-R, 647-S, 647-2, 647- 8, 647-11, and 647-15. See note 6, supra. Defendants are twenty-two owners of waterfront lots within the Tobey Tract, which are shown on Plans 647-D, 647-F, 647-G, 647-10, 647-21. The tidal flats located between the mean high and mean low water lines adjacent to these lots are the Disputed Flats in dispute in this case.

2. The Tobey Tract was originally registered in 1903 by Francis Bartlett Tobey. [Note 13] The Tobey Tract was first described in Document 25 on Land Court Certificate of Title 16, on file in the Barnstable County Registry District (the "Registry"). The full area of the Tobey Tract (217.24 acres "above mean high water") is shown on Plan 647-A. [Note 14] The A-Plan shows the northern boundary of the Tobey Tract as a dashed line labeled "mean high water", with the designation "Cape Cod Bay" beyond. The metes and bounds of the lot provide measurements in feet along this water boundary, and the lot's monuments along the water contain dashed lines extending into the water. The description of the Tobey Tract in Tobey's certificate of title begins at its northeastern corner, from which it describes the lot proceeding "[n]ortherly by Cape Cod Bay, measuring on the line of mean high water". When it reaches the northwesterly corner of the Tobey Tract, the description then states that the Tobey Tract proceeded "thence still . . . to low water mark or the line to which private ownership may extend". [Note 15] From that point, the Tobey Tract's landward boundary lines are described until the lot reaches the point of beginning. There, the description again provides the language "thence still . . . to low water mark or the line to which private ownership may extend". [Note 16]

3. The first subdivision of the Tobey Tract took place in March of 1916, when the easterly portion was subdivided into 228 lots, which are shown on Plan 647-B. The properties on the B-Plan run from the northeasterly corner of the Tobey Tract to the carve-out Lot "C" shown on the A-Plan (which is also shown on the B-Plan), and roughly includes the area of the Tobey Tract inland from those points. Along the seaside (northerly) boundary of the land shown on the B-Plan is a lot labeled "E" ("Beach Lot B-E"), which runs between (and is accessed by) streets labeled "G Street" on the east and "B Street" on the west. Beach Lot B-E appears to be an upland beach, and it is shown as including most of the land between what appears to be the coastal bank and Cape Cod Bay. [Note 17] Landward of Beach Lot B-E are fourteen lots along a street labeled "A Street", with four ten-foot wide ways leading from A Street to Beach Lot B-E every two to three lots. [Note 18]

4. Tobey died testate without issue in 1913, and the Tobey Tract thence passed to his heirs: his nephew and two nieces by Tobey's sister, Ruth. By Order of the Land Court dated June 16, 1917, Tobey's certificate of title 16 was cancelled, and a new certificate of title (Document 436 on Certificate of Title 307) was issued on June 21, 1917 to Lunette Luscombe, Ruth T. Morley, and Asa F. Shiverick ("Luscombe/Morley/Shiverick"). [Note 19] This Certificate of Title 307 contained the same metes and bounds description as Tobey's original Certificate of Title 16. It also specifically provided that it was subject "to any and all public rights legally existing in and over the same below mean high water mark" (the "Colonial Ordinance Rights"). [Note 20]

5. By deed dated November 2, 1925, Luscombe/Morley/Shiverick conveyed the Tobey Tract to Walton S. Delano, Joseph W. Whitcomb, and Harry D. Neal, as trustees of the Nobscussett Realty Trust (the "Nobscussett Realty Trust"), which was created by Declaration of Trust dated October 20, 1925. Upon this transfer, Certificate of Title 1094 issued in the name of the Nobscussett Realty Trust. [Note 21] The metes and bounds description matches that of Tobey's original Certificate of Title 16.

6. The next subdivision of the Tobey Tract is shown on Plan 647-C. The land shown on the C-Plan is labeled lot "E" (Lot C-E), which is roughly a square located just to the west of the land shown on the B-Plan. This area corresponds to the location of the former Nobscussett House hotel and grounds.

7. Following this subdivision, by deed dated January 13, 1928, the trustees of the Nobscussett Realty Trust conveyed Lot C-E to Harry D. Neal in his personal capacity. [Note 22] The C-Plan shows the northerly boundary of Lot C-E as "Cape Cod Bay." Certificate of Title 1689 for Lot C-E thus issued in the name of Harry D. Neal, describing the northerly boundary of that lot as "Northwesterly by Cape Cod Bay about one thousand (1000) feet", and noting that the land was subject to the Colonial Ordinance Rights.

8. By deed dated February 11, 1933, Harry D. Neal -- apparently not having found success in the hotel business -- conveyed Lot C-E back to the Nobscussett Realty Trust. Certificate of Title 3170 issued for Lot C-E in the name of the Nobscussett Realty Trust, describing the northerly boundary of that lot as "Northwesterly by Cape Cod Bay about one thousand (1000) feet". It also specifically referenced the Colonial Ordinance Rights.

9. By deed also dated February 11, 1933, the Nobscussett Realty Trust deeded all of the Tobey Tract (including Lot C-E) to Scargo Realty, Inc. [Note 23] Certificate of Title 3171 for the Tobey Tract thus issued on February 14, 1933 in the name of Scargo Realty, Inc. [Note 24] This conveyance was subject to the Colonial Ordinance Rights and was made "subject to and ha[d] the benefit of all outstanding rights of way, if any such there be, and so far as the same are now in force and applicable."

10. By deed dated June 12, 1935, Scargo Realty, Inc. deeded the Tobey Tract back to the heirs of Tobey: to Lunette Luscombe (2/3 interest) and Ruth T. Morley (1/3 interest) ("Luscombe/Morley"). [Note 25] Certificate of Title 3710 thus issued for the Tobey Tract in the name of Luscombe/Morley on June 12, 1935, subject to the Colonial Ordinance Rights. Included in this registration and separately described was Lot C-E. The northern boundary of Lot C-E was defined as "Northwesterly by Cape Cod Bay about one thousand (1000) feet."

11. The next subdivision of the Tobey Tract occurred in August of 1936, shortly after Luscombe/Morley reacquired the property. It is shown on Plan 647-D. The D-Plan shows five seaside lots (labeled F through J) just to the east of the land shown on the C-Plan. The D-Plan shows the northerly boundary of these lots as a line designated "Mean High Water Mark", beyond which the description "Cape Cod Bay" is seen. [Note 26] Abutting Lot D-J to the west is the Hickey Way, shown as a twenty-foot wide way running from a forty-foot wide road labeled succinctly as "Road" to the water line. The D Plan also showed a forty-foot wide road (again, labeled only "Road") on the easterly side of Lot D-F running from Town Road (which runs parallel to the seashore farther inland) to the water line; that road and the Town Road are also shown on the C-Plan. [Note 27]

12. Following this subdivision, by deed dated September 4, 1936 (Document 8841 on Certificate of Title 4063), Luscombe/Morley conveyed the lots shown on the D-Plan (Lots D-F through D-J) to Donald B. Aldrich ("Aldrich"). The deed to this conveyance and the certificate of title described the northerly boundary of the land conveyed as "by the waters of Cape Cod Bay". [Note 28] Upon this conveyance, Certificate of Title 4063 issued to Aldrich, similarly describing the northerly boundary of the property as "Northwesterly by the waters of Cape Cod Bay." [Note 29] Each of these certificates are made subject to the Colonial Ordinance.

13. The next subdivision of the Tobey Tract occurred in April of 1937, as shown on Plan 647-E. The E-Plan shows the land on the far western edge of the seaside boundary of the Tobey Tract (to the east of what would later be laid out on the then-forthcoming Plan 647-F). The E-Plan created three new lots: a seaside lot to the west of a forty-foot wide road shown as Bayview Road, which ran to the water line ("Beach Lot E-K") and Lots E-L and E-M (inland lots that are now used as parking lots for users of Beach Lot E-K. The northerly boundary of Beach Lot E-K was indicated as "Cape Cod Bay." [Note 30]

14. Following this subdivision, by deed dated June 19, 1937 (Document 9522), Luscombe/Morley conveyed the lots shown on the E-Plan to the Town of Dennis (the "Town"). The deed described the northern boundary of Lot E-K as "bounded on the North by the waters of Cape Cod Bay, there measuring about 450 feet". Certificate of Title 4361 issued in the name of the Town, also describing the northerly boundary of Lot E-K as "by Cape Cod Bay", and noting that the properties were subject to the Colonial Ordinance Rights. [Note 31]

15. The next subdivision of the Tobey Tract occurred in July of 1938, as shown on Plan 647-F. The F-Plan subdivided the seaside portion of the Tobey Tract between the land shown on the D-Plan and the E-Plan into thirteen lots labeled "N" through "Z". Bounding these lots to the east and west, respectively, are the Hickey Way (Lot D-J is also partially shown) and Bayview Road (Beach Lot E-K is also partially shown). Bounding the lots on the F-Plan to the south is a forty-foot wide way described only as "Way" (now known as Shore Drive) that runs parallel to the ocean. [Note 32] The lots are bounded to the north by Cape Cod Bay. [Note 33] The F-Plan shows three ways running from Shore Road to Cape Cod Bay. The first of these is the twenty-foot-wide Hickey Way, which runs between Lot D-J and Lot F-X. The other two are ten feet wide, and run between Lots F-N and F-O and F-Q and F-R.

16. In the eight months after the filing of the F-Plan, Luscombe/Morley deeded out six of the thirteen lots shown on the F-Plan (Lots F-R through F-W). By deed dated July 27, 1938 (Document 10383 on Certificate of Title 4786), Luscombe/Morley conveyed Lots F-S and F-T to Bertha S. Schimmel. [Note 34] By deed dated August 13, 1938 (Document 10434 on Certificate of Title 4780), Luscombe/Morley conveyed Lot F-W to Louis A. Byrne. [Note 35] By deed dated August 13, 1938 (Document 10442 on Certificate of Title 4786), Luscombe/Morley conveyed Lots F-U and F-V to Henry L. Murphy. [Note 36] By deed dated March 8, 1939 (Document 10982 on Certificate of Title 4996), Luscombe/Morley conveyed Lot F-R to Patrick P. and Anna M. Welsh (the "Welshes"). [Note 37]

17. The next subdivision of the Tobey Tract occurred in 1939 with Plan 647-G. [Note 38] The G-Plan re-subdivided the westerly portion of Lot C-E, as well as an area of land inland of the former Lot C-E, out of which Lots G-231 through G-234 were created. [Note 39] The G-Plan also contained a second sheet, which subdivided an area inland of Shore Drive from Lots D-F on the east through F-P on the west, creating Lots G-235 through G-262.

18. Following this subdivision, by deed dated December 27, 1939 (Document 11726 on Certificate of Title 5298), Luscombe/Morley conveyed Lots G-231 and G-232 to Joseph Paré, Jr. ("Paré"). [Note 40]

19. The next subdivision of the Tobey Tract also occurred in 1939, when Luscombe/Morley further subdivided the Tobey Tract by Plan 647-H. The H-Plan subdivided a strip of the Tobey Tract inland from Shore Drive (across from Lots F-R to the east through F-W to the west) near its northwesterly side, and bounded by Bay View Road to the west, thus creating Lots H-A1 through H-A23. None of these lots abuts Cape Cod Bay. [Note 41]

20. On April 22, 1940, Luscombe/Morley conveyed out two lots shown on the H-Plan. By the first of these deeds (Document 12609 on Certificate of Title 5666), Luscombe/Morley conveyed Lot H-A2 to Lyndon M. Evelyn (the "Lot H-A2 Deed"). That deed specifically provided that "[t]he grantors intend to convey to the grantee . . . the right to use the beach reserved by the grantors for use of the lot owners in this development." By the second of these deeds (Document 12610 on Certificate of Title 5667), Luscombe/Morley conveyed Lot H-A3 to G. Parthenia Ellis (the "Lot H-A3 Deed"). That deed specifically provided that "[t]he grantors intend to convey to the grantee . . . the right to use the beach owned by the grantors for recreational purposes." [Note 42] [Note 43]

21. After 1940, likely owing to the outbreak of World War II, the development of the Tobey Tract slowed, with only a few scattered conveyances (none relevant here) until late 1944. In that year, Luscombe/Morley conveyed out most of the remaining F-Plan and G-Plan lots that they then still held. By deed dated August 28, 1944 (Document 15830 on Certificate of Title 7000), Luscombe/Morley conveyed Lots G-233 and G-234 to Anne T. Schweinler. [Note 44] By deed dated August 28, 1944 (Document 15855 on Certificate of Title 7015), Luscombe/Morley conveyed Lots F-X and F-Y to Eugene J. Waldron and Harriett J. Waldron (the "Waldrons"). [Note 45] By deed dated August 28, 1944 (Document 15856 on Certificate of Title 7016), Luscombe/Morley conveyed Lots F-Z and F-N to Herbert R. Daniels and Joan B. Daniels (the "Danielses"). [Note 46] By deed dated October 24, 1944 (Document 16085 on Certificate of Title 7134), Luscombe/Morley conveyed Lot F-O to John J. and Ruth E. Byrnes (the "Byrneses"). [Note 47] [Note 48]

22. The next subdivision of the Tobey Tract occurred in October of 1944 with Plan 647-J. The J-Plan subdivided the easterly portion of Lot C-E (along Cape Cod Bay between the land shown on the B-Plan to the east and the G-Plan to the west). The J-Plan created Lots J-263 and J-276 (which have northerly boundaries on Cape Cod Bay), as well as a number of inland lots numbered J-264 through J-275. [Note 49] [Note 50]

23. Following this subdivision, by deed dated October 24, 1944 (Document 16320 on Certificate of Title 7223), Luscombe/Morley conveyed all of the lots shown on the J-Plan (Lots J-263 through J-276) to Paré and his wife Grace. [Note 51] As a result of this conveyance, with the exception of Lots G-233 and G-234, Paré owned all of the waterfront portion of the former Lot C-E.

24. On March 15, 1945, the Town of Dennis took title by eminent domain to a parcel of land at the end of the Town Road (between Lots D-F and G-234) on the edge of Cape Cod Bay for the purpose of providing "a common landing place". The instrument of taking (Document 16466) described the taken parcel as follows:

"Common Landing" at the northerly end of Shore Drive, Dennis, beginning at a D.R.B. in the westerly side line of Shore Drive (Town Way); thence north 24° 50' 40" west, 72 feet, more or less, by the land of Donald B. Aldrich, et ux., Land Court case #647, cert. #4063, to a point in the mean high water mark of Cape Cod Bay; thence same course into the waters of Cape Cod Bay 16,500 feet to a point; thence easterly on a line 16,500 feet distant from the mean high water line of Cape Cod Bay to a point; thence south 24° 50' 40" east, 16,500 feet to a point in the mean highwater mark of Cape Cod Bay; thence same course, 74 feet, more of less, by the land of Anna T. Schweinler, Land Court Case #647, cert. #7000, to a D.R.B. in the easterly side of Shore Drive; thence south 65° 09' 20" west, 40,00 [sic] feet by the northerly end of Shore Drive to the point of beginning."

25. Lunette Luscombe died testate in 1947. Thus, pursuant to an Order of the Land Court dated October 1, 1948, Transfer Certificate of Title 10185, dated December 14, 1948, issued for the remainder of the Tobey Tract that had not already been deeded out in the names of Morley (1/3 interest), Helen U. Leatherbee (1/3 interest), Louise Luscombe (1/6 interest), and Henry J. Ullman, Jr. (1/6 interest). [Note 52] The certificate of title contains the same description of the Tobey Tract that had carried forward since Tobey's original Certificate of Title 16, with exceptions for lots conveyed out.

26. Henry J. Ullman, Jr. also died shortly following this conveyance. By deed and Indenture of Trust dated July 9, 1951, Morley, Helen U. Leatherbee, and Louise Luscombe jointly conveyed their total 5/6 interest in the remainder of the Tobey Tract to a new Nobscussett Realty Trust (the "New Nobscussett Trust"). Certificate of Title 13480 issued on January 2, 1952 to reflect this conveyance. By deed dated July 21, 1955, William R. Dickinson, Jr., executor of the will of Henry J. Ullman, Jr. conveyed his 1/6 interest in the balance of the Tobey Tract to the New Nobscussett Trust. Certificate of Title 18138 issued in the name of the New Nobscussett Trust for the remainder of the Tobey Tract on August 3, 1955. [Note 53]

27. The next relevant subdivision of the Tobey Tract took place in 1954, with Plan 647-M, which subdivided the remaining area of the Tobey Tract (inland from the land on the G-Plan and H- Plan), which, to that point, had not already been subdivided (as well as a small portion of Plan 647- H2).

28. Two years later, the next relevant subdivision of the Tobey Tract occurred with the approval of Plan 647-W. By the W-Plan, Paré subdivided Lot G-231 and a portion of Lot J-276 (both then owned by Paré) into Lots W-420 ("Beach Lot W-420"), which bordered on Cape Cod Bay, as well as a number of inland lots (Lots W-412 - W-415 and W-417 - W-448). [Note 54]

29. By deed date November 30, 1960, Paré conveyed Lot W-412 to David G. Boulsbee and Elsie M. Boulsbee. This deed contained the following relevant language:

Said [Lot W-412] is conveyed together with the right and easement as appurtenant to the said [Lot W-412] conveyed to pass and repass over the three foot (3') Private Way shown on Plan 467-W to and from the beach together with the right and easement as appurtenant to the granted [Lot W-412] to use the beach shown as [Beach Lot W- 420] on Plan 647-W for all recreational purposes including but not limiting such use as swimming, bathing, boating, fishing, and such other activities and things as beaches are commonly used.

Certificate of Title 26125 was issued for Lot W-412 on December 9, 1960.

30. The next relevant subdivision of the Tobey Tract occurred in 1963 with Plan 647-Z. [Note 55] By the Z-Plan, Paré subdivided the remainder of Lot J-276 (part of which had already been subdivided by the W-Plan) into Lots Z-449 through Z-461. Lot Z-461 ("Beach Lot Z-461") borders on Cape Cod Bay (without any notation of the mean high water line) and contains the description "Beach Lot". [Note 56]

31. By deed dated October 9, 1967, Paré conveyed Lot Z-456 to Henry J. Hill, Jr. and Gloria C. Hill. That deed contains the following language:

Said [Lot Z-456] is conveyed together with the right and easement as appurtenant to the said Lot conveyed to pass and repass over the eight foot (8') Private Way shown on [Plan 467-Z] to and from the beach, together with the right and easement as appurtenant to the granted [Lot Z-456] to use the beach shown on [Beach Lot Z-461] for all recreational purposes including but not limiting such use as swimming, bathing, boating, fishing and such other activities and things as beaches are commonly used.

Certificate of Title 41180 was issued for Lot Z-456 on October 13, 1967.

32. By deed dated October 25, 1973, George Monroe Morley and John Howland Leatherbee, as trustees of the New Nobscussett Trust, deeded Beach Lot B-E to the Nobscussett Property Owners Association, Inc. ("NPOA"). [Note 57] By this deed, the New Nobscussett Trust reserved the right to grant easements as follows:

The grantors reserve the right to grant easements to pass over the granted premises from the above-numerated lots [Lots B-1, B-2, B-3, B-5, B-7, B-9, B-11, B-13, B-15, B-17, B-19, B-21, B-23, and B-25], the four mentioned ways, 10 feet in width, and the two mentioned ways 40 feet in width to and from the waters of Cape Cod Bay, said easements to be granted to the owners of the above-mentioned lots and to the owners of other lots shown on the above described plan [the B-Plan, Sheet 1], and also to the owners of the lots shown on [the B-Plan, Sheet 2].

33. By a deed dated December 30, 1980, Paré conveyed Beach Lot W-420 and Beach Lot Z-461, as well as the eight-foot wide way shown on the Z-Plan, to Nobscussett Heights Paré Estates, Inc. ("NHPE"). Transfer Certificates of Title 84357 and 84358 issued in the name of NHPE for these lots.

34. By Transfer Certificate of Title 84468, dated February 2, 1981, Ellen Jane McGinnis ("McGinnis") was noted as the registered owner of Lot B-90. By document dated July 2, 1982, the New Nobscussett Trust granted McGinnis "an easement to pass over . . . [Beach Lot B-E] and over four (4) Ways 10 feet in width running to said [Beach Lot B-E] and over G Street and B Street, all as shown on [the B-Plan], to and from the waters of Cape Cod Bay, said right and easement to be used in common with others entitled thereto. Said easement is granted to be appurtenant to land of the Grantee shown as [Lot B-90]."

35. By Express Grant of Easement dated September 4, 2007 (Document 1077829 on Certificates of Title 84357 and 84358 ), NHPE, as owner of Beach Lot W-420 and Beach Lot Z-461, granted Lots W-421 and W-428 the following rights:

The right to pass and repass over the eight foot (8) wide private "way" shown on [the Z-Plan], from Luscombe Lane to and from "Beach Lot" 461 shown on said plan, together with the right, in common with others entitled thereto to use, for swimming, bathing, walking, fishing and all other recreational purposes for which beaches are commonly used, the following described lots: [Beach Lot Z-461 and Beach Lot W-420]; together with the right to pass and repass over the three (3), foot wide strip of land contained in said lot 420 to and from Luscombe Lane.

The owners of Lots W-421 and W-428 are not parties to this action.

36. None of the certificates of title to the lots owned by Plaintiffs contain language that specifically grant "beach access" or "beach use" rights in the Disputed Flats, nor do any of the certificates of title to Defendants' properties reference any rights in the Disputed Flats other than various references to the Colonial Ordinance Rights.

37. Some of Plaintiffs' certificates of title contain specific language referencing easement rights to ways within the Tobey Tract, but most do not. The specific references are as follows:

(a) The certificate of title to Lot R-396 (owned by John and Sarah Gray under Certificate of Title 207092) contains language stating that "[t]here is appurtenant to said land a right of way over the 40 foot Way to Beach Street in common with others entitled thereto."

(b) The certificate of title to Lot 15-571 (owned by Arthur Maressa under Certificate of Title 110223) contains language stating that "[t]here is granted herein an easement over Independence Way as shown on the hereinabove mentioned plan [Plan 647-15], for all purposes for which rights of way are commonly used in the Town of Dennis and more particularly for securing means of access to the land conveyed herein."

(c) The certificate of title to Lot 15-558 (owned by Stephen and Marcia Delvecchio under Certificate of Title 202141) contains a reference to Document 227584, which provides that "[t]here is granted herein an easement over the ways as shown on [the 15-Plan] . . . , for all purposes for which ways are commonly used in the Town of Dennis and more particularly for securing means of access to the land conveyed herein."

(d) The certificates of title to the Bohn-Furman Realty Trust's Lot 8-525 (Certificate of Title 193188), Thomas and Ursula Daley's Lots I-C8 and I-C10 (Certificate of Title 195315), Martin J. Jessel's Lot 8- 523 (Certificate of Title 129337), the Loiselle Family Realty Trust's Lot G-259 (Certificate of Title 184672), LoVerme Bayview, L.P.'s Lot 2-472 (Certificate of Title 198044), Thomas M. O'Hear's Lot M-335 (Certificate of Title 156384), Mark S. and Patricia M. Pelletier's Lot 8- 522 (Certificate of Title 208558), Lewis Piantedosi's Lot G-237 (Certificate of Title 190482), the BPR Irrevocable Trust's Lot M-337 (Certificate of Title 164891), Christopher P. and Christine Tosti's Lot 8-515 (Certificate of Title 178757), and Ronald W. Young's Lot G-236 (Certificate of Title 52287) each contain language granting the right to use the ways shown on each parcel's plan, which reads as follows: "[t]here is appurtenant to said land a right to use the Ways shown on said Plan for all purposes, in common with others entitled thereto." [Note 58]

38. The certificates of title to the Gayle A Ciaramicoli's Lot S-400 (Certificate of Title 183119), the Thomas and Ursula Daley's Lots I-C8 and I-C10 (Certificate of Title 195315), Joseph A. and Diane Donato's Lots I-C11 and I-C14 (Certificate of Title 181324), Pamela J. Driscoll's Lot 8-525 (Certificate of Title 166995), the Estate of Mary H. Maguire's Lots G-257 and G-258 (Certificate of Title 123333), John F. and Judith S. Howard's Lot 15-565 (Certificate of Title 72256), Arthur Maressa's Lot 15-571 (Certificate of Title 110223), Thomas M. O'Hear's Lot M-335 (Certificate of Title 156384), the Patriots Way Realty Trust's Lot 15-563 (Certificate of Title 168381), Kenneth Pecore's Lots G-255 and G-256 (Certificate of Title 202965), Robert M. Pierce's Lot 15-568 (Certificate of Title 163760), the BPR Irrevocable Trust's Lot M-337 (Certificate of Title 164891), and John J., Susan L., Michelle T., Kristin M., and Elizabeth A. Walker's Lot 15-569 (Certificate of Title 190691) each make an express reference to earlier certificates of title associated with the Tobey Tract, specifically, Certificates of Title 3710; 10185; 13480; and/or 18138. [Note 59] The other thirty certificates of title held by Plaintiffs do not make such an express reference.

39. As noted, in Hickey I, the SJC held that some Plaintiffs in this case have easement rights in the Hickey Way. While the discussion in Hickey I provides some suggestions as to what the SJC thought might have been the purpose of the "scheme of ways" discussed in Hickey I, that question was not adjudicated by the parties to that case, nor was the question of the parties' rights in any of the F-Plan ways other than the Hickey Way.

**************************

Summary judgment under Mass. R. Civ P. 56(c) "'shall be rendered . . . [if] there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 202 (1991) (quoting Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976). Where, as here, the defendant seeks summary judgment dismissing the plaintiff's case, summary judgment is appropriate where the moving party demonstrates that there is an absence of evidence to support the non-moving party's case. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 32 (2006) (citing Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1911)). In reviewing such a motion, the court is to "make all permissible inferences favorable to the nonmoving party, here the plaintiffs, and resolve any disputes or conflicts in the summary judgment materials in their favor." Carey v. New England Organ Bank, 446 Mass. 270 , 273 (2006).

Defendants, in their respective Motions for Summary Judgment, argue that they own the fee to the Disputed Flats adjacent to their respective properties. They further argue that, irrespective of ownership of the Disputed Flats, Plaintiffs have no rights in the Disputed Flats other than the Colonial Ordinance Rights enjoyed by all members of the public. Defendants thus request that Plaintiffs' easement claims be dismissed, with prejudice. Plaintiffs dispute each of these points, arguing that the common scheme grantors of the Tobey Tract reserved the fee to the Disputed Flats, and that said grantors intended to convey to inland property owners appurtenant easements for normal beach use of the Disputed Flats. I shall examine each substantive issue presented by Defendants' Summary Judgment Motions in turn.

Ownership of the Disputed Flats

In cases, like this, involving construction of deeds, I must attempt to ascertain the meaning of the relevant deeds, as "derived from the presumed intent of the grantor, [which] is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." Bernier v. Fredette, 85 Mass. App. Ct. 265 , 269 (2014) (quoting Patterson v. Paul, 448 Mass. 658 , 665 (2007)). Where deeds are ambiguous, "[r]ules of deed construction provide a hierarchy of priorities for interpreting descriptions in a deed. Descriptions that refer to monuments control over those that use courses and distances; [and] descriptions that refer to courses and distances control over those that use area . . . ." Bernier, 85 Mass. App. Ct. at 269 (quotation omitted).

As noted, supra, based upon the Colonial Ordinance of 1641-1647, littoral property owners are presumed to own the land to the lesser of the mean low water mark or 100 rods (1,650 feet). Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 , 635 (1979). Based upon this rule:

The presumption of law is, that title to the flats follows that of the upland on which they lie, and proof of title to the upland established a title to the flats. [A]n owner may separate his upland from his flats, by alienating the one, without the other. But such a conveyance is to be proved, not presumed, and therefore ordinarily proof of the title in the upland thus bounded carries with it evidence of title in the flats. Since the passage of the [Colonial] ordinance, a grant of land bounding on the sea shore carries the flats in the absence of excluding words.

Pazolt v. Dir. of Div. of Marine Fisheries, 417 Mass. 565 , 570 (1994). Out of this presumption, a detailed body of case law developed to interpret how monument calls in a deed that refer to a body of water should be interpreted. The general principle that has developed is that "a boundary by the tide water passes the flats, but a boundary by the land under the water excludes them." Commonwealth v. City of Roxbury, 75 Mass. 451 , 524 (1857). [Note 60] To overcome this presumption, there must be some kind of "express reservation" of rights in tidal flats, or other "attendant circumstances", such as a subsequent "claim[] [of] a fee or other interest in them." Houghton, 71 Mass. App. Ct. at 830 (absent a subsequent claim of rights, deed that described boundaries "beginning and ending at the 'highwater mark'" was insufficient to overcome the presumption).

In sum, I start with the presumption that Defendants hold title to the Disputed Flats, and that presumption can be rebutted only if there are excluding words in the deeds out from the common grantors, or other "attendant circumstances" evidencing an intent to reserve the Disputed Flats.

There is no language in any of the deeds from the common grantors to Defendants' predecessors in title that contain specific excluding words unambiguously severing and retaining title to the Disputed Flats, nor any recitation of beach rights or any other rights in the Disputed Flats other than the reference to Colonial Ordinance Rights. [Note 61] Plaintiffs do not claim that there is. Instead, they claim that the various decree plans and language in other deeds and certificates of title, when considered as a totality of circumstances pertaining to the Tobey Tract, should be taken as implying an intent to sever and retain title to the Disputed Flats. In particular, Plaintiffs cite the numerous references to the "mean high water line" in many of the deeds and plans discussed, supra, which Plaintiffs claim is in contrast to the reference in Tobey's original Certificate of Title 16, which (all parties agree) unambiguously included the land to mean low tide.

It must be noted first that the fact that the D-Plan, F-Plan, and G-Plan provide distance measurements running to the water is not convincing evidence of an intent to end the lots at the line of mean high water. As noted, supra, deed descriptions (which incorporate plans referenced therein, Hickey I, 472 Mass. at 754) that are based on references to monuments override descriptions that are based on distances and courses. Bernier, 85 Mass. App. Ct. at 269. Thus, a bound running to a monument (which a water boundary such as "by Cape Cod Bay" is) overrides a bound that contains a measure of distance running between two points. [Note 62] [Note 63]

As noted, supra, a monument call to a water boundary with the language "by" the water (unlike a call referencing the flats themselves) presumptively includes the flats below mean high water. Pazolt, 417 Mass. at 570; Boston Waterfront, 378 Mass. at 635. Here, almost without exception, the first deeds out from the common grantors of what are today Defendants' properties (i.e., the properties shown on the D-Plan and F-Plan, Lots G-233 and 6-234, and later subdivisions of those lots), as well as the certificates of title for those first transferees, all describe the seaward boundary of the lots with some variation on the language "by Cape Cod Bay" or "by the waters of Cape Cod Bay". [Note 64] Many also contain further limiting language specifying that "[a]ll of the boundaries except the water line" are shown on the respective plans showing the lots, [Note 65] and specify that the land is subject to "any and all public rights legally existing in and over the same below mean high water mark." [Note 66]

Most of the certificates of title also specifically reference the Colonial Ordinance Rights. [Note 67]

Based on these facts, it follows that conveyances out from the Tobey Tract of the properties today owned by Defendants support the presumption of an intent by the common grantor to include, in those conveyances, the flats between mean high and mean low water. Pazolt, 417 Mass. at 570. Because, as noted, no specific language in any of the deeds or certificates of title to the original grants from the common grantor include specific exclusionary language severing and reserving the flats, Plaintiffs can rebut this presumption only by demonstrating other "attendant circumstances" evidencing such an intent. Houghton, 71 Mass. App. Ct. at 830.

In terms of identifying such "attendant circumstances", Plaintiffs' primary argument pertains to the language in Tobey's original Certificate of Title 16. While all parties agree that this certificate of title included the tidal flats below mean high water in the original Tobey Tract, Plaintiffs argue that the fact that later deeds subdividing the Tobey Tract do not contain the original language including those flats constitutes evidence of an intent to exclude the flats. In the first instance, however, it must be acknowledged that the inclusion of the language cited by Plaintiffs ("thence still . . . to low water mark or the line to which private ownership may extend") in Tobey's original certificate of title is highly unusual, and, in modern practice, would likely not be acceptable for a Land Court registration. [Note 68] Moreover, the language is effectively surplusage, which was not necessary (based on the long-standing common law presumptions discussed, supra) to ensure that the land below mean high water was included in the registration. [Note 69] The mere fact that subsequent deeds did not share this peculiarity is, in my view, insufficient evidence of an intent to sever and retain the Disputed Flats. [Note 70]

As to other possible "attendant circumstances", the only other potential evidence would be the Lot H-A2 Deed (which stated that "[t]he grantors intend to convey to the grantee . . . the right to use the beach reserved by the grantors for use of the lot owners in this development") and the Lot H-A3 Deed (which stated that "[t]he grantors intend to convey to the grantee . . . the right to use the beach owned by the grantors for recreational purposes"). Even if there were a possibility that these deeds could constitute evidence of an intent to sever and reserve tidal flats adjacent to Defendants' properties, such reservation would apply only to those lots that the common grantors still held (i.e., Lots G-233 and G-234, and Lots F-N through F-R and F-X through F-Z). Even as to these lots, however, I am unconvinced, because none of the deeds out from the common grantors of any of these lots contains any reference to the Lot H-A2 Deed or the Lot H-A3 Deed, nor of beach rights in favor of those lots, nor anything suggesting an intent to reserve tidal flats. Moreover, as noted, the owners of Lots H-A2 and H-A3 are not parties to this case.

In sum, based on the evidence presented by the parties, I FIND that Defendants' properties are subject to the common law presumption that their property includes the area below mean high water mark running to the mean low water mark or 100 rods (1,650 feet), whichever is less, and that Plaintiffs have not proffered sufficient evidence to rebut that presumption. Thus, I FIND that Defendants own the portions of the Disputed Flats adjacent to their respective properties. I thus turn to consider what rights, if any, Plaintiffs have in the Disputed Flats.

Plaintiffs' Rights in the Disputed Flats

In this case, Plaintiffs' overall claim is that the common grantors of the Tobey Tract intended to create a beach for what they call the "Western Development" (which they contrast with the "Eastern Development" created by the B-Plan, and the Paré development, which proceeded independently after Luscombe/Morley conveyed the W-Plan and the Z-Plan lots to him), [Note 71] with the Disputed Flats made available to inland lot owners for "normal beach purposes". Defendants urge me to conclude instead that the common grantors only intended to provide access to the Disputed Flats for the exercise of inland lot owners' Colonial Ordinance Rights.

Plaintiffs' claim will be difficult to sustain, given that I have already determined that the common grantors did not sever and reserve the Disputed Flats. Moreover, none of Plaintiffs' deeds or certificates of title contain any specific reference to appurtenant beach rights in or to the Disputed Flats, nor do any of the deeds out from the common grantor to what are today Defendants' properties reference any such rights. [Note 72] Thus, unless some exception applies, the usual rule pertaining to registered land that an encumbrance, such as a beach rights easement, must be shown on the certificate of title. Hickey I, 472 Mass. at 754-755.

Hickey I, while not preclusive as to most of the parties to this case or the issues presented, effectively provides the framework for my consideration of the question of whether any such exception applies. The SJC in Hickey I focused on the scope of the exceptions to the usual rule regarding encumbrances on registered land as were articulated in Jackson v. Knott, 418 Mass. 704 (1994). In Hickey I, as here, the parties agree that the second Jackson exception (i.e., actual knowledge of an unregistered encumbrance) is inapplicable. Under the first exception, an unregistered easement may be found "if there were facts described on [a purchaser's] certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system." Id. at 711; see also Hickey I, 472 Mass. at 755–58.

However, whereas the focus in Jackson was on a certificate of title and the documents it explicitly referenced, Hickey I clarified -- and in doing so, arguably expanded Jackson -- that meeting the "reasonable purchaser" standard requires "review[ing] the plan showing the lot in question, and. . . investigat[ing] further other certificates of title, documents, and plans contained within the registration system, at the time of their purchase, to determine both their own rights and whether others have rights." Hickey I, 472 Mass. at 758. [Note 73] As a practical matter, this involves all fifty-two plans within the Tobey Registration Case file. Plaintiffs argue that such a review would have led the reasonable purchaser to conclude that the ways originally depicted on the D-Plan, F-Plan, and G-Plan created "an easement over [the] way[s] to get to a beach [and] implies the right to use that beach for usual beach purposes."

Employing such an analysis, as Hickey I notes, our hypothetical "reasonable purchaser" would have seen the "progression of the development", id. at 759, and a "pattern of evenly spaced ways to the water", id. at 760, over which "others had easement rights", id. For that reason, Hickey I found the inland property owners to have rights in the Hickey Way, as shown on the D-Plan and F-Plan. That conclusion, however, was based in part on the conclusion that the common grantors reserved the fee in that way, a conclusion that, as discussed, supra, does not apply to the Disputed Flats.

Employing the Hickey I analysis would also lead our diligent purchaser to discover more information regarding the Disputed Flats. The purchaser would learn, for instance, that there was no specific reference to beach rights easements in any of the deeds or certificates of title to the seaside lots, nor any explicit reservation of such rights in favor of inland lots. [Note 74] The purchaser also would learn that, to the extent rights in the Disputed Flats were mentioned in the thousands of deeds and certificates of title at all, those rights were limited to the Colonial Ordinance Rights.

Having now spent untold hours painstakingly performing such a specific, detailed review, our purchaser would then turn to the decree plans for a view, as it were, from 30,000 feet of the gradual development of the Tobey Tract into what it is today, which I shall do now. First, the common grantors subdivided the area shown on the B-Plan in 1916. That area contained numerous inland lots connected by a grid of ways eventually leading to six ways that accessed an upland beach (Beach Lot B-E) and the tidal flats and Cape Cod Bay beyond. The grantors next separated off the area of the Nobscussett House hotel in the 1920s with the C-Plan, although that was to be short-lived. Then, in the 1930s, the grantors created the D-Plan, E-Plan, F-Plan, G-Plan, H-Plan, and I-Plan, which subdivided most of the westerly portion of the Tobey Tract in a similar fashion as the B-Plan development (albeit with one major exception, noted, infra): as a series of inland lots connected by a grid of ways eventually leading to oceanfront lots with a series of ways running between them to the water. [Note 75]

However, whereas the "Eastern Development" was based around an upland beach (with four ways leading there and only there, and two more leading to the water), the "Western Development" was not. Rather, unlike the B-Plan lots abutting Beach Lot B-E (which, as depicted on the B-Plan, clearly only included a small portion of the upland beach), the oceanfront lots in the Western Development (i.e., Defendants' properties) are depicted as specifically including all of the upland beach area between the coastal bank and the line of mean high water. Moreover, early in the progression of this development, the common grantors deeded out Beach Lot E-K for use by the public (including the inland owners) as an upland beach. All of this suggests that the common grantors may have intended the Disputed Flats to be used for a different purpose than Beach Lot B-E and Beach Lot E-K. [Note 76] This appears to be the case irrespective of whether the common grantors intended to create a "beach community", because all of the lot owners (including Plaintiffs) are in relatively close proximity to either of the upland beaches that bookend the Tobey Tract.

Having performed such a review, in order to go beyond the basic Colonial Ordinance Rights and establish the right to engage in the other "normal beach uses" (i.e., recreational uses such as swimming) that Plaintiffs wish to make of the Disputed Flats, Hickey I and Jackson require there must be some evidence that would have led our reasonable purchaser to infer such rights. As to this point, the only documentary evidence that Plaintiffs cite are the Lot H-A2 Deed (which stated that "[t]he grantors intend to convey to the grantee . . . the right to use the beach reserved by the grantors for use of the lot owners in this development") and the Lot H-A3 Deed (which stated that "[t]he grantors intend to convey to the grantee . . . the right to use the beach owned by the grantors for recreational purposes). [Note 77] However, there is no definitive evidence that the "beach reserved" and/or "beach owned" by the common grantors was intended as a reference to any part of the Disputed Flats. More likely, this was a reference to Beach Lot B-E, which the common grantors still owned at the time. Even if the inference could be made that these deed referred to the Disputed Flats, there is nothing in the record indicating that Plaintiffs' lots were intended to be benefitted by these conveyances, which represent outliers among the thousands of deeds to hundreds of lots within the Tobey Tract. [Note 78] In sum, the inference that Plaintiffs ask me to make (from the isolated reference to beach rights in two deeds out of hundreds to the conclusion that Defendants share in those rights) is not reasonable.

Plaintiffs also argue that the ways shown on the D-Plan, F-Plan, and G-Plan imply beach access and use rights. They cite several cases in support of this claim: Labounty v. Vickers, 352 Mass. 337 (1967); Anderson v. De Vries, 326 Mass. 127 (1950), abrogated on different grounds by M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 90 (2004); Murphy v. Olsen, 63 Mass. App. Ct. 417 (2005); and Kane v. Stimson, 24 LCR 471 (2016); and Hickey I.

The facts in Labounty are similar to the facts in the case at bar, as it involved a dispute over the rights of inland owners' access to the water via a way shown on plans referenced in their deeds, which claim was opposed by the seaside owners. The developer in Labounty had created a way that ran through the subdivision to the water, but did not grant any express easements over that way. Nonetheless, based on the deeds referencing both the way and a plan that showed the layout of the way terminating at the high water line, the court determined that the lot owners held easements for "access to and from their lots to the shore area at the end of [the way] . . . ." Labounty v. Vickers, 352 Mass. at 342. Further, the court held that:

the scope of the easement in the [way] included the use of the part of the strip abutting [the water] for beach and bathing purposes. Where, as here, a strip is laid out to the high water mark of a river it is a reasonable inference that the grantor who reserved the easement intended to put the land so reserved to a use which was natural for the type of land reserved.

Id. at 345. [Note 79] However, the court held that there was no implied easement to use the areas of the shoreline adjacent to the way because "no reservation or reference to shore uses was made [ ], and the plan itself indicates nothing concerning the waterfront other than that the defendants' lots are bounded by [the water]." Id. at 343. In other words, Labounty held that the inland owners had the right to use the way for access to the water, a right to use (for recreational purposes) the portion of the way where it passed through the upland beach, but no right to spread out to other areas of the upland beach to either side of the layout of the way.

Labounty thus in fact undermines Plaintiffs' claims, as it entails that a finding of rights in a way leading to the water does not support implied rights outside of the layout of that way. Moreover, although Labounty suggests a right to use "the part of the strip abutting [the water] for beach and bathing purposes", the court also noted that the nearest public beach was 1.5 miles away. [Note 80] That holding is distinguishable from the case at bar based on the fact that the Tobey Tract development contained upland beaches for bathing and recreation at both ends of the Tobey Tract. As such, the common grantor's intent not to allow such uses on the Disputed Flats (where no upland beach area is available for Plaintiffs' use) would still appear to enable such uses as are "natural for the type of land", id. at 345 -- namely, fishing, fowling, and navigation. [Note 81]

Anderson involved somewhat different facts, although it too was a dispute between inland and seaside owners regarding shore access. Unlike here, where Plaintiffs' rights in the ways leading to the shore arose by implication, in Anderson, the inland owners' certificates of title specifically granted "a right of way to the beach over the way shown on said plan . . . ." Anderson, 326 Mass. at 130. Under those circumstances, the court found that "[t]he way to the beach carried with it the right to use the beach for the purposes for which the way was obviously intended." Id. at 134. [Note 82] Here, however, there is no such language in any of Plaintiffs' certificates of title referencing rights "to the beach". Thus, Anderson is distinguishable on this basis. [Note 83]

Similarly in Murphy, the relevant deed granted a right of way "to the beach" but failed to articulate specific rights to use that beach. Murphy, 63 Mass. App. Ct. at 419. Nonetheless, noting the importance of interpreting the scope of easements so as to "give effect to the intent of the parties", especially in the context of the "significance" of beach easements, the Murphy court held that the easement of access "to the beach" implied the right to use the beach. Id. at 422–23. Murphy is thus distinguishable for the same reason as was Anderson, as here there is no such specific language implying beach access rights.

Next, Plaintiffs cite a recent decision of this court, Kane, 24 LCR 471 . It too is factually distinguishable. Most notably, Kane involved an area of tidal flats that, as found by the Appeals Court, had in fact been reserved by the common grantor, which is not the case here. It also involved a much more developed factual record pertaining to historical use and the intentions of the common grantor with respect to the reservation of beach rights, which is absent here. Moreover, this court, in Kane, did not conclude that the inland lot owners had rights in any other portion of the tidal flats other than those reserved by the common grantor, as Plaintiffs ask me to find here. [Note 84]

Finally, Plaintiffs cite Hickey I as supporting their claim that rights in the ways shown on the D-Plan, F-Plan, and G-Plan imply rights in the Disputed Flats. As noted, supra, while Hickey I contains several suggestions as to the purpose of those ways, only rights in the Hickey Way were at issue, and any possible rights in the Disputed Flats were not adjudicated in that case.

As originally presented, the issue that faced the SJC in Hickey I was:

whether easements claimed over registered land . . . are binding against the [shore lot owners], where easements benefitting the [inland lots] do not appear on the [shore lot owners'] certificates of title, but are noted in various forms on the [inland] lot owners' certificates of title and in plans referenced in those certificates.

Hickey I, 472 Mass. at 737. Importantly, however, Hickey I did not actually end up having to answer this question, because the SJC found that the common grantor retained the fee in the Hickey Way. Thus, the court's conclusion was not that the Hickeys' and the Hay Dennis Trust's properties were burdened by theretofore unregistered easements, but rather that their certificates of title had not included the relevant portion of the Hickey Way in the first place. [Note 85]

Here, as discussed, supra, I have reached the opposite conclusion regarding ownership of the Disputed Flats. As such, absent some reservation of the Disputed Flats by the common grantor, the fact that there are no references to easement rights in or to the Disputed Flats in any of the parties' (Plaintiffs and Defendants) certificates of title weighs particularly heavy. [Note 86]

By this circuitous path, we now arrive back at the issue that Hickey I left unresolved. To wit: because, per Hickey I, the common grantors did reserve the fee to the Hickey Way, as shown on the D-Plan and the F-Plan, it now falls to me to ascertain the purpose for which the grantors did so. Based upon the foregoing discussion, I see no evidence in the record that could sustain Plaintiffs' claim that they have any easement rights (above and beyond their Colonial Ordinance Rights) in any portion of the Disputed Flats outside the layout of the Hickey Way, or any of the ways shown on the D-Plan and F-Plan. [Note 87] As such, I FIND that Plaintiffs' rights in the D-Plan and F-Plan ways are limited to the use thereof to access the Disputed Flats solely for the purpose of exercising their Colonial Ordinance Rights. It thus follows, and I so FIND, that Plaintiffs have no rights in the Disputed Flats other than their Colonial Ordinance Rights.

Conclusion

Based upon the foregoing discussion, I ALLOW Defendants' Motions for Summary Judgment to the extent stated herein.

Judgment to enter accordingly.