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.
SANDS, J.
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]
Of even date hereof, this court has issued a Decision (the "Decision"). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:
ORDERED and ADJUDGED 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; and,
ORDERED and ADJUDGED that Defendants own the portions of the Disputed Flats adjacent to their respective properties; and,
ORDERED and ADJUDGED that Plaintiffs' rights in the D-Plan and F-Plan ways [Note 13] are limited to the use thereof to access the Disputed Flats solely for the purpose of exercising their Colonial Ordinance Rights; [Note 14] and,
ORDERED and ADJUDGED that Plaintiffs have no rights in the Disputed Flats other than their Colonial Ordinance Rights; and,
ORDERED and ADJUDGED that Defendants' Motions for Summary Judgment are ALLOWED to the extent stated in the Decision.
SO ORDERED.
FOOTNOTES
[Note 1] All of the parties' properties are registered parcels, which represent subdivisions of land original registered by Francis Bartlett Tobey ("Tobey") in 1903 in Land Court Case No. 647 (the "Tobey Registration Case"). The original decree plan in that case (Land Court Plan 647-A) shows a large, irregularly shaped parcel of seaside land with an area of approximately 217 acres (the "Tobey Tract"), excluded from which were three parcels (labeled "A", "B", and "C"). Over the years, the Tobey Tract has been subdivided numerous times. The full area of the Tobey Tract was fully subdivided on Land Court Plans 647-B, 647-D, 647-E, 647-F, 647-G, 647-H, 647-I, 647-J, 647-L, and 647-M. Further subdivisions of the Tobey Tract land continued on subsequent plans. To date, the most recent plan in the Tobey Registration Case is Land Court Plan 647-26.
For ease of reference, unless otherwise specified, all references to plans in this Decision are to the official decree plans approved in the Tobey Registration Case, using usual Land Court nomenclature (i.e., Land Court Plan No. 647-A will be referred to as "Plan 647-A" or, more informally, as the "A-Plan"), including a notation of the plan's sheet number if necessary (e.g., "Plan 647-H2"). Similarly, lots referenced herein shall be referred to using the Land Court Plan number on which they appear and the lot classification used on said plan (e.g., Lot "234" on the G-Plan will be referred to as "Lot G-234").
[Note 2] Despite this allegation, it should be noted that no claim of prescriptive rights has been raised, nor has any evidence of prescriptive use been presented, so nothing in this Decision should be taken as a ruling as to that issue.
[Note 3] Defendants in Hickey I, most of whom are part of this action as Plaintiffs, were organized into three main groups, with several Defendants described as "unclassified". The first group held certificates of title granting access over the ways shown in "all other plans in Land Court Case No. 647 [i.e., the Tobey Registration Case]." The second group held certificates of title granting access over all ways shown on Plan 647-G. The third group held certificates of title referencing ways appearing on other subdivision plans in the Tobey Registration Case, including Plan 647-M. The "unclassified" Defendants in Hickey I held certificates of title for other lots shown on more recent subdivisions of the Tobey Tract. Ultimately, the SJC held in Hickey I that all Defendants in that case had rights over the way at issue other than two Defendants (Rosalind and Stanford Neuman), who did not present certificates of title naming them as owners.
[Note 4] It should be noted that the holding in Hickey I depends on reasoning that implicates multiple ways (which are shown on the F-Plan, discussed, infra), but the ultimate holding was only the one way that was in dispute in that case. Plaintiffs, in their Complaint, take a finding of rights in the other F-Plan ways to be implicit in Hickey I (as did the Hickeys in their complaint in the related action Hickey II, defined, infra), but to date, no court has actually adjudicated that question, nor have the parties raised it here.
[Note 5] Around the same time, the Hickeys also filed two related actions pertaining to the use of the Hickey Way. The first of these, Hickey v. Pathways Ass'n, Inc., Mass. Land Ct. Case No. 16 MISC 000123 (MDV) ("Hickey II"), is ongoing. Initially, Plaintiffs in this case sought to consolidate Hickey II with this case, but the court declined to do so, since the parties did not fully overlap in both cases. The second case, Hickey v. Dennis Zoning Board of Appeals, Mass. Land Ct. Case No. 16 MISC 000218 (AHS) ("Hickey III") was dismissed by Decision dated January 17, 2017 for lack of subject matter jurisdiction. That dismissal is currently on appeal to the Appeals Court in Case No. 2017-P-0382.
[Note 6] Plaintiffs are forty-four owners of inland registered land, 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. In full, they are: John R. and Jane W. Loiselle, as trustees of the Loiselle Family Realty Trust (Lot G-259); Stephen and Karen Campe (Lot 2-469); Francis and Jeanne Carrick (Lots G-245 and G-246); Phillip J. and Gayle A Ciaramicoli (Lot S-400); Donald F. Daley, as trustee of the Donald F. Daley Revocable Living Trust (Lot 2-468), Thomas and Ursula Daley (Lots I-C8 and I-C10); Stephen and Marcia Delvecchio (Lot 15-558); Virginia L. Devine, as trustee of the Hippogriffe Road Realty Trust (Lot M-375); Joseph A. and Diane Donato (Lots I-C11 and I-C14); Pamela J. Driscoll (Lot 15-566); Robert A. Furman and Carole R. Bohn, as trustees of the Bohn-Furman Realty Trust (Lot 8-525); Richard A. and Elaine M. Giberti (Lot 2-488); John and Sarah Gray (Lot R-396); John A. and Susan M. Hennessey (Lot 11-535); John F. and Judith S. Howard (Lot 15-565); Martin J. Jessel (Lot 8-523); Faren Lafauci (Lot M-387); Lisa M. Swalec, as trustee of the Leroux Family Trust (Lot 11-537); Joseph A. and Sue E. Lima, as trustees of the Patriots Way Realty Trust (Lot 15-563); LoVerme Bayview, L.P.(Lot 2-472); James G. Maguire, as personal representative of the Estate of Mary H. Maguire (Lots G-257 and G- 258); Paul and Pamela Maher (Lots 11-533 and 11-534); Linley Mahon, as personal representative of the Estate of Geoffrey L. Mahon (Lots 11-540 and 11-539); Arthur Maressa (Lot 15-571); Maria and Sorin Marinescu (Lot G-235); Gary McWilliams (Lot 8-527); James T. Moshier (Lot 2-476); Thomas M. O'Hear (Lot M-335); Kelly O'Rourke (Lot 15-559); Richard L. O'Shea (Lot 8-518); John and Kara Palermo (Lot 11-536); Kenneth Pecore (Lots G-255 and G- 256); Mark S. and Patricia M. Pelletier (Lot 8-522); Lewis Piantedosi (Lot G-237); Robert M. Pierce (Lot 15-568); Joseph J. and Mary G. Rahal (Lot 2-491); Russell A. and Diane M. Robbins (Lot 15-556); Joseph G. Russo (Lot 2-479); WT Dennis, LLC (Lot M-324); Christopher P. Tosti, as trustee of the BPR Irrevocable Trust (Lot M-337); Christopher P. and Christine Tosti (Lot 8-515); Andrew and Catherine Tvirbutas (Lot 11-538); John J., Susan L., Michelle T., Kristin M., and Elizabeth A. Walker (Lot 15-569); and Ronald W. Young (Lot G-236).
[Note 7] Defendants are twenty-two owners of seaside registered land, whose properties are shown on Plans 647-D, 647-F, 647-G, 647-10, and 647-21.In full, they are: the Hickeys (Lot F-X); Patricia E. and Jean Howard, as trustees of the Bayview Realty Trust (the "Bayview Trust") (Lot F-V); Shore Drive, LLC ("Shore Drive") (Lot F-V); Barbara G. and Robert E. Wells, as trustees of the Wells Nominee Trust (the "Wells Trust") (Lot F-U); Mary E. and Robert W. Howe (the "Howes") (Lot F-T); Peter A. Schimmel (Schimmel") (Lot F-S); Michael and Susan Andreottola (the "Andreottolas") Lot F-R); Dennis Conservation Trust (the "Conservation Trust") (Lot 10-530); Paul W. Eysie ("Eysie") (Lot 10-531); Paul V. and Linda A. Galvani (the "Galvanis") (Lot 10-532); Charlene E. Keady ("Keady") (Lot 10-529); Joseph A. Salamone ("Salamone") (Lot F-N, Unit 2); William A. and Martha M. Sampson (the "Sampsons") (Lot F-N, Unit 1); Peter R. Daniels, as trustee of the Daniels Nominee Trust (the "Daniels Trust") (Lot F-Y); Jane D. Springer, as trustee of the Jane Daryl Springer Residence Trust (the "Springer Trust") (Lot F-Y); the Hay Dennis Trust (Lot D-J); Mark C. and Wendy C. Thurmond (the "Thurmonds") (Lot D-I); N. Richard and Karen L. Greenfield (the "Greenfields") (Lot D-H); Douglas and Patricia Suliman (the "Sulimans") (Lot D-G); James L. Lepore ("Lepore") (Lot D-F); Carton R. and Alice A. Copp (the "Copps") (Lot G-234); and Happiness Ass'n, LLC ("Happiness Ass'n") (Lot G-233).
[Note 8] Schimmel was later substituted by himself and Anne D. Schimmel, as trustees of the Anne D. Schimmel Trust (the "Schimmel Trust").
[Note 9] Eysie filed a second Answer and Counterclaim on January 17, 2017.
[Note 10] Each of these parties is represented by the law firm of Rackemann, Sawyer, & Brewster. For ease of reference, I will refer to these Defendants, as well as those who have joined in their motion, collectively as the "Rackemann Defendants". The Rackemann Defendants' motion was supported by a memorandum of law, a statement of material facts, and an appendix containing thirty-two exhibits. On November 22, 2016, Lepore, the Sulimans, the Copps, the Greenfields, Shore Drive, the Bayview Trust, and the Conservation Trust filed a Response, indicating that they supported the Rackemann Defendants' Summary Judgment Motion. On December 13, 2016, Plaintiffs filed their Opposition to the Rackemann Defendants' Summary Judgment Motion, which included a statement of additional material facts and an appendix of twelve additional exhibits. On January 17, 2017, Happiness Ass'n joined in the Rackemann Defendants' Motion for Summary Judgment, as did Eysie on January 26, 2017, and as did the Thurmonds on February 10, 2017. On February 3, 2017, the Rackemann Defendants filed their reply brief.
[Note 11] Each of these parties, except for the Galvanis and the Conservation Trust, is represented by the law firm of Nutter, McClellan, & Fish LLP, so I shall refer to them collectively, together with those parties who have joined in their motion, as the "Nutter Defendants". Their motion included a memorandum of law, a statement of material facts, and an appendix of fifty-one exhibits. On January 31, 2017, Plaintiffs filed their Opposition to the Nutter Defendants' Summary Judgment Motion. On February 3, 2017, the Nutter Defendants filed their reply brief. On February 10, 2017, the Galvanis joined in the Nutter Defendants' Motion for Summary Judgment.
[Note 12] Before getting to the Summary Judgment Motions, I must resolve Plaintiffs' Mass. R. Civ. P. 55(a) motion seeking the entry of defaults against the Wells Trust, the Howes, the Sampsons, Eysie, and the Thurmonds, filed on January 17, 2017. On January 27, 2017, Eysie filed an opposition brief, indicating that he had filed two Answers. On January 30, 2017, the Thurmonds filed an opposition brief, indicating that they too had filed an Answer. As noted, both Eysie and the Thurmonds later also joined in the Rackemann Defendants' Summary Judgment Motion, and both appeared at the status conference held on February 13, 2017.
None of the other parties whom Plaintiffs requested be defaulted (the Wellses, the Howes, Salamone, and the Sampsons) joined in the Summary Judgment Motions. A Fifteen-day Nisi Order issued to these parties on August 26, 2016 after they failed to appear for the August 18, 2016 case management conference. The Wellses and Salamone timely responded, but did not appear at the December 13, 2016 status conference. The Sampsons untimely responded, but then did not appear at the December 13, 2016 conference. The Howes responded, but their response allegedly was lost (and not re-filed until December 16, 2016); they also did not appear at the December 13, 2016 conference.
Based upon these facts, Plaintiffs' requests for entry of defaults are DENIED as against Eysie and the Thurmonds, and ALLOWED as against the Wellses, the Howes, Salamone, and the Sampsons.
[Note 13] As discussed in the Decision, and per the system of designation noted, supra, in n. 1, the D-Plan and F-Plan ways are those ways shown on Land Court Plan Nos. 647-D and 647-F as running perpendicularly from a forty-foot way labeled "way" (which runs parallel to Cape Cod Bay) to the waters of Cape Cod Bay.
[Note 14] The "Colonial Ordinance Rights" are defined in the Decision as "any and all public rights legally existing in and over [tidal flats] below mean high water mark". As discussed in the Decision, under the Colonial Ordinances of 1641-1647, litoral property owners were presumed to hold title "to the low water mark, where the Sea doth not ebb above a hundred Rods, and not more wheresoever it ebbs farther", subject to the public's rights to "free fishing and fowling" and "the passage of boats or other vessels". See G.L. c. 91, § 1 (defining "private tidelands" as "subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water."). In common parlance, these Colonial Ordinance Rights are usually described as the right to fish, fowl, and navigate.