INTRODUCTION
The dispute in this case centers on the Parties' respective rights in a private right of way shown on a 1948 subdivision plan as leading to Webster Lake, a great pond located in Webster, Massachusetts. All of the Parties [Note 1] to this case are lot owners in the same subdivision bordering the Lake. The right of way in dispute runs between Vince Kubic's and Paul Kubik's lakeside lots. Within the last ten years, Defendant, David Audette (whose lot is within the same subdivision but does not abut the Lake) re-graded the right of way and installed a seasonal dock projecting into the Lake. Since then, the Plaintiffs and Audette have clashed over the scope of their respective rights in the subject right of way, including within the context of a 2007 lawsuit filed in this court by Vince against Audette and another lot owner in the subdivision. [Note 2]
Vince, this time joined by his cousin, Paul, filed the instant lawsuit on December 17, 2013. By their Second Amended and Supplemental Complaint (with Corrected Caption) filed February 3, 2017 (hereinafter "Second Amended Complaint"), Vince and Paul seek the following relief:
1. Count I seeks to quiet title to the subject right of way.
2. Count II seek a declaration that Vince and Paul each own one-half of the right of way in fee, by operation of G.L. c. 183, § 58 (the "Derelict Fee Statute").
3. Count III seeks a declaration of the scope of Audette's and the other Interested Parties' easement rights in the right of way.
4. Count IV claims that Audette is overburdening his easement rights in the right of way by installing and maintaining a seasonal dock, by holding picnics and barbecues in the right of way, and by permitting third parties to park on the right of way and use it to access the dock.
5. In Count V, Vince claims an easement by estoppel in the right of way and alleges that Audette has materially interfered with Vince's easement rights.
6. In Count VI (as an alternative to his claims in Counts I and II), Paul claims to have adversely possessed the portion of the right of way used by Paul as part of his driveway and parking area.
7. In Count VII, Paul claims that his adverse possession has extinguished any easement rights of Audette and the other Interested Parties over that portion of the right of way used as part of Paul's driveway and parking area.
8. In Count VIII, Paul alternately claims a right under Martin v. Simmons Properties, LLC, 467 Mass. 1 (2014), to reduce the right of way easement area so as to exclude the part he uses for his driveway and parking.
9. As another alternative to his Count I and II claims to hold the fee in one half of the subject right of way, Paul claims under Count IX that he has prescriptive rights over the part of the right of way he uses for his driveway and parking.
10. In Count X, Vince alleges that Vince's title was slandered when Audette claimed to officials of the Massachusetts Department of Environmental Protection ("DEP") and to the Town of Webster that Audette owned the subject right of way. [Note 3]
The court held a pre-trial conference on July 18, 2017, at which time a two-day trial and a view were scheduled. The court took a view on October 24, 2017. On December 7, 2017, a week before the trial was scheduled to start, the Attorney General's Office sent a letter to the court raising the Commonwealth's concerns that the case might involve certain title issues relating to Webster Lake, which is a great pond. [Note 4] On December 12, 2017, Plaintiffs filed an "Emergency Motion to Continue Trial or Bar Title Theory" based in part on the concerns raised in the Commonwealth's letter. By docket entry made the same day, the court denied Plaintiffs' Emergency Motion, noting that the issues raised in the Commonwealth's letter were "not new" to the case and had been previously raised by both of the Parties during earlier case proceedings and, more recently, at the July pre-trial conference. The court also reminded the Parties that the witness testimony and exhibits introduced at trial would be limited to those listed and described in the Joint Pre-Trial Memorandum, to the extent they were agreed upon or were otherwise admissible.
On December 13, 2017, one day before the scheduled trial, the Commonwealth filed an "Emergency Motion to Intervene and Continue the Trial." During a hearing held by telephone that afternoon, the court heard the Commonwealth's arguments but declined to take action on the Motion at that time. Instead, the court invited the Commonwealth's counsel to observe the presentation of evidence at the first day of trial to determine whether or not the proceedings might potentially affect the Commonwealth's interests in Webster Lake and, at that point, decide whether to press its motion to intervene, abandon it, or seek to file an amicus brief instead.
The trial commenced on December 14, 2017. At Plaintiffs' request, the second day of trial was continued from December 15, 2017 to January 12, 2018. Six witnesses testified, all called by Plaintiffs: (1) Vince Kubic; (2) Paul Kubik; (3) Norman Hill, a civil engineer and land surveyor for Land Planning, Inc.; (4) Michael Kubic, Vince's brother; (5) Yulia Kubic, Vince's wife; and, (6) Defendant David Audette. The Parties initially stipulated to 35 agreed exhibits, including a Statement of Agreed Facts which was admitted as Exhibit 1. During the course of the trial, an additional five exhibits were admitted into evidence without objection, one of which had been used as a chalk (Chalk A) during witness testimony and was admitted (with the markings made during the witnesses' testimony) as Exhibit 40.
Following receipt of the official trial transcripts, the Defendant filed his Request for Findings of Fact and Rulings of Law, together with a memorandum in support thereof, on March 7, 2018. The Plaintiffs filed their Proposed Findings of Fact and Requested Rulings of Law on March 9, 2018, together with a "Motion to Amend the Pleadings to Conform to the Evidence under Mass. R. Civ. P. 15(b)" (the "Motion to Conform"). [Note 5] On June 27, 2018, the Commonwealth filed a "Motion Regarding Post-trial Briefing." The court allowed the Commonwealth's Motion by docket entry entered the same date, requiring that any post-trial amicus brief be filed by the Commonwealth within 30 days, and stating that no response or other reply to such brief would be permitted. The Commonwealth's amicus brief was filed on July 27, 2018.
Now, for the reasons explained below, the court finds and rules that Plaintiffs each own the fee in one half of the Right of Way, as it is depicted on the 1948 plan (i.e., 100 feet of length). Vince also holds an easement by estoppel over the southern half of the right of way.
Defendant David Audette is the holder of an unrestricted record easement in the subject right of way and, as such, he is privileged to make reasonable uses of the right of way for access to Webster Lake, including by traveling upon it with a vehicle, parking on it, and re-grading and improving it. Although Audette is privileged to park within the bounds of the right of way, his vehicular access and parking must be conducted in a manner that does not interfere with the rightful use and enjoyment of the right of way by others. To the extent Audette has exceeded his rights by obstructing the right of way with his own or his guests' parked vehicles, he has overburdened the right of way and will be enjoined from such excessive activities. Finally, I find that Paul has not extinguished Defendants' easement rights in the right of way, and he is not entitled to reduce the width of the right of way to carve out his driveway and parking area. A judgment will enter accordingly.
FINDINGS OF FACT
Based on the pleadings, the admitted exhibits (including the Parties' joint statement of agreed facts), the trial testimony, as well as my assessment of the credibility, weight, and inferences to be drawn therefrom, and my view, [Note 6] I find the following pertinent facts, reserving certain details for the discussion of specific legal issues:
The Parties
1. The Plaintiff, Vince Kubic ("Vince"), resides at and owns property at 4 Fairfield Street, Webster, MA.
2. The Plaintiff, Paul Kubik ("Paul") resides at and owns property at 6 Fairfield Street, Webster, MA.
3. The Defendant, David Audette ("Audette") resides at and owns property at 17 Fairfield Street, Webster, MA.
Relevant Deeds and Title History
4. In July, 1946, Arthur and Doriza L. Robinson took title, as tenants by the entirety, to a large tract of land on the shore of Webster Lake [Note 7] in Webster, Massachusetts (the "Common Estate"), by deed from Hector and Albina Patenaude, husband and wife, recorded at Book 3012, Page 377 of the Worcester South Registry of Deeds (the "Registry").
5. The Robinsons' subdivision of the Common Estate is shown on a subdivision plan approved by the Webster Planning Board on September 18, 1951, entitled "Plan of Lots Owned by Arthur & Doriza L. Robinson, Webster, Mass," dated September 11, 1948, and recorded on July 16, 1953 with the Registry at Plan Book 191, Plan 16 (the "1948 Plan").
6. The 1948 Plan depicts a thirty-lot subdivision with its western boundary abutting the shoreline of Webster Lake and its eastern boundary abutting Gore Road and Killdeer Road. The 1948 Plan also depicts two unnamed subdivision ways providing frontage to most of the lots, [Note 8] and a third way between Lots 14 and 15 labeled "Right of Way" (hereinafter, the "Right of Way").
7. The dimensions of the Right of Way are shown on the 1948 Plan as
* 50 feet in width along its eastern boundary on the subdivision way now known as Fairfield Street,
* 100 feet in length measured along its southern boundary between Fairfield Street and its western boundary at the shoreline of Webster Lake, and
* 50.5 feet in width along its western boundary on Webster Lake.
8. During the period between 1948 and 1966, the Robinsons conveyed out the lots depicted on the 1948 Plan, including the Parties' respective lots as hereinafter described.
Vince's Lots
9. Vinces's residential property at 4 Fairfield Street consists of two adjoining lots depicted on the 1948 Plan as Lot 15 and Lot 19.
10. The source deed for Lot 15 is a deed dated September 23, 1948, and recorded in the Registry at Book 3148, Page 312, by which the Robinsons conveyed Lot 15 to Samuel and Lillian Pomerantz (the "Lot 15 Source Deed"). The Lot 15 Source Deed includes the following description of one of the lineal boundaries of Lot 15: "Thence N. 86° 48' W. 130 feet more or less partly by said proposed Road and partly by a right of way to said Lake."
11. The Lot 15 Source Deed contains no express grants of rights or easements over any ways or streets shown on the 1948 Plan, nor any reservations or exceptions pertaining to such streets or ways.
12. On June 17, 1953, the Pomerantzes conveyed Lot 15 to Vincent F. Kubic, Vince's father.
13. The source deed for Lot 19 is the deed dated August 13, 1955, and recorded at Book 3707, Page 594 of the Registry, by which the Robinsons conveyed Lot 19 to Vince's father (the "Lot 19 Source Deed"). The Lot 19 Source Deed included the express grant of an easement as follows: "Together with a right of way over existing ways as shown on said plan from Killdeer Road." Lot 19 directly abuts the eastern boundary of Lot 15 but does not abut the Right of Way.
14. On May 6, 1959, Vincent F. Kubic and Rose M. Kubic, husband and wife, and Frank Mendillo and Hazel Mendillo, husband and wife, conveyed Lot 15 and Lot 19 on the 1948 Plan to Samuel F. Mangano and William J. Mangano, Partners d/b/a Mangano Bros. of Grafton, MA by deed recorded at Book 4038, Page 460 with the Registry. [Note 9]
15. After the 1959 conveyance, the Kubic family continued to live in the house at 4 Fairfield Street throughout the time it was owned by Mangano Bros.
16. Vince first took title to Lots 15 and 19 ("Vince's Lots"), as a tenant in common with his siblings, Michael Kubic ("Michael") and Vanessa Hoenig ("Hoenig"), by deed from Samuel F. Mangano and William J. Mangano, d/b/a Mangano Brothers, dated September 12, 1985, and recorded with the Registry at Book 9022, Page 47. Michael conveyed his interests to Vince by deed dated August 4, 1994 and recorded with the Registry at Book 16492, Page 75. Hoenig conveyed her interests to Vince by deed dated July 11, 2012, and recorded with the Registry at Book 49276, Page 191.
Paul's Lot
17. Paul's residence at 6 Fairfield Street is located on property which was once part of the lot depicted as Lot 14 on the 1948 Plan ("Paul's Lot").
18. The source deed for Paul's Lot is the deed dated October 1, 1957, and recorded at Book 3907, Page 536 of the Registry, by which the Robinsons conveyed certain land including a portion of Lot 14 to Joseph P. and Rose M. Kubik, Paul's parents ("Paul's Source Deed").
19. Paul's Source Deed includes the following grant of appurtenant easement rights: "Together with a Right of Way over existing Ways as shown on said [1948] Plan to the Granted Premises, excepting that no Right of Way is conveyed herein over any land located Northerly of the last course above described." [Emphasis added.] The referenced "last course" is the northern boundary line of the portion of Lot 14 conveyed, and coincides with the southern boundary of the Right of Way as depicted on the 1948 Plan.
20. Paul took title to his Lot by deed of Mary Ann Bond and Joseph P. Kubik, Jr., and of Paul A. Kubik, John S. Kubik, and Ann Marie Kubik, individually and as executors of the Estate of Joseph P. Kubik, dated November 15, 1988, and recorded with the Registry at Book 11754, Page 271. [Note 10]
Audette's Lots
21. David Audette's residence at 17 Fairfield Street is located on property consisting of two adjoining lots depicted as Lot 29 and Lot 30 on the 1948 Plan ("Audette's Lots"). Audette's Lots do not abut the subject Right of Way.
22. Audette's source deed is the deed dated June 22, 1966, and recorded at Book 4678, Page 40 of the Registry, by which the Robinsons conveyed Lots 27, 28, 29 and 30 to Ronald A. Cardin ("Audette's Source Deed"). Audette's Source Deed included the grant of an easement in the Right of Way as follows: "Together with a right of way to Webster Lake located northerly of Lot #14 as shown on aforesaid [1948] plan." [Note 11]
23. Audette acquired title to Lots 29 and 30, by deed from Marija Pastulovic, Trustee of the ZMM Realty Trust, dated August 3, 2006, and recorded with the Registry at Book 39587, Page 154. Audette's deed, like Audette's Source Deed, includes the grant of "a right of way to Webster Lake located northerly of Lot #14 as shown on aforesaid [1948] plan."
Other Conveyances from the Common Estate
24. In 1953, the Robinsons conveyed Lot 25 and a portion of Lot 24 to Robert E. Mann and Ruth S. Mann "[t]ogether with water right over that parcel of land shown as right of way on [the 1948 Plan]." [Note 12]
25. Except for the deeds described above conveying all or portions of Lots 24, 25, 27, 28, 29, and 30, none of the deeds from the Robinsons conveying lots shown on the 1948 Plan granted any express use rights in or over the Right of Way. [Note 13]
Existing Conditions
The Right of Way
26. The general condition of the Right of Way and the location of the Webster Lake shoreline during the course of this litigation is shown on two successive plans prepared by New England Land Survey, Inc. and admitted into evidence at trial:
Exhibit 29: An October 25, 2013 "Existing Conditions Plan of 50' Right of Way, Webster, Massachusetts" (the "2013 Existing Conditions Plan"), and
Exhibit 31: An October 5, 2017 "Existing Conditions Plan of 50' Right of Way, Webster, Massachusetts" (the "2017 Existing Conditions Plan").
27. One of Vince's Lots (Lot 15) directly abuts the northern sideline of the Right of Way. Paul's Lot directly abuts the southern sideline of the Right of Way.
28. The upper (eastern) 40± feet of the Right of Way, which is used for vehicular access and parking, is partially paved and partially packed gravel. The upper portion is relatively flat.
29. Part of Vince's paved driveway, and part of a retaining wall, extend into the northeastern corner of the Right of Way from Lot 15.
30. Paul uses the southeastern portion of the Right of Way for driveway access and parking.
31. The remainder of the Right of Way, which slopes down toward the Lake, is mostly vegetated with grass and shrubs, with only a narrow cleared pathway access running close to the northern sideline of the Right of Way. The southern half of the Right of Way in this sloped section runs steeply down behind the area used by Paul for parking, and is mostly overgrown with bushes and trees.
The Shoreline
32. The observed shoreline of Webster Lake can vary seasonally. However, the shoreline depicted on the 2013 and 2017 Existing Conditions Plans lies approximately 30 feet farther west than the location depicted on the 1948 Plan. [Note 14] The present location of the shoreline has remained substantially unchanged during the lifetimes of the trial witnesses from the early 1960s through the present.
33. The approximately 30 feet of land between the western end of the 100 foot Right of Way shown on the 1948 Plan and the current shoreline appeared open and grassy at the time of the court's view, but several photographs in evidence show that it has, at times, been covered with bushes and undergrowth.
Use of the Right of Way
34. Vince and Paul have both lived their whole lives at their respective properties. From the time of their families' home purchases until present, Plaintiffs and members of their respective families have used the Right of Way in conjunction with the use of their Lots in various ways.
Vince's Driveway and Other Uses
35. When the Kubic family moved into their house on Lot 15 in the 1950s, a dirt driveway extended from Fairfield Street over the northeastern corner of the Right of Way and to a garage under the house. Vince's father paved the driveway in 1965.
36. Later, the Kubics converted the garage into an office. In approximately 1971, the Kubics installed a patio in front of the former garage, but the remainder of the driveway was retained. Its current dimension are shown on the 2013 and 2017 Existing Conditions Plans.
37. Vince's family always had at least two vehicles. The Kubics would park one vehicle in either the garage (when it existed) or the driveway, and park the other vehicle on Fairfield Street in front of their house. Vince continues to park his own vehicle in the driveway.
38. The Kubics also used portions of the Right of Way in conjunction with the use of their own Property. For instance, on some occasions, Vince would cut the grass growing on the Right of Way when he was cutting the grass in his own yard. Vince and his siblings would also occasionally store aluminum boats on the Right of Way. None of these uses have obstructed access by others over the Right of Way.
39. Vince's family also maintained a dock in Webster Lake for approximately ten years in the mid-1960s to mid-1970s. It was located in the approximate location of Audette's current dock.
Paul's Driveway and Other Uses
40. Paul's Lot can be accessed by vehicle over the existing dirt and gravel driveway running from Fairfield Street through the southeastern corner of the Right of Way. Paul's driveway has remained in more or less the same location and condition throughout Paul's lifetime.
41. Originally, Paul's driveway led to an attached single-car garage on the northern side of Paul's home, near the Right of Way. The Kubiks have always had at least two vehicles. Prior to 1974, they would typically park one vehicle inside the garage and park one vehicle either on their driveway, or on Fairfield Street.
42. In 1974, the Kubiks' garage was converted to a bedroom. Thereafter, the Kubiks would park their vehicles either on Fairfield Street, in the driveway, or side-by-side next to their house. When they parked two cars side by side, one car would be parked within the southern half of the Right of Way.
43. Paul's parking and driveway access within the southern half of the Right of Way do not obstruct either pedestrian or vehicular access over the Right of Way.
44. Other than the graveled driveway and parking area in the southeast portion of the Right of Way, the southern half of the Right of Way is mostly overgrown with trees and brush, and is not used for vehicular access.
45. Over the years, Paul and his family have made intermittent uses of the remainder of land within the southern half of the Right of Way (nearer the Lake) for storing things like stacked concrete blocks or aluminum row boats, and occasionally traversed it on foot to access the backyard, or to access the Lake (including a dock owned by others). None of these intermittent activities obstructed or otherwise interfered with access over the Right of Way by others.
Uses of the Right of Way by Other Lot Owners
46. Over the years, the Right of Way has also been used by other lot owners within the Common Estate, as well as some members of the public, to gain access to the Lake.
47. In the mid-1960s, the Haleys, who owned Lot 25 and held a deeded easement to use the Right of Way, constructed a dock in the approximate location where Audette installs his dock today. For approximately 15-20 years, the Haleys regularly used the Right of Way to access their dock, where they would swim and fish, and moor their motorboat. Both of the Plaintiffs' families also used the Haleys' dock for fishing and swimming, and accessed it over the Right of Way.
48. During that same period of time, the then-owner of Lot 26 would sometimes moor a sailboat near the Haleys' dock.
49. During the 1970's and 1980's, a sporting goods store, which operated on a lot within the subdivision, rented canoes to its customers. Plaintiffs observed those customers carrying the rented canoes down the Right of Way to launch them into Webster Lake.
50. Vince has occasionally observed snowmobilers using the Right of Way.
Audette's Uses of the Right of Way
51. In approximately 2007, Audette re-graded the sloped section of the Right of Way to make it easier to traverse by vehicle. In 2013, pursuant to an order of conditions issued under the Wetlands Protection Act, Audette installed lattice-style concrete pavers in the sloped section of the Right of Way to control erosion on the slope and to further improve access.
52. In May, 2012, Audette received a G.L. c. 91 waterway license from the Massachusetts Department of Environmental Protection to install a portable, metal dock in Webster Lake (the "Dock"). He first began installing the Dock seasonally in April 2013.
53. When installed for the season, the Dock projects into the Lake from the shore and has three floats attached to it. With the three floats, the Dock measures 35 feet in width and over 50 feet in length.
54. Audette takes the Dock out of the Lake each winter season, and stores the disassembled Dock, stacked, near the shoreline.
55. Every summer, since Audette began installing the Dock in April, 2013, he has moored his motor boat to the Dock. Since the summer of 2015, Audette has also allowed a third party to moor a motorboat to the Dock.
56. Audette uses the Right of Way regularly as much as every day throughout the summer season to gain access by foot or by vehicle to the Lake, the Dock and his motorboat. Audette parks his own vehicle, and allows his guests to park their vehicles, within the Right of Way. Typically, Audette parks his own vehicle side-by-side with Paul's vehicle in the graveled area in the southeast portion of the Right of Way. Audette's guests also park their vehicles in the graveled area.
57. Audette has, on occasion, hosted picnics or cookouts on the land bordering the Lake, in conjunction with using the Dock.
DISCUSSION
In their multi-count Second Amended Complaint, Plaintiffs seek to establish their respective ownership rights in the Right of Way under several different legal theories, some of which are alternative to the others. Paul and Vince seek to clear title and establish that they each own in fee to the centerline of the Right of Way, for its entire length, by operation of the Derelict Fee Statute (Counts I and II). Vince claims to also hold an easement by estoppel to use the southern half of the Right of Way (Count V). [Note 15] As an alternative to Paul's claim under the Derelict Fee Statute, Paul asserts that he has acquired fee ownership in the southern half of the Right of Way by adverse possession (Count VI) and that his adverse use has extinguished Defendants' rights in that portion of the Right of Way (Count VII). Paul further claims that he is entitled to reduce the width of the Right of Way easement in accordance with the principles set forth in the Restatement (Third) of Property (Servitudes) § 4.8(3) (2000), as adopted by the Supreme Judicial Court in M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87 (2004) (M.P.M. Builders), by excluding the southeastern portion he uses for his access driveway and parking (Count VIII). As an alternative to the adverse possession claim, Paul claims that he has acquired a prescriptive easement over the portion of the Right of Way that he uses for driveway access and parking (Count IX). Further, Plaintiffs seek to define and limit the scope of Defendants' rights to use the Right of Way, and they ask the court to declare that Audette is overburdening the Right of Way by using it in relation to his dock, including for picnics and barbecues (Counts III and IV).
Below, Section B addresses Plaintiffs' respective claims of ownership in the Right of Way under Counts I, II, V, VI, VII, VIII and IX, and Section C addresses Plaintiffs' claims under Counts III and IV that the Right of Way is limited to pedestrian access to Webster Lake, and that Audette's activities overburden the Right of Way. However, before reaching those claims, I must first address, in Section A, the assumption underlying all of Plaintiffs' claims, that the Right of Way in question now extends, beyond the 100 feet delineated on the 1948 Plan and described in the various Source Deeds, to the present shoreline of Webster Lake.
A. Limits of the Right of Way
Plaintiffs' claims of ownership in the Right of Way, and their claims that Defendant Audette's activities are overburdening his easement in the Right of Way, assume that the Right of Way shown on the 1948 Plan extends to the current shoreline of Webster Lake. The Parties are in agreement, and the evidence establishes, that the current shoreline of Webster Lake lies approximately thirty feet west of the shoreline depicted on the 1948 Plan as the western boundary of the Right of Way. Plaintiffs testified to their personal observations that the waterline of Webster Lake has been at its present elevation since at least the 1960s, with only seasonal variations. But there was no evidence adduced at trial establishing exactly when and how the change in the shoreline occurred in the time after the 1948 Plan was prepared. Audette contends, without offering any admissible proof, that the water level of the Lake's original shoreline has been lowered by operation of a dam. Plaintiffs contend that, absent proof of the cause of the shoreline change, there is a legal presumption that the change resulted from accretion. Plaintiffs argue, therefore, that under long-established rules applicable to littoral properties, their respective fee ownerships of the Right of Way delineated on the 1948 Plan would now extend the additional 30± feet to the current shoreline. As will be discussed below, however, the evidence is insufficient to establish that Plaintiffs' ownership rights in the Right of Way shown on the 1948 Plan extend over the additional land area.
Plaintiffs' argument relies upon three dependent propositions: first, that the law applicable to littoral boundaries along ocean-front properties is equally applicable to the boundaries of properties along great ponds; second, that, consequently, when a littoral boundary
on a great pond changes by the process of accretion, the line of ownership ordinarily follows the changing water line; and third, that, in the absence of evidence to the contrary, there is a "presumption" that when a littoral boundary changes, it is due to an accretion.
As to the first and second of Plaintiffs' propositions, the applicability of the long- established littoral ownership rules to great ponds is still an open question. See Opinion of Justices to Senate, 474 Mass. 1201 , 1207 (2016). [Note 16] Despite the thought-provoking arguments presented by the Parties and the Commonwealth regarding this open question, however, I must decline the invitation to employ them in deciding this case. This is chiefly because, even if the rules applicable to littoral boundaries were ultimately determined to apply equally to great ponds, Plaintiffs have not met their burden to establish that the changes to Webster Lake's boundary were "caused by either natural processes or human intervention
not caused by the owner himself," and that the changes were not "created by the government as necessary aid to navigation." Lorusso, 408 Mass. at 780. Plaintiffs have actually presented no evidence on these matters, insisting instead that they need not provide such evidence because they are entitled to a presumption that the shoreline change was the result of gradual accretion (their third proposition). But this court has found no authoritative support in Massachusetts law that there actually exists a "presumption" that otherwise unexplained changes in the littoral boundaries are the result of accretion. [Note 17]
Plaintiffs' assertion of presumptive accretion relies exclusively on dicta from the 1989 decision of the Land Court in Lorusso v. Acapesket Imp. Ass'n, Inc., Misc Case No. 314-S, 1989 WL 1183738, at *6 (Mass. Land Ct. Mar. 24, 1989) (Fenton, J.), aff'd on other grounds, 408 Mass. 772 (1990). In that decision, after first describing the well-settled rules concerning littoral property ownership recognized in Massachusetts, the trial judge went on to add (citing only to an Iowa case, Kitteridge v. Ritter, 172 Iowa 55, 59 (1915)), that an unexplained change in a coastal littoral boundary is presumed to be caused by accretion. [Note 18] The judge, however, did not employ that "presumption" in reaching his decision. Instead, the judge found, on the basis of the trial evidence presented, that the changes to the barrier beach coastline at issue resulted from a combination of natural accretion and erosion. In affirming the 1989 Land Court decision on direct appellate review, the Supreme Judicial Court (SJC) discusses the "well-established relevant principles having to do with the rights of littoral landowners," but does not even mention the existence of a presumption of accretion. Lorusso, 408 Mass. at 780-81. [Note 19]
The Plaintiffs have not identified a single case in which the Massachusetts appellate courts have discussed or applied the Iowa presumption, and this court has been unable to find one. I decline to apply a "presumption" of accretion which has not been recognized by the appellate courts of this Commonwealth. Thus, even if I were to agree with Plaintiffs and the Commonwealth that the established rules of littoral ownership should apply to great ponds, the application of those rules in this case would not overcome the absence of any reliable evidence of the actual cause of Webster Lake's shoreline changes. For this reason, I need not and do not decide the broader question of whether the established littoral rules must be applied to great ponds.
As the evidence in this case does not adequately support Plaintiffs' assertion that their claimed rights in the Right of Way extend beyond the western boundary of the 100 foot Right of Way as shown on the 1948 Plan, I proceed to decide the Plaintiffs' claims in this case only as they apply to the location and dimensions of the Right of Way depicted on the 1948 Plan. [Note 20] Thus, unless otherwise evident from the context, all further references to the "Right of Way" in this Decision will mean the Right of Way as depicted on the 1948 Plan.
B. Plaintiffs' Rights in the Right of Way
For the reasons that follow, Plaintiffs must prevail in their claim that Vince and Paul each own the fee, to the centerline of the Right of Way, by operation of the Derelict Fee Statute. In pertinent part, the Derelict Fee Statute
mandates that every deed of real estate abutting a way includes the fee interest of the grantor in the wayto the center line if the grantor retains property on the other side of the way or for the full width if he does notunless "the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line."
Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 242-43 (1992) (quoting G.L. c. 183, § 58). Even though it was not enacted until 1971 (after the lots at issue in this case were conveyed out from the Common Estate), the Derelict Fee Statute applies retroactively. See St. 1971, c. 684, § 2 ("[This Section] shall apply to instruments executed on and after said effective date and to instruments executed prior thereto
.") [emphasis added]. The Statute provides an authoritative rule of construction for deeds and other instruments passing title to lands abutting a way. Tattan, 32 Mass. App. Ct. at 242-43. "The statutory presumption [that every deed of real estate abutting a way includes the fee interest of the grantor in the way] is conclusive when the statute applies, unless
the instrument passing title' evidences a different intent 'by an express
reservation.' Other 'attendant' evidence of the parties' intent is no longer probative." Id. at 243-44 (citations omitted, second omission in original).
1. Vince owns the northern half of the Right of Way in fee.
The documentary evidence demonstrates, and Audette concedes, that Vince owns the fee to the centerline of the Right of Way by retroactive operation of the Derelict Fee Statute. The Lot 15 Source Deed identifies the Right of Way as a lineal boundary and refers to the 1948 Plan, which shows Lot 15 abutting the northern part of the Right of Way for a distance of 100 feet. There are no express exceptions or reservations in the Lot 15 Source Deed, or any other deed found in Vince's chain of title. At the time Lot 15 was conveyed out from the Common Estate, the grantors still owned Lot 14 on the opposite side of the Right of Way, and so only the fee to the centerline would have been included with the grant by statute. Accordingly, a declaration of Vince's fee ownership (Counts I and II) will enter.
2. Vince also has an easement by estoppel over the southern half of the Right of Way.
In Count V of the Second Amended Complaint, Vince also claims to hold an easement by estoppel over the southern half of the Right of Way abutting Paul's Lot. [Note 21] An easement by estoppel arises when a grantor conveys land bounded on a street or way, thereby granting an easement of way to the grantee that "is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-78 (1965) (internal quotation omitted). The evidence here establishes that Vince does have an easement by estoppel over the southern half of the Right of Way by virtue of the Lot 15 Source Deed language and the incorporated reference to the way shown on the 1948 Plan, and a declaration to that effect will enter on his claim (Count V).
3. Paul owns the southern half of Right of Way in fee.
I find on the evidence that Paul also has a fee ownership in one half of the Right of Way by operation of the Derelict Fee Statute. Even though Paul's Lot is shown to directly abut the southern sideline of the Right of Way shown on the 1948 Plan, the descriptive language used in Paul's Source Deed differs markedly from that in Vince's Lot 15 Source Deed, as it does not describe the land conveyed as being bounded by the Right of Way. Paul's Source Deed uses only a running description of the land's lineal boundaries without reference to the Right of Way as a monument.
Nevertheless, the Derelict Fee Statute "applies to real estate, such as the plaintiffs', that in fact abuts a public or private [way]
or other similar linear monument, regardless of how it is described in the instrument of its conveyance," and in particular, even where the deed fails to describe the boundary as abutting a way. Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 804-05 (2003) (emphasis added, internal quotation marks omitted). Here, the running description of the northern boundary of the land conveyed by Paul's Source Deed in fact coincides with the southern boundary of the Right of Way, which is "contemplated and sufficiently designated" on the 1948 Plan referenced in Paul's Source Deed. See Brennan v. DeCosta, 24 Mass. App. Ct. 968 , 968 (1987) (abutters to unbuilt paper street acquired derelict fee in way, where it is actually staked out and used, and no exception or reservation of the fee appears in the deed). As such, Paul's Source Deed is subject to the Derelict Fee Statute, and his fee in the Right of Way is to be presumed, absent an express exception or reservation in the deed. Id.
Contrary to Audette's argument, Paul's Source Deed contains no "express reservation or exception" of the grantors' fee interest in the Right of Way that would exempt it from the normal statutory construction required under G.L. c. 183, § 58. See Tattan, 32 Mass. App. Ct. at 243.
Paul's Source Deed states that the land is conveyed:
Together with a Right of Way over existing Ways as shown on said [1948] Plan to the Granted Premises, excepting that no Right of Way is conveyed herein over any land located Northerly of the last course above-described. [Emphasis added.]
I reject Audette's argument that an exception of the fee in the Right of Way shown on the 1948 Plan must be inferred from the phrase in the Deed, stating that "no Right of Way is conveyed herein over any land located Northerly of the last course above-described." While the "land located Northerly of the last course above described" is, in fact, the area of land labeled "Right of Way" on the 1948 Plan, the Source Deed exception does not refer to the fee interest in the way labeled "Right of Way," as opposed to "some other interest or element of land use or enjoyment." Id. at 245. I find no significance in the capitalization of the term "Right of Way" in Paul's Source Deed; instead, I find that the term is used in a more generic sense of a right of way easement. In other words, the Deed grants a right of way easement over all of the existing ways shown on the 1948 Plan, except the way labeled on the Plan as "Right of Way." Thus, I agree with Plaintiffs that Paul's Source Deed merely excludes from the grant an easement to use the Right of Way as access to the granted premises.
Audette argues that this interpretation of Paul's Source Deed is illogical in that it would have been unnecessary in 1957 to exclude an easement over the Right of Way unless the grantors intended to reserve the fee to themselves. Significantly, however, Paul's Source Deed predated the Derelict Fee Statute by thirteen years. At the time Paul's Source Deed was drafted, the common law "presumption that 'a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far'" was rebuttable by evidence of the grantor's contrary intent, including by extrinsic evidence. Rowley, 438 Mass. at 803 (citing Gould v. Wagner, 196 Mass. 270 , 275 (1907)). Prior to the enactment (and retroactive application of) the Derelict Fee Statute, then, Paul's Source Deed could have been interpreted in light of surrounding facts. However, while the common law presumption "'could be overcome by clear proof of a contrary intent of the parties," the statutory mandate "is stricter than the common law rule which it codified and superseded. The statutory presumption is conclusive when the statute applies, unless
the instrument passing title evidences a different intent by an express
reservation. Other 'attendant' evidence of the parties' intent is no longer probative." Tattan, 32 Mass. App. Ct. at 243-44 (internal quotations and citations omitted); see also Rowley, 438 Mass. at 804 (Derelict Fee Statute "embodies an even stronger presumption in favor of vesting title in abutters than the common-law rule that it superseded.").
Here, I find that Paul's Source Deed does not contain the type of "express reservation or exception" of the fee interest which, under the Statute, would evidence an intent contrary to the presumption that the fee title was conveyed to the grantees. Even though the express exclusion of an easement over the Right of Way might appear to be inconsistent with an intent to convey the fee to the grantees, the Derelict Fee Statute does not permit me to infer any such contrary intent. Accordingly, I find and rule that Paul's Source Deed included the grant of a fee interest in the southern half of the Right of Way by operation of the Derelict Fee Statute and a declaration to that effect will enter on his claims (Counts I and II). [Note 22] Because I find that Paul owns the fee in the southern half of the Right of Way, I need not and do not address Paul's alternative claims (Counts VI and IX) that he has acquired rights in that half of the Right of Way by either adverse possession or prescription.
4. Paul's use of the southeast portion of the Right of Way as a driveway and parking area did not extinguish Defendants' easement rights in the Right of Way.
"To wholly extinguish an easement by prescription, the 'acts of the servient tenant [must be] utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement' for at least the prescriptive period of twenty years." Cater v. Bednarek, 462 Mass. 523 , 526, n.16 (2012) (quoting New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 159 (1931) ("New England Home"). Where the acts of the servient owner make it impossible to use only a part of the easement, only that part of the easement will be extinguished. Id. (citing Yagjian v. O'Brien, 19 Mass. App. Ct. 733 , 736-37 (1985)). Plaintiffs argue that Paul's and his family's use of the graveled area in the southeast corner of the Right of Way for an access driveway and parking for over 50 years constitute such inconsistent acts and have therefore extinguished the Defendants' easements over that portion of the Right of Way.
The evidence clearly establishes that Paul and his family have continuously used the graveled, southeast portion of the Right of Way since at least the 1960s for driveway access to their house and for the parking of their vehicles. Although Audette has the right to use the entire width of the Right of Way by virtue of his deeded easement, without obstruction, Paul as servient owner may also use the Right of Way in any manner that is not inconsistent with the rights of the easement holders. See M.P.M. Builders, 442 Mass. at 91. There is no evidence here that Paul's use of the southeast portion of the Right of Way has substantially obstructed or otherwise interfered with Audette's (or any other Defendant easement holder's) use of the Right of Way so as to be "utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement." See New England Home, 276 Mass. at 159.
Use of the Right of Way as part of an access driveway to his own Lot is entirely consistent with access over of the Right of Way by others. Moreover, the parking of cars is not ordinarily regarded as being inconsistent with the use of a right of way because they are not permanent obstacles. See Martin, 82 Mass. App. Ct. at 411 (citing Brassard v. Flynn, 352 Mass. 185 , 189 (1967)). And there has been no showing here that Paul has been parking in the Right of Way in an effort to permanently prevent Audette or others from using the Right of Way. See id. (citing Delconte v. Sullivan, 336 Mass. 184 , 185-89 (1957)). To the contrary, the evidence is that Audette freely uses the Right of Way to access the Lake, and also parks his vehicle next to Paul's on the Right of Way without challenge.
Accordingly, Plaintiffs fail in their claim that Paul has extinguished the easement rights of Defendants to use the portion of the Right of Way Paul uses for parking and an access drive, and that claim (Count VII) will be dismissed.
5. Paul may not unilaterally reduce the width of the Right of Way to exclude his driveway and parking area.
Alternatively, Paul relies on the M.P.M. Builders and Martin cases in asserting that he has the right to unilaterally reduce the width of the Right of Way by as much as 25 feet at the southeast corner to exclude entirely the area he uses for his personal access driveway and parking. The SJC held in M.P.M. Builders that "[u]nless expressly denied by the terms of an easement
the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate
." 442 Mass. at 90.
The evidence here, however, falls short of proving that a reduction of one half of the width of the upper portion of the Right of Way would either be reasonable or necessary to permit normal use and development of Paul's servient estate. Indeed, the servient estate at issue consists solely of one half of a fifty-foot wide right of way. [Note 23] As has been discussed above, Paul is already entitled as fee owner to use the southeastern portion of the Right of Way for his own driveway access purposes, as well as for parking his vehicles in the same manner as he now uses it. Paul has proposed no other use of the land he owns within the southern half of the Right of Way. Plaintiffs have also made no showing that the reduction of the Right of Way width would be a reasonable change which would not increase the burdens on the easement holders in their use and enjoyment of the Right of Way to access Webster Lake.
Accordingly, Plaintiffs fail in their claim that Paul is entitled under MPM Builders or Martin to reduce the width of the Right of Way by excluding the area he uses for parking and an access drive, and that claim (Count VIII) will be dismissed.
C. The Scope of Audette's Rights in the Right of Way
Audette has an express easement by deed that provides "a right of way to Webster Lake located northerly of Lot #14 as shown on [the 1948 Plan]." Plaintiffs argue, correctly, that Audette has an obligation to "act reasonably in the exercise of [his] privileges so as not to interfere unreasonably with the rights of other easement holders." Cannatta v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789 , 797 (2009). In Count III, Plaintiffs ask the court to declare that Audette's deeded easement rights are limited to the "rights of ingress, egress and travel" by foot to Webster Lake, and to rule that Audette has unreasonably interfered with the rights of others in the Right of Way, including the rights of the Plaintiffs, and has overburdened the easement by regularly parking his vehicles, installing and accessing the Dock, storing the disassembled Dock, and holding social gatherings, such as picnics and cookouts, within the Right of Way.
Audette argues, and the evidence confirms, that most of the activities complained of do not take place within the bounds of the 100-foot long Right of Way shown on the 1948 Plan but, instead, take place on the strip of land that now lies between the Lake and the western end of said Right of Way. As discussed in Section A above, Plaintiffs' ownership of that strip of land has not been established. [Note 24] Therefore, without having established their own rights in that land area, the Plaintiffs lack standing to object to, or seek limitations on, Audette's use of it. Compare Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 , 753 (2015) (owners in fee and easement holders have an interest in preventing wrongful use, overloading or overburdening of a way).
Critically, I do not make any findings herein that Audette himself has any rights deeded or otherwise to use any of the land located between the end of the Right of Way shown on the 1948 Plan and the current shoreline. I simply find that where the Plaintiffs have not established their rights in that land, Audette's use of that land will not be considered for purposes of determining under Counts III and IV, what uses of the Right of Way are within the scope of the easement and whether Audette has overburdened the easement.
As fee holders in the Right of Way shown on the 1948 Plan, the Plaintiffs do have standing to assert their declaratory judgment and overburdening claims as to the activities Audette conducts within said Right of Way. Plaintiffs claim that Audette's easement rights in the
Right of Way are limited solely to ingress and egress, so as to gain access to the Lake. They argue that, other than Audette, none of the easement holders in the Right of Way have ever used the Right of Way for vehicular access or parking, and so, they argue, the Right of Way easement is limited to pedestrian travel.
Plaintiffs complain that Audette and his guests use their vehicles to travel on the Right of Way and park within the Right of Way, often blocking passage to the Lake and interfering with Paul's access to his Lot. Plaintiffs further complain that Audette and his guests use the Right of Way to access Audette's Dock a use they contend is not contemplated by Audette's deeded right of way to the Lake. They also object to Audette's re-grading of the Right of Way and to his placement of lattice paving stones to ease vehicular travel and control erosion.
As a preliminary matter, I find no basis in either the evidence or the law for the propositions that Audette's use of the Right of Way is limited solely to pedestrian travel by virtue of historical use, or that he may not park his vehicle on the Right of Way in conjunction with his access to the Lake, including the Dock he maintains there. "'In the absence of express limitations,
a general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant.'" Cannata, 73 Mass. App. Ct. at 795 (quoting Tehan v. Security Natl. Bank of Springfield, 340 Mass. 176 , 182 (1959)). "Where the easement arises by grant and not by prescription, and is not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted." Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 273 (1913). Moreover, a dominant estate holder's full enjoyment of a right of way includes "the right to enter upon the servient estate on which no actual way has been prepared and constructed and to make such changes therein as will reasonably adapt it to the purposes of a way." Walker v. E. William & Merrill C. Nutting, 302 Mass. 535 , 543 (1939). It also includes the right to "make reasonable repairs and improvements to the right of way." Chatham Conservation Found., Inc. v. Farber, 56 Mass. App. Ct. 584 , 589 (2002).
Here, Audette's Source Deed expressly grants "a right of way to Webster Lake located northerly of Lot #14 as shown on aforesaid plan." The language of the grant is specific with respect to the purpose of the easement "a right of way to Webster Lake" but sets no limitations on the manner, frequency, or intensity of use that the dominant estate may make of the right of way easement.
As a record easement holder of an unrestricted right of way, Audette is privileged to make reasonable uses of the Right of Way for access to the Lake, including by traveling upon it with a vehicle and re-grading and improving it to facilitate that vehicular travel. Even where historical use of an easement has been confined to a particular manner, such as foot travel, an easement granted in general terms is available for all reasonable uses, even if those uses change over time. See Restatement (Third) of Property (Servitudes) § 4.10 (2000) ("The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude.").
Whether Audette has the right to use or park his vehicle within the Right of Way, depends on whether such vehicular use and/or parking are "reasonably necessary to the full enjoyment" of the right of way to the Lake granted in Audette's Source Deed. Cannata, 73 Mass. App. Ct. at 795 (internal quotation marks omitted). The evidence is that Audette drives his own passenger vehicle over the Right of Way and also parks his vehicle on the Right of Way, usually when he is bringing large or heavy equipment, like coolers or sporting gear, to use on his Dock or on his boat. Audette also uses a trailer to bring his boat and other recreational vessels and equipment to the Dock for the season. As these uses are directly related to Audette's access to the Lake for his personal enjoyment, I find that they are reasonably necessary and permissible. So long as Audette's vehicular travel and parking activities do not obstruct or interfere with the rights of others to also use the Right of Way, these activities do not exceed the scope of Audette's deeded easement rights.
However, Audette's rights to travel over and park on the Right of Way in connection with his access to the Lake are not unlimited. Audette also permits his guests to use the Right of Way to access the Lake. His guests usually walk down the Right of Way to the Lake but, on occasion, they park their vehicles in the upper portion of the Right of Way, as well. [Note 25] On the evidence adduced at trial, I find that occasional use of the Right of Way by Audette's guests to access the Lake by foot is reasonably necessary to the full enjoyment of Audette's rights as the easement holder, but that routine vehicular access and parking on the Right of Way by his guests is not reasonably necessary.
Moreover, Plaintiffs' testimony and several photographs introduced into evidence demonstrate that, on more than one occasion, Audette and his guests have parked their vehicles on the upper portion of the Right of Way, in a manner that obstructed access by others, including Plaintiffs. Such interference with the rights of other lawful users of the Right of Way is not permissible. Given that the paved and graveled flat area on the upper part of the Right of Way is limited in area, and given that both Plaintiffs' driveways run through this area, and that Plaintiffs and Audette already use the same area to park their own personal vehicles, adding Audette's guests' cars to this limited area is bound to interfere with rights of the Plaintiffs and other easement holders to use the Right of Way. Therefore, I conclude that Audette's rights to access the Lake over the Right of Way do not extend to allowing his guests or other invitees to routinely drive their vehicles or park on the Right of Way. [Note 26] See, e.g., Rendell v. Massachusetts Dept. of Conservation & Recreation, 17 LCR 734 (Misc. Case No. 05-308443) (Long, J.), 2009 WL 4441212, at *16-17 (discussing reasonableness of guest and invitee use of easement). Such additional use would result in an overburdening of Audette's easement in the Right of Way.
Finally, I find that the re-grading the Right of Way and the addition of the lattice paving stones fall well within the scope of Audette's rights to "make reasonable repairs and improvements to the right of way." Chatham Conservation Found., Inc., 56 Mass. App. Ct. at 589.
Accordingly, judgment shall enter under Counts III and IV, declaring that Audette's rights in the Right of Way include personal vehicular access and parking within the bounds of the Right of Way, by himself and his household members, as is reasonably necessary for his full enjoyment of the right to access Webster Lake, but only so long as such vehicular access and parking is conducted in a manner that does not interfere with the use and enjoyment of the Right of Way by others who have rights therein; that Audette's rights to access Webster Lake include the right to permit his guests to access the Lake over the Right of Way by foot, but do not extend to permit routine vehicular access and parking by his guests on the Right of Way; and that Audette's rights to use the Right of Way include the right to make reasonable repairs and improvements to the Right of Way, including (but not limited to) re-grading and paving to improve accessibility. Judgment shall enter under Count IV enjoining routine vehicular travel and parking on the Right of Way by Audette's guests as such use exceeds the scope of Audette's deeded easement and results in an overburdening.
CONCLUSION
Final Judgment shall enter in accordance with the foregoing Decision.
The natural water lines of a great pond, as with other bodies of water, may of course change over time as a result of natural events including accretion or reliction. This would seem to be especially true in cases of coastal ponds, where the contours of the coastlines, beaches, and ponds will be affected by storms, rises in sea level, and other natural forces. The question then becomes whether the boundaries of the littoral property on great ponds change along with these natural changes in the water lines. It is a question that raises important and complex competing principles of private property law and the Commonwealth's protection of the public trust that were not addressed in the Lorusso case, [Lorusso v. Acapesket Improv. Ass'n, 408 Mass. 772 (1990)]. The issues cannot properly be resolved in an advisory opinion, at least not with the limited information we have here.
Audette argues in his post-trial briefing that the law applicable to littoral boundaries along the ocean should not be applied to great ponds. Audette reasons that, where the waters of a great pond are not subject to the ebbs and flows that tidal waters experience, the legal doctrines concerning accretion, avulsion, and the like, cannot apply equivalently to great ponds, by presumption or otherwise. He alternatively argues that the water levels in Webster Lake are, in any event, controlled by a dam, and the fact that they remained unchanged for almost sixty years, but changed (suddenly) at some point between 1948 and the early 1960s, rebuts any possible "presumption" that the shoreline change resulted from gradual accretion. As noted, Audette presented no credible evidence regarding the dam or any link to its effect on the water level of the Lake.
VINCE KUBIC and PAUL KUBIK v. DAVID AUDETTE and ANN MARIE PETERS as Trustee of the Douglas H. Babcock and Elaine L. Babcock Irrevocable Trust; RAYMOND E. PION JR.; ANN M. PION; RONALD P. PIERCE; PAULINE D. PIERCE; JOEL L. KUBILIS; RHONDA BRUNELLE; DAVID L. NIGRO; TAMMY M. NIGRO; ERNEST F. GATTO JR.; CAROLYN G. GATTO; SCOTT G. ANDERSON; ELAINE G. ANDERSON; MARVIN O. FERGUSON; WARREN LEWIS JR.; LISA M. LEWIS; FREDERICK R. BOCK; BETH C. BOCK; LYNN ANN FELLMAN; ROBERT BAXTER; RAYMOND GIFFORD; JANE GIFFORD; and ADAM S. VRABEL, Trustee of the Vrabel Family Trust, Interested Parties