DAVID D. FITZGERALD and CYNTHIA A. FITZGERALD v. COURTLAND P. HARLOW, III, DANIEL P. HARLOW, DOROTHY P. HARLOW, RICHARD E. SAVICKEY and RITA P. SAVICKEY

INTRODUCTION

Plaintiffs David D. and Cynthia A. Fitzgerald ("Mr. Fitzgerald" and "Mrs. Fitzgerald," respectively, or "the Fitzgeralds" collectively), the owners of property known as 12 Sunset Road, Kingston, Massachusetts ("12 Sunset Rd."), brought this action in December, 2016 seeking an adjudication as to their rights over a beach located in part at 24 Sunset Road, Kingston, Massachusetts ("the Harlow Beach" and "24 Sunset Rd." respectively) owned by defendants Courtland P. Harlow III and Daniel J. Harlow ("Courtland III" and "Daniel" respectively, or, with other family members, "the Harlows" collectively) and in part at 21 Wharf Lane, Kingston, Massachusetts ("the Savickey Beach" and "the Wharf" respectively) owned by defendants Richard E. and Rita P. Savickey ("the Savickeys"). The Fitzgeralds' claim to use of the Harlow Beach is based on an express grant in their chain of title by the Harlows' predecessor in title of the right "to use the beach at said Kingston Bay." Failing that, the Fitzgeralds claim a prescriptive easement over the Harlow Beach and the Savickey Beach based on the Fitzgeralds' and their predecessor in title's use of the same. In either case, the Fitzgeralds seek relief for the wrongful interference with their easement rights.

In response, the Harlows contend that the "beach" referred to in the Fitzgeralds' chain of title is only that portion of the beach within the layout of Sunset Road (referred to herein as "the Triangle Beach"), not the Harlow Beach, and the Harlows and the Savickeys both contend that the Fitzgeralds cannot establish the requisite 20 years of adverse use sufficient to establish a prescriptive easement. The Harlows further contend that any easement rights that the Fitzgeralds might have had were lost, either as a result of the taking of Sunset Road, including any easements therein, by the Town of Kingston in 1963, or by virtue of an agreement resolving an action brought by defendant Dorothy P. Harlow ("Mrs. Harlow"), the mother of Courtland III and Daniel, against Mr. Fitzgerald in the District Court Department of the Trial Court (Plymouth Division) ("Plymouth District Court") in 2011.

For the reasons set forth below, this court concludes that the Fitzgeralds have an express easement to use the Harlow Beach that has not been extinguished. This court further concludes that the Fitzgeralds have failed to establish a prescriptive easement over the Savickey Beach or, to the extent that it is any longer relevant, the Harlow Beach.

RELEVANT PROCEDURAL HISTORY

The Fitzgeralds' complaint asserts three claims: (1) for a declaration of their right to use the beach at the easterly end of Sunset Road, whether based on an express grant, on adverse use, or on the rights granted to the public generally; (2) for trespass, based on the defendants' interference with the Fitzgeralds' right to use the beach; and (3) to establish a prescriptive easement to use the beach. A fourth count, seeking injunctive relief, is a remedy rather than a claim. The Savickeys filed their answer in February 2017 and the Harlows filed Defendant Harlows' Answer And Counterclaims on February 21, 2017. The counterclaim, denominated as one for "promissory estoppel," was the subject of a motion to dismiss. In a docket entry dated March 31, 2017, this court (Piper, J.) denied that motion, but noted that the Harlows' counterclaim was "more properly read as a defense, as a counter declaration, and as preserving the Harlows' opportunity to obtain an award of attorneys' fees" based on Mr. Fitzgerald's alleged relinquishment of his rights at a proceeding in the Plymouth District Court in 2011.

Discovery closed on January 31, 2018. Shortly thereafter, the Fitzgeralds filed a motion for partial summary judgment, which was opposed by the Harlows. After a hearing on May 14, 2018, the court (Piper, J.) denied the motion and set the matter down for trial in March 2019. In January 2019, this matter was reassigned to the undersigned. At a pre-trial conference on March 13, 2019, the parties agreed that the issues for trial were (1) the location and extent of the particular land burdened by the easement granted in a 1951 deed, (2) the acquisition of a prescriptive easement by the Fitzgeralds over the land of the Harlows and/or the Savickeys, (3) the extinguishment of any such rights, deeded or prescriptive, as a result of either the 2011 district court action or a 1963 order of taking by the Town of Kingston and (4) any wrongful interference with whatever easement rights, if any, were found to exist.

This court took a view of 24 Sunset Rd., the Wharf, the Triangle Beach, the Harlow Beach and the Savickey Beach on May 7, 2019. This matter was tried over five days, June 3 through June 6 and July 26, 2019. Mr. and Mrs. Fitzgerald testified, as did Richard Grady, P.E., on their behalf. Mrs. Harlow, Daniel, Courtland III, and Shane Brenner, a registered professional land surveyor, testified on behalf of the Harlows. Mr. Savickey testified on behalf of the Savickeys. The parties initially stipulated to 50 agreed exhibits, which were admitted in evidence. During the course of trial, another 37 exhibits were admitted.

FINDINGS OF FACT

Based on the pleadings, the view, the admitted exhibits, the testimony at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I find the following facts, reserving certain details for the discussion of specific legal issues. To the extent any witness testified otherwise, I did not find that testimony credible, reliable, or in accord with the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

The Parties

1. The Fitzgeralds own and reside at the property located at 12 Sunset Rd., Kingston, Massachusetts. Ex. 1; Tr. I-48:22, III-90:10.

2. Courtland III and Daniel are the owners, as tenants in common, of the property located at 24 Sunset Rd., Kingston, Massachusetts, having obtained title by conveyance from their mother, Mrs. Harlow, in 2013. Ex. 2.

3. The Savickeys own the property located at 21 Wharf Lane, Kingston, Massachusetts, which they use as a second home. Ex. 3; Tr. I-77:9 - 11.

Record Title

4. By deed dated May 21, 1944 and recorded at the Plymouth County Registry Of Deeds ("Registry") at Book 1922, Page 180 ("the 1944 Delano Deed"), Paul H. Delano conveyed to David Blair McClosky and Barbara M. McClosky 3.32 acres extending east "into the sea so far as my ownership extends" and thence by the sea to a point. Ex. 7.

5. The 1944 Delano Deed also granted the appurtenant right to pass and repass over a 25 foot road laid out by the grantor and reserved certain rights to the grantor. Id.

6. The property conveyed by the 1944 Delano Deed is shown on a plan of land entitled "Preliminary Plan For Subdivision Land of Paul H. Delano, Scale 1"=40' Sept. 1945 Delano & Keith, Surveyors" and abuts a 25 foot wide "proposed road" that extends from Howlands Lane to Kingston Bay. Ex. 6.

7. The fee in the "proposed road," now known as Sunset Road, is described as Parcel No. 1 in a deed from Paul H. Delano to David Blair McClosky and Barbara H. McClosky dated August 31, 1950 and recorded in the Registry at Book 2127, Page 205 ("the 1950 Delano Deed").

8. In October 1951, a plan was prepared subdividing the land conveyed by the 1944 Delano Deed and establishing the boundaries of Sunset Road, entitled "Plan Showing Subdivision Of Land In Kingston belonging to David B. McClosky et ux Scale 1"=40' Oct. 18, 1951, Delano & Keith, Surveyors" and recorded in the Registry at Plan Book 8, Page 780 ("the 1951 Plan"). Ex. 9.

9. The 1951 Plan created four lots labeled A, B, C and D, all with frontage along Sunset Road, and a 25 foot wide "right of way" to the north of Lot A. Id.

10. By deed dated November 20, 1951 and recorded in the Registry at Book 2179, Page 53, David Blair McClosky and his wife conveyed Lot D as shown on the 1951 Plan to William M. and Laura H. Post ("the Post Deed"), with the restrictions that "[n]ot more than five dwelling houses to be erected on the entire parcel" and "[n]o business or commercial venture of any kind shall be carried on on said premises with the exception of summer rentals." Ex. 44.

11. The Post Deed also contained the following grant: "So much of the above described premises as abut Sunset Road are conveyed together with a right in common with others entitled thereto over said Sunset Road to Kingston Bay and to use the beach at said Kingston Bay." Id.

The Fitzgerald Title - 12 Sunset Rd. - Lot C

12. By deed also dated November 20, 1951 and recorded in the Registry at Book 2202, Page 192, David Blair McClosky and his wife conveyed Lot C on the 1951 Plan to James J. McGee and Edna L. McGee "together with a right in common with others entitled thereto over said Sunset Road to Kingston Bay and to use the beach at said Kingston Bay" ("the 1951 McGee Deed"). Ex. 10.

13. Edna L. McGee, as the surviving joint tenant named in the 1951 McGee Deed, conveyed Lot C to Louise M. Guglielmi by deed dated September 26, 1963 and recorded in the Registry at Book 3057, Page 257 "subject to the restrictions, and with the privileges and rights, set forth in" the 1951 McGee Deed and excepting from the grant "a strip of land along Sunset Road, containing 285 square feet, taken by the Town of Kingston for the layout of Sunset Road, by Taking dated April 15, 1963." Ex. 11.

14. The same language quoted above appears in subsequent deeds of Lot C from Louise M. Guglielmi to Nancy B. Tewksbury, Trustee, dated April 20, 1965 and recorded in the Registry at Book 3197, Page 90, Ex. 12; the deed from Nancy B. Tewksbury, Trustee, to Richard H. and Dorothy C. Sgarzi dated April 27, 1965 and recorded in the Registry at Book 3199, Page 85, Ex. 13; the deed from Richard H. and Dorothy C. Sgarzi to Richard E. Gallahger ("Mr. Gallagher") and Jane Barry dated November 29, 1968 and recorded in the Registry at Book 3488, Page 635, Ex. 14; and from Mr. Gallagher and Jane M. Gallagher f/k/a Jane Barry to Mr. Gallaher dated July 11, 1978 and recorded in the Registry at Book 4487, Page 311. Ex. 15.

15. The Fitzgeralds, by virtue of a deed from them and from Mr. Fitzgerald as executor under the will of Mr. Gallagher dated February 10, 2000 and recorded in the Registry at Book 18281, Page 80 ("Fitzgerald Deed"), Ex. 1, are the current owners of Lot C as shown on the 1951 Plan, less 285 square feet taken by the Town of Kingston for the layout of Sunset Road in 1963, Ex. 43, and "subject to the restrictions and with the privileges and restrictions set forth in a deed from David Blair McClosky et al to James McGee et al dated November 20, 1961 and recorded in the Registry at Book 2202, Page 192." Ex. 10.

The Savickey Property - "The Wharf"

16. The northerly half of the Wharf and the southerly half of the Wharf were acquired in separate conveyances by John S. Van Bael and Eleanor Van Bael in 1945: the southerly half by deed from Paul H. Delano dated August 25, 1945 and recorded in the Registry at Book 189, Page 548, Ex. 30; and the northerly half by deed from Arthur B. Holmes dated August 25, 1945 and recorded in the Registry at Book 1889, Page 547. Ex. 31.

17. The flats adjacent to the north of the Wharf, to the low water mark, are included in the grant as are the flats to the south "into Kingston Bay as far as private ownership extends." Exs. 30-31.

18. Thereafter, the Wharf was conveyed by the Van Baels to Edward Zullo and Wilfred LaRoche, as Trustees of the Fitz Murray Realty Trust, by deed dated June 22, 1966 and recorded in the Registry at Book 3303, Page 129, Ex. 33; by Mr. Zullo and Mr. LaRoche, as trustees, to Marjorie H. Harlow by deed dated June 25, 1969 and recorded in the Registry at Book 3530, Page 238, Ex. 34; by Marjorie H. Harlow to Wilfred LaRoche by deed dated June 25, 1969 and recorded in the Registry at Book 3530, Page 241, Ex. 35; by Wilfred LaRoche to Wilfred LaRoche as Trustee of the Wilfred LaRoche Realty Trust by deed recorded on December 31, 1973 at Book 3957, Page 430, Ex. 37; by deed from Wilfred LaRoche, Trustee, to Wilfred LaRoche dated July 29, 1992 and recorded at Book 11149, Page 213. Ex. 38.

19. By deed dated July 29, 1992 and recorded at Book 11149, Page 217, Wilfred LaRoche conveyed the Wharf to the Savickeys, retaining the right to occupy the premises during the term of his natural life. Ex. 40.

20. By deed dated July 28, 1993 and recorded at Book 12069, Page 143, Wilfred LaRoche deeded all rights in the Wharf reserved by him in the July 29, 1992 deed to the Savickeys, but reserved to himself the right in common with the Savickeys to occupy the premises during the term of his natural life. Ex. 41.

21. By deed dated April 23, 1997 and recorded at Book 31856, Page 123, Wilfred LaRoche granted all of his remaining interest in the Wharf to the Savickeys. Ex. 3.

The Harlow Property - 24 Sunset Rd. - A Portion Of Lot A

22. Lots A and B on the 1951 Plan were resubdivided as shown on a plan entitled "Plan Showing Subdivision of Land in Kingston belonging to David B. McClosky et ux Scale 1 in = 40 ft. Sept. 10, 1953 Delano & Keith, Surveyors Plymouth, Mass." and recorded in the Registry at Plan Book 9, Page 573 ("the 1953 Plan"). Ex. 17.

23. Lot 8 as shown on the 1953 Plan and the fee in Sunset Road and in the parcel of land at the easterly end of Sunset Road were conveyed by David Blair McClosky and his wife to Nicholas E. Zinsius and Florence Zinsius by deed dated November 3, 1953 and recorded in the Registry at Book 2308, Page 307. Ex. 18.

24. The fee in Sunset Road and the parcel at its easterly end were conveyed "subject to the rights of all persons entitled to use the same and subject to the reservation to the grantors and their heirs and assigns to use said Sunset Road and said lot." Ex. 18.

25. The dimensions of the southerly and northerly boundaries of Lot 8 were modified as reflected on a plan entitled "Plan Of Land In Kingston, Mass. Belonging To Florence Zinsius Scale 1" = 30' November 20, 1964 John F. Caulfield Reg. Land Surveyor" ("1964 Plan"). Ex. 22.

26. By the time of the 1964 Plan, Florence Zinsius and her husband had acquired title from David Blair McClosky and his wife to property to the north of Lot 8 by deed dated June 4, 1954 and recorded at Book 2345, Page 459, Ex. 20, and property to the west of Lot 8 by deed dated May 9, 1955 and recorded at Book 2418, Page 39. Ex. 21.

27. By deed dated April 18, 1969 and recorded at Book 3513, Page 584, Florence Zinsius conveyed Lot 8 as shown on the 1964 Plan to Courtland L. Harlow and Marguerite M. Harlow, together with the fee in Sunset Road and in the parcel of land at the easterly end of Sunset Road. Ex. 23.

28. By deed dated January 10, 1975 and recorded at Book 4042, Page 611, Courtland L. Harlow and his wife conveyed Lot 8 to Courtland L. Harlow Jr., together with the fee in Sunset Road and in the parcel of land at the easterly end of Sunset Road. Ex. 24.

29. By deed dated November 9, 2009 and recorded at Book 38082, Page 92 and described therein as "Parcel One," Courtland L. Harlow Jr. conveyed Lot 8 to Robert T. Looney, together with the fee in Sunset Road and in the parcel of land at the easterly end of Sunset Road (hereinafter "Parcel One"). Ex. 27.

30. On the same date, Robert T. Looney reconveyed the property to Courtland L. Harlow Jr. by deed recorded at Book 28082, Page 95. Ex. 28.

31. By deed dated January 27, 2011 and recorded at Book 39639, Page 48, Courtland Harlow Jr. conveyed Parcel One to Dorothy P. Harlow, Trustee of the Daniel-Courtland III Trust. Ex. 29.

Order of Taking

32. By order of taking dated April 2, 1963 and recorded at Book 3010, Page 392 ("the Order Of Taking"), the Board of Selectmen of the Town of Kingston established the layout of Sunset Road and took, "for the purposes of a town way, the land and the rights and easements therein which are included within the limits and boundaries of the layout dated the thirty-first of January, 1963." Ex. 42.

33. The Order Of Taking references a plan entitled "Plan of Sunset Road in Kingston, Mass. Laid out by the Selectmen as a Town Way," id., which plan was recorded in Plan Book 12, Page 975 ("the Taking Plan"). Ex. 43.

34. The Taking Plan shows that the Town took 285 square feet of the land now owned by the Fitzgeralds abutting Sunset Road and 263 square feet of the land now owned by the Harlows abutting Sunset Road. Id.

35. The Taking Plan includes the Triangle Beach at the end of Sunset Road at issue in this proceeding, which is shown on Exs. 49 and 60-62 among others and consists of approximately 350 square feet.

The Location Of Mean High Water With Relation To The Layout Of Sunset Road

36. The Fitzgeralds offered the testimony of Richard Grady, P.E., and the Harlows and the Savickeys offered the testimony of Shane Brenner, RLS, on, among other things, the location of "high water" and "mean high water" in relation to the layout of Sunset Road.

37. Mr. Grady testified with respect to an existing conditions plan prepared under his supervision in October 2017 that was marked as Ex. 57 at trial ("Grady Plan"). Tr. II-14:11 - 15:14; II-27:22 - 41:13.

38. The Grady Plan shows an "observed high water elevation" at elevation 6.7 that is within the layout of Sunset Road. Tr. II-31:17 - 32:24; II-36:24 - 38:25.

39. According to Mr. Grady, this line was calculated based on the observed staining at the existing retaining wall at the Wharf, a photograph of which was marked as Ex. 71 at trial, and the observed seaweed line on the beach. Tr. II-32:18 - 34:22.

40. Mr. Brenner testified as to the mean high water line as shown on plans of the area prepared by him in 2013 (Ex. 61) and 2016 (Ex. 62) and as staked by him for the view in 2019 (among others, Exs. 58, 63-64), the blue stakes representing mean high water in 2019 and the red stakes representing mean high water in 2015. Tr. II-110:9 - 111:11; II-118:13 - 120:24; II-127:17 - 129:9.

41. According to Mr. Brenner, mean high water was calculated by him using a published benchmark, by either the National Geodetic Survey or another federal government entity such as the U.S. Army Corps of Engineers, verified by the tide gauge for Plymouth Bay published by NOAA, which looks at water level fluctuations over a 19 year period to determine mean high, mean, mean low, and mean low low elevations. Tr. II-121:10 - 122:7.

42. Because Mr. Brenner considered Plymouth Bay to have a good tide gauge that was uniform across Plymouth Bay, which supported the known benchmark, he was able to calculate the elevation of mean high water as 4.32. Tr. II-121:19 - 24; II-122:8 - 123:16.

43. As observed at the view, the mean high water mark as determined by Mr. Brenner is outside the layout of Susnet Road by some 20-30 feet, whether calculated as of 2015 or 2019. Exs. 58-59, 68.

44. Mr. Brenner disagreed with Mr. Grady's methodology because he considered the use of the stain line standing alone to be inadequate without other supporting evidence. Tr. II-142:2 - 18; II-143:7 - 18; II-144:14 - 23.

Use Of The Beach By The Fitzgeralds And Their Predecessor In Title

45. Mr. Fitzgerald and Mr. Gallagher were boyhood friends whose families spent summers in the area of Kingston, Massachusetts known as Rocky Nook, an area that includes the properties at issue in this litigation. Tr. I-56:17 - 18; I-57:12 - 15; III- 87:23 - 88:8.

46. Mr. Fitzgerald recalled, as a boy, accompanying his father in visits to the Van Baels, who then owned the Wharf, and swimming at the beach there. Tr. I-57:12 - 15.

47. Mr. Gallagher purchased 12 Sunset Rd. in November 1968 and moved to that property full time the following year. Tr. I-58:13 - 22.

48. During the period of 1969 through 1978, while Mr. Gallagher was married, Mr. Fitzpatrick visited Mr. Gallagher on the weekends during the summer and, on every good weekend, would go the beach at the end of Sunset Road. Tr. I-63:2; I-66:4 - 9.

49. In addition to Mr. Fitzgerald and Mr. Gallagher, many other people used the beach during that period for swimming, sitting in beach chairs and otherwise using the beach. Tr. I-75:17 - 76:18.

50. As to use of the beach, according to Mr. Fitzgerald there was no distinction made between the beach within the layout of Sunset Road, the beach within the boundaries of 24 Sunset Rd. or the beach within the boundaries of the Wharf. Tr. I-69:9 - 17.

51. Mrs. Harlow spent summers with the Harlows from 1974 until she married Courtland Jr. in 1979. Tr. IV-236:3 - 6.

52. Mrs. Harlow also recalled use of the beach by Mr. Gallagher starting in the mid-1970s, having been introduced to him as a friend of the Harlow family in or about 1974. Tr. IV-165:22 - 166:6; Tr. V-73:21 - 74:5.

53. Mrs. Harlow described Mr. Gallagher's use as being with the permission of the Harlows: she usually saw him on the beach in the company of members of the Harlow family; she invited him to accompany her to the beach; and testified that she was present during a conversation in 1975 or 1976 when Mr. Gallagher was given permission to use the beach with friends when the Harlows were not at home. Tr. IV-186:12 - 187:4; IV-191:24 - 195:6.

54. After Mr. Gallagher divorced his wife in about 1978, Mr. Fitzgerald visited Mr. Gallagher more frequently because the two men had become business partners in a limousine service. Tr. I-62:19 - 20; Tr. I-79:14 - 17; I-80:17 - 25.

55. From that time until 1994, when Mr. Fitzgerald and his family moved to Florida, Mr. Fitzgerald and others continued to use all portions of the beach at the end of Sunset Road during the summers for swimming and sitting in beach chairs. Tr. I-82:1 - 83:19.

56. In 1982, Mr. and Mrs. Fitzgerald were married on the beach at 24 Sunset Rd. The evidence is disputed as to whether Mrs. Harlow gave permission to the Fitzgeralds to do so. Tr. I-166:2 - 13; III-107:15 - 18; III-168:6 - 13; IV-196:3 - 197:5; IV- 198:15 - 17.

57. During the summer of 1981, when Mr. and Mrs. Fitzgerald were engaged, Mrs. Fitzgerald was unemployed and so used the beach frequently, which was reached by wooden stairs on the property at 24 Sunset Rd. Tr. III-90:7 - 21.

58. The wooden stairs were built and maintained by Courtland P. Harlow Jr., were located off the south end of the deck at 24 Sunset Rd., and were used to access the beach. Tr. IV-113:4 - 16.

59. The wooden stairs were taken down in 1988 or 1989 during construction at 24 Sunset Rd. Tr. IV-113:21 - 23.

60. In 1993-1994, the Harlows constructed a seawall along the edge of the beach within the boundaries of 24 Sunset Rd. and the layout of Sunset Road, which included a set of stone stairs within the layout of Sunset Road that provided access to the beach. Tr. IV-49:24 - 50:4; IV-58:10 - 15; IV-131:15 - 132:21.

61. In late 1992, Mr. Fitzgerald suffered a stroke, was hospitalized for six weeks and then recuperated at home for approximately one month, after which he began receiving disability payments. Tr. I-164:17; III-41:12 - 42:9; III-127:6 - 7.

62. In 1994, Mr. and Mrs. Fitzgerald and their two children moved to Florida, where they resided as permanent residents until 1999. Tr. III-25:2 - 19; III-109:9 - 16.

63. From 1994 until 1999, Mr. Fitzgerald visited Mr. Gallagher on several occasions during the summer, during which he used the beach for sitting, having a few drinks, and setting off fireworks on the 4th of July. Tr. I-86:19 - 25.

64. In addition, Mr. and Mrs. Fitzgerald and their children stayed with Mr. Gallagher for several weeks during the summer after Mr. Gallagher's mother died and used the beach, without regard to who owned which part of it, when the weather allowed it. Tr. III-116:11 - 118:4.

65. Mrs. Harlow described Mr. Gallagher as "very sick" and living alone during the 1990s and said that, during this period, he did not use the beach much. Tr. IV-244:2 - 18.

66. By June, 1999, Mr. and Mrs. Fitzgerald, who were Mr. Gallagher's health care agents, returned to Massachusetts with their children to help care for him. Tr. III- 109:9 - 16; III-119:17 - 25.

67. Mr. and Mrs. Fitzgerald and their children stayed at Mr. Gallagher's mother's home, across the street from 12 Sunset Rd., at 11 Sunset Rd. Tr. III-116:11 - 117:9.

68. Mr. Gallagher died in September, 1999. Tr. III-122:12 - 13.

69. As noted above, Mr. and Mrs. Fitzgerald acquired 12 Sunset Rd. in February 2000. Tr. III-123:14 - 16.

70. Thereafter, Mr. Fitzgerald used the beach whenever the weather permitted to go for a walk or to take a chair to sit on the beach or to float in the water. Tr. I-89:15 - 90:25.

71. Mr. Fitzgerald also set off fireworks from the beach. Tr. I-91:5 - 6.

72. Mr. Fitzgerald walked his dog on the beach during all parts of the year. Tr. I-90:14 - 17.

73. Mr. and Mrs. Fitzgerald's children used the beach: their son, born in 1988, used the beach unsupervised with his friends and their daughter, born in 1993, used the beach under her parents' supervision. Tr. III-125:19 - 126:24; III-213:8 - 13.

74. Mrs. Fitzgerald accompanied her daughter to the beach until June 2001, when Mrs. Fitzgerald began new employment. Tr. III-126:21 - 127:11.

75. During her testimony, Mrs. Fitzgerald acknowledged that neither she nor her children used the beach for an uninterrupted period of 20 years or more. Tr. III- 223:10 - 224:10.

76. For his part, Mr. Savickey testified to first visiting the Wharf in 1975 and having sporadic day trips until September 1984, when he started regularly visiting on Wednesdays and Saturdays and, two or three times a year, for longer visits, until 1995. Tr. V-131:18.

77. From 1995 until 2016, Mr. Savickey stayed at the Wharf for two to six months during the spring-summer-fall, with day trips and weekend trips during the off season. Tr. V-132:1 - 133:15.

78. Mr. Savickey testified that the first time that he saw anyone using the beach on the Wharf property was in June 2008. Tr. V-138:7 - 14.

79. Between 2008 and 2013, Mr. Savickey testified that he would see one or two people on the beach associated with the Wharf and 24 Sunset Road, that they were usually neighbors and that they stayed for a half hour, looking for sea glass, walking or swimming. Tr. V-138:15 - 140:17.

80. During that period, Mr. Savickey did not tell people to get off the beach because they were his neighbors, he did not want to create trouble, and they were respectful (according to Mr. Savickey, there was no trash, no drinking and no rowdy behavior). Id.

81. That changed as a result of an incident with other neighbors, not parties to this litigation, in 2014. Tr. V-146:17 - 147:2.

82. After that incident, Mr. Savickey had his property surveyed, posted a "no trespassing" sign on his beach, hired a lawyer to send a "cease and desist" letter to various people who had been using the beach, and did not allow people on the Wharf Beach anymore. Tr. V-151:25 - 152:17.

Interruption of Use

83. Mr. Fitzgerald had occasions to be on the beach in his capacity as a member of the Kingston Board Of Health during the 1990s, which was described by both Mr. Fitzgerald and Mrs. Harlow. Tr. III-40:1 - 11; III-180:19 - 185:6; IV-209:14 - 210:2.

84. In 2000, when Mr. Fitzgerald was no longer on the Board of Health and Mrs. Harlow observed him on the beach at 24 Sunset Rd., she called the police. Tr. IV-223:10 - 224:7.

85. According to Mrs. Harlow, she saw Mr. Fitzgerald on the beach at 24 Sunset Rd. with some frequency and each time she saw him she called the police. Tr. IV- 224:22 - 24.

86. According to Courtland III, "no trespassing" signs were posted at 24 Sunset Rd. at various locations and at various times starting in the 1980s. Tr. V-89:2 - 92:7.

87. In 2008, the Harlows sent "no trespassing" notices to Mr. Fitzgerald and to Mrs. Fitzgerald. Tr. IV-85:9 - 85:22.

88. The Harlows posted "no trespassing" signs at various points on 24 Sunset Rd including the beach, first anchored in cinderblocks and then later installed in a more permanent fashion on 4x4 wooden posts, in addition to one or more signs posted on the sea wall. Tr. IV-86:23 - 87:17; IV-93:20 - 94:1; Ex. 52.

89. Starting in about 2009, the Harlows placed beach chairs (by 2015, chaise lounges were used instead), one immediately next to the other, along the length of the beach, which had the effect of blocking the beach. Tr. IV-94:10 - 95:24; Ex. 53, 58.

90. In 2011, the Harlows placed a video surveillance system with eight cameras, including one or more cameras pointed east toward Kingston Bay that captured the top of the sea wall and some of the beach. Tr. IV-135:18 - 139:16; IV-147:4 - 6.

91. Also in 2011, Mrs. Harlow filed an application for the issuance of a criminal complaint against Mr. Fitzgerald, which resulted in a hearing before a clerk-magistrate of the Plymouth District Court. Tr. IV-226:3 - 12; Ex. 45.

92. Both parties were represented by legal counsel at that hearing. Tr. IV-227:5 - 227:23; Ex. 45.

93. It was reported to the clerk-magistrate on the record that the parties had reached an agreement, under the terms of which Mr. Fitzgerald agreed that he would not go on the property at 24 Sunset Rd. and Mrs. Harlow agreed to withdraw her application. Ex. 45.

94. When asked by Mrs. Harlow's attorney to confirm that Mr. Fitzgerald had no interest in the property at 24 Sunset Rd. and no easement over the property, Mr. Fitzgerald's lawyer reported that Mr. Fitzgerald did not know whether or not he had an easement over that property. Ex. 45.

95. There is conflicting evidence as to whether Mrs. Fitzgerald attended this hearing, but she is not listed in the caption and no statements are attributed to her in the transcript. Tr. I-164:1 - 4; III-136:1 - 5; IV-227:9 - 227:16; Ex. 45.

96. In 2012 or 2013, the Harlows gave the police footage from the surveillance system showing Mr. Fitzgerald walking down Sunset Road to the grassy area at its end, then down the public steps, then northerly along the beach at 24 Sunset Rd. Tr. IV-141:8 - 20; V-235:12.

97. Mrs. Harlow described taking action in 2013 after this incident, either in the form of a harassment prevention order or a trespass claim, and testified that there were no further issues with Mr. Fitzgerald on the beach at 24 Sunset Rd. thereafter. Tr. IV- 223:15 - 224:7.

DISCUSSION

The Rights Granted By The 1951 McGee Deed

In denying summary judgment, this court (Piper, J.) concluded that it could not, on the record before it, determine the "true meaning, scope, and intent of the parties to the seminal 1951 deed (and the plan it incorporates)," including whether the easement was intended to encumber only the Triangle Beach located within the layout of Sunset Road or to encumber all of the grantor's remaining land, including the beach on what is now 24 Sunset Rd. With the record established at trial, that determination can now be made.

The law governing the construction of express grants of easements has been repeatedly stated: the goal is to ascertain the presumed intent of the grantor by reference, first and foremost, to the language of the grant and then, if necessary, to then existing circumstances. See Pearson v. Bayview Associates, Inc., No. 17-P-428, 92 Mass. App. Ct. 1129 , 2018 Mass. App. Unpub. LEXIS 185 at *2 (Feb. 23, 2018) quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) ("The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances."); Adams v. Planning Bd., 64 Mass. App. Ct. 383 , 389 (2005) quoting from Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990) (to determine the existence and attributes of a right of way, look "to the language of the parties regarding the creation of the easement or right of way, determined from 'the language of the instruments when read in light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.'"). "When the language of the applicable instruments is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.'" Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) quoting from Cook v. Babcock, 61 Mass. 526 (1851).

The burden of proving the existence, nature and extent of an express easement is on the party asserting the easement, here the Fitzgeralds. Hamouda, supra at 24 n.1. However, "a deed is to be construed most strongly against the grantor." Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951). As applied to this case, the 1951 McGee Deed will be construed most strongly against the Harlows' predecessor in title.

The 1951 McGee Deed of Lot C, what is now the Fitzgeralds' 12 Sunset Rd., conveyed that property by a metes and bounds description and by reference to the 1951 Plan: "[t]he above- mentioned Lot is shown as Lot C on [the 1951 Plan] to be recorded herewith." The 1951 McGee Deed included the express "right in common with others entitled thereto over said Sunset Road to Kingston Bay and to use the beach at said Kingston Bay." Lot C as shown on the 1951 Plan consists of 6,240 square feet. At the time of the grant, the grantors, David Blair McClosky and his wife, still owned the property shown as Lots A and B on the 1951 Plan, and Lot A as shown on the 1951 Plan abutted Kingston Bay for 200 feet. The width of the area between high water and the upland as shown on the 1951 Plan varies between approximately 10 feet and 20 feet, with a total area of approximately 3,000 square feet. At the time of this grant, the grantors also still owned the fee in Sunset Road as shown on the 1951 Plan, including the Triangle Beach. As shown on the 1951 Plan, the Triangle Beach consists of approximately 350 square feet. [Note 1] On the same date that David Blair McClosky and his wife conveyed Lot C by the 1951 McGee Deed, they also conveyed Lot D as shown on the 1951 Plan to William M. and Laura Post. As shown on the 1951 Plan, Lot D consists of 37,500 square feet of land abutting Howlands Lane to the west, Sunset Road to the south, Lot B on the 1951 Plan to the east and Lot A to the north. The Post Deed included a restriction on the number of dwellings that could be constructed on Lot D-five-and precluded any business or commercial venture except "summer rentals." In addition, the Post Deed also included a grant of "a right in common with others entitled thereto over said Sunset Road to Kingston Bay and to use the beach at said Kingston Bay." [Note 2]

The 1951 McGee Deed can be read on its own as granting a right over all of the beach owned by David Blair McClosky and his wife at the time of the grant, including the beach within the boundaries of Lot A, a portion of which is now 24 Sunset Rd., and within the layout of Sunset Road, the Triangle Beach. This reading flows from the proposition that the language of a deed, "being the language of the grantor, is to be construed most strongly against him." Pearson, 92 Mass. App. Ct. 1129 at *12, quoting Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823 , 827 (1984). "This interpretive canon is useful when questions arise 'from the ambiguity, brevity, or uncertainty of the descriptive words used.'" Id. If the grantors intended to limit the easement to the Triangle Beach, they should have said so.

Any doubt about this interpretation of the 1951 McGee Deed is resolved by consideration of the attendant circumstances, particularly the contemporaneous Post Deed. Whatever one's views about the adequacy of an easement limited to the 350 square foot Triangle Beach for use by Lot C alone, such a limitation is unworkable when the five dwellings permitted by the Post Deed are added in. Presumably, the grantors intended the extent of the easement to be sufficient for the use of at least six dwellings, which suggests that the grantors intended the easement to extend to all of the beach, both the Triangle Beach and that within the boundaries of Lot A. The fact that the Post Deed contemplated that the dwellings on Lot D could be used as summer rentals, for which access to an adequate beach would be a desirable amenity, further supports that conclusion.

Having determined that the McGee 1951 Deed granted an easement "to use the beach" that extends over 24 Sunset Rd., I further conclude that "beach" is that area extending from the base of the sea wall easterly to the low water mark. [Note 3] In reaching this conclusion, I rely on Hewitt v. Perry, 309 Mass. 100 , 104 (1941):

Primarily a beach is the area between ordinary high water mark and low water mark, over which the tide ebbs and flows. Niles v. Patch¸ 13 Gray 254 , 257. Castor v. Smith, 211 Mass. 473 , 98 N.E. 31. But in the grant of the easement to the plaintiff in her deed we think the words "the beach" comprised also the beach in the secondary sense "customarily given to this phrase by residents at seashore resorts, i.e., a strip of land above the usual high water line, more or less well defined by natural boundary, or in the rear by a sea wall, providing a convenient and safe access to the water for bathing or for sun baths either before or after going into the water." Lund v. Cox, 281 Mass. 484 , 491, 183 N.E. 714. This is consistent with the testimony of Mr. Grady, who described "beach" for a professional engineer's purpose as the area in front of the retaining wall, Tr. II-26:14 - 11, and with that of Mr. Brenner, who described the beach as "when my toes touch the sand." Tr. II-116:22 - 23.

In reliance on Johnson, supra, I also conclude that the easement contained in the 1951 McGee Deed - "to use the beach at said Kingston Bay" - being unlimited in scope, entitles the Fitzgeralds to use the beach as described in their testimony at trial, for sitting, swimming, sunbathing, launching rafts, walking the shoreline and general beach recreation. In Johnson, this court (Piper, J.) interpreted a deed stating that "[t]he beach on said lot and a right of way at least 10 feet in width to same shall be forever kept open for use of owners of land in said Colonial Park and their families and guests." 24 LCR at 598. Justice Piper concluded that "[t]he beach typically has been used, based on the evidence presented, over many generations, for sitting, bathing, sunbathing, launching boats, walking the shoreline, and general beach recreation. These uses are entirely consistent with the language of the easement." Id. at 607. The same result obtains here.

The Rights Claimed By Prescription

The Fitzgeralds claim prescriptive rights over the beach beyond the Triangle Beach, on property owned by the Savickeys. For the reasons set forth below, the Fitzgeralds have failed to establish prescriptive rights over the Savickey Beach. Those reasons are equally applicable to the Fitzgeralds' claim of prescriptive rights over the Harlow Beach, now moot as a result of my conclusions regarding the extent of the Fitzgeralds' express rights.

The creation of an easement by prescription is governed in part by G.L. c. 187, §2, which provides that "[n]o person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years." The common law requires "clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous for a period of no less than twenty years." Smaland Beach Association v. Genova, 94 Mass. App. Ct. 106 , 114 (2018), quoting Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007); accord Ryan v. Stavros, 348 Mass. 251 , 263 (1964) ("There was no open, notorious, continuous and adverse use for twenty years."); Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003) ("As with adverse possession, the use must be open, notorious, continuous and adverse.") (citations omitted). Unlike claims of adverse possession, there is no requirement that the use be exclusive. See Labounty v. Vickers, 352 Mass. 337 , 349 (1967) ("It is not necessary, on the other hand, for one claiming an easement by prescription to show that his use has been 'exclusive' in that sense."); Boothroyd, 68 Mass. App. Ct. at 44 n.9 ("A claim of adverse possession requires proof of the additional element of exclusive use, which is not required in a claim of prescriptive easement."). "Whether the elements of the claim have been satisfied is, in a given case, essentially a factual question for the trial court." Boothroyd, 68 Mass. App. Ct. at 41 n.3 (citations omitted). Accord Martha's Vineyard Land Bank v. Taylor, No. 17-P-1277, 93 Mass. App. Ct. 1116 , 2018 Mass. App. Unpub. LEXIS 518 (June 22, 2018).

"The burden of proving every element of an easement by prescription rests entirely with the claimant." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009), quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). Accord Boothroyd, 68 Mass. App. Ct. at 44 ("John, as the claimant, bears the burden of proof on each and every element mentioned above."); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008) ("each plaintiff has the individual burden of establishing a prescriptive right of use of the beachfront of lots 10 and 11."). "[L]ongtime, continuous use, spanning more than twenty years, trigger[s] the presumption that the use was nonpermissive." Smaland, 94 Mass. App. Ct. at 115, citing Houghton, 71 Mass. App. Ct. at 836, which in turn quotes Ivons-Nispel, Inc., 347 Mass. at 763. Accord Rotman, 74 Mass. App. Ct. at 589, quoting Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528 , 530-531 (1987) ("The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained."). "Once the presumption arises, the landowner has the burden of rebutting it by showing that the use was permissive." Daley v. Swampscott, 11 Mass. App. Ct. 822 , 827 (1981).

"To be 'open,' the use must be without attempted concealment." Boothroyd, 68 Mass. App. Ct. at 44. "For a use to be notorious, it must be sufficiently pronounced as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Id. "The principle underlying the open and notorious requirements is simply to provide the true owner of the servient estate with constructive notice of adverse use." Halfenger v. Cofield, No. 16-P-617, 91 Mass. App. Ct. 1116 , 2017 Mass. App. Unpub. LEXIS 379 at *4-5 (April 12, 2017). Accord Lawrence v. Town of Concord, 439 Mass. 416 , 420 (2003) quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955) ("To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.").

"The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Martha's Vineyard Land Bank, supra at *5, quoting Tinker v. Bessel, 213 Mass. 74 , 78 (1912). In that regard, the Houghton court's reliance on Kilburn v. Adams, 48 Mass. 33 (1843), a case involving open and unenclosed property, is instructive: "because of the difficulty in overseeing and monitoring the use of open and unenclosed land, claimants of adverse rights in property must show 'some decisive act, indicating a separate and exclusive use, under a claim of right . . . open and ostensible, and distinguishable from that of others.'" 71 Mass. App. Ct. at 841, citing Kilburn.

To be "continuous" does not require use throughout the year. Mahoney v. Heebner, 343 Mass. 770 , 770 (1961) ("Seasonal absence of the plaintiff and his predecessors from their summer residence did not require a finding that the adverse use was not continuous."); Lawrence v. Houghton, 296 Mass. 407 , 409 (1937) ("The fact that the land and the road were not used in the winter did not destroy the continuity of the use of the road for the purposes of prescription"); Houghton, 71 Mass. App. Ct. at 838 n.11 ("[m]ere seasonal use does not defeat a claim for prescriptive easement rights") (citations omitted). In addition, a "temporary intrusion or occasional trespass by a stranger does not interrupt the running of the statute on behalf of an adverse occupant." Stagman, 19 Mass. App. Ct. at 593. However, use that is "intermittent and disjointed in time," Boothroyd, 68 Mass. App. Ct. at 45, or "sporadic," Houghton, 71 Mass. App. Ct. at 841, or "few, intermittent and equivocal," Ryan, 348 Mass. at 262 (in context of adverse possession claim), quoting Parker v. Parker, 83 Mass. 245 , 247 (1861), does not suffice.

For a use to be adverse, the owner of the dominant estate must act in disregard of the rights of the owner of the servient estate. As stated by the Supreme Judicial Court in Ryan:

There was no recognition by the plaintiffs of authority in the defendant to prevent or permit continuance of the use. It is the nonrecognition of such authority at the time a use is made which determines whether it is adverse; and permissive use is inconsistent with adverse use. Restatement: Property, §458. Am. Law of Property, §§8.53-8.54.

348 Mass. at 263. The acts on which the claimant relies must be "clear and unequivocal." Houghton, 71 Mass. App. Ct. at 842, quoting L. Jones, A Treatise on the Law of Easements, Baker, Voorhis & Co., New York 1898, §285, at 235 ("To prove the use to be adverse, it is not sufficient to show an intention alone to claim it as of right, but that intention must be manifest by acts of clear and unequivocal character that notice to the owner of the claim might be reasonably inferred."). And "[p]ermission by the owner - even implied permission - negates the claimant's 'adversity,' but the owner's acquiescence to a claimant's clearly adverse acts does not." Halfenger, supra, quoting Houghton, 71 Mass. App. Ct. at 836.

The Fitzgeralds have failed to carry their burden of proof with respect to their prescriptive easement claim over the Savickey Beach. Because this action was commenced in 2016, and the Fitzgeralds did not take title to 12 Sunset Rd. until February 2000, they cannot establish twenty years of uninterrupted use without the benefit of tacking. Ryan, 348 Mass. at 264, quoting Am. Law of Property, §8.59 ("A prescriptive period resulting in the creation of a prescriptive right can be made up of several periods of successive adverse use by different persons provided there is privity between the persons making the successive uses."). The evidence of the Fitzgeralds' predecessor in title, Mr. Gallagher's, use during the 1990s was very limited. By that time, Mr. Gallahger was acknowledged to be in poor health and, according to Mrs. Harlow, did not use the beach much. Mr. Fitzgerald, who himself had suffered a stroke in 1992, moved to Florida in 1994 and used the beach only on occasional summer visits between 1994 and 1999. As evidence of Mr. Gallagher's use during this period is inadequate to establish a prescriptive right over the Savickey Beach, the burden was on the Fitzgeralds to establish twenty years of uninterrupted use prior to 1994.

The only evidence of use particular to the Savickey Beach was from Mrs. Fitzgerald, who described using the Savickey Beach and the Harlow Beach during the period between 1982 and 1994, and who described her daughter making sand angels and sand castles by the wall of the Wharf after the Fitzgeralds purchased 12 Sunset Rd. and started living there in 2000. Mr. Fitzgerald did not offer any testimony regarding use of the Savickey Beach in particular. Instead, Mr. Fitzgerald testified on more than one occasion that he used all of the beach without regard for whether he was on town-owned land, Savickey land or Harlow land.

Mr. Fitzgerald testified to visiting Mr. Gallagher and his then wife after Mr. Gallagher moved to 12 Sunset Rd. in 1969. According to Mr. Fitzgerald, he was then living nearby during the summers, and he visited Mr. Gallagher on the weekends. They would go to the beach on every good weekend, sit "all over the beach," and go swimming. In 1979, Mr. Fitzgerald moved to Kingston full time. From that year until he moved to Florida, Mr. Fitzgerald testified they continued to use all portions of the beach, that they took chairs to the beach for sitting and went swimming. Mr. and Mrs. Fitzgerald were married on the beach in 1982. Mrs. Fitzgerald testified to using the beach during the summer of 1981, when she was unemployed. She also testified to visiting Mr. Gallagher on the weekends and using the beach, frequently at night because Mr. Gallagher was a "night owl," during the period from 1981 to 1994.

It is also noteworthy that, according to Mr. Fitzgerald, many other people used the beach for recreational purposes during the period from 1969 to 1994. In that circumstance, Houghton and Kilburn require that the Fitzgeralds prove "some decisive act, indicating a separate and exclusive use, under a claim of right . . . open and ostensible, and distinguishable from that of others." Houghton, 71 Mass. App. Ct. at 841, citing Kilburn. That proof is missing here.

The facts of this case are reminiscent of those in Houghton, supra, right down to the wedding and fireworks on the beach. As in Houghton, the Harlow Beach and the Savickey Beach abut public property in the form of the Triangle Beach without any delineation between them, their properties cannot be enclosed because of the tide, neither the Savickeys nor the Harlows can prohibit the Fitzgeralds or anyone else from exercising their right to fish, fowl and navigate in the area between the high and low water marks, and, by Mr. Fitzgerald's admission, a number of other people used the beach as well. In addition, Mr. Gallagher's use frequently occurred at night, sometimes as late as midnight according to Mrs. Fitzpatrick. As in Houghton, on these facts, the acts described by Mr. and Mrs. Fitzgerald were insufficiently adverse to put the Savickeys (or the Harlows) on notice of a claim of right.

I also do not credit Mr. Fitzgerald's testimony regarding his and Mr. Gallagher's use of the beach during the period from 1969 to 1994. As Mrs. Fitzgerald forthrightly acknowledged during her testimony, Mr. Fitzgerald's memory has been affected somewhat by the stroke that he suffered and he was "never good with dates." Appreciating that Mr. Fitzgerald was testifying to events that occurred twenty-five to fifty years ago, his testimony regarding his and Mr. Gallagher's use of the beach was lacking in detail and, for the period from 1969 to 1980, was not supported by the testimony of any other witness or any photographic or other documentary evidence. It is also clear that Mr. Fitzgerald is not a disinterested bystander and has reason to color his testimony. [Note 4] So, while I credit Mr. Fitzgerald's testimony that he and Mr. Gallagher used the beach during this period, I conclude that the use was sporadic and intermittent.

Extinguishment Of The Fitzgeralds' Rights Under The 1951 McGee Deed

The Harlows contend that whatever rights the Fitzgeralds have over the Harlow Beach, which I have found to exist by virtue of an express grant in the 1951 McGee Deed, were extinguished either by the Order Of Taking, or by virtue of an agreement reached between Mrs. Harlow and Mr. Fitzgerald in 2011 during a proceeding in the Plymouth District Court. [Note 5]

The Harlows' position regarding the Order Of Taking is not tenable. The Order Of Taking states that the Board of Selectmen of the Town of Kingston "do hereby take, for the purpose of a town way, the land and the rights and easements therein which are included within the limits and boundaries of the layout dated the thirty-first day of January, 1963 and filed in said office of the Town Clerk." Ex. 42 (emphasis added). The 1951 McGee Deed granted not only a right over Sunset Road to Kingston Bay, which was within the boundaries of the layout and thus the subject of the Order Of Taking, but also the right "to use the beach at said Kingston Bay," an area that (leaving aside the Triangle Beach) was not within the layout of Sunset Road and so not included within the express language of the Order Of Taking. The fact that the Order Of Taking made no award of damages ("We have determined that no person has sustained damages as a result of this taking, and we make no award of damages") further confirms that the beach easement contained in the 1951 McGee Deed, a right with some value, was not the subject of the Order Of Taking.

The Harlows fare no better with their argument that the easement was extinguished as a result of the agreement reached between Mrs. Harlow and Mr. Fitzgerald at Plymouth District Court in 2011. The Harlows bear the burden of proof on the issue, a burden that they have not carried. Proulx v. D'Urso, 60 Mass. App. Ct. 701 , 704 n.2 (2004) ("the burden on the owner of a servient estate to establish an intent to abandon an easement by the owner of the dominant estate is heavy").

"[A]n express easement can be extinguished only by grant, release, abandonment, estoppel or prescription." Emery v. Crowley, 371 Mass. 489 , 495 (1976). The Supreme Judicial Court in Cater v. Bednarek, 462 Mass. 523 , 528 n.15 (2012), cited approvingly to §7.4 of the Restatement, entitled "Modification or Extinguishment by Abandonment." That section states: "A servitude benefit is extinguished by abandonment when the beneficiary relinquishes the right created by a servitude." Restatement of Property (Servitudes) Third, §7.4 (2000). As stated by the Cater court, "[a]bandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." 462 Mass. at 528 n.15. The necessary showing has also been described as proof of "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." First National Bank v. Konner, 373 Mass. 463 , 466-467 (1977), quoting Dubinsky v. Cama, 261 Mass. 47 , 57 (1927).

The issue is one of intent. Desotell v. Szczgiel, 338 Mass. 153 , 158 (1958) ("[W]hether there is an abandonment is a question of intention."); Delconte v. Salloum, 336 Mass. 184 , 188 (1957), quoting Les v. Alibozek, 269 Mass. 153 , 158-159 (1929) ("Whether there is an abandonment is ordinarily a question of intention."). And that intent is to be "ascertained from the surrounding circumstances and the conduct of the parties." 107 Manor Ave. LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158 (2009). See Sindler v. William M. Bailey Co., 348 Mass. 589 , 592 (1965) (abandonment "can be shown by acts indicating an intention never again to make use of the easement in question"). "Any deliberate conduct on the part of the dominant owner inconsistent with the continued existence of the easement may operate as abandonment." Proulx v. D'Urso, 60 Mass. App. Ct. at 704 n.2.

The transcript of the Plymouth District Court proceedings is in the record. The transcript is of a show cause hearing presided over by clerk-magistrate Peggy Wiksten in which Mrs. Harlow appears to have sought the issuance of a criminal complaint against Mr. Fitzgerald. Both parties were represented by counsel, and counsel represented to the clerk-magistrate that they had reached an agreement pursuant to the terms of which Mr. Fitzgerald agreed not to go on the property at 24 Sunset Rd. When Mrs. Harlow's attorney requested that Mr. Fitzgerald further agree that he had no easement rights over 24 Sunset Rd., Mr. Fitzgerald declined to do so. Moreover, while Mr. Fitzgerald agreed not to go on the property, he did not agree that others using 12 Sunset Rd., most notably, his family, would also be bound by his agreement.

Further, the Harlows all testified that Mr. Fitzgerald continued to traverse the beach at 24 Sunset Rd. until 2015, resulting in the installation of more "no trespassing signs," at least one complaint to the police, and further action by Mrs. Harlow in or about 2013 (Mrs. Harlow could not recall whether she sought a harassment prevention order or brought a further trespass action at that time). Daniel testified to observing Mr. Fitzgerald on the beach in 2015 multiple times.

It also bears noting that Mr. and Mrs. Fitzgerald commenced the instant action in 2016 to vindicate their claimed right to use the Harlow Beach and the Savickey Beach. On this record, Mr. Fitzgerald did not engage in acts at the Plymouth District Court in 2011 "conclusively and unequivocally manifesting . . . a present intent to relinquish the easement."

CONCLUSION

For the foregoing reasons, judgment shall enter on Count I of the Fitzgeralds' complaint declaring (1) that the Fitgeralds, as the owners of the property located at 12 Sunset Road, Kingston, Massachusetts have an express easement over the Harlow Beach, being that portion of 24 Sunset Road easterly of the sea wall thereon to the waters of Kingston Bay, for beach purposes, (2) that the Fitzgeralds have no prescriptive easement rights over the Savickey Beach, and (3) that the Fitzgeralds' express rights over the Harlow Beach have not been extinguished. A permanent injunction will issue on Count IV of the Fitzgeralds' complaint, the terms of which are the subject of a further hearing in this matter on November 1, 2019 at 10:30 a.m. All other claims and counterclaims will be dismissed with prejudice.