JAMES ANTHONY KELSO, as Manager of the Kelso Realty Trust, LLC vs. JEFFREY BAKER, Individually and as Trustee of the Bradford Road Realty Trust, and SUE BAKER, in her Individual Capacity

Rights of inland property owners to traverse private ways for the purpose of access to and use of nearby beaches for recreation and boating are frequent sources of dispute and litigation. The present dispute, involving a right of way and rights at the shorefront end of the way, all over registered land, is generally typical of the breed. The plaintiff, longtime owner of both registered and recorded land abutting Bradford Road, a private way in Duxbury, claims both express and implied easements to use the part of Bradford Road that crosses the defendants' registered land for access to Duxbury Bay, and the right to utilize a part of the defendants' property for bathing and boating; with the claimed right to leave a rowboat or dinghy at the shore and to moor two boats in the tidal flats between high and low water. The defendants, who purchased their property in 2013, dispute the existence and extent of the easement rights claimed by the plaintiff with respect to its various parcels. In particular, the defendants dispute whether their registered land is burdened even by express easements, which they claim are not sufficiently noted in the registration decree or file for their property; whether any implied easements can burden their registered land; and whether, to the extent the plaintiff has an easement for boating, such an easement includes the right to store or moor boats in the easement area.

For the reasons stated below, on the undisputed facts in the record or of which the court has taken judicial notice, the court finds and rules that the plaintiff's property is benefitted by, and the defendants' property is burdened by, easements for access to Duxbury Bay and for the use of a specified portion of the defendants' land for boating and bathing; that under the unusual circumstances of this case, the plaintiffs' easement rights include implied easements for access and boating and bathing; and that the easement for boating includes the right to store a rowboat or dinghy in the easement area and to moor two boats in the tidal flats.

PROCEDURAL HISTORY

The plaintiff, Kelso Realty Trust, LLC [Note 1] ("Kelso"), filed a complaint in the Land Court on August 11, 2017. In its complaint, Kelso seeks the following relief: that the court enter judgment declaring that the plaintiff has an easement over a private way in Duxbury named Bradford Road; that the court enter a judgment that plaintiff has an easement 100 feet in width [Note 2] to the north of the northerly side of Bradford Road for the purposes of boating and bathing on the beach at Duxbury Bay; that the court enter a judgment that the easements are appurtenant to the plaintiff's property at 0 Brewer Lane, 0 Standish Street, 307 Marshall Street, 311 Marshall Street, and 10 Marsh Elder Lane, in Duxbury; and that the court permanently enjoin the defendants and their heirs, transferees, or assigns from interfering with the easements. [Note 3]

The defendants, Jeffrey Baker, individually and as Trustee of the Bradford Road Realty Trust, and Sue Baker, filed their answer on September 18, 2017, asserting three affirmative defenses and a single counterclaim seeking a declaratory judgment that the plaintiff has failed to demonstrate any easement rights over the defendant's property, express or implied. [Note 4]

The parties filed cross-motions for summary judgment on May 30, 2019. [Note 5] Included with the summary judgment materials filed by the parties was a stipulation with respect to certain of the plaintiff's claimed easement rights encumbering the defendants' property. [Note 6] The court held a summary judgment hearing on September 18, 2019, and took the matter under advisement on that date.

FACTS

The following material facts are found in the record or have been judicially noticed for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions for summary judgment:

1. Defendants Jeffrey Baker and Sue Baker (the "Bakers") reside at 30 Bradford Road, Duxbury, Massachusetts, 02332. [Note 7] Jeffrey Baker ("Mr. Baker") is also the trustee of the Bradford Road Realty Trust, a Massachusetts real estate trust under Declaration of Trust filed with the Plymouth County Registry District of the Land Court, ("Registry District") Document # 708566. [Note 8]

2. Mr. Baker, as Trustee of the Bradford Road Realty Trust, owns 30 Bradford Road in Duxbury, by quitclaim deed registered at the Registry District on May 31, 2013 at Book 595, Page 51, Transfer Certificate of Title No. 119051, and also recorded with the Plymouth County Registry of Deeds in Book 43140, Page 322 (the "Baker Deed"), being described as Parcel 1 in this deed and as Lot 10 on Land Court Plan No. 22298E ("Baker Lot 10"). [Note 9] Baker Lot 10 is registered land. [Note 10]

3. The Baker Deed for Baker Lot 10 includes the following:

So much of said lot as is included within the limits of the way thirty (30) feet wide, shown on said plan, is subject to any and all rights in and over the same of all persons lawfully entitled thereto, by grant, implication or otherwise, having a right of access to and from the shore or beach, and there is appurtenant to said lot the right to use the whole of said way thirty (30) feet wide, shown on said plan, in common with all other persons lawfully entitled thereto.

So much of the above described land between the top of the bank, as existing from time to time, and extreme low water, is subject to any and all rights, easements, and restrictions by grant, reservation, or otherwise, in and over the same existing at date of original decree. [Note 11]

4. Baker Lot 10 was part of a larger parcel, referred to as "Lot 3," from which it was subdivided in 1972. [Note 12] The Decree of Registration for Lot 3, from which Baker Lot 10 was subdivided, No. 22298, dated September 29, 1955 ("Baker Decree"), includes the same language as quoted above in the deed for Baker Lot 10. It provides that the property is subject to "any and all rights in and over the same of all persons lawfully entitled thereto, by grant, implication or otherwise, having a right of access to and from the shore or beach" and that the registered land between the top of the bank and extreme low water is "subject to any and all rights, easements and restrictions by grant, reservation or otherwise, in and over the same existing at date of original decree." [Note 13]

5. The Land Court registration file for the land including Baker Lot 10, No. 22298, includes a plan entitled "Plan Showing Location of Rights of Way Duxbury Mass.," dated June 1, 1927 and prepared by Henry F. Bright & Son Engineers (the "1927 Plan"). [Note 14] It portrays the ownership of land on both the eastern and western sides of Columbus Avenue (now "Marshall Street" [Note 15]), as well as land to the north and south of a right of way (now named "Bradford Road"). [Note 16] Standish Shore, Inc. ("Standish"), is shown as the owner of a large tract of land abutting Bradford Road to the north, and land to the west of present Marshall Street including portions of the present Kelso property. [Note 17] Standish is also shown as the owner of land to the south of Bradford Road including the present Baker property and portions of the present Kelso property. [Note 18] Bradford Road is depicted beginning at a point west of Marshall Street, crossing Marshall Street, and continuing eastward to the shore of Duxbury Bay. [Note 19] At the easterly terminus of the way is an area extending 50 feet north from the center line of the way and 50 feet south from the centerline of the way, described on the plan as an area of "bathing and boating rights." [Note 20]

6. The Land Court registration file for the land including Baker Lot 10, No. 22298, also includes the decree plan, Land Court Plan No. 22298A, which depicts a "Way" (Bradford Road) extending from the eastern sideline of Marshall Street easterly to and beyond the top of the bank at the shore abutting Baker Lot 10 (then arrayed as lots owned by Helen Whittington and Edith and Sybil Ward). [Note 21] The plan includes a notation showing an area below the high water line extending 35 feet northerly from the northern sideline of Bradford Road and 35 feet southerly from the southerly side of Bradford Road. [Note 22] Including the width of Bradford Road at its eastern terminus, this combines to equal an easement width of 100 feet. [Note 23]

The Kelso Property

7. James Anthony Kelso is the sole manager of plaintiff Kelso Realty Trust, LLC, ("Kelso") a Massachusetts limited liability company having its principal place of business at 311 Marshall Street, Duxbury, Massachusetts, 02332. [Note 24]

8. Kelso owns eight parcels of land near the intersection of Marshall Street and Bradford Road in Duxbury, by fiduciary deed registered at the Registry District on November 10, 2008 at Book 563, Page 76, Transfer Certificate of Title No. 112676, and also recorded at the Registry on November 10, 2008, at Book 36519, Pages 164–176 (the "Kelso Trust Deed"). [Note 25]

Parcel 2

9. The plaintiff's property includes 10 Marsh Elder Lane in Duxbury, which is a portion of the large parcel referred to as Parcel 2 in the Kelso Trust Deed. [Note 26] Parcel 2 is recorded land. [Note 27]

10. The Kelso Trust Deed notes that Parcel 2 is "conveyed subject to and together with all rights, conditions, easements, restrictions and reservations of record insofar as the same are in effect and applicable." [Note 28]

11. Prior to the Kelso Trust Deed conveyance, Howard Brewer - an officer of former parcel 2 owner Standish - conveyed Parcel 2 to James and Dorothy Kelso (the "Kelsos") as individuals, by quitclaim deed recorded at the Registry on November 29, 1965, at Book 3262, Page 771. [Note 29] This deed included "[a] right of way to and from the granted premises over said Bradford Street [sic]" and then "Easterly to and Westerly from the shore of Duxbury Bay at low water mark over said Bradford Street [sic] or Way No. 2 . . . together with the right in common with others to use as appurtenant to the granted premises for the purpose of bathing and boating a section of the beach extending 100 feet in width measured northerly from the Northerly side line of said private way (shown on said plan dated October 31, 1914) extended Easterly to low water." [Note 30] The parties dispute whether Parcel 2 was granted appurtenant easement rights that burden Baker Lot 10. The parties also dispute whether these rights are adequately described on the Certificate of Title for Baker Lot 10 to encumber that parcel.

12. The deed from Howard Brewer to the Kelsos referenced a plan entitled "Plan of Land at the Standish Shore, Duxbury, Mass. showing proposed private ways from [Marshall Street] to the Shore," dated October 31, 1914 and filed with the Registry on April 15, 1915 at Plan Book No. 2, Page. 565 (the "1914 Plan"). This plan shows Bradford Road as the southerly of two rights of way extending from Marshall Street to the shore of Duxbury Bay. [Note 31]

Parcel 3

13. Kelso also owns 0 Standish Street in Duxbury. [Note 32] This property is described as Parcel 3 in the Kelso Trust Deed. [Note 33] Parcel 3 is registered land. [Note 34]

14. The Kelso Trust Deed provides that Parcel 3 has appurtenant to it "rights of way to Duxbury Beach over . . . [Marshall Street], Way No. 1 and Way No. 2, as shown on Land Court Plan 12437-G." [Note 35] "Way 2" refers to the way now known as Bradford Road, which intersects Marshall Street. [Note 36] The deed also states that Parcel 3 is "conveyed subject to and together with all rights, conditions, easements and reservations of record insofar as the same are in effect and applicable." [Note 37]

15. The parties agree and the court so finds that Parcel 3 is benefited by nonexclusive "rights of way to Duxbury Beach over . . . [Marshall Street], Way No. 1 and Way No. 2 (Bradford Road), as shown on plan 12473-G" [Note 38] and that Baker Lot 10 is encumbered by this easement. [Note 39] The parties do not stipulate whether Parcel 3 is benefited by rights to use any part of the shore fronting Baker Lot 10 for bathing and boating.

Parcel 4

16. Kelso also owns 307 Marshall Street in Duxbury. [Note 40] This parcel is described as Parcel 4 in the Kelso Trust Deed. [Note 41] Parcel 4 is recorded land. [Note 42]

17. The Kelso Trust Deed provides that Parcel 4 is conveyed together with a right of way "from [Marshall Street] easterly to the shore of Duxbury Bay and thence to low water mark" as well as "the right in common with others to use as appurtenant to the granted premises for the purpose of bathing and boating a section of the beach extending 100 feet in width measured northerly from the northerly side of said private way . . . extended easterly to low water." [Note 43]

18. The parties have agreed that Parcel 4 is benefitted by the nonexclusive right of way to the shore of Duxbury Bay over Bradford Road, together with a right of bathing and boating on a section of the beach and shore of Duxbury Bay extending 100 feet in width from the northerly side of Bradford Road, as shown the 1914 Plan. [Note 44] The parties dispute whether these rights are adequately described on the Certificate of Title for Baker Lot 10 so as to encumber that parcel. [Note 45] In accordance with the stipulation of the parties, the court finds that Parcel 4 is benefitted as agreed by the parties, except that the location of the boating and bathing easement, as agreed to by the parties, is inconsistent with the certificate of title for the Baker property. This will be addressed below.

Parcel 7

19. Kelso owns 0 Brewer Lane in Duxbury. [Note 46] This parcel is described as Parcel 7 in the Kelso Trust Deed. [Note 47] Parcel 7 is registered land. [Note 48]

20. The Kelso Trust Deed provides that Parcel 7 has appurtenant "rights of way to Duxbury Beach over . . . [Marshall Street], Way No.1 and Way No. 2 as shown on Plan No. 12473-G[.]" [Note 49] The parcel is also conveyed "subject to and together with all rights, conditions, easements, restrictions and reservations of record insofar as the same are in effect and applicable." [Note 50]

21. The parties have agreed and the court so finds that Parcel 7 is benefitted by nonexclusive "rights of way to Duxbury Beach over . . . [Marshall Street], Way No. 1 and Way No. 2 (Bradford Road), as shown on plan 12473-G" [Note 51] and that Baker Lot 10 is encumbered by this easement. [Note 52] The parties do not stipulate whether Parcel 7 is benefited by rights to use any part of the shore fronting Baker Lot 10 for bathing and boating.

Parcel 8

22. Kelso also owns 311 Marshall Street in Duxbury. [Note 53] This parcel is described as Parcel 8 in the Kelso Trust Deed. [Note 54] Parcel 8 is recorded land. [Note 55]

23. The Kelso Trust Deed provides that Parcel 8 has a "right of way to and from the shore of Duxbury Bay over . . . [Bradford Road]" in addition to " a right of bathing and boating on a section of the beach and shore extending one hundred (100) feet in width Northerly from the Northerly side line of [Bradford Road.]" [Note 56] The parcel is also conveyed "subject to and together with all rights, conditions, easements, restrictions and reservations of record insofar as the same are in effect and applicable." [Note 57]

24. The parties have agreed that Parcel 8 is benefitted by the nonexclusive right of way to and from the shore of Duxbury Bay over Bradford Road, together with a right of bathing and boating on a section of the beach and shore of Duxbury Bay extending 100 feet in width from the northerly side of Bradford Road, as shown on the 1914 Plan. [Note 58] The parties dispute whether these rights are adequately described on the Certificate of Title for Baker Lot 10 to encumber that parcel. [Note 59] In accordance with the stipulation of the parties, the court finds that Parcel 8 is benefitted as agreed by the parties, except that the location of the boating and bathing easement, as agreed to by the parties, is inconsistent with the certificate of title for the Baker property. This will be addressed below.

DISCUSSION

"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." Ng Bros. Constr. v. Cranney, supra, 436 Mass. at 648. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

Further, "a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 714 (1991). To succeed, the party moving for summary judgment does not need to submit affirmative evidence to negate one or more elements of the opposing party's claim, but the motion must be supported by some material contemplated by Rule 56(c). Id. Although the supporting material offered does not need to disprove an element of the claim of the party who has the burden of proof at trial, it "must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id.

I. PARCEL 2 IS BENEFITTED BY AN IMPLIED EASEMENT FOR ACCESS TO THE SHORE OVER BRADFORD ROAD AND FOR BATHING AND BOATING.

Kelso argues that Parcel 2 is benefitted by an implied easement over Bradford Road and a part of Baker Lot 10 for bathing and boating purposes. The defendants deny that Parcel 2 has any valid easement rights, by implication or otherwise. "It is well established that certificate of title holders and subsequent purchasers of registered land for value and in good faith take 'free from all encumbrances except those noted on the certificate.'" Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48 , 50-51 (2007), citing G. L. c. 185, §46. It is also axiomatic that ordinarily, no easement by implication may be acquired over registered land. See G. L. c. 185, §53 ("Nor shall a right of way by necessity be implied under a conveyance of registered land"). However, in the present case, the court is confronted with the unusual circumstance that the Baker Decree itself recognizes easements by implication that burden the registered parcel, although it does not specify the properties benefitted by these recognized easements by implication. Therefore, the court must assess whether Parcel 2, which appears on a plan in the registration file for the Baker property as being held by a common grantor, is one of the properties referred to in the registration decree as having the benefit of such an easement.

"An implied easement arises when no easement appears in the record of a conveyance, but 'there is evidence tending to show an intent of the parties'" to create such an easement. Alexander v. Juchno, 21 LCR 621 , 632 (2013) (Foster, J.), quoting Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 104 (1933). The origins of an implied easement "'must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the 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.'" Reagan v. Brissey, 446 Mass. 452 , 458 (2006), quoting Labounty v. Vickers, 352 Mass. 337 , 344 (1967). The actual subjective intent of the grantor to grant an easement is not required; the presumed objective intent of the grantor to grant an easement, based upon the circumstances of the conveyance, is required for the court to find an easement by implication. Flax v. Smith, 20 Mass. App. Ct. 149 , 153 (1985). The party claiming an implied easement has the burden of coming forward with proof of its existence. Reagan v. Brissey, supra, 446 Mass. at 458.

Of singular importance here is the fact that the conveyance at issue was of registered land. The property was registered in 1955 by Howard Brewer, and any easements that existed to burden Baker Lot 10 at that time would continue to burden that property after the registration, provided they were acknowledged in the decree of registration. It may seem an oxymoron to speak of an implied easement being expressly noted on a decree of registration, but that is the state of the registered title for Baker Lot 10, making an implied easement one that is expressly noted, and therefore binding, notwithstanding that the subject parcel is registered land.

The decree itself provides that so much of Baker Lot 10 as is within Bradford Road is "subject to any and all rights in and over the same of all persons lawfully entitled thereto, by grant, implication or otherwise[.]" [Note 60] The decree further states that so much of the land as is between "the top of the bank . . . and extreme low water, is subject to any and all rights, easements and restrictions by grant, reservation or otherwise, in and over the same existing at date of original decree." [Note 61] This was enough to put a grantee on notice that easements by implication may burden the registered parcel. See Jackson v. Knott, 418 Mass. 709 (1994). Additionally, the registration file for Baker Lot 10, No. 22298, is peppered with indications that Lot 3, the larger parcel from which Baker Lot 10 was later subdivided, had been subject to certain easements for many years prior, including correspondence to the Land Court discussing easements and various plans showing Lot 3/Baker Lot 10 to be burdened by easements. [Note 62]

One plan in the file in particular, the 1927 Plan, shows that a single entity - Standish - once owned the land from which Baker Lot 10 was subdivided, including Kelso's Parcel 2, Parcel 3, Parcel 4, at least portions of Parcel 7, and other contiguous parcels near the present Baker Lot 10. Parcel 2 is shown on the 1927 Plan with its only frontage on the right of way now known as Bradford Road, and this road is shown as providing access not only across the present Marshall Street, but also to a 100-foot wide area at the easterly, shore end of the road labelled as "bathing and boating rights" extending to "low water." The Appeals Court, in a decision explicitly noted in the Baker Deed, affirmed a determination that this common land in Duxbury was once part of a large shore development initiated in 1871. Myers v. Salin, 13 Mass. App. Ct. 127 , 137 (1982). As the development land was subdivided, numerous lot owners were given easement rights over Bradford Road to access the beach fronting what is now Baker Lot 10. Id. The 1927 Plan accordingly shows Bradford Road as a right of way extending from the shore of Duxbury Bay across Marshall Street and into the area where Kelso currently owns its parcels.

In addition to the 1927 Plan and the language in the registration decree (both of which are undisputed and in the record), the decree plan - Land Court Plan No. 22298A - is consistent with the 1927 Plan and continues to show the bathing and boating easement area to the shore. Although it is not labelled "bathing and boating rights" as it is on the 1927 Plan, it would be obvious to anyone examining this plan that the purpose of such an area at the shore could be for no other purpose than for some type of recreation easement at the shore.

Furthermore, the registration file and other deeds in the record establish a common scheme of lots with access over Bradford Road and to the shore, evincing "a clear pattern of conveyances which suggests intent by the parties to create an easement for common use" of the shore area. Dernardo v. Bosworth, 23 LCR 517 , 526 (2015) (Foster, J.). The existence in the registration file for the subject property of a plan showing a common scheme of development can make it evident that the common grantor intended to, and did, convey easements over ways and easement areas shown on the common plan for land including the subject property. Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 , 747 (2015).

Documents in the registration file for the Baker property establish that there was a common plan of easements granted to lot holders in the subdivision, including the Kelso properties. The 1927 Plan, for instance, delineates a bathing and boating area at the shore fronting Baker Lot 10. Other deeds in the record, conveying parcels from the common grantor Standish, include a right of bathing and boating at the easterly, shore end of Bradford Road. [Note 63] Together this evidence demonstrates that the common grantor of the Baker and Kelso properties (among other properties in the area) intended that a bathing and boating easement be created burdening Baker Lot 10.

Accordingly, the court finds and rules on the undisputed facts in the record that there is an easement by implication for the benefit of Parcel 2 over Baker Lot 10, for access over Bradford Road to the shore, as well as for bathing and boating in the 100-foot wide area at the easterly end of Bradford Road as shown on Land Court Plan No. 22298A. The court further finds and rules that this easement existed as of the date Lot 3/Baker Lot 10 was registered, and that (see infra) Baker had sufficient notice from the registration file upon taking ownership that such an easement existed, including the unusual language of the decree recognizing the existence on a registered parcel of easement rights by implication.

To the extent that the defendants argue that the easements appurtenant to Parcel 2 were granted by a party without authority to bind Baker Lot 10, this argument also fails. They contend that a common owner cannot grant easement rights to itself as common owner, ignoring the fact that a common owner can, and often does, grant easement rights to lots which it subdivides and sells to new purchasers and reserves rights over lots it deeds out for the benefit of its remaining land. Indeed, that appears to be precisely what occurred. The 1927 Plan demonstrates that Baker Lot 10 was once owned by a common grantor - Standish - who had the ability to subdivide the lots and grant or reserve easements burdening or benefitting those lots. The 1927 plan shows Bradford Road as a right of way, as well as the boating and bathing easement at the shore end of the right of way. The 1927 Plan is objective evidence of the intent of Standish to benefit the lots it was selling with access over the right of way now known as Bradford Road to the shore, and for the use of the shore easement area for bathing and boating. Alerting the owner and future owners of Baker Lot 10 that the many lots shown on the 1927 Plan had the benefit of these easements, by grant or even by implication, was the purpose of the Land Court in making the unusual notation in the decree that easements burdening Lot 3/Baker Lot 10 existed by grant, by implication, or "otherwise."

II. BAKER LOT 10 IS ENCUMBERED BY THE EASEMENTS APPURTENANT TO PARCELS 2, 4, AND 8.

The parties have stipulated that Parcels 4 and 8 are benefitted by access easements over Bradford Road and easements for access to Duxbury Bay for bathing and boating on the shore fronting Baker Lot 10; the parties disagree whether the registration decree for Baker Lot 10 provides sufficient notice to the owners of Baker Lot 10 so as to subject their registered parcel to the burden of these easements. Having determined that Parcel 2 has the benefit of an implied easement, the court turns to the question whether the certificate of title, registration decree and registration file for Baker Lot 10 give sufficient notice to the owners of that property that it is encumbered by these easements in favor of Parcels 2, 4 and 8.

Registered land like Baker Lot 10 is generally taken "free from all encumbrances except those noted on the certificate[.]" G. L. c. 185, §6. If an express easement is noted on the servient estate's certificate of title, as well as on plans showing the easement, that easement right is enforceable by the dominant estate holders. Jackson v. Knott, supra, 418 Mass. at 709–710. But even where an easement is not expressly noted on a certificate of title, two exceptions operate to prove the existence of an easement that burdens the servient estate. "If an easement is not expressly described on a certificate of title, an owner . . . might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest." Id. at 711. If there were facts available to the servient estate owners, within the registration system, which would lead them to discover that their property was encumbered (even if that encumbrance was not listed explicitly on their certificate of title), they will be charged with notice of the encumbrance and bound to comply with it. Id. For example, if the certificate of title referred to a plan, a purchaser of the land would be expected to seek out and review that plan. Id. If a way is shown on the plan, purchasers of lots abutting the way further would be expected to investigate whether others might have an interest in that way. Id. at 713.

Here, the defendants contend that the stipulated easements held by Kelso as owner of Parcels 4 and 8 were not sufficiently noted on the certificate of title to Baker Lot 10 so as to bind the defendants. They further argue that, assuming Kelso has an easement by implication for the benefit of Parcel 2, this easement was also insufficiently noted on the certificate of title to Baker Lot 10 so as to bind the defendants. If there is information in the Baker Lot 10 chain of title or registration file indicating that Baker Lot 10 and the land nearby, including the parcels that now comprise the Kelso property, were once part of a common development for which such easements were reserved, the defendants will be charged with notice of whatever they would have discovered had they investigated title to the nearby parcels - and they are certainly charged with notice of information concerning such easements suggested on their certificate of title for which further evidence exists in the registration file for their property. Here, the certificate of title and the corresponding registration file for Baker Lot 10 put the Bakers on notice that there were nearby parcels with easement rights over their Lot 10. The certificate of title and original registration decree refer to easements by implication and easements by "otherwise." The Bakers are charged with knowledge of the existence of the 1927 Plan, which is part of the registration file for the defendants' property.

Firstly, the Baker Decree for Lot 3, which includes the land now comprising Baker Lot 10, provides that so much of what is now Baker Lot 10 as is within the 30-foot right of way today known as Bradford Road, is subject to "any and all rights in and over the [way] of all persons lawfully entitled thereto, by grant, implication or otherwise, having a right of access to and from the shore or beach[.]" [Note 64] It further states that the area between the top of the bank on the beach and extreme low water "is subject to any and all rights, easements and restrictions by grant, reservation or otherwise, in and over the same existing at date of original decree." [Note 65] The quitclaim deed from the Casos to Jeffrey Baker includes identical language. Land Court Plan No. 22298A, issued with the decree, also shows the right of way over Bradford Road extending to the beach front, and including a wider area at the shore for bathing and boating. [Note 66] The plan delineates an easement area at the shore 100 feet in width, which, although not labelled, could be intended for no other purpose than to implement the beach rights that the parties have stipulated exist with respect to Parcels 4 and 8, and which the court has found exist by implication with respect to Parcel 2. [Note 67] The language of the decree, carried forward in the certificate of title and the attendant plans, would suggest to the Bakers that they should "investigate further other certificates of title, documents, or plans in the registration system" to determine the existence and extent of any easements burdening Baker Lot 10, and that if they had done so, they would have been put on reasonable notice of the existence of the easements. Hickey v. Pathways Ass'n, Inc., supra, 472 Mass. at 756.

Secondly, the very deed from the Casos to Jeffrey Baker put the Bakers on notice that they should investigate possible easement rights further. After describing the easements to which the conveyed land would be subject, the Baker Deed, unusually for a deed, makes explicit reference to a Land Court decision and an appellate court decision pertaining to the land being conveyed: Myers v. Salin. [Note 68] In that case, an earlier owner of Baker Lot 10 argued that the certificate of title for the lot did "not refer sufficiently to the affirmative easements asserted by the [abutters] to use Bradford Way as extended and to exercise beach rights affected by the locus[.]" Myers v. Salin, supra, 13 Mass. App. Ct. at 136. The court explained that Baker Lot 10 and the lots of the abutters, as well as numerous other parcels in the area, had once been owned by a common grantor. Id. at 137. The court described how the large landholding was subdivided, with many of the divided lots having easements over the way in question (Bradford Road) as well as beach and shore rights. Id. In discussing the very registration decree at issue in the present action, the Court stated, "many persons had rights of way to the beach over what is now Bradford Road as extended and may have had beach or shore rights. In the circumstances, it may have been impractical to state with precision in the certificate of title all the persons holding an affirmative easement of passage over the extended Bradford Way and of beach and shore use. General references in the certificate to the existence of those easements may have been all that was thought to be feasible." Id., at 137. By explicitly referencing Myers v. Salin, the deed to the defendants, then, included this very admonition from the Appeals Court about the same servient estate held by the defendants currently. The Myers case, referenced in the Baker Deed, put the Bakers on notice - as did the Baker Decree - that others, including the owner of the plaintiff's parcels, may have easement rights to use Bradford Road to access the shore.

Finally, the registration file for the land from which Baker Lot 10 was later subdivided contains numerous references to easements that were held by surrounding lots, both those that abut Baker Lot 10 and those that are separated from Baker Lot 10 by intervening lots. These include at least some of the Kelso parcels. Correspondence to the Land Court within the registration file for registration case no. 22298 includes the following caution:

This was a seashore development and I do not agree with the [title] examiner to the effect that [other] deeds only carried implied rights in the private ways as a means of access to a public way. In my opinion, as a matter of fact, they also carried implied rights of access to the beach and use thereof . . . [T]he purchasers under the old plan and their successors in title used the entire length of the beach below the bank as a matter of right, and as a matter of right used some path leading thereto. [Note 69]

An examiner's report in the same file states that "Standish Shore, Inc., also after receiving title to our locus [Lot 3, including Baker Lot 10], made many conveyances which give rights of way affecting said way leading easterly from [Marshall Street] to Duxbury Bay." [Note 70] Most importantly, the file also contains the "Plan Showing Location of Rights of Way, Duxbury Mass.," dated June 1, 1927 and prepared by Henry F. Bryant and Sons, Engineers (the 1927 Plan). The inclusion of the 1927 Plan provided ample notice to the Bakers that the land comprising Baker Lot 10 was part of a larger development, with the lots in that development having rights over the 30-foot right of way later named Bradford Road, including that portion of the right of way that crossed what is now Baker Lot 10, and also having rights to access the shore for bathing and boating purposes. The 1927 Plan does indeed show, as previously discussed, that a large portion of the land to the north and east of Lot 10 was once owned by Standish.

The 1927 Plan shows Lot 3, including the present Baker Lot 10, as well as the present Parcels 2, 3 and 4, still in the common ownership of Standish Shores, Inc., and it shows the present Parcel 8 abutting the present Bradford Road. A review of the 1927 Plan would have alerted the Bakers that their property would be burdened by easements appurtenant to these parcels, and should have prompted them to inspect deeds of other properties shown on the 1927 Plan that were formerly owned by Standish. Having such notice, the Bakers are charged with notice of whatever an investigation of the title to surrounding lots would have revealed. Investigation would have revealed that Parcels 4 and 8 have appurtenant express easement rights for use of Bradford Road and a portion of the beach area for bathing and boating. Inspection of the registration file would have also alerted the Bakers that Parcel 2 has an appurtenant implied easement to use Bradford Road, as well as an implied easement to use the shore of Baker Lot 10 for bathing and boating. Because the Bakers are charged with the notice an inspection of the file and related documents would have provided, the first Jackson exception applies and Baker Lot 10 is encumbered by the easements appurtenant to Lots 2, 4, and 8. See Jackson v. Knott, supra, 418 Mass. at 711.

III. PARCELS 3 AND 7, WHICH THE PARTIES HAVE STIPULATED BENEFIT FROM AN EASEMENT OVER BRADFORD ROAD, HAVE BATHING AND BOATING RIGHTS IN THE SHORE AREA FRONTING THE DEFENDANTS' PROPERTY.

The plaintiff asks the court to declare that the plaintiff has a right of way over Bradford Road and bathing and boating rights extending 100 feet in width northerly from the northern boundary of Bradford Road, appurtenant to Parcels 3 and 7 (in addition to the other parcels). The parties have stipulated that Parcels 3 and 7 benefit from an express easement over Bradford Road. However, they have not stipulated that those parcels have bathing and boating rights - nor has the plaintiff clarified on which theory it claims these parcels have easements for bathing and boating. Nonetheless, the court will address bathing and boating rights for these parcels because the plaintiff's requested relief includes a declaration of those easement rights.

Parcels 3 and 7 benefit from bathing and boating rights over the area of 50 feet in width extending southerly from the center line (or 35 feet from the southerly side line) of Bradford Road, and 50 feet northerly from the center line (or 35 feet from the northerly side line) of Bradford Road (and not, as agreed by the parties, 100 feet northerly from the northerly boundary of Bradford Road) for much the same reason that Parcel 2 benefits from the same. The Kelso Trust Deed includes language providing that both parcels are "conveyed subject to and together with all rights, conditions, easements and reservations of record insofar as the same are in effect and applicable." [Note 71] The documents in registration file no. 22298 for Baker Lot 10 demonstrate the conveyancing parties' intent that easement rights to the shore be given to owners of the lots within the Standish development. The Myers case explains that there were likely many lot owners with easements over the shore area fronting Baker Lot 10. Further, Parcels 3 and 7 are part of the same contiguous land that includes Parcel 2. As discussed above, the circumstances and language of the conveyance demonstrate an intent that Parcels 3 and 7 have bathing and boating easements.

Additionally, for the same reasons discussed above, the first Jackson exception applies and the court finds and rules that the Bakers had sufficient notice of the bathing and boating easement benefitting Parcels 3 and 7 to encumber their Baker Lot 10.

IV. THE EASEMENT FOR BATHING AND BOATING INCLUDES THE RIGHT TO LEAVE ONE ROWBOAT OR DINGHY ON THE SHORE AND TO MOOR TWO BOATS IN THE TIDAL FLATS.

At least with respect to Parcels 4 and 8, the parties agree that the Kelso land is benefitted by an easement over Baker Lot 10 not only for a right of way on Bradford Road, but for "boating and bathing" in the area extending for 100 feet north of the easterly end of Bradford Road, and the court has found that bathing and boating rights also benefit Parcels 2, 3 and 7. For parcels that have the benefit of such an easement, the Bakers and Kelso disagree whether the easement for "boating" includes the right to store boats in the easement area or moor boats in the tidal flats between the high and low water lines.

When an easement is granted in a deed, it is subject to the general rules of deed interpretation. "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." Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). An express easement is not strictly limited, but "includes all rights necessary for the full use and enjoyment of that easement." Town of Nantucket v. Lerner, 17 LCR 220 , 223 (2009) (Trombly, J.), citing Sullivan v. Donohoe, 287 Mass. 265 , 267 (1943). Further, a dominant estate holder's use of the easement "may vary from time to time with what is necessary to constitute full enjoyment of the premises." Mahon v. Tully, 245 Mass. 571 , 577 (1923). However, "the servient estate cannot be burdened to a greater extent than was contemplated or intended at the time of the grant[.]" Doody v. Spur, 315 Mass. 129 , 133 (1943). The purpose of an easement is found by evaluating "the intention 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 to determine the existence and attributes of [the] right of way." Jackson v. Barney, 17 MISC 000541 (Land Court, October 28, 2019) (Long, J.), slip op. at p. 6, quoting Martin v. Simmons Properties LLC, 467 Mass. 1 , 14–16 (2014). In order to consider extrinsic evidence that the parties intended something other than what lies in the easement language, there must be some ambiguity in that language. Westchester Associates, Inc. v. Boston Edison Co., 47 Mass. App. Ct. 133 , 135 (1999).

The case law discussing similar disputes over the scope of easements for bathing and boating illustrates the principle that particular physical circumstances, including the physical extent of the area of the easement, will help determine the intention of the parties in granting or reserving the easement. In Town of Nantucket v. Lerner, supra, 17 LCR at 224 , the court considered an easement for bathing and boating encumbering a town-owned parcel on a navigable river on Nantucket. The court noted that the easement had long been used to access a floating dock by a dinghy kept on the beach, but ruled that the construction of a ramp to connect the floating dock to the shore would be beyond the scope of the easement, as it was unnecessary for the reasonable use of the easement for boating. Implicit in the court's ruling was the conclusion that keeping a dinghy on the shore for access to the boats moored off-shore was necessary for the reasonable use of the easement. Id., at 223–224. In Sullivan v. Dart, 17 LCR 543 (2009) (Sands, J.), the court considered whether an easement to use a shore-front parcel for "boating, bathing and other recreational activities," included the right to store a kayak and a dinghy in the ten-foot wide easement area. Concluding that the right to boat, under the circumstances, denoted only a transient right and not a right to store boats on the shore, the court relied in part on its conclusion that storage of boats on shore would be inconsistent with the servient estate owner's rights as it "involves an exclusion of others from a definitely ascertained geographic location for an indefinite, nonincidental period of time, and is therefore fundamentally different in purpose and character from 'boating.'" Id. at 553, quoting Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 364 n. 19 (2001). It is not surprising that the court reached this conclusion in light of the fact that the easement area in question was only ten feet in width, and accordingly any storage of even small boats would certainly interfere with the servient owner's use of the property. Likewise, in Davis, cited by Judge Sands, the Appeals Court determined that a right to boating (although in a zoning, not easement, context) did not include the right to alter an existing launch-way by converting it into a pier to which ramps and slips would be attached for the mooring of up to 33 boats, as the expanded physical size of the proposed alteration would result in "loss of mooring space in an already congested harbor . . . . " Davis v. Zoning Bd. of Chatham, supra, 52 Mass. App. Ct. at 358.

Where, as here, the exact meaning of the terms of an easement has been placed in doubt, "evidence of the practical construction by the parties is admissible to explain and remove the doubt." Oldfield v. Smith, 304 Mass. 590 , 600 (1939). Although it is not dispositive of the grantor's intent, when an easement's language is ambiguous, the parties' use of an easement in the period after it was granted can be indicative of what the parties to the conveyance intended. Pion v Dwight, 11 Mass. App. Ct. 406 , 411-412 (1981). Use of the easement and concomitant acquiescence by the servient estate owner can inform the intentions of the parties to the grant of the easement. Labounty v. Vickers, supra, 352 Mass. at 345. If the easement's precise limits are not defined, the "use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed." Id., quoting Kesseler v. Bowditch, 223 Mass. 265 , 168 (1916). "Where the intent is doubtful, the construction of the parties shown by the subsequent use of the land may be resorted to, if such use tends to explain or characterize the deed, or to show its practical construction by the parties, providing the acts relied upon are not so remote in time or so disconnected with the deed 'as to forbid the inference that they had relation to it as parts of the same transaction or were made in explanation or characterization of it' [citations omitted]." Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 632 (1990), quoting Bacon v. Onset Bay Grove Assn., 241 Mass. 417 , 423 (1922). This principle applies even where the easements at issue are implied. Labounty v. Vickers, supra, 352 Mass. at 345.

Here, the parties agree that the members of the Kelso family have seasonally moored boats in the tidal flats fronting Baker Lot 10 since the Bakers purchased Baker Lot 10 in 2013. [Note 72] The defendants have not offered any facts to dispute the further assertion in the affidavits of the James Anthony Kelso and his mother Dorothy Kelso that the Kelso family has moored one or two boats in the tidal flats at the end of Bradford Road and stored a rowboat or dinghy on the beach every summer season from at least 1956 to 2016. [Note 73] Because there is ambiguity in the terms "bathing and boating" as applied to the easements at issue, the use of the easement over such a long period of time, with the apparent acquiescence of owners prior to the Bakers, from at least the year following the issuance of the Baker Decree, provides evidence of the conveyancing parties' intent and understanding of the easement.

Consideration of the physical nature of the easement area also helps determine the scope of the easement. The Bakers have offered no evidence or even suggestion as to how the use of the easement as made by the Kelsos over a period of more than sixty years interferes with the reasonable use of their property. Unlike the ten-foot wide easement area considered by the court in Sullivan v. Dart, the easement area here is 100 feet in width, and the use made of the easement involves one rowboat or dinghy on the shore, and two small boats moored in the tidal flats between the high and low-water lines, an area, because it generally remains muddy when exposed at low tide, not often used for other than the most transient recreational use.

Further, the defendants' argument that boating rights enjoyed by the plaintiff pursuant to the easement do not include the right to store a small boat on the shore or moor two boats in the tidal flats would render the conveyed boating rights superfluous in light of the Public Trust Doctrine. Under the Public Trust Doctrine, all tidelands between the mean high water and low water marks are subject to a reserved easement "in the public as a matter of law . . . whereby all members of the public retain the right to go upon the flats for purposes of fishing, fowling, and navigation." Sheftel v. Lebel, supra, 44 Mass. App. Ct. at 182, citing Commonwealth v. Alger, 61 Mass. 80 (1851). The granted (and implied) easements for boating encumbering Baker Lot 10 would be without any effect if they conveyed no more than the dominant estates already possessed as a matter of law. There would have been no reason to grant the dominant parcels easements over the tidal flats for the purpose of boating, because they were already benefitted by that right "as a matter of law by virtue of the Public Trust Doctrine." Id. at 183. The court finds this reasoning persuasive. It is illogical to suppose that the grantors of the plaintiff's parcels would purposely grant the plaintiff's predecessors easements for a public right that they had no reason to grant and which, in fact, they were powerless to limit or alter. See Farad v. Conservation Com'n of Barnstable, 432 Mass. 194 , 199 (2000) ("[O]nly the Commonwealth, or an entity to which the Legislature properly has delegated authority, may administer public trust rights."). In Sheftel v. Lebel, the court found that an express easement for foot travel over a way, which ended at the high water mark, did not include a right to install a pier to access boats moored below the low water mark. This is in sharp contrast to the facts in the present case, in which "boating" rights are, at least with respect to some of the parcels, expressly granted, and where the easement extends to the low water mark.

After consideration of the Public Trust Doctrine and the circumstances attendant to the conveyance and use of the easements, the court concludes that the easements over the shore area of Baker Lot 10 include the right to store one boat on the shore and moor two boats in the tidal flats between high and low water.

V. THE EASEMENT IS LOCATED AS SHOWN ON THE 1927 PLAN AND THE LAND COURT DECREE PLAN.

To the extent the parties have stipulated to the existence of easements for the benefit of some of the Kelso parcels, they have agreed that the physical extent of the easement is from the northerly side line of Bradford Road extending 100 feet to the north. This is contrary to the depiction of the easement area at the shore end of Bradford Road as depicted on both the 1927 Plan and Land Court Plan No. 22298A, both of which depict the easement area as extending 50 feet southerly from the center line (or 35 feet from the southerly side line) of Bradford Road, and 50 feet northerly from the center line (or 35 feet from the northerly side line) of Bradford Road (forming a "T" instead of an "L"). [Note 74] To the extent the recorded express easements for Parcels 4 and 8 purport to grant easements over registered land in a location other than as determined by the court in the registration process, such purported deviations cannot be recognized. However, the intent of the parties to the original conveyances can be honored consistently with the rights of the owner of the servient estate by recognizing the boundaries of the easement as determined in the registration process. Therefore, the easements recognized in this decision will be effective in the area extending 50 feet to the north and 50 feet to the south from the center line of Bradford Road, and to the low water line. The court also notes that although Land Court Plan No. 22298A depicts the easement area as extending easterly to the high water line, not the low water line, the easements granted were to the low water line, and the registration decree recognizes this: "All of said boundaries, except the water lines, are determined by the Court to be located as shown upon plan numbered 22298-A . . . . " [Note 75]

CONCLUSION

For the reasons stated above, the plaintiff's motion for summary judgment is ALLOWED, and the defendants' cross-motion for summary judgment is DENIED.

Judgment will enter in accordance with this decision.