Introduction
Plaintiffs Claire M. Wingren, Trustee of CDW Realty Trust, et al. [Note 1] ("the Plaintiffs") own properties shown as all or portions of lots 2, 4-6, 8-12, 17-22, 24-26, 29-30, 35-37 and an area marked "Reserved For Future Drainage Area" on a plan entitled "Subdivision Of Land in Centerville-Barnstable Mass. property of Wequaquet Trust Scale 1 in. = 60 ft. July 1949 Nickerson & Berger Civil Engineers Eastham, Mass." ("the 1949 Plan"). Complaint Ex. 1. Defendant Grace A. McLean ("Grace"), the widow of Stanislaus A. McLean ("Stanislaus"), Complaint ¶ 16 and Ex. 8, owns the property shown as lot 49B on a plan entitled "Plan Of Land In Barnstable (Centerville) Mass. For Stanislaus A. McLean Scale 1" = 40' Jan 18, 1985 Baxter & Nye Inc. Registered Land Surveyors Osterville Mass." ("the 1985 Plan"), Complaint Ex. 6, and is alleged to claim ownership of the property shown as lot 49A on the 1985 Plan. Defendants Norman D. McLean (the son of Grace and Stanislaus) and Nancy K. McLean ("Norman" and "Nancy," and, with Grace, "the McLeans") own the property shown as lot 49C on the 1985 Plan. Complaint Ex. 6.
The Plaintiffs filed their complaint on February 26, 2019, claiming rights over the area shown as "Reserved As Common Beach" on the 1949 Plan and the 1985 Plan, including the right to deploy and maintain a common dock, to use a boat ramp, and to park vehicles and trailers.
Plaintiffs requested a preliminary injunction to enforce those rights, the McLeans having allegedly interfered with them. The McLeans, asserting that the Plaintiffs' claimed rights were based on the permission granted to them by Stanislaus, which permission was subsequently revoked after Stanislaus' death, promulgated counterclaims for a declaration of the parties' rights, overburdening of the easement, nuisance on the common beach, nuisance on the McLeans' property adjacent to the common beach, and trespass. The McLeans also sought injunctive relief, enjoining the Plaintiffs from participating in the installation of the common dock, launching boats, parking vehicles and boat trailers, storing the dock on the common beach, planting invasive species, leaving trash on the common beach, lighting fireworks on the common beach, drinking alcohol and having large parties on the common beach, and trespassing on the McLeans' adjacent property.
In addition to memoranda in support of their respective positions, Plaintiffs submitted the affidavits of Kathleen T. Gleason ("Gleason Aff."), Holly J. Farnham ("H. Farnham Aff."), and Jonathan F. Farnham ("J. Farnham Aff."), and the supplemental affidavit of Jonathan F. Farnham ("Farnham Supp. Aff."). The McLeans submitted the affidavits of Norman D. McLean ("Norman Aff.") and Nancy K. McLean ("Nancy Aff."). A hearing was held on the cross-motions on May 15, 2019, at which counsel for both parties appeared. For the reasons stated in open court and as set forth below, the parties' motions for preliminary injunction are ALLOWED IN PART and DENIED IN PART.
Discussion
The following facts appear from the complaint, [Note 2] the exhibits attached thereto and the above-referenced affidavits.
History of Relevant Conveyances
1. On April 14, 1949, one Gersham D. Hall ("Hall") deeded the land that was later shown on the 1949 Plan to Joseph B. Daggett ("Daggett") and A. Harold Castonguay ("Castonguay") as trustees. Complaint ¶ 18 and Ex. 7.
2. The 1949 Plan created 49 house lots, twelve of which have frontage on Wequaquet Lake. The remaining 37 house lots ("the Back Lots") abut Shootflying Hill Road and/or unidentified ways shown on the 1949 Plan and do not have frontage on Wequaquet Lake.
3. On April 10, 1953, Daggett and Castonguay deeded substantially, but not all, of lot 49 as shown on the 1949 Plan to Stanislaus and Grace. Complaint Ex. 8. This deed conveyed no easement rights over the area shown as "Reserved as Common Beach" on the 1949 Plan ("Common Beach").
4. On October 5, 1954, Daggett and Castonguay deeded lots 21 and 22 as shown on the 1949 Plan to Roy K. and Mary B. Beaudry,
"[t]ogether with the right to use in common with all others entitled thereto that parcel marked 'Reserved as Common Beach' and a right of access to the same over the ways as shown on said plan." Complaint Ex. 10.
5. Plaintiffs Richard E. d'Entremont and Lillian d'Entremont are the current owners of lots 21 and 22. Complaint Ex. 36.
6. On September 24, 1956, Daggett and Castonguay deeded lots 29 and 30 as shown on the 1949 Plan to Raymond G. and M. Elinor Pendergast with identical easement language to that set forth in ¶ 4 above ("the Pendergast Property"). Complaint Ex. 11.
7. Plaintiffs Mark E. Ebert and Sharon Johnston are the current owners of Lot B on a plan entitled "Plan Of Land In Barnstable (Centerville) Mass. For Raymond G. & M. Elinor Pendergast Scale 1" = 40' Feb. 26, 1982 Baxter & Nye, Inc. Registered Land Surveyors Osterville Mass.", which is a redivision of lots 27-30 as shown on the 1949 Plan and encompassing substantially the same property as shown on the 1949 Plan as lots 29 and 30. Complaint Exs. 5 and 46.
8. Hall and Castonguay, as the then trustees of the trust, deeded lots 17 and 18 on the 1949 Plan to James F. and Margaret M. Driscoll with identical easement language to that set forth in ¶ 4 above. Complaint Ex. 14.
9. Plaintiff Jonathan W. Farnham is the current owner of lots 17 and 18. Complaint Ex. 48.
10. On March 15, 1963, Hall and Castonguay deeded lots 11 and 12 as shown on the 1949 Plan to Chase Street Village, Inc. with identical language to that set forth in ¶ 4 above. Complaint Ex. 16.
11. Plaintiffs Nick and Maria V. Koufos are the current owners of lots 11 and 12. Complaint Ex. 47.
12. On October 2, 1964, Hall and Castonguay deeded lots 2, 4-10, 13-16, 19-20, 24-26, 36, the lot reserved for future drainage, and the Common Beach, all as shown on the 1949 Plan, to James F. Driscoll ("Driscoll"), Roger Scudder ("Scudder") and Stanislaus as tenants in common. Complaint Ex. 18.
13. On October 7, 1964, Driscoll, Scudder and Stanislaus deeded lot 26 and the southerly 60' of lot 25 as shown on the 1949 Plan to Richard P. and Kathleen T. Gleason ("Mr. and Mrs. Gleason" and "the Gleason Property"), which grant stated that "[t]here is granted as appurtenant to the above described lots a right to use the area marked, 'Reserved As Common Beach' and a right of access to the same over the ways, in common with all others now or hereafter entitled to the same." Complaint Ex. 19.
14. Prior to that conveyance, Stanislaus met Mr. and Mrs. Gleason at lots 25 and 26 to show them the property that he wanted to sell to them. Gleason Aff. ¶ 11.
15. After viewing lots 25 and 26, Stanislaus and Mr. and Mrs. Gleason went to what Stanislaus called "the 'beach' lot that had a neighborhood dock" and tried to convince them "that his 'lot and a half' would be better" than another property that the Gleasons were considering that had no lake access. Gleason Aff. ¶¶ 12-13.
16. At that time, Stanislaus told Mr. and Mrs. Gleason that their young children could jump off the neighborhood dock into Wequaquet Lake and that Mr. and Mrs. Gleason could purchase a boat and tie it up at the dock before going out on to the lake. Gleason Aff. ¶ 14.
17. Mr. and Mrs. Gleason relied on Stanislaus' representations regarding the beach and dock rights in agreeing to purchase the Gleason Property. Gleason ¶ 15.
18. Plaintiffs Holly J. Farnham and Jonathan F. Farnham ("Holly" and "Jonathan" respectively) are the current owners of lot 26 and the portion of lot 25 sold to Mr. and Mrs. Gleason. Complaint ¶ 6.
19. On March 3, 1965, Driscoll, Scudder and Stanislaus deeded lot 36 and 40' of the parcel labeled "reserved for future drainage area" to Hazel V. Connor with language identical to that set forth in ¶ 13. Complaint Ex. 20.
20. Plaintiff Brian Twohig is the current owner of lot 36 and 40' of the parcel labeled "reserved for future drainage area," as well as lots 35 and 37 as shown on the 1949 Plan. Complaint ¶ 13.
21. On May 17, 1965, Driscoll, Scudder and Stanislaus deeded lots 19 and 20 as shown on the 1949 Plan to Claire Marie Bouchard with language identical to that set forth in ¶ 13. Complaint Ex. 22.
22. Plaintiff Claire M. Wingren, Trustee of CDW Realty Trust, f/k/a Claire Marie Bouchard, has owned lots 19 and 20 in one capacity or another since May 17, 1965. Complaint ¶ 1 and Ex. 22.
23. On November 29, 1965, Driscoll, Scudder and Stanislaus deeded lot 10 and a portion of lot 9 as shown on the 1949 Plan, now shown as lot D on sheet 1 of a plan entitled "Plan of Land Centerville, Barnstable. Mass. As Surveyed For Stanley A. McLean, et al. Scale 1 In. = 60 Ft. Dec. 10, 1964 Nelson Bearse Richard Law, Surveyors Centerville, Mass.," ("198/49 Plan") to Driscoll and his wife, Margaret Mary Driscoll, which grant included the following language: "There is also granted a right to use the area marked, 'Reserved as Common Beach' and a right of access to the same over the ways, in common with all others entitled thereto." Complaint Exs. 3, 24.
24. Plaintiff Elizabeth Connolly is the current owner of lot D. Complaint Ex. 42.
25. On the same date, Driscoll, Scudder and Stanislaus deeded lot 7 and a portion of lot 6 as shown on the 1949 Plan, now shown as lot 1 on a plan entitled "Plan Of Lots Centerville, Barnstable, Mass. Belonging To Stanley A. McLean, et al. Scale 1 In. = 60 Ft. Dec. 8, 1964 Nelson Bearse Richard Law, Surveyors Centerville, Mass." ("198/51 Plan") to Scudder and his wife, Helen D. Scudder, which grant included the following language: "There is also granted a right to use the area marked, 'Reserved as Common Beach' shown on Plan recorded in Plan Book 88 Page 13, and a right of access to the same over the ways, in common with all others entitled thereto." Complaint Ex. 23.
26. On the same date, Driscoll, Scudder and Stanislaus deeded lot 24 and portions of lot 23 and lot 25 as shown on the 1949 Plan to Stanislaus and Grace, which grant included language substantially the same as that set forth in ¶ 23 above. Complaint Ex. 25.
27. Plaintiffs James T. and Carol Ann Harris are the current owners of the property deeded to Stanislaus and Grace on November 29, 1965. Complaint Ex. 49.
28. On December 8, 1967, Scudder's guardian, Helen P. Scudder, and Driscoll, Stanislaus, Helen P. Scudder and Jeffrey P. Scudder, by two separate deeds, deeded lot 8 and a portion of lot 9 on the 1949 plan, now shown as Lot C on sheet 1 of the 198/49 Plan, to Robert A. and Olga F. Ruska, which grant included language substantially the same as that set forth in ¶ 23 above. Complaint Ex. 26.
29. Plaintiffs Janet M. Benson and Gary Benson are the current owners of lot C. Complaint Ex. 32.
30. On January 22, 1968, Driscoll, Scudder's representatives and Stanislaus deeded what had been lots 5 and a portion of lots 4 and 6, now shown as lot 2 on the 198/51 Plan to Kenwood and Norma Lawson, which grant included language substantially the same as that set forth in ¶ 23 above. Complaint Ex. 27.
31. Plaintiff Peter A. Nagorka is the current owner of lot 2 as shown on the 198/51 Plan. Complaint Ex. 45.
32. On September 23, 1969, Driscoll and Scudder's representatives deeded what had formerly been a portion of lot 2 on the 1949 Plan, now shown as lot 3 on the 198/51 Plan to Stanislaus, which grant included language substantially the same as that set forth in ¶ 23 above. Complaint Ex. 29.
33. Plaintiffs Daniel E. and Donna L. Christensen are the current owners of lot 3 as shown on the 198/51 Plan. Complaint Ex. 44.
34. On the same date, Scudder's representatives and Stanislaus deeded lot 6 shown on sheet 2 of the 198/49 Plan to Driscoll, which grant included language substantially the same as that set forth in ¶ 23 above. Complaint Ex. 28.
35. Plaintiff Christopher L. Sabatini is the current owner of lot 6 as shown on sheet 2 of the 198/49 Plan. Complaint Ex. 40.
36. On June 23, 1984, Driscoll and Scudder's heirs deeded all their right, title and interest in and to the Common Beach to Stanislaus for one dollar. Complaint Ex. 33.
History of Use
37. Mrs. Gleason and her husband built a house on their property and moved in to it in 1965. Gleason Aff. ¶ 18.
38. Mrs. Gleason and her family lived at that property until 2004, when they sold it to Jonathan and Holly. Gleason Aff. ¶ 20.
39. According to Mrs. Gleason, while her family lived at the Gleason Property, her entire family enjoyed the beach area and used the neighborhood dock. Gleason Aff. ¶ 19.
40. According to Mrs. Gleason, all of the Back Lot owners used the beach, the neighborhood dock and the ramp area without any problems with the McLeans during the period of the Gleasons' ownership of the Gleason Property. Gleason Aff. ¶ 22.
41. Holly, who acquired the Gleason Property with her husband in 2004, H. Farnham Aff. ¶ 6, is the daughter Raymond G. and M. Elinor Pendergast, who, in addition to the previously acquired Pendergast Property, acquired lots 27 and 28 as shown on the 1949 Plan in 1962. H. Farnham Aff. ¶¶ 11, 13-14.
42. Holly moved with her parents to the Pendergast Property by 1960, when she was three years old. H. Farnham Aff. ¶ 15.
43. Holly spent the majority of her youth on the lake: fishing, swimming, sailing, ice skating, all off the neighborhood dock and common beach, along with the rest of the neighborhood. H. Farnham Aff. ¶ 16.
44. After graduating from college, Holly continued to be a frequent visitor to the Pendergast Property. H. Farnham Aff. ¶ 17.
45. One of the important factors that led Holly and her husband to purchase the Gleason Property in 2004 was the existence of rights to the dock/pier, boat ramp, beach and ease of access to Wequaquet Lake. H. Farnham Aff. ¶ 8. They relied, among other things, on Holly's knowledge of the many years of use of the neighborhood dock. Id. at ¶ 10.
46. After purchasing the Gleason Property, Holly and Jonathan purchased Stanislaus' pontoon boat, which they launched using the ramp and often tied up to the dock. H. Farnham Aff. ¶ 22.
47. The boat ramp has been secured with a chain and lock for more than 40 years. H. Farnham Aff. ¶ 26. See Norman Aff. ¶¶ 17-18 ("In or around the 1970s, Stanislaus McLean installed posts and the first of two chain-link barriers to a section of the Common Beach.").
48. When Holly and Jonathan purchased the Gleason Property in 2004, Stanislaus gave them a key to the lock, which they understood to be a matter of right in view of their ownership of the Gleason Property. H. Farnham Aff. ¶ 28.
49. According to a Notice of Intent filed by Norman with the Town of Barnstable dated August 12, 1991, Complaint Ex. 39, a pier had by that date been seasonally employed on the Common Beach for 30 years. Complaint Ex. 39.
50. From approximately 1964 until 2004, Holly's father and others, and thereafter, Holly and others, took up collections to pay for dock replacement materials and made repairs to the dock. H. Farnham Aff. ¶ 29. See Norman Aff. ¶¶ 9-10 ("From the early 1960s until Ray Pendergast's death in or around October 18, 2009, Ray Pendergast and his family took care of the pier/dock, including removing and installing it seasonally,
with the occasional help of Stanislaus, myself, and a few neighbors.").
51. Stanislaus died on January 5, 2018. J. Farnham Aff. ¶ 31.
52. On May 19, 2018, when Jonathan and his brother (plaintiff Jonathan W. Farnham's father) were installing the neighborhood dock, Norman came over to them and asked that they do him a "huge favor and take the dock out." J. Farnham Aff. ¶ 32.
53. Norman explained that he had estate issues to review with the attorney regarding the recent loss of his father and brother and wanted two weeks to sort things out. J. Farnham Aff. ¶ 33.
54. When Jonathan did not hear back from Norman, he went down to the dock on June 22, 2018 in anticipation of installing the dock the next day. At that time, Norman approached him and said "there will not be a dock going in anymore, get a lawyer to call my lawyer." J. Farnham Aff. ¶ 37.
55. At that time, Norman further stated that the dock was old, needed to be repaired/replaced, was dangerous, and that he and his mother did not want to be liable. J. Farnham Aff. ¶ 39.
56. Believing that the condition of the dock was the issue, Jonathan took up a collection to purchase a new metal and composite material deployable dock. J. Farnham Aff. ¶ 40.
57. When Jonathan attempted to install this new dock, the police were called and Norman and Nancy told the police that Jonathan and his neighbors did not have the right to install the dock. J. Farnham Aff. ¶ 41.
58. For as long as Holly can remember, Back Lot owners have enjoyed the right to park a car along the side of the paved area but within the layout of Tern Lane in front of the area shown as "Pond" and "Reserved as Common Beach" on the 1949 Plan. H. Farnham Aff. ¶ 25.
59. That area has now been blocked by Norman, who has fenced off the area and installed "no parking signs." H. Farnham Aff. ¶ 32; Norman Aff. ¶ 23.
60. Over the years, the Back Lot owners have stored the neighborhood dock on the Common Beach. Norman Aff. ¶ 24.
61. According to Norman and Nancy, some unidentified individuals, some of whom they believe to be plaintiffs in this action, have recently been engaged in the following activities on the Common Beach: leaving trash, lighting fireworks, drinking alcohol and hosting parties late at night, and trespassing on their property. Norman Aff. ¶ 30. Nancy Aff. ¶ 6.
DISCUSSION
A preliminary injunction may issue only if the moving party demonstrates (a) a likelihood of success on the merits, (b) that he or she faces a substantial risk of irreparable harm if the injunction is not issued, and (c) that this risk of irreparable harm outweighs any risk of irreparable harm which granting the injunction would create for the defendants, the McLeans. GTE Prods. Corp. v. Stewart, 414 Mass. 721 , 722-723 (1993); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609 , 617 (1980). In cases invoking the public interest, the moving party must also demonstrate that the requested order promotes the public interest or will not adversely affect the public. Commonwealth v. Mass. CRINC, 392 Mass. 79 , 89 (1984). That is not a factor here.
Plaintiffs' Motion - Likelihood Of Success On The Merits
Plaintiffs contend that the express grant of the right to "use" the Common Beach is sufficiently broad to encompass the rights to install and maintain a dock, launch boats and park. Alternatively, the plaintiffs claim prescriptive rights to do so. In response, the McLeans contend that a right to "use" the Common Beach cannot be read as broadly as the Plaintiffs read it and that the Plaintiffs have failed to meet their burden of proof with regard to prescriptive rights.
As noted by the Appeals Court in Sheftel v. Lebel, 44 Mass. App. Ct. 175 (1998), a case involving whether an express easement carried with it the right to construct a walkway and pier,
"[t]he 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. Similarly, with respect to an easement created by a conveyance, 'the extent of [the] easement
is fixed by the conveyance,' and the 'language [used]
is the primary source for the ascertainment of the meaning of [the] conveyance.'"
Id. at 179, quoting Restatement of Property §§ 482, 483 comment d (1944) (citations omitted).
"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).
"It is well settled that when an easement is created by deed, but its precise limits and location are not defined, the location and 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."
Labounty v. Vickers, 352 Mass. 337 , 345 (1967), quoting Kesseler v. Bowditch, 223 Mass. 265 , 268 (1916).
It also bears noting that the party asserting an easement bears the burden of proof on that issue. Boudreau, 29 Mass. App. Ct. at 629 ("The parties asserting the easement
have the burden of proving its existence."), citing Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933); Krinsky v. Hoffman, 326 Mass. 683 , 688 (1951); Rahilly v. Addison, 350 Mass. 660 , 663-664 (1966). Also, any ambiguity concerning the scope of an easement is "resolved in favor of freedom of the land from servitude." Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967).
In applying these principles, the Appeals Court reversed the lower court in Sheftel. 44 Mass. App. Ct. at 183. There, the Appeals Court found that the explicit language of grant limiting the easement to "foot travel only" and terminating at "mean high water," reinforced by a plan showing the easement terminating at the edge of the upland, precluded a finding that the easement imported the right to construct a walkway and pier. Id. at 179-181. In Town of Nantucket v. Lerner, 17 LCR 220 , 223-224 (2009), this court (Trombly, J.) held that an easement "for the purposes of bathing and boating" did not imply a right to erect a structure, in that case, a gangway or ramp. There, the court stated that "[t]his phrase alone is not sufficient to construe an intent to convey the right to build structures related to bathing and boating on the servient estate." Id. at 224. Notably, since the original grant in 1956, none of the easement holders had required a gangway or ramp in order to exercises their easement rights. Id.
In Scioletti v. Thomas, 16 LCR 782 , 791 (2008), this court (Grossman, J.) construed the language of the easement in that case as a right of way "solely for foot traffic" to Follins Pond. Because there was no explicit grant authorizing the plaintiffs to construct, maintain and use dock structures for boating purposes, the plaintiffs argued that the original grant implied such a use. Id. at 790. The court found that there was no support in the language of the grant, the details of the associated plan or the circumstances attending the creation of the easement for the plaintiffs' position. Id. at 792. The construction of a dock and walkway 10 years after the creation of the easement was found to be too remote in time to be relevant to the issue of the grantor's intent. Id. [Note 3]
In Bellarosa v. Cerier, 9 LCR 305 , 305 (2001), aff'd 63 Mass. App. Ct. 1109 (2005) (1:28 Decision), the plaintiff claimed to have acquired title to an area of beach, the right to pass and repass over which had been granted to plaintiff's predecessor in title and on which the plaintiff and her predecessors maintained a dock and boathouse. The Land Court (Green, J.) found that the plaintiff's use of the beach (including the construction of stairs) was explained by the plaintiff's easement rights such that a claim of adverse possession could not succeed, but that the defendants' failure to object to the dock or boathouse served either to define the scope of rights intended by the parties under the express easement or to expand the scope of the easement by virtue of the prescriptive use. Id. at 309.
In the present case, the original developers (one or more of Hall, Daggett and Castonguay) conveyed lots on the 1949 Plan together with "the right to use" the Common Beach to the predecessors in title to seven of the plaintiffs between 1954 and 1963. [Note 4] After Driscoll, Scudder and Stanislaus acquired 19 lots and the Common Beach in 1964, they conveyed lots on the 1949 Plan together with "a right to use" the Common Beach to one current plaintiff and the predecessors in title to twelve other plaintiffs between October, 1964 and September, 1969. [Note 5]
The 1949 Plan consists of 49 numbered lots, the lot marked "Reserved For Future Drainage Area" and the Common Beach. Lots 1, 31, 32 and 40 to 48 all have 75 feet or more of frontage on Wequaquet Lake. The remaining 37 lots, some of which appear to be as much as a quarter of a mile from the Common Beach based on the scale of the 1949 Plan, rely on easement rights for access to Wequaquet Lake. It is notable that, with the exception of the Common Beach, none of the lots acquired by Driscoll, Scudder and Stanislaus in 1964 had frontage on Wequaquet Lake.
A dock has existed at the Common Beach for the benefit of the Back Lot owners since at least 1961, a date prior to Driscoll's, Scudder's and Stanislaus' 1964 acquisition. There is no evidence in the record as to marketing efforts by Hall, Daggett and/or Castonguay prior to 1964, although the dock was then in existence. Afterward, Stanislaus actively marketed the Gleason Property to Mrs. Gleason and her husband as having a "neighborhood dock." On November 29, 1965, Driscoll, Scudder and Stanislaus deeded lots to each of them and their wives, individually, along with the same right to use the Common Beach. Plaintiff Elizabeth Connolly is the current owner of the lot deeded to Driscoll and his wife, and plaintiffs James T. and Carol Ann Harris are the current owners of the lots deeded to Stanislaus and his wife. Presumably, having associated rights, including a neighborhood dock, enhanced the value of all the Back Lots acquired by Driscoll, Scudder and Stanislaus and subsequently sold, including those conveyed separately to each of them.
Mrs. Gleason, who lived at the Gleason Property from 1965 to 2004, described the use of the beach and the neighborhood dock by her family and the use of the beach, neighborhood dock and boat ramp by all of the Back Lot owners during her tenure. Holly, who has owned the Gleason Property with her husband since 2004 and who lived at the Pendergast Property as a child starting in 1960, echoed Mrs. Gleason's description of use of the neighborhood dock and boat ramp over the decades by the Back Lot owners.
The language of the grant here, the right to "use" the Common Beach, is not sufficient standing alone to grant the Plaintiffs the rights that they seek. However, when coupled with the information shown on the 1949 Plan, the value of those rights to the marketing of the Back Lots, the evidence of marketing by Stanislaus to Mr. and Mrs. Gleason, and the history of installation and use of the neighborhood dock since at least 1961, this court concludes that the right to construct, install and maintain a dock was within the presumed intent of the original grantors of the Plaintiffs' lots. See Sheftel, 44 Mass. App. Ct. at 175; Bellarosa, 9 LCR at 305.
It also appears that the right to park, particularly for those plaintiffs whose lots are at a distance from the Common Beach, is reasonably necessary to their enjoyment of the express grant of the right to use the Common Beach. See Sullivan, 287 Mass. at 267. At the hearing on these motions, Plaintiffs' counsel limited Plaintiffs' request for injunctive relief as to parking adjacent to the boat ramp unless and until Plaintiffs support their claim to park within the layout of Tern Lane with a survey plan.
The right to use an area of the Common Beach as a boat ramp is not supported by evidence in the record to the same degree as that supporting the right to maintain a dock. There is also evidence in the record of property damage caused by the use of the boat ramp, and the existence of a public boat ramp some six-tenths of a mile away. At the hearing on these motions, Plaintiffs' counsel withdrew the request for injunctive relief as to the boat ramp.
While the Plaintiffs also argue that they have prescriptive rights with respect to the dock, boat ramp and parking, the record is insufficient to reach that conclusion with respect to any plaintiff other than, possibly, Holly and Jonathan with respect to the dock. "[E]ach plaintiff has the individual burden of establishing a prescriptive right of use
." Houghton v. Johnson, 71 Mass. App. Ct. 825 , 835 (2008). That burden has not been met here.
Plaintiffs' Motion - Irreparable Harm
The Plaintiffs suffer irreparable harm to the extent that the McLeans have unlawfully interfered with their right to use the Common Beach and the McLeans suffer irreparable harm to the extent that the Plaintiffs' use of the Common Beach is unauthorized. See Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81 , 88 (1996) ("It is well-settled law in this Commonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land."). That being said, this court finds that the harm to the Plaintiffs, who, with their predecessors in title, have installed and maintained a common dock on the Common Beach for decades, far outweighs any harm to the McLeans, who, with Stanislaus, did not contest that use for decades.
The Plaintiffs live in a neighborhood on Cape Cod, a summer resort area, and have an express right to use the Common Beach to access Wequaquet Lake, a significant amenity. The evidence in the record is that the Back Lot owners use the Common Beach and dock on a regular basis for boating, fishing and swimming, have taken up collections among themselves since 1964 to pay for dock repairs, and have removed and installed the dock seasonally during that period. When compared to the McLeans' interest in preventing the continued unauthorized use of the Common Beach, the balance of harm weighs strongly in the Plaintiffs' favor.
There is one caveat to this conclusion. The McLeans argue persuasively that they are at risk of liability for injuries arising out of the use of a dock at the Common Beach. The Plaintiffs have represented to the court that insurance coverage is available to insure against that risk.
Accordingly, the injunctive relief afforded to the Plaintiffs, allowing them to install a dock on the Common Beach, is contingent upon their obtaining liability coverage in an amount equal to or greater than that currently in place on Grace's or Norman's and Nancy's home, at Plaintiffs' sole cost.
The McLeans' Motion Likelihood Of Success On The Merits
The McLeans' cross-motion for injunctive relief is based on claims of overburdening the easement, nuisance and trespass. The McLeans seek an order from the court enjoining the Plaintiffs from engaging in the following activities:
a. Seeking to compel the McLeans to participate in the application for, installation of, and procurement of insurance for a pier/dock at the Common Beach;
b. Launching boats from and parking vehicles and boat trailers on the Common Beach, and then knocking on the McLeans' doors when one plaintiff wants the vehicle or trailer of another plaintiff moved;
c. Storing dock/pier materials on the Common Beach;
d. Planting invasive species on the Common Beach;
e. Leaving trash, empty alcohol containers, broken beach chairs, old moorings and dog feces on the Common Beach;
f. Lighting fireworks on and from the Common Beach;
g. Drinking alcohol and having loud parties late at night on the Common Beach; and
h. Trespassing on the McLeans' property adjacent to the Common Beach, including but not limited to parking cars thereon and by letting unleashed dogs run free on the McLeans' property.
The parties' respective rights with respect to the dock, parking and boat ramp are addressed above. In addition, at the hearing on these motions, Plaintiffs' counsel agreed that the Plaintiffs would remove what is left of the old dock from the Common Beach.
With respect to the McLeans' remaining requests, assuming this court has jurisdiction to adjudicate them, [Note 6] the McLeans have not provided any evidence as to whom, if any, of the Plaintiffs have engaged in the activities of which the McLeans complain. As with the Plaintiffs' assertion of prescriptive rights, the McLeans' claims require individualized proof showing that the McLeans are likely to succeed on the merits. At this stage, their claims are premised solely on the statement in their respective affidavits that "individuals whom I believe to include at least some of the Plaintiffs have recently engaged in" the complained-of activities. This is far too speculative and insufficiently particularized to carry the burden of showing a likelihood of success on the merits of a claim of trespass against any individual plaintiff. See Eaton v. Fed. Nat. Mortg. Ass'n, 462 Mass. 569 , 590 (2012) ("As a general rule, an allegation that is supported on 'information and belief' does not supply an adequate factual basis for the granting of a preliminary injunction."); Edgarton v. H.P. Welch Co., 321 Mass. 603 , 612-613 (1947) (trespass claim requires proof that the defendant's entry was intentional and unauthorized).
The McLeans' Motion Irreparable Harm
In view of the court's finding that the McLeans have not established a likelihood of success on the merits with respect to the issues raised solely in Defendants' Motion, the weighing of harm to each of the parties if the injunctive relief sought by the McLeans were to issue need not be addressed.
Conclusion
For the foregoing reasons, the cross-motions are ALLOWED IN PART and DENIED IN PART. An order of even date consistent with this Memorandum Of Decision has issued. The findings and rulings contained herein are necessarily preliminary in nature. Thus, these findings and rulings are neither intended, not should they be construed, as having any precedential weight or effect in further proceedings in this case, all of which shall be determined in the light of the evidence offered and admitted on those occasions. Should further-developed evidence or circumstances warrant, any party may move for the modification or dissolution of the order at any time.
CLAIRE M. WINGREN, Trustee of CDW Realty Trust, JANET M. BENSON, GARY BENSON, RICHARD E. D'ENTREMONT, LILLIAN D'ENTREMONT, CHRISTOPHER L. SABATINI, ELIZABETH A. CONNOLLY, JONATHAN F. FARNHAM, HOLLY J. FARNHAM, DANIEL E. CHRISTENSEN, DONNA L. CHRISTENSEN, PETER A. NAGORKA, MARK E. EBERT, SHARON JOHNSTON, NICK KOUFOS, MARIA V. KOUFOS, JONATHAN W. FARNHAM, JAMES T. HARRIS, CAROL ANN HARRIS, and BRIAN TWOHIG v. GRACE A. McLEAN, NORMAN D. McLEAN and NANCY K. McLEAN.