MISC 16-000123

January 13, 2020

Barnstable, ss.



This is the fourth case in this Court involving a twenty-foot right of way (the "Way") that abuts the Dennis, Massachusetts beachfront home of plaintiffs Brian and Mary Hickey. The first two cases, at their conclusion, produced appellate decisions. See Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 (2015) ("Hickey I"); Loiselle v. Hickey, 93 Mass. App. Ct. 644 (2018). A third case went to the Appeals Court early on (see Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 (2018)), but it returned to this Court and bumped further along until today. See Hickey v. Oliveira, 16 MISC 000213. One should read this decision before reading today's decision in Oliveira.

All but two of the defendants in this case (the outliers being defendants Pathways Association, Inc. ("Pathways") and West Side Owners Association, Inc. ("WSOA"; this Decision calls all of the defendants except Pathways and WSOA the "Defendants," with a capital "D")) own inland lots within what Hickey I and Loiselle call the Tobey Tract. The Tract was a 217.24-acre parcel in Dennis that was registered in 1903 to Frank B. Tobey. The Tract is shown on Land Court Registration Plan 647. That Plan shows Cape Cod Bay bounding the registered Tract to the north. Each of Defendants' lots appears on at least one of Plan 647's registered subdivision plans.

Hickey I holds that, as of Hickey I, the Hickeys didn't own the fee in the Way. (They have since acquired a partial interest in the fee.) Hickey I also holds that the Hickey I defendants (some of whom are Defendants in this case) have easement rights in the Way. Moreover, given Hickey I's reasoning for why such easement rights exist, it's highly likely that many owners of lots that appear on the Plan 647 subdivision plans, besides those owners who were among the victorious defendants in Hickey I, hold the same rights. (Certain owners who weren't defendants in Hickey I opted to be plaintiffs in Loiselle. Loiselle holds that those plaintiff owners too have easement rights in the Way.)

Loiselle also resolved a second question, whether those enjoying easement rights in the Way have the right to use intertidal beach areas that lie seaward of 34 lots adjacent to Cape Cod Bay that appear on the Plan 647 subdivision plans. One of those 34 lots is the Hickey property. The Appeals Court affirmed this Court's (Sands, J.) judgment that the easement holders possess with respect to the disputed intertidal beaches only those rights that the Colonial Ordinance of 1641-1647 reserves to the public. See Loiselle, 93 Mass. App. Ct. at 645-646. The Appeals Court was adamant, however, that its decision did not address the extent of the easement holders' rights "to use the beach area lying within the boundaries of the access ways" on Plan 647, especially within the disputed Way. Id. at 652-653 & n. 16. The Court left "to another day resolution of the scope of the inland owners' rights to use the access ways themselves." Id. at 654.

The day Loiselle foresaw has arrived for the parties to this case, although only with respect to their rights to use the Way (other access ways aren't part of this case). Most of the parties appeared for trial on August 13, 2019. (The parties not appearing at trial were defendants Patricia Becker, Robert Becker, Fernando Giangregorio, Joseph Giangregorio, Evelyn Jenkins, Steven Keady, Paul Pietro, and Susan Pietro. The Court defaulted those defendants (collectively, the "Defaulted Defendants") in July 2017. Defendants Kathleen and Theodore Homa also didn't appear for trial, but no one at the time noticed. Post-trial, the Hickeys dismissed their claims against the Homas without prejudice, with the Homas' assent.) On August 2, 2019, the Court viewed the Way and the Hickey property at a midday high tide and at a late-afternoon low tide.

Having heard the appearing parties' witnesses, having reviewed their evidence, having received their stipulations of fact, having taken a view, and having heard the arguments of counsel, the Court finds the facts described above as well as those set forth below. The Court concludes that the Defendants who appeared at trial have not proven that their rights to use the Way include so- called beach rights.

The Defendants

1. Defendants and their respective lots are:

  Lot # Plan # Name
1 536 647-11 John and Kara Palermo
2 533 and 534 647-11 Paul J. and Pamela A. Maher
3 523 647-8 Martin J. and Barbara G. Jessel, Trustees of The Jessel Family Holding Trust
4 539 and 540 647-11 Linley Mahon, as Personal Representative of the Estate of Geoffrey L. Mahon
6* 518 647-8 Richard L. and Maria P. O'Shea
7 479 647-2 Joseph G. and Suzanne M. Russo
8 538 647-11 Andrew A. and Catherine A. Tvirbutas
9 235 647-G (Sheet 2) Sorin R. Marinescu
10 236 647-G (Sheet 2) Roland W. and Martha K. Young
11 259 647-G (Sheet 2) John R. and Jane W. Loiselle, Trustees of Loiselle Family
12 238 647-G (Sheet 2) Evelyn A. Jenkins
13 237 647-G (Sheet 2) Lewis R. and Julie A. Piantedosi
14 245 and 246 647-G (Sheet 2) Francis M. and Jeanne M. Carrick
15 242 647-G (Sheet 2) Steven A. Keady
16 244 647-G (Sheet 2) William and Marie Creonte
17 535 647-11 Susan M. Hennessey
18 478 647-2 Michael D. Allentoff, Alban J. Allentoff and Theresa J. Ruffle (collectively, the "Allentoffs")
19 525 647-8 Carol R. Bohn, Robert Furman and Bohn-Furman Realty Trust
20 527 647-8 Gary McWilliams
21 522 647-8 Mark S. and Patricia M. Pelletier
22 491 647-2 Joseph J. and Mary G. Rahal
23 323 647-M Theodore and Kathleen Homa
24 368 647-M (Sheet 1) Robert and Patricia Becker
25 387 647-M Karen B. LaFauci
26 324 647-M (Sheet 1) WT Dennis LLC
27 446 and 447 647-2 (Sheet 2) Joseph and Fernando Giangregorio
28 515 647-8 Christopher P. and Christine M. Tosti
29 569 647-15 John, Susan, Kristin, Michelle and Elizabeth Walker
30 571 647-15 Arthur M. Maressa
31 337 647-M Dorothy L. Tosti and Joseph Tosti, Trustees of the Tosti Realty Trust
32 472 647-2 (Sheet 2) LoVerme Bayview Limited Partnership
33 257 and 258 647-G James G. Maguire, as Personal Representative of the Estate of Mary H. Maguire
34 469 647-2 Stephen M. and Karen Droga Campe
35 400 647-S Philip J. and Gayle A. Ciaramicoli
36 495 647-2 Donald F. Daley, Trustee of the Donald F. Daley Revocable Living Trust
37 C8 and C-10 647-I Thomas Joseph Daley and Ursula Robinson Daley, Trustees of the Wild Hunter Road Nominee Trust
38 558 647-15 Stephen L. Delvecchio and Marcia C. Delvecchio, Trustees of the Marcia C. Delvecchio Revocable Trust
39 375 647-M Virginia Lois Devine and Ronald Gray III, Trustees of the Hoppogriffe Road Realty Trust
40 C-11 and C-14 647-I Joseph A. and Diane F. Donato
41 566 647-15 Pamela J. Driscoll
42 488 647-2 Richard A. and Elain M. Giberti
43 396 647-R John S. and Sarah Gray
44 565 647-15 John F. and Judith S. Howard
45 537 647-11 Lisa M. Swalec, Trustee of the Leroux Family Trust
46 563 647-15 Joseph A. Lima and Sue E. Lima, Trustees of the Patriots Way Realty Trust
47 476 647-2 James T. and Mary E. Moshier
48 335 647-M Thomas M. and Noreen D. O'Hear
49 518 647-8 Kelly F. O'Rourke
50 255 and 256 647-G Kenneth J. and Nancy L. Pecore
51 568 647-15 Robert M. Pierce, Trustee of the Cranberry Real Estate Trust
52 556 647-15 Russell A. and Diane M. Robbins
* By agreement of the parties, this list intentionally omits a Defendant #5.

2. Each of the Defendants enjoys an easement in the Way. See Hickey I, 472 Mass. at 759-760 (owners of lots shown on Plans 647D and 647F hold easement rights); id. at 761 (owners of lots shown on Plan 647G hold easement rights); id. at 762-763 (owners of lots shown on Plan 647M hold easement rights); id. at 764-765 (owners of lots shown on Plans 647S, 647W, 647-2, 647-8, 647-11, 647-13 and 647-15 hold easement rights). The parties who appeared for trial stipulate, however, that none of the Defendants' certificates of title to their properties contains language that specifically grants "beach access" or "beach use" rights.

3. Defendant Pathways is a corporation whose purpose is, among other things, to "improve, enhance, preserve and maintain," for the benefit of members who own eligible lots, the Way and two ten-foot-wide ways shown on Land Court Plan 647F. Pathways has sought permission from the Conservation Commission of the Town of Dennis to build a set of wooden stairs over a coastal bank on the Way. Pathways did not disclose at trial the identities of its current members.

4. WSOA is one of the current owners of the fee in the Way.

Development of the Tobey Tract

5. There are 52 Land Court Plans within Case File No. 647, the case file for the Tobey Tract. Those Plans show over 500 lots within the Tract.

6. Land Court Plan 647A depicts the entire 217.24-acre Tract. Plan 647A shows a single road, "Town Road," running from land of others on the south of the Tobey Tract north to Cape Cod Bay. (Later plans in the 647 series identify the Town Road as Nobscusset Road.) Plan 647A shows no other roads or ways leading to Cape Cod Bay.

7. By June 1917, Mr. Tobey had died. His first successors in interest to the Tobey Tract were Lunette Luscombe, Ruth Morley, and Asa Shiverick. Luscombe and Morley became the principal developers of the land shown on Plan 647A and its later subdivision plans.

8. Luscombe and Morley's first subdivision of the Tobey Tract came via Plan 647B, which was approved in 1917. Plan 647B subdivided all of the Tract's acreage east of Plan 647A's Town Road. Plan 647B created streets (identified by various letters) and 228 numbered lots.

9. Plan 647B also created two new parcels, labeled with the letters "D" and "E." Parcel D is an inland parcel that lies between newly created A and G Streets. By contrast, Parcel E is a beach parcel. Luscombe and Morley put newly created Parcel E between the waters of Cape Cod Bay and fourteen new lots that front on A Street, between G Street (on the east) and newly created B Street (on the west). Both G Street and B Street extend to Cape Cod Bay. For the most part, the lots between A Street on the south and Parcel E on the north are 200 feet in depth and 100 feet in width. Situated between groups of three of these lots are ten-foot-wide ways extending from A Street on the south to the beach lot, Parcel E, on the north.

10. In 1925, Luscombe and Morley obtained approval of their next subdivision plan, Plan 647C. It created a single square oceanfront lot (called Lot E), bounded on the north by Cape Cod Bay, on the east and south by Plan 647A's "Town Road," and on the west by an unnamed 40-foot road leading from Town Road to Cape Cod Bay. Lot E lies immediately to the west of the lots depicted on Plan 647B. Lot E was (or became, after 1925) the site of the Nobscusset Hotel. The Hotel included a dance hall, bowling alley, bath houses, an "electric light station," and other structures. Unlike Plan 647B, however, Plan 647C does not depict, anywhere, a separate beach lot.

11. In November 1925, six months after approval of Plan 647C, Luscombe, Morley, and Shiverick sold to the Trustees of the Nobscussett Realty Trust (the "NRT Trustees") the parts of the Tobey Tract that Luscombe, Morley and Shiverick still owned, including Lot E and the Nobscussett Hotel. Luscombe, Morley, and Shiverick took back a mortgage on the property they'd conveyed to the NRT Trustees (the "1925 Mortgage").

12. The NRT Trustees' tenure as owners of the Tobey Tract didn't last long. In January 1928, the NRT Trustees sold Lot E and the Nobscusset Hotel to a former NRT Trustee, Harry D. Neal. (The NRT Trustees' deed to Neal contains this odious provision: "The land herein conveyed is subject to the restriction that no part of the same shall ever be sold to others than members of the Caucasian race.") In February 1933, with the Great Depression underway, Neal deeded Lot E back to the NRT Trustees; almost immediately, the NRT Trustees conveyed Lot E and their other Tobey Tract lands to Scargo Realty, Inc. (a Neal-affiliated corporation), still subject to the 1925 Mortgage. But by June of 1935, Scargo handed back to Morley and Luscombe (who had since been assigned Shiverick's interests under the 1925 Mortgage, following Shiverick's death) the unconveyed portions of the Tobey Tract, including Lot E. (Despite the intervening conveyances, Luscombe and Morley's Transfer Certificate of Title notes as an encumbrance "the restriction as set forth in Document No. 2781 Barnstable Registry District," the Caucasians-only restriction.)

13. Soon after reacquiring interests in the Tobey Tract, Luscombe and Morley filed another subdivision plan, Plan 647D, approved in 1936. It continued the subdivision of those parts of the Tract that bounded on Cape Cod Bay, starting with the area immediately west of Lot E. Plan 647D created five oceanfront lots. Luscombe and Morley lettered the easternmost lot F, with lots G, H, I, and J marching ever further west. Each lot had 100 feet of frontage on Cape Cod Bay to the north and on a new 40-foot "Road" to the south. That road (identified on some later 647-series Plans as Shore Drive) runs east/west, parallel to Cape Cod Bay, beginning at the unnamed 40-foot road next to Lot E that's described in ¶ 10 above.

14. Plan 647D also showed, on the western edge of Lot J (the westernmost new oceanfront lot), the Way. Plan 647D labels the Way as "WAY 20 FEET WIDE." Plan 647D shows the Way, like Lots F-J, extending past what's shown as the "Top of Bank" on Plan 647D to the mean high-water mark of Cape Cod Bay. The parties nevertheless agree that the Way runs from Shore Drive, past the high-water mark, and through the intertidal area to the waters of Cape Cod Bay. Like Plan 647C, and unlike Plan 647B, Plan 647D did not depict any beach lot north of Plan 647D's new oceanfront lots, or anywhere else. Loiselle holds that the owners of the oceanfront lots shown on Plan 647D own to the mean low-water mark of Cape Cod Bay, subject only to the public's rights under the Colonial Ordinance of 1641-1647. See Loiselle, 93 Mass. App. Ct. at 648.

15. In 1936, Luscombe and Morley conveyed the sole lot abutting the Way to the east, Lot J on Plan 647D, to Donald B. Aldrich. (Hickey I, 472 Mass. at 742, erroneously suggests that Luscombe and Morley first sold Lot J to Eugene J. and Harriet J. Waldron. At page 745 of the reported decision, Hickey I correctly identifies Lot J's first purchaser as Aldrich.) Hickey I holds that Luscombe and Morley retained title to the fee in the Way at the time of the Aldrich conveyance. Hickey I also states that Luscombe and Morley's deed for Lot J conveyed the property "together with the rights of way for all purposes over said roads and rights of way [on the D Plan]." Id. at 748 (brackets in original; footnote omitted).

16. Luscombe and Morley filed their next subdivision plan, Plan 647E, in June 1937. They did so in coordination with the Town of Dennis. The Town had voted in April 1937 to lay out across the Tobey Tract, and take from Luscombe and Morley, a way later called Bayview Road. Bayview Road was to begin at a public way called Beach Street, south of the Tobey Tract, and then cross northerly over the Tract to the mean high-water mark of Cape Cod Bay. The "bay" end of Bayview Road is approximately 1313 feet west of the Way.

17. Plan 647E depicts the northern end of Bayview Road and three new parcels. One parcel, Lot K, was a new oceanfront lot abutting the west side of Bayview Road. Lot K is up to 190 feet deep (measured perpendicular to the Bay) and runs 450 feet along the Bay. Plan 647E also depicts two smaller lots, Lots L and M, south of Lot K and bracketing Bayview Road. Once Plan 647E was approved, Luscombe and Morley deeded Lots K, L, and M to the Town. Lot K has since served as a public beach called Bayview Beach. Lots L and M are public parking lots for Bayview Beach.

18. In July 1938, one year after selling what became Bayview Beach and its parking lots, Luscombe and Morley filed another subdivision plan, Plan 647F. That plan showed a subdivision of all of the Tobey Tract that lies immediately along Cape Cod Bay west of the area shown on Plan 674D, but east of the area shown on Plan 647E. Plan 647F also showed an extension of Shore Drive westward to Bayview Road. Plan 647F created thirteen new oceanfront lots, each designated by a letter. (Plan 647F also shows previously created Lot J.) Each lot lies between Cape Cod Bay on the north and Shore Drive on the south. Unlike Plans 647B and 647E, Plan 647F does not show a separate beach parcel. Loiselle holds that the owners of the oceanfront lots shown on Plan 647F (including now the Hickeys, the current owners of Plan 647F's Lot X) own to the low-water mark of Cape Cod Bay, subject only to the public's rights under the Colonial Ordinance. See Loiselle, 93 Mass. App. Ct. at 647-648.

19. Plan 647F also depicts three unnamed ways, not including Shore Drive. Each runs from Shore Drive on the south to Cape Cod Bay on the north. Two of the unnamed ways are ten feet wide. The third unnamed way is the disputed Way, which is twenty feet wide. Plan 647F shows the Way abutting the easternmost of Plan 647F's new oceanfront lots, Lot X.

20. Plan 647F labels the Way simply as "WAY." Plan 647F shows the Way extending 275 feet north from Shore Drive, along the east side of Lot X. Plan 647F also shows a "Top of Bank" running parallel to Cape Cod Bay. As shown on Plan 647F, the "Top of Bank" as it crosses Lot X is as much as 80 feet from the mean high-water mark of Cape Cod Bay.

21. Luscombe and Morley conveyed Lot X out of the Tobey Tract in 1944. Luscombe and Morley retained title to the fee in the Way at the time of that conveyance. See Hickey I, 472 Mass. at 753. The fee in the Way is now owned in part by the Hickeys, who purchased their interest separately from purchasing their fee in Lot X. WSOA also is an owner of the fee in the Way. There may be other owners of the fee in the Way besides the Hickeys and WSOA. Hickey I further observes that the Certificate of Title for the first owner of Lot X states: "There is appurtenant to said lots a [r]ight of [w]ay over the adjacent ways as shown on said plan 647-F." Id. at 748 (brackets in original; footnote omitted). As of 1944, anyone reviewing the plans in Case File No. 647 would see that, if Luscombe and Morley continued to subdivide the remainder of the Tobey Tract into 100-foot by 200-foot lots, and gave each owner rights in the Way, substantially more than 100 other owners would gain rights in the Way. See id. at 761; id. at 766 (Appendix identifying the pre-1944 subdivisions shown on Plans 647B, 647C, 647D, 647F, 647G, and the remainder of the Tobey Tract).

22. Luscombe and Morley's next subdivision appears on Plan 647G (two sheets), filed in 1939. The G Plan created 32 new lots, numbered 231 to 262. Plan 647G carved Lots 231, 233, and 234 out of the western portion of Lot E of Plan 647C. All three lots have frontage on Cape Cod Bay. Unlike Plans 647B and 647E, Plan 647G does not show a separate beach parcel. Plan 647G also did not create any ways extending to Cape Cod Bay. Hickey I nevertheless observes that starting in 1939, Luscombe and Morley started conveying G Plan lots; the deeds for those lots stated they "are subject to and have the benefit of all outstanding [rights of way], if any, in-so-far as the same are now of legal force and effect." Hickey I, 472 Mass. at 750 (brackets in original). Hickey I further observes that Luscombe and Morley "continued to grant explicit rights in all ways shown on a plan or to all ways in Case No. 647" throughout the course of their development of the Tobey Tract. Id. See also id. at 738 (noting that the trial judge in Hickey I had divided the defendants into three groups, the first two of which held either "certificates [of title] granting them access over the ways shown in 'all other plans in Land Court Case No. 647'" or certificates "granting them access over all ways shown on the [G Plan]").

23. Luscombe and Morley filed their next subdivision plan, Plan 647J, in 1945. Plan 647J subdivides the eastern portion of Plan 647C's Lot E. Two of the Plan 647J lots have frontage on Cape Cod Bay. Unlike Plans 647B and 647E, Plan 647J does not show a separate beach parcel. Plan 647J also does not create any ways extending to Cape Cod Bay.

24. In 1945, the Town of Dennis took by eminent domain an easement in the unnamed 40-foot way described in ¶ 10 and in Shore Drive west of Bayview Road, including the portion of Shore Drive abutting Lot X and the Way.

25. Lunette Luscombe died in 1947. In 1948, a transfer certificate of title for the unconveyed portions of the Tobey Tract issued in the names of Ruth Morley, Helen Leatherbee (granddaughter of Lunette Luscombe), Louise Luscombe (daughter-in-law of Lunette Luscombe), and Henry J. Ullman, Jr. (grandson of Lunette Luscombe). As a result of various transactions between 1948 and 1955, the unconveyed portions of the Tobey Tract wound up in a trust affiliated with the Luscombe and Morley families, named (like an earlier trust, see ¶ 11 above) the Nobscusset Realty Trust. The purpose of the latter Trust was to "serve as a vehicle for the more expeditious and economical liquidation" of the remaining Tobey Tract lots.

26. As a result of the efforts of Luscombe, Morley and, later, the Nobscusset Realty Trust, the Tobey Tract has been subdivided by Plans 647B through 647Z and Plans 647-1 through 647-18. The only subdivision plans that depict oceanfront lots, however, are Plans 647B through 647G and Plan 647J. Hickey I further observes that Luscombe, Morley, and the Trust intended to grant the owners of those lots "whose certificates contain references to the M Plan or derivative portions of that plan" the same easement rights as those whose certificates contained references to the G Plan. Hickey I, 472 Mass. at 761-765.

The Way, its Use, and its Topography

27. The Defendants' lots vary in their distance to the Way and to the public beach at Bayview Road.

28. The parties who appeared for trial introduced no evidence concerning the Way's topography as it existed in 1936 (at the time of the conveyance of the first lot bordering the Way, Lot J) or in 1944 (the time of the conveyance of the other lot bordering the Way, Lot X), other than what appears on the Case No. 647 Plans. As previously noted, Plans 647D and 647F depict a "top of bank" that lies between 70 and 80 feet from Cape Cod Bay. But that designation doesn't tell the whole story.

29. Where Bayview Road reaches the shore, the coastal bank slopes somewhat gently towards Cape Cod Bay. As one travels east on Shore Drive from Bayview Road, Shore Drive and its abutting properties rise, reaching a high point close to Shore Drive's intersection with the unnamed road described in ¶ 10 above, approximately 500 feet from the Way. The Way meets the top of bank shown on Plans 647D and 647F at an elevation that's 40 feet above sea level. From the top of the coastal bank to the beach, the Way descends sharply.

30. The Court saw nothing on its view that indicates that the Way's height at the top of the coastal bank has increased or decreased since the 1930s, but the condition of the slope from the top of the coastal bank to the beach below has changed since the 1930s. For example, at the time of trial, there was a revetment made of large stones at the base of the slope. The first revetment in that location was built in phases starting in the 1980s. Today's revetment is larger than the original revetment. At high tide at the Way, water now rises two to three feet up the revetment. There's no evidence in the record, however, as to where the current revetment's seaward edge lies relative to the mean high water mark in the 1930s. As of the mid-1970s, there was exposed beach at the Way even at high tide, and at low tide that the beach extended 200 yards. Currently, the beach at the Way is approximately 150 yards long at low tide.

31. The slope of the properties neighboring the Way is so steep that, at the time of trial, several oceanfront lots built stairways that descend from the top of the coastal bank to, or just above, the beach. No one introduced any evidence of stairways on the Way during 1930s or '40s. The only stairway on the Way described at trial was constructed around 1994 and remained there only through 2012. In the 1970s, there were only a handful of users of the Way. As of 1994-1995, with a stairway in place, use of the Way increased sharply. People used the Way not only to reach the Bay, but also to store their belongings, sunbathe, and recreate. Some users of the Way also drank, built bonfires, shot fireworks, and (in many instances) trespassed onto the private beaches of abutting Lots J and X.


The party who claims the benefit of an easement has the burden of proving not only its existence, but also its nature and its extent. See Martin v. Simmons Props., LLC, 467 Mass. 1 , 10 (2014). Hickey I resolved the question of the Way's "existence," and Plans 647D and 647F establish the Way's "extent." This case thus concerns only the "nature" of Defendants' easements over the Way. For four reasons, this Court concludes that Defendants who appeared at trial have not proven that their rights to use the Way include so-called beach rights.

The first reason why Defendants don't prevail is because the documents that give rise to Defendants' easements (which this decision will call the "grants") don't mention beach rights or words that are even close to having that effect. In the wake of Hickey I, it's undisputed that Defendants' rights in the Way arise from grants by Luscombe and Morley. To determine the nature of an easement that arises from a grant, a court must look to

the words used in the [grant], "construed when necessary in the light of the attendant circumstances." 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." "[T]he words themselves remain the most important evidence of intention," but those words may be construed in light of the attendant circumstances, and "the objective circumstances to which [the words refer]." "[T]he grant or reservation [creating an easement] 'must be construed with reference to all its terms and the then existing conditions as far as they are illuminating.'"

Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006) (brackets and emphases in original; citations omitted), quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998); Cook v. Babcock, 61 Mass. (7 Cush.) 526, 528 (1851); Robert Indus., Inc. v. Spence, 362 Mass. 751 , 755 (1973); McLaughlin v. Selectmen of Amherst, 422 Mass. 359 , 364 (1996); and Mugar v. Massachusetts Bay Transp. Auth., 28 Mass. App. Ct. 443 , 444 (1990).

The words of the particular grants to Defendants or their predecessors in interest (see Findings 2, 15, 21-22, 26) don't show that Luscombe and Morley or their successors in interest intended to grant beach rights in the Way. The grants are stated simply and without elaboration: the grantees have merely a "right of way" in various ways, including the Way. Under Massachusetts common law, "the general grant of a right of way without more create[s] only a right of ingress and egress," Nantucket Conservation Found., Inc. v. Russell Mgt., Inc., 380 Mass. 212 , 216 (1980), to which the General Court has added the rights found in G.L. c. 187, §5. See also Busalacchi v. McCabe, 71 Mass. App. Ct. 493 , 496 (2008) ("A right of way provides rights of ingress, egress, and travel over the land subject to the easement."). Unlike the grants or reservations in cases where courts have found express or implied grants of beach rights, [Note 1] Defendants' grants don't use the word "beach," nor do they describe the grant's purpose. (Even if the grants had used the word "beach," or mentioned beach purposes, that wouldn't be decisive. See Houghton v. Johnson, 71 Mass. App. Ct. 825 , 834-835 (2008), where the fact that two of thirteen grants to use a right of way described the way as "to the beach" didn't compel a conclusion that the grantor intended to grant beach rights.) The omission of any mention of beaches in the Defendants' original grants of easement rights is strong evidence that Luscombe and Morley didn't intend to give Defendants beach rights.

Three of the Defendants, the Allentoffs, argue that the very generality of Luscombe and Morley's easement grants creates by implication "every right necessary for its enjoyment," citing Sullivan v. Donohoe, 287 Mass. 265 , 267 (1934). In Sullivan, the Donohoes had an easement by grant through a tunnel that separated their property from that of another grantee of the easement, John Sullivan. The walls of the Donohoe and Sullivan buildings served as the tunnel's side walls. Their easement obligated them to maintain the passage at equal expense to both.

In 1933, Sullivan tore down his building, but he left intact the top wall of the tunnel (which supported what had been a party wall between the Donohoe and Sullivan buildings) and the wall of the tunnel on its "Sullivan" side. The resulting structure was dangerous, and soon city officials condemned the "Sullivan" side wall, ordering that it be replaced with a thicker wall. The Donohoes asked Sullivan to help pay for the new wall, but he refused.

In order to comply with the city's order, the Donohoes had to choose between building a wall that encroached four inches into the tunnel's passageway (thereby reducing the Donohoes' enjoyment of the passageway) or four inches onto Sullivan's property. The Donohoes opted for the latter. Sullivan sued to enjoin the Donohoes from doing that. The Supreme Judicial Court ruled that the Donohoes had the right to have Sullivan maintain the party and side walls of the tunnel, and owed Sullivan no duty to "diminish their easement" in the tunnel once the city had ordered replacement of the Sullivan side wall. It's in that context that the Sullivan court stated: "The [Donohoes], having a right to the wall, had a right to use the few additional inches of [Sullivan's] land which were necessary to [the] enjoyment of that right. When an easement or other property right is created, every right necessary for its enjoyment is included by implication." Id. at 266.

The Allentoffs treat Sullivan as holding that within every grant of an easement there's an implied right, held by the owner of the dominant estate, to "enjoy" the easement however the dominant owner sees fit. Sullivan can't be stretched that far. Instead, the implied rights Sullivan declares are only those that the dominant owner needs in order to use the granted easement for its intended purpose. See also Ampagoomian v. Atamian, 323 Mass. 319 , 322 (1948) (construing common law prior to enactment of G.L. c. 187, §5; grant of "right of way" in "driveway" did not include right to lay underground gas pipes beneath the driveway, as "it cannot be said that the laying of gas pipes beneath the driveway was necessary to the enjoyment of the plaintiff's right of passage over it"). In this case, Defendants have established only one intended purpose for the Way: providing "ingress, egress, and travel" between Cape Cod Bay and Shore Drive. Busalacchi, 71 Mass. App. Ct. at 496. One doesn't need the privilege to place a beach chair in, recline in, bask in, suntan in, play in, dig sandcastles in, drink in, or dine in a travelled way when that way's sole purpose is to permit access from one point to another.

The second reason why Defendants' beach-rights claims fail is because it's undisputed that, prior to granting easements to any of the Defendants' predecessors in interest, Luscombe and Morley knew how to grant beach rights. They had done so in 1917 when, in connection with creating the Plan 647B subdivision, they carved out a beach lot and established ways to reach that lot. See Loiselle, 93 Mass. App. Ct. at 649. Luscombe and Morley didn't do that in the 1930s and '40s, when they created and granted rights in the Way. The contrast between what Luscombe and Morley did in 1917 and what they did decades later is evidence that they didn't intend to grant inland owners beach rights in the Way.

Two other decades-old facts buttress the conclusion that Luscombe and Morley deliberately chose not to grant to Defendants' predecessors in interest beach rights. First, contemporaneously with their efforts to develop the coastal portions of the Tobey Tract that they reacquired in June 1935, Luscombe and Morley were aware of the formation of public Bayview Beach, elsewhere within the Tobey Tract. Luscombe and Morley had created only five new lots between June 1935 and the establishment of Bayview Beach. That Beach possessed several features that would have made its use attractive to Defendants' predecessors in interest: the Beach is large (450 feet by 190 feet); it has two parking lots, both reachable from Shore Drive and Bayview Road; and the bank leading from the parking lots to the beachfront is relatively gentle. By contrast, the Way is narrow (only twenty feet wide); it has no parking; and prior to the 1990s, one could reach the beach within the Way only by clambering down a steep slope. Mr. Allentoff testified that very few people used the Way's beach under those conditions.

The second important fact from the 1930s is that, at the time of their first grant of easement rights in the Way, Luscombe and Morley possessed enough land within the Tobey Tract to create well over 100 additional lots. That fact was apparent not only to Luscombe and Morley, but also anyone who reviewed the plans in Case No. 647 - including Defendants' predecessors in interest. See Hickey I, 472 Mass. at 761 ("A reasonable purchaser, even at the time of the Aldrich conveyance [in 1936,] would have been aware of the progression of development along the waterfront, and the later progression inland."). It would be unreasonable to conclude that Luscombe and Morley intended to grant beach rights to over 100 lot owners, as well as their families and invitees, within a twenty-foot strip of sand that nearly disappears at high tide. See Reagan v. Brissey, 446 Mass. 452 , 458-459 (2006) (land within the bounds of a street, over which plaintiffs had an easement, "insufficient" by itself to permit "enjoyment of [a] lake"); Anderson, 326 Mass. at 134 ("We do not agree with the respondents' contention that the use of the beach should be confined to an area not greater than the [twelve-foot] width of the right of way. . . . A space on the beach no wider than the width of the way would hardly furnish a place adequate for the use and enjoyment of [81] lot owners and their families and guests.").

The third reason why Defendants' beach-rights claims fail is that Defendants provided no evidence that anyone had used the Way for beach purposes prior to 1936, when Luscombe and Morley first granted anyone rights to use the Way. Defendants' evidence of beach uses of the Way dates from the mid-1970s. Thus, even if extrinsic evidence were admissible in order to establish the scope of Defendants' rights in the Way, see Pion v. Dwight, 11 Mass. App. Ct. 406 , 411-412 (1981) (extrinsic evidence postdating the grant of an easement is admissible to determine the easement's scope only if the terms of the grant are ambiguous), evidence of the Way's use that dates from more than 40 years after Luscombe and Morley first granted easements over the Way sheds no light on their intentions. See Oldfield v. Smith, 304 Mass. 590 , 600 (1939).

Lastly, Luscombe and Morley's grants of rights to use the Way for access to Cape Cod Bay were valuable to Defendants' predecessors in interest, even if those grants didn't include beach rights. Under the Colonial Ordinance of 1641-1647, members of the public have the right to use tidal flats between mean high tide and mean low tide, but only for the purposes of "fishing, fowling, and navigation." Opinion of the Justices to the House of Representatives, 365 Mass. 681 , 685 (1974). Unlike the courts of other jurisdictions, the courts of the Commonwealth construe coastal public-trust rights strictly. Compare id. at 687-688 with Matthews v. Bay Head Improvement Ass'n, 95 N.J. 306, 316-322, 471 A.2d 355, 360-363 (1984). Prior to 1936, the date of Luscombe and Morley's earliest grants of easement rights in the Way, the public's Colonial Ordinance rights included the power to pass over flats on boats or vessels "whilst the tide is up," Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 74 (1851); the right to "swim or float in or upon public waters," Butler v. Attorney Gen., 195 Mass. 79 , 83 (1907) (emphasis added); and the right to dig for clams in the tidal flats when the tide was out, see Weston v. Sampson, 62 Mass. (8 Cush.) 347, 355 (1851). But those rights didn't include, for example, the power to use exposed flats for sunbathing (see Butler, 195 Mass. at 83-84) or the right to pass over private property above the mean high-water mark in order to reach tidelands (see Old Colony St. Ry. v. Phillips, 207 Mass. 174 , 180 (1911); Slater v. Gunn, 170 Mass. 509 , 515 (1898)).

By acquiring easements over the Way to the waters of Cape Cod Bay, Defendants' predecessors in title received rights superior to those of the general public. See Loiselle, 93 Mass. App. Ct. at 652; see also Old Colony, 207 Mass. at 180 (grant of "a privilege or passage way from said Creek into Town River" affords rights beyond those held by the public in tidal flats); Sheftel, 44 Mass. App. Ct. at 183 (grant of easement in twenty-foot right of way extending across shoreline property to its mean high-water line "essential in order to make [perpendicular] access [to coastal public-trust area] lawful"). Declaring that those rights don't include beach privileges still leaves Defendants with something valuable.

For the foregoing reasons, the Court will enter judgment in favor of the Hickeys, and against all of the appearing defendants except WSOA and the Homas, on Count I of the Hickeys' Amended Complaint (which seeks a declaration that defendants have a right to use the Way only to gain access to the waters of Cape Cod Bay) and on Count II of that complaint (which seeks a permanent injunction against all of the defendants, their guests and renters from using the Way for any purpose other than to gain access to the waters of Cape Cod Bay). The Court will further enter judgment in favor of the Hickeys, and against the Allentoffs, on the Allentoffs' counterclaims for (a) a declaration that they may use the Way for normal beach purposes and (b) a permanent injunction preventing interference with the Allentoffs' use of the Way for normal beach purposes.

There are two things, however, that the final judgment for the Hickeys won't do. First, the judgment won't declare that WSOA's rights to use the Way are limited. That's because it's undisputed that WSOA, like the Hickeys themselves, is a co-owner of the fee beneath the Way. The Hickeys offered no evidence at trial that WSOA's rights to use the Way are restricted in any manner. Judgment thus will enter in WSOA's favor, and against the Hickeys, on the Hickeys' claims in their Amended Complaint.

Second, in their Amended Complaint, the Hickeys sought a declaration that defendants' easement rights were limited to travel "on foot." The parties' Joint Pretrial Memorandum, however, didn't raise the issue of whether defendants' rights are limited to pedestrian uses. The Court's July 1, 2019 Order in Advance of Trial stated that "[b]ased on what the parties disclosed in their Joint Pretrial Memorandum, the sole issue to be tried is whether the Defendants have the right to use the Right of Way for any purpose other than to gain access to Cape Cod Bay." Accordingly, the Court deems the Hickeys to have waived their claim to a declaration that defendants' easement rights are limited to travel by foot. See Rule 16, Mass. R. Civ. P. (trial court may enter an order limiting the issues for trial; "such order when entered controls the subsequent course of the action, unless modified at trial to prevent manifest injustice").

All of this leaves the Court with one loose end. As this Decision noted earlier, there are eight Defaulted Defendants. The Hickeys have not moved for entry of a default judgment against them. Accordingly, this Court ORDERS the Hickeys to file by January 22, 2020 a suitable motion under Rule 55(b), Mass. R. Civ. P., as to the Defaulted Defendants. The Court will set that motion for hearing promptly.



[Note 1] See, for example, Hewitt v. Perry, 309 Mass. 100 , 101 (1941) (grant of "a right of way for all purposes over the streets and ways indicated on said plan, and together with the right to use so much of the beach on Plum Island shown on said plan as is owned by the [grantor] for the purpose of boating, bathing, fishing and other recreation"); Anderson v. De Vries, 326 Mass. 127 , 130 (1950) (grant of "a right of way to the beach over the way shown on said plan as Beaton Road"); Labounty v. Vickers, 352 Mass. 337 (1967) (reservation by grantor of "a right of way . . . next adjoining the south line thereof to and from Lee's River and shore thereof, with the right to bathe there"); Murphy v. Olsen, 63 Mass. App. Ct. 417 , 419 (2005) (reserving way to the "beach"); Denardo v. Bosworth, 20 LCR 344 , 353 (2012) (grant included right "in common with . . . others . . . for which . . . beaches are commonly used in the Town of Sandwich"); Walraven v. Santos, 19 LCR 446 (2011) (grant of "right of way in common with others . . . to the beach").