ROBERT CLEVELAND, et al. v. JAMES STINSON as trustee of the MBP Nominee Trust and THE MOORING RENTALS LLC and BRUCE CLEVERLY and SUSAN FEIT as trustees of the AUGUSTUS SNOW HOUSE CONDOMINIUM TRUST, et al.

Introduction

This case concerns the ownership and use of two oceanfront beach lots at the end of Pilgrim Road in Harwichport. The plaintiffs [Note 1] and a number of the third-party defendants [Note 2] are owners of lots in the Pilgrim Park subdivision along that road, with deeded easement rights to the beach. The defendants [Note 3] and the remaining third-party defendants [Note 4] are the owners of undivided fractional fee interests in the beach, either by inheritance from the original subdivision developers or direct purchase of the inherited interest of such heirs.

The case presents three issues. The first is the ownership of the beach lots: was that ownership retained by the subdivision developers or, by "derelict fee," acquired by the owners of the subdivision lots directly bordering the beach lots? The second is the nature of the subdivision lot owners' easement rights in the beach: were they exclusive (only those owners could use the beach), or non-exclusive (the subdivision developers could continue to use the beach themselves, and convey non-exclusive rights to such use to others)? The third is this: if the subdivision developers retained fee ownership of the beach lots, and if the easements they granted to the subdivision lot owners were not "exclusive," is the use of the beach by guests staying at the Mooring House on Pilgrim Road, owned by defendant Mooring Rentals LLC (a successor-in-title to some of the subdivision developers' undivided fee interests in the beach), [Note 5] an unreasonable interference with the subdivision lot owners' easement rights in the beach just because it is a "commercial" use?

The case was bifurcated, with the first and second issues tried before me in a case-stated trial which allowed me to draw inferences from the parties' factual submissions. [Note 6] After those issues were ruled upon, [Note 7] the third issue was tried before me, again on a case stated basis. In addition, I also took a view. [Note 8] For the reasons set forth below, I find and rule as follows.

Facts

As noted above, at issue is the ownership and use of two oceanfront beach lots in Harwichport located at the end of Pilgrim Road adjacent to the Pilgrim Park subdivision. The history of the subdivision began when Biddle Thompson acquired the land in 1923. Shortly thereafter, he deeded undivided 25% interests to Ralph Gorham, W. Sears Nickerson, and Ralph Snow, while retaining a 25% interest for himself. The four of them (hereafter, "the subdivision developers") then subdivided the property into eighteen lots.

Sixteen of those lots (the "residential lots") were intended for residential use - eight on one side of Pilgrim Road and eight on the other - and were each given lot numbers on the subdivision plan. The two that border the beach lots are Lot 1 and Lot 16. Lot 1 (on the east side of Pilgrim Road) is currently owned by third-party defendants Robert and Helen Tresca as trustees of the Pilgrim Realty Trust. Lot 16 (on the west side of the road) is currently owned by plaintiffs Rudolph and Robin Hernandez.

The other two lots in the subdivision (the "beach lots") were of the beach itself. Those too were shown on the subdivision plan, but were not given lot numbers. One of those lots abuts residential Lot 1, and the other abuts residential Lot 16.

The sixteen residential lots in the subdivision were advertised as part of a neighborhood with "deed rights to the beach," and each of their deeds reflected that it gave the "grantees and their heirs and assigns the use of the reserved part of the beach as shown on said plan." There were no conveyances of the beach lots during the lives of the developers. To the contrary, in a clear indication that they still retained ownership of the beach, the developers granted an easement over the beach lots long after the last numbered residential lot had been conveyed. [Note 9]

The current owners of the residential subdivision lots are members of the Pilgrim Road Association, which (by their assent) oversees their use of the beach. [Note 10]

The Augustus Snow House, located at 528 Main Street in Harwichport - near, but not on, Pilgrim Road - was never part of the Pilgrim Park subdivision. Rather, it was owned individually by Ralph Snow. In 1986, Mr. Snow's granddaughter conveyed (1) the Augustus Snow House, and (2) "any interest in the two beach lots abutting Lots 1 and 16, shown on a plan entitled 'Pilgrim Park, Harwich Port., Mass., April 23, 1923"[,] . . that may be outstanding in the Estate of Ralph B. Snow," to Anne M. Geuss and Gregory Y. Winston as Trustees of the Landing Realty Trust. [Note 11] Ms. Geuss and Mr. Winston, in turn, conveyed the Landing Realty Trust's interest to Ms. Geuss as Trustee of AMG Realty Trust. Ms. Geuss then conveyed the AMG Realty Trust's interest in the beach lots to the Roths, who conveyed their interest to themselves as trustees of the 528 Main Street Nominee Trust in 2000. In 2007, the Roths, as Trustees of the 528 Main Street Nominee Trust, created the Augustus Snow House Condominium. Third-party defendants Bruce Cleverly and Susan Feit are the current trustees of the condominium trust. Appurtenant to the condominium is a "one-quarter interest in common with others to two (2) beach lots abutting Lots 1 and 16" shown on the Pilgrim Park Plan. [Note 12]

Third-party defendants Jordan Bernstein and Michelle Crepeau own a unit in the Augustus Snow House Condominium and thus have that share of the fee in the beach lots. By direct purchase, they also have an additional undivided fractional fee interest in the beach lots which they acquired from an heir of Biddle Thompson. They also own the single-family residence located at 46 Pilgrim Road. Although this house is located on Pilgrim Road and Mr. Bernstein and Ms. Crepeau are members of the Pilgrim Road Association, it is not one of the sixteen subdivision lots which have deeded easement rights and thus has no easement rights of its own. [Note 13] Whatever use the residents of this house can make of the beach thus derives solely from Mr. Bernstein's and Ms. Crepeau's fractional fee ownership in the beach.

The Mooring House, owned by The Mooring Rentals LLC, is a six-bedroom house at the corner of Pilgrim Road and Main Street, which has been converted into a rental property. It is always rented as a single unit, i.e. the entire house is rented, not (like inns or "bed and breakfasts") individual rooms within the house. Its owners (Mooring Rentals and the MBP Trust) requested permission to join the Pilgrim Road Association and for the guests staying at the Mooring House to use the beach. [Note 14] The Association denied that request [Note 15] and, in response, the MBP Trust acquired the following fee interest in the beach. In February 2015, by five deeds, all of the "right title and interest in the two beach lots abutting Lots 1 and 16" of two of the original subdivision developers (Mr. Nickerson and Mr. Gorham) were conveyed by their heirs to the MBP Trust. [Note 16] In February 2015, The Mooring Rentals LLC also acquired the interest in those lots that was held by another of Biddle Thompson's heirs. [Note 17] Since 2015, guests at the Mooring House have been using the beach lots under a claim of right.

Further facts are included in the Discussion section below.

Discussion

The Subdivision Developers Retained Their Fee Interests in the Beach Lots

As previously ruled, I find that the subdivision developers each held a one-quarter undivided interest in the fee in the beach lots at the time they created the Pilgrim Park subdivision, and that they retained those interests and did not lose them to the adjacent residential lots (Lots 1 and 16) by operation of the Derelict Fee statute, G.L.c. 183, §58. My finding is based on an analysis of the underlying deeds.

In interpreting deeds, the meaning is to be presumed from the intent of the grantor, which 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). "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. (internal citations and quotations omitted). "All terms of description in conveyancing must be construed according to their natural force and effect in the use of language, and especially as applied to the subject matter in regard to which they are used." Doane v. Willcut, 71 Mass. 328 , 335 (1855). "When words are used in a grant, which have a clear and definite meaning, they are not to be restrained by conjectures, or by other words, the meaning of which cannot be clearly ascertained." Rust v. Boston Mill Corp., 23 Mass. 158 , 170 (1828). In short, deeds are construed according to their language, and only when necessary to resolve ambiguity does a court look beyond that language to extrinsic evidence. There is no such need here.

The deeds conveying Lots 1 and 16 did not include the beach lots. They were conveyed by descriptions with exact measurements, areas, and referencing specific lot numbers as shown on the subdivision plan. [Note 18] For Lot 1, that description was:

On the North by Lot #2 on said plan one hundred and 5/10 (100.50) feet; on the East by land of the Heirs of Clara K. Clark one hundred (100) feet; on the South by the beach land reserved for the benefit of all lots at Pilgrim park one hundred (100) feet; and on the West by Pilgrim Park Road one hundred (100) feet, containing 10,025 square feet. [Note 19]

For Lot 16, it was:

On the North by Lot #15 on said plan one hundred (100) feet; on the East by Pilgrim Park Road one hundred (100) feet; on the South by the beach land reserved for the benefit of all other lots at Pilgrim Park one hundred (100) feet[;] and on the West by the land of George L. Weekes, Trustee one hundred (100) feet; containing 10,000 square feet. [Note 20]

There is no ambiguity in those descriptions. The deeds refer to the specific lot numbers on the recorded Pilgrim Park plan, and they also contain specific courses and distances for each of the boundaries of the lots. Further, the deeds state the area of the lots, and those areas include only the area of the lots as they are shown on the plan, not any area within the beach lots. Each of those deeds also references "reserved" beach land for the benefit of all lots in the Pilgrim Park subdivision. Indeed, all of the conveyances of the subdivision lots grant use of the "reserved part of the beach" as shown on the Pilgrim Park Plan (emphasis added), which evidence the developers' retention of the fee in that beach not only by the use of the word "reserved" to describe it, but also by the fact that rights to use the beach could only be granted by the owners of the beach. The subdivision developers would not have granted such rights if they thought they had previously conveyed the beach lots to others. [Note 21]

If any further proof of the developers' intent to retain the beach lots is needed, it came in 1936, nearly nine years after the last of the subdivision lots was conveyed, [Note 22] when they granted an easement to the Town of Harwich to "lay, maintain, operate, repair and/or renew, and remove a water main and service pipes through and over the reserved portion of Pilgrim Park as shown on the subdivision plan recorded at the Registry in Plan Book 10, Page 123." [Note 23] They would not have granted such an easement, nor thought that they needed to, if they no longer owned the beach.

None of the "extrinsic" evidence cited by the plaintiffs contradicts this clear intent, and their argument that the fee interests in the beach lots were conveyed with the deeds for lots 1 and 16 by the provisions of G.L. c. 183 §58, the Derelict Fee statute, also fails.

The Derelict Fee statute states that:

Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument. . . or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.

G.L.c. 183, §58.

Quite apart from the fact that the deeds of Lots 1 and 16 specifically noted that the developers had reserved ownership of the beach lots (their grant of the easement was in the "reserved" beach land), the Derelict Fee statute simply doesn't apply because the beach lots are not a "way['] . . . watercourse, wall, fence or similar linear monument." Id. They are not a way. They are not a watercourse (to the contrary, the beach lots are land [beach], with the water [the ocean] on their other side). And they are not a "wall, fence or similar linear monument" because they are not linear, defined in the dictionary as "(1) "of, relating to, resembling, or having a graph that is a line and especially a straight line[; and] (2) involving a single dimension." [Note 24] To the contrary, they are rectangular parcels of land with an area, defined on the subdivision plan by four boundaries with distances between them.

The Plaintiffs Do Not Have an Exclusive Easement in the Beach Lots

Under Massachusetts law, "exclusive easements should be clearly expressed . . . [The] servient owner retains the use of his land for all purposes except such as are inconsistent with the right granted to the dominant owner . . . [and] doubts are to be resolved in favor of freedom of land from servitude." Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967) (internal citations and quotations omitted).

The deeds granting the subdivision owners the right to use the beach say nothing about exclusivity. The word "exclusive" is never used at all. All the easement language says, in each deed individually, is that the grant gives the "grantees and their heirs and assigns the use of the reserved part of the beach as shown on said plan." No limitation is placed on the use of the beach by other lots to which the grantors might deed rights, or on use by the grantors themselves. [Note 25] Nor, given that the grantors both (1) retained ownership of the beach in themselves - a clear indication that they, themselves, intended to use it -, and (2) owned other nearby property which would also want to use the beach (Mr. Snow's house, now the Augustus Snow House Condominiums, for example), can such limitations reasonably be inferred. Moreover, to the extent "attendant circumstances" are relevant, I have viewed the beach, and it is large enough easily to accommodate more than the number of persons who would inhabit the sixteen residential lots in the subdivision. The plaintiffs point to the advertisements that said, "[e]very lot has a view of the ocean with deed rights to the beach." But all this shows is that the developers intended to provide the residential subdivision lot owners with the right to use the beach (which they did), not that those rights would be exclusive.

The Use of the Beach by the Overnight Guests at the Mooring House Does Not Unreasonably Interfere with the Residential Subdivision Lot Owners' Easement Rights

As their final argument, made as an alternative to the arguments discussed above, the plaintiffs (residential subdivision lot owners) argue that the use of the beach by guests staying at the Mooring House unreasonably interferes with the plaintiffs' beach easement or, phrased differently, overburdens it, because such a "commercial" use is beyond the intended scope of the beach's use. To analyze this contention, it is important to focus on the exact argument the plaintiffs make. As they stipulated, they do not challenge the Augustus Snow House Condominium's use of the beach lots, whether by the condominium owners themselves or the renters of those condominiums. [Note 26] They do not challenge the use of the beach lots by their own renters (several of the residential subdivision lot owners rent their houses to tenants during parts of the summer, and these tenants regularly use the beach). They do not challenge the use of the beach lots by the owners of the Mooring House. [Note 27] And they do not base their challenge on the numbers of Mooring House guests that might use the beach. Rather, theirs' is solely a challenge to the use of the beach by the type of guests that stay at the Mooring House - guests that may stay for only a few nights and then be followed by a different group of guests staying only a few nights, and so on and so on. See Docket Entry (May 21, 2019) (reflecting stipulations at the pre-trial conference). In short, their objection is to "high-turnover" - type guests — ones with less of a continuing connection to the beach, with less motivation to behave, and who (they fear) will thus change the culture of the beach.

I start with the nature of the rights in question. The Mooring House owners are fee owners in the servient estate (the beach lots). The subdivision lot owners each have an easement right to use those beach lots. An owner of property burdened by an easement "may not use his land in a way that will interfere with the easement owner's right of use," i.e. "in a way that would lead to a material increase in the cost or inconvenience to the easement holder's exercise of his rights." Texon, Inc. v. Holyoke Mach. Co., 8 Mass. App. Ct. 363 , 365-366 (1979). But the owner may make every other use of his or her land, and the test for whether that use materially interferes with the rights of an easement holder is one of reasonableness. See Martin v. Simmons Properties, 467 Mass. 1 , 9 (2014) (the "transferor of the easement . . . retains the right to make all uses of the land that do not unreasonably interfere with exercise of the rights granted by the servitude"); W. Mass. Elec. Co. v. Sambo's of Mass., Inc., 8 Mass. App. Ct. 815 , 816, 825 (1979). Thus, I assess whether the use of the beach lots by guests staying at the Mooring House interferes with the subdivision owners' easement rights in a way that leads to a material increase in their cost or inconvenience. I find and rule that it does not. I also assess whether it changes the nature of the beach use beyond what reasonably would have been contemplated at the time of the easement's creation. Again, I find and rule that it does not.

First, the Mooring House is zoning compliant and operates exactly like the subdivision lot owners who rent their homes, i.e. a single-family house rented as a single unit. [Note 28] It is thus well-within the range of what would reasonably have been contemplated at the time of the easement grants.

Second, rentals are nothing new on Cape Cod, particularly of properties near the beach. They were thus certainly within the contemplation of the parties at the time the beach easements were granted. Indeed, as just noted, several of the subdivision lot owners themselves rent their properties to paying guests, for varying lengths of time. No objection has been made to those renters' use of the beach, and they are every bit as "commercial" as the Mooring House guests. [Note 29] Indeed, the plaintiffs' rentals are made in exactly the same way as the Mooring House - a rental of the entire house, not individual rooms. As the Mooring House rental agreements show (55 such agreements, covering the period between 2015 and 2019), all have been for the entire house. None have been for individual rooms. The typical rental of the Mooring House is for a long weekend or an entire week. And the types of guests that stay at the Mooring House are likely indistinguishable from the types of people who rent the plaintiffs' houses. There are no restrictions on who the plaintiffs can rent to. These can be families, but they can also be groups of friends or even wedding parties, just as at the Mooring House.

The plaintiffs' objection to the use of the beach by guests staying at the Mooring House is not based on their likely numbers, nor would such an objection be well founded. I took a view of the beach, and if the Mooring's use of the beach is confined to the maximum allowable overnight occupancy of the property (12 in total - 6 bedrooms, 2 adults per room), the beach is more than large enough to accommodate them without interfering with the subdivision owners' sunbathing, swimming, beach games, and other activities.

The Mooring House rental agreements specify that the "maximum number of guests staying overnight on the [p]roperty is limited to twelve (12) persons." (Tr. Ex. Z). So far as the record shows, this has not been exceeded. In addition, the agreements provide that "[a]t no time shall more than twenty-four (24) persons be present on the [p]roperty, including during parties or events held by [t]enant on the [p]roperty, without [o]wner's prior written consent." Such consent has been given on a number of occasions. [Note 30] The plaintiffs, quite properly, object to the event attendees' use of the beach, and I find that such use would unreasonably interfere with the subdivision lot owners' easement. Having groups that large descend on the beach, en masse, is far beyond what would reasonably have been contemplated when the plaintiffs' easements were granted. The Mooring House, however, does not seek the allowance of such use, nor would it be a natural consequence of those events. Guests attending a wedding reception or a non-profit fundraiser do not come in their swimsuits or beach clothes.

The rules of the Mooring House, to which its renters must agree, state clearly that the property is located in "a very quiet neighborhood," and that the town has a "strict noise ordinance" where outdoor music must be turned down by 10:30 p.m. [Note 31] The guests staying at the House thus know before they arrive that their behavior must comply with a "very quiet neighborhood" and that there are noise ordinances. The Mooring House is also a "high end" property, expensively finished and decorated, targeted at weddings and family gatherings, and not cheap to rent. Thus, it is not likely to attract guests seeking a rowdy time, and there was no evidence that it has done so.

The only evidence of actual behavior interfering with the enjoyment of the easement holders was a single email complaining that Mooring House guests "play[ed] loud music while on the beach and . . . play[ed] boisterous games." [Note 32] See Tr. Ex. CC. But this appears to have been a single instance, very much an aberration, and just as likely to occur with the subdivision lot owners' own renters. The Mooring House very much wants to be a good neighbor, and I credit their testimony that they will take appropriate measures if their guests' behavior results in problems at the beach.

Conditions Imposed on the Mooring House's Use of the Beach Area

In Texon, Inc., the court found that the "owner of property burdened by an easement whose use of that property impairs the rights of the holder of the easement may be . . . required to take measures at his expense to accommodate the easement holder's right of use." 8 Mass. App. Ct. at 366. Thus, the court can require the Mooring House to take measures to mitigate the effects of its use of the beach on the subdivision lot owners' easement rights, and I do so. Balancing their respective rights, I find the following to be a reasonable and necessary condition for the use of the beach by the Mooring House.

The Mooring House has six bedrooms, with a total overnight occupancy limit of twelve (two persons per room). There may thus be up to twelve users of the beach per rental, which shall be regulated as follows. Each rental agreement must list the names of all of the persons who will be occupying the Mooring House during the rental. [Note 33] If the number of occupants will be fewer than twelve, and the renter wishes to have certain visitors also use the beach up to a total maximum number (occupants plus visitors) of twelve, the rental agreement must also list the names of those persons as well. Each person so listed, up to a maximum of twelve, shall be given an individual "beach pass" by the Mooring House that (1) has their name on it, (2) identifies them as being at the Mooring House, and (3) gives the dates of the rental. Those are the only dates those individuals may use the beach, and there shall be no overlap with the next group. [Note 34] Having the individuals' names on individual passes, along with the dates of the rental, easily identifies authorized users and the dates of their authorized use, and thus easily resolves disputes. A designated member of the Pilgrim Road Association may ask to see those passes to verify that the individual using the beach has such a pass and is there on an authorized date, if they are not so authorized or do not produce such a pass, to require that person to leave.

Conclusion

For the reasons set forth above, I find and rule that the subdivision developers retained the fee interest in the beach lots and that the owners of residential Lots 1 and 16 do not own them pursuant to the Derelict Fee statute, G.L. c. 183, §58, or otherwise. I further find and rule that the owners of the residential subdivision lots, Lots 1-16, have only a non-exclusive easement to use the beach lots and that the subdivision developers and their successors-in-title, including those with only fractional interests, retained the right to use the beach themselves and to grant non-exclusive easement rights to others so long as there was no material interference with the subdivision lot owners' easement rights.

The parties agreed that the owners and renters of the Augustus Snow House condominiums may use the beach lots, and that agreement shall be incorporated into the Judgment in this case.

The parties further agreed that renters of the sixteen residential subdivision lots may use the beach lots, and that too shall be incorporated into the Judgment.

On the specific question of whether the use of the beach by overnight registered guests and their visitors at the Mooring House, up to a maximum of twelve, is an interference with the residential subdivision owners' easement rights, I find and rule that it is not, so long as the conditions set forth above are followed. Any other use of the beach by the Mooring House, its guests, visitors, or event-attendees, is prohibited.

Judgment shall enter accordingly.

SO ORDERED.