By virtue of the instant action, initiated pursuant to G.L. c. 231A, the plaintiffs seek, inter alia, a declaration that they have (1) express or implied easements to reach Nantucket Sound over a strip of land in Harwichport (the Private Way); [Note 1] (2) express or implied easements to use the beach area in front of the full width of the defendants properties, outside the bounds of the Private Way; and (3) record title to the portion of beach between mean low tide and mean high tide (tidal flats) in front of one of the defendants properties. [Note 2]
The subject properties are located in the Braddock Street neighborhood of Harwichport. The defendants properties are located along the beachfront and the plaintiffs properties are located inland. The Private Way is approximately 40 feet wide and 300 feet long, running north-south between the defendants properties. It contains a sandy walking path leading from the southwest corner of Braddock Street to the beach and Nantucket Sound.
The plaintiffs claim to hold express easements to travel over the Private Way, based on language in the deeds of title to their properties, allowing them to access the beach. Alternatively, the plaintiffs claim implied easements to access the beach over the Private Way and to use the beach area, based on their status as inland lot owners. This claim is premised on a theory that the common landowner, one Braddock G. Phillips, originally subdivided the neighborhood with the intention that the Private Way provide all lot owners with beach access. Lastly, the plaintiffs claim ownership to the tidal flats in front of defendant Hymans property predicated upon the theory that Braddock Phillips reserved title to the said flats from the conveyance to Hymans predecessor-in-title. The defendants, for their part, dispute the plaintiffs claims to rights in the beach area in front of their respective properties.
A three-day trial was held at which a stenographer was sworn to take the testimony of Charles L. Rowley, Marlyn G. Harman-Ashley Reynolds, Theodore Small, Bonnie M. Davis Hall, Mary Cornelia Carroll, Helen McCaffery, Naomi P. Gledhill, Heather Walker, and David J. Van Iderstine. The 342 exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal.
On all the testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find as follows:
1. In the nineteenth century, Braddock G. Phillips acquired a large tract of land situated to the west of Lower Bank Street in Harwichport, which he passed by will to his son, also named Braddock G. Phillips (Braddock). During his lifetime, the younger Braddock conveyed individual parcels from the tract to various purchasers, including to the predecessors-in-title of the plaintiffs and the defendants. No subdivision plan of the tract was ever recorded by either Phillips, or referenced in any recorded instruments.
Upon his death, Braddock named his daughter, Agnes M. Chase, as trustee under his will. In that capacity, Agnes conveyed Braddocks remaining estate to his son, Earle W. Phillips (Earle), by a deed dated May 7, 1937 (the Phillips Estate Deed). [Note 3] Neither Agnes nor Earle ever recorded a subdivision plan or referenced one in any instrument.
2. On the tract today is a residential neighborhood accessed by Braddock Street, a C-shaped road containing an upper and a lower east-west section connected by a north-south vertical section. The lower east-west section is also known as Braddock Lane. The Town of Harwich laid out Braddock Street as a public way in January of 1951. [Note 4] The entire Braddock Street neighborhood is located to the west of Lower Bank Street. At the bottom of Bank Street is a public beach. [Note 5]
A map of the tract was prepared in anticipation of this litigation by the plaintiffs expert witness Charles L. Rowley (the Rowley Lot Map). [Note 6] The Rowley map depicts forty-three parcels along Braddock Street, numbered chronologically commencing with the date of the earliest conveyance. [Note 7] They include (a) twenty-four parcels conveyed by Braddock in twenty-two deeds between 1895 and 1926, (b) three parcels conveyed by Agnes between 1932 and 1937 as trustee under the Braddocks will and (c) sixteen parcels conveyed by Earle between 1937 and 1950.
3. The plaintiffs, who own four inland parcels located on Braddock Street are able to trace their respective titles back to the Phillips Estate Deed.
The said plaintiffs acquired title to their parcels in the following manner:
Plaintiffs Marlyn G. Harman-Ashley Reynolds and Joan E. Harman-Ashley Huber (Reynolds & Huber) hold title, as tenants in common, to the property located at 20 Braddock Street (the Reynolds parcel). [Note 8] In 1937, Earle conveyed the Reynolds parcel to Helen Harman-Ashley. [Note 9] In 1954, Helen Harman-Ashley executed a trust granting the parcel to Cape Cod Trust Co. and John Harman-Ashley, as Trustees. [Note 10] In 1967, the Cape Cod Bank and Trust Co. (formerly the Cape Cod Trust Co.) authorized the sale of the parcel to John Harman-Ashley, [Note 11] who passed the parcel to his wife Marion K. Harman-Ashley under his will. [Note 12] Marion K. Harman-Ashley conveyed the parcel to plaintiffs Reynolds and Huber, as tenants in common, in 1982. [Note 13]
Plaintiffs Alfred J. and Heather R. Walker (Walker) hold title to the property located at 30 Braddock Street (the Walker parcel). [Note 14] In 1946, Earle conveyed the Walker parcel to Arthur B. & Katherine W. Cowdery. [Note 15] The Cowderys then conveyed the parcel to Mabel J. Brigham in 1948. [Note 16] Brigham conveyed the parcel to Arthur J. & Helen B. DElia in 1961. [Note 17] The DElias, in turn, conveyed the parcel to Henry B. & Alice W. Ahlberg, as tenants by the entirety, in 1964. [Note 18] Finally, Henry B. Ahlberg conveyed the parcel to the plaintiffs Walker, as tenants by the entirety, in 1999. [Note 19]
Plaintiff Cornelia R. Carroll (Carroll) owns the property located at 42 Braddock Street (the Carroll parcel). [Note 20] In 1950, Earle conveyed the Carroll parcel to Dorothy W. Van Buskirk, [Note 21] who registered same in 1953. [Note 22] In 1960, Van Buskirk created a trust naming Francis L. Van Buskirk as trustee, and conveyed the parcel under the trust. [Note 23] In 1964, Fred M. MacGregor acquired the parcel. [Note 24] In 1970, Daniel B. and Cornelia R. Carroll acquired the parcel. [Note 25] Finally, in 1986, plaintiff Carroll acquired title to the parcel. [Note 26]
Plaintiff Naomi P. Gledhill (Gledhill) owns the property located at 25 Braddock Street (the Gledhill parcel). [Note 27] In 1947, Earle conveyed the Gledhill parcel to Arthur W. and Mildred E. Bloom. [Note 28] The Blooms conveyed the parcel to Mary L. Perry in 1949. [Note 29] Perry conveyed the parcel to Harold W. and Margaret T. Frohne, as tenants by the entirety, in 1950. [Note 30] Henry Frohne conveyed the parcel to Harold F. Corey in 1954. [Note 31] Upon Harolds passing, the parcel passed under his will to his wife, Margaret H. Corey. [Note 32] In 1979, Margaret H. Corey conveyed the parcel to the plaintiff Naomi P. Gledhill. [Note 33]
4. Defendant Beth A. Hyman (Hyman), as trustee of 11 Braddock Lane, Harwichport Nominee Trust, holds title to the property located at 11 Braddock Lane (the Hyman property). Defendant Hyman came to acquire the property in the following manner. Braddock conveyed a parcel of land to Leila P. Smyser (Smyser) in 1925 consisting of the beachfront portion of the Hyman property. [Note 34] Smyser conveyed the parcel together with two contiguous upland parcels to Helen F. Talbott in 1974. [Note 35] In 1983, Talbott conveyed the property to Clifford J. Wickstrom, as Trustee of Braddock Lane Realty Trust. [Note 36] Wickstrom conveyed the property to William T. DEletto, as Trustee of the Pumpkin Seed Realty Trust, in 1984. [Note 37] DEletto then conveyed the property to Joseph Hyman and Phyllis C. Hyman, as tenants by the entirety, in 1985. [Note 38] For estate planning purposes, Joseph and Phyllis Hyman conveyed the property to Beth A. Hyman (defendant), as Trustee, in 1991. [Note 39]
5. Defendant Martha C. Van Iderstine (Van Iderstine) owns the beachfront property located at 10 Braddock Lane (the Van Iderstine property). The property is located to the east of the Hyman property, across the contested Private Way.
The current Van Iderstine property is comprised of what used to be five separate parcels. Braddock conveyed the first parcel to Emulous Small in 1895; [Note 40] the second to Earle in 1907; [Note 41] and the third to Small in 1910. [Note 42] Small then conveyed his parcels (the first and third) to Thomas H. Nickerson in 1911, [Note 43] who in turn conveyed them to Charles Kroll (Kroll) in 1912. [Note 44] Earle then conveyed his parcel (the second) to Kroll later in 1912. [Note 45] Braddock conveyed the fourth parcel to Kroll in 1914. [Note 46] Finally, Braddock conveyed the fifth parcel to Kroll in 1920. [Note 47] At this point, Kroll had combined the five parcels into one, creating the current Van Iderstine property.
In 1932, Kroll conveyed the unified property to Edward Singsen. [Note 48] Singsen conveyed the property to Frances Kroll and Madeline Thatcher in 1944. [Note 49] Frances Kroll and Thatcher conveyed the property to Helen B. Van Iderstine in 1947. [Note 50] In 1973, the property passed to John I. Van Iderstine through probate. [Note 51] John I. Van Iderstine conveyed the property to John I. and Martha S. Van Iderstine, as tenants by the entirety, in 1988. [Note 52] John I. and Martha S. Van Iderstine conveyed the property to Martha C. Van Iderstine (defendant), individually, in 1999. [Note 53]
6. Between the Hyman property and the Van Iderstine property is the Private Way, a strip of land running from the southwest corner of Braddock Street to Nantucket Sound. The Private Way is approximately 41 feet wide at Braddock Street, but narrows to 21 feet at the sea. [Note 54] A sandy walking path, approximately three feet wide, [Note 55] provides access to the beach and Nantucket Sound. The remaining space within the Private Way is filled by beach vegetation and sand dune.
7. The deed to Reynolds & Hubers predecessor-in-title contained a right of way for vehicles over Braddock Street, so called, extending from Bank Street to the beach. [Note 56] The deed to Walkers predecessor-in-title contained a right of way to Nantucket Sound southerly over Braddock Street and its extension between land formerly of Charles Kroll and that of one Smyser. [Note 57] The deed to Carrolls predecessor-in-title contained a right of way over Braddock Street, easterly, to Lower Bank Street, and southerly over Braddock Street to the beach. [Note 58] The deed to Gledhills predecessor-in-title contained a right of way to the sea west of the Kroll cottage. [Note 59] These express easements passed to the plaintiffs through their chains of title without reservation or exception.
8. In 1984, the residents of the Braddock Street neighborhood formed the Braddock Lane Home Owners Association (BA). [Note 60] The purpose of the BA was to provide a forum for residents to discuss and resolve issues affecting the neighborhood, [Note 61] including the use of the Private Way and the beach area. The owners of the properties at the time, John Van Iderstine and Joseph Hyman, drafted an agreement granting a license for BA members to use the beach and the Private Way (the License Agreements). [Note 62] The License Agreements provided as follows:
The Owners authorize the Neighbors (and their respective guests and invitees) to use for pedestrian access only the Private Way leading from the lower end of Braddock Street to Nantucket Sound which is situated between the respective properties of the Owners. The Owners further authorize the Neighbors (and their respective guests and invitees) to use for beach purposes the Beach Area (i.e. the sandy area between the end of upland vegetation and the mean high water mark of Nantucket Sound) as marked adjacent to the Private Way. This license is non-exclusive.
The Owners and the Neighbors agree that the right described [above] is not an interest in real estate but is a contractual right. The right does not run with the land and is not appurtenant to any land of the Neighbors. The right described is neither assignable nor transferable. Any one of the Owners (or any one of their respective successors in interest) shall have the right to terminate this agreement upon thirty days written notice to each of the Neighbors. [Note 63]
Gledhill, Carroll, and the predecessors-in-title of Walker signed the agreement; Reynolds & Huber did not. [Note 64]
At its heart, this dispute concerns the plaintiffs ability to travel over the Private Way in order to access and enjoy the beach along Nantucket Sound. There are two distinct issues to be addressed. The first of these concerns the plaintiffs rights, if any, to travel over the Private Way. The plaintiffs claim such rights by express easement or, alternatively, by implied easement. If such rights exist, however, they would lead to an area of beach within the bounds of the Private Way. As noted supra, the Way is 21 feet wide at the sea shore. The second issue concerns the plaintiffs rights, if any, to make use of the beach area in front of the full width of the defendants properties. The plaintiffs claim this right via ownership of the flats in front of one defendants property (Hyman), or alternatively by express or implied easement. Finally, to the extent that the plaintiffs enjoy either or both of the above rights, it must be determined whether the said License Agreements, extinguished such rights. Each issue will be discussed, in turn, below.
Rights Relating to the Private Way
The plaintiffs claim to possess express easements to travel over the Private Way based upon language appearing in their deeds, each of which is derived from Earle Phillips. A basic rule of law is that the party asserting an easement has the burden of proving the nature and extent of any such easement. Foley v. McGonigle, 3 Mass. App. Ct. 746 , 746 (1975). Where the easement is created by a conveyance, the extent of the easement is fixed by the conveyance and the language used is the primary source for ascertaining the meaning of the conveyance. Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). Accordingly, the court must consider each deed in order to determine whether it created an express easement permitting travel over the Private Way.
Reynolds and Huber
Reynolds & Huber claim an express easement based upon the following language, first appearing in the Harman-Ashley Deed:
The granted premises are conveyed together with a right of way for vehicles over Braddock Street, so called, extending from Bank Street to the beach . [Note 65] (emphasis added)
It is the view of this court that this plain language confers an easement allowing vehicles to pass and re-pass over Braddock Street to Bank Street, then turning southerly to access the public beach and parking area situated at the end of Bank Street. Several facts may be cited in support of this construction. First, at the time of the conveyance in 1937, Braddock Street was a private way; it was not accepted as a public way until some years later, in 1951. [Note 66] Thus, it is reasonable to conclude that the grantor intended to convey a right of way to provide the grantee access over Braddock Street to Bank Street.
Reynolds argues that this easement extends southerly over the Private Way to the private beach in front of the Hyman and Van Iderstine properties. This argument is unpersuasive, however, owing in no small measure to the explicit language specifying that the right of way is for vehicular passage. There is nothing on the trial record to indicate that vehicular access was ever possible over the Private Way. [Note 67]
In fact, the portion of the vertical section of Braddock Street below the Reynolds parcel was a sandy path, could not, in all likelihood, have supported travel by motor vehicle. [Note 68] Until the town paved Braddock Street in the early 1950s, the only way that a vehicle would access any beach from Braddock Street would be over Bank Street to the public beach located there. This court concludes, therefore, that the plaintiffs Reynolds & Huber do not have an express easement to pass over the Private Way. Rather, they were, in express terms, granted access to Bank Street and to the public beach at its terminus.
The Walkers claim an express easement over the Private Way based upon language first appearing in the Cowdery Deed, as follows:
There is conveyed as appurtenant to the granted premises a right of way for vehicles over Braddock Street to Lower Bank Street;
There is also conveyed as appurtenant to the granted premises a right of way to Nantucket Sound southerly over Braddock Street and its extension between land formerly of Charles Kroll and that of one Smyser. [Note 69]
The first of these two Walker easements, mirrors that which constitutes the basis for the Reynolds and Huber claim. It is noteworthy that the Walkers vehicular easement over Braddock Street to Lower Bank Street (and to the public beach and parking area at its terminus) stands separate and apart from the second recited easement over the Private Way to Nantucket sound. The existence of these two distinct easements lends further support to this courts conclusion with regard to the Reynolds and Huber easement, supra.
As to the second of the two easements, it has been noted that Kroll and Smyser were predecessors in title to Van Iderstine and Hyman, respectively. The only land between their properties consists of the Private Way. This court is therefore satisfied that the said Way is the southern extension of Braddock Street described in the Cowdery Deed. Such language clearly conveyed an express easement over the Private Way to Nantucket Sound that now runs in favor of the Walkers.
Carroll claims an express easement over the Private Way based upon language first appearing in the Deed of Van Buskirk, as follows:
Also a right of way over Braddock Street, easterly, to Lower Bank Street, and southerly over Braddock Street to the beach. [Note 70]
This language, while set forth in a somewhat more concise form, is in effect, similar to the Walker easements recited above. The court construes the quoted language as providing two distinct easements. The first such easement runs over Braddock Street in an easterly direction to access Lower Bank Street and presumably, the public beach at its terminus.
The second easement runs southerly over Braddock Street to the private beach at the end of the Way. The most direct route to the beach when traveling south on Braddock Street is over the Private Way. This language suffices, therefore, to convey an express easement over the Private Way, that currently runs in favor of Carroll.
Gledhill claims an express easement over the Private Way based upon the following language first appearing in the Bloom Deed:
There is appurtenant to the granted premises a right of way for all purposes over Braddock Street, and a right of way to the sea west of the Kroll cottage. [Note 71]
The only route to the sea lying to the west of the land of Kroll (Van Iderstines predecessor) is over the Private Way. The foregoing language is sufficient, therefore, to convey an express easement over the Private Way that currently runs in favor of Gledhill.
Based upon the language contained in the deeds in the plaintiffs respective chains of title, this court is satisfied that three of the plaintiffs (the Walkers, Carroll, and Gledhill) are possessed of express easements over the Private Way. Since the language contained in the Reynolds & Huber deed conveys rights only to access the public beach at the terminus of Bank Street, they must proceed under an implied easement theory to establish any rights they may have to access and use the private beach.
To prove the existence of an implied easement, Reynolds & Huber advance a two-pronged theory. Initially, they argue that Braddock Phillips created asubdivision by deed through a series of individual conveyances from his larger tract of land. [Note 72] Thereafter, they argue that this subdivision was part of a common scheme intended to afford every lot owner along Braddock Street the right to travel over the Private Way.
Considering the language of the deed together with an analysis of the relevant case law, this court concludes that there is insufficient evidence to support the existence of a common scheme granting implied easements in favor of the plaintiffs (as well as other lot owners along Braddock Street).
The origin of an implied easement whether by grant or by reservation must be found in a presumed intention of the parties, to be gathered from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable. Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940). The burden of proving the existence of an implied easement is on the party asserting it, Mt. Holyoke Realty Corp. v. Holyoke Realty Corp., 284 Mass. 100 , 105 (1933), as is the burden of proving a common building scheme, Snow v. Van Dam, 291 Mass. 477 , 485 (1935).
The existence of a [common] building scheme may show an intention that the restrictions imposed upon the several lots shall be appurtenant to every other lot in the tract included in the scheme. Rahilly v. Addison, 350 Mass. 660 , 663 (1966) (internal quotations omitted). Such restrictions commonly include negative restrictive covenants, see, e.g., Canty v. Donovan, 361 Mass. 879 (1972) (enforcing one-story dwelling restriction for all lots in common scheme), but may also include affirmative easements, see, e.g., Butler v. Haley Greystone Corp., 352 Mass. 252 (1967) (limiting beach easements to section of subdivision developed under scheme). Although [n]either the restricting of every lot within the area covered, nor absolute identity of restrictions upon different lots, is essential to the existence of a scheme[,] extensive omissions or variations [will] tend to show that no scheme exists, and that the restrictions [or easements] are only personal contracts. (emphasis added) Snow, 291 Mass. at 483.
In the instant case, the plaintiffs must show that Braddocks individual lots together constituted a subdivision from which a common scheme could be derived. In other words, they must show that Braddock intended that each conveyance helped create a beach community in which all lot owners were given the right to travel over the Private Way and to use the beach. Nearly every deed that originated with Braddock, has been admitted into evidence. The language appearing in each of those deeds has been analyzed with regard to each lot along the interior roads of the Braddock Street neighborhood. [Note 73]
Subdivision By Deed
Prior to 1895, Braddock owned all of the land lying west of Bank Street but no deed before 1920 referenced any road other than Bank Street (most likely because none existed, as there were no lots requiring access via a road). Between 1920 and 1926, Braddock conveyed ten parcels by deeds that explicitly mentioned one of the interior roads as a boundary. Three of these deeds referred to Braddock Lane as an established road. [Note 74] Five referred to the vertical section of Braddock Street as a proposed road. [Note 75] Three referred to various sections of Braddock Street as a private way. [Note 76] These deeds indicate that the interior roads were either in existence or in contemplation between 1920 and 1926. Moreover, the boundaries described in the deeds correspond to the modern boundaries as illustrated in the Rowley Lot Plan. For the purposes of this analysis then, the court will accept that Braddock likely had a system of interior roads in mind when he conveyed the individual lots. This system persists through the present day and is reflected in the layout of the current neighborhood. Accordingly, despite the fact that there was never a formal subdivision plan, to the extent the plaintiffs assert that Braddock effectively created a subdivision through a series of conveyances along the interior roads, their argument is not without merit. [Note 77] However, given this courts decision as to the common scheme element of the plaintiffs argument, it need not opine on the existence of a subdivision by deed.
It is the plaintiffs burden to establish that Braddock and Earle intended that any rights over the Private Way, or rights to the beach, which appeared in some of the deeds were intended to be appurtenant to all of the lots within the said subdivision.
In analyzing the common scheme theory, this court searched the first deeds out to each lot in the Braddock Street neighborhood for references to the Private Way or the beach. Extensive omissions or variations in the language of these deeds would tend to show that Braddock and Earle merely conveyed individual deeds that were not part of any scheme specifically intended to benefit all the lots within the subdivision. See Snow, 291 Mass. at 483.
Only six of the forty-three lots in the neighborhood contained a reference to the Private Way or the beach in their original deeds. The first was the 1895 Small deed, which included a right to the use in common with others, of the beach to the seashore in front of said premises. [Note 78] Braddock could not have included an easement over the Private Way by this language because the Private Way did not exist until 1925. [Note 79] Parcels under the remaining five deeds were conveyed after the Private Way came into existence. In 1926, Braddock granted to one Jones a right of way over a private road to the shore[,] reaching the shore between land of Smyser and the land of one Kroll. [Note 80] This is a clear reference to the Private Way and to an express easement similar to the ones granted to Walker and Gledhill. The rest belonged to the plaintiffs predecessors in title and have been previously discussed.
The fact that only the other five deeds out of the forty-three that could be said to comprise the subdivision referenced the Private Way or the beach, leads inexorably to the conclusion that there was no common scheme involving Braddock and Earle to make the Private Way and beach access provisions appurtenant to every lot. Instead, it is more likely that Braddock and Earle entered into what were essentially personal contracts with individual grantees.
This conclusion gains further support when one considers that all but one of the sixteen deeds Earle conveyed contained nearly identical deed restrictions limiting development on the lots to one dwelling house and garage and requiring Earles approval for all building plans. [Note 81] The frequency with which these provisions appear in Earles deeds is an indication of his intent to make them appurtenant to every lot. Provisions relating to the Private Way and beach are not manifest with the requisite frequency.
Further, the notion that the Private Way and beach provisions were merely personal contracts, gains support from a deed between Earle and a subsequent purchaser of an interior lot, in which Earle granted an express easement over the Private Way wholly apart from the deed containing the purchased lot. [Note 82] Had there been a common scheme benefiting every lot in the neighborhood, Earle would have had no need to convey a separate easement right in this fashion. Clearly, had Braddock or Earle intended to grant common beach rights to all Braddock Street lot owners, they would have had no reason to provide an express grant of beach rights to any individual lot owner.
An analysis of relevant decisional law indicates that a finding of an implied easement derived from a common scheme, requires far more convincing evidence of a developers intent than has been submitted in the instant case. See, e.g., Bacon v. Onset Bay Grove Assn, 241 Mass. 417 , 423-24 (1922) (finding easements to use parks within subdivision where developer marketed subdivision as a summer resort with use of the parks serving as an inducement for potential buyers to purchase lots in the resort); Rahilly, 350 Mass. at 662-63 (finding beach easements for lot owners where plan indicated that private way within subdivision extended beyond a public road to the beach where it otherwise could have ended at the public road); Labounty, 352 Mass. at 344 (finding beach easements for interior lots where plan bounded river lots along a private way and extended the way to high water, beyond the distance necessary to provide access to the river lots from the public street); Reagan v. Brissey, 446 Mass. 452 , 458-61 (2006) (finding easements to use parks within subdivision where parks were unnumbered, irregularly-shaped, and had little market value, in contrast to the building lots; developer had built and advertised subdivision as resort with common parks; and access through parks was necessary to enjoy amenities of the resort). This case lacks many of the factors that supported a finding of implied easements in the cited cases. There is nothing comparable to a subdivision plan that could provide insight into Braddock or Earles intent. Nor is there evidence that either grantor advertised the neighborhood as a beach community or summer resort, or induced purchasers with promises of beach access.
In sum, the plaintiffs have failed to meet the burden of proof specified in the relevant decisional law. Rather, Phillips pattern of conveyances is more consistent with a series of personal contracts than with an orchestrated common scheme.
Rights in the Private Beach and Tidal Flats
As previously noted, the Private Way is twenty-one (21) feet wide at the sea shore. The plaintiffs argue that they should not be limited to the area within the bounds of the Way, but are entitled to use an area of beach spanning the full width of the defendants properties. This claim is premised on their purported ownership of the Hyman tidal flats or, alternatively, through claims of express or implied easement.
Ownership of the Tidal Flats
The plaintiffs have waived their claims to the tidal flats in front of the Van Iderstine property. [Note 83] Therefore, in discussing ownership of the flats the court will limit its consideration to the area directly in front of the Hyman property.
The plaintiffs claim is based upon a purported severance of the flats from the upland portion of the Hyman property. Under the Colonial Ordinance of 1641-47, an owner of land abutting a tidal body of water holds title to the land out to the low water mark or 100 rods, whichever is less. Pazolt v. Dir. of the Div. of Marine Fisheries, 417 Mass. 565 , 570 (1994), citing Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629 , 635 (1979). When such land is conveyed, the presumption of law is that title to the flats follows that of the upland on which they lie, and proof of title to the upland establishes title to the flats. Pazolt, supra, citing Porter v. Sullivan, 73 Mass. 441 , 7 Gray 441 , 445 (1856). Nevertheless, [a]n owner may separate his upland from his flats, by alienating the one without the other. But such a conveyance is to be proved, not presumed. Pazolt, supra, citing Valentine v. Piper, 39 Mass. 85 , 22 Pick. 85 , 94 (1839). Thus, the presumption [s]ince the passage of the ordinance [is that] a grant of land bounding on the sea shore carries the flats in the absence of excluding words. Pazolt, 417 Mass. at 571, quoting Commonwealth v. Roxbury, 75 Mass. 451 , 9 Gray 451 , 524 (1857) (internal quotations omitted).
In this case, the plaintiffs assert that (1) the 1895 Small Deed referring to common use of the beach; (2) the discrepancy between the Leila Smyser Deed and four earlier deeds from Braddock; [Note 84] (3) the creation of the Private Way; and (4) the subsequent granting of express easements over the Private Way, together demonstrate the intent to sever the flats from the uplands and to reserve the flats for Braddock. [Note 85] Consequently, the plaintiffs contend that Hyman lacks title to the flats and owns only to the mean high water mark. Even when viewed in the aggregate, these assertions neither demonstrate the intent to sever title to the Hyman flats from the uplands, nor do they effect such a severance.
First, as discussed supra, there is no indication to whom the shared rights referenced in the 1895 Small Deed, might have belonged. [Note 86] Even if one were to entertain the notion that Braddock intended this language to create common rights for others, Smalls easement was appurtenant to what is today the Van Iderstine beach and is therefore irrelevant to the plaintiffs claim.
Second, the language bounding the Leila Smyser parcel by mean high water of Nantucket Sound neither severed the uplands from the flats, nor reserved title to the flats in Braddock. [Note 87] The prevailing case law supports such an outcome. See Pazolt, 417 Mass. at 570 (affirming that alteration of deed description from by the sea to high water mark Provincetown Harbor did not sever the upland title from the flats); Houghton v. Johnson, 71 Mass. App. Ct. 825 , 830 (2008) (affirming that terms such as by mean high water mark are not absolute indicatives of an intent to sever the flats from the upland, and that the meaning of such terms should be ascertained by looking at the attendant circumstances of the conveyance instead). See discussion at Scioletti v. Thomas, 16 LCR 782 , 787 (2008).
Crucial to the Houghton decision was a lack of evidence of the common grantor or the predecessors-in-title reserving the flats. 71 Mass. App. Ct. at 830-32. The record here likewise contains no evidence that either Braddock or Hymans predecessors-in-title reserved an interest in the flats. In light of Pazolt and Houghton, the words by mean high water of Nantucket Sound in the Leila Smyser Deed by themselves did not sever the flats from the uplands. The deed contained no other words that could be reasonably construed to rebut the presumption that the flats were conveyed with the upland.
Moreover, the circumstances of the conveyance themselves, suggest such an outcome. The description of the Smyser property as [a] certain piece of Beech [sic] land between Sea Ste. and Bank St [Note 88] is significant in light of the longstanding definition of beach as [p]rimarily the area between ordinary high water mark and low water mark, over which the tide ebbs and flows, a definition consistent with tidal flats. Hewitt v. Perry, 309 Mass. 100 , 104 (1941), citing Niles v. Patch, 79 Mass. 254 , 13 Gray 254 , 257 (1859). This language indicates that the land conveyed by Braddock to Smyser included the tidal flats.
Finally, neither of the plaintiffs remaining assertions supports the theory that the flats were severed from the uplands. The creation of the Private Way occurred simultaneously with Braddocks conveyance of the flats. It would make little sense for him to create a path to reach land that he was about to convey. [Note 89] Likewise, Earles subsequent grant of express easements reveals nothing of Braddocks intent to convey the flats because Earles grants occurred after Braddocks death. Accordingly, this court concludes that Braddock did not intend to sever the upland portion of the Hyman property from the tidal flats. As a consequence, the plaintiffs do not hold title to the flats. [Note 90]
Easements to the Beach
As discussed supra, Carroll, Gledhill, and Walker hold valid express easements to travel over the Private Way, but Reynolds & Huber do not. Carrolls easement extends southerly over Braddock Street to the beach. Gledhills easement extends to the sea west of the Kroll cottage. The Walkers easement extends to Nantucket Sound southerly over Braddock Street and its extension between land formerly of Charles Kroll and that of one Smyser.
At least one question remains to be addressed. That question asks whether these plaintiffs are confined to the area within the bounds of the private way or are free to use the entire width of the defendants property in connection with any beach rights they may possess.
At the time of the deeds creating the plaintiffs easements, Earle Phillips possessed a fee interest within the Private Way only. The surrounding beach areas had been conveyed to the predecessors in title of Van Iderstine and Hyman. [Note 91] Accordingly, Phillips could not grant rights outside of the bounds of the Way. The plaintiffs easements must be restricted, therefore, to those bounds. [Note 92] See Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 632 (1990) (Only rights held by grantors at the time of the conveyance may be expressly reserved in a deed.).
Confining beach use to the width of the way will afford three plaintiffs the use and enjoyment of the easement. Compare Anderson v. De Vries, 326 Mass. 127 , 133-34 (1950) (concluding that limited plaintiffs use of beach space within the bounds of a way insufficient for reasonable enjoyment of a large number of lot owners, families, and their guests). Here, unlike the dozens of parties seeking beach rights in Anderson, the area of the Way will likely be sufficient for the designated plaintiffs and their invitees. As established at trial, during the existence of the Braddock Association Agreement, several plaintiffs as well as other members of the BA, observed the rules requiring the members remain within the width established, originally 20 feet wide and later extended to approximately 40 feet. [Note 93] While in effect, the BA arrangement accommodated a number of other persons in the neighborhood. Nothing suggests the plaintiffs here will be unduly restricted in their enjoyment of the easement by remaining strictly within the bounds of the Way.
As the defendants appear not to dispute the use of that portion of the beach lying solely within the said bounds, this court sees no need to address the issue further. [Note 94]
Effect of the License Agreements [Note 95]
The plaintiffs argue that once their express easements were established, they could not have been divested by the license agreements that permitted the same use as the easements. The defendants assert that by signing the license agreements, the plaintiffs waived their easement rights. This court concludes that the license agreements neither divested nor served as a waiver of the plaintiffs easement rights. [Note 96]
A license differs from an easement in that it merely excuses acts done by one on land in possession of another that without the license would be trespasses, conveys no interest in land, and may be contracted for or given orally. Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 55 (1938), citing Cook v. Stearns, 11 Mass. 533 , 538 (1814); Grasselli Dyestuff Corp. v. John Campbell & Co., 259 Mass. 103 , 107 (1927); Nelson v. American Telephone & Telegraph Co., 270 Mass. 471 , 479 (1930). Moreover, a license to use another's land is revocable not only at the will of the owner of the property on which it is to be exercised, but by alienation of the land by him. Sturnick v. Watson, 336 Mass. 139 , 142 (1957), citing Hodgkins .v. Farrington, 150 Mass. 19 , 21 (1889); Scioscia v. Iovieno, 318 Mass. 601 , 603 (1945).
Although Massachusetts has not considered the effect of a license upon an established easement, courts in other jurisdictions have held that an easement, once established, is not divested by the dominant estate owners seeking and obtaining permission from the servient estate owner to make the same use of the property as could have been made under the existing easement. Rinderer v. Keeven, 412 N.E.2d 1015, 1028 (Ill. 1980), citing Speer v. Carr, 429 S.W.2d 266, 269 (Mo. 1968); Allen v. Neff, 135 S.E. 2, 3 (W.Va. 1926); Smith v. Fairfax, 201 S.W. 454, 455 (Ky. 1918); Dee v. King, 50 A. 1109, 1110 (Vt. 1901); see also Wiggins v. Lykes Bros., Inc., 97 So.2d 273, 276 (Fla. 1957); Powers v. Coos Bay Lumber Co., 263 P.2d 913, 940 (Or. 1953). These cases concern prescriptive easements in which adverse use was an element in establishing the easement. However, the same a subsequent license should apply with no less force to an express easement, of the sort here at issue.
In this case, the written license agreements conveyed no interest in the Private Way or the beach and were revoked as a matter of law when the original licensors (Joseph and Phyllis Hyman and John I. Van Iderstine) conveyed their lots. Sturnick, 336 at 142 (It doubtless is the law that a license to use another's land is revocable by alienation of the land by him.). The license agreements explicitly stated that they did not run with the land. Accordingly, the agreements have no legal effect today. At most they may be demonstrative of a certain mindset, i.e. that the signing parties (Gledhill, Carroll, and the predecessors to Walker) believed that they lacked an interest in the Private Way and the beach. See Tracy v. Atherton, 36 Vt. 503, 520 (1864) (Such subsequent application for license would be very powerful evidence to show that the previous use was not under a claim of right . We think it can be regarded merely as an admission to be weighed against the defendants.). [Note 97] This court is satisfied that the license agreements did not operate to divest the plaintiffs of their easement rights.
Predicated upon the foregoing, this court concludes as follows:
1. Plaintiffs Carroll, Gledhill and the Walkers possess express easement rights lying strictly within the Private Way, as described above. They possess no implied easements in the said Way.
2. Plaintiffs Reynolds and Huber possess no rights, whether express or implied easements or otherwise, over or within the Private Way.
3. The plaintiffs, whether individually or collectively, possess no rights either in the private beach or tidal flats lying in front of the defendants properties, [Note 98] beyond the bounds of the Private Way.
Judgment to issue accordingly. [Note 99]
[Note 1] See defendant Hymans Post-Trial Memorandum, p.2, which describes the Way as running between the properties owned respectively by the Hymans and Van Iderstine .
[Note 2] See TR. 1-28-29, Opening statement of Mr. Miles: [O]ur clients will have use of the beach. And when I say beach, I understand that Im not being terribly precise so to me when Im using beach at this time, Im talking about both the beach area below the upland grass to the mean high water mark and the tidal flats. So our clients would have use of that area in front of both Van Iderstine and Hyman parcels . (emphasis added).
See also, Post-Trial Memorandum of Beth A. Hyman and Leah Hyman, p. 2: Each of the plaintiffs asserts a right to use a portion of the sandy beach situated between the Hyman/Van Iderstine properties and Nantucket Sound. This court concludes from these and other statements that the use of the beach portion within the bounds of the private way is not disputed by the parties.
[Note 3] See Trial Exhibit (Ex.) 37 (reproducing Deed from A.M. Chase, as Trustee under the will of B.G. Phillips, to E.W. Phillips, dated May 7, 1937, and recorded at Book 527, Page 042 of the Barnstable County Registry of Deeds). All recording references are to instruments recorded in the Barnstable County Registry of Deeds, unless otherwise indicated.
Specifically, the Phillips Estate Deed conveyed the land in said Harwich being all the land which Braddock G. Phillips owned at his death on May 9, 1927 and which passed to me [Agnes M. Chase] under his will, excepting herefrom and not intending to convey those parcels which have been conveyed by me as Trustee under said will. Id.
[Note 4] See Ex. 108 (reproducing Map, Town of Harwich, Braddock Street, Harwichport, Mass., As Laid Out by the Board of Selectmen, dated Jan. 26, 1951, and recorded in Plan Book 97, Page 139).
[Note 5] Trial Testimony (Tr.) 1-110:12-14 (Rowley) (Q: Now you know that Bank Street Beach is a public beach; is that right? A: Its my understanding.).
[Note 6] See Ex. 338(y) (reproducing Conveyance History Plan, Prepared for Marlyn Harman-Ashley Reynolds, et als, Braddock Street, Harwichport, MA, dated Dec. 13, 2007, revised Feb. 1, 2008, by Charles L. Rowley & Associates). See also Tr. 1-62:21 to 1-65:10 (Rowley) (describing Rowleys engagement as an expert for this litigation and the procedure he followed in producing the map).
[Note 7] See Tr. 1-95:8-22 (Rowley) (testifying that the lot numbers were assigned [f]or the purpose of clarifying which [conveyances] came first).
[Note 8] See Tr. 1-153:20-21 (Reynolds) (testifying to ownership).
[Note 9] See Ex. 36 (reproducing Deed from E.W. Phillips to H. Harman-Ashley, dated Dec. 14, 1937, and recorded in Book 534, Pages 471-72) [hereinafter the Harman-Ashley Deed].
[Note 10] See Ex. 35 (reproducing Indenture of Trust from H. Harman-Ashley to Cape Cod Trust Co. and J. Harman-Ashley, as Trustees, dated Apr. 22, 1954, and recorded at Book 871, Pages 595-96).
[Note 11] See Ex. 34 (reproducing Certificate of Adoption of Corporate Vote Authorizing Fiduciary Transaction, dated Dec. 20, 1967, and recorded at Book 1387, Page 889) and Ex. 33 (reproducing Deed from Cape Cod Bank and Trust Co. and J. Harman-Ashley, as Trustees, to J. Harman-Ashley, individually, dated Dec. 20, 1967, and recorded at Book 1387, Pages 887-88).
[Note 12] See Ex. 32 (reproducing Deed from M.K. Harman-Ashley, Executrix under the Will of J.R. Harman-Ashley, to M.K. Harman-Ashley, dated Sept. 3, 1976, and recorded at Book 2393, Pages 287-88).
[Note 13] See Ex. 31 (reproducing Deed from M.K. Harman-Ashley to M.G. Harman-Ashley Reynolds and J.E. Harman-Ashley Huber, dated Dec. 28, 1982, and recorded at Book 3645, Page 181). In 2006, Reynolds conveyed her undivided one-half interest in the Reynolds parcel to herself and to her husband, John L. Reynolds, as tenants by the entirety. See Ex. 30 (reproducing deed, dated Oct. 4, 2006, and recorded at Book 21423, Page 031).
[Note 14] See Tr. 2-186:1 (Walker) (testifying to ownership).
[Note 15] See Ex. 51 (reproducing Deed from E.W. Phillips to A.B. & K.W. Cowdery, dated Nov. 1, 1946, and recorded at Book 639, Pages 510-11) [hereinafter the Cowdery Deed].
[Note 16] See Ex. 50 (reproducing Deed from A.B. & K.W. Cowdery to M.J. Brigham, dated Aug. 13, 1948, and recorded at Book 702, Pages 330-31).
[Note 17] See Ex. 49 (reproducing Deed from M.J. Brigham to A.J. & H.B. DElia, dated Apr. 4, 1961, and recorded at Book 1114, Pages 059-60).
[Note 18] See Ex. 48 (reproducing Deed from A.J. & H.B. DElia to H.B. & A.W. Ahlberg, dated Oct. 2, 1964, and recorded at Book 1275, Pages 161-62).
[Note 19] See Ex. 47 (reproducing Deed from H.B. Ahlberg to A.J. & H.R. Walker, dated Oct. 25, 1999, and recorded at Book 12640, Pages 213-14). In the deed, Henry B. Ahlberg certified that at the time of the death of his wife, Alice W. Ahlberg, on Jan. 19, 1999, there had been no divorce. Id.
[Note 20] See Tr. 2-89:9 (Carroll) (testifying to ownership).
[Note 21] See Ex. 66 (reproducing Deed from E.W. Phillips to D.W. Van Buskirk, dated June 15, 1950, and recorded at Book 754, Pages 308-09) [hereinafter the Van Buskirk Deed].
[Note 22] See Ex. 63 (reproducing Original Certificate of Title # 15926, Dorothy W. Van Buskirk, Reg. Case #23643, Land Court Doc. No. 38,840, dated Nov. 12, 1953).
[Note 23] See Ex. 62 (reproducing Indenture of Trust between D.W. Van Buskirk and F.L. Van Buskirk, Land Court Doc. No. 64,465, dated Apr. 14, 1960) and Ex. 61 (reproducing Deed from D.W. Van Buskirk to F.L. Van Buskirk, Trustee, dated May 13, 1960, and recorded as Land Court Doc. No. 64,464).
[Note 24] See Ex. 57 (reproducing Transfer Certificate of Title No. 31925, Land Court Doc. No. 85,671, dated Jan. 3, 1964).
[Note 25] See Ex. 55 (reproducing Transfer Certificate of Title No. 48675, Land Court Doc. No. 139,216, dated June 3, 1970).
[Note 26] See Ex. 52 (reproducing Transfer Certificate of Title No. 105276, Land Court Doc. No. 386,298, dated Feb. 7, 1986) and Ex. 54 (reproducing Deed from D.B. and C.R. Carroll to C.R. Carroll, dated Feb. 7, 1986).
[Note 27] See Tr. 2-156:19 (Gledhill) (testifying to ownership).
[Note 28] See Ex. 45 (reproducing Deed from E.W. Phillips to A.W. & M.E. Bloom, dated Oct. 3, 1947, and recorded at Book 679, Pages 551-52) [hereinafter the Bloom Deed].
[Note 29] See Ex. 44 (reproducing Deed from A.W. & M.E. Bloom to M.L. Perry, dated Jan. 10, 1949, and recorded at Book 712, Pages 231-32).
[Note 30] See Ex. 43 (reproducing Deed from M.L. Perry to H.W. & M.T. Frohne, dated Aug. 17, 1950, and recorded at Book 761, Page 160).
[Note 31] See Ex. 42 (reproducing Deed from H.W Frohne to H.F. Corey, dated Aug. 4, 1954, and recorded at Book 881, Page 565-66). The deed states that Margaret T. Frohne died on January 20, 1954. Id.
[Note 32] See Ex. 41 (reproducing Will of Harold F. Corey) and Ex. 40 (reproducing Inventory of Estate of Harold F. Corey, Barnstable Probate Court Docket No. 51845).
[Note 33] See Ex. 39 (reproducing Deed from M.H. Corey to N.P. Gledhill, dated Jan. 10, 1979, and recorded at Book 2896, Pages 103-04).
[Note 34] See Ex. 26 (reproducing Deed from B.G. Phillips to L.P. Smyser, dated Aug. 24, 1925, and recorded at Book 413, Page 304) [hereinafter the Leila Smyser Deed].
[Note 35] See Ex. 25 (reproducing Deed from L.P. Smyser to H.F. Talbott, dated Sept. 18, 1974, and recorded at Book 2100, Page 049). Parcel III in this deed is the land conveyed in the Leila Smyser Deed (Ex. 26). See supra note 34.
[Note 36] See Ex. 337 (reproducing Deed from H.F. Talbott to C.J. Wickstrom, as Trustee of Braddock Lane Realty Trust, dated Oct. 14, 1983, and recorded at Book 3896, Pages 261-63).
[Note 37] See Ex. 23 (reproducing Deed from C.J. Wickstrom, as Trustee of Braddock Lane Realty Trust, to W.T. DEletto, as Trustee of Pumpkin Seed Realty Trust, dated June 4, 1984, and recorded at Book 4136, Pages 013-14) [hereinafter the DEletto Deed].
[Note 38] See Ex. 21 (reproducing Deed from W.T. DEletto, as Trustee of Pumpkin Seed Realty Trust, J. & P.C. Hyman, dated July 12, 1985, and recorded at Book 4621, Pages 253-54) [hereinafter the Hyman Deed].
[Note 39] See Ex. 20 (reproducing Deed from J. & P.C. Hyman to B.A. Hyman, as Trustee of the 11 Braddock Lane, Harwichport Nominee Trust, dated Dec. 4, 1991, and recorded at Book 7791, Pages 226-28).
[Note 40] See Ex. 14 (reproducing Deed from B.G. Phillips to E. Small, dated July 2, 1895, and recorded at Book 216, Page 531) [hereinafter the 1895 Small Deed]. This first parcel was described as surrounded on all sides by land owned by [the grantor] and also conveyed the use in common with others, of the beach to the seashore in front of said premises. Id.
[Note 41] See Ex. 16 (reproducing Deed from B.G. Phillips to E.W. Phillips, dated Dec. 11, 1907, and recorded at Book 286, Page 388).
[Note 42] See Ex. 13 (reproducing Deed from B.G Phillips to E. Small, dated Apr. 22, 1910, and recorded at Book 303, Page 429).
[Note 43] See Ex. 336 (reproducing Deed from E. Small to T.H. Nickerson, dated Jan. 9, 1911, and recorded at Book 303, Page 565).
[Note 44] See Ex. 12 (reproducing Deed from T.H. Nickerson to C. Kroll, dated Oct. 12, 1912, and recorded at Book 319, Page 584).
[Note 45] See Ex. 15 (reproducing Deed from E.W. Phillips to C. Kroll, dated Nov. 5, 1912, and recorded at Book 321, Page 112).
[Note 46] See Ex. 17 (reproducing Deed from B.G. Phillips to C. Kroll, dated Oct. 7, 1914, and recorded at Book 333, Page 380).
[Note 47] See Ex. 18 (reproducing Deed from B.G. Phillips to C. Kroll, dated Sept. 2, 1920, and recorded at Book 387, Page 232). This parcel was bounded on the north by a road (Braddock Lane) and on the west by a proposed road (the vertical section of Braddock Street).
[Note 48] See Ex. 11 (reproducing Deed from C. Kroll to E. Singsen, dated Aug. 12, 1932, and recorded at Book 490, Pages 172-73).
[Note 49] See Ex. 10 (reproducing Deed from E. Singsen to F. Kroll and M. Thatcher, dated Dec. 26, 1944, and recorded at Book 623, Pages 069-70).
[Note 50] See Ex. 9 (reproducing Deed from F. Kroll and M. Thatcher to H.B. Van Iderstine, dated Oct. 4, 1947, and recorded at Book 680, Pages 388-89).
[Note 51] See Ex. 7 (reproducing Helen B. Van Iderstine Executors Inventory, Barnstable Probate Court Docket No. 50911, filed June 28, 1974) and Ex. 8 (reproducing New Jersey Surrogates Court probate file with Will of Helen B. Van Iderstine, certified copy dated May 24, 1974).
[Note 52] See Ex. 6 (reproducing Deed from J.I. Van Iderstine to J.I. & M.S. Van Iderstine, dated Jan. 13, 1988, and recorded at Book 6104, Page 296).
[Note 53] See Ex. 5 (reproducing Deed from J.I. & M.S. Van Iderstine to M.C. Van Iderstine, dated Mar. 19, 1999, and recorded at Book 12144, Pages 068-69).
[Note 54] See Tr. 1-73:1-21 (Rowley) (The 21 feet would extend from the sea to the closest points of the upland for the parcels each side [but] that particular dimension does not extend all the way to Braddock Street . [The strip of land] widens out slightly so that its wider at Braddock Street than it is at the shoreline . At its widest dimension right at the throat of Braddock Street [i]ts approximately 41 feet.).
[Note 55] See Tr. 1-75:7-9 (Rowley) (Id have to estimate [the width of the walking path]; its probably 3 or 4 feet wide.).
[Note 56] See the Harman-Ashley Deed (Ex. 36), supra note 9.
[Note 57] See the Cowdery Deed (Ex. 51), supra note 15.
[Note 58] See the Van Buskirk Deed (Ex. 66), supra note 21.
[Note 59] See the Bloom Deed (Ex. 45), supra note 28. With the exception of the Harman-Ashley Deed, see supra note 9, we find the language of these conveyances to be sufficiently clear to convey easements over the Private Way.
[Note 60] See Tr. 2-130:6 to 2-132:6 (McCaffery) (testifying to the formation of the BA).
[Note 61] See Tr. 2-75:10 to 2-76:1 (Hall) (testifying to the use of BA dues to pay for neighborhood improvements such as streetlights and reflective traffic discs, and to the drafting of rules for beach use by renters).
[Note 62] See, e.g., Ex. 298 (reproducing License Agreement signed by plaintiff Carroll).
[Note 63] Id.
[Note 64] See Exs. 294, 295, and 298 (reproducing License Agreements signed by H.B. Ahlberg, predecessor-in-tile to plaintiffs Walker (dated June 17, 1987), N.P. Gledhill (dated June 15, 1987), and C.R. Carroll (dated June 13, 1987), respectively).
[Note 65] See Harman-Ashley Deed (Ex. 36), supra note 9.
[Note 66] See Ex. 108, supra note 4.
[Note 67] See Tr. 1-140:12-19 (Rowley):
Q: [I]n your research or your survey work, youve never seen anything that would indicate that there was vehicular traffic historically between the Hyman and Van Iderstine properties; have you?
A: I dont no; no, its too narrow and certainly once you get onto the dune portion of it, it would be almost impossible to travel by vehicle, I would think.
[Note 68] See Tr. 1-166:21 to 1-168:21 (Reynolds):
A: At one point, Braddock Street came off of Bank Street, went west and came south and ended at our house, and we would walk south over the dune [to the beach].
A: Braddock Street was kind of like a path, and it became paved. And as I recall it was about the time that Braddock Street, you know, went it cut through the dune.
Q: And when you say cut through the dune, are you talking about the area that now is between the Van Iderstine and Hyman property?
A: No. The area between our house and what I refer to as the McCaffery house [Rowley Lot Nos. 15 and 17].
Q: So at that point you had to go over a dune to get down toward the beach?
A: Yeah. Oh, well, I mean we walked out our house is on the highest point, so we sat on the top of the dune; so we went down the dune.
Q: And at some point was Braddock Street what is now known as Braddock Street, paved all the way down and then easterly toward Bank Street?
Q: Do you recall what decade it was?
A: I would say as I recalled some time in the early 50s.
[Note 69] See Cowdery Deed (Ex. 51), supra note 15.
[Note 70] See Van Buskirk Deed (Ex. 66), supra note 21.
[Note 71] See Bloom Deed (Ex. 45), supra note 21.
[Note 72] The plaintiffs cite only two instances of the term subdivision by deed appearing in our jurisprudence, both involving the same land at issue in this case (Braddock Phillips land in Harwichport).
The first instance is a Superior Court case involving parties not relevant to this case which mentions the subdivision-by-deed theory in a conclusory manner without evidence or explanation. See Ex. 117 (reproducing Worcester Supply Co., Inc., d/b/a Seadar Inn v. Henry B. Ahlberg et al, Barnstable Superior Court Civil Action No. 45452, Memorandum of Decision, at page 1 (July 11, 1986) (Nixon, J.) (The area was developed many years ago by one Braddock Phillips in a so-called subdivision-by-deed.), affd by Worcester Supply Co., Inc. v. Ahlberg, 25 Mass. App. Ct. 1102 (1987) (summary disposition)).
The second instance is a brief from the appeal of that Superior Court case written by the attorney for the current plaintiffs. See Ex. 175 (reproducing Worcester Supply Co., Inc. v. Henry B. Ahlberg et al, Appeals Court No. 86,1321, Brief for Defendant-Appellee Joseph Hyman, by Brian Hurley, Esq., at page 3 (The area was at one time owned entirely by one Braddock Phillips, who subdivided it by deed during the early part of this century.).
Besides these two instances, the plaintiffs have not submitted, nor has this court located, any other case in which a subdivision-by-deed theory has been applied. Regardless, we will analyze the record for evidence of the theory.
[Note 73] The analysis was limited to the lots located along the interior roads because they created the structure of Braddocks subdivision and also were most likely to need an easement to travel over the Private Way, since the lots fronting on Lower Bank Street could have accessed the public beach at the bottom of that road. Thus, the lots on the interior roads are more relevant in determining whether Braddock intended to create a subdivision with a common scheme.
The interior roads are those comprising the Braddock Street C and include the upper east-west section of Braddock Street; the vertical north-south section of Braddock Street; and the lower east-west section that is Braddock Lane.
[Note 74] See Ex. 18, supra note 47 (northern boundary is a road).
See also Ex. 73 (reproducing Deed from B. Phillips to A.M. Chase, dated Oct. 16, 1920, and recorded at Book 374, Pages 315-16) (northern boundary is a town road).
See also Ex. 327 (reproducing Deed from B. Phillips to W.E. Keach, dated Sept. 2, 1920, and recorded at Book 370, Pages 549-50) (southern boundary is a road). Comparing the deed descriptions with the parcels on the Rowley Lot Map, it is clear that these three deeds refer to the Braddock Lane portion of Braddock Street.
Interestingly, Ex. 73 refers to Braddock Lane as a town road even though it was not officially a town road at this time (the parcel does not border Lower Bank Street, the only official town road in Braddocks day). A subsequent deed to the same lot from the same year referred to it as a thirty foot road. See Ex. 68 (reproducing Deed from A.M. Chase to W.E. Keach, dated Nov. 12, 1920, and recorded at Book 378, Page 67). In any event, the deeds show that Braddock Lane was an established road, regardless of whether it was officially a town road.
[Note 75] See Ex. 18, supra note 47 (western boundary is a proposed road).
See also Ex. 29 (reproducing Deed from B. Phillips to J. Smyser, dated Sept. 21, 1922, and recorded at Book 394, Page 021) (eastern boundary is a proposed road).
See also Ex. 77 (reproducing Deed from B. Phillips to A.R.V. Fenwick, dated Mar. 8, 1922, and recorded at Book 387, Pages 112-13) (western boundary is a proposed road leading to the beach).
See also Ex. 78 (reproducing Deed from B. Phillips to A.R.V. Fenwick, dated Sept. 14, 1920, and recorded at Book 375, Page 293) (western boundary is a proposed road).
See also Ex. 327, supra note 74 (western boundary is a proposed road). Again, comparing the deed descriptions with the parcels from the Rowley Lot Map, it is clear that these deeds refer to the vertical section of Braddock Street.
The description of Braddock Street as a proposed road is also consistent with the testimony of plaintiff Marlyn G. Harman-Ashley Reynolds that the lower part of the vertical section of Braddock Street was a sandy path until the town paved the street in the early 1950s. See Tr. 1-166:21 to 1-168:21 and supra note 68.
[Note 76] See the Leila Smyser Deed (Ex. 26), supra note 34 (northeast corner at a stake and private way). This private way is likely not the Private Way at issue in this case. A subsequent deed of this lot replaces the phrase private way with Braddock Lane in the deed description. See Ex. 25, supra note 35 (Parcel III).
See also Ex. 81 (reproducing Deed from B. Phillips to W.E. Keach, dated Sept. 8, 1925, and recorded at Book 423, Page 073) (eastern boundary is a forty foot wide private way).
See also Ex. 330 (reproducing Deed from B. Phillips to A. Moody, dated Nov. 26, 1923, and recorded at Book 402, Page 343) (southern boundary is a private way or road, 40 feet wide, and at a distance of 73.78 feet from Bank Street).
Comparing the deed descriptions with the parcels from the Rowley Lot Map, it is clear that the deed in Ex. 330 refers to the upper east-west section of Braddock Street and the deed in Ex. 81 refers to the vertical section of Braddock Street.
[Note 77] That Earle continued to convey individual lots in a similar manneri.e., referencing and bounding along the interior roadsonly confirms the existence of a subdivision by deed. The only difference is that the roads were already well-established by the time Earle began conveying lots, whereas Braddock began the process of laying out the interior roads.
[Note 78] See the 1895 Small Deed (Ex. 14), supra note 40. The plaintiffs argue that this language put other lot owners on notice that Braddock intended the beach to be used in common and should support the existence of a common scheme. We are not persuaded.
The plaintiffs have failed to provide any evidence of who these others were that shared beach rights with Small. First, at the time of the conveyance to Small, Braddock owned all of the land surrounding Smalls lot, except for two parcels bounded on Bank Street and the beach, neither of which would have needed to share beach access rights. There were no other lots in the subdivision that could have shared these rights with Small. Further, over the next 25 years, Braddock only conveyed land along the beach. Again, none of these lots would have needed to share beach rights with anyone. When Braddock finally conveyed lots within the interior of the subdivision, he made no mention of any common or shared beach rights in those deeds. Since there is no conceivable group of others with which Small could have shared his beach rights, we cannot find that the language in his deed supports a common scheme.
[Note 79] Before 1925, Braddock owned all of the beachfront land west of the Kroll (now Van Iderstine) property, including the land that would become the Private Way. The Private Way came into existence instantaneous with the conveyance of the Smyser (now Hyman) property, which set its western boundary. See Leila Smyser Deed (Ex. 26), supra note 34 (setting the eastern boundary of the lot by a metes and bounds description and not in range of land of Kroll, which Braddocks contemporary deeds had done to indicate an adjoining boundary).
[Note 80] See Ex. 155 (reproducing Deed from B. Phillips to M.A. & J.C. Jones, dated Dec. 10, 1926, and recorded at Book 442, Pages 107-08) [hereinafter the Jones Deed].
[Note 81] See Exs. 36, 45, 66, 51, 83, 85, 87, 90, 94, 97, 99, 103, 154, 332, 333 (This conveyance is made subject to the following restrictions: Only one dwelling house to be built on said lot. No night camps or small houses. Plans of proposed houses to be built to be submitted to Earle W. Phillips for his approval.).
[Note 82] See Ex. 334 (reproducing Deed from E. Phillips to R.E. & M.A. Mitchell, dated July 6, 1950, and recorded at Book 760, Pages 369-70) granting a right of way over Braddock Street . (ALSO a right of way Southerly from the Southwest corner of said Braddock Street to the beach, said right of way being just west of the former Kroll property. Said rights of way are granted as appurtenant to the land which said Mitchells recently have purchased from Elizabeth Dunker, et al.) (Lot 25 on the Rowley Map.) .
The deed from Dunker to Mitchell is recorded on the next page. See id. (reproducing Deed from E.H. Dunker & B.M. Moynihan to R.E. & M.A. Mitchell, dated June 28, 1950, and recorded at Book 760, Page 370).
[Note 83] See Tr. 1-43:14-17 (Opening Statement of Van Iderstine) ([A]t this point in time, my clients are out of the issue of whether or not we have title to the tide lands, the plaintiffs have conceded that we do.); see also Van Iderstine Memo, at 11 (Because the Plaintiffs have waived any claim to the tidelands at the Van Iderstine property, implicitly they have acknowledged that the Van Iderstines own such area.).
[Note 84] The discrepancy alleged is between the boundary by mean high water of Nantucket Sound in the Leila Smyser Deed and boundaries by the sea or by the sea shore in earlier deeds. Compare the Leila Smyser Deed (Ex. 26) (1925), supra note 34, with the following deeds:
Ex. 1 (reproducing Deed from B. Phillips to W. Brown, M. Brown, & W. Keach, dated Feb. 13, 1895, and recorded at Book 227, Page 101) (thence southerly into the sea. Thence westerly by the sea shore to a stake and stone) (emphasis added);
Ex. 75 (reproducing Deed from B. Phillips to A.M. Chase, dated Dec. 11, 1907, and recorded at Book 286, Page 386) (continuing same course into the sea; thence westerly by the sea) (emphasis added).
Ex. 16, supra note 41 (1907) (continuing same course into the sea; thence westerly by the sea) (emphasis added). The plaintiffs post-trial memorandum mistakenly lists Ex. 15, supra note 45, here. That exhibit reproduces a later deed of this same parcel. In any event, the deeds contain the same language describing the lot in reference to the sea. Plaintiffs Memo., at 28.
Ex. 17, supra note 46 (1914) (bounded on the south by the sea shore) (emphasis added).
These five deeds conveyed the entire stretch of shoreline that was part of Phillips original tract of land. Exs. 16 and 17 are the shoreline sections of the Van Iderstine property.
[Note 85] See Plaintiffs Memo, at 35-36. Nowhere do plaintiffs argue that Braddock expressly reserved title to the flats. Instead, they rely on the combined effect of at least ten different conveyances spanning a period of four decades in order to evince Braddocks intent.
[Note 86] See supra note 78 and accompanying text for discussion of the 1895 Small Deed.
[Note 87] According to plaintiffs, title to the beach has purportedly come to rest in them based on the following series of conveyances:
Th[e] land below high water mark was conveyed to Earle W. Phillips by deed of Agnes M. Chase, as trustee under the Will of Braddock G. Phillips, by deed dated May 7, 1937, recorded in Book 527, Page 042 (Trial Exhibit 37). It then passed to the heirs of Earle W. Phillips, documented by the Affidavit of Kinship by Theodore Small, recorded April 25, 2008 at Barnstable Registry of Deeds Book 22,858, Page 094 (Trial Exhibit 157), by whom it was conveyed to plaintiff Marlyn H. Reynolds, by deed recorded April 23, 2008, at Book 22,851, Page 339 (Trial Exhibit 106). She conveyed it to herself and the other plaintiffs by a deed recorded September 2, 2008, at Book 23,132, Page 53 (Trial Exhibit 107).
Plaintiffs Memo., at 28.
[Note 88] See the Leila Smyser Deed (Ex. 26), supra note 34 (emphasis added).
[Note 89] Plaintiffs assert that two earlier deeds referred to the Private Way: one in 1920 as a proposed road, see Ex. 18, supra note 47; and another in 1922 as a proposed road leading to the beach, see Ex. 77, supra note 75. However, both of these references are consistent with the period of time when the lower portion of Braddock Street was impassable due to its sandy condition. See supra notes 67-68 and accompanying text for discussion of the condition of Braddock Street before it was paved. Accordingly, there is significant doubt whether these deeds refer to the Private Way at all.
[Note 90] Since the plaintiffs do not hold title to the Hyman flats, we decline to address their arguments that Hyman owns only to the 1925 high water mark and that the plaintiffs own the increase in land due to accretion. Plaintiffs Memo, at 42-44.
[Note 91] See Leila Smyser Deed (Ex. 26), supra note 34; 1895 Small Deed (Ex. 13), supra note 42. See also supra note 79 (discussing land retained by Braddock).
[Note 92] The Private Way did not exist at the time of the conveyances to Kroll (Van Iderstines predecessor in title) but rather came into existence following the conveyance from Braddock to Smyser, which described the Way as the eastern boundary of the parcel and established the Ways western edge. See Leila Smyser Deed (Ex. 26), supra note 34.
Under the Derelict Fee Statute, G.L. c. 183, §58, Every instrument passing title to real estate abutting a way shall be construed to include any fee interest of the grantor in such way. Prior to the enactment of c. 183, § 58, however, the common law rule governed, and therefore Smyser, as owner of a lot described as abutting the Way, acquired title to the centerline. See Boston v. Richardson, 13 Allen 146 , 152-153 (1856) ([T]he title of the owner of land abutting on a highway must be presumed to extend to the centre of the highway.) Braddock retained an interest in the land between the Smyser and Kroll properties. The conclusion Braddock intended and so retained such an interest is supported by his subsequent grant of an easement over the Way in favor of Jones. See also Jones Deed (Ex. 155), supra note 80; see also Kane v. Venzura, 78 Mass. App. Ct. 749 , 755-56 (2011) (examining surrounding circumstances to conclude grantor retained power to grant easement rights over a way to the beach despite conveying out adjoining parcels and the operation of the Derelict Fee Statute).
Therefore, the subsequent easements to the Plaintiffs over the Way granted by Earle Phillips, as Braddocks successor in title, were valid. Once the Derelict Fee Statute went into effect, the Smyser property assumed title to the rest of the Way, subject to the easements. See Post v. McHugh, 76 Mass. App. Ct. 200 , 204 (2010), citing Adams v. Planning Bd. of Westwood, 64 Mass. App. Ct. 383 , 389 (2005) (landowner who acquired fee interest in way under Derelict Fee Statute acquired interest subject to easements burdening the way).
[Note 93] See Tr. 3-25:11 to 3-26:12 (Van Iderstine):
A: He, with agreement with Joe Hyman, each moved their signs back about 10 feet or so from what we could best determine to be the property line to provide association members a wider area of beach in which to sit. So it went from approximately 20 feet to I would say approximately 40 feet wide.
Q: And what was the -- I mean, youve told us that he wanted to provide them with a wider place to sit; do you know how that came about?
A: Well, I think that there was some mention by residents along the lane that it was a narrow area there, and it was difficult for them to be able to stay within the confines of the property lines, just due to the fact it was narrow. So in the interest of not having conflicts and not having to keep chasing people and to accommodate their ability to enjoy the beach, it seemed like a prudent solution.
In their testimony, the Plaintiffs did not generally dispute the width established by the BA Agreement or the general observance of the boundaries by the members. See Tr. 2-174:19 (Gledhill) (testifying to staying within the boundaries); Tr. 2-113:9 to 2-115:19 (Carroll) (testifying that the family joined the association, used the pennants and were aware of the rules). Walker testified that she was generally aware of the boundaries established, but could identify no particular source of the information: It was sort of you understood. Tr. 3-10:21 (Walker).
[Note 94] Defendant Van Iderstines Attorney, Mr. Sabatt, in his opening statement, when speaking of the plaintiffs, observed as follows:
And they have a right to use the beach, to sit on the beach. If you were to draw two imaginary parallel lines down to the waters edge, they certainly have the right to stay in that area, but they do not have the right to cross over onto out property. They do not have a right to come over to our side. We are to the east of that lane. And we would say, for that matter, nor do they have the right to cross over to the west side, over to the Co-defendants Hymans. Tr. 1:44-45.
Defendant Hymans Attorney, Mr. Hurley observed as follows, in his opening statement:
Now from our perspective in reality we view the case as really being over once he [Braddock Phillips] dies in 1927, because he conveys what he owns in that beach in the 1925 deed to Leila Smyser. Tr. 1-49. (emphasis added)
[W]hatever Earle [Phillips] may or may not have granted after 1925, it is meaningless because he had nothing to convey, at least as it relates to the beach. And that really is the essence of our case. Tr. 1-49. (emphasis added)
When alluding to the beach, Hymans counsel was referencing, not any rights existing in the Private Way, but to any purported rights beyond the bounds of the said Way.
[Note 95] As discussed supra, only Carroll, Gledhill, and Walker have valid express easement rights over the Private Way to the private beach, so this discussion pertains only to them. In any event, Reynolds & Huber did not sign a license agreement.
[Note 96] As discussed supra, only Carroll, Gledhill, and Walker have valid express easement rights over the Private Way to the private beach, so this discussion pertains only to them. In any event, Reynolds & Huber did not sign a license agreement.
[Note 97] At trial, Carroll and Gledhill offered testimony which this court credits, that they had no intention of forfeiting their easement rights when they signed the license agreements. Tr. 2-105:8 to 2-106:1 (Carroll); Tr. 2-182:20 to 2-183:8 (Gledhill). This court notes, nonetheless, that they signed a document that is objectively inconsistent with claims they have advanced in this case.
[Note 98] Which are part of the said properties.
[Note 99] To the extent the requests for findings of fact and rulings of law are consistent herewith, they are hereby allowed. They are otherwise denied.