MARLYN G. HARMAN-ASHLEY REYNOLDS & JOAN E. HARMAN-ASHLEY HUBER, ALFRED T. WALKER & HEATHER R. WALKER, CORNELIA R. CARROLL, and NAOMI P. GLEDHILL v. BETH A. HYMAN & LEAH HYMAN, as Trustees of the 11 Braddock Lane, Harwichport Nominee Trust, and MARTHA C. VAN IDERSTINE

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 defendant’s 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 Hyman’s property predicated upon the theory that Braddock Phillips reserved title to the said flats from the conveyance to Hyman’s 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 Braddock’s 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 Braddock’s 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. D’Elia in 1961. [Note 17] The D’Elias, 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 Harold’s 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. D’Eletto, as Trustee of the Pumpkin Seed Realty Trust, in 1984. [Note 37] D’Eletto 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 & Huber’s 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 Walker’s 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 Carroll’s 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 Gledhill’s 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]

Discussion

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

Express Easements

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

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 court’s 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

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

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 Iderstine’s 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.

Implied Easements

To prove the existence of an implied easement, Reynolds & Huber advance a two-pronged theory. Initially, they argue that Braddock Phillips created a“subdivision 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 Braddock’s 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 court’s decision as to the “common scheme” element of the plaintiffs’ argument, it need not opine on the existence of a “subdivision by deed.”

Common Scheme

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 Earle’s approval for all building plans. [Note 81] The frequency with which these provisions appear in Earle’s 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 developer’s intent than has been submitted in the instant case. See, e.g., Bacon v. Onset Bay Grove Ass’n, 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 Earle’s 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, Small’s 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 Hyman’s 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 Braddock’s 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, Earle’s subsequent grant of express easements reveals nothing of Braddock’s intent to convey the flats because Earle’s grants occurred after Braddock’s 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. Carroll’s easement extends “southerly over Braddock Street to the beach.” Gledhill’s 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 owner’s 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.

Conclusion

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]