WILLIAM S. RICCI, individually, and as Trustee of the MARY H. RICCI 1997 REVOCABLE TRUST, et al. [Note 1] v. FREDERIC W. BLYTHE [Note 2], EDWARD R. SIEGFRIED, MARGO M. SIEGFRIED, SAVE POPPONESSET BAY, INC., and COMMONWEALTH OF MASSACHUSETTS.

INTRODUCTION

This case concerns the Plaintiffs' claims to hold water access and beach rights in registered land in an area of Mashpee, Massachusetts known as Popponesset Beach, [Note 3] adjacent to what they contend are filled tidelands. [Note 4] The one-hundred and one (IOI) Plaintiffs claim to hold certificates of title to a total of seventy (70) lots within the 400 ± lot Popponesset Beach development. [Note 5] The seventy (70) lots are located in varying proximity to the beaches and waters in and surrounding said development, and are shown on a series of subdivision plans approved between 1946 and 1962 in Land Court Registration Case No. 11408.

Defendants Frederic W. Blythe and Melissa P. Phillips own Lot 5-E shown on Plan 11408-V, and Defendants Edward R. Siegfried and Margo M. Siegfried own Lot 5-B shown on said Plan. Plan 11408-V also shows a thirty-foot wide, unnamed "Way" running between Wading Place Road on the west and Poponesset Creek on the east. Both Lot 5-E and Lot 5-B are shown as bounding on said Way and the Creek.

Defendant Save Popponesset Bay, Inc. ("SPB") owns Lot B and Lot B-1, which are shown on plans in Registration Case No. 11408 as comprising a long, narrow strip of land, extending from the southeasterly end of Wading Place Road, and continuing in a southeasterly direction between Nantucket Sound on the south and Poponesset Bay on the north. This land is referred to by the parties as the "Spit."

Defendant Commonwealth of Massachusetts owns Lot 4 which, although identified as such on several of the plans in Case No. 11408, was expressly excluded from the original Registration Decrees issued for the land in Case No. 11408, and was never owned by any of the Popponesset Beach developers. [Note 6]

Beginning in the late 1950's and early 1960's, the shoreline of Poponesset Creek was significantly altered by a combination of natural and artificial fill, creating a large expanse of land in the vicinity of the Defendants' lots (the "Filled Area"). In Count I of their Complaint, the Plaintiffs claim that the filling resulted in an extension of the Way to the present mean low water line of the Creek, and that the Plaintiffs each have deeded rights over the Way, as so extended, to access the mean low water line of the Creek, the beaches in the Filled Area, and the Spit. They seek an order enjoining the Defendants from interfering with such access.

In Count II of their Complaint, the Plaintiffs claim that the Filled Area should not be treated as registered land because the filling was done illegally, and that the Plaintiffs have, moreover, acquired rights to use and enjoy the beaches in the Filled Area through adverse possession or prescription.

In Count III of their Complaint, the Plaintiffs seek a declaratory judgment that they each have a right of passage over the Way from Wading Place Road to the present mean low water line of the Creek, and that their titles, accordingly, include so much of the Filled Area which forms an extension of the Way to such line. In Count IV, the Plaintiffs claim that the Defendants may not lawfully claim title to the Filled Area because the filling was done illegally. They seek an order dividing ownership of the Filled Area among the Plaintiffs and the Defendants, subject to the Plaintiffs' rights to use and enjoy that area for access to the Spit, and for beach and recreation purposes.

Finally, in Count V of their Complaint, the Plaintiffs claim that they (and unnamed others) have rights to use the Way and the Spit as a result of the developer's marketing representations that the Spit would be one of several private beaches available to anyone who purchased a lot in the Popponesset development. They claim that the benefits promised were an inducement to purchase lots in the Popponesset Beach development, imposing an equitable servitude on the Filled Area and the Spit, reflecting the Plaintiffs' rights to use and enjoy these areas for access, passive recreation, and beach purposes. The Plaintiffs also seek an order prohibiting the Defendants from interfering with the Plaintiffs' (and other Popponesset community members') use and enjoyment of the Filled Area and the Spit for such purposes.

THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT

Defendants Blythe, Siegfried, and SPB have jointly moved for summaiy judgment under Counts I, III, IV and V. [Note 7] With respect to Counts I, III, and V, the Defendants [Note 8] seek summary judgment: (a) that the Plaintiffs have no express or implied easements to cross over the Way, the Filled Area, or any other land owned by the Defendants, in order to access the Creek, the Spit, or any other land or body of water; (b) that the Filled Area adjoining the Defendants' waterfront lots became part of their registered land at the moment of accretion, as a matter of law; and (c) that the Plaintiffs' claims under Counts I, III and V are, in any event, barred by waiver and laches. They further seek dismissal of the Plaintiffs' Count IV claim on the grounds that the Plaintiffs lack standing to claim illegal filling of tidelands, and that such a claim is, in any event, banned by the statute of limitations and by laches. [Note 9], [Note 10]

The Plaintiffs have filed their own Motion for Summary Judgment and have opposed the Defendants' Motion for Summary Judgment. [Note 11], [Note 12] The Plaintiffs seek summary judgment under Counts I and III that they each hold deeded rights in the Way and the Filled Area to access Poponesset Bay, Poponesset Creek, and the Spit for beach and recreational purposes by virtue of language in their own certificates of title. Alternatively, they seek summary judgment under Count V that they each hold appurtenant rights over the Way and the Filled Area by implication, based on the developer's known intentions with respect to the Popponesset Beach development, and because the Way provides their lots a necessary means of access to the Creek and the Spit. Further, the Plaintiffs seek a declaration under Count IV that the Filled Area should be treated as unregistered land because (the Plaintiffs argue) the filling was done illegally. They contend that, in any event, the Defendants are estopped from claiming registered ownership of the Filled Area because their predecessors in title elected to record deeds to the Filled Area outside ofthe Land Court Registration system. [Note 13]

Summary judgment is appropriate only where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544 (2004). In this case, the parties have stipulated to numerous facts and documentary exhibits, although they argue over the implications of the agreed upon facts, and also dispute the relevancy and admissibility of several of the "agreed" exhibits. [Note 14], [Note 15]

As discussed in more detail below, the summary judgment record establishes that some, but not all, of the Plaintiffs share deeded appurtenant rights in and over the subject Way for the purposes of accessing the lots and other ways in the Popponesset Beach development and for accessing public ways, but that none of the Plaintiffs hold deeded rights to access the Bay, the Creek, or the Spit for beach or other recreational purposes. More specifically, the record demonstrates that only fifty-eight (58) of the Plaintiffs are entitled to summary judgment that they hold deeded appurtenant easements to use so much of the Lot 5-E and Lot 5-B land as is located within the boundaries of the Way shown on Plan 11408-V, for purposes of accessing other ways and lots in the Popponesset Beach development, and for accessing public ways. Said Plaintiffs are not, however, entitled to judgment that they hold appurtenant easements over the Way for purposes of accessing the Bay or the Creek (except incidentally), or for accessing or using the Spit or other shore areas for beach or recreational purposes. The further questions raised under Count III as to whether the rights of these fifty-eight (58) Plaintiffs to travel over the Way now extend across the Filled Area to the present mean low water line of the Creek and, if so, in what location, cannot be decided on summmy judgment.

Also, all of the Plaintiffs' claims under Count V fail on summary judgment because, as a matter of law, the Defendants' registered land cannot be burdened with implied easements, easements by necessity, or equitable servitudes. Finally, because of the many disputed facts surrounding the nature and origin of the Filled Area and the consequential changes to shorefront property boundaries, neither party is entitled to summary judgment under Count IV.

UNDISPUTED MATERIAL FACTS - COUNTS I, III and V

With respect to the Plaintiffs' claims under Counts I, III and V to hold rights in and over the Way, the Filled Area, and the Spit, I have determined on the basis of the parties' statements of undisputed facts, their agreed upon exhibits, and the undisputed exhibits appended to the their respective summary judgment motions, that the following material facts are not in dispute.

1. Ninety-nine (99) of the Plaintiffs [Note 16] hold certificates of title for a total of sixty-eight (68) lots in a large subdivision in Mashpee, Massachusetts, known as "Popponesset Beach." Said lots are shown on a series of subdivision plans approved in Land Court Registration Case No. 11408 between 1946 and 1962.

2. Defendants Frederic W. Blythe and Melissa P. Phillips (together, "Blythe") own the property at 228 Wading Place Road in the Popponesset Beach development. Frederic W. Blythe originally acquired said property under Transfer Certificate of Title No. 89769, issued on October 1, 1982. The Blythe property is identified as Lot 5-E on Plan 11408-V (the "V Plan").

3. Defendants Edward R. Siegfried and Margo M. Siegfried (together, "Siegfried") own the property at 220 Wading Place Road in the Popponesset Beach development, under Transfer Certifi­ cate of Title No. 143465, issued on January 31, 1997. The Siegfried property is identified as Lot 5-B on the V Plan.

4. Defendant Save Popponesset Bay, Inc. ("SPB") is a Massachusetts non-profit corporation, which owns Lot B and Lot B-1, as shown on Plan 11408-C. The land comprising Lots B and B-1 was part of the original tract of land registered in 1929 to Greater Cotuit Shore Company in Registration Case No. 11408 and described in Certificate of Title 1913. Lots B and B-1 are referred to by the parties as the "Spit."

5. The V Plan was approved in 1949. It shows the subdivision of an area ofland which was originally registered on December 17, 1923 in Registration Case No. 9372, and described in Certificate of Title No. 784 issued to William F. Makepeace et al, Trustees (the "MakepeaceLand").

6. Lot No. 9 of the Makepeace Land was transferred to Herbert A. Wilson in 1925, by transfer Certificate No. 943. The remainder of the Makepeace Land was transferred to James M. Burr in 1925, by transfer Certificate No. 1132.

7. All of the Makepeace Land described in Certificate No. 1132 was conveyed to Realty Operators Corporation ("Realty Operators") [Note 17] under Certificate of Title No. 6172 on February 26, 1942. Said land was absorbed into the 11408 case number and subdivided in 1939 by Plan 11408-D. Lot No. 9 of the Makepeace Land was absorbed into the 11408 case number and subdivided in 1952 by Plan 11408-4.

8. On August 20, 1947, by transfer Certificate No. 9093, Realty Operators transferred the portion of its land that later comprised much of the Popponesset Beach development to a separate entity called Popponesset Corporation. The land transferred to Popponesset Corporation included all of the land shown as Lots C and D on Plan 11408-K, and numerous lots shown on the 11408-H, 11408-I and 11408-J Plans.

9. The V Plan shows the subdivision of Lot C on Plan 11408-K, and does not include the Spit.

10. The V Plan depicts a thirty-foot wide, unnamed "Way" running between Wading Place Road on the west and Poponesset Creek on the east (the "Way"). Lots 5-B and 5-E are shown on the V Plan as bounding on opposite sides of the Way, and on Poponesset Creek.

11. Blythe's certificate of title contains the following description of Lot 5-E:

Southerly by Lot 4 Block P, one hundred fifteen and 21/100 (115.21) feet;

Westerly by Lot 50 Block P, one hundred and 27/100 (100.27) feet;

Northerly by a Way 30 feet wide about seventy-eight feet; and

Easterly by Popponesset Creek.

All of said boundaries, except the water line, are determined by the Court to be located as shown on subdivision plan 11408-V dated August 23, 1948 ... (Emphasis added.)

12. Siegfried's certificate of title describes the land as "Lot 5-B (Block P) Plan 11408-V." Although the Siegfried Certificate does not include a linear boundary description of Lot 5-B, the 1952 transfer certificate of title registered to Siegfried's predecessor in interest, Francis J. Reidy, includes the following description of Lot 5-B:

Southerly by a 30 foot Way, about one hundred twenty three and 45/100 (123.45) feet;

Westerly by Lot 5-A (Block P), seventy-nine and 90/100 (79.90) feet;

Northerly by Lot 6-B (Block P), about ninety-six (96) feet; and

Easterly by Popponesset Creek.

All of said boundaries, except the water lines, are determined by the Court to be located as shown on subdivision plan 11408-V dated August 23, 1948 ...

(Emphasis added.)

13. Both the certificate of title issued to Defendant Blythe for Lot 5-E, and the certificate of title issued to Defendant Siegfried for Lot 5-B, include only the following encumbrance language which might pertain to rights of others to use the Way: [Note 18]

So much of the above described land as is included within the limits of the ways, streets and avenues shown on the plans in this Case Number is subject to the rights of all persons lawfully entitled thereto in and over the same; and to rights of way in favor of the owners or occupants for the time being of Lots 4-A, 4, 9, 10 and 2.

14. The certificate of title issued to Blythe for Lot 5-E contains the following description of an appurtenant right of way to said Lot:

There is appurtenant to said land a right of way in common with Popponesset Corporation and all others entitled thereto in and over the streets and ways shown on Plans 11408-H-I-J-L-M­N-O-Q-R-S-T-U-V-W-X-Y- and 11408-1.

15. Siegfried's certificate contains the same appurtenant right of way description as contained in the Blythe Certificate, except that it additionally includes a right of way over the streets and ways shown on Plan 11408-2.

16. Fifty-seven (57) of the Plaintiffs hold a total of forty (40) certificates of title [Note 19] which expressly recite appurtenant rights "in common with Popponesset Corporation and all others entitled thereto," either to use the streets and ways shown on the plans in case number 11408, or to use the streets and ways shown on a list of specific plans in case number 11408 which includes the V Plan.

17. One (1) of the Plaintiffs holds a certificate of title [Note 20] reciting that the land has "the benefit of rights in and over the streets and avenues shown on the plans in this Case Number, in common with all others legally entitled thereto."

18. Two (2) of the Plaintiffs hold a total of three (3) certificates of title, [Note 21] in which the only appurtenant right of way described is:

...a right of way for foot travel to the beach for bathing purposes in common with the other purchasers of land in that vicinity in such location as shall be determined in the future by William F. Makepeace et al... [Note 22]

19. Sixteen (16) of the Plaintiffs hold a total of ten (10) certificates of title [Note 23] which list as appurtenant to the subject land the right to use specific streets, or a specific route, to reach a public way in the Town of Mashpee. The specific streets or routes mentioned in saidcertificates do not include the Way.

20. Twenty-three (23) of the Plaintiffs hold a total of twelve (12) certificates of title [Note 24] which are silent as to any rights of way appurtenant to the subject land.

21. Beginning in the 1950's, the shoreline of Poponesset Creek was significantly altered by a combination of natural accretionmand artificial fill, resulting in a large expanse of land in the vicinity of the Defendants' lots (the "Filled Area").

22. On October 7, 1981, Walter J. Kalnin and Shirley N. Kalnin, Kenneth A. Porter and Marion T. Porter, William S. Ricci and Mary H. Ricci, [Note 25] George W. Dyment and Mary A. Dyment, Allen E. Caffyn and Nancy J. Caffyn, Lawrence P. Tortilla, and Florence A. Tortorella, filed suit in the Land Court against Norman K. Andrew and Alice M. Andrew (the then-owners of Lot 5-B) and the Town of Mashpee. In said Case No. 11408-S, entitled "Petition to Determine Rights of Parties to Ways on Plan," the petitioners seek: (1) a declaratory judgment that "their use of the way to reach the water is as set out in their Certificates of Title," and; (2) an order "for the removal of all obstructions barring such ingress and egress to the water." There has been no disposition in the 1981 case and, until July 2009, [Note 26] there had been no activity in the case since February 15, 1983.

DISCUSSION

Appurtenant Deeded Rights In and Over the Way - Counts I and III

The Plaintiffs each claim to hold an appurtenant easement in and over the Way to the present mean low water line of Poponesset Creek, as well as to the Spit, by virtue oflanguage contained in the certificates of title to their respective lots, referencing appurtenant rights in and over ways and streets shown on the Plans in Case No. 11408. As will be discussed below, not all of the Plaintiffs' certificates actually include such a reference. But more importantly, the language appearing in the Plaintiffs' certificates is not the controlling factor in determining whether the Defendants' lands are encumbered by the claimed easements in the Way. Because the Plaintiffs claim easement rights in and over registered land, their claims must first be examined with reference to the encumbrances described in the certificates of title for the land over which they claim to hold the appurtenant easements. Duddy v. Mankewich, 75 Mass. App. Ct. 62 , 66 (2009).

The registration statute requires that a decree of registration, and the subsequent certificates of title, "shall set forth ...all particular ... easements ... to which the land or the owner's estate is subject." G. L. c. 185, § 47 (emphasis added). [Note 27] Pursuant to G. L. c. 185, § 46, holders of certificates of title to registered land take "free from all encumbrances except those noted on the certificate." Jackson v. Knott, 418 Mass. 704 , 710 (1994). There are only two recognized exceptions to the rule that an easement cannot affect registered land as a servient estate unless it is disclosed on the certificate of title registered for the land to be encumbered. These two recognized exceptions are: "...(1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest." Jackson v. Knott, 418 Mass. at 711.

Here, there are no encumbrances listed on the certificates of title for either Lot 5-E or Lot 5-B describing easements for use of the Way specifically in connection with any of the Plaintiffs' lots. Moreover, as will be explained, only fifty-eight (58) of the Plaintiffs have met their burden to establish that their claims fall within one of the two exceptions recognized in Jackson v. Knott.

The certificates of title issued to Blythe and Siegfried for Lots 5-E and 5-B, respectively, recite only the following encumbrance language relevant to rights of others to use the Way: [Note 28]

So much of the above described land as is included within the limits of the ways, streets and avenues shown on the plans in this Case Number is subject to the rights of all persons lawfully entitled thereto in and over the same; and to rights of way in favor of the owners or occupants for the time being of Lots 4-A, 4, 9, 10 and 2.

Although the Way is plainly a way shown on the V Plan- a plan in Case Number 11408 -neither the Blythe nor the Siegfried certificate identifies or describes with any particularity those "persons lawfully entitled to use the ways, streets and avenues shown on the plans" in that case number. This type of general reference is simply too vague to fulfill the requirement that encum­ brances be expressly noted on the certificate of title. See, e.g., Calci v. Reitano, 66 Mass. App. Ct. 245 , 248 (2006) (language subjecting parcel to "any and all public rights legally existing in and over the same below mean high water mark" was too vague to fulfill the Registration Statute requirements for recording an easement on the certificate of title). Here, with the exception of the reference to the "owners or occupants of lots 4-A, 4, 9, 10 or 2" contained in the last clause in the above-quoted encumbrance language, [Note 29] there is no indication as to the identity or extent of any dominant estate(s) to be benefited by rights in the ways, streets and avenues shown on the V Plan, or on any of the other plans in Case Number 11408. There is also no reference in the encumbrance language to any grant(s) of easement having been made or reserved over the Way (or over the other streets and ways shown on the plans in Case Number 11408, in general) for the benefit of particular land or landowners.

I find, therefore, that the Plaintiffs' claimed appurtenant easement rights in the Way are not sufficiently disclosed on the registered titles for Lots 5-E or 5-B so as to encumber any portion of the said Lots located within the Way. [Note 30] Accordingly, the Plaintiffs' Count I and Count III claims must fail unless their claimed easement rights fall within one of the two exceptions recognized in Jackson v. Knott.

The First Jackson v. Knott Exception

In order to satisfy the first exception under Jackson v. Knott, the Plaintiffs have the burden to demonstrate that there were facts within the registration system when Blythe and Siegfried ac­ quired Lots 5-E and 5-B, which would have led them to discover that the Lots were subject to the access rights now claimed by the Plaintiffs. However, I find that only fifty-eight (58) of the Plaintiffs have demonstrated the existence of such facts relative to their claims to hold deeded appurtenant rights in and over the Way.

The summary judgment record regarding the facts available in the registration system, both in 1982 when Blythe acquired Lot 5-E and in 1997 when Siegfried acquired Lot 5-B, consists of: the registration decrees for the land included in Case Number 11408; the plans approved in Case Number 11408; the certificates of title to the Plaintiffs' lots; [Note 31] and the certificates of title for Lots 5-B and 5-E. When they acquired their respective lots, Blythe and Siegfried each would have seen the general encumbrance language on the certificates of title for their own lots, referencing the rights of persons lawfully entitled to use so much of the land "as is included within the limits of the ways, streets and avenues shown on the plans in this Case Number[11408]." They also would have seen the V Plan showing the Way described in the certificates for Lots 5-B and 5-E. Finally, they would have seen that the certificates for Lots 5-B and 5-E described, as appurtenant to those lots, "a right of way in common with Popponesset Corporation and all others entitled thereto in and over the streets and ways shown on Plans 11408-H-J-M-N­O-Q-R-S-T-U-V-W-X-Y and 11408-1." [Note 32] Consequently, I find that Siegfried and Blythe would have been obliged to review the certificates of title for the lots shown on the already approved plans in Case Number 11408 in order to determine which of the lot owners, if any, might be among those lawfully entitled to use the Way.

Such a review would have revealed at least the forty-one (41) certificates of title, [Note 33] now held by fifty-eight (58) of the Plaintiffs, which contain express references to an appurtenant right of way in and over the streets and ways, [Note 34] either as shown on plans in Case No. 11408, or as shown on a list of specific plans in Case No. 11408, including the V Plan. These express references (in either form) will hereinafter be referred to as the "Appurtenant Right of Way Language." [Note 35]

I conclude that the general encumbrance language contained in the Defendants' own certificates for Lots 5-E and 5-B, when read in conjunction with the approved plans in Case No. 11408, and with the certificates of title for the lots shown on those approved plans, would have been sufficient to identify the holders of the forty-one (41) certificates containing the Appurtenant Right of Way Language as being among those "persons lawfully entitled" to rights in and over all of the streets and ways shown on the plans in Case Number 11408, including the Way. Accordingly, I find that the fifty-eight (58) Plaintiffs who hold certificates of title containing the Appurtenant Right of Way Language have established, under the first Jackson v. Knott exception, that they hold deeded appurtenant right of way easements over the Way, including so much of the Lot 5-E and Lot 5-B land as is included within the limits of the Way. [Note 36]

The appurtenant right of way easements so established, however, do not include the beach and water access rights claimed by the Plaintiffs. While the Plaintiffs correctly argue that, in the absence of express limitations, a right of way generally may be used for any purposes reasonably necessary to the enjoyment of the premises to which the right of way is appurtenant, see, e.g., Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789 (2009), they go too far in claiming that appurtenant rights to use the ways and streets in the Popponesset development necessarily include rights to use the Way to access the Bay and the Creek, and to access the Spit and other shore areas. Absent language specifically creating additional rights, a "right of way" is ordinarily limited to purposes of travel. Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 2 Mass. App. Ct. 868 , 868 (1974).

Despite the lack of any express mention in the Blythe or Siegfried certificates (or in any of the Plaintiffs' certificates) of any right of access to the Creek, I recognize that those Plaintiffs holding certificates of title containing the Appurtenant Right of Way Language, could, as a practical matter, travel over the entire length of the Way to its very end. The Way is shown on the V Plan as ending at the Creek, and therefore at the mean low water line of the Creek. [Note 37] As will be addressed below, the issue of whether, and in what location, the Way now extends over the Filled Area to the present mean low water line of the Creek cannot be decided on this summary judgment record. Rather, it is more appropriately determined in the context of a trial on the ac­ cretion/boundary change issues presented in Count IV. However, as long as the Way continues over the Filled Area to the mean low water line of the Creek (as the Plaintiffs contend), they may gain access from the end of the Way to the flats between the mean low and the mean high water lines of the Creek. At that point, they may then rely upon their public rights to use the flats for fishing, fowling, and navigation, but not for recreation purposes. See Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 182-183 (1998).

I further find that these fifty-eight (58) Plaintiffs have failed to establish that the appurtenant rights they hold to travel over the Way encompass rights to access the Spit. The Plaintiffs have provided no evidence that there was anything available in the registration system which would have alerted either Blythe or Siegfried of any rights of others to use the Way for access to the Spit. None of the Plans in Case No. 11408 show the Way as leading to the Spit. Moreover, the certificates of title for Lots 5-B and 5-E are devoid of encumbrances explicitly subjecting the portion of said Lots located within the Way to any rights of access to the Spit. Therefore, the Plaintiffs' claimed rights of access over the Way to the Spit do not fall within the first Jackson v. Knott exception.

Forty-three (43) of the Plaintiffs have failed to establish that they are entitled under the first Jackson v. Knott exception to any easement rights in or over the Way by virtue of language in their certificates of title. More specifically, the summary judgment record does not include any information from the registration system which would have alerted either Blythe or Siegfried that these Plaintiffs are among those "persons lawfully entitled" to use the Way. Rather, the Summary Judgment record shows the following:

Sixteen (16) of these forty-three (43) Plaintiffs hold a total of ten (10) certificates of title [Note 38] which describe either appertenant rights to use only specifically named streets or routes (not including the Way), or describe appurtenant rights only in and over ways and streets shown on specific plans in Case No. 11408, which plans do not include the V Plan. Two (2) of the remaining Plaintiffs hold a total of three (3) certificates of title [Note 39] which refer solely to appurtenant pedestrian rights to access the beach over an undefined way in a location to "be determined" by the grantor. But there is no evidence that the boundaries or location of such pedestrian way was ever determined by the grantor, much less that it was determined to be in the location of Way. At best, these eighteen (18) Plaintiffs have only the limited rights of ways identified in their certificates, which cannot be construed as including rights to use the Way. Twelve (12) certificates of title [Note 40] for lots owned by twenty-three (23) of the remaining Plaintiffs are completely silent as to appurtenant rights over any streets or other ways. Finally, the names of two (2) of the Plaintiffs [Note 41] do not appear on any of the certificates of title submitted to the court on summary judgment.

Where the registry system documents would not have reasonably alerted either Blythe or Siegfried that these remaining forty-three (43) Plaintiffs (or their predecessors in title) were among the "persons lawfully entitled" to use the Way, their appurtenant easement claims fail to qualify under the first Jackson v. Knott exception.

The Second Jackson v. Knott Exception

None of the Plaintiffs have met the requirements to satisfy the second Jackson v. Knott exception. The Plaintiffs have not offered any evidence that Siegfried or Blythe had actual knowledge of any prior unregistered easement(s) in or over the Way when they purchased their respective lots. Nor have they presented evidence that there were any unregistered easements in existence at the time. Rather, the Plaintiffs rely principally upon deposition testimony in an attempt to establish that Siegfried and Blythe each acquired their lots with actual knowledge of long-time and on-going use of the Way to access and use the Creek for recreational purposes.

Whether Siegfried or Blythe had such knowledge and, if so, whether they had knowledge that any on-going use of the Way was not merely permissive, is disputed by the parties. But, in any event, actual knowledge of the Way being used would not satisfy the second exception under Jackson v. Knott, which concerns only knowledge of the existence of a prior, unregistered document or agreement creating the claimed easement. Jackson v. Knott, 418 Mass. at 713. To meet the actual knowledge exception, it is not enough that the holder of the registered title knew that the land has been used in the manner claimed, because such use could be adverse, which is not allowed under G.L. c.185, §53, or could be permissive. Commonwealth Electric Co. v. MacCardell, 450 Mass. 48 , 52-53 (2007). Rather, "there must be some intelligible, oral or written information that indicates the existence of an encumbrance or prior unregistered interest." Commonwealth Electric Co. v. MacCardell, 450 Mass. at 54, citing Emmons v. White, 58 Mass. App. Ct. 54 , 68 (2003). Because the Plaintiffs have not submitted evidence of any prior, unregistered easements known to the Defendants, they have failed to establish the existence of any rights in or over the Way by virtue of the second Jackson v. Knott exception.

The Littoral Boundary Of the Way - Counts I and III

The further issues under Counts I and III regarding whether the Way extends to the current mean low water line of the Creek as a result of accretion and, if so, in what location, cannot be determined on summary judgment. While the V Plan shows the Way and Lots 5-B and 5-E all bounding easterly on the Creek, the certificates of title for Lots 5-B and 5-E both explicitly state that the boundaries at the Creek are not determined. Such a statement reflects the long-recognized rule that littoral boundaries are not fixed, since they generally change over time through natural accretion and/or erosion. Bergh v. Hines, 44 Mass. App. Ct. 590 , 592 (1998).

Applying this rule, title to both Lots 5-B and 5-E (including the area of the Lots located within the boundary of the Way) would normally extend to the mean low water line of the Creek, subject to the rights of the public over the area between the high and low water lines. See Rockwood v. Snow Inn Corp., 409 Mass. 361 , 370 (1991); Fafard v. Conservation Commission of Barnstable, 432 Mass. 194 , 198 (2000). The line of ownership will ordinarily follow the changing water line, whether caused by natural processes, or by human intervention as long as the change was not caused by the owner(s) themselves. Lorusso v. Acapesket Improvement Association, Inc., 408 Mass. 772 , 780 (1990), citing Michaelson v. Silver Beach Improvement Association, Inc., 342 Mass. 251 , 253-254 (1961).

When, as in this case, two or more littoral owners have rights in simultaneously formed accretions, their proportionate rights in the accretions are determined by the doctrine of equitable division, with the goal of giving "each parcel the same proportion of waterfront as it would have had if the accretions had not occurred." Lorusso v. Acapesket Improvement Association, Inc., 408 Mass. at 780, 782. As there remain many disputed facts and open questions surrounding the extent and nature of changes to the Creek shoreline since the V Plan was approved, I find that an equitable determination of new boundary lines cannot be made on the basis of this summary judgment record. [Note 42]

Implied Rights-Count V

The Plaintiffs argue that, if they do not hold deeded rights to use the Way, their rights to use the Way for purposes of accessing the water and shore (including the Spit) for beach and recreation purposes must be implied. The Plaintiffs' implied easement argument is that the Popponesset Beach developer "intended" for each purchaser of a lot in the subdivision to have rights to access and use all of the waters and beaches surrounding the development. To support their argument, the Plaintiffs rely primarily on photocopies of various maps and brochures from the 1940's and 1950's which, they claim, were used in marketing the Popponesset Beach development lots as part of a 'beach community, with access to several miles of beach.

Even putting aside the problem that these documents have been stricken for failure to satisfy the requirements of Mass. R. Civ. P. 56 for materials necessary to support a summary judgment motion, [Note 43] the Plaintiffs' reliance on the intent of the Popponesset developer(s) is entirely misplaced where the purported evidence of intent is not to be found from materials within the registration system. See Jackson v. Knott, 418 Mass. at 712-713 (where the documents within the registration system disclose nothing to indicate rights in a particular way, "any reliance ... on the intent of the parties is misplaced.").

As discussed above, registered land is not encumbered by easements not described in the certificate of title unless one of the two recognized exceptions applies. Id. at 711. The numerous cases cited by the Plaintiffs in support of their implied easement theory are simply not applicable to registered land. Moreover, even if the Plaintiffs' implied easement argument is treated as a claim to hold easements in the Way by virtue of the first Jackson v. Knott exception, such claim still fails. Under the first Jackson v. Knott exception, a purchaser of registered land is required to look only at documentation within the registration system "because to require a purchaser to investigate facts not documented within that system would be directly contrary to the purposes of the Land Registration Act." Id., and cases cited therein. Thus, marketing brochures, or other similar documents not included in the registration system, can have no bearing on whether registered land is encumbered by an easement.

The Plaintiffs also argue that their rights to use the Filled Area and the Spit for beach and recreation purposes are "necessarily implied" by virtue of their lots and the Defendants' lots all being part of a beach community development. As with their claims to hold implied easements over the Way as a result of the developer's marketing, the Plaintiffs' claims to hold implied beach and recreation easements by virtue of the beach community character of the development also fail as a matter of law. Cf. Houghton v. Johnson, 71 Mass. App. Ct. 825 , 834 (2008) (in a case involving unregistered land, there were no implied easements to the beach where deeds made no reference to a "beach," and advertisements did not expressly promise access to a particular beach). Here, none of the Plaintiffs' certificates of title refer to beach rights, and none of the registration plans in Case No. 11408 label any areas as "beaches." [Note 44]

Accordingly, the Defendants are entitled to summary judgment under Count V that the Plaintiffs do not hold any implied easements to use the Way, or to use the Filled Area or the Spit for beach or other recreational purposes. In view of this determination, there is no reason to reach the Defendants, argument that Count V is barred by waiver, laches and/or the statute of limitations.

CONCLUSION

Accordingly,

Partial Summary Judgment is ALLOWED on the Plaintiffs' Motion under Counts I and III, as to the claims of the fifty-eight (58) Plaintiffs [Note 45] whose certificates of title contain the Appurte­ nant Right of Way Language, declaring that there is appurtenant to the land described in their forty-one (41) certificates of title a right of way easement to use so much of the Lot 5-E and Lot 5-B land as is located within the boundaries of the Way shown on Plan 11408-V for all purposes for which subdivision ways and streets are normally used, but that such purposes do not include access to the Creek (except incidentally), or access to the Spit or any Filled Area of the Creek for beach or recreational purposes; and further,

Partial Summary Judgment is ALLOWED on the Defendants' Motion under Counts I and III, as to the claims of the forty-one (41) Plaintiffs [Note 46] whose twenty-five (25) certificates of title are ei­ ther silent as to any appurtenant rights of way, or describe appurtenant rights of way only over specific streets or routes which do not include the Way, declaring that there are no rights in or over the Way, the Spit or the Filled Area of the Creek appurtenant to the land described in said certificates; and further,

Partial Summary Judgment is ALLOWED on the Defendants' Motion under Counts I and III, dismissing the claims of the two (2) Plaintiffs [Note 47] who failed to demonstrate that they hold any certificates of title to land in the Popponesset Beach development, and declaring that they hold no appurtenant rights in the Way, the Spit or the Filled Area of the Creek; and further,

Summary Judgment under Counts I and III is DENIED to all parties on the issues of whether, and in what manner, appurtenant rights in the Way may have been extended over the Filled Area; and further,

The Defendants' Motion for Summary Judgment under Count V is ALLOWED, declaring that the Plaintiffs hold no implied rights to use the Way, or to access and use the Spit or the Filled Area of the Creek for beach or recreation purposes; and further,

Summary Judgment under Count IV is DENIED to all parties.

No Judgment shall issue at this time.

SO ORDERED.