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17-P-1232                                             Appeals Court

  JOHN R. LOISELLE, trustee, 1 & others 2   vs.   BRIAN S. HICKEY &
                             others. 3

     1   Of the Loiselle Family Realty Trust.

     2 Jane W. Loiselle, as trustee of the Loiselle Family Realty
Trust; Stephen Campe; Karen Campe; Francis Carrick; Jeanne
Carrick; Philip J. Ciaramicoli; Gayle A. Ciaramicoli; Donald F.
Daley, as trustee of the Donald F. Daley Revocable Living Trust;
Thomas Daley; Ursula Daley; Stephen Delvecchio; Marcia
Delvecchio; Virginia L. Devine, as trustee of the Hippogriffe
Road Realty Trust; Joseph A. Donato; Diane Donato; Pamela J.
Driscoll; Robert A Furman and Carole R. Bohn, as trustees of the
Bohn-Furman Realty Trust; Richard A. Giberti; Elaine M. Giberti;
John Gray; Sarah Gray; John A. Hennessey; Susan M. Hennessey;
John F. Howard; Judith S. Howard; Martin J. Jessel; Karen
LaFauci; Lisa M. Swalec, as trustee of the Leroux Family Trust;
Joseph A. Lima and Sue E. Lima, as trustees of the Patriots Way
Realty Trust; LoVerme Bayview Limited Partnership; James G.
Maguire, as personal representative of the estate of Mary H.
Maguire; Paul Maher; Pamela Maher; Linley Mahon, as personal
representative of the estate of Geoffrey L. Mahon; Arthur
Maressa; Maria Marinescu; Sorin Marinescu; Gary McWilliams;
James T. Moshier; Thomas M. O'Hear; Kelly O'Rourke; Richard L.
O’Shea; John Palermo; Kara Palermo; Kenneth Pecore; Mark S.
Pelletier; Patricia M. Pelletier; Lewis Piantedosi; Robert M.
Pierce; Joseph J. Rahal; Mary G. Rahal; Russel A. Robbins; Diane
M. Robbins; Joseph G. Russo; WT Dennis LLC; Christopher P.
Tosti, as trustee of the BPR Irrevocable Trust, sole beneficiary
of the Tosti Realty Trust; Christopher P. Tosti; Christine
Tosti; Andrew Tvirbutas; Catherine Tvirbutas; John J. Walker;
Susan L. Walker; Michelle T. Walker; Kristin M. Walker;
Elizabeth A. Walker; and Roland W. Young.

     3 Mary P. Hickey; Lorraine M. Paglia and Robert L. Paglia,
as trustees of the Hay Dennis Realty Trust; Patricia E. Howard
and Jean Howard, as trustees of the Bayview Realty Trust; Shore
                                                                   2




                          No. 17-P-1232.

           Suffolk.      May 3, 2018. - July 27, 2018.

             Present:   Milkey, Hanlon, & Singh, JJ.


Beach. Easement.    Real Property, Registered land:    easement,
     Beach.



     Civil action commenced in the Land Court Department on June
17, 2016.

     The case was heard by Alexander H. Sands, III, J., on
motions for summary judgment.


     Justin Perrotta for John R. Loiselle & others.
     Roland W. Young, pro se.
     Sarah A. Turano-Flores for James J. Lepore & others.
     Brian M. Hurley (Jeffrey B. Loeb also present) for Brian S.
Hickey & others.


     MILKEY, J.   This is a dispute between inland and shoreland

owners over rights to use a particular beach in Dennis.    The

sixty-nine plaintiffs (inland owners) claim the right to use the



Drive LLC; Barbara G. Wells and Robert Emerson Wells, Jr., as
trustees of the Wells Nominee Trust; Mary E. Howe; Robert W.
Howe, Jr.; Peter A. Schimmel; Michael Andreottola; Susan
Andreottola; Dennis Conservation Trust; Paul W. Eysie; Paul V.
Galvani; Linda A. Galvani; Charlene E. Keady; Joseph A.
Salamone; William A. Sampson; Martha M. Sampson; Peter R.
Daniels, as trustee of the Daniels Nominee Trust; Jane Daryl
Springer, as trustee of the Jane Daryl Springer Residence Trust;
Mark C. Thurman; Wendy C. Thurman; N. Richard Greenfield; Karen
L. Greenfield; Douglas Suliman; Patricia Suliman; James J.
Lepore; Carton R. Copp; Alice A. Copp; and Happiness Association
LLC.
                                                                     3


intertidal beach area that lies seaward of lots owned by the

thirty-four defendants (shoreland owners).    All of the lots are

registered land that originally was part of a 217-acre tract

adjacent to Cape Cod Bay that was subdivided over the course of

the last century.   On motions for summary judgment, a Land Court

judge ruled in the shoreland owners' favor, concluding that they

owned the contested portions of the beach (disputed flats), and

that the inland owners' rights to use the disputed flats were

limited to those public rights reserved by the Colonial

Ordinance of 1641-1647.    See Michaelson v. Silver Beach

Improvement Assn., Inc., 342 Mass. 251, 253 (1961) (although

land in intertidal zone generally is privately held, it is

subject to certain reserved public rights, typically summarized

as fishing, fowling, and navigation).    The judge explained his

ruling in a thoughtful and comprehensive forty-page decision.

We affirm the judgment, while clarifying one ambiguity in it.

     Background.    As an initial matter, we note that the current

case is a follow-up to Hickey v. Pathways Assn., Inc., 472 Mass.

735 (2015) (Hickey I).    That case was a dispute over Hickey Way,

a twenty-foot wide right-of-way that runs from Shore Drive to

Cape Cod Bay in Dennis.    Id. at 736.   The four shoreland owners

who owned the lots abutting Hickey Way brought that case seeking

to establish that they held the fee interest in Hickey Way and

that the inland owners had no right to use it.     Id. at 737.   The
                                                                   4


Supreme Judicial Court ruled in favor of the inland owners.

Specifically, the court held that the original developers had

retained the fee to Hickey Way and had granted the inland owners

rights to use that way.   Id. at 753, 761.

     Fresh from their victory securing their rights to use

Hickey Way, the inland owners brought the current case seeking

to establish their right to use the disputed flats for all

normal beach purposes (not just for the reserved public rights

of fishing, fowling, and navigation).     As the judge aptly put

it, "having been adjudged to hold rights in . . . Hickey Way,

[the inland owners] now seek a ruling as to the scope of their

rights in the area accessed by that way."

     We turn next to a summary of the undisputed subsidiary

facts.   The original 217-acre tract was registered in 1903 to

Frank B. Tobey.   It subsequently was developed in stages, as

depicted in various Land Court plans. 4   The eastern portion of

the Tobey tract -- depicted on the so-called "B plan" 5 -- was


     4 We direct the reader's attention to the composite plan set
forth as an appendix to Hickey I, 472 Mass. at 766.

     5 The Tobey tract was registered in Land Court case no. 647,
with the original decree plan no. 647-A. Subsequent
developments of the Tobey tract were reflected in plans numbered
647-B, 647-C, etc. Consistent with Land Court practice, we
refer to those plans, respectively, as the "B plan," "C plan,"
and so on. Furthermore, we refer to the lots depicted on those
plans with reference to the letter number of the plan and the
number of the lot assigned to it on that plan. For example, lot
E on plan no. 647-B is referred to as lot B-E.
                                                                     5


developed first.   Although the current litigation does not

directly involve any of the B plan lots, the development of that

area serves as a useful point of comparison.    Along the water in

that area was a long but narrow upland beach that was set aside

as a separate lot (beach lot B-E).    The B plan lots were

developed so that there would be access ways that ran to beach

lot B-E from a road that paralleled the water (with the access

ways spaced every few lots).    The deeds to the fourteen lots

shown on the B plan that lie just to the south of beach lot B-E

describe their northern boundary variously as "by the beach," by

specific reference to beach lot B-E, or both.

     The current litigation involves the western portion of the

Tobey tract.   As the court observed in Hickey I, 472 Mass. at

740, this area was laid out "in a similar fashion to the earlier

subdivision on the B [p]lan."    Thus, access ways ran to Cape Cod

Bay from the road that paralleled the water (again, with the

ways spaced every few lots).    However, unlike the eastern

portion, there was not a separately reserved upland beach lot to

which the access ways led. 6   Nor did the deeds or certificates of

title to the shoreland lots in the western portion describe the




     6 There was a reserved upland beach lot (depicted as beach
lot E-K) at the far western end of the development, which was
deeded to the town in 1937.
                                                                   6


northern boundary of those lots as "by the beach."    Instead,

each shoreland lot was described as being bounded "by the waters

of Cape Cod Bay" (or similar language).

     After the shoreland area of the western portion was

subdivided, the inland lots in that area were developed.

Although most of the deeds or certificates of title for the lots

held by the inland owners reference rights in Hickey Way or the

other reserved ways, none of them references any reserved beach

rights.   As discussed further below, there are two owners of

inland lots who are not parties to this case whose deeds do

reference beach rights.

     Discussion. 7   As the court did in Hickey I, we begin by

examining whether the shoreland owners hold title to the

disputed flats, and then proceed to examine what easement

rights, if any, the inland owners were granted in that land.

     1.   Ownership of the disputed flats.   "The Colonial

Ordinance of 1641-1647 established that a person holding land

adjacent to the sea shall hold title to the land out to the low

water mark or 100 rods (1,650 feet), whichever is less."     Pazolt


     7 "We review the grant of summary judgment . . . de novo to
decide whether, viewing the evidence in the light most favorable
to the nonmoving party, all material facts have been established
and the moving party is entitled to a judgment as a matter of
law." Calvao v. Raspallo, 92 Mass. App. Ct. 350, 351–352 (2017)
(quotation omitted). Here, the material facts are not in
dispute.
                                                                     7


v. Director of Div. of Marine Fisheries, 417 Mass. 565, 570

(1994), citing Boston Waterfront Dev. Corp. v. Commonwealth, 378

Mass. 629, 635 (1979).   Although title to the upland portion of

shoreland property can be severed from the title to the flats,

this generally must be done expressly, that is, through the use

of "excluding words."    Id. at 570-571, quoting from Commonwealth

v. Roxbury, 9 Gray 451, 524 (1857).   Otherwise, the owners of

shoreland property are presumed to own the fee in the adjacent

flats.   As explained below, we agree with the judge that the

inland owners have not overcome the presumption that the

disputed flats are owned by the shoreland owners, whose

predecessors in title acquired title to them from the original

developers.

     As noted, the shoreland owners' deeds and certificates of

title describe their lots as bounded "by the waters of Cape Cod

Bay," or equivalent language.   Under the cases, such language is

interpreted as conveying property to the low water mark.

See Michaelson, 342 Mass. at 260-261 ("[W]ords in a deed such as

'Westerly by Wild Harbor,' or words of similar import, convey

title to the low water mark"); Brown v. Kalicki, 90 Mass. App.

Ct. 534, 535, 538 (2016) (language that land was bounded by

"Nantucket Sound" gave title to low water mark, including with

respect to any accretions).   In addition, most of these deeds or

certificates of title note that the property is being held
                                                                     8


subject to the public rights reserved by the Colonial Ordinance.

Such references would make no sense if the land being conveyed

were bounded by the mean high tide mark, with the fee to the

intertidal area reserved to others.   Thus, far from providing

evidence helpful to the inland owners, the deeds and

certificates of title to the shoreland lots support the

shoreland owners' claim that they own title down to the mean low

water mark.

     In trying to argue that that the fee in the disputed flats

nevertheless was reserved by the original developers, the inland

owners seek support in the rulings that the Supreme Judicial

Court made in Hickey I with respect to the fee in Hickey Way.

This analogy does not aid them.   In Hickey I, the court relied,

in great part, on the fact that the deed and certificates of

title to the relevant shoreland lots referenced Hickey Way as

the side boundary to those lots and also gave the shoreland

owners themselves the right to use Hickey Way for access

(something that would have been unnecessary if the original

developers had intended to convey title to Hickey Way).     Hickey

I, 472 Mass. at 748.   In the case before us, the inland owners

cannot raise any similar textual arguments based on the language

in the deeds or certificates of title to the shoreland lots.

     Similarly, any comparisons to the development of the

eastern portion of the Tobey tract also do not aid the inland
                                                                      9


owners' case.     While there are some broad similarities as to how

the two portions of the Tobey tract were developed, there are

also some important distinctions.    Most significantly, as noted,

there was an upland beach in the eastern portion that the

original developers carved out as a separate lot, with the lots

immediately to the south of the beach lot denoted as being

bounded by that beach.    With respect to the western portion, the

inland owners cannot point to any evidence in the deeds or

certificates of title to the lots owned by the litigants -- or

in the plans that document the progression of the development of

the western portion -- that evince that the original developers

intended to carve out a beach lot comparable to the one on the

eastern side. 8   See Labounty v. Vickers, 352 Mass. 337, 349

(1967) ("A person examining [the relevant] plan could reasonably

discern that [an access] easement [to the water] had been

reserved[,] . . . [b]ut there is nothing on the plan to show

that the beach area [on either side] of the strip was similarly

reserved").   Comparisons to the development of the eastern




     8 In fact, at least at the current time, there does not
appear to be any upland beach shoreward of the steep coastal
bank that parallels the water on the western portion. As a
result, the "beach" in dispute lies entirely in the intertidal
area.
                                                                   10


portion of the Tobey tract therefore hurt, rather than help, the

inland owners' case. 9

     The only robust evidence that the inland owners have

identified in support of their claim that the original

developers might have intended to retain the fee in the disputed

flats for use as a communal beach comes from the deeds to two

inland lots (lots H-A2 and H-A3), whose owners are not parties

to this litigation.      Specifically, the deeds to those two lots -

- which were the first granted by the original developers for

inland lots in the western portion of the Tobey tract --

purported to convey the right to use a beach owned by the

developers, referenced in one of the deeds as "the beach

reserved by the grantors for use of the lot owners in this

development."   However, which beach was being referenced in

those deeds is not at all clear.     Given the lack of any other

indication that the original developers at that point still

owned a separate beach lot carved out on the western portion of

the Tobey tract, the judge concluded that the unidentified beach




     9 There was, for a brief period, a small private upland
beach lot that the original developers had reserved at the far
western edge of the western portion of the tract (deeded to the
town in 1937). See note 6, supra. If anything, the developers
having carved out that beach lot further undercuts the inland
owners' argument that they implicitly retained the fee to the
disputed flats (which lie just to the east of the reserved
upland beach lot).
                                                                    11


referenced in the two deeds was likely beach lot B-E (the long,

private demarcated upland beach created on the eastern portion

of the tract). 10   In any event, whatever beach rights were

conveyed to the owners of lots H-A2 and H-A3 (an issue not

resolved by the current litigation), we agree with the judge

that the two deeds in question are not enough to overcome the

presumption that the shoreland owners acquired the fee in the

disputed flats.     We turn next to the inland owners' claim that

they nevertheless hold an easement to use the disputed flats for

general beach purposes.

     2.   Alleged easements in the disputed flats.    It is

undisputed that the certificates of title to the shoreland lots

(which include the disputed flats) make no reference to beach

rights held by others (other than to those public rights

reserved by the Colonial Ordinance).    That fact alone

presumptively negates the inland owners' claim that they own

such rights.   See Hickey I, 472 Mass. at 754 ("[F]or registered

land to be burdened by an easement, generally the easement must

be shown on the certificate of title").    However, "there are two




     10As noted, an upland beach lot had been set aside on the
western portion of the tract, but that lot already had been
transferred to the town in 1937, three years before the first
two inland lots had been deeded out. See note 6, supra. As of
1940, the original owners also had sold most, but not all, of
the shoreland lots.
                                                                    12


exceptions to th[is] general rule."    Id. at 755, citing Jackson

v. Knott, 418 Mass. 704, 711 (1994).    The inland owners argue

that the first exception recognized by Jackson applies. 11

     Under the first Jackson exception, even where the

certificate of title does not show an easement, courts

nevertheless can find registered land impressed with an easement

if a review of the certificate revealed facts "which would

prompt a reasonable purchaser to investigate further other

certificates of title, documents, or plans in the registration

system" that memorialized such an easement.    Hickey I, at 755-

756, citing Jackson, 418 Mass. at 711.    However, even if we

assumed arguendo that a reasonable purchaser of the shoreland

lots somehow was put on notice that he or she should investigate

further whether other documents in the registration system

reflected an intent to reserve beach rights easements in the

disputed flats, a review of those documents would not actually

reflect such an intent. 12   As noted, while many of the deeds or




     11"The second Jackson exception applies where the owner
takes possession of registered land with actual knowledge that
an encumbrance exists." Hickey I, 472 Mass. at 756 n.28, citing
Jackson, 418 Mass. at 711. The inland owners make no claim that
this exception applies.

     12We pass over the question of whether, even had the
original owners intended to grant the inland owners an easement
in the disputed flats, the original developers reserved the
right to grant such easements.
                                                                   13


certificates of title to the inland owners' lots reference

rights to use Hickey Way and the other access ways, none

references a right to use the disputed flats.   Compare Anderson

v. DeVries, 326 Mass. 127, 129, 134 (1950), overruled on other

grounds by M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004)

(inland owners held to have beach rights where certificates of

title of both inland and shore properties referenced access

easement "to the beach" and where "[t]he chief inducement for

the purchase of [the inland parcels] was the right to use the

beach for swimming, bathing, and sun bathing"); Houghton

v. Johnson, 71 Mass. App. Ct. 825, 834-835 (2008) (even as to

nonregistered land, reservation of recorded right of way

"leading to the beach," without more, held insufficient to

support implied easement to use privately held beach outside of

right of way).

     Once again, the inland owners seek to invoke the deeds to

lots H-A2 and H-A3 to support their claim that they have beach

rights in the disputed flats even though the certificates of

title to the shoreland lots make no reference to such rights.

As already noted, however, it is far from clear that the

particular beach referenced in those deeds is the one comprised

of the disputed flats.   In any event, as the judge aptly

observed, "[e]ven if the inference could be made that [the H-A2

and H-A3 deeds] referred to the [d]isputed [f]lats, there is
                                                                  14


nothing in the record indicating that [the inland owners'] lots

were intended to be benefitted by these conveyances, which

represent outliers among the thousands of deeds to hundreds of

lots within the Tobey [t]ract." 13

     The inland owners are left to argue that their easements to

use Hickey Way and the other access ways to reach the intertidal

area necessarily indicate the original developers' intent that

the inland owners be able to use the entire intertidal beach

area for general beach purposes.     It makes no sense, they argue,

for the original developers to have created a system of access

ways for the benefit of the inland owners unless such owners

thereby acquired significantly greater rights than the public at

large.    They maintain that because members of the general public

can access a public beach down the road, and additionally have

the right to undertake fishing, fowling, and navigation in

privately held intertidal areas, then it must follow that the

original developers intended the inland owners to be able to

spread out onto the entire beach area and use it for all normal

beach purposes.




     13The judge was careful to note that he was making "no
ruling as to whether the owners of [l]ots H-A2 and/or H-A3 (who
are not parties to this case) have any rights in the [d]isputed
[f]lats, nor as to the scope of those rights, if any."
                                                                    15


     We are unpersuaded.   Through the easements they hold in

Hickey Way and the other access ways, the inland owners enjoy

significant rights not possessed by the general public.    For

example, the inland owners can use the access ways closer to

their homes and not have to walk down to the public ways to

access Cape Cod Bay and the disputed flats.    In addition, as we

note infra, there is nothing in the undisputed facts to indicate

that the inland owners necessarily would be limited to fishing,

fowling, and navigation within those portions of the intertidal

area that lie within the corridors of the access ways

themselves.   Simply put, holding that the inland owners never

obtained rights to use the disputed flats for general beach

purposes does not render their rights in the access ways so

"worthless" that we must draw a contrary conclusion.    In sum, we

agree with the judge's conclusion that the first Jackson

exception does not apply, and that there is no other basis for

inferring the existence of easements that do not appear on the

certificates of title to the shoreland lots.

     3.   Ambiguity in the judgment.   We are not quite done,

because it is appropriate that we address a facial ambiguity in

the judgment, lest our affirmance of it be misunderstood. 14




     14We raised this issue sua sponte in an order issued prior
to oral argument.
                                                                   16


Before turning to that language, we briefly review the overall

scope of the current litigation.

     The case before us has always been about whether the inland

owners could use the disputed flats for general beach purposes,

and not just for fishing, fowling, and navigation.      The portions

of the intertidal beach that lie within the access ways

themselves are not part of the disputed flats, because title to

them is not held by the shoreland owners but instead by the

unidentified heirs of the original developers (who, like the

shoreland owners, presumably hold title down to the low water

mark).    See Hickey I, 472 Mass. at 753. 15   Accordingly, the

extent of the inland owners' rights to use the access ways was

implicated in the current litigation only to the extent that it

bore on any rights they claimed in the disputed flats.      The

extent of their rights to use the beach area lying within the

boundaries of the access ways was not at issue in this case. 16


     15Strictly speaking, Hickey I addressed only Hickey Way,
not the other two private access ways at issue, but the court's
reasoning would appear to apply equally to all of the ways in
question.

     16In yet another Land Court action -- which has been stayed
pending the outcome of the current appeal -- two of the
shoreland owners are seeking to litigate the scope of the inland
owners' rights to use Hickey Way, the largest of the three
access ways. Hickey vs. Pathways Association, Inc., Land Court
No. 16 MISC 000123. Those same owners also brought a Superior
Court action challenging the inland owners' efforts to construct
a walkway over Hickey Way. We today have separately resolved
their appeal of the dismissal of that action for lack of
                                                                   17


     The judge's well-crafted memorandum of decision is fully

consistent with the scope of the litigation.   Despite the length

of that memorandum, there is nothing therein to suggest that the

judge was adjudicating the extent of the inland owners' rights

to use the access ways themselves.   With one potential

exception, the terms of the judgment he entered are also

consistent with this scope.   Thus, the judgment recites that it

adjudged "that [the shoreland owners] own the portions of the

[d]isputed [f]lats adjacent to their respective properties, and

. . . that [the inland owners] have no rights in the [d]isputed

[f]lats other than their Colonial Ordinance Rights."   The

potential exception involves a provision in the judgment that

"ORDERED and ADJUDGED that [the inland owners'] rights in the

[referenced access] ways are limited to the use thereof to

access the [d]isputed [f]lats solely for the purpose of

exercising their Colonial Ordinance Rights" (footnote omitted).

Read literally, this phrasing could be taken as saying that the

inland owners have no rights to use the access ways themselves

for any purpose other than those reserved by the Colonial

Ordinance (that is, fishing, fowling, and navigation).    We

reject this interpretation, which would resolve issues outside

the scope of this litigation and would be unsupported by -- and



standing.   See Hickey v. Conservation Commn. of Dennis, 93 Mass.
App. Ct.         (2018).
                                                                  18


indeed inconsistent with -- the judge's memorandum of decision. 17

Instead, we interpret the provision as meaning -- as we believe

the judge intended -- that while the access ways provide the

inland owners the right to gain access to the disputed flats,

they may gain such access only to exercise the rights reserved

by the Colonial Ordinance.   We leave to another day resolution

of the scope of the inland owners' rights to use the access ways

themselves.

                                    Judgment affirmed.




     17We note, for example, that even though the Colonial
Ordinance did not reserve for the public a right to cross
privately held flats to bathe in the sea, see Butler v. Attorney
Gen., 195 Mass. 79, 83 (1907), the inland owners here may well
have the right to use the access ways here to do so (as the
attorney for one of the main group of shoreland owners
acknowledged at oral argument). Cf. Anderson, 326 Mass. at 133
(rights in pedestrian access way did not terminate at high water
mark but necessarily included rights to access water for bathing
and swimming).
