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16-P-72                                              Appeals Court

KEN O'DONOGHUE, trustee,1 & others2    vs.   COMMONWEALTH & others.3


                             No. 16-P-72.

          Suffolk.      December 5, 2017. - April 17, 2018.

             Present:   Vuono, Sullivan, & Massing, JJ.


Res Judicata. Judgment, Preclusive effect. Seashore.       Real
     Property, Littoral property. Words, "Beach."


     Civil action commenced in the Land Court Department on July
22, 1998.

     The case was heard by Harry M. Grossman, J.



     1 Of the Rexhame Terrace Land Trust and of the R.B.
Preservation Trust.

     2 William Mostyn, trustee of the Rexhame Terrace Beach
Trust; Jane Walker, trustee of the Walker Family Trust; Freya
Allen Shoffner, trustee of the Dawson/Shoffner Family 2001
Revocable Trust; Seth Coon, Keilah Coon, and Elena Prentice,
trustees of the Raleigh Road Family Trust of 2009; Karen Slawson
and Susan Brown, trustees of the Slawson-Rexhame Realty Trust;
William Mostyn; Sandra Mostyn; Timothy Burke; Sarah Burke; John
Coon, III; Judith Coon; Charles Pesko; and Jacqueline Pesko.

     3 Clare Delaney, Leo Delaney, Brenda Johnson, Stephen
Leonard, Agnes McCabe, Marianne McCabe, Carole McDermott, James
McDermott, James McGowan, William McGowan, Elizabeth McManus,
Kristin Perry, and the town of Marshfield.
                                                                     2


     Brian Jay Rogal for the plaintiffs.
     Robert W. Galvin for town of Marshfield.
     Kendra Kinscherf, Assistant Attorney General, for the
Commonwealth.


    SULLIVAN, J.      The plaintiffs commenced this action against

the Commonwealth in the Land Court to quiet title to certain

"beach lots" in the Rexhame Terrace section of the town of

Marshfield (town) and to remove a cloud on title that resulted

from the decisions in Thomas v. Marshfield, 10 Pick. 364 (1830)

(Thomas I), and Thomas v. Marshfield, 13 Pick. 240 (1832)

(Thomas II).    The plaintiffs also sought damages for trespass

against the individual defendants.    The town was allowed to

intervene as a defendant.     In its answer the town asserted, as

an affirmative defense, title to the beach lots set aside for

use by all of the town's inhabitants as a common area, and

further stated that the plaintiffs have only a right of

"commonage" along with other inhabitants of the town.     The trial

judge bifurcated the "public" portions of the case -- the claims

among the plaintiffs, the Commonwealth, and the town -- and,

following a trial, concluded that the plaintiffs had not met

their burden of demonstrating title sufficient to quiet title or

remove the cloud of title due to the decisions in Thomas I and

Thomas II.     The judge further concluded that the town has
                                                                     3


superior title in most if not all portions of the beach lots.4

The parties have filed cross appeals.     Substantially for the

reasons stated by the judge in his careful, detailed, and well-

reasoned decision, we affirm.

     1.   Background.   The judge made detailed factual findings,

which for the most part are undisputed.     We repeat only those

necessary to give context to our discussion, noting where

material disputes arise.   The judge's factual findings will not

be overturned unless clearly erroneous.     See Whiteveld v.

Haverhill, 12 Mass. App. Ct. 876, 876 (1981); Feldman v. Souza,

27 Mass. App. 1142, 1143 (1989).

     Marshfield Neck is a narrow plot of land that lies south of

the South River, north of the Green Harbor River, and is

bordered to the east by Massachusetts Bay.    Rexhame Terrace is a

subdivision created by Sarah Ames in the late 1800s from a

portion of her large farm on Marshfield Neck.     As laid out on a

revised 1891 subdivision plan, Rexhame Terrace is bordered by

Circuit Avenue East to the east.5   A beach abutting Massachusetts

Bay lies east of Circuit Avenue East.     The six "beach lots" at


     4 The judgment also addressed the public's rights over the
Rexhame Terrace subdivision roads, but there has been no appeal
from that portion of the judgment. Private claims, including
trespass claims, were bifurcated and not decided as part of the
judgment now before us.

     5 Circuit Avenue East is a "paper street" and does not exist
on the ground today.
                                                                      4


issue lie between Circuit Avenue East and either the low or high

water mark of Massachusetts Bay, on what is shown on the 1891

plan as "Marshfield Beach."6    The beach lots are not shown on the

subdivision plans.     The parties indicated at oral argument that

the beach lots are essentially coastal uplands and are not

buildable lots.

     The beach lots were created and first conveyed between 1910

and 1913 by individual deeds from Sarah Ames's son, Ray Ames.

The thrust of the issue before us is whether Ray Ames had title

to any of the beach lots when he originally conveyed them to the

plaintiffs' predecessors in title.     The resolution of this issue

brings us back to the original settlers of the town in the mid-

1600s.

     The parties agree that Joseph Beadle was the first settler

of the property at issue.    The judge found that of the

properties transferred to Beadle by the town and others in the

mid-1600s, only one deed from the town bounded his property

"east with the beach."    The parties' title experts agreed that

at that time, bounding a lot "with" the beach did not pass title

to the beach.     Other parcels transferred to Beadle included

marshlands, which by definition are inundated with water,

proving, according to the plaintiffs, that Beadle had acquired


     6 The beach at issue here is adjacent to the Rexhame Terrace
subdivision and is sometimes referred to as Rexhame Beach.
                                                                    5


property bounded by the ocean.    Based on expert evidence that

the judge credited, however, he found that the marshlands were

on the landward side of the beach and subject to tidal

inundation as part of a tidal estuary rather than the ebb and

flow of the ocean tide.

    The Beadle farm passed through several families and became

known in the 1700s as the Kent farm.   When John Kent died in

1753, his will divided his estate among his nine living

children, and it was at this time that the property began to be

described in deeds in terms such as bound by "the edge of the

upland by the [s]ea," "on the edge of the bank about high water

mark," and "the edge of the bank by the [s]ea."    Between 1759

and 1770, Anthony Thomas purchased portions of the Kent farm.

In 1787, his estate divided the farm among his three sons.

Briggs Thomas (Thomas) received the portion of the farm that is

at issue in this case, along with "all the [p]rivilege of the

beach adjoining [s]aid [l]and."    By deed recorded July 7, 1858,

Thomas's farm was conveyed to Sarah A. Ames, Thomas's

granddaughter, and was described as being bound "[e]asterly by

the beach or [s]ea."   Sarah Ames subsequently granted by will to

her seven children, including Ray Ames, portions of Rexhame
                                                                     6


Terrace "to the sea."7    The plaintiffs' titles derive from deeds

from Ray Ames, alone, between 1910 and 1916.

     In addition, although the town released its interest in a

portion of "the beach" to Ray Ames in 1916, the judge concluded,

based on the description of the land in the release, expert

evidence that he credited, and the fact that Ray Ames, on the

day following the release, transferred to a third party property

just north of the property at issue here, that the town's

release did not concern the land at issue.8

     The plaintiffs argued that the land grants to Joseph Beadle

originally went to the high water mark, and that as a result of

the Colonial Ordinance, ownership of the tidal flats vested in

Beadle and ultimately passed to the plaintiffs.    The judge

found, however, that the grant to Beadle of what became known as

the Rexhame Terrace property was bound by "the beach," as that

term was understood in the town in colonial times.    The judge

explained that notwithstanding the usual meaning of "beach" as

the land between the high and low water marks, "in colonial and

historical Marshfield [the term] included some 'upland' area

     7 The plaintiffs contend that the beach passed from Sarah
Ames to Ray Ames individually because the will devised only lots
on Rexhame Terrace to all of the children, and Rexhame Terrace,
they contend, did not extend to the sea. The rest of the farm -
- which, the plaintiffs contend, included the beach -- was
devised to Ray Ames.

     8   The plaintiffs do not contest this finding on appeal.
                                                                     7


above the high water mark" on which livestock grazed.9    The judge

credited expert evidence that the Rexhame Beach area had three

geographical components:   "(a) an area of beach below the mean

high water area (Coastal Beach)[;] (b) an elevated dune area

landward of the beach (Coastal Dune)[;] and (c) landward of the

dune area, portions of land with wetland characteristics."     All

three, according to the expert, form a "barrier beach."    Based

on other expert evidence he credited, the judge found that

"[v]irtually all of the vegetation" edible by livestock grew on

the landward side of the high water mark on the coastal dune.

The judge carefully reviewed the language of the ancient deeds

and the town's grant of commonage rights on the beach in 1645

and determined that the term "beach" clearly included uplands.

The judge concluded that the plaintiffs, therefore, had no title

to the beach lots and that title to the beach lots remained in

the town.

     The judge's decision was reinforced by consideration of the

Supreme Judicial Court's decisions in Thomas I and Thomas II,

which, he determined, preclude the plaintiffs from claiming

title to the beach lots through the Biddle-Thomas-Ames chain of

     9 In October of 1645, the town granted a right of
"commonage," i.e., the right to allow cattle, horses, and sheep
to graze, to the residents of Marshfield Neck on the "beach"
from the South River's mouth to the Green Harbor River's mouth.
This was six months after the town had granted to Beadle "all
the meadow about the reed ponds lying between this . . . and the
beach."
                                                                    8


title.     The Thomas litigation was prompted by legislation

enacted in 1827 (act) which empowered the town to construct a

sea wall to preserve and secure "the whole of Marshfield Beach"

and further prohibited "neat cattle, horses, or sheep," that is,

livestock, from grazing on the beach.     See St. 1826, c. 81,

§§ 1, 2.    The act also provided a mechanism to compensate those

having legal title in the beach for harm caused by the statute.

St. 1826, c. 81, § 7.     See Thomas I, 10 Pick. at 365-366.

Thomas sought damages pursuant to the act.     The judge in this

case concluded that the Rexhame Terrace subdivision is located

in approximately the same location as the "unfenced pasture" of

Thomas, who is the plaintiffs' and the Ameses' predecessor in

title.10

     Thomas I, issued during the Supreme Judicial Court's

October, 1830, term, was preceded by Thomas's action in the

court of common pleas, which was decided during that court's

April, 1830, term.     A transcript of that decision was admitted

in evidence at the trial here.    It reflects that Thomas alleged

in the first count of his complaint that he held the fee in the

beach from the North River to his "fatting pasture."     The

plaintiffs concede that Thomas's asserted title would include

the beach lots at issue.     The court of common pleas jury,

however, rejected Thomas's claim of title.    Specifically, "the

     10   The plaintiffs do not contest this finding on appeal.
                                                                          9


Jury [found] as to the first issue that the complainant had no

such title to or in the beach mentioned in his complaint or any

part thereof."     The decision noted that Thomas also asserted

rights of commonage over the entire beach; the jury rejected

those claims as well.

     On appeal, Thomas did not challenge the jury verdict

regarding his title claim.      See Thomas I, 10 Pick. at 366-367.11

As to the issues presented in Thomas I,12 the Supreme Judicial

Court concluded that the town's 1645 grant of express commonage

rights over the beach to a certain neighborhood failed because

either (i) the grant was indefinite in that the "neighborhood"

limits were not defined, or (ii) the grant was of a life estate

only.     Ibid.   Thus, the court concluded Thomas had no express

commonage rights.      In Thomas II, 13 Pick. at 249-250, the

Supreme Judicial Court rejected Thomas's claim that by allowing

his livestock to graze all over the beach, he had acquired title

to or an easement in any part of the beach by prescription.         The


     11In both Thomas I and Thomas II, the court's and
reporter's notes stated that Thomas did not claim the fee to any
portion of the beach. See 10 Pick. at 366; 13 Pick. at 244,
250.

     12In Thomas I, Thomas sought damages under the act,
claiming a right of commonage for his "neat cattle, horses, and
sheep," either by prescription or by an express grant from the
town of Marshfield. 10 Pick. at 366. The court addressed only
the express grant issue, ibid., leaving the prescription
argument for later proceedings, which ultimately culminated in
Thomas II.
                                                                       10


court concluded that where Thomas admitted he had no fee in the

beach, his use of a beach kept open to the public and used by

others in a similar way could not give rise to a prescriptive

easement.   Ibid.

    2.   Discussion.   a.   Issue preclusion.   The plaintiffs

contend that the judge erred as a matter of law when he

concluded that the decision of the court of common pleas,

rendered final by Thomas I and Thomas II, had preclusive effect

on the plaintiffs' claim to own the fee in the beach lots.       The

plaintiffs insist Thomas's title to the beach was not at issue

in those cases and that title was not "actually litigated" for

purposes of issue preclusion.

    "[I]ssue preclusion 'prevents relitigation of an issue

determined in an earlier action where the same issue arises in a

later action, based on a different claim, between the same

parties or their privies.'"     Petrillo v. Zoning Bd. of Appeals

of Cohasset, 65 Mass. App. Ct. 453, 457 (2006), quoting from

Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988).    "Before

precluding the party from relitigating an issue, 'a court must

determine that (1) there was a final judgment on the merits in

the prior adjudication; (2) the party against whom preclusion is

asserted was a party (or in privity with a party) to the prior

adjudication; and (3) the issue in the prior adjudication was

identical to the issue in the current adjudication.'"     Petrillo,
                                                                    11


65 Mass. App. Ct. at 457-458, quoting from Tuper v. North Adams

Ambulance Serv., Inc., 428 Mass. 132, 134 (1998).

"Additionally, the issue decided in the prior adjudication must

have been essential to the earlier judgment[, and i]ssue

preclusion can be used only to prevent relitigation of issues

actually litigated in the prior action."    Petrillo, 65 Mass.

App. Ct. at 458, quoting from Kobrin v. Board of Registration in

Med., 444 Mass. 837, 844 (2005).

     Contrary to the plaintiffs' contention, the issue of

Thomas's title to the beach was clearly raised and expressly

decided in the court of common pleas.13    The jury in that action

specifically concluded that Thomas did not own the fee in any

portion of the beach, and Thomas did not pursue an appeal of

that decision.   In pursuing the appeals in Thomas I and Thomas

II, he accepted that portion of the decision that concluded that

he did not hold the fee in any portion of the beach.    As to the

issue of title, therefore, the judgment of the court of common

pleas, as affirmed on appeal, has preclusive effect.    See


     13The plaintiffs acknowledge that in the court of common
pleas, Thomas asserted title to the beach lots, but they argue
that he sought damages only for his loss of commonage rights in
other parts of the beach. The record shows that Thomas asserted
both title and commonage rights and asserted that he was totally
deprived of all of his rights and "furthermore he will be
subject to the necessity of [and] expense of erecting and
maintaining nearly one mile of [f]ence to prevent his cattle"
from grazing on the beach. He requested that a jury estimate
the damages sustained by him due to the act.
                                                                  12


Guiffrida v. Zoning Bd. of Appeals of Falmouth, 68 Mass. App.

Ct. 396, 401 (2007) (parties and their privies are barred by

unappealed adverse judgment).    See also Restatement (Second) of

Judgments § 43(1)(b) (1982) (judgment that determines interest

in real property "[h]as preclusive effects upon a person who

succeeds to the interest of a party to the same extent as upon

the party himself").

    Importantly, the act prohibited commonage on the full

length of Marshfield Beach.     While insisting that Thomas owned a

portion of the beach, the plaintiffs ask us to nonetheless infer

that Thomas simply chose to pursue only his commonage and

prescriptive rights and never pursued any rights arising from

his title to a portion of the beach.     Thomas's focus on his

commonage and prescriptive rights in Thomas I and Thomas II

makes sense where, having lost on the title issue in the court

of common pleas, he conceded that he did not own any portion of

the beach.   We cannot, as the plaintiffs suggest, infer from

that course of action that he had title to the beach but simply

chose to forgo seeking damages for the harm to his title.

Indeed, we are hard-pressed to understand how Thomas's pursuit

of damages for his loss of commonage rights, rather than damages

due to the impairment of his title, aids the plaintiffs' current

claim to title to the beach.
                                                                      13


     b.     Definition of "the beach."   Even if it were open to the

plaintiffs to argue they have title to the beach lots via the

chain of title dating back to Joseph Beadle through Ray Ames and

his successors, they fare no better.     The plaintiffs argue that

the judge erred in finding that land conveyed by the town to

Beadle and other early settlers, described in part as bound by

the beach, is not bound by the ocean.     "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 v.

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

(1994).14    The plaintiffs contend that 310 Code Mass. Regs.

§ 10.27 (1997), defines a coastal beach as land subject to ebb

and flow of the tide and, therefore, bounding a lot by the beach

is the equivalent of bounding it by the high water line.       They

argue, also, that the transfer of marshes, which by definition

are inundated with water, necessarily means the property

directly abutted the ocean.


     14"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 established a title to the flats.' Porter v.
Sullivan, 7 Gray 441, 445 (1856). '[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, and
therefore ordinarily proof of the title in the upland thus
bounded carries with it evidence of title in the flats.'
Valentine v. Piper, 22 Pick. 85, 94 (1839)." Pazolt, 417 Mass.
at 570-571.
                                                                      14


    Our cases have recognized that although the primary

definition of beach is the area between high water mark and low

water mark, "[t]he term has a flexible meaning depending upon

the setting in which it is employed."    Anderson v. DeVries, 326

Mass. 127, 133 (1950).   See Lund v. Cox, 281 Mass. 484, 491

(1933); Hewitt v. Perry, 309 Mass. 100, 104 (1941).      Relying on

the town's grant of commonage or grazing rights on the beach in

1645, expert evidence that cattle do not graze below the high

water mark, and the fact a "highway" was laid out on "the beach"

in 1692, the judge concluded that the term "beach" in the early

deeds clearly included uplands and did not consist solely of the

land between high and low water marks.   The plaintiffs' reliance

on inflexible, current definitions of "beach" do nothing to

diminish the judge's reasoned analysis of the early colonial

deeds.   That deeds beginning in the mid-1700s, nearly 100 years

later, began to describe the property as bound by the sea or

high water mark does not alter the original deeds and conveys no

new rights.   One cannot convey what one does not own.    See

Bongaards v. Millen, 440 Mass. 10, 15 (2003).

    The judge carefully considered whether the transfer of

marshland meant that the early settlers obtained property

bounded by the ocean or sea.   The judge's conclusion that the

marshes were on the landward side of the beach is consistent

with their description as lying between certain land "and the
                                                                    15


beach."   Moreover, the judge credited the plaintiffs' expert's

testimony that there was no marsh on the beach side facing the

ocean; marshlands were on the inland side of the tidal estuary

of the Green Harbor River.    The judge concluded from historical

maps and expert evidence that "the beach" included land above

the high water between the marshes and the sea.    Considering the

totality of the evidence, we cannot say the judge erred in

concluding that the early settlers of what became the Rexhame

Terrace property did not receive title to the beach, including

the uplands, claimed by the plaintiffs.15

     c.   Superior title.   The judge found that the town has

superior title to the beach "including the tidal flats together

with all or a portion of the upland beach lots which abut the

seashore," but concluded that he had insufficient evidence to

definitively determine the boundaries of the town's property.

The judge did conclude, however, that the town owns a

"sufficient portion of the upland area so as to vest title to it

in Rexhame Beach including the tidal flats to the low water

mark."    The plaintiffs essentially argue that the town cannot

have superior title if it has not proven exactly what it owns.


     15Because we conclude that the fee in the beach lots did
not pass to the original grantees or to Sarah Ames, we need not
resolve the plaintiffs' argument that the fee passed through her
will to Ray Ames alone. The judge concluded that even if Sarah
Ames had title to the beach lots, Ray Ames inherited only a one-
seventh interest in them.
                                                                   16


Any flaws in the town's title, however, do not aid the

plaintiffs in their efforts to quiet title to the beach lots or

remove the cloud created by Thomas I and Thomas II.     Separate

and apart from the strength of the town's title, the judge

determined, and we agree, that the plaintiffs did not receive

title to the beach lots because their predecessors in title

never had title to give.

    The plaintiffs point out that the town's assertion of title

to the beach is a "recent claim," that the town collected taxes

from the beach lot owners for many years, and that the town

contended in Thomas I and Thomas II that the Commonwealth owned

the beach.   The plaintiffs make no legal argument with proper

citation to authority, however, that the town is thereby

prohibited from asserting its title now.     See Baird v.

Massachusetts Bay Transp. Authy., 32 Mass. App. Ct. 495, 495-499

(1992) (argument does not meet requirements of Mass.R.A.P.

16[a][4], as amended, 367 Mass. 921 [1975], when "unsupported by

citation or articulated reasoning").

    d.   Cross appeals.     Finally, in their cross appeals, the

Commonwealth and the town argue that the judge erroneously

shifted the burden of proof to them to establish the western

boundary of the "beach" or, as the judge put it, the land

formerly designated as commonage existing between the Thomas

farm and the seashore.     Having asserted title to the beach as an
                                                                  17


affirmative defense in their answers, we discern no error in the

judge's conclusion that the town and the Commonwealth had the

burden of proving the boundary of its property.   See Hughes v.

Williams, 229 Mass. 467, 470 (1918); Demoulas v. Demoulas Super

Mkts., Inc., 424 Mass. 501, 548-549 (1997).

                                   Judgment affirmed.
