PETER R. BROWN, trustee,  & others 
JAN H. KALICKI & another. 
Heard: June 13, 2016.
Property, Registered land, Littoral property,
Certificate of title, Easement. Land Court,
Registration proceedings. Adverse Possession and
actions commenced in the Land Court Department on
September 29, 2011. The cases were heard by Alexander H.
Sands, III, J., on a motion for summary judgment.
C. Tillotson for the defendants.
M. Hurley for the plaintiffs.
Present: Cohen, Milkey, & Massing, JJ.
plaintiffs are the respective owners of three parcels of
registered land located at 3, 7, and 11 Davis Lane, a private
way in the town of Harwich (town). These parcels extend in a
more or less southerly direction from Davis Lane to the
shoreline of Nantucket Sound. Over time, the shoreline has
changed, and the parcels have accreted significant portions
of formerly submerged land.
September 29, 2011, the parcel owners filed supplemental
petitions in the Land Court, seeking to amend their
certificates of title. Jan H. Kalicki and John Michael
Hershey (interveners) moved to intervene as defendants,
alleging that they had acquired prescriptive rights over the
accreted land. Upon informal consolidation of the cases for
decision on the plaintiffs' motions for summary judgment,
the motion judge rejected the objections of the interveners
and granted summary judgment to the plaintiffs.
question for the judge was whether the accreted beachfront
took on the status of registered land as it formed, or
whether registered status could be obtained only through
court proceedings to amend the certificates of title. The
judge ruled that the accreted beachfront automatically became
registered, and, therefore, was protected from the
interveners' claims that they have a prescriptive
easement to use the beach area on the plaintiffs' land.
Applying well-established standards of review,  we affirm.
material facts are not in dispute. The land comprising the
plaintiffs' parcels was registered in the 1920's and
1930's. Under the terms of each certificate of
title, "[a]11 of said boundaries, except the water
lines, are determined by the Court to be located as shown
on" the associated Land Court plan. Each of the
registration plans shows and identifies the southern boundary
of the subject parcel as "Nantucket Sound."
decades following the registration proceedings, the size of
the parcels grew substantially as a result of accretion. For
example, a 2011 plan shows that since 1943, the waterfront
boundaries of the two easternmost parcels had extended
seaward some 347 to 358 feet. The interveners took the
position that the accretion resulted, at least in part, from
the erection of a jetty by the town; however, as the judge
noted in his decision, this claim was never litigated.
Regardless, the judge ruled (and it is not disputed) that
even if the jetty contributed to the accretion, a littoral
owner ordinarily will still acquire ownership of accreted
land that is created with human intervention so long as it
was not caused by the owner himself. See Lorusso v.
Acapesket Improvement Assn., 408 Mass. 772, 780 (1990)
plaintiffs appended to their supplemental petitions proposed
plans depicting extended sidelines through the accreted land,
as well as the approximate mean high and low water marks at
the parcels' boundaries with Nantucket Sound. According
to representations made in the plaintiffs' brief and at
oral argument before this court, their purpose in filing the
supplemental petitions was to establish the parcels'
extended sidelines and thereby resolve any questions between
abutting landowners as to their respective ownership rights
in the accreted land. See Lorusso v. Acapesket
Improvement Assn., supra at 780-781. Whatever
their objectives, however, we draw no inference from the fact
that the plaintiffs initiated proceedings to amend their
certificates of title.
court-appointed title examiner filed a report on March 23,
2012, and citations issued. The Commonwealth and the town
both filed objections, but they later resolved their concerns
and withdrew them. Meanwhile, local residents, including
Kalicki and Hershey, were permitted to intervene as
defendantsand filed their own objections.
interveners did not dispute that the plaintiffs own the
accreted, previously submerged land by operation of law. See
note 7, supra. Nonetheless, they claimed that they
had acquired prescriptive easements to use the parcels'
beach area. The easternmost of the plaintiffs' parcels,
situated at 11 Davis Lane, abuts the town-owned Bank Street
beach. Where Davis Lane is met from the north by a town way,
Bay View Road, there is a town-owned path extending seaward
along the edge of the town-owned beach adjacent to the 11
Davis Way parcel. The interveners alleged that for decades
they and their predecessors had used the town-owned path to
gain access to the plaintiffs' parcels, and that they had
engaged in continuous, open, and notorious adverse use of the
parcels' beach area. See Boothroyd v.
Bogartz, 68 Mass.App.Ct. 40, 46 (2007) .
conceding the facts underlying the interveners' claims,
the plaintiffs argued on summary judgment that the claims
failed as matter of law, because -- by statute -- one cannot
obtain prescriptive rights in registered land, see G. L. c.
185, § 53, and the accreted beachfront was protected by
the existing registrations. The interveners countered that
the previously submerged accreted land was not registered
land when their prescriptive rights accrued, and could not
become registered land until the parcels' certificates of
title were amended. The judge agreed with the plaintiffs,
finding "that the accreted land automatically became a
part of the registered land as it was formed, " and
judgment entered for the plaintiffs.
specific issue presented -- whether accretions to registered
littoral land automatically acquire registered status at the
time of their creation -- has not been decided by the
appellate courts. However, in 1989, a different judge of the
Land Court (Fenton, J.) confronted the issue in Lorusso vs.
Acapesket Improvement Assn., Inc. (Land Court No. 314-S,
March 24, 1989). The motion judge in the present case
relied largely on the rationale of the earlier Land Court
judge, which can be summarized briefly as follows.
boundaries "frequently change, so that the actual
boundaries will rarely correspond exactly with what is
depicted on a registered owner's certificate of title or
land court plan." Ibid. Thus, if accreted land
is not deemed registered upon its creation, owners of
littoral property would need to "amend their
[c]ertificates of [t]itle on a regular basis to prevent any
loss in their property rights due to adverse use by another.
This would be inconsistent with one of the principle purposes
of the registration system: 'to make titles certain and
indefeasible.'" Ibid., quoting from
Michaelson v. Silver Beach Improvement Assn., Inc.,
342 Mass. 251, 260 (1961). Automatically endowing the
accreted land with registered status also counterbalances the
downside of ...