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Brown v. Kalicki

Appeals Court of Massachusetts, Suffolk

October 20, 2016

PETER R. BROWN, trustee, [1] & others [2]
JAN H. KALICKI & another. [3]

          Heard: June 13, 2016.

         Real Property, Registered land, Littoral property, Certificate of title, Easement. Land Court, Registration proceedings. Adverse Possession and Prescription.

         Civil 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.

          Diane C. Tillotson for the defendants.

          Brian M. Hurley for the plaintiffs.

          Present: Cohen, Milkey, & Massing, JJ.

          COHEN, J.

         The 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[4] significant portions of formerly submerged land.

         On 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.

         The 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, [5] we affirm.


         The material facts are not in dispute. The land comprising the plaintiffs' parcels was registered in the 1920's and 1930's.[6] 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."

         In the 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) .[7]

         The 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.

         A 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.[8] Meanwhile, local residents, including Kalicki and Hershey, were permitted to intervene as defendants[9]and filed their own objections.

         The 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) .

         Without 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.


         The 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).[10] 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.

         Littoral 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 ...

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