JAMES MASLOW & others. 
CAROLYN O'CONNOR  & others. 
Heard: January 3, 2018.
action commenced in the Superior Court Department on March
for summary judgment were heard by Robert A. Cornetta, J.
S. Wolfe for the plaintiffs.
A. Christopher (Glenn A. Wood also present) for the
Present: Wolohojian, Milkey, & Englander, JJ.
case we examine whether the filling of an area of tidelands
pursuant to a G. L. c. 91 license extinguished rights held by
upland owners to cross that area to access the remaining
tidelands and the sea. A Superior Court judge determined that
the filling of certain tidelands extinguished the
plaintiffs' rights to access remaining tidelands through
the end of a private way to which they were abutters. We
reverse, because the c. 91 license by its terms preserved
case involves Rackliffe Street, a private way on Rocky Neck,
a peninsula that juts into Gloucester Harbor. Rackliffe
Street runs north-south, and it is not disputed that at least
prior to 1925, the southern end of Rackliffe terminated at
the mean high water mark of Wonson's Cove, in Gloucester
Harbor, such that Rackliffe Street abutters could walk down
Rackliffe and access the tidelands from the end of the
the black-topped Rackliffe Street does not extend all the way
to Wonson's Cove. Rather, it terminates approximately ten
feet short of the high water mark, after which one must pass
over a "grassy strip." At the southerly end of this
ten-foot grassy strip there is a ramp, which descends into
the tidelands and can be used for access.
basic dispute is as follows: The plaintiffs are Rackliffe
Street abutters whose homes are not at the southerly end of
the street but who seek access to the tidelands across the
grassy strip and ramp. The defendants are the most southerly
abutters, on opposite sides of Rackliffe Street where the
street ends at Wonson's Cove. They seek to prevent such
access. The O'Connor defendants live at number 18, on the
east side of Rackliffe; defendant Alsue Partners owns number
19, on the west side. By deed and law each defendant owns the
fee to the center of Rackliffe as it abuts their frontage;
each also owns the fee not only to their upland property but
also to certain tidelands extending southerly, generally,
from their properties. The defendants' respective fee
interests are subject to certain easements in favor of
Rackliffe Street abutters and the public generally, which we
will discuss infra.
dispute before us is therefore over whether the plaintiffs
have a right to cross the grassy strip that now separates the
end of the asphalted road and the current high-tide line.
According to the defendants, the strip is the result of fill
that was placed in tidelands beyond the end of Rackliffe
Street pursuant to a c. 91 license granted to their
predecessor in title, one Margaret E. Mehlman, in 1925
(license). The defendants thus claim exclusive rights in the
grassy strip, since it resulted from the filling of tidelands
that their predecessor owned.
asserting their right to cross the grassy strip, the
plaintiffs advanced several theories over the course of the
case. The only theory that the plaintiffs rely upon in this
court, however, is that they have private rights to cross the
strip and access the tidelands because they are abutters to
Rackliffe Street. That issue was resolved against them on
cross motions for summary judgment. Because our ruling is that
the plaintiffs themselves were entitled to summary judgment
based upon their private rights as abutters, our factual
recitation herein ...