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Maslow v. O'Connor

Appeals Court of Massachusetts, Essex

April 6, 2018

JAMES MASLOW & others. [1]
v.
CAROLYN O'CONNOR [2] & others. [3]

          Heard: January 3, 2018.

         Civil action commenced in the Superior Court Department on March 29, 2011.

         Motions for summary judgment were heard by Robert A. Cornetta, J.

          Robert S. Wolfe for the plaintiffs.

          John A. Christopher (Glenn A. Wood also present) for the defendants.

          Present: Wolohojian, Milkey, & Englander, JJ.

          ENGLANDER, JUDGE.

         In this 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 those rights.

         1. Background.

         a. The dispute.[4]

         This 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 street.

         Currently, 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.

         The 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.[5] 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.

         The 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.[6]

         In 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.[7] Because our ruling is that the plaintiffs themselves were entitled to summary judgment based upon their private rights as abutters, our factual recitation herein ...


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