Heard: December 5, 2017.
action commenced in the Land Court Department on July 22,
1998. The case was heard by Harry M. Grossman, J.
Jay Rogal for the plaintiffs.
W. Galvin for town of Marshfield.
Kinscherf, Assistant Attorney General, for the Commonwealth.
Present: Vuono, Sullivan, & Massing, JJ.
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 superior title in most if not all portions of the beach
lots.The parties have filed cross appeals.
Substantially for the reasons stated by the judge in his
careful, detailed, and well-reasoned decision, we affirm.
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) .
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. A beach abutting
Massachusetts Bay lies east of Circuit Avenue East. The six
"beach lots" at 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." 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.
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.
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
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.
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 Terrace "to the
sea." The plaintiffs' titles derive from
deeds from Ray Ames, alone, between 1910 and 1916.
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 ...