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O'Donoghue v. Commonwealth

Appeals Court of Massachusetts, Suffolk

April 17, 2018

KEN O'DONOGHUE, trustee, [1] & others [2]
v.
COMMONWEALTH & others.[3]

          Heard: December 5, 2017.

          Civil action commenced in the Land Court Department on July 22, 1998. The case was heard by Harry M. Grossman, J.

          Brian Jay Rogal for the plaintiffs.

          Robert W. Galvin for town of Marshfield.

          Kendra Kinscherf, Assistant Attorney General, for the Commonwealth.

          Present: Vuono, Sullivan, & Massing, JJ.

          SULLIVAN, J.

         The 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.[4]The parties have filed cross appeals. Substantially for the reasons stated by the judge in his careful, detailed, and well-reasoned decision, we affirm.

         1. Background.

         The 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) .

         Marshfield 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.[5] 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."[6] 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.

         The 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.

         The 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.

         The 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."[7] The plaintiffs' titles derive from deeds from Ray Ames, alone, between 1910 and 1916.

         In 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 ...


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