SMALAND BEACH ASSOCIATION, INC.
ARTHUR F. GENOVA & another. 
Heard: February 14, 2018.
action commenced in the Superior Court Department on January
case was heard in part by David A. McLaughlin, J.,
and tried in part before Christopher J. Muse, J.; a
motion for judgment notwithstanding the verdict, filed on
July 11, 2013, was considered by Muse, J.; the entry
of judgment was ordered by him; and a motion to alter or
amend the judgment was considered by him.
Alfieri for the plaintiff.
E. Kelleher, III, for the defendants.
Present: Sullivan, Kinder, & Wendlandt, JJ.
issue are the rights of the plaintiff, Smaland Beach
Association, Inc. (SBA), to use a portion of a sandy beach
area abutting real property (Lot 18) owned by the defendants,
Arthur and Patricia Genova. Lot 18 is located in a
neighborhood called Smaland, adjacent to Island Pond in
Plymouth. The Genovas' immediate neighbor to the east is
SBA, which owns a largely unimproved lot (Lot 19). Both
parcels abut the sandy beach, which has been used for
recreation by Smaland homeowners and their guests for
more than a dozen years, the Genovas and SBA have been
warring over ownership of the portion of the beach abutting
Lot 18, as well as use of the dock and boat ramp situated on
that area. Their battles have extended to additional fronts,
including disputes about the Genovas' encroachment over
the parties' shared side lot line and SBA's right to
use a footpath behind the Genovas' cottage.
bifurcated trials in the Superior Court (a bench trial,
followed by a jury trial before a different judge), a
judgment entered, declaring the parties' rights. The
parties have cross-appealed.
1931, a group of families primarily from Quincy purchased
small parcels of real estate in close proximity to one
another, situated between Little Sandy Pond Road and Island
Pond in Plymouth. The group established a neighborhood of
summer camps they called Smaland. Among the original Smaland
owners was Anna Kristina Myrbeck, who obtained two parcels,
"bounded and described" as "Lots #18-19 on a
plan of 'Great Herring Shores, Unit B' drawn by A. L.
Wheeler, dated Oct. 1, 1926, duly recorded with Plymouth
County Deeds" (hereinafter, the Unit B
plan) . The 1931 deed from Albert K. Kendrick
and Louis B. Hall to Myrbeck contains no metes and bounds
and 19 directly abut each other, sharing a side lot line.
They also directly abut Crescent Road, a way that connects at
both ends to Little Sandy Pond Road. Crescent Road runs
roughly parallel to the shore of Island Pond, and for a
portion of its length there are camp lots on both of its
sides. In the location directly in front of Lots 18 and 19,
however, the road hugs the shore of the pond, and camp lots
exist only on the upland side of the road. Thus, looking at
the Unit B plan, it appears that Lots 18 and 19 are situated
directly across Crescent Road from the pond. On the ground,
however, the portion of Crescent Road that passes directly in
front of Lots 18 and 19 is not laid out as a road, and
exists, instead, as a sandy beach or grassy area.
is partially comprised of a hill, with rustic stairs,
connecting cottages situated uphill from Lot 19 with the
waterfront below it. Lot 19 was owned (in common with Lot 18)
by Myrbeck from 1931 until 1934 when she conveyed it to Axel
Ludvigson. Ludvigson owned Lot 19 until 1958. Lot 19, and the
portion of Crescent Road abutting it, have been dedicated to
communal use for recreation by homeowners in Smaland and
their guests since at least the 1940s.
October, 1958, Ludvigson conveyed Lot 19 to the three
trustees of a newly formed trust, which held Lot 19 for
certain named beneficiaries (trust beneficiaries) who were
"owners of land bordering on the Trust property, or in
the immediate vicinity, known as 'Smaland.'" In
1971, the trust was dissolved, and Lot 19 was conveyed to
SBA, which was incorporated pursuant to G. L. c. 180, with
its stated purpose being "[t]o maintain and govern the
property known as the Smaland Beach area."
1958, Myrbeck conveyed Lot 18 to Sven Gunnar Myrbeck (Sven),
and by 1961, he also had acquired Lot 44, which is directly
behind (and uphill from) Lot 18. In 1975,  the Genovas
bought Lots 18 and 44 from Sven as a summer retreat. Prior to
making the purchase, the Genovas were elected members of SBA.
Over the many years that the Genovas have owned Lots 18 and
44, they have made numerous improvements to the cottage on
Lot 18, including a small addition that encroaches on
time dating as far back as 1946, a system of footpaths was
established in the neighborhood. The primary path runs
horizontally across the neighborhood (approximately parallel
to the pond) tracing a line starting in the west, where it
bisects Lots 14 and 39, and running east, ending where it
bisects Lots 19 and 47. A portion of this primary path
crosses the Genovas' land (the footpath).
filed its verified complaint in January, 2005, seeking to
ascertain the boundaries of the Genovas' front property
line (Lot 18, as it bounds on Crescent Road), asserting a
claim that the Genovas' expanded cottage encroaches on
Lot 19, and seeking to enjoin the Genovas from interfering
with SBA's access to the footpath, boat ramp, and dock.
The Genovas counterclaimed, requesting, inter alia, a
declaratory judgment concerning the parties' respective
rights in Crescent Road and the footpath, and the
Genovas' rights through adverse possession or an easement
in the area of their encroachment onto Lot 19.
2007, a Superior Court judge issued a bifurcation order, and
the following month, the case proceeded to a bench trial on
the issue of ownership of the portion of Crescent Road
abutting Lot 18. In April, 2009, the judge conducting the
bench trial (first judge) concluded that the Genovas own a
fee simple interest in the portion of Crescent Road abutting
Lot 18 through the entire width of the way, as well as a
portion of the adjacent pond bed to the midpoint of Island
Pond. As set forth in greater detail infra, the
first judge also determined the angle at which the
Genovas' and SBA's shared lot line extends into
a jury trial before a different judge (trial judge) in June,
2013,  the jury found that SBA had obtained (i) a
prescriptive easement in the footpath and (ii) title by
adverse possession to both the boat ramp and the land under
the dock.The jury also found that the Genovas had
obtained by adverse possession the title to the strip that
encroached on Lot 19. The trial judge reserved to himself the
determination of the northwesterly boundary of Crescent Road
and took expert testimony on the question, ultimately
declaring that the boundary, in the area of Lots 18 and 19,
is the mean low water mark of Island Pond.
July, 2013, the Genovas filed a motion for judgment
notwithstanding the verdict (judgment n.o.v.). The trial
judge agreed that, rather than establishing adverse
possession to the dock and boat ramp, SBA had acquired only a
prescriptive easement; he denied relief as to the finding
regarding a prescriptive easement in the footpath. Final
judgment entered in August, 2013, incorporating the findings
of both the bench trial and the jury trial. A subsequent
motion by the Genovas to alter or amend the judgment was
denied, and the parties timely filed their cross appeals.
Application of G. L. c. 183, § 58.
appeals from the first judge's determination that the
Genovas and SBA each own a fee simple interest in the entire
width of Crescent Road. SBA maintains that proper application
of G. L. c. 183, § 58 (the derelict fee statute) results in
the parties owning the fee in Crescent Road only to its
mid-point. We agree.
begin, both Lots 18 and 19 abut Crescent Road -- a way.
Moreover, relying principally on Inhabitants of
Lynnfield v. Inhabitants of Peabody,
219 Mass. 322 (1914), the first judge determined that Island
Pond was a privately owned Great Pond.It follows that,
when Kendrick and Hall granted Lots 18 and 19 to Myrbeck,
they retained real estate (the pond bed of Island Pond) on
the side of Crescent Road opposite from Lots 18 and
19. Compare Paine v.
Woods, 108 Mass. 160, 169-170 (1871);
Inhabitants of Lynnfield, supra at 336.
Applying the derelict fee statute to this conveyance (wherein
the grantor retained real estate abutting and on the other
side of the way), the title conveyed to Myrbeck was only to
the center line of Crescent Road in the absence of express
evidence in the instrument of a contrary intent in the
conveyance. G. L. c. 183, § 58.
Genovas contend such an intent derives from the usual
presumption that a grant of land bounded by a pond includes a
portion of the pond bed. SeePaine, 108
Mass. at 169 ("The general rule of construction of all
grants of land bounded by water of any kind is now well
established, that, unless qualified by restrictive words,
they pass the soil towards the centre of the water, as far as
the grantor owns"). However, Lots 18 and 19 do not abut
Island Pond; instead, the lots abut a way -- namely, Crescent
Road. Thus, the grant of Lots 18 and 19 to Myrbeck did not
convey the pond bed on the other side of Crescent Road.
Mass.App.Ct. 749, 754 (2011) (grant of the upland parcel
bounded by a way did not convey the tidelands on the other
side of the way). Instead, Kendrick and Hall retained