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Smaland Beach Association, Inc. v. Genova

Appeals Court of Massachusetts, Plymouth

September 25, 2018

ARTHUR F. GENOVA & another. [1]

          Heard: February 14, 2018.

         Civil action commenced in the Superior Court Department on January 20, 2005.

         The 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.

          Lee P. Alfieri for the plaintiff.

          Joseph E. Kelleher, III, for the defendants.

          Present: Sullivan, Kinder, & Wendlandt, JJ.


         At 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 decades.

         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.

         After 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.

         Factual background.

         In 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[2]) . The 1931 deed from Albert K. Kendrick and Louis B. Hall[3] to Myrbeck contains no metes and bounds descriptions.

         Crescent Road.

         Lots 18 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.

         SBA's property.

         Lot 19 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.[4]

         In 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."

         The Genovas' property.

         Also in 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, [5] 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 SBA's land.

         The footpath.

         At some 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).

         Procedural history.

         SBA 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.

         In May, 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 Crescent Road.

         Following a jury trial before a different judge (trial judge) in June, 2013, [6] 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.[7]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.

         In 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.


         1. Application of G. L. c. 183, § 58.

         SBA 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[8] (the derelict fee statute) results in the parties owning the fee in Crescent Road only to its mid-point. We agree.

         To 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.[9]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.[10] 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.

         The 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. SeeKanev.Vanzura, 78 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 ...

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