KEITH R. BARNETT, trustee,  & others 
MICHAEL D. MYEROW, trustee,  & others. 
Heard: December 11, 2018.
action commenced in the Land Court Department on October 29,
review by the Supreme Judicial Court, 464 Mass. 400 (2013),
further proceedings were had before Judith C. Cutler, J.
Felicia H. Ellsworth (Roger D. Matthews also present) for the
L. Puciloski for Pamela Kohlberg & another. Brian M.
Hurley for the defendants.
Present: Meade, Agnes, & Englander, JJ.
the second appeal arising from a dispute between neighbors
over interests in a large beach in Edgartown on Martha's
Vineyard (the beach) and the roads leading to it; this appeal
is limited to the issue of prescriptive easement rights in
the beach itself. The first appeal was heard by the Supreme
Judicial Court on direct appellate review. See White
v. Hartigan, 464 Mass. 400 (2013). In that
decision, after resolving several legal issues, determining,
inter alia, that the plaintiffs have no deeded title to the
beach, the Supreme Judicial Court concluded that the decision
of the Land Court judge contained insufficient subsidiary
findings of fact to allow adequate review of the
plaintiffs' claims of a prescriptive easement over the
entire beach. The Supreme Judicial Court remanded for further
factual findings, stating:
"For the reasons discussed, the record does not contain
such subsidiary findings of fact as are necessary to permit
adequate review of the judge's conclusion that the
[plaintiffs'] use of the beach was not open and
notorious, adverse, or for a period of twenty years. It may
well be the case that the judge credited some witnesses'
testimony, in whole or part, and did not credit that of
others, in whole or part, particularly where issues involved
extensive contradictory testimony. See Matsushita Elec.
Corp. of Am. v. Sonus Corp., 362 Mass.
246, 254 (1972). However, because the decision is generally
silent as to such matters, the meager findings do not permit
us to infer the credibility determinations the judge may have
"We take no view on whether the evidence produced at
trial is sufficient to support the conclusion that the
[plaintiffs] did not establish a prescriptive easement; we
simply require additional findings of fact, based on this
evidence, so as to permit an adequate review. See Mass. R.
Civ. P. 52 (a)[, as amended, 423 Mass. 1402 (1996)]. Because
the findings do not provide us with a 'clear
understanding of the judge's reasoning and the basis of
his decision,' Rapp v. Barry,
[398 Mass. 1004');">398 Mass. 1004, ] 1005 [(1986)], we remand for further
findings of fact."
White, 464 Mass. at 420.
time the remand order was entered, the original Land Court
judge had retired and a different Land Court judge (remand or
second judge) was assigned to hear the case on remand.
Certain defendants filed a motion for a new trial, contending
that because the remand judge did not hear evidence, she was
not in a position to assess the credibility of the witnesses
who testified at the first trial and, for that reason, could
not make the additional findings of fact required by the
remand order. The plaintiffs opposed the motion, arguing, in
part, that absent an explicit direction from the Supreme
Judicial Court to hold a new trial, the remand judge had
discretion to decide whether a new trial was necessary. The
judge deferred action pending submission of a statement of
the plaintiffs' remaining claims on remand, a stipulation
of agreed facts, if any, and submission of requested findings
of fact and rulings of law from each party. After reviewing
those submissions, the judge ultimately concluded that she
could comply with the remand order without an evidentiary
hearing. After arguments, the judge issued a judgment on the
original Land Court judge found that the plaintiffs failed to
prove they had acquired an easement by prescription because
they did not satisfy any of the requirements of a
prescriptive easement: their use was neither open nor
notorious during the relevant periods, any adverse use was
not continuous and uninterrupted for a period of twenty
years, and, in any event, their use was permissive. See
White, 464 Mass. at 416-418. On remand, the second
judge found that although the plaintiffs' use was open
and notorious and was not permissive, the plaintiffs had
failed to satisfy the requisite twenty-year time period to
acquire an easement by prescription over the whole or any
specific portion of the beach. The plaintiffs appeal
from the judgment; the defendants urge that we affirm the
judgment, but they also challenge the finding that the
plaintiffs' use was not permissive. We affirm in part
and reverse in part.
beach at issue is approximately fifty acres and runs 1.7
miles along the southern coast of Edgartown in Martha's
Vineyard, abutting the Atlantic Ocean to the south and
abutting to the north, from west to east, the seaward end of
Oyster Pond, Pohogonot uplands, the seaward end of Paqua
Pond, more Pohogonot uplands, the seaward end of Big
Job's Neck Pond, Short Point uplands, the seaward end of
Little Job's Neck Pond, and the Kohlberg property. See
the Appendix to this opinion, infra; White,
464 Mass. at 406.
described by the remand judge, the beach includes three main
segments. The Oyster Pond section lies on the western end
below Oyster Pond and abuts the beach area south of property
formerly owned by George D. Flynn, Jr. (Uncle George) to the
west, known as Oyster-Watcha. See White, 464 Mass.
at 424. Oyster Pond, as presently configured, is a long,
narrow pond running north to south. For many of the years at
issue, Oyster Pond has been "opened" to the ocean
by creating a cut near the western edge of the beach (the
cut). This in effect created two beach areas adjacent to
Oyster Pond, the beach west of the cut and the beach east of
Job's Neck section is comprised of the easternmost
section of the beach and contains two fairly distinct barrier
beaches, one below Big Job's Neck Pond, and one below
Little Job's Neck Pond. The Job's Neck section also
includes the beach south of the Short Point property and the
4.4-acre Kohlberg Option Beach that lies below Little
Job's Neck Pond on the far eastern end of the beach.
Between the Oyster Pond section and the Job's Neck
section is the Center section, which abuts the Pohogonot
uplands, Paqua Pond, and Pohogonot Cove.
The parties and their relationship to the beach.
title history of the parcels at issue is set forth in
White, 464 Mass. at 403-405, and we do not repeat
all of it here. For our purposes, it suffices to say that for
much of the Twentieth Century, Uncle George and Winthrop B.
Norton (Sonny) separately owned all of the property in the
southwestern corner of Edgartown upland of the beach at
issue. Sonny died in 1981 and Uncle George died in 1991.
Their parcels have been divided among their families and
other third parties. The plaintiffs' title derives from
Sonny, and the defendants' title derives from Uncle
George. We shall refer to the plaintiffs collectively as the
"Nortons" or the "plaintiffs" and to the
defendants collectively as the "Flynns" or the
plaintiffs, either individually or as trustees, own
properties located to the northeast of Oyster Pond. None of
their properties abuts the beach. The parties agree that
presently the sole access from the plaintiffs' properties
to the beach is by boat across Oyster Pond, to the Oyster
Pond section of the beach. The defendants own properties to
the north of the beach, and some parcels abutting the beach.
Title to the beach.
to the beach was separated from title to the uplands by an
1841 deed. White, 464 Mass. at 410. Quoting
Id. at 405, the remand judge found that "[f]rom
1846 to 2005, the shoreline eroded at a rate of roughly five
feet per year near the western boundary of the beach, and at
a rate of approximately seven feet per year near its eastern
boundary." The original Land Court judge found that the
beach as it existed in 1846 is now submerged in the Atlantic
Ocean and, "[i]n fact, the area on which the Beach was
located as late as 1938 is, likewise, submerged in the
Atlantic Ocean." See White, supra at
405-406. The Supreme Judicial Court held that the beach as it
currently exists is located on the former uplands of Paqua,
Pohogonot, Isaac's Neck, and Short Point, now owned by
the defendants. See Id. at 406 & n.l2. Although
both the plaintiffs' and the defendants' predecessors
held fractional fee interests in the separate beach lot
described in the original 1841 deed, "at the time of
trial, the Nortons had no title interest in the formerly
upland property on which the beach is presently
located." Id. at 406 n.l2. Accordingly, the
plaintiffs now rely on their claim that they have an easement
by prescription to use the entire 1.7-mile beach on the south
shore of Edgartown.
frame the time period of the prescriptive easement claim, it
is important to note that the original trial judge
"determined that the Nortons' deeded beach interest
became completely submerged by the Atlantic Ocean no later
than 1938. Thus, [the plaintiffs'] use of the beach
thereafter would have been adverse." White, 464
Mass. at 413 n.l8. In November of 1999, the Flynns caused a
public notice of their intention to prevent the acquisition
of easements over the beach to be posted, served, and
recorded in accordance with G. L. c. 187, §§ 3 and
4, thereby interrupting any adverse use. The plaintiffs'
prescriptive easement claim, therefore, begins no earlier
than 1938 and ends by November of 1999.
Judge's decision on remand.
Open and notorious.
remand judge concluded that the plaintiffs or their
predecessors openly used various portions of the beach for
Sunday gatherings including sunbathing, picnicking, and other
recreational activities without any effort of concealment and
that their uses were sufficient to put the landowner on
notice of their use. See White, 464 Mass. at
416-417. The judge further found that the Nortons kept a
distance from the Flynns out of respect for privacy and not
as an effort to conceal their presence. The testimony of both