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Barnett v. Myerow

Appeals Court of Massachusetts, Suffolk

August 8, 2019

KEITH R. BARNETT, trustee, [1] & others [2]
v.
MICHAEL D. MYEROW, trustee, [3] & others. [4]

          Heard: December 11, 2018.

         Civil action commenced in the Land Court Department on October 29, 2004.

         Following 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 plaintiffs.

          Peter L. Puciloski for Pamela Kohlberg & another. Brian M. Hurley for the defendants.

          Present: Meade, Agnes, & Englander, JJ.

          AGNES, J.

         This is 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 made.
"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.

         By the 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 record.

         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.[5] 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.[6] We affirm in part and reverse in part.

         Background.

         1. The beach.

         The 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.[7]

         As 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 the cut.

         The 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.

         2. The parties and their relationship to the beach.

         The 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 "defendants."[8]

         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.[9] The defendants own properties to the north of the beach, and some parcels abutting the beach.

         3. Title to the beach.

         Title 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.

         To 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.

         4. Judge's decision on remand.

         a. Open and notorious.

         The 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 ...


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