NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-480
STEVEN J. GLADSTONE & others 1
vs.
KATHLEEN M. DENIZARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kathleen M. Denizard, owns oceanfront
property in the town of Dartmouth and the plaintiffs, owners of
nearby oceanfront, beachfront, or inland property, each claim to
have the right to use the "beach" portion of Denizard's property
for general beach purposes. 2 Denizard contends that several of
the plaintiffs' properties lost their rights over her beach due
1Kim Daigle Gladstone, Jeri L. Gilling, John Seymour, Lynn Seymour, Mary Elisabeth Swerz and Kinnaird Howland, trustees of the Sherman Family Realty Trust, Robert Tabors, and Richard D. Tabors and Patton O. Tabors, trustees of the TQuad Realty Trust.
2The plaintiffs also claim the right of access to the beach by a ten-foot wide right of way along the northern side of Denizard's property; Denizard no longer denies that the plaintiffs have that right -- with the exception that Denizard denies that the trustees of the TQuad Realty Trust have that right. We will address that argument below. to the doctrine of merger and the longstanding "bright-line"
rule prohibiting "the owner of the dominant estate [from using
an easement] to pass to or from other land adjacent to or beyond
that to which the easement is appurtenant" (citation omitted).
Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 686
(2016). As to other plaintiffs, Denizard admits they have
easements, but challenges their use of her beach as exceeding
the scope of their easements. On cross motions for summary
judgment on the plaintiffs' complaint seeking a declaratory
judgment and injunctive relief, a judge of the Land Court
declared the rights of the parties and Denizard now appeals from
the judgment and from the denial of her motion for
reconsideration. 3 Our reasoning differs in some respects from
that of the Land Court judge and we affirm in part and vacate in
part and remand for modification of the easement for the inland
property owners -- Steven J. Gladstone, Kim Daigle Gladstone,
Jeri L. Gilling, and Robert Tabors.
Background. The development of the plaintiffs' properties
may be traced to 1885, when Emily Sweet acquired a large parcel
including all the land at issue, which fronted on Buzzards Bay
along the parcel's eastern boundary. In 1889, Sweet divided the
3 Denizard does not raise any separate arguments regarding the denial of her motion for reconsideration, and we therefore do not address it further.
2 large parcel into four smaller parcels -- three roughly
rectangular adjacent parcels that proceed north to south and are
labeled nonconsecutively on the attached decision sketch 4 as
parcels 318, 319, and 317, and a fourth parcel, the "beach
parcel," which Sweet referred to as the "farm shore." While
retaining the fee in the farm shore, 5 Sweet transferred parcel
318 to Henry, Ephraim, and Foster Dennis, 6 and she transferred
parcel 319 to Louis Richardson. Importantly for our purposes,
in both deeds she expressly included the right to "use the farm
shore for boating[,] bathing [and] fishing purposes." 7
4 The decision sketch was attached to the Land Court decision and neither party suggests that it does not accurately depict the location of the various lots. Accordingly, we attach the sketch depicting the various parcels, Gosnold Alley, and other features as an appendix to assist the reader. We note, however, that some of the affidavits submitted suggest that there has been erosion of the beach area that may not be reflected on the sketch.
5 The parties agree that Sweet "retained ownership of the land to the east of [parcels 317, 318 and 319] lying between the parcels and the sea ('the Farm Shore')," and they agree that the farm shore is accurately shown on the decision sketch.
6 Because of the common surname, we refer to these people frequently by their first names.
7 Sweet transferred parcel 317 to Henry and Foster "[t]ogether with the right to the grantees, their heirs & assigns of using the beach lying between the granted premises and the waters of Buzzards Bay for all purposes except the taking of seaweed . . . ." Because none of the parties' properties derive from parcel 317, we do not address it further.
3 Sweet retained the farm shore parcel until 1891 when she
conveyed it to Ephraim Dennis, who conveyed it to Henry on
November 8, 1909. On November 8, 1909, the same day that Henry
acquired all of the farm shore, he and Ephraim conveyed a
portion of the northern section of the farm shore to William
Hill, "subject to the common law rights of the public and to
rights in certain persons," including the owners of Henry
Dennis' properties, Louis Richardson's property, George
Batchelor's property, and Walter and Maude Taber's property,
among others. 8 The division line for this "north farm shore"
portion from the rest of the farm shore is shown on the decision
sketch as just north of Batchelor's parcel (now owned by the
Seymours). What the parties refer to as the "south farm shore"
is south of that line and the "north farm shore" is north of
that line. Denizard's beach is in the "south farm shore"
portion. In November 1910, Henry transferred the remainder of
parcel 318 and the south farm shore to Catherine Dennis and Lucy
Dudley.
The parties agree that parcel 319 never entered common
ownership with any part of the Denizard property and that the
Sweet easement rights continue to benefit all property deriving
8 We note that the plaintiffs Robert, Richard, and Patton have the last name "Tabors," which is different from the last name "Taber." The Tabers and the Tabors are unrelated for purposes of this decision.
4 from parcel 319. As noted above, in November 1909, however,
when Henry owned a large portion of parcel 318, including
portions of several of the plaintiffs' interior lots, the
Shermans' beachfront lot and interior lot, and Denizard's lot,
he took title to the south farm shore. This is significant
because Denizard argues that the Sweet easement over the farm
shore benefitting parcel 318 merged by operation of law when
Henry took title to both the remainder of parcel 318 and the
south farm shore. And, because several of the parties' interior
lots are comprised of property from the merged portion of parcel
318 and portions of parcel 319, and even though the parcel 319
portion of the lots do not suffer from a merger issue, she
contends that the easements benefitting the parcel 319 portion
of those lots are overloaded 9 by the combination of land from
parcel 319 with land from parcel 318, and thus the owners may
not exercise those easement rights.
1. The parties' properties. a. The beachfront
properties. As shown on the decision sketch, four beachfront
lots deriving from parcel 318 are separated from interior lots
by "Gosnold Alley," which runs north to south over parcels 318
9 The term "overload" applies when an appurtenant easement is used to serve land other than the original dominant estate. Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 685 n.11 (2016).
5 and 319. These are labelled (1) "Seymour formerly 1905
Batchelor parcel" along with "1902 Batchelor Parcel";
(2) "Denizard formerly Clark 10"; (3) "Tabors formerly Knowles";
and (4) "Sherman."
Proceeding from north to south, the plaintiffs John and
Lynn Seymour's property is directly north of a ten-foot right of
way that separates it from the Denizard property. The Seymour
property is comprised of portions of parcels transferred in
1902, 1905, and 1909 to their predecessor, Batchelor, before any
potential merger issue arose by virtue of Henry's ownership of
the farm shore. The 1902 deed included a piece of the farm
shore and the parties agree that "[a] portion of the 1902
Batchelor Parcel now comprises part of the Seymour Waterfront
property." Each of the parcels transferred to Batchelor had
rights to use the ten-foot right of way and the farm shore,
including the Denizard beach, for boating, bathing, and fishing,
either by virtue of the Sweet easement or an express easement in
the relevant deed. 11
10The spelling of Denizard's predecessor, Frederick Clark, is inconsistent in the record between Clark and Clarke; we adopt the spelling in the original deed of Denizard's property to Frederick L. Clark.
11While the 1905 deed did not expressly include beach rights, the rights deriving from Sweet were still in effect. See G. L. c. 183, § 15. See also Anzalone v. Metropolitan Dist. Comm'n, 257 Mass. 32, 36 (1926) (easement not limited in scope by its terms attaches to every portion of tract and to owner of
6 The Denizard property is south of the Seymour property. It
was conveyed to Denizard's predecessor, Frederick Clark, by Lucy
Dudley, successor to Henry Dennis, in 1914, at a time when
Dudley also owned the vast majority of the farm shore, aside
from the section north of the Denizard property which had been
previously conveyed to the Seymours' predecessor, Batchelor, and
portions north of the Batchelor property -- the north farm shore
-- that had been conveyed in 1909 to William Hill, subject to
Henry's easement. The deed from Dudley to Clark included the
beach to the shoreline. The deed purported to transfer the
property "free from all of incumbrances" and does not contain an
express reservation of an easement for Dudley's remaining land.
Of note, however, is that Dudley retained the fee in or an
easement right to use all other sections of the beach -- both
the north farm shore and the south farm shore. In fact, a small
portion of the "south farm shore" is north of Denizard's beach
and a larger portion of it is south of Denizard's beach.
South of the Denizard property is the Tabor trustees'
beachfront property (the "Tabors formerly Knowles" lot on the
each lot divided from tract). Further, in 1909, Henry transferred a nearby interior lot to Walter and Maude Taber, "together with the use of the shore" north of the 319 parcel for boating, bathing, and fishing, reserving the right of boating, bathing, and fishing on the farm shore. The Seymours now own this lot also.
7 decision sketch). Ephraim and Henry Dennis originally
transferred that lot to Walter I. Knowles on September 7, 1899,
together with a lot across the alley that derives from parcel
318, with "the privilege of using the beach in front of the lot
first above described [the beachfront lot] in common with
others, for boating bathing and fishing." At that time, Ephraim
owned the beach and Ephraim and Henry owned parcel 318. So far
as the record reveals, there was nothing to prevent the easement
that Sweet granted to parcel 318 from passing appurtenant to the
two lots that Ephrain and Henry Dennis deeded to Knowles. See
G. L. c. 183, § 15; Anzalone v. Metropolitan Dist. Comm'n, 257
Mass. 32, 36 (1926).
South of the Tabors' property is the Sherman property; it
too is comprised of a beachfront lot and an adjacent inland lot
-- all deriving from parcel 318. Henry took title to this
property in 1899; in 1909, when Henry took title to the south
farm shore, he owned both the south farm shore and all of the
Sherman property, and Dudley succeeded to his interest.
b. The inland lots. The Gladstones, Gilling, and Robert
Tabors own interior lots that are west of Gosnold Alley, run
north to south, and are comprised of property from both parcels
318 and 319. The interior lots were created by a 1965
subdivision plan of land acquired by Philip and Bernadette
Hemingway together with "any right to the use of the shore
8 appurtenant to it." The Tabors, as trustees, and the Shermans
each own the beachfront lots noted above and adjacent interior
lots derived from parcel 318.
Discussion. Our discussion is limited to the parties'
rights over the Denizard property and Denizard's contention that
the Sweet easements had been extinguished by the doctrine of
merger for the portions of parcel 318 held by Henry at the same
time he owned most of the south farm shore and had rights to use
all of the south farm shore. We review the judge's decision de
novo. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass.
App. Ct. 515, 517 (2011).
At the outset, we note that Denizard, in her brief, makes
several concessions. She admits that in 1909, when Dudley
conveyed the Denizard lot to Clark, the use of the ten-foot
right of way abutting the northerly boundary of the Denizard
property was an "apparent and obvious use" and "reasonably
necessary" for gaining access to the north farm shore -- that it
"had been established for at least 4 years and allowed for
inland portions of [parcel 318] then owned by Henry Dennis . . .
to access the [f]arm [s]hore." Thus, Denizard in essence
concedes that Dudley reserved an implied easement for the ten-
foot right of way for access to the north farm shore for all of
the plaintiffs -- but not for the south farm shore still owned
by Dudley. She also does not challenge the judge's "conclusion"
9 that the Sherman's property "has an implied easement over the
Denizard Beach due to the fact that Sherman's property contains
beachfront that was formerly part of the Farm Shore." The
judge's decision, however, concludes only that the Sherman
property "is benefitted by an implied easement to pass and
repass over the South Farm Shore, including the beachfront
portion of the Denizard property." Sherman did not file a
notice of appeal on this issue. Finally, Denizard concedes that
the Seymours have rights to use Denizard's beach for beach
purposes. Thus, other than to address Denizard's "scope"
argument, we need not address further the rights of the Seymours
or any of the parties' right to use the ten-foot right of way
for access to the north farm shore.
We turn to the plaintiffs' remaining claims.
1. Premerger transfers. Both the Seymours and the Tabors
own properties that were transferred to their predecessors
before Henry Dennis took title to both the south farm shore and
the remainder of parcel 318. The Seymours' predecessors
acquired express easements over Denizard's beach and over the
ten-foot right of way. Although Denizard does not challenge the
Seymour's right to boat, fish, and bathe on her beach, she
contends that the scope of the easement granted by the judge is
overly broad and the judge's conclusion that the Seymours'
rights include "all customary beach uses incidental [to boating,
10 bathing, and fishing], including without limitation sunbathing,
sitting on blankets or chairs, picnicking, and playing beach
games" overburdens 12 the easement. Denizard makes only vague
assertions that the various affidavits submitted in the case --
none of which shed light on the intentions of Sweet -- suggest
that Bachelor has overburdened the easement, but does not point
to any specific facts. Consequently, we discern no error in the
judge's reasonable interpretation of the Seymours' express
easement.
As for the Tabor trustees' beachfront property (which
includes a parcel west of Gosnold Alley but comprised only of
property from parcel 318), although their original predecessor,
Knowles, did not receive an express easement over Denizard's
beach, the Sweet easement was still appurtenant to the property
in 1899. "An easement is to be interpreted as available for use
by the whole of the dominant tenement existing at the time of
its creation," Pion v. Dwight, 11 Mass. App. Ct. 406, 410
(1981), and "[u]nless otherwise stated in the deed, 'rights and
appurtenant easements pass by grant without specific mention.'"
Perry v. Nemira, 91 Mass. App. Ct. 12, 16 (2017), quoting
Cheever v. Graves, 32 Mass. App. Ct. 601, 606 (1992).
12The term "overburden" describes "use of an easement for a purpose different from that intended in the creation of the easement" (citation omitted). Taylor, 475 Mass. at 685 n.11.
11 Denizard argues that because the deed to the Tabors
trustees' predecessor, Knowles, contained an express easement
over the beach in front of the Knowles lot, the parties must
have intended to "relocate" Knowles' easement rights deriving
from the Sweet deed. While we agree with Denizard that in
rejecting this argument the judge erred by suggesting that
Walter Knowles and Edward Knowles were the same person, that
error does not change the outcome as we do not find anything
inconsistent about granting an express easement over the beach
in front of Walter Knowles' property and also finding that the
easement rights over all of the beach set forth in the Sweet
deed were still operative. The easements, though duplicative in
part, are not inconsistent, and Denizard points to no
affirmative evidence of the parties' intent to extinguish the
Sweet easement appurtenant to the property. Contrast Proulx v.
D'Urso, 60 Mass. App. Ct. 701, 705 (2004) (easement relocated
when parties acquiesced in use of alternative easement in lieu
of original easement for over decade).
2. The Gladstone, Gilling, and Tabors inland parcels and
the merger doctrine. Although it is clear that the original
grantor, Emily Sweet, took steps to ensure that all of parcels
318 and 319 would have easement rights in and over the farm
shore -- including what became the Gladstone, Gilling and Robert
Tabors parcels -- the subsequent development of parcel 318 and
12 the farm shore caused some portions of parcel 318 and the farm
shore to come into common ownership. "The [merger] doctrine
requires that [an easement] terminate[] 'when all the benefits
and burdens come into a single ownership'" because "[w]hen the
dominant and servient estates come into common ownership there
is no practical need for the [easement's] continued existence,
as the owner already has 'the full and unlimited right and power
to make any and every possible use of the land'" (citations
omitted). Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 497-498
(2008). "Although a subsequent conveyance of one of the
commonly held parcels will not automatically revive the
extinguished easement, the doctrine in no way precludes the
common owner from recreating precisely the same easement by
express reservation." Id. at 498. Extinguished easements,
however, "must be created anew by express grant, by reservation,
or by implication" (citation omitted). Williams Bros. Inc. of
Marshfield v. Peck, 81 Mass. App. Ct. 682, 685 (2012).
Accepting that by late 1909, Henry owned the inland
portions of parcel 318, the Denizard lot, the Sherman lots, and
the south farm shore, the preexisting easement from Sweet had
been extinguished as to those lots under the doctrine of merger.
To be clear, Henry, as owner of both the south farm shore and
the inland properties, had sufficient title to create the
easements anew, but he never did, and the original easements
13 from Sweet were extinguished. Dudley took what title Henry had.
Dudley's deed to Clark did not include an express reservation in
the Denizard beach, thus easement rights must have arisen, if at
all, by implication. See Williams Bros. Inc. of Marshfield, 81
Mass. App. Ct. at 685. Consequently, the question is whether
when Dudley transferred the Denizard lot -- including the
Denizard beach to Clark -- an easement by implication with
respect to the Denizard Beach, which had been part of the south
farm shore, arose for the benefit of Dudley's remaining land.
Whether by grant or by reservation, implied easements "do
not arise out of necessity alone." Perodeau v. O'Connor, 336
Mass. 472, 474 (1957), quoting Dale v. Bedal, 305 Mass. 102, 103
(1940). Rather, they "must be found in a presumed intention of
the parties, to be gathered from the language of the instruments
when read in the light of the circumstances attending their
execution, the physical condition of the premises, and the
knowledge which the parties had or with which they are
chargeable." Dale, supra at 103. Because "a deed is . . .
construed most strongly against the grantor," it may be "more
difficult to imply an easement by reservation for the grantor's
benefit than an easement by grant for the grantee's benefit."
Id.
Only "reasonable necessity" is required. Perodeau, 336
Mass. at 474. "The burden of proving such intent lies with the
14 party claiming the easement, here the plaintiffs." Kane v.
Vanzura, 78 Mass. App. Ct. 749, 755 (2011). "The controlling
question is whether the circumstances of the severance
demonstrate that the parties intended that the owner of one of
the resulting parcels be able to make some use of the other
parcel even though no express easement was recorded." Lavoie v.
McRae, 102 Mass. App. Ct. 14, 19 (2022). That intent "generally
will be found only where the parties seeking to benefit from the
easement can prove that it is 'reasonably necessary' for their
use and enjoyment of their land" (citation omitted). Id. at 19-
20.
Denizard asserts that because the Dudley deed stated that
the property was transferred "free of incumbrances," there can
be no implied easement for Dudley's remaining land. We place
little weight on the deed's assertion, however, because at the
time of the Dudley deed to Clark, Denizard's predecessor,
several property owners from the original Sweet parcel had
rights in and over the Denizard beach for boating, bathing, and
fishing purposes. They included all of parcel 319, and the
Seymours' predecessor, Batchelor. In addition, William Hill,
who owned property north of the Seymours' lot and the north farm
shore, had acquired rights to use the Denizard beach for
boating, bathing, and fishing in 1909, including the right to
grant the same rights to purchasers of his ten plus acres. All
15 of these appurtenant rights were a matter of record, and parties
to a deed are charged with knowledge available from inspection
of the records of the registry of deeds. See Barnes v.
Boardman, 152 Mass. 391, 396 (1890). Thus, when the Dudley deed
provided that the Denizard property was granted "free of
incumbrances" that did not extinguish the rights of others to
use the beach in front of the Denizard property and does not
preclude us from finding an implied easement for the benefit of
Dudley's remaining property.
Next, we must emphasize that Denizard has admitted that the
use of the ten-foot right of way abutting the northerly boundary
of the Denizard property was an "apparent and obvious use" and
"reasonably necessary" and "that it had been established for at
least 4 years" at the time of the Dudley to Clark deed in 1914,
"and allowed for inland portions of [parcel 318] then owned by
Henry Dennis . . . to access the [f]arm [s]hore." Although she
contends the right of way was used for access to the north farm
shore, we discern nothing in the record suggesting that at the
time of the deed, Dudley and her predecessor, Henry, had limited
their use of the farm shore to the north farm shore. Given that
Denizard has conceded the open and obvious use of the ten-foot
right of way, on this record, we cannot conclude that Dudley
intended to give up her access to the rest of the beach she
owned south of Denizard's property. Even if she could have
16 access to the beach generally by using the ten-foot wide right
of way and turning north of the Denizard beach or access to the
beach south of the Denizard beach via the Sherman lot, it is
unreasonable to conclude that Dudley intended to cut off her
ability to traverse the entire beach when she retained rights in
or title to all of the south farm shore and the north farm shore
other than the Denizard beach. We conclude, therefore, that an
easement over the Denizard beach and the ten-foot right of way
was reasonably necessary to enable Dudley to fully enjoy the
rest of her property. When Dudley divided parcel 318, the
rights over Denizard's property passed to the divided portion
without having to be stated. Indeed, Denizard concedes that the
internal properties retain the rights with respect to the north
farm shore. "Unless otherwise stated in the deed, 'rights and
appurtenant easements pass by grant without specific mention.'"
Perry, 91 Mass. App. Ct. at 16, quoting Cheever, 32 Mass. App.
Ct. at 606. So far as the record reveals no one with a fee
interest in the portion of the south farm shore south of
Denizard’s beach appears to have challenged the inland lot
owners rights, whether by virtue of permission or easement
rights, to use the south farm shore south of the Denizard
property and thus, we need not entertain the suggestion that any
easement over the Denizard property is obsolete or unnecessary.
17 We note, however, that in Cheever, 32 Mass. App. Ct. at
608-609, we concluded that a plaintiff made no showing of
reasonable necessity to demonstrate an intent to reserve an
easement by implication for beach rights where there was no
showing that the lot had no other waterfront access. Here,
Dudley did have other waterfront access. However, as already
stated, here Dudley retained rights in or title to all of the
south farm shore other than the Denizard beach. It defies logic
to conclude that Dudley intended to carve out a section of the
beach that would disrupt her enjoyment of all of the remaining
beach that she owned. In these circumstances, we conclude that
she intended to reserve a right to pass and repass over the
Denizard beach. That said, there is no indication that using it
for "all beach purposes" was reasonably necessary where she
transferred the fee and could enjoy other areas of the beach for
beach purposes. Thus, we limit the reserved easement by
implication to passing and repassing only -- in addition to the
public's colonial rights. See Butler v. Attorney General, 195
Mass. 79, 84 (1907) (colonial ordinance of 1631-1647 grants
public right of navigation, fishing, fowling, and passing freely
over and through water between high and low water marks). 13
13Similarly, we note that Denizard admits in her brief that the inland lot owners continue to have rights in some portions of the beach south of Denizard's beach as well as the north farm shore.
18 Because we conclude that Dudley reserved an easement by
implication over the Denizard beach, including property from
parcel 318 in the Gladstones', Gilling's, and Robert Tabors'
interior lots does not overload the parcel 319 easement to the
extent that they may pass and repass over the Denizard beach to
reach other sections of the beach over which they have beach
rights. This is the same result the judge reached for the
Sherman property -- that it retains the right to pass and repass
over the Denizard beach and the ten-foot right of way. It would
overload the easement, however, to allow the Shermans, the
Gladstones, Gilling, and Robert Tabors to use the Denizard beach
for all beach activities. Thus, we remand the case to the Land
Court to modify the scope of the easement for the interior lots
comprised of property from parcels 318 and 319 owned by the
Gladstones, Gillings, and Tabors consistent with this decision. 14
14The judge found that the doctrine of merger did not apply because it was not the intent of the merger doctrine to "deprive the portions of those properties within the 319 [p]arcel of their deeded rights to full use of the [f]arm [s]hore, even though their rights had not been lost through merger." However, it is not the doctrine of merger that causes the property deriving from parcel 319 to lose easement rights to the full use of the Denizard beach. Rather, the doctrine of overloading came into play because of the much later decision to combine portions of parcel 319 with property from parcel 318 that had lost certain easement rights through merger, ultimately leaving that property with only the right to pass and repass, and developing them as single lots with property from both parcels 318 and 319. The prohibition against overloading an easement by extending it to after-acquired land has been firmly established for centuries. See e.g. Davenport v. Lamson, 21 Pick. 72, 74 (1838)
19 3. Remaining counterclaims. Denizard argues that her
counterclaims were not completely addressed and that the
Seymours and Tabors have "overburdened" their easement to use
the Denizard beach. Specifically, Denizard asserts that the
judge erred in broadly concluding that the easement authorized
"all customary beach uses incidental [to boating, bathing, and
fishing], including without limitation sunbathing, sitting on
blankets or chairs, picnicking, and playing beach games." We
discern no error in this aspect of the judge's decision; the
Seymours and the Tabors trustees' beachfront lot, and the
adjacent lot purchased with the beachfront lot, enjoy broad
rights deriving from admitted express or implied easement
rights. Nothing in the affidavits of record raise a genuine
issue of material fact on the scope of those easements. Again,
our decision does limit the Shermans' lot and the Gladstones',
Gilling's, and Richard Tabors' interior lots to passing and
repassing over the Denizard lot.
In addition, it appears that the plaintiffs also claimed
easements by prescription. It is unclear to us whether these
(right of way benefitting three-acre lot cannot be used for access to nine-acre lot which lay beyond three-acre lot). That premerger, both lots enjoyed the Sweet easement rights, does not assist the plaintiffs here. Thus, the portions of lots 319 and 318 that were combined to create the three interior lots each retained the right to pass and repass over the Denizard beach (as they retained the rights to use the north farm shore); those therefore are the rights the three interior lots retain.
20 claims were waived. To the extent that they were not waived,
the Shermans, Gladstones, Gilling, and Robert Tabors may pursue
those claims on remand, though they will bear the burden to show
"that [their] use of the disputed beach area was sufficiently
open and notorious as to entitle [them] to the benefit of the
presumption that [Denizard or her predecessors] knew that . . .
use of the area was being made under a claim of right."
Houghton v. Johnson, 71 Mass. App. Ct. 825, 840 (2008).
Conclusion. We affirm the judgment in part and vacate in
part and remand for further orders and proceedings consistent
with this opinion. 15 Specifically, the Shermans, Gladstones,
Gilling, and Robert Tabors properties enjoy an implied easement
to pass and repass over the Denizard beach and the ten-foot
right of way to reach both the north farm shore and the south
farm shore. The Seymours' beachfront property and the property
of Richard D. Tabors and Patton O. Tabors, as trustees of the
TQuad Realty Trust, enjoy easement rights over the ten-foot
right of way to reach the north farm shore and the south farm
shore, and the right to use the Denizard beach for boating,
bathing, and fishing and all customary beach uses incidental
thereto, including without limitation sunbathing, sitting on
15 Denizard's request for attorney's fees and costs is denied.
21 blankets or chairs, picnicking, and playing beach games.
Denizard shall be enjoined from interfering with the plaintiffs'
rights as declared. The Land Court shall determine whether any
of the plaintiffs have acquired additional prescriptive easement
rights if such claims have not been waived. The order denying
the motion for reconsideration is affirmed.
So ordered.
By the Court (Rubin, Henry & Wood, JJ. 16),
Clerk
Entered: June 15, 2026.
16 The panelists are listed in order of seniority.
22 23