In
Loiselle v. Hickey, 93 Mass.App.Ct. 644 (2018),
the Appeals Court recently affirmed a Land Court decision involving a
subdivision of registered lots in
The
subdivision in Loiselle v. Hickey was
originally part of a single 217-acre tract of land dating back to 1903. The
subdivision was developed in stages. All of the litigants owned properties that
were part of the second stage of development.
The
eastern side of the tract was developed first and included a reservation by the
developer of a long, narrow upland beach. Shoreland lots in the first stage of
development describe their boundary as “by the beach.” The western side of the
tract was developed second, but no similar beach was set aside by the
developer. The lots in the second stage of development describe their
boundaries as “by the waters of Cape Cod Bay” or equivalent language. After the
second stage shoreland lots were deeded out, inland lots were deeded without
any references to reserved beach rights. However, the Land Court plans for the
subdivision depicted several access ways in between the shoreland lots. The
ownership of these access ways and rights to use these access ways and the
adjacent flats became the subject of multiple lawsuits over the last few years.
The
first lawsuit involving the development was filed by four shoreland lot owners seeking
a declaration from the Court that they owned the full interest in a twenty-foot
wide right-of-way called “Hickey Way” that led to Cape Cod Bay, and that the
inland owners had no right to use Hickey Way (Hickey I).
Hickey
I went to the Massachusetts Supreme Judicial Court, which decided that Hickey
Way and other access ways were excluded from the conveyance to the shoreland
owners and that the inland lot owners had the rights to use Hickey Way (and the
other ways) to access Cape Cod. The SJC held that the developers reserved the
fee interest in the ways and that by retaining the fee in the ways, the
developers could convey access rights to subsequently developed inland lots.
Given the foregoing, the SJC held that the access ways were part of an integral
scheme of ways in a neighborhood, providing access to the waterfront and that
the developers intended to grant rights over the way to the inland owners. The
SJC did not decide who owned title to the flats nor the scope of the inland
owners’ rights to use the flats.
Hickey
II: Loiselle v. Hickey, 93. Mass. App. Ct. 644 (July 27, 2018),
rev. denied (September 27, 2018).
Having
obtained a ruling that they had the right to use Hickey Way, the inland owners
then filed a subsequent action in Land Court seeking a declaration regarding
title to the flats adjacent to Hickey Way and a declaration that they had an
easement to use the flats adjacent to Hickey Way for all usual beach purposes
by virtue of their right to use Hickey Way and the other access ways (Hickey
II).
In
2017, the Land Court held that: (i) the shoreland owners’ properties were
subject to the common law presumption that their property includes the flats
and that the inland owners did not proffer sufficient evidence to rebut that presumption
and (ii) the inland owners’ rights in the access ways were limited to the use
of the ways solely for the purpose of exercising their Colonial Ordinance
Rights (fishing, fowling and navigating).
In
July 2018, the Appeals Court affirmed the Land Court decision. Notably, the
Appeals Court clarified the holding of the Land Court concerning use of the
access ways. The Appeals Court held that the right to use the access ways to
Cape Cod Bay does not impliedly carry with it the right to use the adjacent
flats for all normal beach purposes (for example, sun bathing and recreation).
The Appeals Court explained that even though the inland owners’ certificates of
title reference rights to use Hickey Way and other access ways, none referenced
a right to use the disputed flats for beach purposes. The access ways provided
the inland owners the right to gain access to the disputed flats only to
exercise the rights reserved by the Colonial Ordinance. The Appeals Court
declined to address the scope of the inland owners’ rights to use the area
within the access way.
The
inland owners argued that it would not make sense for the original developers
to have created a system of access ways for the benefit of the inland owners
unless such owners acquired significantly greater rights than the public at
large (i.e., the right fish, fowl and navigate on private flats). The Appeals
Court rejected the inland owners’ argument and held that the inland owners
enjoyed significant rights not possessed by the general public. For example,
they could access ways closer to their homes and did not have to walk down to
the public ways to access Cape Cod Bay and the disputed flats.
Hickey II can be distinguished
from Reagan and Leahy. In Reagan, a
handful of parcels were designated as parks on an 1892 subdivision plan. Advertisements
described the subdivision as a "Pleasant and Healthy Seaside Resort"
with harbor views and "gently undulating" lands and promised "a
pleasant retreat during the 'heated term.'" However, the owners' deeds did
not mention the parks and did not grant any express easements to use them, but
the deeds did refer to the 1872 plan. The SJC held that an implied easement was
intended with respect to the parks based on the details of the 1892 plan and
inferences drawn therefrom. The SJC held that “without the use of the parks,
the majority of lot owners would not be able to enjoy the social and
recreational pleasures to be had by Crystal Lake.”
Similarly,
in Leahy, the Appeals Court held that
a beach, like the parks at issue
in Reagan, was part of a common
scheme for a vast subdivision with exceptional beach and bathing facilities. The
Appeals Court held that the existence of the beach was an important feature in the
attempt to sell the non-waterfront lots located in the Hyannis Park subdivision
(as evidenced by the advertisements), and that "without the use of the
[beach], the majority of lot owners would not be able to enjoy the social and
recreational pleasures to be had by [Hyannis Park]."
Such is not the case in Hickey
II. The developer in Hickey II did
reserve the rights to use a beach lot in the first stage of development and, unlike
Reagan and Leahy, all of the proposed lot owners had the ability to use that
reserved beach lot. The Appeals Court in Hickey
II followed the general rule set forth in Jackson v. Knott that an easement must be shown on the certificate
of title for registered land to be burdened by an easement. Neither of
the Jackson exceptions applied in Hickey II. The advertisements relied
upon in Reagan and Leahy would not be applicable in Hickey II because such advertisements
were not included with other certificates of title, documents, or plans in the
registration system. Further, even if the holdings in Reagan and Leahy are
applied to Hickey II, the inland
owners would not be deprived of the social and recreational pleasures to be had
by Cape Cod Bay due to the reservation of the beach lot by the developer.
The inland
owners sought further appellate review of the Appeals Court decision, which was
denied.
A partner with the Boston law firm of Englander
& Chicoine, PC, Shannon Slaughter’s practice
focuses resolving real estate and land use disputes, including real estate
acquisition and complex title litigation, prescriptive easements and adverse
possession claims, determination of ownership of tidelands, zoning and
subdivision litigation, construction defects, fraudulent title and conveyances,
and condominium disputes. She can be
reached by email at sslaughter@ec-attorneys.com.
