Thursday, December 13, 2018

Access to the Shore on a Plan Doesn’t Imply Usual Beach Rights

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
Dennis, Massachusetts, which is distinguished from previous holdings by the SJC in Reagan v. Brissey (2006), and the Appeals Court in Leahy v. Graveline (2012). In those cases, the SJC and the Appeals Court held that owners of inland lots held implied easements to use parks and a beach, respectively, based on the inclusion of access ways to those areas on a recorded plan, which indicated a common scheme for the overall subdivision intended by the original developer.

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.

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

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