For anyone contemplating using a right-of-way to reach a Great Pond in Massachusetts, two must-read Appeals Court decisions are Kubic
v. Audette, 98 Mass. 289 (2020) (Kubic I) and Kubic v. Audette, 102 Mass. App. Ct. 228 (2023) (Kubic II). They explain the principle of ownership of accreted land bordering a Great Pond, the rights and limits of access to a Great Pond, the tests for overburdening of an easement, and the proper interpretation of easements. The result is respect for but reasonable limits on use of an easement to reach a Great Pond, reflecting both the intent of the parties in creating the original easement, as well as the traditional limits on uses of a Great Pond itself. Recall that a Great Pond is defined as a natural pond the area of which is twenty acres or more. G.L. c. 131, § 1.
Plaintiffs Vince Kubic and Paul Kubic own
adjacent lots separated by a 50-foot-wide unpaved right of way that extends
from the street to Webster Lake, which is a Great Pond. This is the lake with the Native American
name that is reputed to be the longest: Lake Chaubunagungamaug. Audette is the owner of an inland lot which
has a deeded right of access over the right of way to get to the Lake. Audette also purchased a release deed of the
right of way from a purported heir of the original developer of the subdivision
of which the properties are a part and thereafter claimed that he owned the fee
in the right of way. Conflict arose when Audette began using the right of way
more intensely than other easement holders historically had done.
Audette represented to MassDEP that he
owned the land at the end of the right of way and obtained a waterways license
pursuant to G.L. c. 91, the Massachusetts Tidelands and Waterways Act. He constructed a trident-shaped dock at the
end of the right of way, thirty-five feet wide and protruding fifty feet into
the lake. He docked his boat there,
which comfortably held fifteen people.
He used the right of way regularly, as much as every day during the
summer. He has a large family, who had an
open invitation and were regular guests.
He graded the right of way and installed pavers to facilitate motor
vehicle access.
The Kubics brought an action in Land Court
to quiet title in the right of way and to establish the parties’ rights to use
it. The Land Court ruled in favor of the
Kubics on some of the issues and in Audette’s favor on others, but declined to
rule on some issues.
The record established that, at least for
a period of time that included 1948, the shoreline was submerged. Under the legal principles governing
accretion and reliction of the ocean and certain water bodies, this raised some
question whether the Commonwealth might make some claim of ownership if and
when it reemerged. There are many cases about who owns “new land” when it
appears, or loses “their land” when it goes under water, but here the
Commonwealth disavowed such a claim. The state took the position that the
reemerged land would belong to the littoral owners. This is consistent with the general rule that
the waterside boundaries of littoral property generally follow the changing waterline.
There are exceptions to this general rule
that lot lines move with the water lines.
An owner cannot artificially add to his land and then claim the benefit
of the addition. In such disputes, the
history (or lack thereof) of the filling, dredging or grading of such a
shoreline becomes relevant or even determinative. These disputes often arise in
coastal areas, where lands are affected by tidal action and by storms, so the
landforms are dynamic, but also in lakes, ponds, rivers and streams where
alterations may be natural or man-made.
The Appeals Court used the term
“littoral,” not “riparian.” It is useful to consider the natural processes
which are at work and the resulting movement of the ownership line. According
to Black’s Law Dictionary, “littoral rights” are rights concerning properties
abutting an ocean, sea, or lake rather than a river or stream (riparian). The
accretion and reliction principles vis a vis the line of ownership, however,
appear to apply equally, with variations possible from the general rule.
Specifically, the decision in Kubic I
stated in footnote 6: “As a general rule, a littoral owner is entitled to newly
emergent land whether that land emerged as a result of accretion (the gradual
buildup of material next to the existing land) or reliction (the gradual
receding of the waters), while such an owner loses title to the land lost to
the water through erosion.”
In the case of East Boston Co. v. Commonwealth (1909), dealing with tidal flats,
the SJC had held: “Upon the doctrines applying to accretion and erosion and to
the elevation and subsidence of land affecting the water line along the shore
of the sea under conditions like these, the line of ownership follows the changing
water line.” We observe that this rule would seem to apply to deeds and other
real estate instruments describing the property as extending to, by or along
“the shore,” “the water,” “the lake,” “the pond,” “the bay,” “the river,” “the
ocean,” ”the sea,” and the like. This rule would not apply, it seems, if the
deeds instead go along a described line or to a point, in modern times a metes
and bounds, or perhaps by operation of the derelict fee statute to the midpoint
of a way or water. In the latter situations, the property in question consists
of specific size, dimensions and lot lines which are fixed and not
flexible.
The Appeals Court held in Kubic I that
the Kubics owned the fee in the right of way down to the waterline, and the
easement holders were given the right to use the right of way to gain access to
the Lake, which, once there, they could use for fishing, swimming, boating, and
other uses that are reserved for the public in Great Ponds. The Appeals Court further held that it was
within the Land Court’s authority to conclude that the use of motor vehicles on
the right of way was reasonably necessary to full enjoyment of the access
rights that the easement provided, but that this does not mean that Audette had
the right to park motor vehicles on the right of way. Rather, Audette only had the right to
temporary parking on the right of way to offload people or items. Also,
Audette could not occupy the right of way by hosting social events and
placement of a picnic table in it, interfering with the right of the Kubics and
others to gain access to the Lake.
Kubic I, as a result, vacated the Land
Court Judgment insofar as it stated that Audette and his household members have
a right to park in the right of way, modified it to prohibit Audette’s actions
in the shoreline area that constitute occupation of that area, and remanded the
case to the Land Court to address the extent to which Audette’s use of the dock
unreasonably interferes with the rights of the Kubics and people other than
Audette who hold easement rights in the right of way. That remand, which came
back up to the Appeals Court, resulted in Kubic II.
Kubic II framed the issue
to be whether the Audette’s use of the right of way constituted an
overburdening of the easement, which it defined as “use for a purpose different
from that intended in the creation of the easement.” The Appeals Court then instructs how
overburdening is shown by attending to changes in the “manner, frequency, or
intensity of the use.”
Kubic II includes
directions as to how the reviewing court is to determine the scope of the
easement. “We construe the scope of an
easement from the parties’ intent, which we ascertain from the relevant
instruments and the objective circumstances to which they refer.” It continued to provide helpful, practical
guidance: a “court may consider subsequent uses, not too remote in time
or disconnected from deed, to discern parties’ intent in creating easement.” It is not uncommon for an easement to be
created merely by a brief, one- or two-sentence statement in a deed. It is helpful that the Appeals Court in this
case recognizes that evidence of the interpretation that the parties themselves
gave to the easement at the time, which may be considered by the Court to
assist in the determination of the intent of the parties.
The Land Court on remand did not reach the
question whether the placement of the dock interfered with the use of the right
of way by the Kubics and others. Rather, it determined that the intended uses
of the right of way were limited to the “transient uses traditionally
associated with public access to tidal waters, navigable streams, and great
ponds,” such as fishing, swimming, boating, and other uses that are reserved
for the public in Great Ponds. It ruled
that Audette could use the right of way for temporary parking and placement of
items (for no more than fifteen minutes) to serve such purposes. The Appeals Court affirmed that limitation in
Kubic II.
Audette had argued that because the right
of way was unquestionably intended to provide easement holders access to the
lake for boating, it follows that it must also provide him access for a dock. The Appeals Court rejected this argument,
stating that the fact that he has a general right of way does not mean that he
may exercise it in any manner he sees fit.
Audette then argued in the Appeals Court
for the first time that MassDEP’s grant of a waterways license under Chapter 91
to construct and maintain the dock necessarily implied that he has a property
right to use the right of way to gain access to it. The Appeals Court ruled that this “argument
of last resort” not only was waived, but also was meritless. “Licenses granted under c. 91 do not
create property rights, nor do they authorize interference with the property
rights of others.” In footnote 5 of Kubic II, the
Appeals Court stated outright that Audette’s standing and chapter 91 claims
were frivolous.
Kubic
I and
Kubic II, taken together, strongly stand for the proposition that the
holder of a right of way cannot interfere with rights of way held by
others. They reinforce the principle that
a right of way is a lesser interest than ownership of the fee interest, and
when the owner of a right of way uses it as if he owns the fee, he is likely to
get their wings clipped. And these cases
protect Great Ponds by recognizing the uses of the easement to the water are
limited by the proper uses of a Great Pond, in which the Commonwealth has an
interest in protecting and managing for the benefit of the public.
A senior associate at McGregor
Legere & Stevens, Mike O’Neill is a member of REBA’s Environmental Law and
Renewable Energy Section. He has more
than thirty-five years of experience in a wide range of litigation in all
courts and in real estate and commercial law, concentrating in environmental,
land use law and litigation. His email address
is moneill@mcgregorlaw.com. Editor’s
Note: The Association’s Land Use and Zoning Section Co-chair Nicholas P.
Shapiro represented the successful plaintiffs in both Kubic I and Kubic II.
