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
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 the Massachusetts Department of Environmental Protection (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.
Editor’s
Note: Nick Shapiro, Co-chair of the
REBA Land Use and Zoning Section represented the successful plaintiffs in Kubic
I and Kubic II.
Mike
O’Neill is a Senior Associate of McGregor Legere & Stevens, PC. 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
and land use law and litigation as well as real estate and commercial law and
litigation. Mike’s email address ismoneill@mcgregorlaw.com.
