Kubic v. Audette
| Decision Date | 28 August 2020 |
| Docket Number | No. 19-P-371,19-P-371 |
| Citation | 156 N.E.3d 204,98 Mass.App.Ct. 289 |
| Parties | Vince KUBIC & another v. David AUDETTE & others. |
| Court | Appeals Court of Massachusetts |
Nicholas P. Shapiro, Boston, for the plaintiffs.
Henry J. Lane, Whitinsville, for David Audette.
Present: Vuono, Milkey, & Desmond, JJ.
Plaintiffs Vince Kubic and Paul Kubik (collectively, the Kubics) are cousins who own adjacent lakefront homes on Fairfield Street in Webster. The two lots are separated by a fifty-foot wide right of way (ROW) that extends from Fairfield Street to Webster Lake, a great pond (hereafter, Webster Lake or the lake).3 The ROW, which was created when the area was subdivided in 1948, provides deeded access to the lake for owners of certain inland lots. Among those easement holders is defendant David Audette, who purchased his property in 2006. Shortly thereafter, Audette also purchased a release deed for the ROW from a purported heir to the original developers of the subdivision, and thereafter claimed that he owned the ROW in fee. As we discuss in more detail below, Audette began using the ROW more intensively than other easement holders historically had done. Conflict ensued.
The Kubics brought this action in the Land Court to quiet title in the ROW and to establish the parties' respective rights to use it. Following trial, the judge ruled in the Kubics' favor on some of their claims and in Audette's favor on others. However, the judge declined to resolve some of the issues at the heart of the parties' dispute, including the question of who owned the formerly submerged land that lies at the end of the ROW. Both sides appealed. Our consideration of the cross appeals requires us to revisit two areas of property law: ownership of littoral property on a great pond, and the derelict fee statute, G. L. c. 183, § 58. For the reasons that follow, we conclude that the Kubics own the ROW in fee down to the water and that Audette has exceeded his easement rights in some respects beyond those found by the judge. We therefore affirm in part and reverse in part, and remand for further proceedings.
Background. The Kubics acknowledge both the existence of the ROW and Audette's right to use it. Most of the underlying facts also were uncontested, with many established by stipulation, or by agreed-upon exhibits such as deeds, plans, and photographs. Even the testimony of the six witnesses was largely consistent. We summarize the judge's findings, none of which was clearly erroneous, and supplement these findings where necessary with uncontested evidence from the record.
1. Title history. All of the lots at issue originally were part of a large parcel acquired by Arthur and Doriza Robinson in 1946. Over the next two decades, the Robinsons developed the parcel and divided it into thirty lots pursuant to a subdivision plan recorded in 1948 (1948 plan). The road that became Fairfield Street is shown on the 1948 plan, as is the unnamed ROW. The 1948 plan depicts the ROW as running between lot 15 to its north and lot 14 to its south and extending one hundred feet from Fairfield Street to the waterline of the eastern shore of the lake.
Vince4 owns the property that was depicted as lot 15 on the 1948 plan. The source deed for lot 15, which was from 1948, describes the property as being bounded by the ROW. Vince's father purchased lot 15 in 1953, and in the next two years, he acquired adjacent land to the east and west of lot 15. Together, the property is now known as 4 Fairfield Street. Vince was born in 1958, and he has lived at 4 Fairfield Street all his life.
Paul's father (Vince's uncle) purchased the northern portion of lot 14 in 1957. The source deed does not describe the land as bordering the ROW, but instead depicts it by metes and bounds. However, it is undisputed that the northern boundary of the land Paul's father purchased corresponds to the southern boundary of the ROW. The source deed includes rights to use the existing ways shown on the 1948 plan, except that it states that "no Right of Way is conveyed herein over any land located Northerly of [the southerly boundary of the ROW]." The land acquired by Paul's father is now known as 6 Fairfield Street. Paul was born in 1960 and, like his cousin Vince, he has lived at his Fairfield Street home all his life. A sketch showing the lots owned by Vince and Paul and the ROW is attached to this opinion as an Appendix.
In 2006, Audette purchased the property at 17 Fairfield Street, an inland parcel that lies approximately 200 yards from the ROW. As the Kubics concede, Audette holds an express easement allowing him to use the ROW to gain access to the lake. In addition, in 2007, Audette purchased a release deed for the ROW from Francesca Pomerantz. Audette claims that Pomerantz is an heir to the original developers (the Robinsons).5
2. The topography of the ROW. The ROW has three distinct portions. Beginning at Fairfield Street, the initial forty or so feet of the ROW are relatively flat. This is the area that lies between Vince's and Paul's homes. The middle section of the ROW drops relatively steeply until it flattens out again near the water.
The current waterline of the eastern shore of the lake is approximately thirty feet westward of the line shown on the 1948 plan. For simplicity, we refer to the area lying between the two waterlines as the shoreline area. As the judge found, "The present location of the shoreline has remained substantially unchanged during the lifetimes of the trial witnesses -- from the early 1960s through the present."6 The record does not disclose what caused the water to recede sometime between 1948 and the early 1960s. The Kubics urged the judge to consider the changing waterline to be the product of "reliction," a natural process through which land gradually emerges as a result of receding waters.7 Audette suggested an alternative explanation. He testified that there was a dam on the lake that could be used to control water levels in the lake. However, he did not provide any specific historic evidence about how the dam in fact was used over time to control those levels.8
3. Historic use of the ROW. The Kubics long have used the flat upper portion of the ROW near their homes as part of their respective driveways and parking areas. For example, part of Vince's paved driveway runs through this portion of the ROW. The path through the ROW's steep middle section historically was used by people to walk down to the lake and back.9 For example, customers of a nearby sporting goods store once used the ROW to carry rental canoes down to the shore. Various individuals owned small docks at the end of the ROW, but those docks eventually fell into disuse.10
4. Audette's use of the area. After he purchased the release deed, Audette asserted that he held title to the ROW and the shoreline area. Representing to the Department of Environmental Protection that he "own[ed]" the land in question, Audette obtained a waterways license pursuant to G. L. c. 91, allowing the construction of a dock at the end of the ROW. In 2013, Audette installed that dock, a trident-shaped structure that is thirty-five feet wide and protrudes fifty feet into the lake. The prongs of the trident form two boat slips. For seven months each year (approximately April 1 to November 1), Audette uses one of the slips to moor his own boat, which he described as "a big boat" that "holds [fifteen] people comfortably." As the judge found, Audette uses the ROW "regularly," including "as much as every day throughout the summer season."
Audette acknowledged at trial that he has extended an "open invitation" to his family members to use the ROW, dock, and shoreline area. According to him, his family is "huge," with his "immediate family" including "at least" forty people. His girlfriend and other friends also use the area at his invitation. In addition, Audette allows an out-of-town friend to moor his boat at the dock's second slip throughout the summer season.
Audette and his various guests use the dock and adjacent shoreline area for group gatherings such as cookouts. He sometimes has placed a picnic table in that area to accommodate such parties. Audette also stores the float portions of the dock in the shoreline area during the winter. At trial, Audette referred to the dock and shoreline area as "my property."
With regard to the ROW itself, Audette has regraded the middle portion and installed concrete "pavers" there to facilitate motor vehicle use. He and his guests frequently use the ROW for motor vehicle access, for example, to ferry people, coolers, and water skis down to the dock. They also use the ROW for parking. Although they sometimes park down near the water, they typically park alongside Paul's cars in the flat, upper portion of the ROW area next to Paul's house.
There was evidence of multiple acrimonious exchanges between Audette and the Kubics related to Audette's use of the ROW. For example, Vince's wife described an incident that allegedly occurred when her mother, Vince, and she were leaving their house to go out to dinner. According to her, Audette, while driving on the ROW, "showed us his middle finger and said, ‘Suck it, buddy,’ and kept driving." Although Audette did not deny that such exchanges had occurred, the judge made no specific findings about them, and we note the testimony solely as demonstrating the level of discord between the parties.11
5. The earlier action. In 2007, Vince brought an action in the Land Court seeking to challenge Audette's plans for using the ROW. At the time, Audette had just begun to expand such use. He cleared vegetation from and regraded the ROW path, and he used a "hydro rake" to remove aquatic vegetation from the lake in the vicinity of the ROW. These changes were done in preparation for the construction of a dock. However, as the judge found, the dock's size and specific location had not yet been determined (indeed, as noted, the dock...
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