White v. Hartigan

• Decision Date: 08 February 2013
• Docket Number: SJC–11072.
• Citation: 982 N.E.2d 1115,464 Mass. 400
• Parties: Albert WHITE & others v. Anne M. HARTIGAN, Second, trustee, & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 400

982 N.E.2d 1115

Albert WHITE & others ¹

v.Anne M. HARTIGAN, Second, trustee,² & others.³

SJC–11072.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 2012.

Decided Feb. 8, 2013.

Mark C. Fleming (Richard A. Johnston, Felicia A. Ellsworth, Boston, Leon J. Lombardi, & Lawrence P. Heffernan, Boston, with him) for Andrew H. Cohn & others.

Brian M. Hurley, Boston, (Randelle C. Stephenson with him) for Jeffrey Flynn & others.

Peter L. Puciloski, Great Barrington, (David L. Delaney, Plymouth, & James B. McLindon, Great Barrington, with him) for Andrew Kohlberg & another.

Roger D. Matthews, Boston, for Albert White & others was present but did not argue.

Present: IRELAND, C.J., SPINA, BOTSFORD, DUFFLY, & LENK, JJ.

LENK, J.

This case involves a dispute over property rights in a 1.7 mile beach parcel on the south shore of Martha's Vineyard in Edgartown. Historically, two families—the Nortons (plaintiffs) and the Flynns (defendants) ⁴—have owned the property upland from the beach. For much of the past century, the two families enjoyed a friendly relationship and both families used the beach. That relationship deteriorated in the early 1980s, and a dispute arose as to title rights to the beach. In 2004, the Nortons commenced an action in the Land Court to quiet title, ultimately claiming that they owned a fractional interest in the beach or, in the alternative, enjoyed a prescriptive easement to use it and certain land leading to it.

The Nortons' claimed title interest in the beach dates to an 1841 deed, which created the beach parcel. There is no dispute that, due to the erosion of Martha's Vineyard's southern shoreline, the beach as it existed in 1841, and even as late as 1938, is now submerged beneath the Atlantic Ocean. The Flynns claim that the Nortons have no interest in the beach as it is presently located because their title is only to the beach as it existed in 1841. The Nortons, however, contend that the deeds from which they derive their fractional interest in the beach conveyed rights in a moveable beach parcel that shifts upland with the northerly migration of the beach.⁵ A Land Court judge rejected this argument and granted summary judgment for the Flynns on the title claim. At a jury-waived trial on the Nortons' alternative claim that they held a prescriptive easement to use the beach and certain land by which to access it, the judge determined that the Nortons had not met their burden of establishing a prescriptive easement. Judgment entered from which the Nortons timely appealed, and we granted the plaintiffs' application for direct appellate review.⁶

We affirm that portion of the judgment declaring that the Nortons do not have a title interest in the beach as it exists today, since their title interest is to a beach now submerged under the Atlantic Ocean. Because we conclude that the judge's findings of fact are insufficient to permit appellate review of so much of the judgment as concerns the prescriptive easement claim, we vacate that portion of the judgment and remand for further proceedings.

1. Background. a. The Flynns and the Nortons. For much of the twentieth century, the Flynns and the Nortons were the sole owners of the property in the southwestern corner of Edgartown where the beach is located. George D. Flynn, Jr. (Uncle George) and Winthrop B. Norton (Sonny) were the respective heads of these families from roughly 1950 through the early 1980s. Uncle George and Sonny were friends and generally permitted each other use of their respective properties. After Sonny's death in 1981, the Norton family undertook to sell certain parcels of their property; those parcels included purported fractional ownership interests in the beach and prescriptive rights to access the beach over certain portions of the Flynns' property. While expressing doubt that the Nortons in fact held any conveyable ownership interests in the beach, the Flynns took no action to stop the sales. In 1983, Richard Friedman purchased one such parcel.⁷ Thereafter, he frequently rode on horseback over large portions of the Flynn property, apparently maintaining that he had the right to do so notwithstanding requests by members of both the Flynn and Norton families that he desist. A decade of negotiations and this litigation followed.

b. Title history. The first record title to the beach dates to 1693, when Wonnottaqunnamon, Squaw Sachim, and Jacob Washaman conveyed to Captain John Butler “certain lands, beach and meadow lands, on said Martha's Vineyard; bounded from the place commonly opened at Crackatuxett, on the east, the opening to the westward of Pokhoganett on the west; the sea on the south; and the pond, or ponds, on the north.” In 1712, Butler conveyed to Captain Samuel Smith “a certain parcell of Beach,” defined as a part of the property which was conveyed in the 1693 conveyance that runs “from Watsha openingand from thence As Sd. Beach Runs Eastward Till It Comes To A Opening between Against Job's Neck and Poghonet.”

In 1752, Captain Smith conveyed this parcel to his son Samuel “Tarsha” Smith (Tarsha), along with his title interests to the adjacent upland properties Paqua and Pohogonot.⁸ Upon his death in 1796, Tarsha conveyed his interests by will equally to his sons Wilmot Smith (Wilmot) and Samuel Smith (Samuel), as tenants in common. In 1841, Wilmot and Samuel's eight heirs, Samuel having died, undertook to separate their ownership interests. In a series of sequentially recorded conveyances, the Smith property was divided into three distinct parcels (the beach, Paqua, and Pohogonot), and then ownership was reallocated among members of the Smith family. Wilmot conveyed all of his interest in the beach and Paqua to his four nephews; all eight of Samuel's heirs conveyed their interests in Pohogonot to Wilmot. As a result of these conveyances, Wilmot owned all of Pohogonot, but none of the beach or Paqua, while Samuel's heirs owned all of Paqua and the beach, but none of Pohogonot.

The Nortons derive their claimed interest in the beach from Josiah H. Smith, one of Samuel's heirs. In 1888, Allen Norton, great-grandfather of the plaintiff Allen W. Norton, conveyed all of his interest in Paqua to Edmund G. Beetle, but retained his fractional interest in the beach. This fractional interest in the beach has passed down through the Norton family and been divided and conveyed to the plaintiffs.⁹The Flynns derive their fractional interest in the beach from the other seven heirs of Samuel Smith. This interest has passed down through the Flynn family and been divided and conveyed to the defendants.¹⁰

c. Eroding shoreline. The southern shoreline of Martha's Vineyard is, and has been, eroding, resulting in a northerly migration of the beach. Geological surveys indicate that, in 1846, five years after the beach parcel was created by the 1841 conveyances among Samuel's heirs and Wilmot, the beach was abutted to the north by Oyster Pond, Paqua Pond, and Job's Neck Pond, and the uplands of Paqua and Pohogonot.¹¹ From 1846 to 2005, the shoreline eroded at a rate of roughly five feet per year near the western boundary of the beach, and at a rate of approximately seven feet per year near its eastern boundary. As a result of this erosion, the area on which the beach was located as recently as 1938 has been entirely covered by the Atlantic Ocean. The beach is located currently on property that was formerly portions of uplands—Paqua, Pohogonot, Isaac's Neck, and Short Point—and the seaward ends of coastal ponds—Oyster Pond, Paqua Pond, and Job's Neck Pond.¹²

2. Title claim. The Nortons maintain that the judge erred in concluding that they do not hold title to any fraction of the beach because the property to which they hold a title interest is now located beneath the Atlantic Ocean. The Nortons do not dispute any material fact, but do contest the judge's interpretation of the deed from which they derive their interests as creating a beach parcel with a fixed landward boundary. They maintain that their predecessors in title created a beach parcel with a moveable northern boundary that shifts with the landward migration of the beach. The Nortons in essence concede that, if the beach to which they hold title interest was not a moveable parcel, they have no title interest in the beach as presently situated.

The allowance of a motion for summary judgment is reviewed de novo. Bank of N.Y. v. Bailey, 460 Mass. 327, 331, 951 N.E.2d 331 (2011). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). We consider first the common-law principles applicable to littoral properties and then examine the 1841 deed that created the beach parcel.

a. Common-law principles of littoral property. “There is well-settled authority for the proposition that littoral (shoreline) boundaries are not fixed, because natural processes of accretion or erosion change them.” ¹³Bergh v. Hines, 44 Mass.App.Ct. 590, 592, 692 N.E.2d 980 (1998), citing Phillips v. Rhodes, 48 Mass. 322, 7 Metcalf 322, 325 (1843). “[T]he line of ownership [of littoral property] follows the changing water line.” East Boston Co. v. Commonwealth, 203 Mass. 68, 75, 89 N.E. 236 (1909). “Accretions to land bounding on a river or the sea belong to the owners of the adjoining land.” Allen v. Wood, 256 Mass. 343, 349, 152 N.E. 617 (1926), citing Deerfield v. Arms, 34 Mass. 41, 17 Pick. 41, 43 (1835). Conversely, if a body of water moves landward through erosion, littoral property “will decrease in size in order to keep the water as its boundary, even to the point of ceasing to exist.” Glasscock III, Effects of Accretion and Erosion on Coastal Property in the United States, 8 Int'l J. Marine & Coastal L....