Barnett v. Myerow

1

KEITH R. BARNETT, trustee, ^[1] & others ^[2] v. MICHAEL D. MYEROW, trustee, ^[3] & others. ^[4]

No. 23-P-765

Appeals Court of Massachusetts

September 27, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0

The plaintiffs appeal from a Land Court judgment following the third trial in a case initiated nearly two decades ago seeking to quiet title to a beach in Edgartown. The plaintiffs' claims asserting ownership interests in the beach and certain rights of way leading to the beach have already been resolved against them. By way of the instant appeal, the plaintiffs contend that the Land Court judge erred in determining that the defendants, rather than the Commonwealth, own the beach. The plaintiffs claim that the beach, which sits on what used to be the bed of a great pond, is owned by the Commonwealth and held in trust for the public. We affirm.

Background.

The background facts of this case are set forth in two prior opinions ending in remand orders, White v. Hartigan 464 Mass. 400 (2013), and Barnett v. Myerow, 95 Mass.App.Ct. 730 (2019). The specific facts relevant to this decision are set forth below. Some facts are reserved for discussion.

The disputed beach is a 1.7-mile stretch of land on the southern shoreline of Martha's Vineyard, bordered by the Atlantic Ocean to the south and several ponds to the north. Since at least the mid-nineteenth century, erosion has pushed the beach north and reshaped the ponds' shorelines.

All title interests in the beach originate from two families, the Flynns and the Nortons, who historically owned property upland from the beach. While not all parties are members of either family, the defendants' ownership interests trace back to the Flynns, and the plaintiffs' ownership interests trace back to the Nortons. Both families used the beach until a title dispute arose in the early 1980s.

The plaintiffs brought this action in 2004 claiming ownership of a fractional interest in the beach or a prescriptive easement to access the beach via rights of way over the defendants' properties.^[5] In 2009, a Land Court judge granted summary judgment to the defendants on the plaintiffs' title claim, concluding that due to erosion, the beach to which the plaintiffs held a title interest was now completely submerged in the Atlantic Ocean. The judge also noted, but declined to address, the plaintiffs' attempt to assert that the beach had migrated onto the former location of a great pond and was therefore owned by the Commonwealth as public property:^[6]

"in the matter presently pending before the Court, the parties do not seek a determination of all rights in the Beach, but merely, pursuant to Count I of the plaintiffs' complaint, to declare the rights of the plaintiffs in the Beach. The possibility that another party may have interest in the Beach is entirely possible and not foreclosed by this decision. Therefore, the plaintiffs' argument is inappropriate, and the Court makes no determination on this issue, at this time."

In 2010, the case went to trial on the remaining issue whether the plaintiffs had acquired a prescriptive easement to use the beach or any of the rights of way that lead to the beach. The defendants moved to exclude expert evidence on whether the location to which the beach had migrated was the former location of a great pond, reminding the judge that his summary judgment ruling "said that Commonwealth ownership was not an issue in the case and . . . [the defendants] believe that that continues to be the case." The plaintiffs' counsel opposed the motion but stated that he "agree[d] with [the defendants' counsel] that as to this trial" the judge was "not about to decide who actually is the owner of the portions of the barrier beach which migrated into the ponds." The plaintiffs' counsel urged the judge to allow the great ponds evidence to be presented anyway, stating that even though "there are legal issues that are not expected to be addressed in this case . . ., for the completeness of the record, it seems advisable to have and warranted to have these various facts" about great ponds come into the record, "[s]o if there is a future dispute as to whether the plaintiffs can be thrown off the beach if they lose all issues in this case, you know, there may have to be some proceeding that deals with the [littoral] owners." ^[7] The defendants' counsel responded that "as long as it's clear, clear beyond a shadow of a doubt, that the issue of beach ownership is not involved in this case and that we're not creating some record for some other case in the future that either these plaintiffs or the Commonwealth is contemplating, then I don't really care that you know it's a great pond." The judge subsequently reiterated, without objection, his understanding that the trial "was supposed to be limited to prescription." Following the thirteen-day trial, judgment entered for the defendants on the plaintiffs' prescriptive easement claim.

The Supreme Judicial Court (SJC) granted the plaintiffs' application for direct appellate review, and affirmed so much of the judgment as declared that the plaintiffs did not have a title interest in the beach but vacated the ruling on the prescriptive easement claim due to insufficient factual findings. See White, 464 Mass. at 402, 423. In separate footnotes, the SJC clarified that the plaintiffs had "appealed only as to their title claim and their prescriptive easement claim to the beach," j_d. at 402 n.6, and expressly declined to consider any interest the Commonwealth may have in the parts of the beach that had migrated into great pond beds. I_d. at 406 n. 12 .

After the case was remanded, it was assigned to a different Land Court judge (second judge), who "ultimately determined that neither a new trial nor further evidentiary hearing would be necessary, and that [she] would adjudicate the prescriptive easement claim and make the subsidiary findings based upon the existing trial record." On making those findings, the second judge also concluded that the plaintiffs had not established a prescriptive easement. On appeal, this court affirmed the finding of no easement by prescription in most of the beach but vacated part of the judgment, and ordered further fact finding, solely on whether the plaintiffs had an easement over the eastern end of the beach. Barnett, 95 Mass.App.Ct. at 747.

On remand for a second time, a third Land Court judge (third judge) conducted a two-day trial before ruling that the plaintiffs had failed to establish a prescriptive easement over any part of the eastern portion of the beach. The third judge also addressed the plaintiffs' argument that the beach is owned by the Commonwealth, expressing that "it is doubtful that this issue [was] properly before [him]," and concluding that even if it were, the defendants owned the accreted land subject to the Colonial Ordinance of 1641-1647 (Colonial Ordinance), which grants the public rights to use the land within the high and low water mark of great ponds for fishing, fowling, and navigation, but only if the public can reach the area without trespassing. Finding that the plaintiffs had "no way to access the southern shores of the ponds without trespassing over defendants' land," he concluded that the plaintiffs' rights under the Colonial Ordinance were "useless."

Discussion.

The plaintiffs' sole challenge on appeal is to the third judge's finding that the defendants own the accreted land comprising the beach, arguing that the beach lies on the bed of a former great pond and is therefore owned by the Commonwealth and accessible to the public. The defendants argue that the great ponds issue was not only outside the scope of the second remand order but has also been waived. The defendants further contend that the plaintiffs' argument lacks substantive merit. The defendants' arguments are persuasive.

1. Second remand order.

"It is the duty of the trial court, unless in its discretion it permits new issues to be raised, to follow implicitly the terms of the rescript and not to travel outside what is there laid down, read in the light of the opinion on which it is founded." Lannin v. Buckley, 268 Mass. 106, 111 (1929). Accord City Coal Co. of Springfield, Inc v. Noonan, 434 Mass. 709, 712 (2001) ("our remand instructions became the governing 'law of the case' and should not have been reconsidered by the remand judge"). Here, our remand instructions governing the third trial stated, in relevant part, that

"we find no error or abuse of discretion in the [second] judge's determination that the plaintiffs have no easement by prescription in either the beach area south of Oyster Pond or the Center beach area. However, further fact finding is required to determine whether the plaintiffs have an easement by prescription over any portion of the eastern end of the beach[.] Those proceedings may take the form of a new trial limited to that issue. . . . Accordingly, so much of the judgment after remand as determined that the plaintiffs do not have an easement by prescription over

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