Having previously secured their right to use a certain path to access the beach in Hickey v. Pathways Assn., Inc.¸ 472 Mass. 735 (2015), certain owners of inland subdivision lots in Dennis (“Inland Owners”) sought a ruling as to the scope of their rights to use the beach itself. Specifically, the 69 Inland Owners claimed they had an easement to use the intertidal flats (the area of the beach between the high and low tide marks). On review, in Loiselle v. Hickey, the Massachusetts Appeals Court recently affirmed the Land Court’s finding that the Inland Owners were unable to overcome the presumption that the owners of shoreland property seaward of the inland lots (“Shoreland Owners”) owned title to the disputed intertidal flats, and that the Inland Owners’ rights were limited to those enjoyed by the general public, namely fishing, fowling and navigation.

As to ownership of intertidal flats generally, the Appeals Court noted that under Massachusetts law, in the absence of language in a deed expressly severing flats, owners of shoreland property are presumed to own the adjacent intertidal flats. Here, not only was there no express severing of the title, but the Appeals Court found the language “bounded by the waters of Cape Cod Bay” in the Shoreland Owners’ deeds and certificates of title to be consistent with the conveyance of property to the low water mark.

Since the Shoreland Owners owned the intertidal flats, the Inland Owners’ claims of an easement to use the beach were presumptively rebutted because the Shoreland Owners’ certificates of title for their registered land made no reference to beach rights beyond those possessed by the general public. But the Inland Owners argued that they fell under the first of the two exceptions to the rule that registered land is unencumbered unless so stated on the certificate of title. See Jackson v. Knott, 418 Mass. 704, 711 (“If an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest.”) Specifically, the Inland Owners argued that the existence of two inland deeds granting beach rights and the Inland Owners’ easement over the path to the beach were sufficient to support the finding of an implied easement that encompassed general beach use rights.

The Appeals Court was unpersuaded. While the Appeals Court acknowledged the existence of two inland deeds that referenced beach rights (owned by persons who were not parties to the case), the Appeals Court found those to be outliers among the “thousands of deeds” within the subject area, and saw nothing in the record to show that the Inland Owners were intended to benefit from those conveyances. The Appeals Court was also unconvinced by the claim that the Inland Owners’ established right to use a path to access the beach was worthless without fuller beach rights, separate and apart from those of the general public. The Appeals Court noted that while the general public has the right to use privately-owned intertidal flats for fishing, fowling, and navigation under the public trust doctrine, pursuant to the Colonial Ordinances of 1641-1647, the Inland Owners’ easement to use the path to the beach gives them the distinct benefit of a lawful means by which to reach the intertidal flats for those limited purposes. Finally, the Appeals Court left open the question of whether the Inland Owners would be able to establish their entitlement to more fully enjoy the beach lying within the boundaries of the pathways over which they have an easement.

Sugarman Rogers’ Takeaway

It is a steep challenge to overcome the presumption that all encumbrances are stated in certificates of title for registered land, and the beach rights afforded by the public trust doctrine are limited to fishing, fowling, and navigation. As a result, even if one accomplishes the feat of legally reaching the oceanfront via an implied easement, the ultimate goal of enjoying a good book and a cold drink in a beach chair on the sand may still be unattainable.