Opinion
20-P-385
06-29-2021
CYNTHIA A. FITZGERALD & another [1] v. COURTLAND P. HARLOW, THIRD, & others. [2]
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 23.0
The defendants, Courtland P. Harlow, III, Daniel P. Harlow, and Dorothy P. Harlow (collectively, Harlows) appeal from a Land Court judge's decision declaring that Cynthia A. Fitzgerald and David D. Fitzgerald (collectively, Fitzgeralds) have, appurtenant to their property at 12 Sunset Road in Kingston, an express easement over the Harlows' beach. The Harlows argue that the trial judge erred in (1) concluding that the Fitzgeralds have an express easement, (2) concluding that the easement had not been extinguished, and (3) excluding certain evidence. We affirm.
Background.
We recite the facts as found by the trial judge, reserving certain details for later discussion. The entire area that forms the subject of this litigation was once owned by David and Barbara McClosky, who, in 1951, created a plan subdividing the area into multiple lots (1951 plan). Kingston Bay is shown on the 1951 plan as bordering the easternmost boundary of the property. The 1951 plan does not label any particular area as "beach."
The Fitzgeralds currently own lot C on the 1951 plan, now known as 12 Sunset Road. Courtland and Daniel Harlow currently own the neighboring property, a portion of lot A on the 1951 plan, now known as 24 Sunset Road. The Harlow property abuts Kingston Bay, but the Fitzgerald property does not.
Dorothy Harlow, in her representative capacity as the trustee of the Daniel-Courtland III Trust, owned 24 Sunset Road from 2011 until 2013. The Harlow family first purchased the property at 24 Sunset Road in 1969.
The McCloskys first conveyed the Fitzgerald property by a 1951 deed that provided that the property was conveyed "together with a right in common with others entitled thereto over said Sunset Road to Kingston Bay and to use the beach at said Kingston Bay." The Fitzgeralds' deed states that the conveyance is "subject to the restrictions, and with the privileges and rights, set forth in" the 1951 deed from the McCloskys to the original purchaser of 12 Sunset Road. At the time the McCloskys first conveyed the property at 12 Sunset Road, they still owned lot A, where 24 Sunset Road is located. They also owned Sunset Road to Kingston Bay as a separate parcel.
There presently are two relevant "beaches" at Kingston Bay: Harlow Beach that abuts the Harlow property at 24 Sunset Road, and a small public beach located at the end of Sunset Road, adjacent to the Harlow property, and referred to as "Triangle Beach." Triangle Beach became public pursuant to a 1963 taking by the town of Kingston. The record does not reflect that, in 1951, when the original deed to the Fitzgerald property was executed, there was any demarcation separating what is now Triangle Beach from what is now referred to as Harlow Beach. Indeed, as noted above, the 1951 plan does not label anything as "beach."
David Fitzgerald was childhood friends with the former owner of 12 Sunset Road, Richard Gallagher. Gallagher purchased that property in 1968, and the two men frequently visited Harlow Beach together from 1969 until 1994. The Fitzgeralds inherited the property from Gallagher after his death in 1999 and, since then, the Fitzgeralds have continued to use Harlow Beach. Beginning in 2000, the Harlows attempted to exclude the Fitzgeralds from Harlow Beach by erecting no trespassing signs, sending no trespassing notices, placing chairs to block access to the beach, and calling the police to report perceived trespasses.
In 2016, the Fitzgeralds filed suit in the Land Court seeking, inter alia, a declaratory judgment that they had an express easement to use Harlow Beach. After a trial, the judge found that, in fact, the Fitzgeralds have an express deeded easement to use Harlow Beach. The judge dismissed with prejudice the counterclaim filed by the Harlows asserting the doctrine of promissory estoppel. This appeal followed.
Discussion.
1. Standard of review.
On appeal from a trial court judgment, we review a judge's findings of fact for clear error, Brandao v. DoCanto, 80 Mass.App.Ct. 151, 156 (2011), but review a judge's conclusions of law de novo. Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014).
2. Express easement.
"An express easement can be created only by a writing signed by the party to be bound, and the writing 'must identify with reasonable certainty the easement created and the dominant and servient tenements.'" Chamberlain v. Badaoui, 95 Mass.App.Ct. 670, 674 (2019), quoting Parkinson v. Assessors of Medfield, 395 Mass. 643, 645 (1985). "Where an easement is created by deed, its meaning, 'derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances.'" Chamberlain, supra, quoting Patterson v. Paul, 448 Mass. 658, 665 (2007). "When the language of the applicable instruments is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.'" Hamouda v. Harris, 66 Mass.App.Ct. 22, 25 (2006), quoting Cook v. Babcock, 7 Cush. 526, 528 (1851).
The party claiming an easement bears the burden of proving its existence. Hamouda, 66 Mass.App.Ct. at 24 n.1. See Boudreau v. Coleman, 29 Mass.App.Ct. 621, 629 (1990). However, a deed will be construed most strongly against the grantor. Estes v. DeMello, 61 Mass.App.Ct. 638, 642 (2004). "A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed" (quotation and citation omitted). Labounty v. Vickers, 352 Mass. 337, 344 (1967).
In the present case, we see no error in the judge's conclusion that Harlow Beach is part of the "beach at said Kingston Bay" as described in the Fitzgeralds' deed; nor do we see error in her conclusion that the Fitzgeralds have an express easement over Harlow Beach. Nothing in either the original deed or on the 1951 plan suggests that the "beach at said Kingston Bay" was limited, as the Harlows now argue, to Triangle Beach at the end of Sunset Road. The evidence at trial supports the judge's conclusion that the "beach" "is that area extending from the base of the sea wall easterly to the low water mark" of Kingston Bay. At the time that the McCloskys first conveyed the Fitzgerald property, they still owned all of lot A including the 200-foot wide beach adjacent to Kingston Bay, as well as Sunset Road and what is now Triangle Beach. Other than the subdivision lot lines, nothing on the 1951 plan purported to differentiate between what is now referred to as Triangle Beach and the beach on the Harlow property. In addition, the judge viewed 24 Sunset Road, Triangle Beach, and Harlow Beach in May 2019.
Nor did the judge err in adopting the customary definition of the word "beach" in reaching her conclusion. As she correctly noted, the term "beach" ordinarily refers to the area between the high water mark and the low water mark. O'Donoghue v. Commonwealth, 93 Mass.App.Ct. 156, 163 (2018). However, the term also has a flexible meaning that can include the strip of land above the high water mark traditionally used for sunbathing and accessing the water. See Hewitt v. Perry, 309 Mass. 100, 104 (1941).
While the lot lines identified the lots in the subdivision that abutted Kingston Bay, they did not elucidate over which lots then owned by the McCloskys they intended to grant an easement to use the beach at Kingston Bay.
There was testimony that, even today, strangers to the area might not know which portion of the beach was public and which belonged to the Harlows -- at least until the Harlows placed "no trespassing" signs on their beach in 2006.
That Triangle Beach was taken by eminent domain some twelve years after easement rights over the "beach at said Kingston Bay" were granted to the Fitzgeralds' predecessor has no bearing on what the McCloskys intended in their 1951 deed. Contrary to the Harlows' bald assertions, the taking itself in 1963 is not evidence that the McCloskys intended in 1951 to confer an easement only over that portion of the "beach at said Kingston Bay" that is now Triangle Beach. Further, apparently the judge was not persuaded that, in 1951, only Triangle Beach was referred to colloquially as "the beach at said Kingston Bay," separate and apart from the rest of the beach adjacent to Kingston Bay and then owned by the McCloskys.
The McCloskys used the general phrase "the beach at said Kingston Bay" and the plain meaning of that phrase includes all of the beach abutting Kingston Bay shown on the 1951 plan as owned by the McCloskys. As already noted, "[i]t is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him." Bernard v. Nantucket Boys' Club, Inc., 391 Mass. 823, 827 (1984), quoting Thayer v. Payne, 2 Cush. 327, 331 (1848). While the deed itself is not ambiguous because nothing in the deed or the 1951 plan suggests that there existed in 1951 more than one collective "beach at said Kingston Bay," the foregoing rule of construction also applies when the extent of an easement is uncertain because the description in the deed is brief or unclear. See Atkins v. Bordman, 2 Met. 457, 463-464 (1841). Here, the judge correctly construed the language used in the deed most strongly against the grantor and reasonably concluded that the express easement extends to Harlow Beach.
Parkinson v. Assessors of Medfield, 395 Mass. 643 (1985), S.C., 398 Mass. 112 (1986), relied upon by the Harlows, does not require us to conclude that the easement is "nugatory." There, a conservation easement failed to specify which buildings and which portion of a large parcel of property were subject to the easement. Id. at 646. Accordingly, the court concluded that the easement was invalid because the servient estate could not be identified. Id. at 645. Here, however, Kingston Bay and its adjacent beach are clearly shown on the 1951 plan.
As the judge noted, the attendant circumstances support this conclusion. On the same day that the McCloskys conveyed the property that is now 12 Sunset Road, they also conveyed to the Post family a larger lot to the west of 12 Sunset Road (lot D). The Post deed provides that no more than five dwelling houses may be erected on lot D and that no business should be carried on at that property except for summer rentals. The Post deed also contains the same grant "to use the beach at said Kingston Bay." The fact that the McCloskys foresaw up to six households, including summer rentals, using the beach is consistent with a finding that they intended to grant easements over all of the beach, and not to limit the easements to Triangle Beach, which is only 350 square feet.
Also, if the McCloskys intended to limit the scope of the easement to Triangle Beach, they easily could have done so in the deed. See Estes, 61 Mass.App.Ct. at 642. This is particularly true where the 1951 plan showed in close proximity to the beach a house on lot A that was owned by the McCloskys when they first sold the Fitzgerald property. If it was the McCloskys' intention to reserve to the owners of lot A a private beach, they could have done so. In the absence of such limiting language, use of the phrase, the "beach at said Kingston Bay," is reasonably interpreted to mean all of the beach at Kingston Bay owned by the McCloskys at the time of the 1951 deed.
3. Extinguishment.
a. Adverse possession.
The Harlows also contend that any easement over the beach was extinguished by their exercise of exclusive control of the beach for twenty years. In fact, an easement may be extinguished by adverse possession. Brennan v. DeCosta, 24 Mass.App.Ct. 968, 969 (1987), citing Emery v. Crowley, 371 Mass. 489, 495 (1976). However, to effectuate such an extinguishment, the Harlows would have to prove that they used the beach in a manner "irreconcilable with [the Fitzgeralds'] use . . ., openly, notoriously, adversely, and without interruption for more than twenty years." Zora Enterprises, Inc. v. Burnett, 61 Mass.App.Ct. 341, 347 (2004), quoting Brennan, supra. The Harlows' adverse acts must have rendered the Fitzgeralds' use of the easement "practically impossible for the [twenty-year] period required for prescription." Post v. McHugh, 76 Mass.App.Ct. 200, 205 (2010), quoting New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 159 (1931).
The trial judge here made numerous findings of fact demonstrating that the Fitzgeralds and their predecessors used Harlow Beach continuously. The Harlows first obtained an interest in the property at 24 Sunset Road in April 1969. From 1969 to 1978, David Fitzgerald and Richard Gallagher went to Harlow Beach every weekend when the weather was good. From 1978 to 1994, the Fitzgeralds went to the beach during the summer months to swim and sit in beach chairs. David and Cynthia Fitzgerald had their wedding on the beach in 1982. From 1994 to 1999, David Fitzgerald visited Gallagher on several occasions over the summers; during that time, the two men would enjoy drinks on the beach and they also set off fireworks on the 4th of July. After Gallagher died in 1999 and the Fitzgeralds acquired the property, David Fitzgerald continued to use the beach to walk his dog and set off fireworks. He even continued to use the beach after the Harlows served him with a no trespass letter in 2011. As a result, the Harlows failed to prove that their adverse acts made the Fitzgeralds' use of the easement "practically impossible" and the judge correctly concluded that their claim of extinguishment failed. See Post, 76 Mass.App.Ct. at 205.
b. Agreement.
The Harlows further contend that any easement rights possessed by the Fitzgeralds were extinguished by an agreement made between David Fitzgerald and Dorothy Harlow at the Plymouth District Court in 2011. At that time, Dorothy Harlow had applied for a criminal complaint, alleging that David Fitzgerald was trespassing on the property at 24 Sunset Road. She agreed to withdraw her complaint application upon David Fitzgerald's promise to stay off the Harlow property.
An express easement can be extinguished by abandonment. Emery, 371 Mass. at 495. "Abandonment of an easement requires a showing of intent to abandon the easement by acts inconsistent with the continued existence of the easement." Cater v. Bednarek, 462 Mass. 523, 528 n.15 (2012). The necessary showing has also been described as proof of "acts by the owner of the dominant estate conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its further existence." First Nat'l Bank of Boston v. Konner, 373 Mass. 463, 466-467 (1977), quoting Dubinsky v. Cama, 261 Mass. 47, 57 (1927). The owner of a servient estate carries a heavy burden in attempting to show that the owner of the dominant estate intended to abandon an easement. Proulx v. D'Urso, 60 Mass.App.Ct. 701, 704 n.2 (2004).
Here, David Fitzgerald's actions did not show an intent to abandon the easement. First, when the Clerk-Magistrate at the Plymouth District Court in 2011 asked David Fitzgerald to confirm that he did not possess an easement over the Harlow property, he declined to do so, stating that he did not know whether he had an easement. Second, he continued to use Harlow Beach after the 2011 agreement. Dorothy Harlow also testified that she saw David Fitzgerald on the beach after they made the agreement. We see no error in the judge's conclusion that such continued use of the beach is inconsistent with an intent to abandon the easement.
The Harlows also argue that any easement was extinguished by the 2011 in-court agreement through the equitable doctrine of promissory estoppel. This same claim was raised in the Harlows' posttrial brief but not addressed in the trial judge's memorandum of decision. Certainly, to the extent that Dorothy Harlow believed that David Fitzgerald had agreed to stay off the beach, as opposed to other Harlow property, and had reneged on that promise, she could have filed a new criminal complaint --and it appears that she did so. Moreover, while David Fitzgerald may have agreed to stay off the beach at a particular moment in order to avoid criminal prosecution on uncertain facts, that agreement did not bar him from thereafter seeking a declaration in the Land Court that he had the benefit of an easement over Harlow Beach.
The Harlows also fail to show why any agreement made by David Fitzgerald would extinguish Cynthia Fitzgerald's rights to the easement. The argument that her rights were extinguished by the agreement because the Fitzgeralds hold the property as tenants by the entirety is not persuasive.
c. Res judicata.
The Harlows next contend that it was error for the trial judge to exclude evidence of David Fitzgerald's 2013 conviction for trespassing on the Harlows' property; they argue that the doctrine of res judicata prevents him from litigating again whether he has any rights to use Harlow Beach. This argument also fails.
"The term 'res judicata' includes both claim preclusion and issue preclusion." Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005). "Claim preclusion only applies where both actions are based on the same claim." Kelso v. Kelso, 86 Mass.App.Ct. 226, 230 (2014). Since the claims in these two cases, a criminal action for trespass and a declaratory judgment action, are not the same, issue preclusion is the only potentially applicable doctrine. "[I]ssue preclusion 'prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.'" Kobrin, supra. "Before precluding a party from relitigating an issue, 'a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication." Duross v. Scudder Bay Capital, LLC, 96 Mass.App.Ct. 833, 836-837 (2020), quoting Kobrin, supra. "Issue preclusion can be used only to prevent relitigation of issues actually litigated in the prior action." Kobrin, supra at 844.
The record appendix does not include a transcript from the hearing that led to David Fitzgerald's conviction, so we cannot tell whether the issue of his right to use Harlow Beach was actually litigated. Further, the conviction was purportedly issued in the Plymouth District Court, which does not have jurisdiction to adjudicate title to land or easement rights. See G. L. c. 185, § 1 (a). Finally, Cynthia Fitzgerald was neither a party to the criminal case, nor in privity with her husband because he did not represent her interests in that case. See DeGiacomo v. Quincy, 476 Mass. 38, 43-44 (2016) ("whether a nonparty is in privity with a party depends on the nature of the nonparty's interest, whether that interest was adequately represented by a party to the prior litigation, and whether binding the nonparty to the judgment is consistent with due process and common-law principles of fairness"). For that reason, it was not error for the judge to exclude evidence of David Fitzgerald's trespass conviction.
4. Expert testimony.
The admission of expert testimony is within a trial judge's broad discretion and will only be reversed where the admission constitutes an abuse of discretion or error of law. Commonwealth v. Coates, 89 Mass.App.Ct. 728, 733 (2016). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, . . . such that the decision falls outside the range of reasonable alternatives." Id., quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Legal conclusions are generally not a proper subject for expert testimony. See Silva v. Norfolk & Dedham Mut. Fire Ins. Co., 91 Mass.App.Ct. 413, 420 (2017).
Here, the trial judge did not allow the Harlows' expert witness to testify that, in his opinion, the Fitzgeralds did not possess an easement. The theory of the case was that an express easement arose from the language in the deed. The interpretation of language in a deed is purely a question of law reserved for the trial judge. See World Species List -- Natural Features Registry Inst. v. Reading, 75 Mass.App.Ct. 302, 305 (2009). "Lay and expert witnesses are precluded from giving an opinion, for the most part, that involves a conclusion of law or in regard to a mixed question of fact and law." Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 137 (2002). We see no error.
To the extent we have not specifically addressed any of the Harlows' arguments, we have considered them and found them to be without merit. See Department of Revenue v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004).
Judgment affirmed.
The panelists are listed in order of seniority.