Opinion
10-P-1703
10-26-2011
JAY L. McDERMOT & another v. MARIE BERNICE NAGLE & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties cross-appeal from a Land Court judgment resolving the dispute concerning their respective rights to the use of land known as the 'driftway' for access to Lake Attitash in Amesbury. The parties -- the plaintiffs; defendant Nagle; and defendants Belisle and Morris (the Belisle defendants) -- each own land abutting the driftway. We affirm.
Background. The plaintiffs filed a complaint in the Land Court on March 23, 2005, seeking a declaratory judgment as to their rights in the driftway, and sought to enjoin the defendants from interfering with their use of the driftway. The defendants each filed counterclaims, and Nagle filed a cross claim against the Belisle defendants. On June 28, 2007, the Land Court judge allowed summary judgment for the plaintiffs on their declaratory judgment count, ruling that they have a right to pass and repass over the entire length of the driftway on foot or with vehicles in order to access Lake Attitash. Following a view of the property and the trial conducted the same day on October 14, 2008, the judge ordered a judgment on June 8, 2009, disposing of the parties' remaining claims. The Belisle defendants moved to alter or amend the judgment, and on August 4, 2010, the judge issued an amended judgment.
Discussion. 1. The amended judgment. In addressing the principal issue raised in the motion of the Belisle defendants to alter or amend the judgment -- that the judge had failed properly to determine their fee interest in the driftway - the judge undertook a detailed analysis of the rights of the parties in accordance with G. L. c. 183, § 58, the 'derelict fee statute,' and applied those principles as explicated in Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 679-681 (1965), in particular considering the sequence in which these properties were conveyed from common grantors. He first concluded that because the deed to what now is the Nagle property did not refer to the driftway as a boundary, the deed conveyed only the easement rights described (a thirty-foot right of way on the easterly side over other land of the grantors), and not a fee in the right of way. Next, he determined that the deed to what now is the property of the Belisle defendants referred to the driftway as its western boundary, and concluded that their title therefore includes the entire fee in the driftway adjacent to their property. Finally, the judge determined that the title to the property now owned by the plaintiffs was the last to be conveyed by the original grantors and therefore included the remaining fee interest in the portion of the driftway adjacent to that property. Accordingly, the judge ordered that the property of each party 'includes the right to pass and re-pass over the entire length of Driftway on foot or with vehicles for the purpose of accessing Lake Attitash.'
The judge also determined that where the property of the Belisle defendants abuts the property of the plaintiffs, each landowner owns to the centerline of the driftway.
On appeal, the Belisle defendants argue that the plaintiffs do not have an easement over the driftway, but fail to support the assertion with reasoned appellate argument, and we conclude there is nothing that requires further discussion. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004).
The arguments of the defendants fail to show any factual or legal error in the judge's application of G. L. c. 183, § 58, to the parcels at issue in this case. Nor is there merit in Nagle's argument that the judge erred in allowing summary judgment for the plaintiffs on their claim that they have a right to pass and repass over the entire driftway. Thus, in view of the judge's determination of the plaintiffs' rights in the driftway pursuant to § 58, it is not necessary to consider the arguments of the defendants challenging the judge's determination that if the plaintiffs did not have a granted right they would have established a prescriptive right over the driftway.
We do not consider an assertion of the plaintiffs that the judge erred in his application of the derelict fee statute and that the judge should have found that they own the fee in the western half of the driftway between their property and that of the Belisle defendants, as well as the fee across the full width of the driftway opposite their property and north of any portion in which the Belisle defendants own a fee interest. There is no indication that the plaintiffs raised this issue in the Land Court.
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In his decision following the trial, the judge examined four issues in dispute by the parties. First, he declined to rule on whether the plaintiffs had a right to maintain a dock and boats in Lake Attitash, a 'great pond.' He determined that he was without jurisdiction to consider rights of public use of the lake because they are matters of regulation by municipal and State agencies and the defendants had not exhausted available administrative remedies. Although the Belisle defendants continue to press the point on appeal, they have not addressed the judge's determination as to exhaustion of remedies, and thus their argument is waived.
Next, in a thorough analysis of the responsibilities and rights of the holders of dominant and servient estates, the judge ruled that there was no right to construct, repair, or improve a retaining wall or a stairway where the driftway abuts Lake Attitash. There is no merit to the Belisle defendants' arguments to the contrary. The judge further ordered that personal property and vehicles may temporarily be left on the driftway, but only for the time the owner is making actual use of the driftway, and that personal property may not otherwise be stored there. This determination has not been challenged by the parties in this appeal.
Conclusion. The judge carefully considered and resolved the parties' disputes in his detailed amended judgment. We therefore think it appropriate to repeat his suggestion: 'The Court strongly suggests that the parties resolve their differences and live as neighbors. The Parties should attempt to strictly abide by this court order while at the same time granting one another some measure of flexibility for minimal and temporary infractions.'
Amended judgment of August 4, 2010, affirmed.
By the Court (Cypher, Brown & Hanlon, JJ.),