White v. Hartigan

Massachusetts Supreme Judicial Court, 464 Mass. 400, February 8, 2013: Upland boundary of beach parcel or easement does not move with landward erosion of shoreline.

The Nortons (plaintiffs and appellants) claimed that their fractional interest in a beach on Martha’s Vineyard conveyed rights in a moveable beach parcel that shifts upland with the northerly migration of the beach.  The Flynns, owners of the upland parcel, claim that the Nortons title is only to the beach as it existed in 1841, not as the beach is located currently.  There was no dispute that due to erosion, “the beach as it existed in 1841, and even as late as 1938, is now submerged beneath the Atlantic Ocean.” The trial judge interpreted the Nortons’ deed as creating a parcel with a fixed landward boundary.

The Supreme Judicial Court reviewed the Massachusetts precedents regarding the shoreline and upland boundaries of shoreline properties. They noted, “There is well-settled authority for the proposition that littoral (shoreline) boundaries are not fixed, because natural processes of accretion or erosion change them,” and “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.” (Internal quotation marks omitted). “A littoral property thus contains a moveable shoreline boundary, but its other boundaries ordinarily are fixed.”

The court then had to evaluate the Nortons’ argument that the upland boundary of their interest in the beach should be understood to shift too because, the Nortons claimed, “the deeds in their chain of title contain either no landward … boundary or reference as a landward boundary only moveable natural monuments.” The question of “whether a littoral property may contain a moveable landward boundary, thus shielding the parcel from the legal effects of erosion” was one of first impression for the court.

Citing New York and Delaware decisions, the court reasoned that recognizing moveable landward boundaries, absent a clear intent manifest in the deed, “would result both in instability and confusion as to ownership of property that erodes beyond landward boundaries and in inequitable loss of property for upland property owners.” Reviewing the controlling deed, the court found, “Because there is no language in the 1841 deed expressly stating that the beach parcel created was moveable, nor is there evidence to indicate the grantor intended to convey a moveable interest, the Nortons hold title to a ‘fixed and stable’ beach parcel” with ascertainable upland boundaries. The court granted the Flynns’ motion for summary judgment on this issue.

In a footnote, the court distinguished certain cases holding that easements appurtenant to beaches moved as the beach shifted by noting that the easements in those cases were granted “explicitly to enable particular uses of the shoreline, such as swimming, bathing, and harvesting seaweed, and thus of necessity shifted with the movement of the shore.”  [Editorial note: This writer wonders if this concept of necessity for a particular use might apply to a shoreline conservation easement.]

The Nortons also asserted a prescriptive easement claim, which the court remanded to the trial court because the trial record didn’t contain sufficient subsidiary findings of fact necessary to allow appellate review of the trial judge’s conclusion denying that claim.

The decision is available at http://law.justia.com/cases/massachusetts/supreme-court/2013/sjc-11072.html or by searching for “White & Hartigan” at http://www.massreports.com/opinionarchive/default.aspx.

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