KEITH R. BARNETT, Trustee, & Others v. MICHAEL D. MYEROW, Trustee, & Others.

NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-765

KEITH R. BARNETT, trustee,1 & others2

vs.

MICHAEL D. MYEROW, trustee,3 & others.4

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

1 Of the Oyster Pond EP Trust.

2Richard L. Friedman; Allen W. Norton, Judith Norton, and
Melissa Norton Vincent, trustees of the Quiet Oaks Realty Trust;
Albert White, Toni White Hanover, and Shauna White Smith,
individually and as trustees of the Quampacky Trust; Mark B.
Norton; Debra White Scott; and Lisa White.

3Of the Botar Realty Trust, Rabor Realty Trust, and Tarob
Realty Trust.

4Short Point Holdings, LLC; Patricia C. Post, Jeffrey B.
Flynn, and Richard B. Keeler, trustees of the Pohogonot Trust,
interveners; Pamela Kohlberg, trustee of Job's Neck Trust,
intervener; and Andrew Kohlberg, trustee of High Road Trust,
intervener.
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

2
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."

5 None of the plaintiffs' properties abut the beach but some
of the defendants' properties do.

6 Hereinafter, we refer to this claim as "the great ponds
issue." A great pond is a pond that exceeds ten acres in its
natural state. G. L. c. 91, § 35. With some exceptions, the
waters of a great pond and the land comprising its bed belong to
the Commonwealth and are held in trust for public uses. See
Opinion of the Justices to the Senate, 474 Mass. 1201, 1203
(2016); Kubic v. Audette, 98 Mass. App. Ct. 289, 297-298 (2020).

3
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

7 The defendants' counsel presciently told the judge that he
suspected the plaintiffs were seeking to admit the great ponds

4
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," id. at 402 n.6, and expressly declined to

evidence for "a far more insidious reason" than completeness of
the record, suggesting that the real reason the plaintiffs
sought to admit the great ponds evidence was to create a factual
record that would provide an additional avenue to oppose any
efforts by the defendants to exclude the plaintiffs from the
beach in the event the defendants prevailed on the prescriptive
easement claim.

5
consider any interest the Commonwealth may have in the parts of

the beach that had migrated into great pond beds. Id. 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

6
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

7
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 any portion of the eastern end of the
beach . . . is vacated, and the matter is remanded for
further proceedings consistent with this opinion. In all
other respects, the judgment after remand is affirmed."
(Emphasis added.)

Barnett, 95 Mass. App. Ct. at 747. Affirming all but the

portion of the judgment concerning a prescriptive easement over

the eastern end of the beach, the order neither instructed nor

permitted consideration of the great ponds issue.

Even so, before the third trial, the plaintiffs filed a

motion in limine to exclude testimony contravening the law of

the case concerning the definition of the "beach." Therein, a

footnote asserted that because this court had acknowledged the

parties' stipulation that certain ponds abutting the beach were

Commonwealth owned and had reserved their rights as to the

status of others, the "[p]laintiffs view . . . the implication

of the Great Ponds being Commonwealth property as part of the

question remanded to this Court." This view was incorrect.

8
While this court's opinion did, in fact, acknowledge that

the parties had reserved their rights with respect to whether

certain ponds were great ponds, as to the issue whether those

ponds were Commonwealth owned, we noted that the first Land

Court judge had "explicitly stated that the legal implications

of the beach migrating into the beds of great ponds was not an

issue before him." Barnett, 95 Mass. App. Ct. at 733 n.7. This

court did not state that the first judge's conclusion was in

error, nor was that implied where the remand order stated that

the judgment below was affirmed "[i]n all . . . respects" aside

from the issue whether the plaintiffs had an easement over the

eastern end of the beach. Id. at 747.

In the same footnote acknowledging the parties' positions

as to the status of the abutting ponds, this court also made

note of the fact it had "assume[d] without deciding, as the

parties seem to do, that for the purposes of this opinion, the

portions of the beach that have migrated into the abutting great

ponds are owned by the defendants." Barnett, 95 Mass. App. Ct.

at 733 n.7. The court's view that the plaintiffs themselves had

presumed the defendants owned the portions of the beach that had

migrated into the beds of great ponds likewise precludes the

plaintiffs' contention that the court intended the parties to

litigate the implications of the Commonwealth's ownership of the

beach on remand. If the court had intended this issue to be

9
litigated on remand, we would have directly addressed and

corrected the parties' assumptions about ownership in the

opinion.

2. Waiver. We next turn to the defendants' argument that

the plaintiffs waived their right to assert the great ponds

issue. "Waiver may occur by an express and affirmative act, or

may be inferred by a party's conduct, where the conduct is

'consistent with and indicative of an intent to relinquish

voluntarily a particular right [such] that no other reasonable

explanation of [the] conduct is possible.'" KACT, Inc. v.

Rubin, 62 Mass. App. Ct. 689, 695 (2004), quoting Attorney Gen.

v. Industrial Nat'l Bank, 380 Mass. 533, 536 n.4 (1980).

"Underlying the purpose of the waiver doctrine is the need to

give other parties -- and the courts -- fair notice that a claim

or defense is being raised." Chelsea Hous. Auth. v. McLaughlin,

482 Mass. 579, 584 (2019). In this case, the plaintiffs

repeatedly failed to provide fair notice that they intended to

raise the great ponds issue over the course of nearly two

decades of litigation.

The operative, second amended complaint does not assert any

claims related to the great ponds issue, and despite the 2009

summary judgment decision stating that the issue was not

properly before the court, the plaintiffs did not attempt to

bring the issue within the scope of the proceedings by seeking

10
to amend their complaint. See Bank v. Thermo Elemental Inc.,

451 Mass. 638, 667 (2008) ("[t]he fundamental way that . . .

notice is initiated is through pleadings"). Later, during the

first trial, the plaintiffs' counsel went so far as to concede

that the trial did not concern ownership of the beach and did

not object when the judge stated that the trial was limited to

prescriptive rights. This concession alone unequivocally waived

the plaintiffs' right to litigate the great ponds issue from

that point forward.

The SJC later remanded the case solely on the prescriptive

easement issue, and the second judge's decision, which was based

exclusively on the record of the first trial, did not even

mention the great ponds issue. The plaintiffs did not challenge

this omission or otherwise mention it in the briefs supporting

their second appeal, and the joint pretrial memorandum the

parties submitted before the third trial did not identify the

great ponds issue within the statement of legal issues. The

plaintiffs only briefed the issue in detail in their posttrial

submissions, after the defendants' opportunity to bring a motion

in limine to exclude evidence inconsistent with the remand order

11
or present opposing evidence had closed.8,9 For all of the

foregoing reasons, we conclude that the great ponds issue has

been waived.

3. Merits. We have concluded that the great ponds issue

was outside the scope of the second remand order and the

plaintiffs waived this issue. Although not necessary to our

decision, as to the plaintiffs' challenge to the third judge's

8 Although the plaintiffs submitted a motion in limine
before the third trial asserting their belief that the great
ponds issue was part of the remand order, as set forth above,
that belief was incorrect. Moreover, we agree with the
defendants that a footnote in a motion in limine, standing
alone, is insufficient to put the court and the parties on
notice of a claim.

9 At the end of the third trial, the plaintiffs' counsel
represented that the plaintiffs "had put it in [their] pretrial
memorandum that [they] would be . . . trying the great pond
aspect of this" and had "certainly on appeal, briefed to the
Appeals Court the great pond issue." However, the plaintiffs'
only reference to great ponds in the pretrial memorandum
appeared in their list of disputed facts, which asserted that
the ponds abutting the beach are great ponds, that the
Commonwealth holds great ponds in the public trust, and that
portions of the disputed beach are located on what was formerly
the bed of a great pond. The pretrial memorandum thus stopped
short of asserting the plaintiffs' intent to present evidence
that the disputed beach is owned by the Commonwealth in trust
for the public because it sits on what was formerly the bed of a
great pond.

The plaintiffs' only references to great ponds in their
2017 appellate briefs appeared in the factual background and
simply asserted that the parties had stipulated that two of the
abutting ponds "are on the list of 'Great Ponds' maintained by
the Commonwealth" and that the parts of the beach abutted by
great ponds are known as "barrier beaches."

12
conclusion that the beach is owned by the defendants, we note as

follows.

The third judge, relying on Kubic v. Audette, 98 Mass. App.

Ct. 289 (2020), emphasized that property abutting the ocean

typically follows the changing waterline and that a littoral

owner is entitled to newly emergent land, whether from accretion

or reliction, but loses title to land lost through erosion.

Based on these principles, the third judge held that the

defendants owned the newly accreted land that comprises the

disputed beach, subject to the public's rights under the

Colonial Ordinance to use the land between the high and low

water marks for fishing, fowling, and navigation, and provided

that the public can access the area without trespassing.

Because the plaintiffs have no way to reach the barrier beaches

below the abutting ponds without trespassing on the defendants'

land, the third judge concluded that the plaintiffs have no

rights over any portion of the eastern section of the beach.

The cases the plaintiffs rely on to challenge the third

judge's conclusion are factually distinct and do not address the

ownership of permanent or naturally occurring accretions to

lands that lie on a former great pond bed or a permanent

reliction, as in Kubic. See, e.g., Attorney Gen. v. Vineyard

Grove Co., 211 Mass. 596, 602 (1912) (artificial accretion);

Attorney Gen. v. Herrick, 190 Mass. 307, 308 (1906) (disputed

13
land was island in middle of great pond not contiguous with any

private property); Potter v. Howe, 141 Mass. 357, 360 (1886)

(Commonwealth owned land under pond that was temporarily exposed

when defendant artificially lowered water level). We are also

unpersuaded by the plaintiffs' claim that Kubic is inapplicable

because in that case the Commonwealth had disavowed any claim to

the disputed land. See Kubic, 98 Mass. App. Ct. at 298. The

Commonwealth expressly declined the plaintiffs' invitation to

intervene in the instant case, and therefore similarly disavowed

its rights to the land at issue here. The plaintiffs'

assertions are further undermined by the public policies the SJC

identified in White, 464 Mass. at 407, i.e., "the interest in

preserving the water-abutting nature of littoral property," the

interest in promoting stability in title, and "the equitable

principle that a property owner who enjoys the benefit of an

increase in property when waterlines shift seaward ought also to

bear the burden of a decrease in property when waterlines shift

landward." Accordingly, the third judge properly concluded that

14
the newly accreted land that comprises the disputed beach is

owned by the defendants.

Judgment affirmed.

By the Court (Desmond, Hand &
Grant, JJ.10),

Clerk

Entered: September 27, 2024.

10 The panelists are listed in order of seniority.

15