STEVEN J. GLADSTONE & Others v. KATHLEEN M. DENIZARD.

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

25-P-480

STEVEN J. GLADSTONE & others 1

vs.

KATHLEEN M. DENIZARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Kathleen M. Denizard, owns oceanfront

property in the town of Dartmouth and the plaintiffs, owners of

nearby oceanfront, beachfront, or inland property, each claim to

have the right to use the "beach" portion of Denizard's property

for general beach purposes. 2 Denizard contends that several of

the plaintiffs' properties lost their rights over her beach due

1Kim Daigle Gladstone, Jeri L. Gilling, John Seymour, Lynn
Seymour, Mary Elisabeth Swerz and Kinnaird Howland, trustees of
the Sherman Family Realty Trust, Robert Tabors, and Richard D.
Tabors and Patton O. Tabors, trustees of the TQuad Realty Trust.

2The plaintiffs also claim the right of access to the beach
by a ten-foot wide right of way along the northern side of
Denizard's property; Denizard no longer denies that the
plaintiffs have that right -- with the exception that Denizard
denies that the trustees of the TQuad Realty Trust have that
right. We will address that argument below.
to the doctrine of merger and the longstanding "bright-line"

rule prohibiting "the owner of the dominant estate [from using

an easement] to pass to or from other land adjacent to or beyond

that to which the easement is appurtenant" (citation omitted).

Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 686

(2016). As to other plaintiffs, Denizard admits they have

easements, but challenges their use of her beach as exceeding

the scope of their easements. On cross motions for summary

judgment on the plaintiffs' complaint seeking a declaratory

judgment and injunctive relief, a judge of the Land Court

declared the rights of the parties and Denizard now appeals from

the judgment and from the denial of her motion for

reconsideration. 3 Our reasoning differs in some respects from

that of the Land Court judge and we affirm in part and vacate in

part and remand for modification of the easement for the inland

property owners -- Steven J. Gladstone, Kim Daigle Gladstone,

Jeri L. Gilling, and Robert Tabors.

Background. The development of the plaintiffs' properties

may be traced to 1885, when Emily Sweet acquired a large parcel

including all the land at issue, which fronted on Buzzards Bay

along the parcel's eastern boundary. In 1889, Sweet divided the

3 Denizard does not raise any separate arguments regarding
the denial of her motion for reconsideration, and we therefore
do not address it further.

2
large parcel into four smaller parcels -- three roughly

rectangular adjacent parcels that proceed north to south and are

labeled nonconsecutively on the attached decision sketch 4 as

parcels 318, 319, and 317, and a fourth parcel, the "beach

parcel," which Sweet referred to as the "farm shore." While

retaining the fee in the farm shore, 5 Sweet transferred parcel

318 to Henry, Ephraim, and Foster Dennis, 6 and she transferred

parcel 319 to Louis Richardson. Importantly for our purposes,

in both deeds she expressly included the right to "use the farm

shore for boating[,] bathing [and] fishing purposes." 7

4 The decision sketch was attached to the Land Court
decision and neither party suggests that it does not accurately
depict the location of the various lots. Accordingly, we attach
the sketch depicting the various parcels, Gosnold Alley, and
other features as an appendix to assist the reader. We note,
however, that some of the affidavits submitted suggest that
there has been erosion of the beach area that may not be
reflected on the sketch.

5 The parties agree that Sweet "retained ownership of the
land to the east of [parcels 317, 318 and 319] lying between the
parcels and the sea ('the Farm Shore')," and they agree that the
farm shore is accurately shown on the decision sketch.

6 Because of the common surname, we refer to these people
frequently by their first names.

7 Sweet transferred parcel 317 to Henry and Foster
"[t]ogether with the right to the grantees, their heirs &
assigns of using the beach lying between the granted premises
and the waters of Buzzards Bay for all purposes except the
taking of seaweed . . . ." Because none of the parties'
properties derive from parcel 317, we do not address it further.

3
Sweet retained the farm shore parcel until 1891 when she

conveyed it to Ephraim Dennis, who conveyed it to Henry on

November 8, 1909. On November 8, 1909, the same day that Henry

acquired all of the farm shore, he and Ephraim conveyed a

portion of the northern section of the farm shore to William

Hill, "subject to the common law rights of the public and to

rights in certain persons," including the owners of Henry

Dennis' properties, Louis Richardson's property, George

Batchelor's property, and Walter and Maude Taber's property,

among others. 8 The division line for this "north farm shore"

portion from the rest of the farm shore is shown on the decision

sketch as just north of Batchelor's parcel (now owned by the

Seymours). What the parties refer to as the "south farm shore"

is south of that line and the "north farm shore" is north of

that line. Denizard's beach is in the "south farm shore"

portion. In November 1910, Henry transferred the remainder of

parcel 318 and the south farm shore to Catherine Dennis and Lucy

Dudley.

The parties agree that parcel 319 never entered common

ownership with any part of the Denizard property and that the

Sweet easement rights continue to benefit all property deriving

8 We note that the plaintiffs Robert, Richard, and Patton
have the last name "Tabors," which is different from the last
name "Taber." The Tabers and the Tabors are unrelated for
purposes of this decision.

4
from parcel 319. As noted above, in November 1909, however,

when Henry owned a large portion of parcel 318, including

portions of several of the plaintiffs' interior lots, the

Shermans' beachfront lot and interior lot, and Denizard's lot,

he took title to the south farm shore. This is significant

because Denizard argues that the Sweet easement over the farm

shore benefitting parcel 318 merged by operation of law when

Henry took title to both the remainder of parcel 318 and the

south farm shore. And, because several of the parties' interior

lots are comprised of property from the merged portion of parcel

318 and portions of parcel 319, and even though the parcel 319

portion of the lots do not suffer from a merger issue, she

contends that the easements benefitting the parcel 319 portion

of those lots are overloaded 9 by the combination of land from

parcel 319 with land from parcel 318, and thus the owners may

not exercise those easement rights.

1. The parties' properties. a. The beachfront

properties. As shown on the decision sketch, four beachfront

lots deriving from parcel 318 are separated from interior lots

by "Gosnold Alley," which runs north to south over parcels 318

9 The term "overload" applies when an appurtenant easement
is used to serve land other than the original dominant estate.
Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 685
n.11 (2016).

5
and 319. These are labelled (1) "Seymour formerly 1905

Batchelor parcel" along with "1902 Batchelor Parcel";

(2) "Denizard formerly Clark 10"; (3) "Tabors formerly Knowles";

and (4) "Sherman."

Proceeding from north to south, the plaintiffs John and

Lynn Seymour's property is directly north of a ten-foot right of

way that separates it from the Denizard property. The Seymour

property is comprised of portions of parcels transferred in

1902, 1905, and 1909 to their predecessor, Batchelor, before any

potential merger issue arose by virtue of Henry's ownership of

the farm shore. The 1902 deed included a piece of the farm

shore and the parties agree that "[a] portion of the 1902

Batchelor Parcel now comprises part of the Seymour Waterfront

property." Each of the parcels transferred to Batchelor had

rights to use the ten-foot right of way and the farm shore,

including the Denizard beach, for boating, bathing, and fishing,

either by virtue of the Sweet easement or an express easement in

the relevant deed. 11

10The spelling of Denizard's predecessor, Frederick Clark,
is inconsistent in the record between Clark and Clarke; we adopt
the spelling in the original deed of Denizard's property to
Frederick L. Clark.

11While the 1905 deed did not expressly include beach
rights, the rights deriving from Sweet were still in effect.
See G. L. c. 183, § 15. See also Anzalone v. Metropolitan Dist.
Comm'n, 257 Mass. 32, 36 (1926) (easement not limited in scope
by its terms attaches to every portion of tract and to owner of

6
The Denizard property is south of the Seymour property. It

was conveyed to Denizard's predecessor, Frederick Clark, by Lucy

Dudley, successor to Henry Dennis, in 1914, at a time when

Dudley also owned the vast majority of the farm shore, aside

from the section north of the Denizard property which had been

previously conveyed to the Seymours' predecessor, Batchelor, and

portions north of the Batchelor property -- the north farm shore

-- that had been conveyed in 1909 to William Hill, subject to

Henry's easement. The deed from Dudley to Clark included the

beach to the shoreline. The deed purported to transfer the

property "free from all of incumbrances" and does not contain an

express reservation of an easement for Dudley's remaining land.

Of note, however, is that Dudley retained the fee in or an

easement right to use all other sections of the beach -- both

the north farm shore and the south farm shore. In fact, a small

portion of the "south farm shore" is north of Denizard's beach

and a larger portion of it is south of Denizard's beach.

South of the Denizard property is the Tabor trustees'

beachfront property (the "Tabors formerly Knowles" lot on the

each lot divided from tract). Further, in 1909, Henry
transferred a nearby interior lot to Walter and Maude Taber,
"together with the use of the shore" north of the 319 parcel for
boating, bathing, and fishing, reserving the right of boating,
bathing, and fishing on the farm shore. The Seymours now own
this lot also.

7
decision sketch). Ephraim and Henry Dennis originally

transferred that lot to Walter I. Knowles on September 7, 1899,

together with a lot across the alley that derives from parcel

318, with "the privilege of using the beach in front of the lot

first above described [the beachfront lot] in common with

others, for boating bathing and fishing." At that time, Ephraim

owned the beach and Ephraim and Henry owned parcel 318. So far

as the record reveals, there was nothing to prevent the easement

that Sweet granted to parcel 318 from passing appurtenant to the

two lots that Ephrain and Henry Dennis deeded to Knowles. See

G. L. c. 183, § 15; Anzalone v. Metropolitan Dist. Comm'n, 257

Mass. 32, 36 (1926).

South of the Tabors' property is the Sherman property; it

too is comprised of a beachfront lot and an adjacent inland lot

-- all deriving from parcel 318. Henry took title to this

property in 1899; in 1909, when Henry took title to the south

farm shore, he owned both the south farm shore and all of the

Sherman property, and Dudley succeeded to his interest.

b. The inland lots. The Gladstones, Gilling, and Robert

Tabors own interior lots that are west of Gosnold Alley, run

north to south, and are comprised of property from both parcels

318 and 319. The interior lots were created by a 1965

subdivision plan of land acquired by Philip and Bernadette

Hemingway together with "any right to the use of the shore

8
appurtenant to it." The Tabors, as trustees, and the Shermans

each own the beachfront lots noted above and adjacent interior

lots derived from parcel 318.

Discussion. Our discussion is limited to the parties'

rights over the Denizard property and Denizard's contention that

the Sweet easements had been extinguished by the doctrine of

merger for the portions of parcel 318 held by Henry at the same

time he owned most of the south farm shore and had rights to use

all of the south farm shore. We review the judge's decision de

novo. See Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass.

App. Ct. 515, 517 (2011).

At the outset, we note that Denizard, in her brief, makes

several concessions. She admits that in 1909, when Dudley

conveyed the Denizard lot to Clark, the use of the ten-foot

right of way abutting the northerly boundary of the Denizard

property was an "apparent and obvious use" and "reasonably

necessary" for gaining access to the north farm shore -- that it

"had been established for at least 4 years and allowed for

inland portions of [parcel 318] then owned by Henry Dennis . . .

to access the [f]arm [s]hore." Thus, Denizard in essence

concedes that Dudley reserved an implied easement for the ten-

foot right of way for access to the north farm shore for all of

the plaintiffs -- but not for the south farm shore still owned

by Dudley. She also does not challenge the judge's "conclusion"

9
that the Sherman's property "has an implied easement over the

Denizard Beach due to the fact that Sherman's property contains

beachfront that was formerly part of the Farm Shore." The

judge's decision, however, concludes only that the Sherman

property "is benefitted by an implied easement to pass and

repass over the South Farm Shore, including the beachfront

portion of the Denizard property." Sherman did not file a

notice of appeal on this issue. Finally, Denizard concedes that

the Seymours have rights to use Denizard's beach for beach

purposes. Thus, other than to address Denizard's "scope"

argument, we need not address further the rights of the Seymours

or any of the parties' right to use the ten-foot right of way

for access to the north farm shore.

We turn to the plaintiffs' remaining claims.

1. Premerger transfers. Both the Seymours and the Tabors

own properties that were transferred to their predecessors

before Henry Dennis took title to both the south farm shore and

the remainder of parcel 318. The Seymours' predecessors

acquired express easements over Denizard's beach and over the

ten-foot right of way. Although Denizard does not challenge the

Seymour's right to boat, fish, and bathe on her beach, she

contends that the scope of the easement granted by the judge is

overly broad and the judge's conclusion that the Seymours'

rights include "all customary beach uses incidental [to boating,

10
bathing, and fishing], including without limitation sunbathing,

sitting on blankets or chairs, picnicking, and playing beach

games" overburdens 12 the easement. Denizard makes only vague

assertions that the various affidavits submitted in the case --

none of which shed light on the intentions of Sweet -- suggest

that Bachelor has overburdened the easement, but does not point

to any specific facts. Consequently, we discern no error in the

judge's reasonable interpretation of the Seymours' express

easement.

As for the Tabor trustees' beachfront property (which

includes a parcel west of Gosnold Alley but comprised only of

property from parcel 318), although their original predecessor,

Knowles, did not receive an express easement over Denizard's

beach, the Sweet easement was still appurtenant to the property

in 1899. "An easement is to be interpreted as available for use

by the whole of the dominant tenement existing at the time of

its creation," Pion v. Dwight, 11 Mass. App. Ct. 406, 410

(1981), and "[u]nless otherwise stated in the deed, 'rights and

appurtenant easements pass by grant without specific mention.'"

Perry v. Nemira, 91 Mass. App. Ct. 12, 16 (2017), quoting

Cheever v. Graves, 32 Mass. App. Ct. 601, 606 (1992).

12The term "overburden" describes "use of an easement for a
purpose different from that intended in the creation of the
easement" (citation omitted). Taylor, 475 Mass. at 685 n.11.

11
Denizard argues that because the deed to the Tabors

trustees' predecessor, Knowles, contained an express easement

over the beach in front of the Knowles lot, the parties must

have intended to "relocate" Knowles' easement rights deriving

from the Sweet deed. While we agree with Denizard that in

rejecting this argument the judge erred by suggesting that

Walter Knowles and Edward Knowles were the same person, that

error does not change the outcome as we do not find anything

inconsistent about granting an express easement over the beach

in front of Walter Knowles' property and also finding that the

easement rights over all of the beach set forth in the Sweet

deed were still operative. The easements, though duplicative in

part, are not inconsistent, and Denizard points to no

affirmative evidence of the parties' intent to extinguish the

Sweet easement appurtenant to the property. Contrast Proulx v.

D'Urso, 60 Mass. App. Ct. 701, 705 (2004) (easement relocated

when parties acquiesced in use of alternative easement in lieu

of original easement for over decade).

2. The Gladstone, Gilling, and Tabors inland parcels and

the merger doctrine. Although it is clear that the original

grantor, Emily Sweet, took steps to ensure that all of parcels

318 and 319 would have easement rights in and over the farm

shore -- including what became the Gladstone, Gilling and Robert

Tabors parcels -- the subsequent development of parcel 318 and

12
the farm shore caused some portions of parcel 318 and the farm

shore to come into common ownership. "The [merger] doctrine

requires that [an easement] terminate[] 'when all the benefits

and burdens come into a single ownership'" because "[w]hen the

dominant and servient estates come into common ownership there

is no practical need for the [easement's] continued existence,

as the owner already has 'the full and unlimited right and power

to make any and every possible use of the land'" (citations

omitted). Busalacchi v. McCabe, 71 Mass. App. Ct. 493, 497-498

(2008). "Although a subsequent conveyance of one of the

commonly held parcels will not automatically revive the

extinguished easement, the doctrine in no way precludes the

common owner from recreating precisely the same easement by

express reservation." Id. at 498. Extinguished easements,

however, "must be created anew by express grant, by reservation,

or by implication" (citation omitted). Williams Bros. Inc. of

Marshfield v. Peck, 81 Mass. App. Ct. 682, 685 (2012).

Accepting that by late 1909, Henry owned the inland

portions of parcel 318, the Denizard lot, the Sherman lots, and

the south farm shore, the preexisting easement from Sweet had

been extinguished as to those lots under the doctrine of merger.

To be clear, Henry, as owner of both the south farm shore and

the inland properties, had sufficient title to create the

easements anew, but he never did, and the original easements

13
from Sweet were extinguished. Dudley took what title Henry had.

Dudley's deed to Clark did not include an express reservation in

the Denizard beach, thus easement rights must have arisen, if at

all, by implication. See Williams Bros. Inc. of Marshfield, 81

Mass. App. Ct. at 685. Consequently, the question is whether

when Dudley transferred the Denizard lot -- including the

Denizard beach to Clark -- an easement by implication with

respect to the Denizard Beach, which had been part of the south

farm shore, arose for the benefit of Dudley's remaining land.

Whether by grant or by reservation, implied easements "do

not arise out of necessity alone." Perodeau v. O'Connor, 336

Mass. 472, 474 (1957), quoting Dale v. Bedal, 305 Mass. 102, 103

(1940). Rather, they "must be found in a presumed intention of

the parties, to be gathered from the language of the instruments

when read in the light of the circumstances attending their

execution, the physical condition of the premises, and the

knowledge which the parties had or with which they are

chargeable." Dale, supra at 103. Because "a deed is . . .

construed most strongly against the grantor," it may be "more

difficult to imply an easement by reservation for the grantor's

benefit than an easement by grant for the grantee's benefit."

Id.

Only "reasonable necessity" is required. Perodeau, 336

Mass. at 474. "The burden of proving such intent lies with the

14
party claiming the easement, here the plaintiffs." Kane v.

Vanzura, 78 Mass. App. Ct. 749, 755 (2011). "The controlling

question is whether the circumstances of the severance

demonstrate that the parties intended that the owner of one of

the resulting parcels be able to make some use of the other

parcel even though no express easement was recorded." Lavoie v.

McRae, 102 Mass. App. Ct. 14, 19 (2022). That intent "generally

will be found only where the parties seeking to benefit from the

easement can prove that it is 'reasonably necessary' for their

use and enjoyment of their land" (citation omitted). Id. at 19-

20.

Denizard asserts that because the Dudley deed stated that

the property was transferred "free of incumbrances," there can

be no implied easement for Dudley's remaining land. We place

little weight on the deed's assertion, however, because at the

time of the Dudley deed to Clark, Denizard's predecessor,

several property owners from the original Sweet parcel had

rights in and over the Denizard beach for boating, bathing, and

fishing purposes. They included all of parcel 319, and the

Seymours' predecessor, Batchelor. In addition, William Hill,

who owned property north of the Seymours' lot and the north farm

shore, had acquired rights to use the Denizard beach for

boating, bathing, and fishing in 1909, including the right to

grant the same rights to purchasers of his ten plus acres. All

15
of these appurtenant rights were a matter of record, and parties

to a deed are charged with knowledge available from inspection

of the records of the registry of deeds. See Barnes v.

Boardman, 152 Mass. 391, 396 (1890). Thus, when the Dudley deed

provided that the Denizard property was granted "free of

incumbrances" that did not extinguish the rights of others to

use the beach in front of the Denizard property and does not

preclude us from finding an implied easement for the benefit of

Dudley's remaining property.

Next, we must emphasize that Denizard has admitted that the

use of the ten-foot right of way abutting the northerly boundary

of the Denizard property was an "apparent and obvious use" and

"reasonably necessary" and "that it had been established for at

least 4 years" at the time of the Dudley to Clark deed in 1914,

"and allowed for inland portions of [parcel 318] then owned by

Henry Dennis . . . to access the [f]arm [s]hore." Although she

contends the right of way was used for access to the north farm

shore, we discern nothing in the record suggesting that at the

time of the deed, Dudley and her predecessor, Henry, had limited

their use of the farm shore to the north farm shore. Given that

Denizard has conceded the open and obvious use of the ten-foot

right of way, on this record, we cannot conclude that Dudley

intended to give up her access to the rest of the beach she

owned south of Denizard's property. Even if she could have

16
access to the beach generally by using the ten-foot wide right

of way and turning north of the Denizard beach or access to the

beach south of the Denizard beach via the Sherman lot, it is

unreasonable to conclude that Dudley intended to cut off her

ability to traverse the entire beach when she retained rights in

or title to all of the south farm shore and the north farm shore

other than the Denizard beach. We conclude, therefore, that an

easement over the Denizard beach and the ten-foot right of way

was reasonably necessary to enable Dudley to fully enjoy the

rest of her property. When Dudley divided parcel 318, the

rights over Denizard's property passed to the divided portion

without having to be stated. Indeed, Denizard concedes that the

internal properties retain the rights with respect to the north

farm shore. "Unless otherwise stated in the deed, 'rights and

appurtenant easements pass by grant without specific mention.'"

Perry, 91 Mass. App. Ct. at 16, quoting Cheever, 32 Mass. App.

Ct. at 606. So far as the record reveals no one with a fee

interest in the portion of the south farm shore south of

Denizard’s beach appears to have challenged the inland lot

owners rights, whether by virtue of permission or easement

rights, to use the south farm shore south of the Denizard

property and thus, we need not entertain the suggestion that any

easement over the Denizard property is obsolete or unnecessary.

17
We note, however, that in Cheever, 32 Mass. App. Ct. at

608-609, we concluded that a plaintiff made no showing of

reasonable necessity to demonstrate an intent to reserve an

easement by implication for beach rights where there was no

showing that the lot had no other waterfront access. Here,

Dudley did have other waterfront access. However, as already

stated, here Dudley retained rights in or title to all of the

south farm shore other than the Denizard beach. It defies logic

to conclude that Dudley intended to carve out a section of the

beach that would disrupt her enjoyment of all of the remaining

beach that she owned. In these circumstances, we conclude that

she intended to reserve a right to pass and repass over the

Denizard beach. That said, there is no indication that using it

for "all beach purposes" was reasonably necessary where she

transferred the fee and could enjoy other areas of the beach for

beach purposes. Thus, we limit the reserved easement by

implication to passing and repassing only -- in addition to the

public's colonial rights. See Butler v. Attorney General, 195

Mass. 79, 84 (1907) (colonial ordinance of 1631-1647 grants

public right of navigation, fishing, fowling, and passing freely

over and through water between high and low water marks). 13

13Similarly, we note that Denizard admits in her brief that
the inland lot owners continue to have rights in some portions
of the beach south of Denizard's beach as well as the north farm
shore.

18
Because we conclude that Dudley reserved an easement by

implication over the Denizard beach, including property from

parcel 318 in the Gladstones', Gilling's, and Robert Tabors'

interior lots does not overload the parcel 319 easement to the

extent that they may pass and repass over the Denizard beach to

reach other sections of the beach over which they have beach

rights. This is the same result the judge reached for the

Sherman property -- that it retains the right to pass and repass

over the Denizard beach and the ten-foot right of way. It would

overload the easement, however, to allow the Shermans, the

Gladstones, Gilling, and Robert Tabors to use the Denizard beach

for all beach activities. Thus, we remand the case to the Land

Court to modify the scope of the easement for the interior lots

comprised of property from parcels 318 and 319 owned by the

Gladstones, Gillings, and Tabors consistent with this decision. 14

14The judge found that the doctrine of merger did not apply
because it was not the intent of the merger doctrine to "deprive
the portions of those properties within the 319 [p]arcel of
their deeded rights to full use of the [f]arm [s]hore, even
though their rights had not been lost through merger." However,
it is not the doctrine of merger that causes the property
deriving from parcel 319 to lose easement rights to the full use
of the Denizard beach. Rather, the doctrine of overloading came
into play because of the much later decision to combine portions
of parcel 319 with property from parcel 318 that had lost
certain easement rights through merger, ultimately leaving that
property with only the right to pass and repass, and developing
them as single lots with property from both parcels 318 and 319.
The prohibition against overloading an easement by extending it
to after-acquired land has been firmly established for
centuries. See e.g. Davenport v. Lamson, 21 Pick. 72, 74 (1838)

19
3. Remaining counterclaims. Denizard argues that her

counterclaims were not completely addressed and that the

Seymours and Tabors have "overburdened" their easement to use

the Denizard beach. Specifically, Denizard asserts that the

judge erred in broadly concluding that the easement authorized

"all customary beach uses incidental [to boating, bathing, and

fishing], including without limitation sunbathing, sitting on

blankets or chairs, picnicking, and playing beach games." We

discern no error in this aspect of the judge's decision; the

Seymours and the Tabors trustees' beachfront lot, and the

adjacent lot purchased with the beachfront lot, enjoy broad

rights deriving from admitted express or implied easement

rights. Nothing in the affidavits of record raise a genuine

issue of material fact on the scope of those easements. Again,

our decision does limit the Shermans' lot and the Gladstones',

Gilling's, and Richard Tabors' interior lots to passing and

repassing over the Denizard lot.

In addition, it appears that the plaintiffs also claimed

easements by prescription. It is unclear to us whether these

(right of way benefitting three-acre lot cannot be used for
access to nine-acre lot which lay beyond three-acre lot). That
premerger, both lots enjoyed the Sweet easement rights, does not
assist the plaintiffs here. Thus, the portions of lots 319 and
318 that were combined to create the three interior lots each
retained the right to pass and repass over the Denizard beach
(as they retained the rights to use the north farm shore); those
therefore are the rights the three interior lots retain.

20
claims were waived. To the extent that they were not waived,

the Shermans, Gladstones, Gilling, and Robert Tabors may pursue

those claims on remand, though they will bear the burden to show

"that [their] use of the disputed beach area was sufficiently

open and notorious as to entitle [them] to the benefit of the

presumption that [Denizard or her predecessors] knew that . . .

use of the area was being made under a claim of right."

Houghton v. Johnson, 71 Mass. App. Ct. 825, 840 (2008).

Conclusion. We affirm the judgment in part and vacate in

part and remand for further orders and proceedings consistent

with this opinion. 15 Specifically, the Shermans, Gladstones,

Gilling, and Robert Tabors properties enjoy an implied easement

to pass and repass over the Denizard beach and the ten-foot

right of way to reach both the north farm shore and the south

farm shore. The Seymours' beachfront property and the property

of Richard D. Tabors and Patton O. Tabors, as trustees of the

TQuad Realty Trust, enjoy easement rights over the ten-foot

right of way to reach the north farm shore and the south farm

shore, and the right to use the Denizard beach for boating,

bathing, and fishing and all customary beach uses incidental

thereto, including without limitation sunbathing, sitting on

15 Denizard's request for attorney's fees and costs is
denied.

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blankets or chairs, picnicking, and playing beach games.

Denizard shall be enjoined from interfering with the plaintiffs'

rights as declared. The Land Court shall determine whether any

of the plaintiffs have acquired additional prescriptive easement

rights if such claims have not been waived. The order denying

the motion for reconsideration is affirmed.

So ordered.

By the Court (Rubin, Henry &
Wood, JJ. 16),

Clerk

Entered: June 15, 2026.

16 The panelists are listed in order of seniority.

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