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15-P-923 Appeals Court
PETER R. BROWN, trustee,1 & others2 vs. JAN H. KALICKI &
another.3
No. 15-P-923.
Suffolk. June 13, 2016. - October 20, 2016.
Present: Cohen, Milkey, & Massing, JJ.
Real Property, Registered land, Littoral property, Certificate
of title, Easement. Land Court, Registration proceedings.
Adverse Possession and Prescription.
Civil actions commenced in the Land Court Department on
September 29, 2011.
The cases were heard by Alexander H. Sands, III, J., on a
motion for summary judgment.
Diane C. Tillotson for the defendants.
Brian M. Hurley for the plaintiffs.
1
Of the 7 Davis Lane Trust.
2
Nancy Powers-Ferris and John E. Ferris; and John J. Powers
and Lauren K. Powers, as trustees of the John J. Powers
Qualified Personal Residence Trust and the Lauren K. Powers
Qualified Personal Residence Trust.
3
John Michael Hershey. The Commonwealth and the town of
Harwich were defendants in the Land Court proceeding but are not
parties to this appeal.
2
COHEN, J. The plaintiffs are the respective owners of
three parcels of registered land located at 3, 7, and 11 Davis
Lane, a private way in the town of Harwich (town). These
parcels extend in a more or less southerly direction from Davis
Lane to the shoreline of Nantucket Sound. Over time, the
shoreline has changed, and the parcels have accreted4 significant
portions of formerly submerged land.
On September 29, 2011, the parcel owners filed supplemental
petitions in the Land Court, seeking to amend their certificates
of title. Jan H. Kalicki and John Michael Hershey (interveners)
moved to intervene as defendants, alleging that they had
acquired prescriptive rights over the accreted land. Upon
informal consolidation of the cases for decision on the
plaintiffs' motions for summary judgment, the motion judge
rejected the objections of the interveners and granted summary
judgment to the plaintiffs.
The question for the judge was whether the accreted
beachfront took on the status of registered land as it formed,
or whether registered status could be obtained only through
court proceedings to amend the certificates of title. The
4
"Accretion" has been described as occurring "[w]hen the
line between water and land bordering thereon is changed by the
gradual deposit of alluvial soil upon the margin of the water."
Allen v. Wood, 256 Mass. 343, 349 (1926) (quotation omitted).
3
judge ruled that the accreted beachfront automatically became
registered, and, therefore, was protected from the interveners'
claims that they have a prescriptive easement to use the beach
area on the plaintiffs' land. Applying well-established
standards of review,5 we affirm.
Background. The material facts are not in dispute. The
land comprising the plaintiffs' parcels was registered in the
1920's and 1930's.6 Under the terms of each certificate of
title, "[a]ll of said boundaries, except the water lines, are
determined by the Court to be located as shown on" the
associated Land Court plan. Each of the registration plans
shows and identifies the southern boundary of the subject parcel
as "Nantucket Sound."
In the decades following the registration proceedings, the
size of the parcels grew substantially as a result of accretion.
For example, a 2011 plan shows that since 1943, the waterfront
5
"The allowance of a motion for summary judgment is
reviewed de novo. The standard of review of a grant of summary
judgment is whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to judgment as a
matter of law." White v. Hartigan, 464 Mass. 400, 406 (2013)
(citations and quotations omitted).
6
There were three initial registration proceedings, in
1923, 1933, and 1939. However, two of the parcels were merged
and later subdivided along a different boundary. Thus, the
original registration proceedings do not correspond exactly with
the parcels in their current configuration.
4
boundaries of the two easternmost parcels had extended seaward
some 347 to 358 feet. The interveners took the position that
the accretion resulted, at least in part, from the erection of a
jetty by the town; however, as the judge noted in his decision,
this claim was never litigated. Regardless, the judge ruled
(and it is not disputed) that even if the jetty contributed to
the accretion, a littoral owner ordinarily will still acquire
ownership of accreted land that is created with human
intervention so long as it was not caused by the owner himself.
See Lorusso v. Acapesket Improvement Assn., 408 Mass. 772, 780
(1990).7
The plaintiffs appended to their supplemental petitions
proposed plans depicting extended sidelines through the accreted
land, as well as the approximate mean high and low water marks
at the parcels' boundaries with Nantucket Sound. According to
representations made in the plaintiffs' brief and at oral
argument before this court, their purpose in filing the
7
The general rule is that "[t]he line of ownership [of
littoral property] follows the changing water line." White v.
Hartigan, 464 Mass. at 407, quoting from East Boston Co. v.
Commonwealth,
203 Mass. 68, 75 (1909). However, there are two
recognized exceptions. The owner may not be entitled to the
accreted land if the owner caused the accumulations, see
Michaelson v. Silver Beach Improvement Assn., Inc.,
342 Mass.
251, 254 (1961); and, if the accretions were created by the
government as a necessary aid to navigation, they belong to the
government. Lorusso v. Acapesket Improvement Assn.,
408 Mass.
at 780. Neither of these exceptions is applicable here.
5
supplemental petitions was to establish the parcels' extended
sidelines and thereby resolve any questions between abutting
landowners as to their respective ownership rights in the
accreted land. See Lorusso v. Acapesket Improvement Assn.,
supra at 780-781. Whatever their objectives, however, we draw
no inference from the fact that the plaintiffs initiated
proceedings to amend their certificates of title.
A court-appointed title examiner filed a report on March
23, 2012, and citations issued. The Commonwealth and the town
both filed objections, but they later resolved their concerns
and withdrew them.8 Meanwhile, local residents, including
Kalicki and Hershey, were permitted to intervene as defendants9
and filed their own objections.
The interveners did not dispute that the plaintiffs own the
accreted, previously submerged land by operation of law. See
8
The Commonwealth withdrew its objections after the
execution of stipulations with each of the plaintiffs that any
decree would reflect that the area between the mean high water
mark and mean low water mark would be subject to the rights of
the public. The town withdrew its objections after entering
into a settlement agreement with the plaintiffs regarding, inter
alia: the boundary between the easternmost of the subject
parcels and a town-owned beach, the relocation of a town-owned
path to the beach, and the installation of fencing and signs.
The agreement also set out contingencies for easements that
would be established if the town conservation commission failed
to approve the settlement, or if its approval was overturned on
appeal.
9
Kalicki intervened in all three cases; Hershey intervened
in two.
6
note 7, supra. Nonetheless, they claimed that they had acquired
prescriptive easements to use the parcels' beach area. The
easternmost of the plaintiffs' parcels, situated at 11 Davis
Lane, abuts the town-owned Bank Street beach. Where Davis Lane
is met from the north by a town way, Bay View Road, there is a
town-owned path extending seaward along the edge of the town-
owned beach adjacent to the 11 Davis Way parcel. The
interveners alleged that for decades they and their predecessors
had used the town-owned path to gain access to the plaintiffs'
parcels, and that they had engaged in continuous, open, and
notorious adverse use of the parcels' beach area. See Boothroyd
v. Bogartz, 68 Mass. App. Ct. 40, 46 (2007).
Without conceding the facts underlying the interveners'
claims, the plaintiffs argued on summary judgment that the
claims failed as matter of law, because -- by statute -- one
cannot obtain prescriptive rights in registered land, see G. L.
c. 185, § 53, and the accreted beachfront was protected by the
existing registrations. The interveners countered that the
previously submerged accreted land was not registered land when
their prescriptive rights accrued, and could not become
registered land until the parcels' certificates of title were
amended. The judge agreed with the plaintiffs, finding "that
the accreted land automatically became a part of the registered
land as it was formed," and judgment entered for the plaintiffs.
7
Discussion. The specific issue presented -- whether
accretions to registered littoral land automatically acquire
registered status at the time of their creation -- has not been
decided by the appellate courts. However, in 1989, a different
judge of the Land Court (Fenton, J.) confronted the issue in
Lorusso vs. Acapesket Improvement Assn., Inc. (Land Court
No. 314-S, March 24, 1989).10 The motion judge in the present
case relied largely on the rationale of the earlier Land Court
judge, which can be summarized briefly as follows.
Littoral boundaries "frequently change, so that the actual
boundaries will rarely correspond exactly with what is depicted
on a registered owner's certificate of title or land court
plan." Ibid. Thus, if accreted land is not deemed registered
upon its creation, owners of littoral property would need to
"amend their [c]ertificates of [t]itle on a regular basis to
prevent any loss in their property rights due to adverse use by
another. This would be inconsistent with one of the principle
purposes of the registration system: 'to make titles certain and
indefeasible.'" Ibid., quoting from Michaelson v. Silver Beach
10
When the case reached the Supreme Judicial Court, the
only question presented was whether the defendant, whose
property (a sand bar) had eroded away, was entitled to an
equitable share of accretions to the plaintiff's beachfront
property; the issue of automatic registration of accreted land
was not appealed. See Lorusso v. Acapesket Improvement Assn.,
Inc., 408 Mass. at 773.
8
Improvement Assn., Inc., 342 Mass. 251, 260 (1961).
Automatically endowing the accreted land with registered status
also counterbalances the downside of owning registered littoral
property, namely, that despite the protections afforded by
registration, the landowner still bears the risk of losing all
rights to any land that erodes away. See
ibid.
We find this reasoning compelling, at least in the
circumstances of the present case. Here, the interveners are
not adjacent beachfront owners with their own rights in the
accretions, and their claims relate only to the use of the
expanded beach area at the shore of Nantucket Sound. As between
adjacent beachfront owners, questions of ownership, not to
mention registration, may need to be determined in court. As
the Supreme Judicial Court explained, "[t]he rule that the owner
of littoral land gains ownership of accretions to his land is
subject to, and modified by, the further rule that, when two or
more littoral owners have rights to simultaneously formed
accretions, the rights of the owners in the accretions are to be
determined by the doctrine of equitable division." Lorusso v.
Acapesket Improvement Assn., Inc., 408 Mass. at 780-781. "[T]he
object of apportioning simultaneous accretions among lots of
littoral land is to give each owner the same proportion of the
new waterfront that he would have had if the accretions had
never occurred."
Id. at 781. Thus, depending upon the vagaries
9
of the accretion, court proceedings to establish sideline
boundaries and to amend the certificates of title may well be
necessary and prudent.
Here, however, the waterfront boundary is the determinative
factor, and it presents no uncertainty. No amendment to the
prior registrations is necessary to establish definitively that
the parcels remain bounded on the south by Nantucket Sound, as
stated in the original certificates of title. In these
circumstances, the plaintiffs, whom the interveners acknowledge
to be the owners of the accreted land, should continue to derive
the protection that the original registrations afforded them
from claims of prescriptive rights in the beach.
Although the interveners emphasize that the amount of
accretion is substantial, that fact is irrelevant. As the
motion judge explained, even though the plaintiffs could not
have contemplated how much land would accrete to their property
when they purchased or registered their parcels, the same can be
said about any owner of littoral land. No such owner can
predict whether or by how much their property will grow or
recede, or how frequently or suddenly the shoreline will change
one way or the other. What is relevant here is that the parcels
have remained bounded by the sea, as stated in the original
certificates of title.
10
This analysis does not conflate ownership and registration,
as the dissent suggests, nor does it undermine the purposes of
the registration system. It simply recognizes that there are
sound reasons to extend the protections afforded by the
registration system to accretions to registered land and thereby
foreclose claims of prescriptive rights by individuals with no
shared ownership interest in those accretions.
The interveners' final point is that the importance of
public rights militates against conferring registered status
automatically upon accreted land. We see no reason why that
should be the case. When land has accreted, the public retains
its access and rights to the tidelands wherever they exist, and
may fish, fowl, or navigate in those tidelands as established by
the Colonial Ordinance of 1641-1647. See Pazolt v. Director of
the Div. of Marine Fisheries, 417 Mass. 565, 571 (1994). See
also Michaelson v. Silver Beach Improvement Assn., Inc.,
342
Mass. at 261. In Michaelson, the Commonwealth had caused
accretion to registered land by dredging and pumping sand from
the floor of the harbor.
Id. at 252 The court concluded that
because the landowners did not cause the accretion, the law
applicable to natural accretions should govern. Thus, the
landowners had title to the newly created beach, and the public
had no right to use it, except as to the portion between the
11
high and low water mark, for the purposes of navigation,
fishing, and fowling. Id. at 261. The result is the same here.
To the extent that the interveners suggest, by analogy to
Arno v. Commonwealth, 457 Mass. 434 (2010), that the public may
have additional rights in land that once was Commonwealth
tidelands, they have no standing to raise the issue. See
Attorney Gen. v. Williams,
174 Mass. 476, 483 (1899); Wellfleet
v. Glaze,
403 Mass. 79, 88 (1988) (Wilkins, J., concurring).
Notably, those charged with protecting public rights -- the
Commonwealth and the town -- have resolved their concerns and
withdrawn their objections, as discussed above. See note 8,
supra.
Conclusion. The accreted beach area on the plaintiffs'
parcels is entitled to the protection afforded by registration
and is not subject to the prescriptive easement claims alleged
by the interveners. Accordingly, the judgment of the Land Court
is affirmed.
So ordered.
MILKEY, J. (dissenting). The interveners claim that
through many decades of open, adverse use, they obtained
prescriptive easements in a particular beach area. That beach
area did not exist at the time that the parcels now owned by the
plaintiffs were registered. Nor has it since then, until now,
been the subject of any supplemental registration proceeding.
Nevertheless, the majority concludes that the beach area should
be treated as if it automatically had become registered land as
it was being formed.1 Because that conclusion is unsupported by
the language of the registration statute and inconsistent with
the essential nature of registered land, I respectfully dissent.
As an initial matter, I note what makes registered land
distinct from other property. Under the ordinary system in
which title to land is memorialized, county registries of deeds
serve as public repositories in which private deed transfers are
recorded. In each such deed, the property at issue is typically
described by means of a metes and bounds description. The
validity of the title held by a person claiming ownership of a
parcel of land can be tested and verified only by means of a
1
In ruling that accreted land becomes registered as it is
formed, the Land Court judge characterized this as "automatic
registration." Although that moniker aptly describes what the
judge had in mind, "automatic registration" is an oxymoron. As
explained below, particular land depicted on plans maintained by
the Land Court becomes registered only through an in rem process
that adjudicates the rights of the world to such land.
2
search of prior registry records, following a chain of title to
a source deed. As the Supreme Judicial Court has observed, the
problem with the ordinary system of recording deeds is that "no
one can be absolutely certain whether he is buying a good title
or a bad one." Kozdras v. Land/Vest Properties, Inc., 382 Mass.
34, 44 (1980), quoting from Hurd, Exposition of the Torrens
System of Registration of Title, An Essay, in The Torrens System
of Registration and Transfer of the Title to Real Estate 88-89
(Yeakle ed. 1894).2
To get rid of that uncertainty and "all the expense,
trouble and delay that attend running the title back through
previous transfers," the Legislature developed an alternative
way of recording title. Ibid., quoting from Hurd, supra.
Specifically, in 1898, the Legislature created a registration
system based on one implemented in Australia by Sir Robert
2
The following sources provide useful background to the
history of, and the procedures employed by, the land
registration system: Land Court Guidelines on Registered Land
§ 18 (Feb. 27, 2009); Land Court Manual of Instructions for the
Survey of Lands and Preparation of Plans § 1.5 (Sept. 23, 2005);
Buscher, Jr., The Nature and Evolution of Title (Mar. 4, 2003),
available on the Land Court's own web site at
http://www.mass.gov/courts/court-info/trial-court/lc/lc-titlegen.html [https://perma.cc/Q779-KV88]; 2 Crocker's Notes on
Common Forms § 1124 (Mass. Cont. Legal Educ. 10th ed. 2016);
Buscher, Jr., One Hundred Years in the Law of the Land: A
Retrospective of the Work of the Land Court Department of the
Trial Court on the Occasion of its One-Hundredth Anniversary, 5
Mass. Legal Hist. 67, 73 (1999); and Turner, Land Title
Registration in Massachusetts, 33 Am. L. Rev. 42 (1899).
3
Torrens. St. 1898, c. 562. See McQuesten v. Commonwealth, 198
Mass. 172, 177 (1908). Under this alternative system, parcels
are surveyed and plotted with precision on plans maintained by a
specialized court (originally known as the Court of
Registration, later renamed the Land Court). After a court-
appointed title examiner conducts an extensive investigation
into the title of the depicted tract, and appropriate notice is
provided to potentially interested parties, the court holds an
in rem proceeding to adjudicate title to the property.3 That
adjudication results in a certificate of title that establishes
the rights of the world to that particular tract.4 See Tyler v.
Judges of the Court of Registration,
175 Mass. 71, 73-74, aff'd,
179 U.S. 405 (1900). Holders of that certificate of title take
the registered land encompassed by the certificate "free from
all encumbrances except those noted on the certificate," subject
to certain exceptions not applicable here. G. L. c. 185, § 46,
as appearing in St. 1981, c. 658, § 26.
3
The Supreme Judicial Court long ago established that land
registration is an in rem proceeding even though the property
itself is not named as a party. See Tyler v. Judges of the
Court of Registration, 175 Mass. 71, 76-77 (Holmes, C.J.),
aff'd,
179 U.S. 405 (1900).
4
As one commentator has summarized the essence of the
registration system: "the Commonwealth itself, through the
court system, declares and guarantees the state of ownership of
particular parcels, any interests existing in them and keeps an
authoritative map of these lands." The Nature and Evolution of
Title, supra.
4
By virtue of the survey and resulting plan prepared through
the registration process, both the title and precise boundaries
of the registered land evidenced by a certificate of title are
verified and defined with precision. Through examining the
certificate of title for a parcel of land, together with the
corresponding plan maintained by the Land Court, one readily can
determine with exactitude the identity of the registered owner,
the precise boundaries, and the rights and encumbrances
affecting the land. Pursuant to G. L. c. 185, § 115, a property
owner can seek to amend an existing certificate of title by
filing a supplemental petition for registration, commonly known
as an "S-petition." See, e.g., Arno v. Commonwealth, 457 Mass.
434, 441 (2010).
The beach area at issue in this case was formed by
accretion. In light of well-established case law applicable to
such land,5 the interveners do not question that the plaintiffs
5
See White v. Hartigan, 464 Mass. 400, 407 (2013), and
cases cited. As the majority accurately notes, a littoral owner
is not entitled to accreted land in some circumstances. See
Michaelson v. Silver Beach Improvement Assn., Inc.,
342 Mass.
251, 254 (1961) (recognizing that littoral owner may not be
entitled to accreted land if accumulations were "caused by the
littoral owner himself"); Lorusso v. Acapesket Improvement
Assn.,
408 Mass. 772, 780 (1990) ("accretions . . . created by
[the] government as a necessary aid to navigation . . . belong
to the government"). While the interveners do not claim that
such circumstances are present here, the fact remains that there
will have been no adjudication of title to the accreted land
until the S-petition proceeding has concluded.
5
acquired title to their respective shares of this area by
operation of law, subject to determination of the particular
boundaries of each parcel by operation of governing principles.6
However, the interveners' concession that the plaintiffs
collectively acquired title to the relevant portion of the beach
area does not mean this land therefore is registered property.
Simply put, a claim of title to an undetermined portion of
accreted land does not equate to registration of the title so
acquired. Instead, until the precise boundaries are adjudicated
and the certificate of title and plans amended to establish the
plaintiffs' rights as against the world, title to the accreted
property remains unregistered. See, e.g., Hurd, Exposition of
6
Drawing the sideline boundaries that will separate each
littoral owner's share of the accreted land is far from a
ministerial act. In 1990, the Supreme Judicial Court reiterated
the traditional rule that "the rights of the owners [bordering
on accreted land] are to be determined by equitable division,
the object of which is to give each parcel the same proportion
of waterfront as it would have had if the accretions had not
occurred." Lorusso v. Acapesket Improvement Assn., 408 Mass. at
782. See Allen v. Wood,
256 Mass. 343, 350-351 (1926). Because
the shape of the coastline typically changes as a result of the
accretions, applying the rule of "equitable division" means that
one cannot simply extend existing sidelines in a straight line
from their intersection with the old waterline to intersect with
the new waterline. Instead, as the plans the plaintiffs
submitted in the case before us well illustrate, the existing
sidelines would have to be extended at a pronounced angle. The
Land Court has developed surveying protocols on how to draw such
boundaries with respect to registered land. See Land Court
Manual of Instructions, supra, at §§ 1.5, 2.1.2, 2.1.4.5, 2.3,
3.2.2. See also
Lorusso, supra at 781 (recognizing that rule of
"equitable division" of accreted lands can be informed by "a
positive prescribed rule" [quotation omitted]).
6
the Torrens System, An Essay, in The Torrens System of
Registration and Transfer of the Title to Real Estate at 92-93
("To give [a parcel] . . . an immediate effect [of registration]
would be to cut off vested rights in a manner to which the
possessor has not given his consent"). In other words, it is
the S-petition proceeding that will establish the plaintiffs'
rights on the ground as to particular portions of such land.
The majority, like the Land Court judge, conflates the question
of title with that of registration. Because the essence of land
registration is that property identified with geographical
particularity has been subjected to an in rem proceeding, then,
by definition, land can become registered land only if it has
been subjected to such a proceeding.7
Applying that definitional principle to the facts of this
case is straightforward. It is undisputed that the current
beach area was not owned by the plaintiffs' predecessors-in-
title at the time of the original registration proceedings.
7
The majority acknowledges that each plaintiff's specific
portion of the beach area will be established through the
current registration proceeding. It necessarily follows that
each plaintiff's portion cannot be considered as having already
become registered land with respect to the other plaintiffs and
abutters. The majority nevertheless contends that the beach
area still can be considered registered land with respect to the
interveners. This ignores the fact that registration is an in
rem proceeding that determines the rights of the world to a
particular tract of land. The idea that land can be registered
with respect to some parties, but not to others, is
insupportable.
7
Instead, such land at that time indisputably was submerged land
owned by the Commonwealth. As a result, the beach area was not
part of the original registration proceedings, and cannot be
said to be encompassed within the original certificates of
title. Nor, up until now, have there been any supplemental
registration proceedings adjudicating ownership of the beach
area. The plaintiffs brought the current action to accomplish
that very end: to amend their certificates of title to
establish their title to a share of the accreted land and the
boundaries thereto. Only at the point the beach area has been
brought into the registered land system will it be subject to
the protections enjoyed by registered property, including
protection against the accrual of prescriptive rights pursuant
to G. L. c. 185, § 53. See Batchelder v. Planning Bd. of
Yarmouth, 31 Mass. App. Ct. 104, 108 (1991) (state of title does
not change until registration proceeding is complete).
On what basis, then, does the majority purport to treat the
beach area as having become registered without its having been
subjected to the registration process? In short, the majority
appears to accept the judge's assessment that it would be unfair
and unwise to require owners of littoral land to pursue S-
petitions if they wanted any accreted land to be registered.
In the words of the Land Court judge:
8
"To hold that accreted land could not automatically
become registered would create a heavy burden on littoral
owners. Property owners would not only need to closely
monitor their changing water lines but would also have to
bear the cost of having to update their certificates of
title regularly. Failure to periodically update their
registration would create the constant need to protect
their property line from being claimed by outside parties,
despite its initial registration. This is contrary to the
purpose of the registration system, to make titles certain
and indefeasible . . . and would make the registration of
littoral properties less meaningful than the registration
of landlocked parcels [quotation omitted]."
There are numerous problems with such reasoning. First, it is
not self-evident what unfairness lies in requiring owners of
registered littoral land to file an S-petition if they want
their portion of any accreted land to be brought within the
registration system and reflected on their certificate of title.
In addition, contrary to the judge's suggestion that frequent S-
petitions would need to be filed, an owner of littoral land
subject to accretion could seek full protection from any claims
of prescription by updating the certificate of title at twenty-
year intervals (the time period necessary for any claim for a
prescriptive easement to accrue).8 Requiring such owners to
initiate an S-petition in this manner in order to obtain the
full benefits of the registered land system for new accretions
hardly seems unfair. Indeed, it simply treats such owners the
8
See G. L. c. 187, § 2 ("No person shall acquire by adverse
use or enjoyment a right or privilege of way or other easement
from, in, upon or over the land of another, unless such use or
enjoyment is continued uninterruptedly for twenty years").
9
same as all other owners of recorded (that is, nonregistered)
accreted land.9
Moreover, the reasoning of the judge, endorsed by the
majority, rests on a logical fallacy: we should treat land as
registered, even though it is not, because doing so would serve
the goals of the registration system (increased certainty). In
addition, allowing "automatic registration" of land that is
accreting actually decreases certainty. As noted, one of the
central attributes of the land registration system is that one
9
Because owners of registered littoral land would need to
update their certificates of registration periodically in order
to take full advantage of the registered land system, there is
perhaps some truth to the judge's characterization that this
"would make the registration of littoral properties less
meaningful than the registration of landlocked parcels." But
that result is simply the product of the mutable nature of
littoral land and the landowners' good fortune that their land
is expanding.
Of course, as oft has been observed, owners of littoral
land also can lose their property to the sea, e.g., through
erosion. That coastal boundaries are subject to the whims of
the sea in both directions presents an equitable reason
underlying the common law principle that title to littoral land
generally moves with the waterline. See White v. Hartigan, 464
Mass. at 407 (recognizing "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"). However,
such considerations have nothing to do with the separate
question whether any accreted land automatically should be
considered registered as it is formed. The Land Court judge's
reasoning that "allowing the automatic registration of
accretions provides a balance to the burden faced by owners of
registered littoral property" again conflates title with
registration.
10
can determine the existence and geographical extent of
registered land from mere examination of the certificate of
title and its corresponding plan on file with the Land Court.
Automatic registration of accreted land is at odds with such
certainty, because the boundaries of the land reflected on the
certificate of title and corresponding plan will be inconsistent
with conditions on the ground (to the extent of any accreted
lands that have not yet been the subject of an S-petition).10
And, as observed above, the determination of boundaries of
accreted land is not without some difficulty, subtlety, and
uncertainty. See note 6, supra.
The Land Court judge's additional suggestion that automatic
registration is needed to "preserve the water-abutting nature of
littoral property" is, at a minimum, overstated. Given the
nature of littoral land, any claim of a prescriptive easement
will be extremely difficult to prove (and a successful claim of
10
Of course, had the interveners examined the plaintiffs'
existing certificates of title, they could have determined that
the plaintiffs' property extended to the sea and therefore would
have known that the beach area was not theirs. But this is
doubly irrelevant. First, the interveners presumably could have
determined that the plaintiffs owned to the sea regardless of
whether any of their parcels had been registered. Second, a
claim for a prescriptive easement turns on the nature and
duration of the trespasser's use, not the state of his knowledge
of who owns the underlying fee. See White v. Hartigan, 464
Mass. at 416-419 (discussing elements of prescriptive easement
claim over eroded land).
11
actual adverse possession even harder).11 In any event, going
forward, owners of registered littoral land, just like owners of
recorded littoral land, have many means available to prevent
such claims from accruing. Those means include what the
plaintiffs did here: petitioning to have the accreted land made
part of the registered land system.
None of this is to suggest that the Legislature would lack
the power to favor the interests of the owners of registered
littoral land over those of others in the manner that the
plaintiffs desire (and the majority has endorsed). However,
nothing in the language or structure of the registration statute
suggests that the Legislature has made such a policy choice.12
Until it does, we are instructed not to read into that act
provisions that are not there. Hickey v. Pathway Assn., 472
Mass. 735, 755 (2015) (except as expressly provided by land
11
Counsel for the parties, both experienced Land Court
practitioners, were unaware of any other registration case since
1989 that raised the subject matter of the current case (the
intersection of the law of registered land and the law of
accretion). Independent research has not uncovered any.
12
Of course, many different potential policy choices are
available with respect to how accreted land should be treated in
a Torrens system. In the only example of which I am aware that
a State has addressed the issue by statute, one who petitions
for registration of accreted land bears the burden of proving
"that the accretion has been in existence for at least twenty
years." See In re Bernard Rudolph Banning to Register & Confirm
Title to Land Situate in the Dist. of Koolaupoko, 73 Haw. 297,
302 (1992), quoting from HRS § 501-33.
12
registration act, "registered land is to be treated in the same
manner, and according to the same legal doctrines, that apply to
recorded land"). See Williams Bros., Inc. of Marshfield v.
Peck, 81 Mass. App. Ct. 682, 686 (2012) ("Absent specific
language, we will not presume legislative intent and will not
read the [registration] statute to override the common law").
See also G. L. c. 185, § 77 (the act does not "change or affect
in any way any other rights or liabilities created by law and
applicable to unregistered land").13
In sum, by definition, land cannot become registered until
it has been the subject of an in rem registration proceeding.
The majority's holding that the beach area here became immunized
from any claims of prescriptive easements decades before it was
the subject of such a proceeding is, in my view, untenable. I
therefore respectfully dissent.
13
I agree with the majority's final point that the
interveners' claims are not aided by any efforts to invoke the
rights of the public. However, their claim that the beach area
is not currently registered land is in no way dependent on such
efforts.
