Commonwealth of Massachusetts s54

Specimen Complaint to Establish Easement Rights1

[Case Caption]

COMPLAINT

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NATURE OF CLAIM

This is an action brought by property owners to establish their rights, title, or interest to use the beach in front of and on Defendants’ property in the Cape Cod seashore community of Sandy Beach, in Utopia, Commonwealth of Massachusetts. Plaintiffs seek to establish rights by virtue of an express easement, an easement by implication and/or a prescriptive easement.

JURISDICTION

1. The Land Court has original jurisdiction over this matter pursuant to Massachusetts General Laws Chapter 185, section 1(k) and concurrent jurisdiction as a matter of equity jurisprudence under the provisions of M.G.L. Chapter 231A, Section 1.

PARTIES

2. Plaintiffs James Peters and Julia Peters reside at 32 Beach Way in Utopia, Massachusetts.

3. Defendants Randy Douglas and Rachael Douglas reside at 10 Waterfront Way, Utopia, Massachusetts.

FACTS

4. Plaintiffs have record title to certain parcels of land in Utopia, Massachusetts in the seashore community of Sandy Beach. Plaintiffs are backlot owners in the Sandy Beach subdivision. See Deed to Plaintiffs recorded with Nulluslocus County Registry of Deeds in Book 6739, Page 244 attached hereto as Exhibit A.

5. Defendants have record title to a certain parcel of land adjacent to the tidal flats at Sandy Beach. See Deeds to Defendants recorded with Nulluslocus County Registry of Deeds in Book 5466, Page 87 attached hereto as Exhibit B.

6. The Sandy Beach subdivision is depicted on a document entitled “Plan of Lots at Sandy Beach, May 13, 1904." recorded with Nulluslocus Registry of Deeds in Plan Book 6 Page 21 (“ the1904 Plan”) a copy of which is attached hereto as Exhibit C

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7. Sandy Beach is bounded on the west by Utopia Bay. See Exhibit C.

8. The 1904 Plan subdivided the land and established private ways extending to the high water mark of Utopia Bay. See Exhibit C.

9. As the developer of the 1904 Plan intended to provide access to the beach at Sandy Beach to all of the lot owners in the subdivision.

10. Initial conveyances of lots at Sandy Beach occurred primarily between 1924 and 1939.

11. Initial conveyances of the waterfront lots described the westerly boundary as the “highwater mark.”

12. Defendants’ property is bounded by the highwater mark and consists of Lots 1 and 2 on the 1904 Plan. See Exhibit B, Book 100, Page 10.

13. Defendants do not have right, title, or interest in any area of beach seaward of the high water mark.

14. For well in excess of twenty years, Plaintiffs, together with their predecessors in title, have used the entire beach at Sandy Beach for usual beach purposes openly, notoriously, and continuously, including the portion of beach adjacent to Defendants’ land.

15. Plaintiffs have an express easement to use Sandy Beach by virtue of a specific grant in their deed to Sandy Beach.2

16. Plaintiffs’ use and enjoyment of their property is dependent upon their access to and use of all of the beach at Sandy Beach.

17. Plaintiff’s property is bounded by Unity Road which is also referenced in Defendant’s Deed (Exhibit D) and appears on the 1904 Plan.3

18. During the summer of 2006, Defendants began illegally interfering with Plaintiffs’ access to and rights to use the beach in the area of lots 1 and 2 from the foot of the dune seaward (the “Beach Area”) by demanding that Plaintiffs leave the “Beach Area” and by hiring a police detail to remove Plaintiffs from the beach area.

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CLAIM FOR RELIEF

Declaratory Determination

M.G.L. Chapter 231A, Section 1

19. Plaintiffs hereby reallege and incorporate by reference every allegation contained in paragraphs 1-18.

20. An actual controversy has arisen among the parties to this action regarding the Plaintiffs’ interests at Sandy Beach.

21. As record owners of land at Sandy Beach, Plaintiffs have standing, and their rights will be significantly affected by a resolution of this controversy.

22. Defendants have no right, title, or interest whatsoever in any land seaward of the high water mark.

23. Defendants’ land between the foot of the dune and the high water mark is burdened with an easement for the benefit of Plaintiffs.

24. Plaintiffs, together with their predecessors in title, have made use of the entire Sandy Beach for usual beach purposes, including the entire Beach Area, in an open, adverse, notorious and uninterrupted manner for more than twenty (20) years and have thus obtained an easement by prescription.4

25. Plaintiffs have an easement by implication for use of the entire Sandy Beach for usual beach purposes, including the beach adjacent to Defendants’ property seaward of the highwater mark, because it was the intention of the original developer to grant to Plaintiffs’ predecessors in title the right to use all of Sandy Beach.5

26. Defendants have no legal basis to exclude Plaintiffs from any part of the Beach Area at Sandy Beach.

WHEREFORE, Plaintiffs seek a declaration to issue after a hearing on the merits stating that:

a. Plaintiffs have an express easement to use Sandy Beach for usual beach purposes;

b. Plaintiffs have an easement by implication to use Sandy Beach for usual beach purposes; and

c. Plaintiffs have acquired by prescription the right to use the Beach Area, i.e. the beach in the area of lots 1 and 2 from the foot of the dune seaward for usual beach purposes;

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d. Defendants have no right, title, or interest whatsoever in any land seaward of the high water mark.

e. The beach adjacent to Defendants’ lots 1 and 2 from the foot of the dune seaward between the foot of the dune, is burdened with an easement for the benefit of Plaintiffs.

f. Defendants shall be permanently enjoined from preventing, impeding, or in any way interfering with Plaintiffs’ use of Sandy Beach for usual beach purposes including the Beach Area i.e. the beach in the area of lots 1 and 2 from the foot of the dune seaward; and

g. Defendants shall be enjoined during the pendency of this action from preventing, impeding, or in any way interfering with Plaintiffs’ use of Sandy Beach for usual beach purposes including the Beach Area i.e. the beach in the area of lots 1 and 2 from the foot of the dune seaward; and

h. Plaintiffs are entitled to other relief as this Court deems just and proper.

[Signature]

[Date]

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Notes and Comments

1. Generally, easements may be express (by grant or reservation), by implication (based on deeds, plans of record and other circumstances), or by prescription (through use as defined by M.G.L.c. 187 §2..

2 Whether the express easement is “to Sandy Beach” or “to use Sandy Beach” the question will arise as to what portion of the beach is included within the easement. The argument can be made that when back lot owners in a seaside subdivision purchase property with a deeded right to the beach, the express easement carries with it the right to use the beach beyond the width of the way. Klink v. Valovcin, Land Court Misc. Case No. 165039, (1993); see also Commercial Wharf East Condominium Ass'n v. Waterfront Pkg. Corp., 407 Mass. 123, 133 (1990) (when an easement is created, every right necessary for its enjoyment is included by implication). This is addressed by Anderson v. DeVries:

We are dealing with a seashore resort where residents of a summer colony are given access to the beach. . . . There is no express mention of any right to use the beach. . . . A space on the beach no wider than the width of the way would hardly furnish a place adequate for the use and enjoyment of a large number of lot owners and their families . . . . The use of the beach by these lot owners included whatever was reasonably necessary for the full enjoyment of the privilege granted. 326 Mass. 127, 132-33 (1950).

3 This fact could be an element to allege easement by estoppel. Easement by estoppel is a type of implied easement which arises when a grantor conveys land bounded on a street or way. The grantor is estopped from denying the existence of a street or a way that appears of record. Patel v. Planning Bd. of North Andover, 27 Mass.App.Ct. 477 (1989).

4 M.G.L. c 187 § 2 states: 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.

5 Labounty v. Vickers, 352 Mass. 337 (1967) (implied easement based on earlier recorded deeds, plan, and street layout); see also Reagan v. Brissey, 446 Mass. 452 (2006) (developer’s intent to grant implied easement based on physical layout of subdivision and advertising by developer); Rahilly v. Addison, 350 Mass. 660, 661 (1966) (implied easement based on deed, plan, and subsequent use by area residents); Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417, 423 (1922) (implied easement based on conditions existing at time of transaction and subsequent use by residents).

Note: REBA’s Specimen Litigation Forms are models or examples to be used in specific circumstances. Consult applicable law prior to using the forms.

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Sample Answer-Affirmative Defenses

First Affirmative Defense

The plaintiff's complaint fails to state a claim or claims upon which relief can be granted.

Second Affirmative Defense

The plaintiff's complaint does not set forth an actual controversy between the parties within the jurisdiction of this court.

Third Affirmative Defense

While Nulluslocus County Superior Court may have in personam jurisdiction over defendants Robert and Julie Dodge, this Court lacks either quasi in rem or in rem jurisdiction over real property lying in North County. Nulluslocus County Superior Court therefore lacks jurisdiction to grant the relief sought by the Complaint.

Fourth Affirmative Defense

The plaintiff's complaint fails to join one or more indispensable parties as required by c. 231A, §8; Mass.R.Civ.P. 12(b)(7) and 19:

(a) the two mortgage lenders (or their current assignees of record) who hold outstanding mortgages on the subject property ; and,

(b) the Town of Utopia Planning Board, which endorsed the survey plan which the plaintiff is seeking to invalidate (see Sixth Affirmative Defense, set forth below).

Fifth Affirmative Defense

Defendants Robert and Julie Denver cannot be ordered by this Court to commit the tort of waste, or to otherwise act in violation of the terms and conditions of the recorded mortgages on their property, including but not limited to paragraph 6 of their two mortgages, both of which are entitled "Preservation and Maintenance of Property".

Sixth Affirmative Defense

The plaintiff's claims are barred by the doctrine of estoppel.

Seventh Affirmative Defense

The plaintiff's claims are barred by the applicable statute of limitations.

Eighth Affirmative Defense

: The plaintiff's claims are barred by the doctrine of laches.

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Ninth Affirmative Defense

The plaintiff's claims are barred by the doctrine of waiver.

Tenth Affirmative Defense

The plaintiff's claims are barred by the doctrine of "clean hands."

Eleventh Affirmative Defense

The blanket prohibition in the subject Agricultural Preservation Restriction against "the construction and/or placement of one or more dwelling unit(s) on the Premises" violates the mandated statutory exception for "dwellings used for family living by the land owner his immediate family or employees". G.L. c. 132A, §31, paragraph 3.

Twelfth Affirmative Defense

This action should be dismissed as an attempt to perpetrate a fraud upon the Court, in that the plaintiff and its employees and legal counsel have misrepresented facts to the court which they know or have reason to know are untrue. Further, defendant acting by and through its employee Richard Dooley has committed the crime of perjury.

Thirteenth Affirmative Defense

The Plaintiff’s claims are barred by the rule against perpetuities.

Fourteenth Affirmative Defense

The Plaintiff’s claims are barred as they constitute an invalid restraint upon alienation.

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