Client Success

Nutter represents shorefront owners in litigation on Cape Cod.

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Situation with Client: Nutter defended several shorefront owners on Cape Cod in litigation concerning easement rights. The case, Loiselle v. Hickey, involved a large subdivision in Dennis with several ways leading to the waters of Cape Cod Bay. In an earlier case involving many of the same parties, the Supreme Judicial Court (SJC) had held that the inland lot owners had easement rights in those ways. In this case, many of the same inland lot owners initiated a further suit in the Massachusetts Land Court, seeking declarations that: i) the original developers of the subdivision intentionally severed the flats and, therefore, the shorefront owners did not own the land lying between mean high and mean low water; and ii) even if title to the disputed flats was not severed from the upland, title to the inland lots included easement rights not only to use the ways to get to the water, but also to use the disputed flats for beach purposes, not just for the public purposes of fishing, fowling and navigation permitted under the Colonial Ordinances of 1641-1644.  

Action We Took: On summary judgment, the Land Court applied the basic principles governing the interpretation of deeds that their meaning is to be derived primarily from the language used in the instrument, and that attendant circumstances are only to be used only when necessary (i.e., when the language used is vague or ambiguous). After an exhaustive review of the instruments of the original conveyances, Nutter argued that the original developers conveyed the disputed flats in the source deeds for our clients’ waterfront lots and reserved no rights for the inland owners in those flats, beyond those of the public under the Colonial Ordinances. The Land Court agreed, and summary judgment entered for Nutter’s clients.

The plaintiffs then filed for direct appellate review with the SJC and, after Nutter and counsel for the other defendants filed their respective oppositions, the SJC denied those applications. The plaintiffs thereafter appealed to the Massachusetts Appeals Court. In its decision, the Appeals Court agreed that the original developers did not reserve beach rights for the inland owners and further confirmed that the shorefront owners owned their land out to the mean low water line. In response, all of the plaintiffs applied for further appellate review. 

Result: Nutter again opposed the applications on behalf of the shorefront owners, and the SJC denied the FAR applications, thus ending the dispute.

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