A Massachusetts appellate court has ruled for the first time that new land which accretes to registered waterfront land is treated as registered land automatically, without the registered landowner filing additional proceedings.
In Brown v. Kalicki, decided earlier this week, neighbors sought to establish an easement by prescription to use for recreational purposes a beach area that had accreted over decades to registered land in Harwich owned by the plaintiffs. The owners of the registered land were represented by my colleague, Brian Hurley, and me.
As regular readers of this blog know, use of land for a particular purpose for twenty years or more may give rise to an easement by prescription. However, an important advantage of registered land is that, under G.L. c. 185, § 53, it is immune to prescriptive easement claims.
“Accreted” land is new land that gradually and imperceptibly attaches to waterfront property. The parties agreed that, under longstanding law, the accreted beach is owned by the plaintiffs. At issue was whether that new beach was deemed registered without the necessity of the owners filing further, supplemental proceedings. This issue was critical because the parties claiming the prescriptive easement claimed to have used the new beach area for at least twenty years before plaintiffs filed a supplemental registration proceeding.
The Appeals Court held in Brown that “the plaintiffs, whom the [parties claiming the prescriptive easement] 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.”
In reaching that conclusion, the Appeals Court focused on a few key points. The original registration certificate described the land as bounding on Nantucket Sound. This would remain true only if the accreted beach was now part of the registered parcel. The Court also emphasized that waterfront boundaries frequently change as the result of tides and winds, “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.” As a result,
if accreted land is not deemed registered
upon its creation, owners of [waterfront] 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
The Court also rejected the assertion that the public’s limited rights under the Colonial Ordinances to use tidelands for fishing, fowling or navigation had any bearing on the claim to hold private, prescriptive rights to use the beach.
In dissent, Justice Milkey suggested that the majority was confusing ownership of the accreted land with the question of whether it should be deemed registered, a charge that the majority opinion rejected.
A number of recent cases have raised questions about the benefits of having registered land. However, Brown reinforces that, especially when it comes to fighting claims of prescriptive easements, registered land still has its advantages.