Loiselle v. Hickey concerns a large subdivision in Dennis with a number of ways leading to Cape Cod Bay. An earlier case between many of the same parties established that the inland lot owners had easement rights in all of those ways. In Loiselle, many of the same the inland lot owners argued that they also had the right to use the private beach between those ways for recreational purposes.
The Appeals Court rejected that claim. While the decision does not break new legal ground, it does serve as a helpful review of the basic legal principles governing waterfront land.
The Appeals Court first relied on the well settled rule that the owner of land adjacent to the sea is presumed to own to the lesser of the low water mark or 1,650 feet below the high water mark. Only by expressly excluding the land below the high water mark can a deed sever title to the flats (the beach between the low and high water marks) from title to the upland above the high water mark.
The Appeals Court then turned to another well established rule: when a deed or certificate of title describes land as running by a body of water (for example, “by the waters of Cape Cod Bay”), there is no severance and title is conveyed to the low water mark.
The Appeals Court next observed that the developers had created separate beach lots elsewhere in the subdivision. In contrast, the Hickeys’ lot and nearby shorefront lots are shown on the subdivision plan as extending to to the water, with no intervening lot. Relying on these facts and principles, the Appeals Court concluded that the original subdivision developers had not retained any part of the defendants’ subdivision lots in order to grant beach easements to the inland lot owners. Instead, the Hickeys and other waterfront defendants own the flats.
Other cases finding implicit beach rights involve deeds or certificates of title that provide expressly for access to the beach and a right to use the beach for recreational activities. Here, although the certificates of title of many of the inland lot owners’ reference rights to use the ways to the water, none reference a right to use the beach. As a result, the Appeals Court held that inland lot owners hold no rights to use the privately owned beach between the ways.
Beach access is valuable, both financially and emotionally, and it is virtually guaranteed that beach access will continue to be the subject of litigation. The Loiselle decision should provide guidance to future parties.