By Doug Cabral, Martha's Vineyard Times
A court battle, begun in 2004, following the construction of a fence by one wealthy, South Shore neighbor to block beach access to another, also wealthy, who believed access was his by right and title, has spawned a furious, eight-year legal battle that is now before the state Supreme Judicial Court (SJC).
The fight, between successor owners to South Shore beach property that had been passed down through the White and Norton families and to abutting waterfront land sold by members of the Flynn family, was argued on appeal before the SJC on October 4. All the parties to the lawsuit trace their land titles to a “1712 deed from John Butler to Captain Samuel Smith,” according to a brief filed with the SJC by the White side. The White-Norton forces, plaintiff-appellees before the justices, had enjoyed a neighborly accommodation for access from the Flynn owners, but the fence ended that.
The legal action, White v. Kohlberg, pits the Norton and White families and some landowners who bought from Norton-White or family trusts, including Richard L. Friedman, the real estate investor, against a group of three trusts, including the Pohogonet Trust, and 40 property owners, including Andrew and Pamela Kohlberg, children of Jerome Kohlberg, Mr. Kohlberg, owner of the Vineyard Gazette, Mr. Kohlberg’s wife, and Robert Levine, who bought land that had descended from the Flynn family. Mr. Levine built the fence to stymie Mr. Friedman’s access to the barrier beach separating Oyster Pond from the Atlantic.
Lisa Keen, writing for Massachusetts Lawyers Weekly, called the legal battle “a billionaire beach fight.”
Do boundaries move with the sand?
In one sense, the heart of this legal battle has now become a boundary dispute. Over time barrier beaches — beach land that divides the Atlantic Ocean from the shores of Oyster Pond and Job’s Neck Pond is at issue in this lawsuit — shift away from the ocean shore and toward the pond shore, in this case northerly. A combination of erosion on the ocean shore of the beach and accretion of sand – much of it blown over the dunes between ocean and pond – shifts the beach wholesale to the north. What was the edge of the pond shore years, decades, even centuries ago, is now north of where it was, and the surface area of the pond is reduced. The surfaces of great ponds like Oyster Pond are public property, although the moving barrier beach may have been private property. The result of this natural action is that the privately owned land moves north, ultimately occupying what was part of the pond and pond bottom. Or a beach lot, worth maybe $350,000 that was sold as a patch of sand without the upland north of it, now has sand and ocean shore, but the beach lot owners have to trespass to get to their patch of sand.
The Kohlberg side won the first round, in a decision by the Land Court. Mr. Friedman’s side is appealing its defeat in the state Land Court to the SJC. The Land Court sided with Kohlberg that a beach parcel, even one that had some northerly upland, did not have “movable boundaries.” Massachusetts law did not support the concept of movable boundaries, the court held. What were the boundaries when the property was bought remain the boundaries. The Land Court judge held that landowners whose beach property had shifted in this way did not gain any right, title, or interest to the land that had once been pond.
Surveys and title searches done for the defendant Flynn family and its grantees, in support of their side in the Land Court, also found that deeds for some of the parcels referred to actual monuments defining the northerly boundaries of certain parcels, such as fence posts – marking the boundary between a beach lot and the upland north of it. Sometimes the monument was a fence or fence post, or sometimes the monument marked the beginning of what was described as “arable land.”
The final answer, perhaps
Facing the extinction of their ownership rights in land that had shifted its location, including pond shore and ocean beach, the White-Norton-Friedman plaintiffs also asked the SJC to reverse another holding by the Land Court, which had also sided with Kohlberg over access. White-Norton-Friedman claimed that they had a recognized easement, acknowledged and never disputed by Flynns, over former Flynn property to the ocean beach.
“For decades, the Flynns did not question the Nortons’ partial ownership or use of the beach nor did they challenge the Nortons’ ownership in court,” lawyers for White wrote in a brief to the SJC. “In 2004 however, [Robert Levine], who had purchased land and a beach easement from a Flynn family trust, built a fence blocking the Nortons overland access to the beach. The Nortons brought this suit for confirmation of their right to cross over [Levine property].”
But the Land Court held that the Nortons had only a “permissive” not an “adverse” or “prescriptive” right of access, so no record right had passed to White-Norton buyers with their purchases.
A matter of leverage?
Against the possibility of defeat at the state’s highest court, there is pending state legislation pressed by Mr. Friedman and opposed by a group organized for the purpose, called the Great Ponds Coalition and affiliated with the Kohlberg side of the court battle. The coalition is a creature of the Pohogonet Trust. The legislation would amend Massachusetts Chapter 91 to provide that the land created by the shifting of a barrier beach over the shore of a recognized great pond would not be the property of the owner, but instead would be public property, just as the pond it displaced was.
The legislation, House Bill 254, filed in January 2011, languishes in the committee for bills on third readings. Filed bills have a two-year life, unless they are disposed of, so HB254 will need to be refiled in January. A spokesman for the committee said this week there are no plans now for moving the bill before the end of this year.
HB254, the legislation Mr. Friedman had filed, would in some cases, including his own, create a public shore at the northern, or pond, edge of the barrier beach. But, because the land surrounding the pond is privately held, there would be no effective and immediate public access to the beach. Still, because the state may be obliged or pressured to create a public access, the legislation has uncertain, and perhaps threatening, implications for the private holdings around Oyster Pond, including the holdings of the Kohlberg et al litigants. Neither side has an interest in enhanced public access to the barrier beach, according to one person intimate with the views of the litigants.
The Great Ponds Coalition, backed by the Pohogonet Trust, whose trustees are Jeffrey Flynn, Richard B. Keeler, and P.A.Tricia Post, describes its mission on its website thus: “The Great Ponds Coalition was formed in May 2011 to oppose H.254, a measure in the Massachusetts legislature that would transfer private land to the public, reversing centuries of settled property law and potentially costing the state and local communities millions of dollars…
“This one-paragraph bill was filed on behalf of a private landowner [Mr. Friedman] who lost his case in Land Court and is trying to sidestep the legal process through legislative redress. The bill would transfer private barrier beach property that, due to storms or erosion, has shifted onto the bottom of the Great Ponds (any pond or lake of more than 10 acres) to public ownership.
“While at first glance the bill may appear to have a public benefit — create new public beaches — in fact nearly all these barrier beaches are not accessible, and therefore there would be no real benefit to the public.
“The public’s only role in this would be to reimburse private landowners for the land takings — an unimaginable expense for a state grappling with budget constraints.”