Christopher Vaccaro

Cape Cod beaches are delightful attractions, but every summer brings heated arguments between shoreline owners and their inland neighbors over private beach access. The Appeals Court issued three decisions this summer involving an ongoing beach dispute in Dennis. 

Brian and Mary Hickey own a home on Cape Cod Bay, abutting a right of way to the shore. Their property lies in a sprawling subdivision plotted generations ago. A riprap protects their beach from erosion. The Hickeys and other shoreline abutters claimed to own the way, and resented their inland neighbors using it. 

The properties belonging to the Hickeys and their neighbors are registered with the Land Court.  Registered land differs from unregistered land in several ways. For example, owners of registered land hold certificates of title listing easements, restrictions and mortgages encumbering their properties. In general, unless an encumbrance is listed on the certificate of title, it does not burden registered land. 

The Hickeys’ certificate of title listed no easement rights over the way as encumbrances. They sued 70 of their inland neighbors in 2009 to block use of the way, arguing that their inland neighbors had no rights to it. In 2015, the Supreme Judicial Court ruled in favor of the inland owners, holding that the Hickeys did not own the way, and the inland owners’ certificates of title and related plans established their easement rights. 

More lawsuits followed in 2016. To effectively use the way, the inland owners needed to pass over the riprap. They sought permission from the Dennis building inspector and conservation commission to build a footbridge. The building inspector determined that a building permit was unnecessary, and the conservation commission issued a wetlands permit for the footbridge. 

The Hickeys responded with two lawsuits. Their first lawsuit, against the Dennis zoning board of appeals, asserted that the footbridge required a building permit. The second lawsuit, against the conservation commission, challenged the wetlands permit. 

Meanwhile, the inland owners filed their own lawsuit against the Hickeys and other shoreline owners, claiming rights to enjoy the private beach for all normal beach purposes. The shoreline owners counterclaimed that the inland owners’ rights were limited to fishing, fowling and navigation under the Colonial Ordinance of 1641-1647. 

17th-Century Ordinance Protects Private Ownership 

An aside about the Colonial Ordinance is warranted. The Mayflower carried more than Pilgrims to America in 1620. It also brought English common law, which limited coastal property ownership to the high-tide mark. The seaward intertidal zone was considered public land. To promote wharf construction and maritime industries, the Massachusetts colonial government adopted the Colonial Ordinance of 1641-1647, extending private waterfront ownership to the low tide mark (but not beyond 1,650 feet). 

The Colonial Ordinance reserved public rights to the intertidal zone only for fishing, fowling and navigation. To this day, the public may not use the intertidal zone on private beaches for general access or recreation, resulting in persistent antagonism, between private beach owners and wayward members of the public, especially during summer months. 

Regarding the inland owners’ footbridge, the Land Court dismissed the Hickeys’ lawsuit against the zoning board on a technicality – the Hickeys had not separately notified the town clerk of the suit. The Appeals Court overturned that decision last June, because although the town clerk did not receive separate notice, the town planner had given the town clerk sufficient notice of the suit. The Appeals Court reinstated the Hickeys’ suit on whether the footbridge requires a building permit. 

The Hickeys’ suit against the conservation commission was less successful. The Appeals Court ruled in July that the Hickeys had no standing to appeal the wetlands permit for the footbridge, because their grievances focused on beach access, not wetlands protection. 

Of the three lawsuits, the most significant was the inland owners’ suit to use the private beach for all normal beach purposes, free from the Colonial Ordinance’s restrictions. The shoreline owners prevailed here. The Appeals Court ruled that although the inland owners may use the way to access the water, the relevant Land Court certificates of title did not give them rights to use the shoreline owners’ private beach for general purposes. The inland owners may only use that private beach as permitted under the Colonial Ordinance; namely, for fishing, fowling and navigation. 

Despite this setback, all is not lost for the inland owners. More likely than not, they can eventually build their footbridge. But if they want to relax with a picnic cooler and some light reading on the Hickeys’ private beach, they also should be holding a fishing rod or shotgun, or be sitting in a kayak. 

 Christopher R. Vaccaro is a partner at Dalton & Finegold in Andover. His email address is cvaccaro@dfllp.com.