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Prescriptive Easements On Appellate Review: The Importance of Subsidiary Findings at Trial

On February 8, 2013, the Supreme Judicial Court another land use/real estate decision in White v. Hartigan, 464 Mass. 400 (2013), a case on direct appellate review from the Land Court. At issue in the case (a quiet title action) was whether the plaintiffs owned a fractional interest in a beach located on Martha's Vineyard, or, alternatively, whether they had acquired a prescriptive easement to use the beach and the land leading thereto.

Complicating facts include decades of shoreline erosion which ultimately submerged the portion of beach at issue (which had been created by an 1841 deed). Plaintiffs argued that the deeded rights were "a moveable beach parcel that shifts upland with the northerly migration of the beach." For those that like really old deeds, this case has those too.

The Land Court (Trombly, J.) granted summary judgment in favor of defendants that the plaintiffs did not hold record title to the beach, thereby rejecting their claim of movable interests. The SJC affirmed this portion of the lower court's judgment (and in its decision provides a concise overview of common law principles of littoral rights).

As for the plaintiffs' alternate prescriptive easement claim, which went to trial-a thirteen day trial!-the Land Court (Trombly, J.) decided that they had not met their burden of establishing a prescriptive easement. However, the SJC ruled that the Land Court's findings of fact were insufficient to permit appellate review and remanded the case for further proceedings.

First, the SJC laid out the standard: a lower court's

findings of fact [must] be of sufficient detail [citation omitted] and contain 'as many of the subsidiary facts as are necessary to disclose to the reviewing court the steps by which the trial court reached its ultimate conclusion on each factual issue.'" [citation omitted].

In that vein, the SJC found that each of the three elements of prescriptive easements that the Land Court found to be unsupported by the facts-(1) open and notorious; (2) twenty-year period; and (3) adverse use-could not be analyzed on appellate review because there were no (or insufficient) subsidiary findings at the SJC's disposal, particularly given that the parties had pointed to considerable and contradictory evidence presented at trial that was not ultimately part of the findings of fact supporting the judge's ruling. As the SJC points out, "a bare conclusion without subsidiary findings does not allow for adequate appellate review." For this reason, the SJC remanded the case for further findings of fact.

Now, after more than eight years since the initial complaint was filed in late 2004, the parties are required to head back to the Land Court. What likely complicates matters more is the fact that the presiding Land Court judge at trial, The Honorable Charles W. Trombly, Jr., has since retired from the bench. It is unclear how the remand will play out with another judge. It is highly unlikely that another trial would take place, so it is likely that the new judge will instead proceed by making additional subsidiary findings based solely on the trial transcripts and admitted exhibits.

Could this have been prevented? In other words, was there a mechanism for ensuring a meaningful (and less time consuming) appellate review the first time through? Possibly, with a Mass. R. Civ. P. 52(b) post-judgment motion to amend the findings of fact. Whether such a motion would have been granted here is irrelevant at this stage, but this is the kind of procedural tool that counsel should be aware of in fact-intensive claims, such as prescriptive easement cases, that are likely to go on for appellate review. And perhaps, more to the point, in cases where the trial judge is scheduled to retire (final judgment issued a mere month before Judge Trombly retired).

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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