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15-P-923 Appeals Court

PETER R. BROWN, trustee,

1 & others2 vs. JAN H. KALICKI & 

another.3

No. 15-P-923.

Suffolk. June 13, 2016. - October 20, 2016.

Present: Cohen, Milkey, & Massing, JJ.

Real Property, Registered land, Littoral property, Certificate 

of title, Easement. Land Court, Registration proceedings.

Adverse Possession and Prescription.

Civil actions commenced in the Land Court Department on 

September 29, 2011.

The cases were heard by Alexander H. Sands, III, J., on a 

motion for summary judgment.

Diane C. Tillotson for the defendants.

Brian M. Hurley for the plaintiffs.

 

1 Of the 7 Davis Lane Trust.

2 Nancy Powers-Ferris and John E. Ferris; and John J. Powers 

and Lauren K. Powers, as trustees of the John J. Powers 

Qualified Personal Residence Trust and the Lauren K. Powers 

Qualified Personal Residence Trust.

3 John Michael Hershey. The Commonwealth and the town of 

Harwich were defendants in the Land Court proceeding but are not 

parties to this appeal.
2

COHEN, J. The plaintiffs are the respective owners of 

three parcels of registered land located at 3, 7, and 11 Davis 

Lane, a private way in the town of Harwich (town). These 

parcels extend in a more or less southerly direction from Davis 

Lane to the shoreline of Nantucket Sound. Over time, the 

shoreline has changed, and the parcels have accreted4 significant 

portions of formerly submerged land. 

On September 29, 2011, the parcel owners filed supplemental 

petitions in the Land Court, seeking to amend their certificates 

of title. Jan H. Kalicki and John Michael Hershey (interveners) 

moved to intervene as defendants, alleging that they had 

acquired prescriptive rights over the accreted land. Upon 

informal consolidation of the cases for decision on the 

plaintiffs' motions for summary judgment, the motion judge 

rejected the objections of the interveners and granted summary 

judgment to the plaintiffs. 

The question for the judge was whether the accreted 

beachfront took on the status of registered land as it formed, 

or whether registered status could be obtained only through 

court proceedings to amend the certificates of title. The 

 

4 "Accretion" has been described as occurring "[w]hen the 

line between water and land bordering thereon is changed by the 

gradual deposit of alluvial soil upon the margin of the water." 

Allen v. Wood, 256 Mass. 343, 349 (1926) (quotation omitted).
3

judge ruled that the accreted beachfront automatically became 

registered, and, therefore, was protected from the interveners' 

claims that they have a prescriptive easement to use the beach 

area on the plaintiffs' land. Applying well-established 

standards of review,5 we affirm.

Background. The material facts are not in dispute. The 

land comprising the plaintiffs' parcels was registered in the 

1920's and 1930's.

6 Under the terms of each certificate of 

title, "[a]ll of said boundaries, except the water lines, are 

determined by the Court to be located as shown on" the 

associated Land Court plan. Each of the registration plans

shows and identifies the southern boundary of the subject parcel 

as "Nantucket Sound." 

In the decades following the registration proceedings, the 

size of the parcels grew substantially as a result of accretion.

For example, a 2011 plan shows that since 1943, the waterfront 

 

5 "The allowance of a motion for summary judgment is 

reviewed de novo. The standard of review of a grant of summary 

judgment is whether, viewing the evidence in the light most 

favorable to the nonmoving party, all material facts have been 

established and the moving party is entitled to judgment as a 

matter of law." White v. Hartigan, 464 Mass. 400, 406 (2013) 

(citations and quotations omitted).

6 There were three initial registration proceedings, in 

1923, 1933, and 1939. However, two of the parcels were merged 

and later subdivided along a different boundary. Thus, the 

original registration proceedings do not correspond exactly with 

the parcels in their current configuration.
4

boundaries of the two easternmost parcels had extended seaward 

some 347 to 358 feet. The interveners took the position that 

the accretion resulted, at least in part, from the erection of a 

jetty by the town; however, as the judge noted in his decision, 

this claim was never litigated. Regardless, the judge ruled 

(and it is not disputed) that even if the jetty contributed to 

the accretion, a littoral owner ordinarily will still acquire 

ownership of accreted land that is created with human 

intervention so long as it was not caused by the owner himself. 

See Lorusso v. Acapesket Improvement Assn., 408 Mass. 772, 780 

(1990).

7

The plaintiffs appended to their supplemental petitions 

proposed plans depicting extended sidelines through the accreted 

land, as well as the approximate mean high and low water marks 

at the parcels' boundaries with Nantucket Sound. According to 

representations made in the plaintiffs' brief and at oral 

argument before this court, their purpose in filing the 

 

7 The general rule is that "[t]he line of ownership [of 

littoral property] follows the changing water line." White v. 

Hartigan, 464 Mass. at 407, quoting from East Boston Co. v. 

Commonwealth, 203 Mass. 68, 75 (1909). However, there are two 

recognized exceptions. The owner may not be entitled to the 

accreted land if the owner caused the accumulations, see

Michaelson v. Silver Beach Improvement Assn., Inc., 342 Mass. 

251, 254 (1961); and, if the accretions were created by the 

government as a necessary aid to navigation, they belong to the 

government. Lorusso v. Acapesket Improvement Assn., 408 Mass. 

at 780. Neither of these exceptions is applicable here.
5

supplemental petitions was to establish the parcels' extended 

sidelines and thereby resolve any questions between abutting 

landowners as to their respective ownership rights in the 

accreted land. See Lorusso v. Acapesket Improvement Assn., 

supra at 780-781. Whatever their objectives, however, we draw 

no inference from the fact that the plaintiffs initiated 

proceedings to amend their certificates of title.

A court-appointed title examiner filed a report on March 

23, 2012, and citations issued. The Commonwealth and the town 

both filed objections, but they later resolved their concerns 

and withdrew them.

8 Meanwhile, local residents, including 

Kalicki and Hershey, were permitted to intervene as defendants9

and filed their own objections. 

The interveners did not dispute that the plaintiffs own the 

accreted, previously submerged land by operation of law. See 

 

8 The Commonwealth withdrew its objections after the 

execution of stipulations with each of the plaintiffs that any 

decree would reflect that the area between the mean high water 

mark and mean low water mark would be subject to the rights of 

the public. The town withdrew its objections after entering 

into a settlement agreement with the plaintiffs regarding, inter 

alia: the boundary between the easternmost of the subject 

parcels and a town-owned beach, the relocation of a town-owned

path to the beach, and the installation of fencing and signs. 

The agreement also set out contingencies for easements that 

would be established if the town conservation commission failed 

to approve the settlement, or if its approval was overturned on 

appeal.

9 Kalicki intervened in all three cases; Hershey intervened 

in two.
6

note 7, supra. Nonetheless, they claimed that they had acquired 

prescriptive easements to use the parcels' beach area. The 

easternmost of the plaintiffs' parcels, situated at 11 Davis 

Lane, abuts the town-owned Bank Street beach. Where Davis Lane 

is met from the north by a town way, Bay View Road, there is a 

town-owned path extending seaward along the edge of the townowned beach adjacent to the 11 Davis Way parcel. The 

interveners alleged that for decades they and their predecessors 

had used the town-owned path to gain access to the plaintiffs' 

parcels, and that they had engaged in continuous, open, and 

notorious adverse use of the parcels' beach area. See Boothroyd

v. Bogartz, 68 Mass. App. Ct. 40, 46 (2007). 

Without conceding the facts underlying the interveners' 

claims, the plaintiffs argued on summary judgment that the

claims failed as matter of law, because -- by statute -- one 

cannot obtain prescriptive rights in registered land, see G. L.

c. 185, § 53, and the accreted beachfront was protected by the 

existing registrations. The interveners countered that the 

previously submerged accreted land was not registered land when 

their prescriptive rights accrued, and could not become 

registered land until the parcels' certificates of title were 

amended. The judge agreed with the plaintiffs, finding "that 

the accreted land automatically became a part of the registered 

land as it was formed," and judgment entered for the plaintiffs.
7

Discussion. The specific issue presented -- whether 

accretions to registered littoral land automatically acquire 

registered status at the time of their creation -- has not been 

decided by the appellate courts. However, in 1989, a different 

judge of the Land Court (Fenton, J.) confronted the issue in

Lorusso vs. Acapesket Improvement Assn., Inc. (Land Court 

No. 314-S, March 24, 1989).

10 The motion judge in the present 

case relied largely on the rationale of the earlier Land Court

judge, which can be summarized briefly as follows.

Littoral boundaries "frequently change, 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." Ibid. Thus, if accreted land is not deemed registered 

upon its creation, owners of littoral 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 

indefeasible.'" Ibid., quoting from Michaelson v. Silver Beach 

 

10 When the case reached the Supreme Judicial Court, the 

only question presented was whether the defendant, whose 

property (a sand bar) had eroded away, was entitled to an 

equitable share of accretions to the plaintiff's beachfront 

property; the issue of automatic registration of accreted land 

was not appealed. See Lorusso v. Acapesket Improvement Assn., 

Inc., 408 Mass. at 773.
8

Improvement Assn., Inc., 342 Mass. 251, 260 (1961). 

Automatically endowing the accreted land with registered status 

also counterbalances the downside of owning registered littoral 

property, namely, that despite the protections afforded by 

registration, the landowner still bears the risk of losing all 

rights to any land that erodes away. See ibid.

We find this reasoning compelling, at least in the 

circumstances of the present case. Here, the interveners are 

not adjacent beachfront owners with their own rights in the 

accretions, and their claims relate only to the use of the 

expanded beach area at the shore of Nantucket Sound. As between 

adjacent beachfront owners, questions of ownership, not to 

mention registration, may need to be determined in court. As

the Supreme Judicial Court explained, "[t]he rule that the owner 

of littoral land gains ownership of accretions to his land is 

subject to, and modified by, the further rule that, when two or 

more littoral owners have rights to simultaneously formed 

accretions, the rights of the owners in the accretions are to be 

determined by the doctrine of equitable division." Lorusso v. 

Acapesket Improvement Assn., Inc., 408 Mass. at 780-781. "[T]he 

object of apportioning simultaneous accretions among lots of 

littoral land is to give each owner the same proportion of the 

new waterfront that he would have had if the accretions had 

never occurred." Id. at 781. Thus, depending upon the vagaries 
9

of the accretion, court proceedings to establish sideline 

boundaries and to amend the certificates of title may well be 

necessary and prudent. 

Here, however, the waterfront boundary is the determinative

factor, and it presents no uncertainty. No amendment to the 

prior registrations is necessary to establish definitively that 

the parcels remain bounded on the south by Nantucket Sound, as 

stated in the original certificates of title. In these 

circumstances, the plaintiffs, whom the interveners 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.

Although the interveners emphasize that the amount of 

accretion is substantial, that fact is irrelevant. As the 

motion judge explained, even though the plaintiffs could not 

have contemplated how much land would accrete to their property 

when they purchased or registered their parcels, the same can be 

said about any owner of littoral land. No such owner can 

predict whether or by how much their property will grow or 

recede, or how frequently or suddenly the shoreline will change 

one way or the other. What is relevant here is that the parcels 

have remained bounded by the sea, as stated in the original 

certificates of title. 
10

This analysis does not conflate ownership and registration, 

as the dissent suggests, nor does it undermine the purposes of 

the registration system. It simply recognizes that there are 

sound reasons to extend the protections afforded by the 

registration system to accretions to registered land and thereby 

foreclose claims of prescriptive rights by individuals with no 

shared ownership interest in those accretions.

The interveners' final point is that the importance of 

public rights militates against conferring registered status

automatically upon accreted land. We see no reason why that 

should be the case. When land has accreted, the public retains 

its access and rights to the tidelands wherever they exist, and 

may fish, fowl, or navigate in those tidelands as established by 

the Colonial Ordinance of 1641-1647. See Pazolt v. Director of 

the Div. of Marine Fisheries, 417 Mass. 565, 571 (1994). See 

also Michaelson v. Silver Beach Improvement Assn., Inc., 342 

Mass. at 261. In Michaelson, the Commonwealth had caused 

accretion to registered land by dredging and pumping sand from 

the floor of the harbor. Id. at 252 The court concluded that 

because the landowners did not cause the accretion, the law 

applicable to natural accretions should govern. Thus, the 

landowners had title to the newly created beach, and the public 

had no right to use it, except as to the portion between the 
11

high and low water mark, for the purposes of navigation, 

fishing, and fowling. Id. at 261. The result is the same here.

To the extent that the interveners suggest, by analogy to 

Arno v. Commonwealth, 457 Mass. 434 (2010), that the public may 

have additional rights in land that once was Commonwealth 

tidelands, they have no standing to raise the issue. See 

Attorney Gen. v. Williams, 174 Mass. 476, 483 (1899); Wellfleet

v. Glaze, 403 Mass. 79, 88 (1988) (Wilkins, J., concurring). 

Notably, those charged with protecting public rights -- the

Commonwealth and the town -- have resolved their concerns and 

withdrawn their objections, as discussed above. See note 8,

supra. 

Conclusion. The accreted beach area on the plaintiffs' 

parcels is entitled to the protection afforded by registration 

and is not subject to the prescriptive easement claims alleged 

by the interveners. Accordingly, the judgment of the Land Court 

is affirmed.

So ordered.
MILKEY, J. (dissenting). The interveners claim that 

through many decades of open, adverse use, they obtained 

prescriptive easements in a particular beach area. That beach 

area did not exist at the time that the parcels now owned by the 

plaintiffs were registered. Nor has it since then, until now, 

been the subject of any supplemental registration proceeding. 

Nevertheless, the majority concludes that the beach area should 

be treated as if it automatically had become registered land as 

it was being formed.1 Because that conclusion is unsupported by 

the language of the registration statute and inconsistent with 

the essential nature of registered land, I respectfully dissent.

As an initial matter, I note what makes registered land 

distinct from other property. Under the ordinary system in 

which title to land is memorialized, county registries of deeds 

serve as public repositories in which private deed transfers are 

recorded. In each such deed, the property at issue is typically 

described by means of a metes and bounds description. The 

validity of the title held by a person claiming ownership of a 

parcel of land can be tested and verified only by means of a 

 

1 In ruling that accreted land becomes registered as it is 

formed, the Land Court judge characterized this as "automatic 

registration." Although that moniker aptly describes what the 

judge had in mind, "automatic registration" is an oxymoron. As 

explained below, particular land depicted on plans maintained by 

the Land Court becomes registered only through an in rem process 

that adjudicates the rights of the world to such land.
2

search of prior registry records, following a chain of title to 

a source deed. As the Supreme Judicial Court has observed, the 

problem with the ordinary system of recording deeds is that "no 

one can be absolutely certain whether he is buying a good title 

or a bad one." Kozdras v. Land/Vest Properties, Inc., 382 Mass. 

34, 44 (1980), quoting from Hurd, Exposition of the Torrens 

System of Registration of Title, An Essay, in The Torrens System 

of Registration and Transfer of the Title to Real Estate 88-89

(Yeakle ed. 1894).2

To get rid of that uncertainty and "all the expense, 

trouble and delay that attend running the title back through 

previous transfers," the Legislature developed an alternative 

way of recording title. Ibid., quoting from Hurd, supra. 

Specifically, in 1898, the Legislature created a registration 

system based on one implemented in Australia by Sir Robert 

 

2 The following sources provide useful background to the 

history of, and the procedures employed by, the land 

registration system: Land Court Guidelines on Registered Land 

§ 18 (Feb. 27, 2009); Land Court Manual of Instructions for the 

Survey of Lands and Preparation of Plans § 1.5 (Sept. 23, 2005); 

Buscher, Jr., The Nature and Evolution of Title (Mar. 4, 2003), 

available on the Land Court's own web site at 

http://www.mass.gov/courts/court-info/trial-court/lc/lc-titlegen.html [https://perma.cc/Q779-KV88]; 2 Crocker's Notes on 

Common Forms § 1124 (Mass. Cont. Legal Educ. 10th ed. 2016); 

Buscher, Jr., One Hundred Years in the Law of the Land: A 

Retrospective of the Work of the Land Court Department of the 

Trial Court on the Occasion of its One-Hundredth Anniversary, 5 

Mass. Legal Hist. 67, 73 (1999); and Turner, Land Title 

Registration in Massachusetts, 33 Am. L. Rev. 42 (1899).
3

Torrens. St. 1898, c. 562. See McQuesten v. Commonwealth, 198 

Mass. 172, 177 (1908). Under this alternative system, parcels 

are surveyed and plotted with precision on plans maintained by a 

specialized court (originally known as the Court of 

Registration, later renamed the Land Court). After a courtappointed title examiner conducts an extensive investigation 

into the title of the depicted tract, and appropriate notice is 

provided to potentially interested parties, the court holds an 

in rem proceeding to adjudicate title to the property.3 That 

adjudication results in a certificate of title that establishes 

the rights of the world to that particular tract.4 See Tyler v. 

Judges of the Court of Registration, 175 Mass. 71, 73-74, aff'd, 

179 U.S. 405 (1900). Holders of that certificate of title take 

the registered land encompassed by the certificate "free from 

all encumbrances except those noted on the certificate," subject 

to certain exceptions not applicable here. G. L. c. 185, § 46, 

as appearing in St. 1981, c. 658, § 26.

 

3 The Supreme Judicial Court long ago established that land 

registration is an in rem proceeding even though the property 

itself is not named as a party. See Tyler v. Judges of the 

Court of Registration, 175 Mass. 71, 76-77 (Holmes, C.J.), 

aff'd, 179 U.S. 405 (1900).

4 As one commentator has summarized the essence of the 

registration system: "the Commonwealth itself, through the 

court system, declares and guarantees the state of ownership of 

particular parcels, any interests existing in them and keeps an 

authoritative map of these lands." The Nature and Evolution of 

Title, supra.
4

By virtue of the survey and resulting plan prepared through 

the registration process, both the title and precise boundaries 

of the registered land evidenced by a certificate of title are 

verified and defined with precision. Through examining the 

certificate of title for a parcel of land, together with the 

corresponding plan maintained by the Land Court, one readily can 

determine with exactitude the identity of the registered owner, 

the precise boundaries, and the rights and encumbrances 

affecting the land. Pursuant to G. L. c. 185, § 115, a property 

owner can seek to amend an existing certificate of title by 

filing a supplemental petition for registration, commonly known 

as an "S-petition." See, e.g., Arno v. Commonwealth, 457 Mass. 

434, 441 (2010).

The beach area at issue in this case was formed by 

accretion. In light of well-established case law applicable to 

such land,5 the interveners do not question that the plaintiffs

 

5 See White v. Hartigan, 464 Mass. 400, 407 (2013), and 

cases cited. As the majority accurately notes, a littoral owner 

is not entitled to accreted land in some circumstances. See 

Michaelson v. Silver Beach Improvement Assn., Inc., 342 Mass. 

251, 254 (1961) (recognizing that littoral owner may not be 

entitled to accreted land if accumulations were "caused by the 

littoral owner himself"); Lorusso v. Acapesket Improvement 

Assn., 408 Mass. 772, 780 (1990) ("accretions . . . created by 

[the] government as a necessary aid to navigation . . . belong 

to the government"). While the interveners do not claim that 

such circumstances are present here, the fact remains that there 

will have been no adjudication of title to the accreted land 

until the S-petition proceeding has concluded.
5

acquired title to their respective shares of this area by 

operation of law, subject to determination of the particular 

boundaries of each parcel by operation of governing principles.6 

However, the interveners' concession that the plaintiffs

collectively acquired title to the relevant portion of the beach 

area does not mean this land therefore is registered property. 

Simply put, a claim of title to an undetermined portion of 

accreted land does not equate to registration of the title so 

acquired. Instead, until the precise boundaries are adjudicated 

and the certificate of title and plans amended to establish the 

plaintiffs' rights as against the world, title to the accreted 

property remains unregistered. See, e.g., Hurd, Exposition of 

 

6 Drawing the sideline boundaries that will separate each 

littoral owner's share of the accreted land is far from a 

ministerial act. In 1990, the Supreme Judicial Court reiterated 

the traditional rule that "the rights of the owners [bordering 

on accreted land] are to be determined by equitable division, 

the object of which is to give each parcel the same proportion 

of waterfront as it would have had if the accretions had not 

occurred." Lorusso v. Acapesket Improvement Assn., 408 Mass. at

782. See Allen v. Wood, 256 Mass. 343, 350-351 (1926). Because 

the shape of the coastline typically changes as a result of the 

accretions, applying the rule of "equitable division" means that 

one cannot simply extend existing sidelines in a straight line 

from their intersection with the old waterline to intersect with 

the new waterline. Instead, as the plans the plaintiffs

submitted in the case before us well illustrate, the existing 

sidelines would have to be extended at a pronounced angle. The 

Land Court has developed surveying protocols on how to draw such 

boundaries with respect to registered land. See Land Court 

Manual of Instructions, supra, at §§ 1.5, 2.1.2, 2.1.4.5, 2.3, 

3.2.2. See also Lorusso, supra at 781 (recognizing that rule of 

"equitable division" of accreted lands can be informed by "a 

positive prescribed rule" [quotation omitted]).
6

the Torrens System, An Essay, in The Torrens System of 

Registration and Transfer of the Title to Real Estate at 92-93 

("To give [a parcel] . . . an immediate effect [of registration] 

would be to cut off vested rights in a manner to which the 

possessor has not given his consent"). In other words, it is 

the S-petition proceeding that will establish the plaintiffs'

rights on the ground as to particular portions of such land. 

The majority, like the Land Court judge, conflates the question 

of title with that of registration. Because the essence of land 

registration is that property identified with geographical 

particularity has been subjected to an in rem proceeding, then, 

by definition, land can become registered land only if it has 

been subjected to such a proceeding.7

Applying that definitional principle to the facts of this 

case is straightforward. It is undisputed that the current

beach area was not owned by the plaintiffs' predecessors-intitle at the time of the original registration proceedings. 

 

7 The majority acknowledges that each plaintiff's specific 

portion of the beach area will be established through the 

current registration proceeding. It necessarily follows that 

each plaintiff's portion cannot be considered as having already 

become registered land with respect to the other plaintiffs and 

abutters. The majority nevertheless contends that the beach 

area still can be considered registered land with respect to the 

interveners. This ignores the fact that registration is an in 

rem proceeding that determines the rights of the world to a 

particular tract of land. The idea that land can be registered 

with respect to some parties, but not to others, is 

insupportable.
7

Instead, such land at that time indisputably was submerged land 

owned by the Commonwealth. As a result, the beach area was not 

part of the original registration proceedings, and cannot be 

said to be encompassed within the original certificates of 

title. Nor, up until now, have there been any supplemental 

registration proceedings adjudicating ownership of the beach 

area. The plaintiffs brought the current action to accomplish 

that very end: to amend their certificates of title to 

establish their title to a share of the accreted land and the 

boundaries thereto. Only at the point the beach area has been 

brought into the registered land system will it be subject to 

the protections enjoyed by registered property, including 

protection against the accrual of prescriptive rights pursuant 

to G. L. c. 185, § 53. See Batchelder v. Planning Bd. of 

Yarmouth, 31 Mass. App. Ct. 104, 108 (1991) (state of title does 

not change until registration proceeding is complete). 

On what basis, then, does the majority purport to treat the 

beach area as having become registered without its having been 

subjected to the registration process? In short, the majority 

appears to accept the judge's assessment that it would be unfair 

and unwise to require owners of littoral land to pursue Spetitions if they wanted any accreted land to be registered. 

In the words of the Land Court judge: 
8

"To hold that accreted land could not automatically 

become registered would create a heavy burden on littoral 

owners. Property owners would not only need to closely 

monitor their changing water lines but would also have to 

bear the cost of having to update their certificates of 

title regularly. Failure to periodically update their 

registration would create the constant need to protect 

their property line from being claimed by outside parties, 

despite its initial registration. This is contrary to the 

purpose of the registration system, to make titles certain 

and indefeasible . . . and would make the registration of 

littoral properties less meaningful than the registration 

of landlocked parcels [quotation omitted]."

There are numerous problems with such reasoning. First, it is 

not self-evident what unfairness lies in requiring owners of 

registered littoral land to file an S-petition if they want 

their portion of any accreted land to be brought within the 

registration system and reflected on their certificate of title. 

In addition, contrary to the judge's suggestion that frequent Spetitions would need to be filed, an owner of littoral land 

subject to accretion could seek full protection from any claims 

of prescription by updating the certificate of title at twentyyear intervals (the time period necessary for any claim for a 

prescriptive easement to accrue).8 Requiring such owners to 

initiate an S-petition in this manner in order to obtain the 

full benefits of the registered land system for new accretions 

hardly seems unfair. Indeed, it simply treats such owners the 

 

8 See G. L. c. 187, § 2 ("No person shall acquire by adverse 

use or enjoyment a right or privilege of way or other easement 

from, in, upon or over the land of another, unless such use or 

enjoyment is continued uninterruptedly for twenty years").
9

same as all other owners of recorded (that is, nonregistered)

accreted land.9

Moreover, the reasoning of the judge, endorsed by the 

majority, rests on a logical fallacy: we should treat land as 

registered, even though it is not, because doing so would serve 

the goals of the registration system (increased certainty). In 

addition, allowing "automatic registration" of land that is 

accreting actually decreases certainty. As noted, one of the 

central attributes of the land registration system is that one 

 

9 Because owners of registered littoral land would need to 

update their certificates of registration periodically in order 

to take full advantage of the registered land system, there is 

perhaps some truth to the judge's characterization that this 

"would make the registration of littoral properties less 

meaningful than the registration of landlocked parcels." But 

that result is simply the product of the mutable nature of 

littoral land and the landowners' good fortune that their land 

is expanding.

Of course, as oft has been observed, owners of littoral 

land also can lose their property to the sea, e.g., through 

erosion. That coastal boundaries are subject to the whims of 

the sea in both directions presents an equitable reason 

underlying the common law principle that title to littoral land 

generally moves with the waterline. See White v. Hartigan, 464 

Mass. at 407 (recognizing "the equitable principle that a 

property owner who enjoys the benefit of an increase in property 

when waterlines shift seaward ought also to bear the burden of a 

decrease in property when waterlines shift landward"). However, 

such considerations have nothing to do with the separate 

question whether any accreted land automatically should be 

considered registered as it is formed. The Land Court judge's 

reasoning that "allowing the automatic registration of 

accretions provides a balance to the burden faced by owners of 

registered littoral property" again conflates title with 

registration.
10

can determine the existence and geographical extent of 

registered land from mere examination of the certificate of 

title and its corresponding plan on file with the Land Court. 

Automatic registration of accreted land is at odds with such 

certainty, because the boundaries of the land reflected on the 

certificate of title and corresponding plan will be inconsistent 

with conditions on the ground (to the extent of any accreted 

lands that have not yet been the subject of an S-petition).10 

And, as observed above, the determination of boundaries of 

accreted land is not without some difficulty, subtlety, and 

uncertainty. See note 6, supra.

The Land Court judge's additional suggestion that automatic 

registration is needed to "preserve the water-abutting nature of 

littoral property" is, at a minimum, overstated. Given the 

nature of littoral land, any claim of a prescriptive easement 

will be extremely difficult to prove (and a successful claim of

 

10 Of course, had the interveners examined the plaintiffs'

existing certificates of title, they could have determined that 

the plaintiffs' property extended to the sea and therefore would 

have known that the beach area was not theirs. But this is 

doubly irrelevant. First, the interveners presumably could have 

determined that the plaintiffs owned to the sea regardless of 

whether any of their parcels had been registered. Second, a 

claim for a prescriptive easement turns on the nature and 

duration of the trespasser's use, not the state of his knowledge 

of who owns the underlying fee. See White v. Hartigan, 464 

Mass. at 416-419 (discussing elements of prescriptive easement 

claim over eroded land).
11

actual adverse possession even harder).11 In any event, going 

forward, owners of registered littoral land, just like owners of

recorded littoral land, have many means available to prevent 

such claims from accruing. Those means include what the 

plaintiffs did here: petitioning to have the accreted land made 

part of the registered land system.

None of this is to suggest that the Legislature would lack 

the power to favor the interests of the owners of registered 

littoral land over those of others in the manner that the 

plaintiffs desire (and the majority has endorsed). However, 

nothing in the language or structure of the registration statute 

suggests that the Legislature has made such a policy choice.12 

Until it does, we are instructed not to read into that act 

provisions that are not there. Hickey v. Pathway Assn., 472 

Mass. 735, 755 (2015) (except as expressly provided by land 

 

11 Counsel for the parties, both experienced Land Court 

practitioners, were unaware of any other registration case since 

1989 that raised the subject matter of the current case (the 

intersection of the law of registered land and the law of 

accretion). Independent research has not uncovered any.

12 Of course, many different potential policy choices are 

available with respect to how accreted land should be treated in 

a Torrens system. In the only example of which I am aware that 

a State has addressed the issue by statute, one who petitions 

for registration of accreted land bears the burden of proving 

"that the accretion has been in existence for at least twenty 

years." See In re Bernard Rudolph Banning to Register & Confirm 

Title to Land Situate in the Dist. of Koolaupoko, 73 Haw. 297, 

302 (1992), quoting from HRS § 501-33.
12

registration act, "registered land is to be treated in the same 

manner, and according to the same legal doctrines, that apply to 

recorded land"). See Williams Bros., Inc. of Marshfield v. 

Peck, 81 Mass. App. Ct. 682, 686 (2012) ("Absent specific 

language, we will not presume legislative intent and will not 

read the [registration] statute to override the common law"). 

See also G. L. c. 185, § 77 (the act does not "change or affect 

in any way any other rights or liabilities created by law and 

applicable to unregistered land").13

In sum, by definition, land cannot become registered until 

it has been the subject of an in rem registration proceeding. 

The majority's holding that the beach area here became immunized 

from any claims of prescriptive easements decades before it was 

the subject of such a proceeding is, in my view, untenable. I 

therefore respectfully dissent.

 

13 I agree with the majority's final point that the 

interveners' claims are not aided by any efforts to invoke the 

rights of the public. However, their claim that the beach area 

is not currently registered land is in no way dependent on such 

efforts.