NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-765

KEITH R. BARNETT, trustee,1 & others2

vs.

MICHAEL D. MYEROW, trustee,3 & others.4

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from a Land Court judgment following

the third trial in a case initiated nearly two decades ago 

seeking to quiet title to a beach in Edgartown. The plaintiffs' 

claims asserting ownership interests in the beach and certain 

1 Of the Oyster Pond EP Trust.

2 Richard L. Friedman; Allen W. Norton, Judith Norton, and 

Melissa Norton Vincent, trustees of the Quiet Oaks Realty Trust; 

Albert White, Toni White Hanover, and Shauna White Smith, 

individually and as trustees of the Quampacky Trust; Mark B. 

Norton; Debra White Scott; and Lisa White.

3 Of the Botar Realty Trust, Rabor Realty Trust, and Tarob 

Realty Trust.

4 Short Point Holdings, LLC; Patricia C. Post, Jeffrey B. 

Flynn, and Richard B. Keeler, trustees of the Pohogonot Trust, 

interveners; Pamela Kohlberg, trustee of Job's Neck Trust, 

intervener; and Andrew Kohlberg, trustee of High Road Trust, 

intervener.
2

rights of way leading to the beach have already been resolved 

against them. By way of the instant appeal, the plaintiffs 

contend that the Land Court judge erred in determining that the 

defendants, rather than the Commonwealth, own the beach. The 

plaintiffs claim that the beach, which sits on what used to be 

the bed of a great pond, is owned by the Commonwealth and held 

in trust for the public. We affirm.

Background. The background facts of this case are set 

forth in two prior opinions ending in remand orders, White v. 

Hartigan, 464 Mass. 400 (2013), and Barnett v. Myerow, 95 Mass. 

App. Ct. 730 (2019). The specific facts relevant to this 

decision are set forth below. Some facts are reserved for 

discussion.

The disputed beach is a 1.7-mile stretch of land on the 

southern shoreline of Martha's Vineyard, bordered by the

Atlantic Ocean to the south and several ponds to the north.

Since at least the mid-nineteenth century, erosion has pushed 

the beach north and reshaped the ponds' shorelines.

All title interests in the beach originate from two 

families, the Flynns and the Nortons, who historically owned 

property upland from the beach. While not all parties are 

members of either family, the defendants' ownership interests

trace back to the Flynns, and the plaintiffs' ownership 
3

interests trace back to the Nortons. Both families used the 

beach until a title dispute arose in the early 1980s.

The plaintiffs brought this action in 2004 claiming 

ownership of a fractional interest in the beach or a

prescriptive easement to access the beach via rights of way over 

the defendants' properties.5 In 2009, a Land Court judge granted 

summary judgment to the defendants on the plaintiffs' title 

claim, concluding that due to erosion, the beach to which the 

plaintiffs held a title interest was now completely submerged in 

the Atlantic Ocean. The judge also noted, but declined to 

address, the plaintiffs' attempt to assert that the beach had 

migrated onto the former location of a great pond and was 

therefore owned by the Commonwealth as public property:6

"in the matter presently pending before the Court, the 

parties do not seek a determination of all rights in the 

Beach, but merely, pursuant to Count I of the plaintiffs' 

complaint, to declare the rights of the plaintiffs in the 

Beach. The possibility that another party may have 

interest in the Beach is entirely possible and not 

foreclosed by this decision. Therefore, the plaintiffs' 

argument is inappropriate, and the Court makes no 

determination on this issue, at this time."

5 None of the plaintiffs' properties abut the beach but some 

of the defendants' properties do.

6 Hereinafter, we refer to this claim as "the great ponds 

issue." A great pond is a pond that exceeds ten acres in its 

natural state. G. L. c. 91, § 35. With some exceptions, the 

waters of a great pond and the land comprising its bed belong to 

the Commonwealth and are held in trust for public uses. See 

Opinion of the Justices to the Senate, 474 Mass. 1201, 1203 

(2016); Kubic v. Audette, 98 Mass. App. Ct. 289, 297-298 (2020).
4

In 2010, the case went to trial on the remaining issue 

whether the plaintiffs had acquired a prescriptive easement to 

use the beach or any of the rights of way that lead to the 

beach. The defendants moved to exclude expert evidence on

whether the location to which the beach had migrated was the 

former location of a great pond, reminding the judge that his 

summary judgment ruling "said that Commonwealth ownership was 

not an issue in the case and . . . [the defendants] believe that 

that continues to be the case." The plaintiffs' counsel opposed 

the motion but stated that he "agree[d] with [the defendants'

counsel] that as to this trial" the judge was "not about to 

decide who actually is the owner of the portions of the barrier 

beach which migrated into the ponds." The plaintiffs' counsel 

urged the judge to allow the great ponds evidence to be 

presented anyway, stating that even though "there are legal 

issues that are not expected to be addressed in this case . . .,

for the completeness of the record, it seems advisable to have 

and warranted to have these various facts" about great ponds 

come into the record, "[s]o if there is a future dispute as to 

whether the plaintiffs can be thrown off the beach if they lose 

all issues in this case, you know, there may have to be some 

proceeding that deals with the [littoral] owners."7 The 

7 The defendants' counsel presciently told the judge that he 

suspected the plaintiffs were seeking to admit the great ponds 
5

defendants' counsel responded that "as long as it's clear, clear 

beyond a shadow of a doubt, that the issue of beach ownership is 

not involved in this case and that we're not creating some 

record for some other case in the future that either these 

plaintiffs or the Commonwealth is contemplating, then I don't 

really care that you know it's a great pond." The judge 

subsequently reiterated, without objection, his understanding 

that the trial "was supposed to be limited to prescription." 

Following the thirteen-day trial, judgment entered for the 

defendants on the plaintiffs' prescriptive easement claim.

The Supreme Judicial Court (SJC) granted the plaintiffs' 

application for direct appellate review, and affirmed so much of 

the judgment as declared that the plaintiffs did not have a 

title interest in the beach but vacated the ruling on the 

prescriptive easement claim due to insufficient factual 

findings. See White, 464 Mass. at 402, 423. In separate 

footnotes, the SJC clarified that the plaintiffs had "appealed 

only as to their title claim and their prescriptive easement 

claim to the beach," id. at 402 n.6, and expressly declined to 

evidence for "a far more insidious reason" than completeness of 

the record, suggesting that the real reason the plaintiffs

sought to admit the great ponds evidence was to create a factual 

record that would provide an additional avenue to oppose any 

efforts by the defendants to exclude the plaintiffs from the 

beach in the event the defendants prevailed on the prescriptive 

easement claim.
6

consider any interest the Commonwealth may have in the parts of 

the beach that had migrated into great pond beds. Id. at 406 

n.12.

After the case was remanded, it was assigned to a different

Land Court judge (second judge), who "ultimately determined that 

neither a new trial nor further evidentiary hearing would be 

necessary, and that [she] would adjudicate the prescriptive 

easement claim and make the subsidiary findings based upon the 

existing trial record." On making those findings, the second 

judge also concluded that the plaintiffs had not established a 

prescriptive easement. On appeal, this court affirmed the 

finding of no easement by prescription in most of the beach but 

vacated part of the judgment, and ordered further fact finding,

solely on whether the plaintiffs had an easement over the 

eastern end of the beach. Barnett, 95 Mass. App. Ct. at 747.

On remand for a second time, a third Land Court judge 

(third judge) conducted a two-day trial before ruling that the 

plaintiffs had failed to establish a prescriptive easement over 

any part of the eastern portion of the beach. The third judge 

also addressed the plaintiffs' argument that the beach is owned 

by the Commonwealth, expressing that "it is doubtful that this 

issue [was] properly before [him]," and concluding that even if 

it were, the defendants owned the accreted land subject to the 

Colonial Ordinance of 1641-1647 (Colonial Ordinance), which 
7

grants the public rights to use the land within the high and low 

water mark of great ponds for fishing, fowling, and navigation, 

but only if the public can reach the area without trespassing. 

Finding that the plaintiffs had "no way to access the southern 

shores of the ponds without trespassing over defendants' land," 

he concluded that the plaintiffs' rights under the Colonial 

Ordinance were "useless."

Discussion. The plaintiffs' sole challenge on appeal is to 

the third judge's finding that the defendants own the accreted 

land comprising the beach, arguing that the beach lies on the 

bed of a former great pond and is therefore owned by the 

Commonwealth and accessible to the public. The defendants argue 

that the great ponds issue was not only outside the scope of the 

second remand order but has also been waived. The defendants 

further contend that the plaintiffs' argument lacks substantive 

merit. The defendants' arguments are persuasive.

1. Second remand order. "It is the duty of the trial 

court, unless in its discretion it permits new issues to be 

raised, to follow implicitly the terms of the rescript and not 

to travel outside what is there laid down, read in the light of 

the opinion on which it is founded." Lannin v. Buckley, 268 

Mass. 106, 111 (1929). Accord City Coal Co. of Springfield, 

Inc. v. Noonan, 434 Mass. 709, 712 (2001) ("our remand 

instructions became the governing 'law of the case' and should 
8

not have been reconsidered by the remand judge"). Here, our

remand instructions governing the third trial stated, in 

relevant part, that

"we find no error or abuse of discretion in the [second]

judge's determination that the plaintiffs have no easement 

by prescription in either the beach area south of Oyster 

Pond or the Center beach area. However, further fact 

finding is required to determine whether the plaintiffs 

have an easement by prescription over any portion of the 

eastern end of the beach[.] Those proceedings may take the 

form of a new trial limited to that issue. . . . 

Accordingly, so much of the judgment after remand as 

determined that the plaintiffs do not have an easement by 

prescription over any portion of the eastern end of the 

beach . . . is vacated, and the matter is remanded for 

further proceedings consistent with this opinion. In all 

other respects, the judgment after remand is affirmed." 

(Emphasis added.)

Barnett, 95 Mass. App. Ct. at 747. Affirming all but the 

portion of the judgment concerning a prescriptive easement over 

the eastern end of the beach, the order neither instructed nor 

permitted consideration of the great ponds issue.

Even so, before the third trial, the plaintiffs filed a 

motion in limine to exclude testimony contravening the law of 

the case concerning the definition of the "beach." Therein, a

footnote asserted that because this court had acknowledged the 

parties' stipulation that certain ponds abutting the beach were 

Commonwealth owned and had reserved their rights as to the 

status of others, the "[p]laintiffs view . . . the implication 

of the Great Ponds being Commonwealth property as part of the 

question remanded to this Court." This view was incorrect.
9

While this court's opinion did, in fact, acknowledge that 

the parties had reserved their rights with respect to whether 

certain ponds were great ponds, as to the issue whether those 

ponds were Commonwealth owned, we noted that the first Land 

Court judge had "explicitly stated that the legal implications 

of the beach migrating into the beds of great ponds was not an 

issue before him." Barnett, 95 Mass. App. Ct. at 733 n.7. This

court did not state that the first judge's conclusion was in 

error, nor was that implied where the remand order stated that 

the judgment below was affirmed "[i]n all . . . respects" aside 

from the issue whether the plaintiffs had an easement over the 

eastern end of the beach. Id. at 747.

In the same footnote acknowledging the parties' positions 

as to the status of the abutting ponds, this court also made 

note of the fact it had "assume[d] without deciding, as the 

parties seem to do, that for the purposes of this opinion, the 

portions of the beach that have migrated into the abutting great 

ponds are owned by the defendants." Barnett, 95 Mass. App. Ct. 

at 733 n.7. The court's view that the plaintiffs themselves had 

presumed the defendants owned the portions of the beach that had 

migrated into the beds of great ponds likewise precludes the 

plaintiffs' contention that the court intended the parties to 

litigate the implications of the Commonwealth's ownership of the 

beach on remand. If the court had intended this issue to be
10

litigated on remand, we would have directly addressed and 

corrected the parties' assumptions about ownership in the

opinion.

2. Waiver. We next turn to the defendants' argument that 

the plaintiffs waived their right to assert the great ponds 

issue. "Waiver may occur by an express and affirmative act, or 

may be inferred by a party's conduct, where the conduct is 

'consistent with and indicative of an intent to relinquish 

voluntarily a particular right [such] that no other reasonable 

explanation of [the] conduct is possible.'" KACT, Inc. v. 

Rubin, 62 Mass. App. Ct. 689, 695 (2004), quoting Attorney Gen.

v. Industrial Nat'l Bank, 380 Mass. 533, 536 n.4 (1980). 

"Underlying the purpose of the waiver doctrine is the need to 

give other parties -- and the courts -- fair notice that a claim 

or defense is being raised." Chelsea Hous. Auth. v. McLaughlin, 

482 Mass. 579, 584 (2019). In this case, the plaintiffs 

repeatedly failed to provide fair notice that they intended to 

raise the great ponds issue over the course of nearly two 

decades of litigation.

The operative, second amended complaint does not assert any 

claims related to the great ponds issue, and despite the 2009 

summary judgment decision stating that the issue was not 

properly before the court, the plaintiffs did not attempt to 

bring the issue within the scope of the proceedings by seeking
11

to amend their complaint. See Bank v. Thermo Elemental Inc., 

451 Mass. 638, 667 (2008) ("[t]he fundamental way that . . . 

notice is initiated is through pleadings"). Later, during the 

first trial, the plaintiffs' counsel went so far as to concede 

that the trial did not concern ownership of the beach and did 

not object when the judge stated that the trial was limited to 

prescriptive rights. This concession alone unequivocally waived 

the plaintiffs' right to litigate the great ponds issue from 

that point forward.

The SJC later remanded the case solely on the prescriptive 

easement issue, and the second judge's decision, which was based

exclusively on the record of the first trial, did not even

mention the great ponds issue. The plaintiffs did not challenge 

this omission or otherwise mention it in the briefs supporting 

their second appeal, and the joint pretrial memorandum the 

parties submitted before the third trial did not identify the 

great ponds issue within the statement of legal issues. The 

plaintiffs only briefed the issue in detail in their posttrial 

submissions, after the defendants' opportunity to bring a motion 

in limine to exclude evidence inconsistent with the remand order 
12

or present opposing evidence had closed.8,9 For all of the 

foregoing reasons, we conclude that the great ponds issue has 

been waived.

3. Merits. We have concluded that the great ponds issue 

was outside the scope of the second remand order and the 

plaintiffs waived this issue. Although not necessary to our 

decision, as to the plaintiffs' challenge to the third judge's 

8 Although the plaintiffs submitted a motion in limine 

before the third trial asserting their belief that the great 

ponds issue was part of the remand order, as set forth above, 

that belief was incorrect. Moreover, we agree with the 

defendants that a footnote in a motion in limine, standing 

alone, is insufficient to put the court and the parties on 

notice of a claim.

9 At the end of the third trial, the plaintiffs' counsel 

represented that the plaintiffs "had put it in [their] pretrial 

memorandum that [they] would be . . . trying the great pond 

aspect of this" and had "certainly on appeal, briefed to the 

Appeals Court the great pond issue." However, the plaintiffs'

only reference to great ponds in the pretrial memorandum 

appeared in their list of disputed facts, which asserted that 

the ponds abutting the beach are great ponds, that the 

Commonwealth holds great ponds in the public trust, and that 

portions of the disputed beach are located on what was formerly 

the bed of a great pond. The pretrial memorandum thus stopped

short of asserting the plaintiffs' intent to present evidence

that the disputed beach is owned by the Commonwealth in trust 

for the public because it sits on what was formerly the bed of a 

great pond.

The plaintiffs' only references to great ponds in their 

2017 appellate briefs appeared in the factual background and 

simply asserted that the parties had stipulated that two of the 

abutting ponds "are on the list of 'Great Ponds' maintained by 

the Commonwealth" and that the parts of the beach abutted by 

great ponds are known as "barrier beaches."
13

conclusion that the beach is owned by the defendants, we note as 

follows.

The third judge, relying on Kubic v. Audette, 98 Mass. App. 

Ct. 289 (2020), emphasized that property abutting the ocean 

typically follows the changing waterline and that a littoral 

owner is entitled to newly emergent land, whether from accretion 

or reliction, but loses title to land lost through erosion. 

Based on these principles, the third judge held that the 

defendants owned the newly accreted land that comprises the 

disputed beach, subject to the public's rights under the 

Colonial Ordinance to use the land between the high and low 

water marks for fishing, fowling, and navigation, and provided 

that the public can access the area without trespassing. 

Because the plaintiffs have no way to reach the barrier beaches 

below the abutting ponds without trespassing on the defendants' 

land, the third judge concluded that the plaintiffs have no 

rights over any portion of the eastern section of the beach.

The cases the plaintiffs rely on to challenge the third 

judge's conclusion are factually distinct and do not address the 

ownership of permanent or naturally occurring accretions to 

lands that lie on a former great pond bed or a permanent 

reliction, as in Kubic. See, e.g., Attorney Gen. v. Vineyard 

Grove Co., 211 Mass. 596, 602 (1912) (artificial accretion); 

Attorney Gen. v. Herrick, 190 Mass. 307, 308 (1906) (disputed 
14

land was island in middle of great pond not contiguous with any 

private property); Potter v. Howe, 141 Mass. 357, 360 (1886)

(Commonwealth owned land under pond that was temporarily exposed 

when defendant artificially lowered water level). We are also 

unpersuaded by the plaintiffs' claim that Kubic is inapplicable 

because in that case the Commonwealth had disavowed any claim to 

the disputed land. See Kubic, 98 Mass. App. Ct. at 298. The 

Commonwealth expressly declined the plaintiffs' invitation to 

intervene in the instant case, and therefore similarly disavowed

its rights to the land at issue here. The plaintiffs'

assertions are further undermined by the public policies the SJC 

identified in White, 464 Mass. at 407, i.e., "the interest in 

preserving the water-abutting nature of littoral property," the 

interest in promoting stability in title, and "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." Accordingly, the third judge properly concluded that 
15

the newly accreted land that comprises the disputed beach is 

owned by the defendants.

Judgment affirmed.

By the Court (Desmond, Hand & 

Grant, JJ.10),

Clerk

Entered: September 27, 2024.

10 The panelists are listed in order of seniority.