O’Donoghue, et al. v. Commonwealth, et al. (Lawyers Weekly No. 11-046-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-72                                         Appeals Court   KEN O’DONOGHUE, trustee,[1] & others[2]  vs.  COMMONWEALTH & others.[3]     No. 16-P-72.   Suffolk.     December 5, 2017. – April 17, 2018.   Present:  Vuono, Sullivan, & Massing, JJ.     Res Judicata.  Judgment, Preclusive effect.  Seashore.  Real Property, Littoral property.  Words, “Beach.”     Civil action commenced in the Land Court Department on July 22, 1998.   The case was heard by Harry M. Grossman, J.   Brian Jay Rogal for the plaintiffs. Robert W. Galvin for town of Marshfield. Kendra Kinscherf, Assistant Attorney General, for the Commonwealth.     SULLIVAN, J.  The plaintiffs commenced this action against the Commonwealth in the Land Court to quiet title to certain “beach lots” in the Rexhame Terrace section of the town of Marshfield (town) and to remove a cloud on title that resulted from the decisions in Thomas v. Marshfield, 10 Pick. 364 (1830) (Thomas I), and Thomas v. Marshfield, 13 Pick. 240 (1832) (Thomas II).  The plaintiffs also sought damages for trespass against the individual defendants.  The town was allowed to intervene as a defendant.  In its answer the town asserted, as an affirmative defense, title to the beach lots set aside for use by all of the town’s inhabitants as a common area, and further stated that the plaintiffs have only a right of “commonage” along with other inhabitants of the town.  The trial judge bifurcated the “public” portions of the case — the claims among the plaintiffs, the Commonwealth, and the town — and, following a trial, concluded that the plaintiffs had not met their burden of demonstrating title sufficient to quiet title or remove the cloud of title due to the decisions in Thomas I and Thomas II.  The judge further concluded that the town has superior title in most if not all portions of the beach lots.[4]  The parties have filed cross appeals.  Substantially for the reasons stated by the judge in his careful, detailed, and well-reasoned decision, we affirm. Background.  The judge made detailed factual findings, which for the most part are undisputed.  We repeat only those necessary to give context to our discussion, noting where material disputes arise.  The judge’s factual findings will not be overturned unless clearly erroneous.  See Whiteveld v. Haverhill, 12 Mass. App. Ct. 876, 876 (1981); Feldman v. Souza, 27 Mass. App. 1142, 1143 (1989). Marshfield Neck […]

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