No Blocking the Beach Trail

In many Massachusetts coastal communities, informal beach access paths have existed for generations, reflecting earlier norms of shared land use, particularly in areas influenced by Indigenous practices and early colonial norms. Historically, the custom was to allow the community uncontested access to the shoreline through these paths, as such use was not considered a problem. While this custom still exists in part today, it is becoming increasingly rare, and disputes over property interests in the pre-existing beach access trails are becoming increasingly common.

In the town of Sandwich, Massachusetts, this tension came to a head between neighboring property owners over a private road known as Beach Way. Beach Way is a trail on the Allens’ property, which provides access from the public road to the Scorton Neck Beach. The Bells own a nearby home that has no other direct access to the Beach. For twenty years, the Bells and their predecessors used Beach Way to walk to the Beach, even though no deed granted them that right, and they never received permission from the Allens. Although the Allens never confronted the Bells, the Allens sought to assert their property interest in the path and piled boulders along the route to deny the Bells further use. However, the Bells continued to use the path and claimed a legal right to do so based on decades of prior use.

To evaluate this dispute, it is important to analyze the doctrine of prescriptive easements as articulated in Felgenhauer v. Soni. In this case, a restaurant used a neighboring bank’s parking lot for delivery access for over five years without a formal agreement. A tenant of the restaurant testified that he carried out deliveries without permission from the bank. The court held that the elements for a prescriptive easement are a party’s 1) open, 2) notorious, 3) continuous, and 4) hostile use of another’s land for the statutory period. The first three elements were easily satisfied because the deliveries occurred in broad daylight and frequently throughout the week, for over five years. The court focused on the fourth element, stating that hostility “does not require a belief or claim that the use is legally justified. It simply means that the property was used without the permission of the owner.” The court reasoned that the tenant never discussed permission with the bank, and this was enough for the court to infer non-permissive use. As a result, the defendant claiming the prescriptive easement prevailed and was granted continued use of the bank’s parking lot.

The rule of prescriptive easements provides a framework for resolving the modern disputes over historic beach access paths in Massachusetts coastal communities. As explained in Soni supra, a prescriptive easement requires a claimant to show 1) open, 2) notorious, 3) continuous, and 4) hostile use of another’s land for the statutory period. For the elements of open and notorious use, the Bells would argue that they accessed the trail in a manner that the Allens could clearly see, and there was no hiding during access. For continuous, the Bells would show their repeated use over twenty years, which meets the Massachusetts statutory period. Finally, for hostile, the Bells would say they used the trail without permission, satisfying the hostility requirement. A reasonable counterargument from the Allens would be that their decision not to object to the Bells’ use over the past twenty years suggests a permissive license rather than hostile act. A license is a right to use a licensor’s land that is revocable at the will of the licensor. The Allens would further argue that they revoked the Bells’ license and would point to the piling of boulders along the trail to support their claim. However, the Allens would have a difficult time showing that a license ever existed. Absent proof of a license, a court would likely find the Bells’ argument more persuasive and would grant the prescriptive easement.

The prescriptive easement rule strikes a balance between longstanding community practices, but it can also produce tension with property rights. On one hand, the rule recognizing one’s right to access the Bay based on long-term use promotes stability and protects reliance interests, especially in coastal communities where access paths may have been used for generations. On the other hand, it can undermine the expectations of property owners who believe they have the right to possession and to exclude others from their land. From a policy perspective, the rule is justified because it encourages landowners to monitor and assert their rights rather than sleep on them. At the same time, property owners can protect themselves by clearly granting or denying permission in writing, thereby preventing adverse use from ripening into a legal right.

Nick Graham is a law student at the American University Washington College of Law.

Image: Maoileann, Beach Path-3401, Tralee Bay, Co. Kerry, Ireland.