Published on: December 30, 2016

In a recent decision, the Massachusetts Appeals Court faced a question of first impression—whether natural accretion to a registered littoral parcel automatically acquires registered status at the time of its creation. In Brown v. Kalicki, 90 Mass. App. Ct. 534 (2016), the Appeals Court split 2-1 on the issue, with the majority answering in the affirmative and the dissent taking a strong stance against automatic registration.


In Brown, three owners of registered parcels filed petitions in the Land Court to amend their certificates of title to add previously submerged areas on the Harwich shoreline. The owners’ purpose was to establish the extended sidelines of their adjacent parcels to resolve any questions as to their respective rights of ownership in the accreted land. As an added complication, two individuals intervened as defendants, claiming prescriptive easement rights over the accreted land. The Land Court granted summary judgment to the parcel owners based on its conclusion that accretions to registered littoral land automatically acquire registered status, so long as the accretion was due to natural causes or by intervention of non-owners. The Land Court also ruled that the newly registered accreted land was protected from any prescriptive use, and on that basis, it denied the interveners’ prescriptive easement claims.


On appeal, a majority of the Appeals Court affirmed. The majority reasoned that because littoral boundaries frequently change, the actual boundary is rarely depicted on an owner’s certificate of title or land court plan. Consequently, if accreted land did not automatically obtain registered status, littoral land owners would be forced to make frequent amendments to their certificates of title to protect against any adverse use by others. The majority stated that a rule requiring unending amendments would be inconsistent with the fundamental purpose of the registration system “to make titles certain and indefeasible.”


While the interveners emphasized that the size of the accretion is substantial—as much as 358 feet—the majority found it irrelevant, noting that the benefit to littoral land owners of automatic registration for accreted land is counterbalanced by their risk of losing all registration rights for eroded land. The majority also rejected the interveners’ argument that public rights should outweigh other concerns favoring automatic registration of accreted land. The majority concluded that automatic registration did not impair the public rights under the Colonial Ordinances to fish, fowl, and navigate in the area between high and low water marks, and that no reason exists to recognize greater public rights. The majority also concluded that because the accreted land enjoyed registered status upon its creation, the interveners had no opportunity to establish any prescriptive easement rights.


Relying on a strict reading of the relevant provisions of the registration statute, M.G.L. c. 185, and “the essential nature of registered land” as providing certainty of title, the dissenting opinion challenged the majority as “conflat[ing] the question of title with that of registration.” The dissent suggested that the majority had read provisions into the registration statute that do not exist, as there is no statutory provision that allows the automatic registration of accreted land. Instead, the dissent explained that under the registration statute, amended registered land rights require adjudication and are conferred upon court approval of a Subsequent Petition (a/k/a “S-Petition”); therefore, an S-Petition, not the mere fact of accretion, is the proper means for establishing subsequent registered status. The dissent argued that by contrast, automatic registration of accreted land actually creates uncertainty, because the boundaries depicted on certificates of title and plans do not show conditions on the ground. Such uncertainty, according to the dissent, is contrary to “one of the central attributes of the land registration system,” which allows the examiner to determine the exact location of registered land merely by reviewing a certificate of title and plan on file with the Land Court.


The dissent further opined that there is no apparent unfairness in requiring littoral land owners to file an S-Petition to add accreted land to a registered parcel, because an owner could obtain full protection from prescriptive claims by updating the certificate of title in twenty-year intervals. Finally, the dissent noted that, due to the shifting shape of the coastline, automatic registration of accreted land would not resolve the difficulty of establishing the sideline boundaries of affected parcels. Disputes over sideline boundaries are resolved by equitable division, which, according to the dissent, cannot be determined “simply [by] extending existing sidelines in a straight line from their intersection with the old waterline to intersect with the new waterline.”


As of this writing, a petition for further appellate review of the Brown decision is pending in the Massachusetts Supreme Judicial Court.