NEWS

Judges rules for neighbors in battle over access to Hingham beach

Mary Ford

With snow piled up all around, it is difficult to imagine wanting to spend some time at the beach.

But for seven families on Crow Point -- warmer weather cannot come soon enough.

A land court judge ruled last week that certain families who live near Melville Walk, a tiny, unpaved private way off Downer Avenue, have “prescriptive rights” to use Little Beach.

Prescriptive rights are not deeded rights, so the families do not have ownership over the beach, as they had hoped, but they can continue to use the beach via Melville Walk as they have historically for years.

Jim Kane of 8 Jarvis Ave., one of the plaintiffs in the neighbors’ lawsuit, said he hopes the beach will now return to the community beach that it always has been.

“It’s always been a friendly neighborhood beach for swimming, boating and kayaking,” he said.

Attorney Jim Timmins of Quincy, who represents the families, said he hopes to plan a “gate-taking-down” ceremony now that the judge has ruled that the gate at the top of Melville Walk that was installed 3-1/2 years ago must be removed.

“The judge ruled the families can use the beach and part of Melville Walk,” Timmins said. “It should be the status quo and return to the way it was before the fence went up.”

The Dec. 12 ruling could cap off a nearly four-year upheaval in the small enclave-like neighborhood.

The neighborhood dispute started after Robert Stimson, a defendant in the lawsuit, built a new house at 5 Melville Walk. His house is a grand, beachfront home with dozens of windows facing the water and whose backyard is just feet from the beach.

The tiny unpaved walk travels between Stimson’s house and two other homes, the O’Connells and the Donahues.

After Stimson moved in, he said he offered the neighbors rights to the beach in exchange for agreeing to certain rules including signing waivers that they would not sue abutters for injuries.

“What Stimson doesn’t say is that, included with that olive branch, is that the rights would not go with the property,” Timmons said. In other words, beach access would go away if the homes were sold. “That was the deal breaker,” he said.

The neighbors threatened to take the beach by adverse possession; Stimson hired attorneys to research his property rights.

According to court documents, the Stimsons, Donahues and O’Connells erected the gate in May 2004.

The neighbors, who believed they could have deeded rights dating back to the old Downer Estate, launched a lawsuit in June 2004.

The central issues to be determined were rights to the beach and status of Melville Walk that provides access to the beach.

Stimson said this week he wants further clarification about who can use the beach, how and when.

“It started with 250 people that could use the beach,” he said referring to the entire neighborhood. “Then it went down to 40 and now seven families can use it.

“I am not disappointed at all. I always said we needed clarity about who could use the beach,” he said.

Stimson, who has not ruled out an appeal, said he would be seeking further clarification this week about where the families can go, what they can do, and what their rights of access are in order to let the police department know.

The civil matter had spilled into the police log with numerous entries over the years, especially during the summer. Stimson called police complaining about trespassers on Melville Walk.

Stimson also said the gate does not have to come down but will remain open. He said it would be locked and shut with those particular families provided keys if there are access issues.

“Can just Mr. and Mrs. Kane use the beach? Or can all their family members?” he asked.

He said the reason the gate went up in the first place “was to get this thing sorted out.”

But Timmins, who disputes the “250 number” of beach-goers Stimson used, said the families would be able to use the beach the way they have for generations, including children and grandchildren. The court decision states the beach has had a long history of being a community beach, including neighborhood cleanups, ice cream socials, picnics, barbecues and boating.

The judge found that the Donahue family on Downer Avenue at the top of Melville Walk (across Melville Walk from the O’Connell and Stimson homes) actually owns the beach, Timmins explained. The judge drew a line from each side of their property, which is on the northwesterly side of Melville Walk, to the water and that encompassed Little Beach between Melville Walk and Alice Walk, another private walkway that was not part of the case.

Stimson – who has until mid-January to appeal the court decision – does not have prescriptive beach rights, although he owns to the midway point of Melville Walk that abuts his property. The O’Connells, who own the home on same side of Melville Walk as Stimson but withdrew as defendants from the lawsuit, can seek prescriptive rights.

Stimson said he would arrange for an easement to use the beach from the Donahues.

In light of the parameters in the court decision, Timmins said the Donahues’ attorney has contacted him about sitting down with the neighbors to come up with an amicable resolution about beach use. At this point it is unclear how beach access would be monitored.

The neighbors had hoped for deeded beach rights, but Timmins explained that documents that are upward of 100 years old are not that precise in language and geography.

Under state law, one may obtain an easement by prescription through 20 years of uninterrupted use. The judge used 20 years going backward from the date the gate was installed. Therefore some families who participated in the lawsuit were not awarded prescriptive rights. One family had lived in their house for 19-1/2 years before the fence went up. Going forward, the prescriptive rights go with the property.

The judge said the Manns, Handrahan, Dillons, Arnolds, Murrays, Campbell and the Kanes, some of whom have been in their homes since the 1950s, used the property for more than 20 years and have prescriptive rights.

There are other neighbors, who were not involved in the lawsuit, who can sue for prescriptive rights if they want to, Timmins said.