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Appeals court hears dispute over private-way easements and beach access in Buttermilk Bay subdivision
Summary
Counsel for the former lot owner argued subdivision deeds and the derelict-fee statute give lot owner rights to use private ways and a common beach area; opposing counsel said recorded partition deeds conveyed the beach fee and no easement over the beach was granted.
Kevin Gini, representing the appellants in Pincigato v. Davies, argued the 1955 subdivision deeds and subsequent conveyances create express easement rights to Gainsborough Drive and Arlington Drive that confer access to the map-labeled "beach area" for lot 5. Gini told the panel that the initial 1956 deed conveyed express rights of way and appurtenances that “stick with the property” unless explicitly extinguished, and that no instrument in the chain of title extinguished those rights for Gainsborough or Arlington. He urged the court to apply the derelict-fee statute to vest lot owners with fee to the centerline of private ways absent an express reservation and argued the beach area should be treated as a common amenity intended for lot owners.
Jeffrey Johnson, arguing for the respondents (current owners of the beach parcel), said the record and the partition deeds show the beach fee was conveyed to other owners through partition petitions and deeds and that lot 5’s foreclosure and mortgage descriptions did not include an easement over the beach. Johnson said lot 5 may have rights to use the portion of the way abutting its lot to access the shore but lacks an appurtenant easement in the fee-owned beach parcel and that any common-amenity inference fails on these facts.
Argument explored historical use: counsel agreed the appellant used the route to the shore from about 2009 until 2018, and that neighbors began asserting exclusive control after full-time occupancy of an adjacent lot. Gini argued the subdivision plan and early deeds show the developers intended a shared beach amenity and that express easements plus the derelict-fee statute support lot 5’s right to access the beach area; Johnson contended partition instruments and later conveyances explicitly allocated those fees to other families and that the derelict-fee statute is inapplicable or supplanted by the partition conveyances.
The court questioned counsel on the scope of an express easement, whether a right to use a way includes the entirety of that way, and on whether the beach area was ever conveyed out of the development’s common land by recorded partition instruments. The panel took the matter under advisement; no decision was announced.
