Line in the sand

In Marshfield, talk of settlement only fuels beach-rights dispute

A "no trespassing" sign near Old Rexhame Beach has not deterred residents who are disputing homeowners' efforts to limit access to the beach. (Globe Correspondent Photo / Sonja Wallgren)

In the late 1700s, Marshfield farmer Briggs Thomas began what would be a 47-year battle to claim ownership of the beach that bordered his cattle fields. Three times he went to court to get the beach declared his property, and three times he lost. The town and the public retained rights to what is known as Old Rexhame Beach.

Now, more than two centuries later, yet another legal case in the land dispute is about to be decided - and this time Thomas's view could prevail. If it does, the public will lose access to a small gem of a beach that over the decades has become a family favorite.

A settlement to be filed in state Land Court within the next two weeks will set the legal framework for ownership of Old Rexhame Beach, the latest chapter in one of the South Shore's most bitter and longstanding battles over beach rights.

The case was brought in 1998 by homeowners in the the affluent Rexhame Terrace neighborhood, a cluster of stately Victorians and Capes that enjoy magnificent ocean vistas along Old Rexhame Beach. The houses sit on fields once part of Briggs Thomas's farm. When those fields were sold, the homeowners contend, beach ownership came with the subdivided property.

But residents of a more modest neighborhood to the west never bought that argument. They, along with other members of the public, have continued to use the beach. They are named as defendants in the suit brought by the Rexhame Terrace homeowners, who are seeking not only ownership of the beach but the right to ban the public from walking down the small streets that lead to it.

The attorney general's office stepped in shortly after the 1998 case went to court, seeking to represent the public interests. While the defendants continued to follow the case, they relied on the attorney general's office to handle it for them.

But according to one of the defendants who attended a July 10 status hearing, the attorney general's office appears to have agreed to a settlement that would keep the public from using the beach.

Marianne McCabe, a Marshfield attorney who is among the original defendants in the Land Court case, said she was shocked at what she heard in court that day. The lawyer for the Rexhame Terrace parties and a lawyer from the assistant attorney general's office told the judge "they had a settlement in principle" and, McCabe said, went on to discuss terms that would mean an end to public swimming and sunbathing at the beach.

According to McCabe - who has routinely attended hearings in the case over the years - the public will retain only the right to walk on the strip between the high and low tide marks, but not to sit, sunbathe, or picnic on Old Rexhame, as many residents have done for 60 years.

They also will be prohibited from accessing the beach over the small roads that wind through the Rexhame Terrace neighborhood.

"This is a public natural resource under Article 97 of the state constitution, and the attorney general should be the guardian of that," McCabe said. "What the attorney general is doing is against the public interest. It appears they are giving away public property to private landowners. I see it as switching sides."

The attorney general's office, contacted this week, confirmed there is a settlement in principle, but would offer no details until it is filed. Spokeswoman Jill Butterworth confirmed that the judge instructed both sides to file a written settlement within 30 days of the July 10 hearing. If the final settlement is consistent with what McCabe said she heard in court on July 10, she and her fellow neighbors are vowing to fight on, with the original case severed from the attorney general's office. They could, they say, hire their own lawyer and press for "prescriptive rights" based on having continuously used the beach and the access roads for 20 years or more.

George and Brenda Johnson of Ford Street - who, like McCabe, were named in the suit - said the defendants have spent about $50,000 on the beach-rights debate over the last 10 years, and are not inclined to give up just because of a settlement that they had no say in.

"I feel like the attorney general's office is turning its back on us," George Johnson said, as he and Brenda, along with their neighbor Betty McManus, sat on the beach one afternoon last week. Johnson also attended the July 10 hearing in Land Court. Said Johnson: "We'll continue on our own."

Brian Rogal, attorney for the Rexhame Terrace homeowners, would not comment on the details of the settlement.

But he did underscore the Rexhame Terrace homeowners' argument: "The beach is private and that goes back to the late 1800s," Rogal said. "In Massachusetts, the law is clear: If you own the first parcel next to the beach you own down to the low tide mark. This is all about your right to control private property."

But the case has not been so clear-cut.

In the summer of 1996, two years before the pending suit was filed, the town's lawyer, Robert Marzelli, said he believed Old Rexhame Beach was private. He based that view on the arguments of homeowners, and evidence that Ray Ames, a descendant of Briggs Thomas, had included beach rights in his sale of the portion of the former Thomas farm that was developed into Rexhame Terrace.

Following Marzelli's conclusion, the Rexhame Terrace homeowners put up "no trespassing" signs and requested police details to oust those who tried to use the beach. About 20 citations for trespassing were issued that summer.

The next winter, McCabe and her neighbors formed the Marshfield Beach Rights Coalition and secured a state grant to research the farm's legal history. McCabe unearthed the 1641 decision by the town to keep the beach as a common area. She discovered records of a 300-year-old county highway laid out along the town's coast, making it a public way, and she reviewed the three court cases.

In light of that information, Marzelli reversed his earlier opinion. Town Meeting then voted not to fund any police details in Rexhame Terrace or on the beach until Land Court settled the ownership issues.

Now, with that settlement just two weeks away, some beachgoers - even those who have enjoyed the beach for years - have no idea their haven is in jeopardy.

Bridgewater resident Christine Mungovan spent the day at Old Rexhame Beach with her children last week, and was surprised to learn she may soon be banned. Mungovan was a guest of Andrea Micheli, who had rented a cottage nearby.

"I've been coming here since I was a child," Micheli said. "No one should be able to own a beach."

Christine Legere can be reached at christinelegere@yahoo.com.