author: CYPHER, J.

text:
    COMMONWEALTH v. Jean ALEXIS.
    SJC-12465
    Supreme Judicial Court of Massachusetts, Essex..
    Argued September 5, 2018 Decided December 14, 2018
    Emily R. Mello, Assistant District Attorney, for the Commonwealth.
    Emily A. Cardy, Committee for Public Counsel Services, for the defendant.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   CYPHER, J.

The defendant, Jean Alexis, was charged with numerous crimes stemming from an armed home invasion in Lynn. The day after the home invasion, and following an investigation, the police arrested the defendant inside his dwelling without an arrest warrant. The defendant moved to suppress evidence that (1) the police observed during a protective sweep of his dwelling after he was arrested and (2) the police gathered after they obtained a warrant to search his dwelling. A judge in the Superior Court allowed the defendant's motion to suppress because the police created the exigency that prompted their warrantless entry into the defendant's dwelling. A single justice of this court allowed the Commonwealth's application for leave to pursue an interlocutory appeal and reported the case to the full court.

We have held that "where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them." Commonwealth v. Forde, 367 Mass. 798, 803, 329 N.E.2d 717 (1975) (analyzing warrantless search under Fourth Amendment to United States Constitution). See Commonwealth v. Molina, 439 Mass. 206, 211, 786 N.E.2d 1191 (2003). In Kentucky v. King, 563 U.S. 452, 462, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), the United States Supreme Court held that where "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." The Commonwealth urges us to follow the jurisprudence of the Supreme Court when examining a warrantless search of a dwelling under art. 14 of the Massachusetts Declaration of Rights. Adopting such an approach would render all of the evidence obtained after the defendant's arrest admissible. The defendant argues that, notwithstanding the Supreme Court's decision in King, under art. 14 the police cannot create the exigent circumstances used to justify a warrantless entry to a home, even if they engaged in lawful action, such as approaching a house to knock on a door. He also contends that the Commonwealth waived the argument that probable cause remained for the subsequent search warrant, even if the impermissibly viewed evidence is redacted from the affidavit. We interpret art. 14 to provide greater protection than the Fourth Amendment where the police have relied on a reasonably foreseeable exigency to justify the warrantless entry into a dwelling. Therefore, we conclude that the judge did not err in allowing the defendant's motion to suppress evidence that was found in plain view during a protective sweep because the officers' entry into his home was not justified based on exigent circumstances. We also conclude that the Commonwealth waived the argument regarding whether, if the impermissible observations from the affidavit were redacted, the search warrant was based on probable cause.

Background. We recite the motion judge's factual findings supplemented by the uncontroverted evidence at the motion hearing that is consistent with the judge's findings. Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). "[O]ur duty is to make an independent determination of the correctness of the [motion] judge's application of constitutional principles to the facts as found" (citation omitted). Commonwealth v. Campbell, 475 Mass. 611, 615, 59 N.E.3d 394 (2016). On the morning of June 14, 2016, Lynn police officers responded to a report of a home invasion. Shortly thereafter, Detective Stephen Pohle arrived at the scene. Upon arrival, Pohle spoke with the victim, Shomar Garcia, who lived at the apartment with his wife and two children. Garcia conveyed that earlier that morning, while he was leaving for work, three African-American males forced their way into the apartment, one of them struck him in the face with a silver handgun, and they "forced their way into the bedroom, where his wife and two children were." The men restrained Garcia with duct tape and took his jewelry and wallet. Before leaving the house, the man with the silver handgun struck Garcia's six month old baby in the face with the gun.

Garcia recognized the man with the silver handgun as someone with whom he had attended high school. Later that afternoon, Garcia went to the police station in an attempt to identify the perpetrator. After looking through a "few hundred photos," Garcia saw a photograph of the defendant and stated with "[one hundred] percent" certainty that the photograph was of one of the men who had broken into his home and was the one who had hit him and his baby.

Pohle wrote an incident report and filled out an arrest warrant application. Because it was late in the afternoon and his shift had ended, Pohle placed the warrant in the "court box" for the next day. Pohle testified that although the nature of the investigation -- an armed home invasion -- justified an after-hours warrant, the decision not to seek one was within his discretion. Early the next morning, before he began his shift, Pohle telephoned the supervisor of the Lynn police department's warrant task force, Sergeant Michael Kenny. Pohle informed Kenny, who was on his way to the police station, that the defendant had been identified as the perpetrator of the home invasion who brandished a handgun and struck the baby with the gun. Pohle also informed Kenny that he was in the process of getting an arrest warrant.

At approximately 7 A.M. , Kenny arrived at the police station and reviewed the department's "hot sheet." Kenny recognized the defendant's name on the "hot sheet" as a person with whom he had recently spoken while investigating another matter. Kenny also knew where the defendant lived.

Without an arrest warrant, but believing that there was probable cause to arrest the defendant and that exigent circumstances existed, Kenny and four other members of the warrant task force proceeded to the defendant's address. The officers were dressed in plainclothes and had their badges displayed. Because of the information available to Kenny at the time -- the defendant's identification being fresh, the violent nature of the home invasion, the defendant's role in it, his possession of a firearm, the involvement of two accomplices, and the possibility that they might flee -- he believed that immediate action was required.

Upon arriving at the defendant's address, Kenny and two officers approached the front door, while two other officers went to the side of the house to secure a perimeter. Kenny understood that the officers' presence might prompt the defendant to flee or destroy evidence. Kenny's plan was to knock on the door to determine if the defendant was home, question him, and, if the opportunity arose, arrest him. As Kenny ascended the front porch steps, the defendant saw the officers through the glass front door. The defendant turned around and ran toward the back of the house. One of the officers who was setting up a perimeter observed the defendant climbing through a window in the back of the house. The officer shouted at the defendant to show his hands. Instead, the defendant retreated into the house, out of the officer's view. Because of the volatile situation and the nature of the crimes involved, the officers forced their way through the front door. As they entered, they noticed the defendant coming toward them from the back of the home. The officers ordered the defendant to the ground and handcuffed him in the hallway.

After the defendant had been restrained, the officers conducted a protective sweep of the house and secured the premises. During the protective sweep, Kenny made a plain view observation of some jewelry on top of a refrigerator in the defendant's room that matched the description of the jewelry taken during the home invasion.

After the dwelling had been secured, Kenny prepared an application for a search warrant. In his affidavit, Kenny relayed Garcia's account of the violent home invasion, Garcia's identification of the defendant, and that the defendant was brandishing a silver handgun. He also included the plain view observations of the suspected stolen property he had seen during the protective sweep. A clerk-magistrate of the Lynn Division of the District Court Department approved the search warrant.

During the execution of the search warrant, the officers seized items of evidentiary significance, including jewelry, a wallet, an electrical stun gun, and various identification cards bearing the defendant's name. Also discovered were articles of clothing that matched the description given by Garcia of the clothes worn by the home invaders. Following the search warrant execution, Garcia confirmed that the sweatshirt and the pants were consistent with the clothing worn by the defendant during the home invasion.

Discussion. 1. Warrantless arrest. Historically, the Massachusetts Constitution has carefully protected the home from the intrusion by the government without a warrant, with certain delineated exceptions. See Commonwealth v. Tyree, 455 Mass. 676, 684, 919 N.E.2d 660 (2010) ; Molina, 439 Mass. at 211, 786 N.E.2d 1191. The existence of exigent circumstances that make it impracticable to obtain a warrant is one such exception. Commonwealth v. Figueroa, 468 Mass. 204, 213, 9 N.E.3d 812 (2014).

The Commonwealth argues that the warrantless arrest of the defendant in his home was justified because the defendant's reaction to the lawful police presence outside his home created exigent circumstances. In making this argument, it maintains that the United States Supreme Court, in King, 563 U.S. at 469, 131 S.Ct. 1849, abrogated prevailing Massachusetts jurisprudence when it held that "the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment." In other words, if the conduct of the police before their entry into the apartment was entirely lawful, the exigent circumstances exception applies. Id.

The defendant contends that the exigent circumstances exception to the warrant requirement is inapplicable because the police created the exigency themselves by not procuring a warrant before going to the defendant's residence. He claims that the warrantless entry into his home violates his rights under art. 14, notwithstanding the fact that police officers may lawfully knock on a door and make inquiries.

The Fourth Amendment and art. 14 require that all searches and seizures be reasonable, and case law has held that all warrantless entries into a home are presumptively unreasonable. See, e.g., Commonwealth v. Ramos, 470 Mass. 740, 744-745, 25 N.E.3d 849 (2015) ; Commonwealth v. Polanco, 92 Mass. App. Ct. 764, 769, 94 N.E.3d 869 (2018). Because the touchstone of the Fourth Amendment is reasonableness, however, "the warrant requirement is subject to certain reasonable exceptions." Ramos, supra at 745, 25 N.E.3d 849, quoting King, 563 U.S. at 459, 131 S.Ct. 1849. The Commonwealth may justify a warrantless entry into a home if the police had probable cause and exigent circumstances. Molina, 439 Mass. at 209, 786 N.E.2d 1191. Under the exigent circumstances exception to the warrant requirement, "there must be a showing that it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict." Forde, 367 Mass. at 800, 329 N.E.2d 717.

In Forde, we held that "a warrantless entry into a dwelling to arrest in the absence of sufficient justification for the failure to obtain a warrant" is impermissible. Id. at 806, 329 N.E.2d 717. We concluded that "where the exigency is reasonably foreseeable and the police offer no justifiable excuse for their prior delay in obtaining a warrant, the exigency exception to the warrant requirement is not open to them." Id. at 803, 329 N.E.2d 717. Forde was decided solely on the basis of the Fourth Amendment. Id. at 805-806, 329 N.E.2d 717.

Later, in Molina, a case decided eight years before the Supreme Court's decision in King, we held: "The Fourth Amendment ... and art. 14 ... scrupulously guard against the intrusion of the government into a citizen's home without a warrant." Molina, 439 Mass. at 211, 786 N.E.2d 1191. We stated that "[t]he exigent circumstance requirement is not satisfied by virtue of altercations resulting from a warrantless arrest at the home, where there is no showing of exigent circumstances leading to the warrantless arrest itself." Id.

In King, 563 U.S. at 462, 131 S.Ct. 1849, the Supreme Court held that where "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed." In an eight-to-one decision, the Court concluded that as long as "the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment," they may knock on a suspect's door and announce their presence, and the exigent circumstances rule may still apply. Id. at 469, 131 S.Ct. 1849. See Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 249, 952 N.E.2d 426 (2011). " Molina and King thus appear inconsistent with each other as a matter of Fourth Amendment jurisprudence." Gentle, supra at 251, 952 N.E.2d 426. Our interpretation of the Fourth Amendment tracked that of the dissent in King. As the sole dissenter, Justice Ginsberg reasoned, "How 'secure' do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?" King, supra at 475, 131 S.Ct. 1849 (Ginsburg, J., dissenting).

In Molina, we did not address whether art. 14 offers more protection than the Fourth Amendment in situations where, as here, law enforcement's lawful conduct created the exigent circumstances that are in turn used to justify a warrantless search. We take the opportunity to address this issue now.

Our interpretation of art. 14 frequently aligns with the United States Supreme Court's interpretation of the Fourth Amendment. However, we have sometimes held that art. 14 may provide more substantive protection to individuals than that provided by the Fourth Amendment. See, e.g., Commonwealth v. Amado, 474 Mass. 147, 154, 48 N.E.3d 414 (2016) (" 'probable cause [ (not reasonable suspicion)

] is the appropriate standard that must be met for a strip or visual body cavity search to be constitutionally permissible' under art. 14" [citation omitted] ); Commonwealth v. Balicki, 436 Mass. 1, 9, 762 N.E.2d 290 (2002) (declining to abandon inadvertence requirement of plain view exception to warrant requirement under art. 14, as Supreme Court did under Fourth Amendment); Commonwealth v. Gonsalves, 429 Mass. 658, 668, 711 N.E.2d 108 (1999) ("under art. 14, the balancing of interests requires that Massachusetts citizens should not be subjected to unjustified exit orders during routine traffic stops"); Commonwealth v. Upton, 394 Mass. 363, 373-375, 476 N.E.2d 548 (1985) (retaining more stringent test under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964], and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969], rather than totality of circumstances standard); Gentle, 80 Mass. App. Ct. at 250, 952 N.E.2d 426 ("Although the Supreme Judicial Court's interpretation of art. 14 has often converged with the United States Supreme Court's interpretation of the Fourth Amendment, when the Supreme Judicial Court has diverged it has emphasized its obligation to undertake an independent review of the State Constitution and the court's freedom to interpret the State Constitution to provide a different balancing of the interests of privacy and the police ...").

Although we have not specifically answered the question whether art. 14 provides greater protection than the Fourth Amendment in these circumstances, we have repeatedly emphasized the importance of a person's right to privacy in the home. See, e.g., Commonwealth v. Porter P., 456 Mass. 254, 260, 923 N.E.2d 36 (2010) ("In view of the 'sanctity of the home,' 'all details [in the home] are intimate details, because the entire area is held safe from prying government eyes' " [citation omitted] ); Molina, 439 Mass. at 209, 786 N.E.2d 1191 ; Balicki, 436 Mass. at 12 n.14, 762 N.E.2d 290 ("Nowhere are expectations of privacy greater than in the home, and '[i]n the home ... all details are intimate details" [citation omitted] ); Commonwealth v. Marquez, 434 Mass. 370, 374, 749 N.E.2d 673 (2001) ; Commonwealth v. Straw, 422 Mass. 756, 760, 665 N.E.2d 80 (1996) ("it is in the home that a person's expectation of privacy is at its highest"); Commonwealth v. Blood, 400 Mass. 61, 68 & n.9, 507 N.E.2d 1029 (1987) (art. 14 affords greater privacy protection from government eavesdropping for conversations that occur in home); Forde, 367 Mass. at 805, 329 N.E.2d 717 ("The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy").

In the present case, balancing the interests of law enforcement with the rights of people to be protected from warrantless searches in the home, we conclude that art. 14 provides greater protection than the Fourth Amendment in these circumstances and that under art. 14 the police cannot avail themselves of the exigency exception to the warrant requirement when it was foreseeable that their actions would create the exigency, even if their conduct was lawful. See Molina, 439 Mass. at 210, 786 N.E.2d 1191 ; Forde, 367 Mass. at 803, 329 N.E.2d 717.

Here, before arriving at the defendant's home, Kenny knew that Pohle was in the process of getting an arrest warrant but had not secured one. Moreover, Kenny testified that his plan was to knock on the door to see if the defendant was home, question him, and if the opportunity arose, arrest him. Based on his testimony, it was evident that Kenny went to the defendant's home with the purpose of making an arrest without a warrant. There is nothing in the record indicating that it was impracticable to get a warrant.

Likewise, it was reasonably foreseeable that the five police officers approaching the defendant's home could cause the defendant to attempt to flee. In fact, Kenny testified that he understood that the officers' presence might prompt the defendant to flee or destroy evidence. See Forde, 367 Mass. at 801, 329 N.E.2d 717. The officers also set up a perimeter around the house to prevent the defendant from discarding evidence or escaping.

There is no question that the police had developed probable cause to arrest the defendant prior to arriving at his home. Pohle decided not to pursue an after-hours arrest warrant, even though he testified that there was a procedure in place to get one. There is also no question that it is generally permissible for police to approach a person's home and knock on the door. Commonwealth v. Leslie, 477 Mass. 48, 57, 76 N.E.3d 978 (2017). However, Kenny had the opportunity to obtain an arrest warrant the morning of the arrest. Forgoing multiple opportunities to procure an arrest warrant further highlights the unreasonableness of the arrest. See Forde, 367 Mass. at 799, 801, 329 N.E.2d 717.

Furthermore, the Commonwealth made no showing that it was impracticable to obtain an arrest warrant. There was no evidence that there was a risk that the defendant would flee, destroy evidence, or be a risk to the officers' safety if the police followed the normal course and secured a warrant. See Tyree, 455 Mass. at 687-691, 919 N.E.2d 660. Compare Figueroa, 468 Mass. at 213, 9 N.E.3d 812. The crime occurred the previous day, and there was no evidence that the defendant even knew or had reason to know that he was a suspect before the police arrived at his home. Compare Commonwealth v. Colon, 449 Mass. 207, 217, 866 N.E.2d 412, cert. denied, 552 U.S. 1079, 128 S.Ct. 810, 169 L.Ed.2d 611 (2007) (exigent circumstances existed where witnesses to shooting told police that shooters had run into building and officers knocked on door and received no answer notwithstanding noises coming from apartment).

The Commonwealth argues that because of the nature of the crime, the defendant's role in it, his possession of a firearm, the involvement of two accomplices, and the possibility that they might try to flee, the situation called for immediate action. However, the police could have set up surveillance while they waited for the warrant and arrested the defendant if he left his house. To this point, even though the Commonwealth argued that the defendant might have fled, it did not articulate any basis to conclude that there was a risk of flight. See Tyree, 455 Mass. at 689, 919 N.E.2d 660 ("the police had no reason to believe that the suspects were likely to flee the residence in the time it would have taken to procure a warrant to search the premises"); Molina, 439 Mass. at 210, 786 N.E.2d 1191. As in Molina, supra at 211, 786 N.E.2d 1191, "[t]his is a situation where the officers could have, and should have, secured a warrant.... The exigent circumstances that emerged during the arrest were a result of the officers' appearance at the dwelling." Considering all of the circumstances, the arrest of the defendant in his dwelling without a warrant was unreasonable. Because the defendant's warrantless arrest in his apartment was unlawful, the police cannot rely on the plain view doctrine to allow the postarrest observations in evidence. Forde, 367 Mass. at 807, 329 N.E.2d 717.

2. Waiver. In a postargument letter invited by the court, the defendant contends that the Commonwealth waived any argument regarding the validity of the search warrant that was sought and executed after the defendant was arrested because the argument was raised neither below nor on appeal. We agree. See Commonwealth v. Bettencourt, 447 Mass. 631, 634, 856 N.E.2d 174 (2006) ("Our system is premised on appellate review of that which was presented and argued below"). Contrast Commonwealth v. Perkins, 478 Mass. 97, 107, 82 N.E.3d 1024 (2017). Nevertheless, we take this opportunity to discuss the nexus requirement to issue a search warrant for a dwelling.

Under both the Fourth Amendment and art. 14, a search warrant may issue only on a showing of probable cause.

Commonwealth v. Keown, 478 Mass. 232, 237, 84 N.E.3d 820 (2017), cert. denied, --- U.S. ----, 138 S.Ct. 1038, 200 L.Ed.2d 292 (2018). Probable cause means a "substantial basis" to conclude that "the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues" (citation omitted). Commonwealth v. Holley, 478 Mass. 508, 521, 87 N.E.3d 77 (2017). "Information establishing that a person is guilty of a crime does not necessarily constitute probable cause to search the person's residence." Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983). There must be probable cause to conclude not only that an individual committed a crime, but also that there is a nexus between the crime and the items sought, and the location to be searched. The nexus to search a residence for evidence of a crime "may be found in the type of crime, the nature of the ... items [sought], the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [items of the sort sought]" (quotation and citation omitted). Id. See Perkins, 478 Mass. at 104, 82 N.E.3d 1024.

Some cases involving the search of a dwelling have used an articulation of the nexus standard that has sometimes been interpreted as being more stringent, particularly in cases involving searches of residences for drugs. See, e.g., Perkins, 478 Mass. at 104, 82 N.E.3d 1024 ; Commonwealth v. Colondres, 471 Mass. 192, 201, 27 N.E.3d 1272, cert. denied, --- U.S. ----, 136 S.Ct. 347, 193 L.Ed.2d 249 (2015) ; Commonwealth v. Tapia, 463 Mass. 721, 725-726, 978 N.E.2d 534 (2012) ; Commonwealth v. Escalera, 462 Mass. 636, 644-646, 970 N.E.2d 319 (2012) ; Commonwealth v. Pina, 453 Mass. 438, 440-441, 902 N.E.2d 917 (2009). In one of those cases we stated: "The affidavit need not convince the magistrate beyond a reasonable doubt, but must provide a substantial basis for concluding that [drugs or instrumentalities of the drug trade] will be found on the specified premises." Pina, supra, quoting Commonwealth v. Donahue, 430 Mass. 710, 712, 723 N.E.2d 25 (2000). A "substantial basis" means no more and no less than that "[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Cinelli, 389 Mass. at 213, 449 N.E.2d 1207. "In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion" (citation omitted). Commonwealth v. Robertson, 480 Mass. 383, 386, 105 N.E.3d 253 (2018).

The affidavit in support of the search warrant stated that the defendant was identified by the victim, was seen brandishing a silver handgun, and struck Garcia and his baby during the home invasion with the gun. The affidavit also stated that Kenny observed jewelry fitting the description of stolen jewelry during the protective sweep. The search warrant was approved by a clerk-magistrate, and the police seized significant evidence, including articles of clothing that matched Garcia's description of the clothes worn by the home invaders.

Here, probable cause to issue the search warrant remained even without considering Kenny's plain view observation of jewelry matching the description of the stolen jewelry. The defendant used a handgun to strike Garcia and his child during the commission of the home invasion. It is reasonable to expect that the handgun specified in the warrant was an item that could reasonably be located in the home of a person who had participated in an armed home invasion the previous day. Cinelli, 389 Mass. at 212-213, 449 N.E.2d 1207. See Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 105, 866 N.E.2d 930 (2007) ("The connection between the items to be seized and the place to be searched does not have to be based on direct observations; it may be found by looking at the type of crime, nature of the items, the suspect's opportunity to conceal items, and inferences as to where the items are likely to be hidden"). In Commonwealth v. James, 424 Mass. 770, 778, 678 N.E.2d 1170 (1997), we held that the defendants had no reason to dispose of the instrumentalities used in a murder -- knives, sneakers, and a face mask -- because the defendants were unaware that they were suspects and "all of [the] items [were] durable, of continuing utility to the defendants, and it was reasonable to expect that they would be kept at home, particularly as they are not inherently incriminating to possess." We noted, however, that a defendant who has fired a handgun in the commission of a murder "would not keep at home an incriminating handgun which could be readily identified as the murder weapon through ballistics tests." Id. at 778 n.15, 678 N.E.2d 1170. The defendant here did not fire his firearm, but used it to strike Garcia and his baby. That a person would keep a handgun that was not vulnerable to ballistic testing in his or her home is not a remarkable proposition. See United States v. Cowling, 648 F.3d 690, 696 (8th Cir. 2011), cert. denied, 566 U.S. 940, 132 S.Ct. 1905, 182 L.Ed.2d 776 (2012) ("people generally keep [firearms] at home or on their persons" [quotation and citation omitted] ); United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (firearms are "the type[ ] of evidence likely to be kept in a suspect's residence"). The fact that the handgun was ultimately not discovered is of no consequence. Had the argument been preserved, it is likely that the evidence seized as a result of the search would not have been suppressed.

Conclusion. The order of the Superior Court judge allowing the defendant's pretrial motion to suppress evidence is affirmed.

So ordered.

      The charges are as follows: home invasion (G. L. c. 265, § 18C ), armed robbery (G. L. c. 265, § 17 ), armed assault in a dwelling (G. L. c. 265, § 18A ), assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A [b ] ), assault and battery (G. L. c. 265, § 13A [a ] ), and possession of an electrical stun gun (G. L. c. 140, § 131J ).

      "An arrest warrant 'encompasses the power to enter a [suspect's] residence for the purpose of executing the warrant' " (citation omitted). Commonwealth v. Silva, 440 Mass. 772, 776, 802 N.E.2d 535 (2004). "Generally, a [search] warrant must be secured before a search [of the dwelling] is conducted, and warrantless searches 'are presumptively unreasonable.' " Commonwealth v. Ramos, 470 Mass. 740, 745, 25 N.E.3d 849 (2015), quoting Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011).

      The "court box" has a mail slot for "paperwork that needs to go over to court." Each morning, a "police prosecutor" brings applications for warrants and complaints from the police station to the Lynn Division of the District Court Department, where a clerk reviews and signs the applications.

      Detective Stephen Pohle did not recall his rationale for not seeking an after-hours arrest warrant.

      A "hot sheet" has "information that's put out to police officers within the department that explains incidents, what happened, the facts of incidents, [and] suspect information." The "hot sheet" "pass[es] on information" to "officers who may have not worked [the previous] shift."

      The officers arrived at the defendant's residence in unmarked police vehicles.

      The motion judge found that Sergeant Michael Kenny mistakenly believed that the defendant's identification had occurred that morning, immediately prior to Pohle's telephone call. Testimony in the record indicates that Garcia had identified the defendant the previous day.

      Kenny described the dwelling as a "four-room rooming house" that "looks like a single-family house from the front." "There's a porch that goes up to the front door," and the front door is "clear glass." "To the left and right of [the] door are windows, and the windows are to each separate room in the rooming house." "When you walk in the front door, to the right is a door that goes to a bedroom," and "[o]n the left, is another door that goes to a bedroom." "There is an open living room area, and ... behind that is a kitchen area [with] stairs on the right ... going to the second level."

      A description of the jewelry that had been taken from Garcia was in Pohle's incident report.

      Police may have reasonable grounds to believe that obtaining a warrant would be impracticable when the delay in doing so would pose a significant risk that the suspect may flee, evidence may be destroyed, or the safety of the police or others may be endangered. Commonwealth v. Figueroa, 468 Mass. 204, 213, 9 N.E.3d 812 (2014). Although often used interchangeably in the cases, "impractical" is not "impracticable." See J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 14-1[c][2] (2018). Webster's Third New International Dictionary 1136 (1963) defines "impractical" as "not wise to put into or keep in practice or effect," while "impracticable" is defined as "incapable of being performed or accomplished by the means employed or at command," id.

      For the first time on appeal, the defendant contends that the officers' presence on his porch violated his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. This argument is misplaced. Neither the Federal nor the Massachusetts Constitution prohibits police from knocking on a citizen's door and making an initial inquiry. See Commonwealth v. Leslie, 477 Mass. 48, 57, 76 N.E.3d 978 (2017) ("a police officer, like any other citizen, has an implied license to walk up the path to the front door of a home and knock on the front door"). Contrast Collins v. Virginia, --- U.S. ----, 138 S.Ct. 1663, 1675, 201 L.Ed.2d 9 (2018) (Fourth Amendment does not permit police officer, uninvited and without search warrant, to enter curtilage of home to search vehicle).

      See Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 250, 952 N.E.2d 426 (2011) ; Cordy, Criminal Procedure and the Massachusetts Constitution, 45 New Eng. L. Rev. 815, 821 (2011) ("the [Supreme Judicial Court] has repeatedly concluded that [art.] 14's protections against unreasonable searches and seizures are broader and more restrictive of police power than those of the Fourth Amendment"); Grasso, "John Adams Made Me Do It": Judicial Federalism, Judicial Chauvinism, and Article 14 of Massachusetts' Declaration of Rights, 77 Miss. L.J. 315, 340 (2007) ("the [Supreme Judicial Court] has often recognized its authority and duty to interpret and enforce cognate provisions of the Massachusetts Constitution that afford greater protections than its federal counterpart"); Wilkins, The Massachusetts Constitution -- The Last Thirty Years, 44 Suffolk U. L. Rev. 331, 337 (2011) ("In the past three decades, the Supreme Judicial Court has resisted urgings to relax the requirements of art. 14 to conform to the Supreme Court's revisions of Fourth Amendment law" [footnotes omitted] ).

      Although the officers were in plain clothes, Kenny testified that their badges were displayed.

      The defendant did not fire the handgun during the home invasion.


source: Caselaw Access Project

author: HANLON, J.

license: Public Domain

text:
    Masoumeh RAVASIZADEH v. Ali NIAKOSARI.
    No. 16-P-1131.
    Appeals Court of Massachusetts, Essex..
    Argued April 9, 2018. Decided September 25, 2018.
    Cynthia Stone Creem, Boston (Judith McKinnon, Boston, also present) for the husband.
    Susan Correia-Champa, Boston, for the wife.
    Present: Meade, Hanlon, & Blake, JJ.
   HANLON, J.

Ali Niakosari (husband) appeals from a judgment of divorce nisi issued by the Probate and Family Court, challenging only the judge's division of assets. He contends that the judge erred by awarding his former wife, Masoumeh Ravizadeh (wife), a portion of the appreciation in value of the husband's premarital inherited properties in Tehran, Iran. The husband also argues that the judge erred in calculating the division of the Islamic marriage contract, called a "mahr." In the husband's view, the judge had no authority over the mahr, which was then the subject of litigation in Iran, and, further, the judge's calculation created a disproportionate division of marital assets in favor of the wife. We modify so much of the judgment as relates to the mahr; otherwise, we affirm the judgment.

Background. We recite facts from the judge's findings and the uncontradicted evidence, along with certain trial testimony, reserving recitation of some additional facts as they become relevant to the issues raised. The husband and wife were married in the State of New York on June 20, 2000, according to Iranian custom, which included the negotiation and execution of a "mahr" or marriage contract that, in this case, required the husband to pay to the wife 700 gold coins. During the marriage, the parties enjoyed an upper middle class lifestyle until the time of their separation in December, 2012. The parties share legal and physical custody of their only child.

After filing her complaint for divorce in Massachusetts, the wife filed an action in the Iranian court to enforce the mahr. , Both parties testified at trial in the Probate and Family Court. According to the husband, a mahr is an Iranian marriage contract negotiated between the couple and their families, for the purpose of providing financial support for the wife. Under Iranian law, the proceeds of the mahr are "the only financial money that can be recovered [by the wife] from a divorce and three months of alimony, that's it." The wife testified only that the mahr is "a gift that the groom gives to the bride." On April 20, 2013, the court in Iran found in the wife's favor, and required the husband to pay to the wife, under the terms of the mahr, 700 gold coins. The husband appealed, and the verdict was upheld. The husband appealed again to the Tehran Province Court of Review, which upheld the verdict. Still unsatisfied, the husband appealed to the Supreme Court of Iran; according to him, that action was pending at the time of trial.

On November 17, 2015, after five days of trial, the judgment of divorce nisi entered. In addition to orders regarding custody and child support, which are not at issue in this appeal, the judge essentially divided equally the parties' various joint and individual bank and retirement accounts. He ordered the sale of the individually and jointly held Cambridge condominium units and parking space, with the net proceeds equally divided, and awarded to the husband the exclusive right to his inherited property in Tehran, Iran. However, the judge ordered that the value of any appreciation in that property that occurred during the marriage be divided equally.

The history underlying the property in Tehran is significant here. The judge found that, when the husband was seventeen years old, he inherited from his deceased father certain property in Tehran, consisting of a one-sixth interest (with his siblings and his mother) in the parental home, along with complete ownership of two apartments and a flower shop contained in a building where his siblings and aunt own the other apartments. The judge found credible the husband's trial testimony that his mother manages the units he owns, and receives all of the rental income derived therefrom.

In addition, after finding, based on the verdict of the Iranian court, that the wife "owns 700 gold coins", the judge ordered the husband to pay into the court in Iran the value of the coins to satisfy that judgment. The judge then determined those funds to be "an asset of the wife," and therefore part of the marital estate and subject to division. The judge also ordered that, in the event the Supreme Court of Iran reverses the lower court verdict, the husband still is obligated to "pay an amount equal to one-half of the money to Wife to satisfy the liability." The judge did not order either party to pay alimony, finding that the wife had the ability to maintain her station and lifestyle through employment and her share of the divided marital assets.

Discussion. The equitable distribution statute "grants judges the authority to exercise a broad degree of discretion in assigning 'to either husband or wife all or any part of the estate of the other ....' " Adams v. Adams, 459 Mass. 361, 372-373, 945 N.E.2d 844 (2011), quoting G. L. c. 208, § 34. In reviewing a property division under G. L. c. 208, § 34, we proceed under a two-step analysis. "First, we examine the judge's findings to determine whether all relevant factors were considered (and whether irrelevant factors were disregarded). Next, we decide whether the rationale underlying the judge's conclusions is apparent and whether these flow rationally from the findings and rulings" (citations and quotations omitted). Hassey v. Hassey, 85 Mass. App. Ct. 518, 524, 11 N.E.3d 661 (2014). A judge's determinations as to "property division will not be reversed unless plainly wrong and excessive." Id.

Here, it is clear that the judge considered all of the § 34 factors; the language of the judge's rationale and further findings provide a detailed explanation for his conclusions. In addition, in lieu of an order to pay alimony, the judge had broad discretion to assign to either the husband or the wife any part of the estate of the other, after consideration of the § 34 factors, including the wife's occupation, the opportunity for future income, and contributions during the marriage. See G. L. c. 208, § 34.

1. Tehran property. The husband first argues that the judge erred in awarding to the wife any portion of his inherited property in Tehran. The judge found that the Tehran property was "inherited by the Husband long before the marriage." He credited the husband's testimony that his mother exclusively handled the management of the property in Tehran, and received all of the rental income generated; neither the husband nor the wife were involved in the management of the properties, nor did they receive any income from the properties during the marriage. The judge determined that these "assets were never incorporated into the fabric of the marriage." However, he awarded one-half of the appreciation in value of the properties to the wife.

The husband argues that, because his inheritance of the properties predates the marriage by many years, the wife has no right to any interest in the asset. We disagree. It is well established that "a party's 'estate' includes all property to which a party holds title, however acquired." Williams v. Massa, 431 Mass. 619, 625, 728 N.E.2d 932 (2000), citing Drapek v. Drapek, 399 Mass. 240, 243, 503 N.E.2d 946 (1987). Thus, the husband's interest in the Tehran properties comprised part of the marital estate. Once part of the marital estate, the judge then "had broad discretion to determine how to divide the entire estate equitably, including discretion not to divide the inherited and gifted assets between the parties" (citations omitted), but only the increase in the value of the property during the marriage. Williams, supra at 626, 728 N.E.2d 932.

Here, the judge's determination flows rationally from his findings, and his consideration of each of the § 34 factors. See Hassey, 85 Mass. App. Ct. at 524, 11 N.E.3d 661. We discern no error, and certainly no abuse of discretion, in his decision to award to the wife, as part of the divisible marital estate, an equal share of any appreciation in the value of the Tehran property that occurred during the marriage.

2. Mahr agreement. The husband next argues that the judge lacked jurisdiction to order him to pay one-half of the value of the 700 gold coins in the event the Supreme Court of Iran reverses the earlier judgment; for that reason, he maintains, the judge erred in calculating the division of the mahr proceeds. In his findings, the judge conceded that the court in Iran had jurisdiction over the mahr. However, he also found that, "because the mahr is an asset of the marriage, regardless of who prevails in the Supreme Court of Iran's Judgment, it is subject to equitable division in the Commonwealth of Massachusetts." We disagree.

While no Massachusetts courts have reported cases addressing the issue of a mahr, or Islamic marriage contract, other States have done so. See Marriage of Obaidi & Qayoum, 154 Wash. App. 609, 226 P.3d 787 (2010), and cases cited. Since a mahr agreement may be enforced according to neutral principles of law, it may survive any constitutional challenge and may be enforceable as a contractual obligation. See id. at 616, 226 P.3d 787. See also Akileh v. Elchahal, 666 So.2d 246, 248-249 (Fla. Dist. Ct. App. 1996) (interpreting a sadaq, "a postponed dowry which protects the woman in the event of divorce").

In Marriage of Obaidi & Qayoum, 154 Wash. App. at 614-616, 226 P.3d 787, the court enforced a mahr agreement pursuant to its State law and said:

"A New Jersey case, Odatalla v. Odatalla, 355 N.J. Super. 305, 309 [810 A.2d 93] (Ch. Div. 2002), provides a helpful framework for considering the application of [S]tate law to a mahr agreement. In Odatalla, the trial court ordered the specific performance of the mahr agreement. The husband appealed, arguing that review of the mahr by a [S]tate court was precluded under the doctrine of separation of church and [S]tate. The husband also argued that the agreement was not a valid contract under New Jersey law. Id.
"The Odatalla court looked for guidance to Jones v. Wolf, 443 U.S. 595, 602-603 [99 S.Ct. 3020, 61 L.Ed.2d 775] (1979), which explained the 'neutral principles of law' approach that allows agreements to be enforced based on neutral principles of law, not religious doctrine. In Jones, a dispute over the ownership of church property was taken to a civil court in Georgia. The Court set aside the separation of church and state issues by applying the neutral principles of law doctrine. Justice Blackmun explained, 'We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even when no issue of doctrinal controversy is involved.' Id. at 605 [99 S.Ct. 3020]. In other words, the Court determined that the controversy over the ownership of the property could be decided on neutral principles of law, not upon religious beliefs or policies. Id.
Based on Jones, the Odatalla court determined that the mahr did not violate the separation of church and state doctrine if the court could apply neutral principles of law to [ ] enforce the mahr. Odatalla, 355 N.J. Super. at 311 [810 A.2d 93]. The court concluded that the mahr could be enforced by applying neutral principles of contract law. Id. at 312 [810 A.2d 93]. Notably, the court found all the elements of a contract even though the husband argued that the mahr was too vague to apply because it did not state when the money would be due. Id. at 313 [810 A.2d 93]. Because the court determined that the mahr was simply a contract between two consenting adults, the court concluded that the mahr was not against public policy. Id. at 314 [810 A.2d 93].
"Here, we apply neutral principles of Washington law. ... Applying the neutral principles of contract law, we can resolve this case by using these neutral principles of law, not Islamic beliefs or policies. We apply Washington law to resolve the issues of the formation and validity of the agreement."

This analysis is persuasive and convinces us that we need not look beyond the agreement to determine the role of the mahr under Islamic law -- whether it is intended to provide support for the wife as the only thing she recovers from the marriage or whether it is intended as an unencumbered gift. Further, the mahr enforcement action here proceeded entirely in Iran, and that judgment, upheld after two appeals and after action by the Supreme Court of Iran, will be a valid judgment rendered by a foreign court and is not a part of the underlying action here. Both parties have submitted the mahr to the jurisdiction of the courts in Iran and neither has argued that those courts should not decide the matter. For that reason, the judgment of the Supreme Court of Iran will determine the outcome of the dispute.

Normally, we defer to judgments from another country as a matter of comity. "Under that doctrine, Massachusetts generally will recognize and enforce valid judgments rendered by a foreign court" (emphasis original). Vorontsova v. Waronzov, 75 Mass. App. Ct. 20, 24, 911 N.E.2d 774 (2009), quoting Schiereck v. Schiereck, 14 Mass. App. Ct. 378, 380, 439 N.E.2d 859 (1982). "The doctrine [of comity], as we have suggested, admits to certain limitations that, for example, may bear on the jurisdiction of the foreign court or entity, or implicate important public policy considerations within the Commonwealth." Vorontsova, supra. See Schiereck, supra, citing Hilton v. Guyot, 159 U.S. 113, 163-164, 16 S.Ct. 139, 40 L.Ed. 95 (1895) (considered seminal case on comity). Cf. Charara v. Yatim, 78 Mass. App. Ct. 325, 331-332, 937 N.E.2d 490 (2010) (doctrine of comity requires that judgment be in "substantial conformity" with Massachusetts law; "substantial conformity" requires, inter alia, jurisdiction over parties and subject matter, and applied procedural and substantive law must be reasonably comparable to Massachusetts). In the circumstances of this case, where the parties have submitted to the jurisdiction of the Iranian courts and have not sought enforcement of the mahr in Massachusetts courts, we will apply the rule of comity and not disturb the ruling of the Iranian courts.

It was error, therefore, to order the husband to pay the mahr to the wife in the event that the Supreme Court of Iran finds in his favor; in the alternative, it was error to order the wife to split with the husband any judgment that she receives, if the Supreme Court of Iran affirms the earlier judgment in her favor. That is to say, if the Supreme Court of Iran does not enforce the mahr, the Probate and Family Court is without jurisdiction to do so; if the Supreme Court of Iran does enforce it, the Probate and Family Court is without jurisdiction to dispose of it differently.

Conclusion. The judge in this case was entitled to divide the entire estate by ordering what he believed to be the fairest and most equitable judgment considering all of the § 34 factors. We will not reverse the judgment unless it is "plainly wrong and excessive." Baccanti v. Morton, 434 Mass. 787, 793, 752 N.E.2d 718 (2001). We exercise our discretion to delete that paragraph of the judgment which, essentially, orders the parties to split the mahr as part of the marital estate. The portion of the judgment that orders division of the mahr is vacated. In all other respects, the judgment is affirmed.

So ordered.

      Both the husband and wife filed notices of appeal from the judgment, but the wife never entered her appeal in this court. Her appeal is therefore not before us. Mass. R. A. P. 10 (a) (1), as amended by 435 Mass. 1601 (2001).

      During the course of this litigation, the marital home was sold by court order and the net proceeds divided into thirds; one third went to the wife, one third to the husband, and one third was placed in escrow to pay certain expenses.

      Neither a copy of the mahr nor the Iranian marriage license were included in this record.

      The wife did not include in her underlying complaint for divorce in the Probate Court a request to enforce the mahr.

      The husband testified that selecting gold coins as payment under the mahr ensured that the value of the coins would appreciate over time, as the value would "grow like stocks"; where, as here, there is a long-term marriage, "if you assign a real value, the real value doesn't grow. If you assign a commodity that grows, any time that the woman seeks to recover the [m]ahr, she will get [a] benefit from the growth of the [m]ahr."

      Neither the docket nor the record from the Iranian litigation is included in this record. For that reason, it is not clear what tribunal heard the first appeal.

      At oral argument, the parties informed us that the case remained unresolved.

      The husband asserts that his father gave these properties to him when he was nine years old. This assertion is a distinction without a difference under our analysis.

      At the time of trial, the parties were unable to agree on a valuation of that property; pursuant to the judgment, the parties are to select jointly an appraiser to arrive at a value, then "equally split any increase in property valuation during the time of the marriage." The judge ordered that the conversion rate of the Central Bank of the Islamic Republic of Iran is to govern when converting to United States dollars.

      We rely exclusively on the judge's fact finding here, as only select portions of the trial transcripts are included in this record. See Pierce v. Pierce, 455 Mass. 286, 293, 916 N.E.2d 330 (2009) ("The standard of review reflects substantial, but not unlimited, deference to the judge who saw the witnesses and heard the evidence"). We note that it is the appellant's burden to produce a full record on appeal. See Mass. R. A. P. 8 (b) (1), as amended by 430 Mass. 1603 (1999).

      In fact, as noted above in n. 4, the wife sought enforcement of the mahr in Iran and did not request the Probate and Family Court to enforce it; the husband has argued that the Probate and Family Court is without authority to modify it.

      Where a judgment issues in a foreign country, "the doctrine of comity, rather than the full faith and credit clause of the United States Constitution, is invoked." Vorontsova, supra.


author: WENDLANDT, J.

text:
    SMALAND BEACH ASSOCIATION, INC. v. Arthur F. GENOVA & another.
    No. 17-P-458
    Appeals Court of Massachusetts, Plymouth..
    Argued February 14, 2018 Decided September 25, 2018
    Lee P. Alfieri, Plymouth, for the plaintiff.
    Joseph E. Kelleher, III, for the defendants.
    Present: Sullivan, Kinder, & Wendlandt, JJ.

      Patricia A. Genova.

   WENDLANDT, J.

At issue are the rights of the plaintiff, Smaland Beach Association, Inc. (SBA), to use a portion of a sandy beach area abutting real property (Lot 18) owned by the defendants, Arthur and Patricia Genova. Lot 18 is located in a neighborhood called Smaland, adjacent to Island Pond in Plymouth. The Genovas' immediate neighbor to the east is SBA, which owns a largely unimproved lot (Lot 19). Both parcels abut the sandy beach, which has been used for recreation by Smaland homeowners and their guests for decades.

For more than a dozen years, the Genovas and SBA have been warring over ownership of the portion of the beach abutting Lot 18, as well as use of the dock and boat ramp situated on that area. Their battles have extended to additional fronts, including disputes about the Genovas' encroachment over the parties' shared side lot line and SBA's right to use a footpath behind the Genovas' cottage.

After bifurcated trials in the Superior Court (a bench trial, followed by a jury trial before a different judge), a judgment entered, declaring the parties' rights. The parties have cross-appealed.

Factual background. In 1931, a group of families primarily from Quincy purchased small parcels of real estate in close proximity to one another, situated between Little Sandy Pond Road and Island Pond in Plymouth. The group established a neighborhood of summer camps they called Smaland. Among the original Smaland owners was Anna Kristina Myrbeck, who obtained two parcels, "bounded and described" as "Lots # 18-19 on a plan of 'Great Herring Shores, Unit B' drawn by A. L. Wheeler, dated Oct. 1, 1926, duly recorded with Plymouth County Deeds" (hereinafter, the Unit B plan ). The 1931 deed from Albert K. Kendrick and Louis B. Hall to Myrbeck contains no metes and bounds descriptions.

Crescent Road. Lots 18 and 19 directly abut each other, sharing a side lot line. They also directly abut Crescent Road, a way that connects at both ends to Little Sandy Pond Road. Crescent Road runs roughly parallel to the shore of Island Pond, and for a portion of its length there are camp lots on both of its sides. In the location directly in front of Lots 18 and 19, however, the road hugs the shore of the pond, and camp lots exist only on the upland side of the road. Thus, looking at the Unit B plan, it appears that Lots 18 and 19 are situated directly across Crescent Road from the pond. On the ground, however, the portion of Crescent Road that passes directly in front of Lots 18 and 19 is not laid out as a road, and exists, instead, as a sandy beach or grassy area.

SBA's property. Lot 19 is partially comprised of a hill, with rustic stairs, connecting cottages situated uphill from Lot 19 with the waterfront below it. Lot 19 was owned (in common with Lot 18) by Myrbeck from 1931 until 1934 when she conveyed it to Axel Ludvigson. Ludvigson owned Lot 19 until 1958. Lot 19, and the portion of Crescent Road abutting it, have been dedicated to communal use for recreation by homeowners in Smaland and their guests since at least the 1940s.

In October, 1958, Ludvigson conveyed Lot 19 to the three trustees of a newly formed trust, which held Lot 19 for certain named beneficiaries (trust beneficiaries) who were "owners of land bordering on the Trust property, or in the immediate vicinity, known as 'Smaland.' " In 1971, the trust was dissolved, and Lot 19 was conveyed to SBA, which was incorporated pursuant to G. L.

c. 180, with its stated purpose being "[t]o maintain and govern the property known as the Smaland Beach area."

The Genovas' property. Also in 1958, Myrbeck conveyed Lot 18 to Sven Gunnar Myrbeck (Sven), and by 1961, he also had acquired Lot 44, which is directly behind (and uphill from) Lot 18. In 1975, the Genovas bought Lots 18 and 44 from Sven as a summer retreat. Prior to making the purchase, the Genovas were elected members of SBA. Over the many years that the Genovas have owned Lots 18 and 44, they have made numerous improvements to the cottage on Lot 18, including a small addition that encroaches on SBA's land.

The footpath. At some time dating as far back as 1946, a system of footpaths was established in the neighborhood. The primary path runs horizontally across the neighborhood (approximately parallel to the pond) tracing a line starting in the west, where it bisects Lots 14 and 39, and running east, ending where it bisects Lots 19 and 47. A portion of this primary path crosses the Genovas' land (the footpath).

Procedural history. SBA filed its verified complaint in January, 2005, seeking to ascertain the boundaries of the Genovas' front property line (Lot 18, as it bounds on Crescent Road), asserting a claim that the Genovas' expanded cottage encroaches on Lot 19, and seeking to enjoin the Genovas from interfering with SBA's access to the footpath, boat ramp, and dock. The Genovas counterclaimed, requesting, inter alia, a declaratory judgment concerning the parties' respective rights in Crescent Road and the footpath, and the Genovas' rights through adverse possession or an easement in the area of their encroachment onto Lot 19.

In May, 2007, a Superior Court judge issued a bifurcation order, and the following month, the case proceeded to a bench trial on the issue of ownership of the portion of Crescent Road abutting Lot 18. In April, 2009, the judge conducting the bench trial (first judge) concluded that the Genovas own a fee simple interest in the portion of Crescent Road abutting Lot 18 through the entire width of the way, as well as a portion of the adjacent pond bed to the midpoint of Island Pond. As set forth in greater detail infra, the first judge also determined the angle at which the Genovas' and SBA's shared lot line extends into Crescent Road.

Following a jury trial before a different judge (trial judge) in June, 2013, the jury found that SBA had obtained (i) a prescriptive easement in the footpath and (ii) title by adverse possession to both the boat ramp and the land under the dock. The jury also found that the Genovas had obtained by adverse possession the title to the strip that encroached on Lot 19. The trial judge reserved to himself the determination of the northwesterly boundary of Crescent Road and took expert testimony on the question, ultimately declaring that the boundary, in the area of Lots 18 and 19, is the mean low water mark of Island Pond.

In July, 2013, the Genovas filed a motion for judgment notwithstanding the verdict (judgment n.o.v.). The trial judge agreed that, rather than establishing adverse possession to the dock and boat ramp, SBA had acquired only a prescriptive easement; he denied relief as to the finding regarding a prescriptive easement in the footpath. Final judgment entered in August, 2013, incorporating the findings of both the bench trial and the jury trial. A subsequent motion by the Genovas to alter or amend the judgment was denied, and the parties timely filed their cross appeals.

Discussion. 1. Application of G. L. c. 183, § 58. SBA appeals from the first judge's determination that the Genovas and SBA each own a fee simple interest in the entire width of Crescent Road. SBA maintains that proper application of G. L. c. 183, § 58 (the derelict fee statute) results in the parties owning the fee in Crescent Road only to its mid-point. We agree.

To begin, both Lots 18 and 19 abut Crescent Road -- a way. Moreover, relying principally on Inhabitants of Lynnfield v. Inhabitants of Peabody, 219 Mass. 322, 106 N.E. 977 (1914), the first judge determined that Island Pond was a privately owned Great Pond. It follows that, when Kendrick and Hall granted Lots 18 and 19 to Myrbeck, they retained real estate (the pond bed of Island Pond) on the side of Crescent Road opposite from Lots 18 and 19. Compare Paine v. Woods, 108 Mass. 160, 169-170 (1871) ; Inhabitants of Lynnfield, supra at 336, 106 N.E. 977. Applying the derelict fee statute to this conveyance (wherein the grantor retained real estate abutting and on the other side of the way), the title conveyed to Myrbeck was only to the center line of Crescent Road in the absence of express evidence in the instrument of a contrary intent in the conveyance. G. L. c. 183, § 58.

The Genovas contend such an intent derives from the usual presumption that a grant of land bounded by a pond includes a portion of the pond bed. See Paine, 108 Mass. at 169 ("The general rule of construction of all grants of land bounded by water of any kind is now well established, that, unless qualified by restrictive words, they pass the soil towards the centre of the water, as far as the grantor owns"). However, Lots 18 and 19 do not abut Island Pond; instead, the lots abut a way -- namely, Crescent Road. Thus, the grant of Lots 18 and 19 to Myrbeck did not convey the pond bed on the other side of Crescent Road. See Kane v. Vanzura, 78 Mass. App. Ct. 749, 754, 943 N.E.2d 456 (2011) (grant of the upland parcel bounded by a way did not convey the tidelands on the other side of the way). Instead, Kendrick and Hall retained ownership of the pond bed. Accordingly, Kendrick and Hall also retained the fee to the center line of the pondward half of Crescent Road abutting their retained land. See G. L. c. 183, § 58 ; id. at 755, 943 N.E.2d 456.

2. The course of the parties' shared side lot line as it extends into Crescent Road. We turn to the Genovas' appeal from the first judge's determination of the angle at which the Genovas' and SBA's shared lot line extends into Crescent Road. During the bench trial, SBA asserted that the derelict fee statute requires that the side lot line continue into the way along the same directional course it runs between the lots. The Genovas contended that the side lot line continues into the way at right angles to the centerline of the way. The first judge split the difference, deciding that the Genovas' and SBA's shared side lot line should be extended into Crescent Road at an angle precisely in the middle between the angle proposed by the Genovas and the angle proposed by SBA. The Genovas have appealed from this aspect of the judgment, which we review de novo. See New England Forestry Found., Inc. v. Assessors of Hawley, 468 Mass. 138, 149, 9 N.E.3d 310 (2014) ("We review conclusions of law, including questions of statutory construction, de novo"); Allen v. Allen, 86 Mass. App. Ct. 295, 298, 16 N.E.3d 1078 (2014) (reviewing findings of fact for clear error, but conclusions of law de novo).

We are guided in our analysis by the long-established presumption that, where the shore of a river is relatively straight, abutting owners' title to the riverbed is delineated by extending the shared lot line at right angles to the centerline of the river, unless the grantor expressly states otherwise. See Knight v. Wilder, 2 Cush. 199, 208-209 (1848). See also Tappan v. Boston Water-Power Co., 157 Mass. 24, 30, 31 N.E. 703 (1892) ("[T]he division is effected by drawing lines at right angles from the termini of the side lines on the shore to and at right angles with the thread of the stream"). The purpose of this presumption is "to give to each riparian proprietor an equal share of the bed of the river, in proportion to his line on the margin of the stream, together with that portion of the bed of the stream, which lies opposite, in front of, or adjacent to, his upland." Knight, 2 Cush. at 209-210.

We see no reason why this same presumption should not apply to ways, especially in view of the fact that the derelict fee statute applies equally to real estate abutting ways and watercourses. Accordingly, where a grantor passes title to real estate abutting a way and retains other real estate abutting the way, the grantee's fee in the way is determined by extending the granted parcel's side lot lines into the way at right angles to the centerline of the way. Thus, Crescent Road is divided as between Lots 18 and 19 by extending their shared lot line at right angles to the centerline of the road, and the judgment must be modified accordingly.

3. SBA's prescriptive easement over the dock, footpath, and boat ramp. a. Pondward half of Crescent Road. As set forth supra, the pondward half of Crescent Road and the adjacent pond bed are owned by Kendrick and Hall (or their heirs, successors, and assigns), none of whom are parties to this action. Therefore, there has been a failure to join necessary parties, and, to the extent the judgment purports to declare the parties' rights in the pond bed, the seasonal dock, and the portion of the boat ramp that lies on the pondward half of Crescent Road, it must be vacated. See note 12, supra.

b. Permissive use. SBA's claim to a prescriptive easement over the footpath and the portion of the boat ramp (however small) on the landward half of Crescent Road belonging to the Genovas requires "clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 44, 859 N.E.2d 876 (2007). See G. L. c. 187, § 2. On appeal, the Genovas contend that the trial judge erred in denying so much of their motion for judgment n.o.v. as asserted that SBA failed to establish a prescriptive easement over the footpath and the boat ramp because, according to the Genovas, SBA's use of those areas was permissive.

A judge's task in considering a motion for judgment n.o.v. is, "taking into account all the evidence in its aspect most favorable to the [nonmovant], ... to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the [nonmovant]." OMV Assocs., L.P. v. Clearway Acquisition, Inc., 82 Mass. App. Ct. 561, 565, 976 N.E.2d 185 (2012), quoting Phelan v. May Dep't Stores Co., 443 Mass. 52, 55, 819 N.E.2d 550 (2004). "The judge considers whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn' in the [nonmovant's] favor." OMV Assocs., supra, quoting Poirier v. Town of Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978). We apply the same standard on appeal. OMV Assocs., supra.

SBA presented substantial evidence of the use of the footpath, starting at least as far back as the 1940s and continuing until the Genovas blocked the path with a fence in 2004. There was also evidence from which the jury could infer use of the boat ramp by SBA's members and predecessors as far back as the 1950s and 1960s (when it was a rocky or sandy ramp) through 2004.

This longtime continuous use, spanning more than twenty years, triggered the presumption that the use was nonpermissive. See Houghton v. Johnson, 71 Mass. App. Ct. 825, 836, 887 N.E.2d 1073 (2008), quoting Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760, 763, 200 N.E.2d 282 (1964) (where "there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription ... unless controlled or explained"). See also White v. Chapin, 12 Allen 516, 519-520 (1866). Accordingly, the Genovas were required to overcome that presumption by showing that the use was permissive. See Daley v. Town of Swampscott, 11 Mass. App. Ct. 822, 827, 421 N.E.2d 78 (1981) ("Once the presumption arises, the landowner has the burden of rebutting it by showing that the use was permissive").

Whether a pattern of conduct and use suggests permission ultimately is a question of fact, which depends on the weight of the evidence, the credibility of the witnesses, and the reasonable inferences to be drawn therefrom; accordingly, it is best left to the jury. Here, the jury were not required to find that the Genovas met their burden to overcome the presumption that the longtime use of the footpath and boat ramp was nonpermissive. There was no evidence that any owner of either Lots 18 or 44, including the Genovas, expressly gave permission to anyone to use the footpath; in addition, several SBA witnesses testified that they did not ask permission to use the footpath, using it under a claim of right. With regard to the boat ramp, the only evidence of permissive use was Patricia Genova's testimony that on one occasion she gave permission to a non-SBA member to use the boat ramp. Accordingly, the evidence supports the jury's finding that the continuous use of the footpath and the boat ramp was nonpermissive.

c. Use attributable to SBA. Contrary to the Genovas' argument, the evidence was sufficient for the jury to find that the aforementioned continuous use was attributable to SBA and its predecessors. In particular, there was substantial evidence that the footpath and boat ramp were among the various amenities controlled by SBA, the use of which SBA restricted to its members (and their guests). For example, several witnesses testified about SBA's annual Memorial Day weekend events during which SBA required members to participate themselves (or to send others) to clean up the beach area, rake and bring plantings for the hill on Lot 19, rake and mow the neighborhood footpaths, and install the dock for the season. These events coincided with SBA's annual meeting. One SBA member testified that he attended these Memorial Day clean-up events from 1969 (when Lot 19 was owned by the trust) to 1994.

The evidence regarding the boat ramp also permitted an inference that SBA controlled access. From 1980 through 2005, SBA maintained signage, including near the boat ramp, that the area was SBA's private property. SBA exercised control over improvements to the boat ramp. For example, in 1975, when the Genovas wanted to alter the sandy, rocky ramp, they sought permission and funds from SBA. SBA approved the alterations, at the expense of the SBA members (such as the Genovas) who were boat owners. In 1985, the topic of paving the boat ramp was again considered by SBA. This time SBA agreed to pave the ramp, funding a portion of the work so long as use of the ramp remained restricted exclusively to SBA members and guests. In 1990, SBA installed a chain to prevent non-SBA members from using the ramp. The chain was still in place in 2004. The jury could infer from all of this evidence that the use of the footpath and the Genovas' boat ramp by SBA members was under the authority of SBA itself or its predecessors in interest.

4. Gate on the footpath. In his posttrial decision, the trial judge allowed the Genovas to erect an unlocked, hinged gate at both side boundaries of their property. SBA claims the gate is an impermissible obstruction of the footpath. However, SBA has not shown that the gate unreasonably interferes with its right of passage over the footpath. See Martin v. Simmons Props., LLC, 467 Mass. 1, 9, 2 N.E.3d 885 (2014), quoting Restatement (Third) of Property (Servitudes) § 1.2 comment d (2000) (Restatement) (A servient estate owner "retains the right to make all uses of the land that do not unreasonably interfere with exercise of the rights granted by the servitude"). See also Ball v. Allen, 216 Mass. 469, 472-473, 103 N.E. 928 (1914) (A servient owner is permitted to erect gates across an easement so long as they are "located and maintained as not unreasonably to interfere with the ... privilege of passage"). Moreover, SBA has not shown any additional burden or frustration of the utility or purpose of the easement. See M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87, 90, 809 N.E.2d 1053 (2004), quoting Restatement § 4.8(3) (A servient owner may relocate an easement so long as the change in location does not "[a] significantly lessen the utility of the easement, [b] increase the burdens on the owner of the easement in its use and enjoyment, or [c] frustrate the purpose for which the easement was created").

5. Admissibility of the Genovas' expert's plan concerning the location of Crescent Road. As we have noted, the trial judge reserved to himself the question of the northwesterly boundary of Crescent Road. On appeal, SBA maintains that the trial judge erred in admitting the plan drawn by the Genovas' expert surveyor, Wayne Jalbert (Exhibit 2), which depicts the northwesterly sideline of Crescent Road as shown on the Unit B plan. We review the judge's decision regarding admissibility for abuse of discretion. See Chan v. Chen, 70 Mass. App. Ct. 79, 84, 872 N.E.2d 1153 (2007) ; Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 837, 838, 22 N.E.3d 960 (2015). We review SBA's challenge to any legal conclusion de novo, and findings of fact for clear error. See Cavadi v. DeYeso, 458 Mass. 615, 624, 941 N.E.2d 23 (2011) ; Mercurio v. Smith, 24 Mass. App. Ct. 329, 331, 509 N.E.2d 286 (1987).

The judge did not abuse his discretion in admitting Exhibit 2. Indeed, SBA does not quarrel with Jalbert's qualifications and does not argue that his testimony or plan was not based on sound, scientifically valid principles. See Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994). Instead, SBA's argument centers on its view that the Unit B plan is too rudimentary to be relied upon.

"A plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Wellwood v. Havrah Mishna Anshi Sphard Cemetery Corp., 254 Mass. 350, 354, 150 N.E. 203 (1926). Where a deed conveys land "bounded and described, according to a plan, ... [t]hese words are satisfied if the reference to the plan be taken to have been for purposes of boundary and description." Williams v. Boston Water Power Co., 134 Mass. 406, 416 (1883). See Boston Water Power Co. v. City of Boston, 127 Mass. 374, 376 (1879) ; Walker v. Boynton, 120 Mass. 349, 351 (1876). Accordingly, because the deeds to Lots 18 and 19 describe the extent of the interest conveyed only by reference to the Unit B plan, that plan controls the location and size of those parcels as well as the location of the road in relation to their land. See Stearns v. Rice, 14 Pick. 411, 413 (1833) ("In applying descriptions to local objects, it must be understood that the parties had reference to local objects as they existed at the time the deed was made, unless there is something to control this presumption").

SBA argues that the northwesterly boundary of Crescent Road is a littoral boundary that must follow the naturally changing line as the natural process of accretion or erosion changes that line. See Bergh v. Hines, 44 Mass. App. Ct. 590, 592, 692 N.E.2d 980 (1998) ("[L]ittoral [shoreline] boundaries are not fixed, because natural processes of accretion or erosion change them, and ... easements, stated to run with such a boundary, ordinarily will follow the naturally changing line"). Of course, "[t]hat a natural monument may be ambulatory or impermanent does not negate its use as a boundary.... When such a monument is used as a boundary, the boundary 'must be taken to refer to the condition of the land at the time the deed was given.' " White v. Hartigan, 464 Mass. 400, 411, 982 N.E.2d 1115 (2013), quoting Marvel v. Regienus, 329 Mass. 414, 418, 108 N.E.2d 545 (1952). Here, although the trial judge invited SBA to present reliable evidence of any purported natural changes in the northwesterly side of Crescent Road, none was presented. SBA points to no evidence (other than the Unit B plan itself) in the voluminous record that could shed light on (i) the intent of Kendrick and Hall with respect to the locations and dimensions of Lots 18 and 19 and Crescent Road, (ii) the location of either the high or low water line as of 1927 when the Unit B plan was recorded, or (iii) the mean high or low water mark along the northwesterly side of Crescent Road. Given SBA's failure to adduce any evidence to the contrary, we see no error in the judge's reliance on the Unit B plan as the best and only available evidence of record, regarding the intent of Kendrick and Hall.

In fact, contrary to its argument on appeal, SBA took the position during the bench trial that Island Pond's shoreline does not change naturally, arguing:

"This isn't the ocean where the tides have a kind of force where they can literally change the shoreline over any period of time, or in a moment's time in a sever[e] storm or Northeaster. This is not a river or a stream where you can have flooding conditions and unusually rapid current and they can literally reshape and re-carve the bed of the pond because of the extraordinary conditions, this is a pond. It sits in the inlet. There's no force of nature that is going to cause accretion ...."

Moreover, substantial evidence of artificial accretion emerged during the jury trial. One of SBA's witnesses testified that dump-truck loads of sand were added to the beach up to a half-dozen times between 1972 and 2004, and that on other occasions sand was dredged from the pond and deposited on the beach. Arthur Genova testified that between 1974 and 2005, the beach was "re-sanded" three times, with the last of those involving the deposit of two dump-truck loads, creating a three- to four-inch top layer of sand over the beach. He also testified that on one occasion, a bulldozer pulled sand out of the pond, though he could not supply a date. Accordingly, there is ample evidence of artificial accretion, which is "not a recognized method of changing littoral boundaries." Bergh, 44 Mass. App. Ct. at 592, 692 N.E.2d 980. Given the foregoing, the trial judge properly admitted and adopted Exhibit 2 in the judgment.

6. Encroachment onto Lot 19. Because SBA brought no directed verdict motion, it waived any challenge to the sufficiency of the evidence presented in support of the Genovas' counterclaim for adverse possession of the ten- by fifty-foot strip encroaching on Lot 19. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 846-847, 443 N.E.2d 1308 (1983) ; Bolton v. Massachusetts Bay Transp. Auth., 32 Mass. App. Ct. 654, 657-658, 593 N.E.2d 248 (1992).

7. Implied easement. SBA correctly argues that Declaration no. VI of the judgment, declaring that "Crescent Road is an easement for the benefit of the owners of all lots set forth on the Unit B plan," cannot stand, as the parties to this case lack standing to seek a declaration on behalf of nonparties. See Uliasz, 357 Mass. at 104-105, 256 N.E.2d 290. Contrast Cheever v. Graves, 32 Mass. App. Ct. 601, 604-605, 592 N.E.2d 758 (1992). Moreover, adjudicating the existence of such an easement required the presence of additional indispensable parties. Compare note 12, supra.

Conclusion. The judgment shall be modified as follows. Declaration no. IV is modified to provide that the owners of Lot 18 and Lot 19 own the fee in Crescent Road to the midpoint of the road.

So much of Declaration no. V as purports to declare the location of the division line in Crescent Road between Lots 17 and 18 is vacated. The remainder of Declaration no. V shall be modified to provide that the division line in Crescent Road between Lot 18 and Lot 19 shall be determined by extending their shared boundary lot line at right angles to the center line of Crescent Road.

As there has been a failure to join necessary parties, Declaration nos. VI and VII, concerning certain easement rights, are vacated.

Declaration no. VIII, concerning SBA's easement by prescription to the boat ramp, and referencing a map designated "Exhibit 2" to the judgment, shall be modified by adding that, to the extent Exhibit 2 conflicts with Declaration no. V as modified, Declaration no. V shall control.

As so modified, the judgment is affirmed. The order denying the Genovas' motion to alter or amend the judgment is affirmed.

So ordered.

APPENDIX .

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      The Unit B plan, a copy of which is reproduced in the appendix to this opinion, is titled "Plan of Camp Lots at Great Herring Shores: The Cape's Master Camp Site," and bears a stamp indicating that it was recorded at the Plymouth County Registry of Deeds on August 3, 1927.

      In 1926, the common grantors (Kendrick and Hall) acquired a large parcel bounded easterly by Great Herring Pond and extending westerly across Island Pond, as set forth in the locus map appearing in the upper right hand corner of the Unit B plan. This large parcel was subdivided into lots included on several plans, including the Unit B plan.

      At some point, a bandstand or dance floor was installed either on Lot 19 or on the directly adjacent portion of Crescent Road.

      Well before 1975 (the date is not revealed in the record), Lot 18 was improved with a summer cottage.

      Prior to the jury trial, a Superior Court judge disqualified SBA's counsel because he had become a necessary witness. On an interlocutory appeal, the Supreme Judicial Court vacated that order. Smaland Beach Ass'n v. Genova, 461 Mass. 214, 231, 959 N.E.2d 955 (2012).

      Contrary to the Genovas' argument, the trial judge did not abuse his discretion in allowing SBA to try its adverse possession claim to the jury. See Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 269, 866 N.E.2d 901 (2007).

      The derelict fee statute provides, in relevant part:
      "Every instrument passing title to real estate abutting a way, whether public or private, [or] watercourse ... shall be construed to include any fee interest of the grantor in such way [or] watercourse ... unless (a) the grantor retains other real estate abutting such way [or] watercourse ... in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way [or] watercourse ... as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way [or] watercourse ... between the division lines extended, the title conveyed shall be to the center line of such way [or] watercourse ... or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line" (emphasis added). G. L. c. 183, § 58.

      The parties do not appeal from this finding, which is binding only on the parties and their privies.

      See note 2, supra.

      The Genovas' other arguments regarding the fee interest in Crescent Road also lack merit. See Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).

      Our conclusion that Kendrick and Hall retained ownership of the pond bed and the pondward half of Crescent Road has repercussions for a number of issues raised by the parties. As will become clear throughout our opinion, Kendrick and Hall (or their heirs) were necessary parties for the adjudication of issues affecting their retained interest. Thus, any declaration in the judgment addressing such issues must be vacated. See Uliasz v. Gillette, 357 Mass. 96, 105 & n.8, 256 N.E.2d 290 (1970) ; Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 290, 833 N.E.2d 157 (2005) ; Kane, 78 Mass. App. Ct. at 757-758 & n.16, 943 N.E.2d 456.

      This presumption was established before adoption of the derelict fee statute; there is no indication in the derelict fee statute of an intent to alter this common-law rule. See Pineo v. White, 320 Mass. 487, 491, 70 N.E.2d 294 (1946) ("A statute is not to be interpreted as effecting a material change or a repeal of the common law unless the intent to do so is clearly expressed"). See also Suffolk Constr. Co. v. Division of Capital Asset Mgt., 449 Mass. 444, 454, 870 N.E.2d 33 (2007) ("We consider the statute in light of the common law"); Tattan v. Kurlan, 32 Mass. App. Ct. 239, 243, 588 N.E.2d 699 (1992) (construing derelict fee statute as incorporating common-law principle of presumed intent).

      A similar presumption is generally applied to division of saltwater flats. See Rust v. Boston Mill Corp., 6 Pick. 158, 168-169 (1828) ; Gray v. Deluce, 5 Cush. 9, 12-13 (1849) ; Wonson v. Wonson, 14 Allen 71, 79 (1867) ; Stone v. Boston Steel & Iron Co., 14 Allen 230, 234 (1867) ; Tappan v. Boston Water-Power Co., 157 Mass. 24, 29-31, 31 N.E. 703 (1892).

      Here, Crescent Road proceeds on a relatively straight line where it passes Lots 18 and 19; accordingly, we see no basis (and SBA cites none) to depart from this well-established presumption.

      As the owners of Lot 17 are not parties to this case, we must vacate the judgment to the extent it declares the location of the dividing line in Crescent Road between Lot 17 and Lot 18. Compare note 12, supra.

      We leave it to the parties to determine what, if any additional steps are required to determine the course of this line. Both parties appear to suggest that additional surveying or computation is required to determine the location of the dividing line perpendicular to the centerline of Crescent Road.

      Contrary to the Genovas' argument, failure to join necessary parties is not a proper ground for dismissal unless the court lacks personal jurisdiction over the unnamed parties. See Mass. R. Civ. P. 21, 365 Mass. 767 (1974). See also Sadler v. Industrial Trust Co., 327 Mass. 10, 13, 97 N.E.2d 169 (1951).

      On appeal, the Genovas appear to suggest that SBA's claim to a prescriptive easement to use the boat ramp is moot because such use is not inconsistent with SBA's undisputed passageway easement over Crescent Road. This position is at odds with the Genovas' apparent position at trial. Because the Genovas do not concede unambiguously that SBA may use the boat ramp, we address the merits of their arguments challenging the declaration that SBA has a prescriptive easement in the boat ramp.

      SBA claims that the Genovas waived the argument that use of the footpath was permissive by not including it in their directed verdict motion. Because SBA did not object to the Genovas' inclusion of this argument in their motion for judgment n.o.v., however, SBA has waived the right to object on appeal. See Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 583-584, 672 N.E.2d 547 (1996).

      Indeed, the Genovas did not apparently contest that the footpath was used by the Smaland community until at least 1982. Instead, the Genovas argued that any use of the footpath was terminated when, in May, 1982, SBA held its annual Memorial Day weekend meeting and told its members to stop using the path that went by one of its new member's patio. However, the jury were not required to find on the Genovas' behalf in the face of ample evidence of the use of the footpath long after the 1982 annual meeting and continuing until the Genovas blocked the path with a fence in 2004.

      Although Arthur Genova testified that he found the late-night use of the footpath annoying when he first bought Lots 18 and 44 in the 1970s, he did nothing to stop anyone from using the path until 2004.

      Contrary to the Genovas' contention, the jury were not required to find that the use was permissive even though some witnesses agreed with the Genovas' counsel's characterization that they thought they had "permission" to use the path.

      Nor did the communal and familial history of Smaland or the fact that Lot 19 was considered communal, servient property require that the jury find the use of either the footpath or the boat ramp permissive. See, e.g., Totman v. Malloy, 431 Mass. 143, 146, 725 N.E.2d 1045 (2000) (declining to "create a presumption or inference of permissive use among 'close' family members").

      As to use of the footpath by SBA's predecessors in interest, while there was no direct evidence as to either Myrbeck's or Ludvigson's use of the footpath, one SBA member and former board member testified that, in 1972, Ludvigson (who at that time had already conveyed out Lot 19, but owned at least one other lot abutting the footpath [Lot 41] ) told the witness that she could use the entire footpath and was expected to maintain the portion of it that fronted her property (Lot 16). Substantial evidence also showed that the footpath was used frequently by trust beneficiaries for access to the beach and to various cottages during the time Lot 19 was held by the trust from 1958 to 1971. The Genovas' argument that this usage of the footpath (through Lot 44) must have been permissive because the trust could not have acted adversely to its beneficiaries is belied by the parties' stipulation that the original trust beneficiaries did not include the owner of Lot 44.

      On appeal, the Genovas also argue that SBA's prescriptive easement claims were ultra vires because they fall outside the scope of the purpose set forth in SBA's articles of incorporation. This argument was not presented in the Genovas' motion for judgment n.o.v., and is waived. See Reckis v. Johnson & Johnson, 471 Mass. 272, 300, 28 N.E.3d 445 (2015).

      The Genovas acknowledge in their brief that SBA organized the maintenance of the neighborhood paths (including the footpath behind the Genovas' home) during Memorial Day weekend clean-up sessions in which SBA members participated.

      We reject SBA's argument that the trial judge erred in altering the jury's verdict regarding SBA's use of the boat ramp from a finding of adverse possession to a finding of prescriptive easement. The evidence was that the Genovas used and improved the boat ramp and, thus, SBA's use was not exclusive, as is required to obtain adverse possession. See Ryan v. Stavros, 348 Mass. 251, 262, 203 N.E.2d 85 (1964).

      SBA also asserts that the judge should have required the Genovas to remove portions of a bunkhouse and retaining wall that, it argues, also impermissibly obstruct the footpath. SBA points to no evidence, however, that either the bunkhouse or the retaining wall prevents passage over the footpath.

      Jalbert explained his opinion that the Unit B plan was the result of a field instrument survey and reliable given the precision of the dimensions.

      In its verified complaint, SBA asserted that it periodically "re-sands" the beach.

      SBA's challenges to the trial judge's comments and to the omission of certain proposed jury instructions on the issue of the Genovas' encroachment onto Lot 19 lack merit.