REBECCA R. YOUNG vs. ROBERT C. ORDUNG and PATRICIA H. ORDUNG

Plaintiff, Rebecca R. Young, (“Plaintiff”) filed a verified Complaint on January 18, 2006, pursuant to G. L. c. 231A seeking a Declaratory Judgment that Defendants Robert C. Ordung and Patricia H. Ordung (“Defendants”) have no rights to park on a right of way (the “Right of Way”) owned by Plaintiff, and seeking to enjoin Defendants from parking on the Right of Way and to recover damages for Defendants’ trespass on Plaintiff’s Property, as hereinafter defined, pursuant to G. L. c. 185, §§ 1(k) and (o). Plaintiff filed a Motion for a Preliminary Injunction on February 1, 2006, a hearing was held on February 16, 2006, and the parties entered into a stipulation dated the same day (the “Stipulation”) relative to the use of the Right of Way. [Note 1]

On August 2, 2006, Defendants filed an Answer and Counterclaim, seeking a determination of parking rights with respect to the Right of Way, including claims of adverse possession and prescriptive rights relative to a portion of the Right of Way (the “Disputed Area”). On August 15, 2006, Plaintiff filed her Motion to Strike Defendants’ Answer to Plaintiff’s Complaint and Counterclaim and on August 30, 2006, filed an action for Contempt against Defendants for violation of the Stipulation. A hearing on both matters was held on September 14, 2006, during which Plaintiff withdrew the Motion for Contempt, and the Motion to Strike Defendants’ Answer and Counterclaim was denied.

On April 17, 2007, the parties filed a Joint Pre-Trial Memorandum in which the parties agreed upon certain facts and exhibits. A site view was held on July 16, 2007, and on the same day the first day of a two-day trial was held at Fitchburg Superior Court in Fitchburg, Massachusetts. On July 17, 2007, the second day of trial was held at the Land Court in Boston, Massachusetts. Plaintiff filed a Motion for Involuntary Dismissal at the end of Defendants’ evidence and again at the end of trial, both times based on the fact that Defendants had not proved all elements of adverse possession and prescriptive easements. This court denied both motions. On October 19, 2007, both Plaintiff and Defendants filed Post-Trial Briefs, and the case went under advisement at that time. A Decision of today’s date has been rendered.

In accordance with that Decision it is:

ORDERED and ADJUDGED that the deed to Defendants’ Property located at 19-23 Barnes Court, Lancaster, Worcester County, Massachusetts (“Defendants’ Property”), dated May 18, 1984, and recorded at the Registry at Book 8216, Page 97 (“Defendants’ Deed”), does not grant Defendants the right to park on the Right of Way.

ORDERED and ADJUDGED that Defendants have established twenty years of continuous parking on the portion of the grass strip on Defendants’ side of the Right of Way (the “Disputed Area”) between the gravel driveway (the “Gravel Driveway”), which runs north across Defendants’ Property to the west of the pool area, (on the west) and the end of Barnes Court (on the east), approximately ninety feet long, including a portion of Defendants’ Driveway (“Disputed Area A”).

ORDERED and ADJUDGED that Defendants have not shown twenty years of using the portion of the Disputed Area extending westerly of the Gravel Driveway for approximately 200 feet (“Disputed Area B”) for parking.

ORDERED and ADJUDGED that Defendants have shown twenty years of actual use of Disputed Area A.

ORDERED and ADJUDGED that Defendants’ use of Disputed Area A was open and notorious for the purpose of establishing a prescriptive right to park on Disputed Area A, but not sufficiently open and notorious for the purpose of establishing title to Disputed Area A by adverse possession. [Note 2]

ORDERED and ADJUDGED that Defendants have established a prescriptive right to park on Disputed Area A. [Note 3]

ORDERED and ADJUDGED that the parties shall prepare and record a plan to define the boundaries of Disputed Area A, consistent with the plan attached to the Decision as Exhibit 1.

ORDERED and ADJUDGED that Defendants’ use of Disputed Area A for parking is not a trespass.

ORDERED and ADJUDGED that Defendants shall be enjoined in the future from parking on Disputed Area B and the Right of Way beyond Disputed Area A to which they are granted prescriptive rights, as discussed, supra.

ORDERED and ADJUDGED that there is no basis for awarding damages to the Plaintiff for any past parking on Disputed Area B.

By the court. (Sands, J.)