BALBINO WHITE v. AMIFF HOUSING ASSOCIATES, LP

Balbino White (the “Plaintiff”) filed this complaint on June 24, 2002 pursuant to G.L. 231A, §1, seeking to establish an easement over a portion of land (82 and 86 American Legion Highway) owned by Amiff Housing Associates, LP (the “Defendant”) for access to his land at 86R American Legion Highway from American Legion Highway (f/k/a Canterbury Street). The Plaintiff also seeks to permanently enjoin the Defendant from interfering with the use of the claimed easement and an order compelling Defendant to remove all barriers obstructing the passage across the easement.

A two day trial commenced on March 19, 2007 and concluded on March 20, 2007 at the Land Court in Boston and a site visit to the subject property was taken in the presence of the court and counsel on April 6, 2007. At trial, four witnesses testified under oath, one (1) chalk was marked and thirty-nine (39) exhibits were admitted into evidence. In the interest of having a complete record, this court (Trombly, J.) issued an Order Settling the Record on February 29, 2008 in which it accepted three (3) additional exhibits.

After carefully considering all of the evidence, the court entered a Decision today, ruling that there is an easement across Defendant’s land to access American Legion Highway as indicated on the decision sketch. Even though the easement was not contained in the Plaintiff’s deed, the evidence establishes that an appurtenant easement benefiting the Plaintiff’s land was created by express grant. Furthermore, the court finds that the easement has not been extinguished by either abandonment or by prescription.

In accordance with that Decision, it is

ORDERED, ADJUDGED, and DECLARED that a valid and lawful easement across 82 and 86 American Legion Highway exists for the benefit of 86R American Legion Highway allowing access from that lot to American Legion Highway; and it is further

ORDERED and ADJUDGED that defendants, their agents, employees and assigns are enjoined from taking any action to interfere with Plaintiff’s use of that easement, and are ordered to move or remove any gates, fences or chains which interfere with such use.

By the Court. (Trombly, J.)