SCOTT DYER and DEBORAH DYER v. JAMES STEVENS

This action was commenced by plaintiffs [Note 2] Scott Dyer and Deborah Dyer, husband and wife, on April 30, 2007, seeking to halt the construction of a garage by the defendant James Stevens. Plaintiffs contend that the new garage either encroaches on their property or that it is being constructed too close to the lot line.

On April 30, 2007 plaintiffs filed a motion for a temporary restraining order seeking to prevent defendant from continuing construction of the disputed garage. The temporary retraining order and summons for a hearing on the application for preliminary injunction were issued on April 30, 2007. On May 7, 2007, arguments were heard on the issuance of a Preliminary Injunction and resulted in the denial of said injunction on May 8, 2007. Despite attempts to negotiate an agreement, the parties were unable to come to a mutually acceptable resolution. Trial was held on October 15, 2008. Linda Modano was sworn to take the testimony. Scott Dyer testified for the plaintiffs. James Stevens, Donna Stevens and Barbara Radell, testified for the defendant. Seventeen exhibits were taken into evidence and Chalk “A” was marked for identification.

After careful consideration of all of the evidence, the Court entered a Decision today, in favor of the defendant.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that Dyers did not prove all of the necessary elements to acquire title by adverse possession to any portion of the Stevens Property;

ADJUDGED and ORDERED that Dyers did not prove all of the necessary elements to establish a prescriptive easement over any portion of the Stevens Property;

ADJUDGED and ORDERED that the Dyers failed to put forth any evidence at trial to prevail on a claim for breach of contract;

ADJUDGED and ORDERED that the Dyers failed to comply with the statutory requirements under G.L. c. 40 A § 17 and therefore that claim was not properly before this Court;

ADJUDGED and ORDERED that so much of the Dyers’ driveway that encroaches on the Stevens Property constitutes a trespass;

ADJUDGED and ORDERED that the Dyers shall remove as much of the driveway as is encroaching on the Stevens Property within thirty (30) days of the date of this decision; it is further

ADJUDGED and ORDERED that failure of the Dyers to remove as much of the driveway as is encroaching on the Stevens Property with in thirty (30) days of the date of this decision, shall be just cause for James Stevens to remove the encroaching portions of the driveway himself.

By the Court (Trombly, J.)