JAY L. McDERMOT, and SHARON A. McDERMOT v. MARIE BERNICE NAGLE, PAULINE T. BELISLE, and MARCIA MORRIS

Plaintiffs, Jay L. McDermot and Sharon A. McDermot, commenced this action on March 23, 2005, seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, as to their rights in a parcel of real property, commonly known as “Driftway” in Amesbury, as shown on a plan of land titled “Plan of Land in Amesbury, Chas. H. Morse & Son, Surveyors, November 21, 1964, November 29, 1965,” filed with Certificate of Title No. 36821 in the Essex South Registry District of the Land Court (“Driftway”). Plaintiffs seek also a permanent injunction enjoining defendants from obstructing or interfering with their use of Driftway. [Note 2], [Note 3] Plaintiffs claim a deeded fee interest in Driftway or, in the alternative, an easement by prescription over the way. Defendants deny that plaintiffs hold any rights in Driftway.

On May 11, 2005, defendants, Pauline T. Belisle and Marcia Morris (“Belisle Defendants”), filed an Answer and Counterclaim, seeking declaratory judgment as to the plaintiffs’ claimed rights in Driftway and seeking also preliminary and permanent injunctions enjoining plaintiffs from using Driftway and storing any personal property thereon. Plaintiffs filed an Answer to the Counterclaim on June 10, 2005.

On July 12, 2005, defendant, Marie B. Nagle (“Nagle Defendant”) filed an Answer, Counterclaim, and Cross-Claim. Belisle Defendants filed an Answer to the Cross-Claim on July 29, 2005. Plaintiffs filed an Answer to the Counterclaim on August 30, 2005.

On December 5, 2005, plaintiffs filed a Motion for Summary Judgment on Count I of the Complaint. Belisle Defendants opposed the motion on January 3, 2006. Nagle Defendant opposed the motion on May 8, 2006. The motion was argued before the Court on May 12, 2006, and taken under advisement. The Court (Trombly, J.) issued an Order on June 28, 2007, allowing the plaintiffs’ Motion for Summary Judgment on Count I of the Complaint, ruling that because the plaintiffs’ property is described by deed as bounded by Driftway, the property includes a fee interest in the adjacent portion of Driftway to the centerline, as well as an implied easement to pass and re-pass over the entire length of Driftway on foot or with vehicles for the purpose of accessing Lake Attitash.

On October 14, 2008, the Court took a view of the property in the presence of counsel. Trial was held and completed the same day at the Newburyport District Court. Court Reporter Wendy Thomas was sworn to take the testimony. Testifying were Sharon A. McDermot, Jay L. McDermot, Thomas J. Nihan, Marcia G. Morris, and Marie B. Nagle. Exhibits 1-8 and 11-20 were admitted into evidence and chalks A-E were marked for identification.

After careful consideration of all of the evidence, the Court entered a Decision today, ruling that plaintiffs have not established right by prescriptive easement over Driftway, and there is no right to construct, repair, or improve a retaining wall or stairway where Driftway abuts Lake Attitash, at this time.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the plaintiffs, Jay L. McDermot and Sharon A. McDermot’s property includes a fee interest in the adjacent portion of Driftway to the centerline as well as an implied easement to pass and re-pass over the entire length of Driftway on foot or with vehicles for the purpose of accessing Lake Attitash;

ADJUDGED and ORDERED that the plaintiffs do not have a prescriptive easement over Driftway;

ADJUDGED and ORDERED that the defendants, Pauline T. Belisle and Marcia Morris, do not have the right to construct or repair a retaining wall where Driftway abuts Lake Attitash, at this time;

ADJUDGED and ORDERED that the defendants, Pauline T. Belisle and Marcia Morris, do not have the right to repair or improve the stairway located about the southwest corner of Driftway;

ADJUDGED and ORDERED that personal property may be brought onto Driftway by the parties or their guests and may be maintained on Driftway temporarily during the owner’s use of Driftway, but may not be stored on Driftway;

ADJUDGED and ORDERED that vehicles may be temporarily parked on Driftway for the purposes of loading and unloading, but mAy not be parked for other purposes or stored on Driftway; and it is further

ADJUDGED and ORDERED that any personal property, including vehicles, which are currently encroaching on Driftway, must be removed by its owner, immediately, no matter how small the encroachment.

By the Court (Trombly, J.).