Plaintiffs Ronald M. Sullivan and Mary N. Sullivan (together, Plaintiffs) filed their unverified Complaint on June 18, 2004, pursuant to G.L. c. 231A, seeking: (1) a Declaratory Judgment that Defendants Daniel Dart (Dart), Trustee of 20 Strawberry Lane Realty Nominee Trust (the Dart Trust), Joseph O. Scarlatelli and Helen A. Scarlatelli (the Scarlatellis), and David M. and Carol Bocksch (the Bockschs) (together, Defendants) have not defeated Plaintiffs claim for deeded and/or prescriptive rights relative to three ten-foot wide rights of way (Disputed Area A, Disputed Area B, and Disputed Area C, as hereinafter defined) (together, the Disputed Area) and Plaintiffs fee interest in Strawberry Lane, as hereinafter defined; (2) to define such rights; and (3) a declaration of Plaintiffs rights in a ten-foot wide section of shoreline on Ryders Cove (Recreational Area)., Defendants filed their Answer and Counterclaim on September 20, 2004, seeking a determination of rights with respect to the Disputed Area and the Recreational Area. On October 18, 2004, Plaintiffs filed an Answer to the Counterclaim.
Plaintiffs filed their Motion for Summary Judgment on June 25, 2007, together with a supporting brief and a Statement of Facts. On July 24, 2007, Defendants filed a Statement of Facts and Brief in Opposition of Motion for Summary Judgment. Because there were disputed material facts, at a telephone conference on July 26, 2007, this court ordered a trial on the issues. A pre-trial conference was held on October 29, 2007, and a Joint Pre-Trial Memorandum was filed on November 9, 2007, in which the parties agreed upon certain facts and exhibits. A site view was held on December 10, 2007, and on the same day the first day of trial was held at Orleans District Court. On December 11, 2007, the second day of trial was held at the Land Court in Boston. Testimony at trial was given by Plaintiffs= witnesses Ronald M. Sullivan (Plaintiff), Mary N. Sullivan (Plaintiff), and Frank J. Shealey (Shealey) (attorney for Plaintiffs predecessor in title), and Defendants= witnesses Joseph O. Scarlatelli (Defendant), Helen Pinky Scarlatelli (Defendant), Daniel J. Dart (Defendant), and Frederic Bearse, Jr. (Bearse) (neighbor who resides at 676 Orleans Road, Chatham). Thirty two exhibits were admitted into evidence. On March 11, 2008, Plaintiffs filed their Post Trial Brief. Defendants filed their Post Trial Memorandum on March 13, 2008, at which time the matter was taken under advisement. A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Plaintiffs own a twenty-three foot wide fee interest in Strawberry Lane which does not include Disputed Area C.
ORDERED and ADJUDGED that Plaintiffs own the fee interest in Strawberry Lane unencumbered by an adverse possession or prescriptive rights claim by the Scarlatellis, and that Plaintiffs have the right to demand the removal of any encumbrance within such way.,
ORDERED and ADJUDGED that Plaintiffs own the fee interest in the portion of Strawberry Lane that lies adjacent to the Syzmanski/Vigneault Property unencumbered by an adverse possession or prescriptive rights claim of Syzmanski/Vigneault. As a result, Plaintiffs have the right to demand the removal of any encumbrance in such way.,
ORDERED and ADJUDGED that Plaintiffs have an implied easement to use Disputed Area A for only pedestrian access to the Recreational Area.
ORDERED and ADJUDGED that the Scarlatellis have failed to limit Plaintiffs pedestrian easement rights in Disputed Area A through prescriptive use or abandonment, and, thus, Plaintiffs have the right to remove any encumbrances in such way that are inconsistent with Plaintiffs use of their pedestrian rights in Disputed Area A.,
ORDERED and ADJUDGED that Plaintiffs have full deeded rights to use Disputed Area B for all purposes of a way, including vehicular access.
ORDERED and ADJUDGED that Dart has failed to limit Plaintiffs vehicular rights in Disputed Area B because he failed to show twenty consecutive years of exclusive use.
ORDERED and ADJUDGED that Plaintiffs shall have the right to demand the removal of the two scrub brushes, and the portion of the 1.3-foot wide stone retaining wall (and the associated hydrangeas and garden) located in Disputed Area B, as shown on the 2007 Plan, to the extent that such obstructions prohibit vehicular access along Disputed Area B.
ORDERED and ADJUDGED that Plaintiffs have full deeded easement rights of access to Disputed Area C, including vehicular rights.
ORDERED and ADJUDGED that Syzmanski/Vigneault fail to limit Plaintiffs rights through adverse possession because they fail to demonstrate twenty consecutive years of exclusive use of Disputed Area C.
ORDERED and ADJUDGED that the trial record does not support a conclusion that Plaintiffs have abandoned their easement rights in Disputed Area C. As such, Plaintiffs shall have the right to demand the removal of any encumbrances that prohibit Plaintiffs vehicular access over Disputed Area C.
ORDERED and ADJUDGED that Plaintiffs interest in the Recreational Area does not include the right to store a small dinghy or kayak during the boating season.
By the court. (Sands, J.)
Attest: Deborah J. Patterson Recorder
Dated: August 11, 2009