Plaintiffs commenced this case on November 14, 2005, seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, as to the rights of the parties relative to an easement over property of Defendants, David R. White, June B. White, and Camp Tikvah, Inc.. Defendants filed an Answer and Counterclaim on January 3, 2006, the Counterclaim seeking to enjoin Plaintiff from traversing the easement, a declaratory judgment as to the width and location of the easement, and seeking also damages for injuries resulting from trespass to land.
On May 22, 2009, the court took a view of the property in the presence of counsel. Trial was held and completed the same day at the Bristol County Probate and Family Court in the Durfee Courthouse in Fall River. Stenographer Barbara St. Jean was sworn to take the testimony. Exhibits A-Q were admitted into evidence (including Exhibits C, C-1, C-2, D, D-1, F-1, and F-2; there was no Exhibit F) and Chalks 1 and 2 were marked for identification. Testifying were Plaintiff Julio Johnson and Defendant David R. White. This is the matter presently before the court.
After careful consideration of all of the evidence, the court issued a Decision today, ruling that while Plaintiffs Lakewood Property holds a right to use the Easement over the Defendants Property for access to and from those lots, he does not have such a right to access his property at 2 Upton Street.
In accordance with that Decision, it is hereby:
ADJUDGED and ORDERED that the Plaintiff Julio O. Johnson does not hold a right to use the Easement over the dirt road lying over Defendants, June B. White, David R. White, and Camp Tikvah, Inc.s property, located at 151 Lake Street in Acushnet for access to and from the Plaintiffs property located at 2 Upton Street;
ADJUDGED and ORDERED that Plaintiff is enjoined from using the Easement for access to and from 2 Upton Street;
ADJUDGED and ORDERED that the Easement is located over the dirt road lying over 151 Lake Street in its current location and width;
ADJUDGED and ORDERED that Plaintiff has the right to maintain the dirt road lying over 151 Lake Street to the extent that the disrepair of the road threatens its usability for foot and vehicle traffic for access to and from his Lakewood Property;
ADJUDGED and ORDERED that Plaintiff does not have the right to improve the dirt road lying over 151 Lake Street, including, but not limited to, paving of and laying utility lines over the road; and it is further
ADJUDGED and ORDERED that Defendants, June B. White, David R. White, and Camp Tikvah, Inc., have the right to relocate the Easement to the extent that such relocation does not interfere with the Plaintiffs easement rights.
By the court (Trombly, J.).
[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.