Plaintiff Corinne Sapah-Gulian filed her unverified Complaint on January 29, 2007, seeking this courts interpretation of a view easement pursuant to G. L. c. 185, § 1(k). Defendants filed their Answer on April 6, 2007. A case management conference was held on April 10, 2007. Plaintiff filed her Motion for Summary Judgment on May 1, 2008, together with supporting memorandum, Appendix, and Affidavits of Corinne Sapah-Gulian, Randolph Sapah-Gulian and J. E. Landers-Cauley (Landers-Cauley). On the same day Defendants filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavit of Darrell W. MacLean. On June 2, 2008, Plaintiff filed her Opposition, Affidavits of Randolph Sapah-Gulian (second), Corinne Sapah-Gulian (second), and Michael J. Markoff, Esq., and Supplemental Appendix. On the same day Defendants filed their Opposition and Motion to Strike certain affidavits filed by Plaintiff. Defendants filed their Reply to Plaintiffs Opposition on June 16, 2008, and Plaintiff filed a Reply to Defendants Opposition on June 20, 2008, together with her Opposition to Motion to Strike. A hearing was held on all motions on June 30, 2008, at which time all motions were taken under advisement. A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Defendants Motion to Strike is ALLOWED IN PART, as follows: ¶¶ 3 and 5 of Plaintiffs (first) Affidavit are stricken; and ¶¶ 3, 4, 5, 6, 7, 8, 9, and 14 (first and portions of the second as identified in Defendants Motion to Strike), as well as portions of ¶¶ 10 and 11 of Randolphs (first) Affidavit as identified in Defendants Motion to Strike are stricken. The Affidavit of Landers-Cauley is not stricken.
ORDERED and ADJUDGED that the swimming pool and surrounding concrete paving block apron (the Pool) [Note 1] situated on the portion of registered land located at Lot 149, Naushon South, Falmouth, MA (Defendant Property), as shown on Registration Plan 11683B (the Registration Plan), subject to an Easement Deed (View Easement C) dated January 28, 1999, conveyed by Stephen M. Good and Thomas M. Good, Jr., Trustees of TANDS Realty Trust III, for the benefit of the registered property located at Lot 148, Naushon South, Falmouth, MA (Plaintiff Property), as shown of the Registration Plan, is an impermissible structure within the meaning of View Easement C.
ORDERED and ADJUDGED that the five-foot high stone retaining wall (the Wall) [Note 2] and the four to five-foot high metal security fence (the Fence) [Note 3] surrounding the Pool on Defendant Property subject to View Easement C are impermissible structures in context of View Easement C.
ORDERED and ADJUDGED that View Easement C does not confer upon the owner of Plaintiff Property the right to demand the existence of, variety, or height (below eight feet) of vegetation on Defendant Property.
ORDERED and ADJUDGED that Defendants, at their own expense, shall remove the Pool, the Fence, and the Wall no later than April 30, 2010. [Note 4]
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is ALLOWED IN PART and Defendants Motion for Summary Judgment is DENIED IN PART, as this court finds for Plaintiff with respect to the Pool, the Wall, and the Fence being structures under View Easement C, and finds for Defendants with respect to the existence and variety of Defendant Propertys vegetation as not being protected by View Easement C.
By the court. (Sands, J.)
[Note 1] Photographs of the Pool and its occupants included in the summary judgment record show that the depth of the Pool is greater than twenty-four inches. However, the summary judgment record fails to include the specific dimensions of the Pool. The Pool is located in the middle of View Easement C and occupies a large portion of such area, and is clearly more than fifteen feet into the portion of Defendant Property subject to View Easement C.
[Note 2] The Wall runs just inside of the southwestern, the northwestern, and a small segment of the northeastern lot lines of that portion of Defendant Property subject to View Easement C, and outlines the perimeter of that area. The Wall is located significantly more than fifteen feet into the portion of Defendant Property subject to View Easement C.
The Wall was constructed in connection with the installation of the Pool. The Wall enabled Defendants to raise the grade and elevation of most of the portion of Defendant Property subject to View Easement C.
[Note 3] The Fence runs just inside the Wall and runs parallel with Defendant Propertys northern, western, and southern lot lines; it surrounds most of Defendant Propertys back yard (including the Pool). The Fence is located significantly more than fifteen feet into the portion of Defendant Property subject to View Easement C. Photographs of the Fence show it to be an open or non-solid fence allowing one to see through the fence when viewing it perpendicularly.
The Fence was required pursuant to the permit issued by the Town of Falmouth for the installation of the Pool. Plaintiff claims the Fence is five feet tall, while Defendants assert the Fence to be four feet tall. This disputed fact is not material to the resolution of the parties cross-motions for summary judgment.
[Note 4] Despite including a request for monetary damages in her Complaint, Plaintiff does not request damages in her summary judgment memoranda. Rather, she relies on her request for the removal of the offending structures. Defendants argue that expert testimony would be required for damages in this regard. In light of the above, this court need not address such issue.