MISC 02-281233

December 4, 2009


Trombly, J.


Plaintiff, Beverly Fallon, commenced this action on May 22, 2002, seeking declaratory judgment pursuant to G. L. c. 231A, regarding her rights in an “Existing 30’ wide Right of Way” shown on a Plan of Land dated October 23, 1986, recorded at the Worcester District Registry of Deeds in Plan Book 636, Plan 3.

On April 16, 2003, Plaintiff filed a motion seeking injunctive relief, alleging that the Defendant had turned off the flow of water to the Plaintiff’s property which emanates from a well on the Defendant’s property in violation of an agreement entered into on February 5, 1999, between Plaintiff, Defendant, and Ray B. Davis. That application for injunctive relief was denied by the court on April 29, 2003.

A Motion for Summary Judgment was also filed on October 31, 2002, by the Plaintiff but no action was taken on the motion at that time.

On June 18, 2009, the court scheduled a status conference for August 4, 2009. At that conference it was agreed that the case would be decided on the pending Motion for Summary Judgment and both parties were given one month to file additional memoranda in support or in opposition to the motion. A memorandum was filed by the Defendant but not the Plaintiff.

After careful consideration of all of the evidence, the court issued a Decision today, ruling that the Plaintiff does not, and never did, have a right to use the “Existing 30’ wide Right of Way” either by express grant, by prescription, or implied from prior use or necessity.

In accordance with that Decision, it is hereby:

ADJUDGED and ORDERED that Plaintiff’s Motion for Summary Judgment is DENIED;

ADJUDGED and ORDERED that the Fallon property, shown as Lot 28C on the Plan of Land dated October 23, 1986, does not have the benefit of an appurtenant right to use the 30’ wide right of way across Lot 28D;

ADJUDGED and ORDERED that the 1999 Agreement obligating Harding, as owner of Lot 28D, to provide well water to the Davis and Fallon properties was limited as to time and is no longer in effect; and it is further

ADJUDGED and ORDERED that the Complaint be and is hereby DISMISSED with prejudice.

By the court (Trombly, J.).


[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.