Plaintiff filed his Verified Complaint on August 9, 2004, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to rights in a right-of-way (the ROW) across his property located at 946 Main Street, Dennis, Massachusetts (Plaintiff Property). [Note 1] Defendant Kenneth A. Grady (Grady), as Trustee of Scargo Lake Investment Trust (Scargo Lake), filed his Answer and Counterclaim on September 30, 2004, alleging prescriptive rights across the ROW. [Note 2] Plaintiff filed his Reply to Counterclaim on September 28, 2004. [Note 3]
Plaintiff filed his Motion for Summary Judgment on October 1, 2008, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavits of Jane Pine Wood, Esq., Russell R. Tomasetti, Barry W. Steele, William W. Latimer, IV, E. James Veara, Esq., and Paul V. Benatti, Esq. On November 10, 2008, Scargo Lake filed its Opposition, together with supporting memorandum, Appendix, Affidavits of Parker Turner, Kenneth Grady, David J. Drumm, James A. Ranstrom, Anne Ranstrom, Lisa L. Morales, Philip J. Agnello, Edmund J. Massa, Jr., Michelle Cranska, Edward R. Chatelain, and Diane H. Paradis, and Motion to Strike Portions of Affidavits of Jane Wood and William Latimer. Plaintiff filed his Reply on December 12, 2008. A hearing was held on all motions on January 12, 2009, at which time all motions were taken under advisement. [Note 4] A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that Defendants Motion to Strike Portions of the Affidavits of Jane Pine Wood and Plaintiff is ALLOWED IN PART, consistent with the following: paragraphs 9, 10, and 11 of the Wood Affidavit are hereby stricken; paragraphs 11-17, 22, and 47 of Plaintiffs Affidavit are hereby stricken.
ORDERED and ADJUDGED that Defendants rights in the ROW over Plaintiff Property were not lost through merger or impossibility. [Note 5]
ORDERED and ADJUDGED that Defendants (or their predecessors) have not abandoned their rights in the ROW over Plaintiff Property.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is DENIED.
By the court. (Sands, J.)
[Note 1] Plaintiff filed his Amended Verified Complaint on November 10, 2004, adding a count relative to the legality of utility lines crossing Plaintiff Property.
[Note 2] Scargo Lake filed its Answer to Amended Complaint and Counterclaim on January 3, 2005.
[Note 3] Plaintiff filed his Reply to Amended Counterclaim on January 7, 2005.
[Note 4] In court on January 12, 2009, Scargo Lake filed an Assented To Motion for Joinder of Necessary Parties as Defendants, adding owners of Units in the Scargo Lake Condominium (the Condominium), as follows: Barbara J. Romano (owner of Unit 1), Robert Morin and Cynthia A. Morin (owners of Unit 2), James A. Ranstrom and Anne F. Ranstrom (owners of Unit 3), and Jane S. Chamberlain (owner of Unit 4) (together, the Condominium Owners) (together with Scargo Lake, Defendants). At the same time, Scargo Lake filed Affidavit of Jerome Simonetty and Supplemental Affidavit of Anne Ranstrom.
[Note 5] The ROW is shown as the RIGHT OF WAY on a plan titled Plan of Land of Paul Wilcox, Jr. in Dennis, dated December 10, 1949, and prepared by Newell B. Snow. The ROW is also shown as the EXISTING 20' ROW on a plan titled Condominium Plan of Land Scargo Lake Condominium #952 Route 6A in Dennis Massachusetts (Barnstable County) dated July 15, 2004, and prepared by BSC Group.