Home RICHARD G. MOORE and ELLEN M. MOORE v. ROGER M. LaPORTE and LYNN E. LaPORTE

MISC 04-299904

April 8, 2010

Sands, J.

JUDGMENT

Plaintiffs filed their unverified Complaint on June 23, 2004, seeking a declaratory judgment pursuant to G. L. c. 231A relative to rights in two ways (Clarissa Joseph Road in Bourne and Plymouth and Chamber Rock Road in Bourne), and alleging trespass pursuant to G. L. c. 185, § 1(o). Plaintiffs’ Complaint also challenged the applicability of certain provisions of the Bourne Zoning Bylaw (the “Bylaw”) under G. L. c. 240, § 14A. [Note 1] Defendants Roger M. LaPorte and Lynn E. LaPorte (the “LaPortes”) filed their Appearance on August 30, 2004, and a Motion to Dismiss on September 24, 2004, alleging res judicata, lack of jurisdiction, and statute of limitations. Defendant Richard L. Flynn filed his Answer on September 1, 2004. [Note 2] The Ship Pond Trust, filed its Answer on September 2, 2004. Old Centre and J. Scott Cimeno, Trustee of LMC Realty Trust, filed their Answer and Counterclaim on September 22, 2004, alleging rights in both Clarissa Joseph Road and Chamber Rock Road. Plaintiffs filed their Answer to Counterclaim on December 8, 2004. [Note 3] The Cape Cod Five Cents Savings Bank and Bank of America, N.A. filed Answers on June 25, 2007. [Note 4]

A pre-trial conference was held on June 29, 2005, at which time a Stipulation of Dismissal was filed with respect to the Municipal Defendants. A Default Judgment was entered against Defendants Robin L. Cote and Richard J. Silvestro on February 22, 2006. A second pre-trial conference was held on April 23, 2008. Plaintiffs filed a Motion in Limine to Exclude certain Trial Exhibits on August 10, 2008, and again on the first day of trial. A site view and the first day of trial at the Plymouth Superior Court were held on August 12, 2008. At that time, this court excluded the minutes of the Bourne Planning Board and certain newspaper articles as exhibits, and took under advisement the admissibility of a book of the history of the Town. The second day of trial was held at the Land Court in Boston on August 13, 2008. [Note 5] At the conclusion of the LaPortes’ case in chief, Plaintiffs filed a Motion for a Required Finding, which this court took under advisement pending review of the numerous trial exhibits. Plaintiffs’ Post-Trial Memorandum was filed on October 14, 2008. The LaPortes’ Post-Trial Brief was filed on October 15, 2008, at which time the matter was taken under advisement. A decision of today’s date has been issued. [Note 6]

In accordance with that decision it is:

ORDERED and ADJUDGED that Plaintiffs’ Motion for a Required Finding was effectively denied at trial; to the extent that it was not expressly denied at such time, Plaintiffs’ Motion for a Required Finding is hereby DENIED.

ORDERED and ADJUDGED that Plaintiffs’ Motion in Limine is ALLOWED IN PART, with respect to the book on the history of the Town of Bourne.

ORDERED and ADJUDGED that for purposes of this case, and between these parties, pursuant to G. L. c. 183, § 58, Plaintiffs own the fee interest to the centerline of those portions of Clarissa Joseph Road and Chamber Rock Road that abut property owned and resided in by Plaintiffs located at 41 Clarissa Joseph Road in Bourne, Massachusetts (“Plaintiff Property”).

ORDERED and ADJUDGED that the LaPortes have the burden of proof to show that they have easement rights in the portions of Clarissa Joseph Road and Chamber Rock Road to which Plaintiffs own the fee interest and that abut Plaintiff Property.

ORDERED and ADJUDGED that the LaPortes have failed to satisfy their burden to prove a public prescriptive easement in the portion of Clarissa Joseph Road that abuts Plaintiff Property.

ORDERED and ADJUDGED that the LaPortes have failed to establish rights as an “ancient way” in the portion of Clarissa Joseph Road that abuts Plaintiff Property.

ORDERED and ADJUDGED that the LaPortes do not have an easement by estoppel to travel south of the LaPorte Property on the portion of Clarissa Joseph Road abutting Plaintiff Property.

ORDERED and ADJUDGED that the LaPortes do not have an easement by implication to travel south of the LaPorte Property on the portion of Clarissa Joseph Road abutting Plaintiff Property.

ORDERED and ADJUDGED that the Superior Court Case is neither claim preclusive nor issue preclusive with respect to the rights of either Plaintiffs or the LaPortes to use Clarissa Joseph Road.

ORDERED and ADJUDGED that the LaPortes have failed to satisfy their burden to prove a public prescriptive easement in the portion of Chamber Rock Road that abuts Plaintiff Property.

By the court. (Sands, J.)

FOOTNOTES

[Note 1] As a result of the Motion to Dismiss filed by the LaPortes (discussed, infra), which was withdrawn on May 16, 2005, Plaintiffs filed an Amended Complaint on May 9, 2005, withdrawing their challenge to the Bylaw and removing Defendants Roger M. LaPorte as Building Inspector of the Town of Bourne and the Town of Bourne (“Town”) (together, “Municipal Defendants”) as Defendants. On April 7, 2006, Plaintiffs filed a Motion to Add Michael Kneeland and Kendra Kneeland (the “Kneelands”) as Parties Defendant by Reason of Their Purchase of Real Estate From Defendants Michael P. Goodman and Roger C. Zoebisch, as Trustees of Ship Pond Nominee Trust (the “Ship Pond Trust”). This court allowed such motion on April 20, 2006. On May 13, 2008, Plaintiffs filed a Stipulation of Dismissal with Prejudice as to the Ship Pond Trust. The record does not include any dismissal or judgment with respect to the Kneelands; however, the Kneelands did not participate in trial and are therefore defaulted by this court.

Plaintiffs filed a Second Amended Complaint on July 26, 2006, adding Kanwal Thiara and Manjit Thiara (the “Thiaras”) as Defendants to replace Old Centre Homes, Inc. (“Old Centre”) due to purchase by foreclosure deed. A Default Judgment was entered against the Thiaras on January 18, 2007.

Plaintiffs filed a Third Amended Complaint on August 28, 2006, adding Deutsche Bank National Trust Company (“Deutsche Bank”) as a Defendant. The Third Amended Complaint does not appear to have been docketed. A Limited Default Judgment was entered against Deutsche Bank on July 26, 2007.

Plaintiffs filed a Fourth Amended Complaint on May 24, 2007, adding the following mortgagees of record: Plymouth Savings Bank, Cape Cod Five Cents Savings Bank, Bank of America, N.A., Wells Fargo Home Mortgage, Inc. (“Wells Fargo”), Mortgage Electronic Registration Systems, Inc. (“MERS”), Harborone Credit Union, National City Bank, and Mayflower Cooperative Bank as Defendants. On April 29, 2008, a Voluntary Dismissal was filed as to Harborone Credit Union and Mayflower Cooperative Bank. Wells Fargo and MERS filed their Answer on May 12, 2008. A Default Judgment was allowed as to Plymouth Savings Bank, MERS, and National City Bank on May 13, 2008. A Stipulation of Dismissal as to Wells Fargo was filed on June 30, 2008.

[Note 2] A Default Judgment was entered against him on January 13, 2006.

[Note 3] A Voluntary Dismissal as to Old Centre and J. Scott Cimeno, Trustee of LMC Realty Trust was allowed on June 2, 2008.

[Note 4] A Limited Stipulation of Dismissal concerning Bank of America, N.A. was filed on May 13, 2008. A Stipulation of Dismissal with Prejudice as to Cape Cod Five Cents Savings Bank was filed on July 29, 2008.

[Note 5] Trial testimony was given by the LaPortes’ witnesses Virginia Anderson (“Anderson”) (neighbor), Donald Ellis (“Ellis”) (former member of Bourne Planning Board), and Charles Rowley (Plaintiffs’ registered land surveyor as hostile witness); Plaintiffs’ trial witness included Charles Rowley (registered land surveyor). Fifty-six trial exhibits were submitted (some in multiple parts), including Affidavits of Douglas and Lidia Manter and Richard and Ellen Moore (Plaintiffs), and deposition transcript of Barbara Condon (“Condon”) (neighbor).

[Note 6] Not all parties with an interest in those portions of Clarissa Joseph Road and Chamber Rock Road that are at issue in the case at bar are parties to this case. More specifically, the owners of land adjacent to Plaintiff Property, along the eastern side of Clarissa Joseph Road and along the southern side of Chamber Rock Road, are not parties here. As this court is unable to make findings with respect to the rights of nonparties, it is noteworthy that this decision is only binding as to the respective rights of Plaintiffs and the LaPortes. Throughout this decision, this court makes no determination as to either Plaintiffs’ or the LaPortes’ rights with respect to any nonparty.