Plaintiff filed its unverified Complaint To Determine Boundary on March 20, 2007, alleging, pursuant to G. L. c. 185, § 1, a boundary dispute between Plaintiff and Defendants Paul M. Paradise and Jacqueline Paradise (the Paradises). [Note 1] A case management conference was held on May 8, 2007. The Paradises filed an Answer to Plaintiffs Amended Complaint on November 4, 2008. On April 2, 2009, Plaintiff filed its Motion for Summary Judgment on the Request for Declaratory Relief, relative to the use of the ROW, as hereinafter defined, by Gagnon, Jr., together with supporting brief and Affidavit of Gary W. McCarthy. On the same day, Plaintiff filed its Motion for Summary Judgment on the Request for Boundary Demarcation, together with supporting memorandum and Affidavits of Gary W. McCarthy (second) and James D. Aho. The Paradises filed their Opposition and Cross-Motion to the summary judgment motion for boundary demarcation on May 6, 2009, together with supporting memorandum and Affidavit of Jeffrey S. Rider. On May 13, 2009, Plaintiff filed its Opposition to Cross-Motion relative to boundary demarcation, together with supporting memorandum and Affidavit of James D. Aho (second). A hearing was held on all motions on November 4, 2009, and all motions were taken under advisement. [Note 2], [Note 3] A decision of todays date has been issued.
In accordance with that decision it is:
ORDERED and ADJUDGED that the boundary between (a) the twenty-five foot wide strip of land in Dracut, Massachusetts, running easterly from Hildreth Street approximately 769 feet (the ROW) that was conveyed by Stella M. Coburn, B. Melba Coburn, and Delmont H. Coburn (heirs of Rockwood D. Coburn) to Plaintiff by deed dated August 15, 1941, and recorded with the Middlesex North District Registry of Deeds (the Registry) at Book 966, Page 18, and (b) the property (the Paradise Property) conveyed by Albert J. Gagnon and Corinne Gagnon (the A. Gagnons) to Leo J. Pare, Jr. and Doris J. Pare by deed dated October 14, 1963, and recorded with the Registry at Book 1622, Page 207, is as shown on the survey plan by Jeffrey S. Rider of Holmberg & Howe prepared for the Paradises (the Rider Plan) dated October 20, 2006.
ORDERED and ADJUDGED that the Certificate of Vote of Plaintiff dated June 25, 1968 (the 1968 Vote) was not a valid transfer of rights in the ROW to Gagnon, Jr.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment on the Boundary Dispute with the Paradises is DENIED, and the Paradises Cross-Motion for Summary Judgment on the Boundary Dispute is ALLOWED.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment for Declaratory Relief relative to Gagnon, Jr.s use of the ROW is ALLOWED.
By the court. (Sands, J.)
[Note 1] An Amended Complaint to Determine Boundary was filed on May 1, 2008, adding Defendant Albert J. Gagnon, Jr. (Gagnon, Jr.) as an additional party having a boundary dispute with Plaintiff.
At the oral argument on the summary judgment motions, the boundary dispute between Plaintiff and Gagnon, Jr. was been reported as settled, and neither party filed a summary judgment brief in that regard. The parties represented to this court that a settlement agreement between Plaintiff and Gagnon, Jr. had been prepared but not fully executed. Such agreement was filed with this court on May 18, 2010.
[Note 2] Gagnon, Jr. represented himself pro se until the summary judgment hearing, when a lawyer appeared on his behalf. Since the summer of 2008, Gagnon, Jr. had represented to this court that he would hire an attorney, but no-one appeared or filed an appearance until the summary judgment hearing.
[Note 3] After oral argument, this court gave the parties an opportunity to mutually agree as to the filing of additional materials by November 11, 2009. No such documents were ever received by this court.