JUDITH M. POLCHLOPEK vs. COMMONWEALTH OF MASSACHUSETTS, ACTING BY AND THROUGH ITS DIVISION OF FISHERIES AND WILDLIFE, and STEPHEN J. WEINER

Plaintiff filed her unverified Complaint on March 9, 2007, seeking declaratory judgment, pursuant to G. L. c. 231A, against Defendants Commonwealth of Massachusetts, acting by and through its Division of Fisheries and Wildlife (the “Commonwealth”) and Stephen J. Weiner (“Weiner”) (together, “Defendants”), relative to an easement by implication over Woods Road. [Note 1] The Commonwealth filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction on April 17, 2007, together with supporting memorandum. [Note 2] On May 17, 2007, Plaintiff filed her Opposition to the Motion to Dismiss. The Commonwealth withdrew its Motion to Dismiss and filed its Answer to Plaintiff’s First Amended Complaint on October 4, 2007.

The Commonwealth filed its Motion for Judgment on the Pleadings on November 9, 2007, together with supporting memorandum and Statement of Material Facts. On December 10, 2007, Plaintiff filed her Cross-Motion for Judgment on the Pleadings and/or Motion for Summary Judgment, together with supporting memorandum and Statement of Additional Facts and Appendix containing Affidavits of Judith Polchlopek and William Morse (“Morse”) (surveyor). A hearing on the Commonwealth’s Motion for Judgment on the Pleadings and Plaintiff’s Cross-Motion for Judgment on the Pleadings was held on February 4, 2008. [Note 3] By decision dated February 20, 2009 (“Decision 1”), this court found that the Commonwealth was protected under the doctrine of sovereign immunity from suit by Plaintiff relative to her declaratory judgment action on the issue of easement by implication, and that Plaintiff had standing to bring her quiet title action relative to the status of the implied easement.

The Commonwealth filed its Motion to Reconsider on February 25, 2009, and Plaintiff filed her Response on March 30, 2009. At a hearing on this motion on April 2, 2009, the Commonwealth withdrew its motion and this court scheduled a summary judgment hearing on Plaintiff’s quiet title action. On June 10, 2009, the Commonwealth filed its Cross-Motion for Summary Judgment, together with supporting memorandum, Affidavit of George S. Norton (“Norton”) (title examiner), and Motion to Strike Plaintiff’s Appendix. Weiner filed his Cross-Motion for Summary Judgment on June 16, 2009, together with supporting memorandum incorporating the Commonwealth’s memorandum. Plaintiff filed her Opposition to Defendants’ cross-motions on July 27, 2009, and Affidavit of Ellyn H. Hurd, Esq. on September 11, 2009. A hearing on all motions was held on November 20, 2009, at which time all motions were taken under advisement. Weiner did not appear at the summary judgment hearing. A decision of today’s date has been issued (“Decision 2”).

In accordance with Decision 1 and Decision 2, it is:

ORDERED and ADJUDGED that the Commonwealth is protected under the doctrine of sovereign immunity from suit by Plaintiff relative to Plaintiff’s declaratory judgment action on the issue of easement by implication.

ORDERED and ADJUDGED that Plaintiff has standing to bring her quiet title action relative to the status of the implied easement.

ORDERED and ADJUDGED that the Commonwealth’s Motion for Judgment on the Pleadings is ALLOWED IN PART relative to their argument of sovereign immunity and DENIED IN PART relative to their argument of standing.

ORDERED and ADJUDGED that the Commonwealth’s Motion to Strike is ALLOWED IN PART, consistent with the following: the two maps showing the location of Woods Road (exhibits 7 and 8 to Plaintiff’s Appendix) and the copy of the 1856 Atlas (exhibit 18 to Plaintiff’s Appendix) are hereby stricken.

ORDERED and ADJUDGED that the doctrine of sovereign immunity does not bar Plaintiff’s action to quiet title brought pursuant to G. L. c. 240, §§ 6-10.

ORDERED and ADJUDGED that the Order of Taking dated December 23, 1999, and recorded with the Registry in Book 4597, Page 317 (the “Order of Taking”) extinguished any potential easement by implication, if it did exist.

ORDERED and ADJUDGED that the Commonwealth’s (and Weiner’s) Cross-Motion for Summary Judgment is DENIED IN PART (with respect to sovereign immunity) and ALLOWED IN PART (with respect to the Order of Taking), and Plaintiff’s Motion for

Summary Judgment is ALLOWED IN PART (with respect to sovereign immunity) and DENIED IN PART (with respect to the Order of Taking), consistent with the above.

By the court. (Sands, J.)