JAMES F. REIDER and PATRICIA G. REIDER v. MARTHA CARROLL

This action was commenced by James F. Reider and Patricia G. Reider (“Plaintiffs”) on April 9, 2008, seeking a declaratory judgment pursuant to G.L. c. 231A as to their rights with respect to an easement which they hold over abutting property owned by Defendant Martha Carroll. Through their complaint, Plaintiffs also seek title by adverse possession to, and certain prescriptive rights over, portions of Defendant’s property. Finally, Plaintiffs assert a private nuisance claim, alleging that a fence erected by the Defendant prevents Plaintiffs from freely accessing portions of their property.

On July 17, 2008, Defendant filed a verified answer and counterclaim. Defendant makes a claim for trespass, private nuisance, damages for breach of easement, declaration that the easement is void, and attorneys’ fees and costs. On the same day, Defendant moved for a preliminary injunction, with supporting memorandum and affidavits, to enjoin the Plaintiffs from entering the Carroll Property except to accomplish maintenance of the septic system. Plaintiffs also filed a motion for a preliminary injunction on July 17, 2008, requesting an order enjoining the Defendant from maintaining the fence that runs along the boundary line in between each parties’ property. In an Order issued on July 28, 2008, the court granted Defendant’s motion for preliminary injunction and denied Plaintiffs’ motion.

After attempts at arbitration were unsuccessful, a view and the trial were scheduled. The view of the two abutting properties was taken on October 15, 2009, and the first day of trial took place at Orleans Juvenile Court. The second, third and fourth days of trial took place at the Land Court from January 12-14, 2010.

A decision was entered today, granting Plaintiffs the right to access the Septic Easement no more than once per month to maintain the grassy lawn; additionally, access to the Septic Easement shall be granted for other occasions related to maintenance of the septic system. In accordance with that decision, it is hereby:

ADJUDGED and DECLARED the Plaintiffs’ rights under the Septic Easement include the right to mow or cut grass and other vegetation within the Septic Easement no more than one time per month; and it is further

ADJUDGED and ORDERED that Defendant shall remove the lock from the gate or unlock it periodically to allow the Plaintiffs to maintain the Septic Easement; and it is further

ADJUDGED and DECLARED that the Plaintiffs have not acquired title to any portions of the Carroll Property by adverse possession; and it is further

ADJUDGED and DECLARED that the Plaintiffs do not have an implied easement to cross the Carroll Property to access the beach, and any presence on the Carroll Property by Plaintiffs or their family not related to maintenance of the septic system constitutes a trespass; and it is further

ADJUDGED and ORDERED that entrance by Plaintiffs or their family members on Defendant’s land shall be limited to maintenance of the septic system; no other contact with the Carroll Property or vegetation thereon is permitted for any other purpose; and it is further

ADJUDGED and DECLARED that neither the Defendant’s fence nor the Plaintiffs’ alleged actions constitute a private nuisance; and it is further

ADJUDGED and ORDERED Defendants are not entitled to any damages and the parties shall bear their own costs.

By the Court (Trombly, J.)