MISC 07-347941

August 25, 2010

Sands, J.


Ronald E. Belrose (“Ronald”), individually, and Claire F. Belrose (“Claire”), as Trustee of CJB Realty Trust (the “Trust”) (together, “Plaintiffs”), filed their unverified Complaint on May 22, 2007, pursuant to G. L. c. 231, § 1, seeking declaratory judgment with respect to rights in Old Tuck Bog Road (the “ROW”) and claiming trespass by Old Tuck Cranberry Corp. (“Old Tuck”) and Ashley Excavating, Inc. (“Ashley Excavating”) (together, “Defendants”) on the ROW. [Note 1] Ashley Excavating owns properties shown on a 2005 map produced by Geodetic Engineering (the “Geodetic Map”) for Ashley Excavating as “Lot 14/15C” and “Lot 14/15C-3.” Ashley Excavating also owns the Heleen Bog, which is located on Map 13 as Lot 14 (“Lot 13/14”). On the same day Plaintiffs filed a Motion for Preliminary Injunction, together with Affidavits of Ronald E. Belrose and Jan E. Dabrowski, Esq. On July 23, 2007, the parties filed an Agreement of the Parties Pending the Results of Anticipated Preliminary Injunction Hearing (the “Agreement”), in which Defendants agreed not to widen or alter the ROW, not to use the ROW to transport tree stumps except in connection with agricultural operations on Defendants’ properties, and not to use the ROW for non-agricultural commercial and business purposes except 7:00 A.M. to 5:00 P.M., Monday through Friday. A case management conference was held on July 30, 2007. Defendants filed an Answer to the Complaint on August 28, 2007. A hearing on the preliminary injunction motion was held on February 5, 2008, and on February 25, 2008, the parties filed a Stipulation of the Parties, in which they agreed on who owned the various properties through which the ROW runs. [Note 2] On March 27, 2008, this court issued an Order Allowing In Part Plaintiffs’ Motion for Preliminary Injunction (the “Order”) to the extent that it was consistent with the Agreement. [Note 3] The Order was to remain in place until the merits of the case were resolved.

A pre-trial conference was held on January 12, 2009. A site view and the first day of trial at the Southern New England School of Law were held on February 24, 2009. The second and third days of trial were held at the Land Court in Boston on February 25 and 26, 2009. Plaintiffs filed their post-trial brief with this court on June 1, 2009, and Defendants filed their post-trial brief on June 2, 2009, at which time the matter was taken under advisement. A decision (the “Decision”) of today’s date has been issued.

In accordance with the Decision it is:

ORDERED and ADJUDGED that Old Tuck Lots 12/11, 12/11A, 12/10, 14/20, and 14/21 have no deeded rights in the ROW. [Note 4]

ORDERED and ADJUDGED that Lots 14/15C-3 and 13/14 have no deeded rights in the ROW.

ORDERED and ADJUDGED that Lot 14/10 has no deeded rights in the ROW. [Note 5]

ORDERED and ADJUDGED that tree stumps resulting from clearing land on Old Tuck Property 1 may be included in the compost pile but that neither Old Tuck nor Ashley Excavating may use the ROW to transport third parties’ tree stumps to or from Old Tuck Property 1.

ORDERED and ADJUDGED that Old Tuck has a prescriptive easement in the ROW, limited in scope to those activities related to cranberry farming operations for all portions of Old Tuck Property 1 except for Bog A12.

ORDERED and ADJUDGED that Ashley Excavating has no prescriptive right to access Old Tuck Property 1 using the ROW.

ORDERED and ADJUDGED that no prescriptive rights to the ROW have been established with respect to any operations by either Old Tuck or Ashley Excavating on Old Tuck Property 2.

ORDERED and ADJUDGED that Ashley Excavating has failed to demonstrate prescriptive rights to the ROW with respect to Lots 14/15C-3 and 13/14.

ORDERED and ADJUDGED that Plaintiffs fail to prove Defendants’ illegal entry and that Plaintiffs’ claim for damages lacks any basis.

ORDERED and ADJUDGED that Old Tuck may not further widen or otherwise alter the existing ROW on Plaintiffs’ property but may conduct routine repairs or maintenance on the ROW when necessary to ensure that the ROW can be used in conjunction with cranberry farming activities.

By the court. (Sands, J.)


Deborah J. Patterson


Dated: August 25, 2010


[Note 1] Old Tuck owns and operates cranberry bogs on land shown on Rochester Assessor’s Map 12 as Lots 10, 11, and 11A (“Lot 12/10,” “Lot 12/11,” and “Lot 12/11A”) (together, “Old Tuck Property 1”). Old Tuck also owns property shown on Map 14 as Lots 20 Lot 21 (“Lot 14/20” and “Lot 14/21”) (together, “Old Tuck Property 2”) and Lot 10 (“Lot 14/10”). The only portion of Old Tuck Property 1 that has not historically been operated as a cranberry bog is Bog A12 on Lot 12/11. This bog was constructed in 2000 and was previously a hay field with grazing room for cattle.

[Note 2] The parties do not dispute ownership of any of these properties.

[Note 3] The Order required that

1) Defendants shall not widen or otherwise alter the Right of Way for the portion that crosses Plaintiffs’ properties; 2) Defendants shall not use the ROW for purposes other than accessing the single family residence and operating cranberry bogs on Old Tuck Property 1 and Old Tuck Property 2 [as defined hereinafter], including activities involved in maintaining their properties as a cranberry bog; this prohibition specifically bans transporting tree stumps and products of sand and gravel excavation except in connection with Defendants’ agricultural operations on their own properties relative to the cranberry bog operation; and 3) Defendants shall not use the ROW for non-agricultural commercial and business purposes except Monday through Friday from 7 AM to 5 PM.

[Note 4] The trial record indicates that a small portion of Lot 12/11, the Douglass Parcel, did not originate from either the Haskell or Stevens chains of title. The trial record contains no evidence of whether the Douglass Parcel may have a deeded right to use the ROW, but such an inquiry is unnecessary in light of my findings regarding Lot 12/11’s prescriptive rights in the ROW explained in the Decision.

[Note 5] In any event, it is unlikely that Defendants would be able to access the ROW from Lot 14/10 because Lot 14/10 appears to be a reservoir.