MISC 07-349491

October 27, 2010

Sands, J.


Plaintiff filed his unverified Complaint on June 21, 2007, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to easement rights for his property (“Locus”) over property (the “Jackson Parcel”) located in Tisbury, Massachusetts. Defendant Martha’s Vineyard Land Bank Commission (the “Commission”) filed its Answer on July 19, 2007. Defendant Glenn D. Jackson (“Jackson”) (together with the Commission, “Defendants”) filed his Answer on July 20, 2007. A case management conference was held on September 5, 2007. A pre-trial conference was held on October 8, 2008, and a trial was scheduled for January 9, 2009. At a telephone status conference on December 19, 2008, the parties determined that a summary judgment was appropriate to resolve the case.

Jackson filed his Motion for Summary Judgment on February 13, 2009, together with supporting memorandum. On May 4, 2009, Plaintiff filed his Opposition and Cross-Motion for Partial Summary Judgment, together with supporting memorandum, Stipulation of Facts and Exhibits executed by all parties, and Affidavit of Martin A. Loria, Esq. On June 4, 2009, Jackson filed the Affidavit of Robert G. Funke, Esq. The Commission filed its Opposition to the Cross-Motion on June 8, 2009, together with supporting memorandum and Affidavits of Robert M. McCarron, Esq. and Douglas R. Hoehn, land surveyor. On June 12, 2009, Plaintiff filed his Reply Brief, and on that date the summary judgment motions were scheduled to be heard but were not heard because of a dispute over a material fact, specifically the northern boundary of property owned by Jackson. A Supplemental Joint Pretrial Memorandum was filed on July 20, 2009. A trial was held on September 22, 2009, at the Land Court in Boston without a site view. Defendants filed their post-trial briefs on November 24, 2009. Plaintiff filed his post-trial brief on November 27, 2009, and at that time the matter was taken under advisement.

Testimony for Plaintiff was given by Martin A. Loria, Esq. (expert title witness). Testimony for Defendants was given by Robert G. Funke, Esq. (expert title witness). There were sixteen exhibits submitted. Additionally, the court took judicial notice of Land Court Plan No. 41103A (“Plan No. 41103A”). A decision of today’s date (the “Decision”) has been issued.

In accordance with the Decision, it is:

ORDERED and ADJUDGED that the northern boundary of the Smith Parcel (as defined in the Decision) is in the location as described by Plaintiff.

ORDERED and ADJUDGED that the 1840 Setoff (as defined in the Decision), not the 1806 Setoff (as defined in the Decision), eliminated frontage on Stoney Hill Road (as defined in the Decision) for Locus.

ORDERED and ADJUDGED that the 1840 Setoff satisfies the requirements for an easement by necessity from Locus to Stoney Hill Road over the Jackson Parcel for the reasons detailed in the Decision.

ORDERED and ADJUDGED that expert testimony by Attorneys Loria and Funke is ADMISSIBLE.

ORDERED and ADJUDGED that the trial record does not support the Commission’s arguments.

ORDERED and ADJUDGED that an easement by necessity exists from Locus to Stoney Hill Road over the Jackson Parcel.

By the court. (Sands, J.)