CHARLES F. SEARS, TRUSTEE OF ARROWHEAD FARMS REALTY TRUST [Note 1] vs. HIGH PINES CORPORATION and FREDERICK M. TONSBERG

Plaintiff Arrowhead Farms Realty Trust (the “Trust”) filed its unverified Complaint on March 30, 2004, 1) seeking pursuant to G. L. c. 185, § 1, to enforce its rights in a woods road (the “ROW”) located in Kingston, Massachusetts partly on land owned by the Trust (hereinafter defined as the Trust Property), partly on land owned by the O’Brien family (hereinafter defined as the O’Brien Property), and partly on land owned by Defendant High Pines Corporation (“High Pines”) (of which Defendant Frederick M. Tonsberg is President) (together, “Defendants”), 2) seeking pursuant to G. L. c. 231A, a declaratory judgment relative to the rights in the ROW, and 3) alleging a trespass by Defendants in their interfering with the Trust’s use of the ROW. Defendants filed an Answer on April 28, 2004. A pre-trial conference was held on April 22, 2009. The Trust filed its Amended Complaint on June 18, 2009, adding another parcel of which it is a part owner (hereinafter defined as the O’Brien Property) with alleged rights in the ROW, and adding William J. O’Brien (“William”), Mary Cheryl O’Brien (“William’s Wife”), and Mary Catherine O’Brien (“William’s Mother”) as additional Plaintiffs (the Trust and the O’Briens together, “Plaintiffs”). A trial was scheduled for July 23 and 24, 2009, then for October 1 and 2, 2009, and finally for December 17 and 18, 2009. A view and a one day trial in the Plymouth Superior Court were held on December 17, 2009. Post-trial briefs were filed on February 18, 2010, and at that time the matter was taken under advisement. A decision resolving the issues litigated at trial by Plaintiffs and Defendants was issued on December 7, 2010.

In accordance with that decision it is:

ORDERED AND ADJUDGED that the decision issued in Dennis O’Brien, et al. v. John Hamilton, Plymouth Superior Court C.A. 75-24248 (the “1981 Order”), made no determination with respect to any easement rights of Plaintiffs in the ROW and thus the 1981 Order is irrelevant in determining whether Plaintiffs have prescriptive rights in the portions of the ROW which traverse a parcel of land (“Defendant Property 1”) shown as Lot 53 (now shown as Lots 4-32, 4-33, 4-34, 4-35, 4-36 and a portion of Country Club Way) on Kingston Assessor’s Map 56 (“Map 56”) [Note 2] and a parcel of land shown as Lot 128 on Block 10 (“Defendant Property 2”).

ORDERED AND ADJUDGED that The Certificate of Conditional Approval of a Definitive Plan for Indian Pond Estates IV dated July 13, 1998 is irrelevant to the respective prescriptive rights or fee interests of the parties to this action in the ROW.

ORDERED AND ADJUDGED that Plaintiffs’ use of the ROW in conjunction with the Trust Property has been open and notorious.

ORDERED AND ADJUDGED that Plaintiffs’ use of the ROW in conjunction with the Trust Property has not been continuous for any period of twenty years.

ORDERED AND ADJUDGED that Plaintiffs’ use of the ROW in conjunction with the Trust Property was permissive, not adverse.

ORDERED AND ADJUDGED that Plaintiffs’ use of the ROW in conjunction with the O’Brien Property has been open and notorious.

ORDERED AND ADJUDGED that Plaintiffs’ use of the ROW in conjunction with the O’Brien Property has not been continuous for any period of twenty years.

ORDERED AND ADJUDGED that Plaintiffs’ use of the ROW in conjunction with the O’Brien Property was permissive, not adverse.

ORDERED AND ADJUDGED that Plaintiffs are not able to show that they have gained prescriptive rights in the ROW for the benefit of the Trust Property or the O’Brien Property.

ORDERED AND ADJUDGED that Defendants have not trespassed on Plaintiffs’ use of the ROW.

By the court. (Sands, J.)