MISC 07-346579

December 15, 2010


Grossman, J.


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This cause came to be tried and a decision of even date entered. Contemporaneously therewith, the court entered an Order on Defendants’ Application for Fees.

Moreover, on December 5, 2008, an Order entered on the parties’ cross motions for Summary Judgment.

In accordance with the foregoing, it is hereby

ADJUDGED and ORDERED that the Sciolettis, plaintiffs herein, are authorized, in the first instance, to erect and maintain suitable wooden structures, to facilitate their access to the mean low water mark of Follins Pond. In addition to the elevated walkway to mean high water, the said structures providing access to low water may permissibly include a descending ramp and floats. It is further

ADJUDGED and ORDERED as follows:

1. The Thomases possess title to the flats [Note 1] appurtenant to Lot 14, [Note 2] said flats never having been effectively severed from the upland portion of said Lot 14;

2. The Sciolettis’ easement rights extend to the mean low water mark [Note 3] of Follins Pond;

3. While limited to a 10 foot width, the location of plaintiffs’ easement has been established by usage and tracks the existing walkway;

4. The plaintiffs possess no rights in the 35 foot beach easement area;

5. The plaintiffs’ use right burdening Lot 14 is limited to an easement of access, “ten feet wide, solely for foot passage,” [Note 4] to and from Lot 9 and the mean low water mark of Follins Pond;

6. Plaintiffs may not store or maintain a boats on the Thomas property, either within the 10 foot easement area, or otherwise;

7. Plaintiffs’ easement to low water does not encompass the right to maintain dock structures for boating purposes; i.e. said purposes include the construction and maintenance of a marina, or the storage, maintenance or mooring of boats.

8. Defendant’s use rights burdening plaintiffs’ property are limited to the 10 foot deeded easement as shown on Land Court Plan 34511-C;

9. The defendants have no rights in the 15 foot wide easement along the southerly boundary of plaintiffs’ Lot 9 as depicted upon Land Court Plan 34511- C. It is further

ADJUDGED and ORDERED that defendants’ Motion to Dismiss pursuant to G.L. c. 231, § 59H having been allowed, so much of Count 1 and Count 2 of the Amended Complaint as assert a claim for “abuse of administrative process” [Note 5] is hereby dismissed; in accordance with that Order it is further

ADJUDGED and ORDERED the defendants shall pay to the plaintiffs within sixty days of the date hereof, the sum of $6,727.50 representing the cost of prosecuting the special motion to dismiss. It is further

ADJUDGED and ORDERED that the preliminary injunction granted by the Barnstable Superior Court on March 9, 2007 be, and hereby is, Dissolved.

By the Court. (Grossman, J.)


[Note 1] Or 100 rods, whichever is the lesser.

[Note 2] As appearing on Land Court Plan 34511-D.

[Note 3] See FN 129 of the Order of December 5, 2008.

[Note 4] Or its functional equivalent as the tides may require when crossing over the flats to the said low water mark For example, wading, carrying or launching a hand held boat.

[Note 5] Or “malicious prosecution.”