JOHN J. LEAHY, MARTHA A. LEAHY, JOHN J. TWOMEY, MARGARET B. TWOMEY, WILLIAM O. BILL, ELINOR M. BILL, JOAN DELMORE, BARRY E. EGAN and PATRICIA EGAN, as Trustees of EGAN REALTY TRUST, WILLIAM HENDERSON, MARGARET HENDERSON, JANET HUNT, SANDRA KRISTIANSEN, STUART KRISTIANSEN, ALBERT F. LENZI, JOAN M. LENZI, CRISTIN F. LUTTAZI, SHEILA O. LUTTAZI, BRIAN J. MELIA, MAUREEN WALSH-MELIA, TRACY ANN MURPHY, BERTHA NARINIAN, SANDRA NARINIAN and GREG NARINIAN, as Trustees of NARINIAN REALTY TRUST, CLAIRE NAUEN, PARK AVENUE ASSOCIATES INC., DONALD QUINLAN, PATRICIA QUINLAN, DANIEL R. ROSENTHAL, ELIZABETH WADE WHITEHEAD, as Trustee of LANSING REALTY TRUST, JAMES S. WEAVER and HARRIET S. WEAVER vs. ANN MARIE T. BROWN, CHARLES V. LYNCH, JR., KATHLEEN E. CAVANAUGH, PHYLLIS TIMMINS, MARY A. CRIMMINS, WILLIAM J. DELANEY, D. DELANEY, ROBERT K. LAPOINT, L. LAPOINT, LISA A. DOUGLAS, as Trustee of MALFA REALTY TRUST, RICHARD F. LYMAN, RONALD C. MAFERA, JEANNE M. O’CONNOR, JAMES J. RYAN, JOHN PUGLISI, UNA PUGLISI, DOUGLAS J. RICHARDS, ANNE L. RICHARDS, ROBERT H. ST. GERMAIN and RICHARD S. SMALL, as Trustees of WIDMILL LANE REALTY TRUST, HELEN S. SHAH, ELLEN L. SHRAGO, PAUL T. SOULIOTIS and BURTON L. WILLIAMS, as Trustees under the WILL OF PAUL T. SOULIOTIS, DONNA SPADAFORA and TONI ANN SPADAFORA-SADLER, as Trustees of WINDMILL LANE NOMINEE TRUST, R. BERGEN VAN DOREN, PHILIP D. WRIN, MARY L. WRIN, and MONICA T. GRAVELINE, as Trustees of MONICA T. GRAVELINE TRUST

Plaintiffs filed their unverified Complaint on July 30, 2004, seeking a declaratory judgment pursuant to G. L. c. 231A relative to a claimed easement by implication and easement by prescription in the Hyannis Park beach (the “Beach”) located in Yarmouth, MA. Defendant Helen S. Shah (“Shah”) filed her Answer on September 1, 2004. [Note 1], [Note 2]

Defendants Ronald C. Mafera, James J. Ryan and Richard Lyman (“Mafera”) filed their Answer and Counterclaim alleging that none of Plaintiffs have a right to use Stone Avenue as access to the Beach, and Crossclaim against Defendant Linda Ellen Shrago (“Shrago”), alleging that they own land which is in Shrago’s name located on the Beach. [Note 3], [Note 4] On September 30, 2004, Defendants Burton L. Williams and Paul T. Souliotis, Trustees under the will of Paul T. Souliotis (“Souliotis”), filed their Answer. [Note 5] On October 26, 2004, separate Answers were filed by Shrago, Defendants Douglas and Anne Richards (the “Richards”), and Defendants Robert H. St. Germain and Richard S. Small, Trustees of the Windmill Lane Realty Trust dated December 3, 1996 (“Windmill Trust I”). [Note 6] Defendants Ann Marie T. Brown and Charles Lynch, Jr. (“Brown/Lynch”), Kathleen Cavanaugh and Phyllis Timmins (“Cavanaugh/Timmins”), William J. Delaney and D. Delaney (the “Delaneys”), Robert K. LaPointe and L. LaPointe (the “LaPointes”), Jeanne M. O’Connor (“O’Connor”), John Puglisi and Una Puglisi (the “Puglisis”), and Monica Graveline as Trustee of Monica T. Graveline Trust (the “Graveline Trust”) filed their Answer on October 28, 2004. [Note 7] On October 29, 2004, Defendants Donna Spadafora and Toni Ann Spadafora-Sadler, as Trustees of the Windmill Lane Nominee Trust dated November 19, 2000 (“Windmill Trust II”), filed their Answer and Counterclaim, alleging termination of Plaintiffs’ easement, if any, to use the Beach by adverse possession. [Note 8] Plaintiffs filed their Response to Windmill Trust II’s counterclaim on November 15, 2004. On December 20, 2004, Defendants Mary A. Crimmins (Crimmins”), Lisa A. Douglas as Trustee of Malfa Realty Trust (“Malfa Trust”), and R. Bergen Van Doren (“Van Doren”) were defaulted. On December 20, 2004, Plaintiffs filed their Response to Mafera’s counterclaim. On September 14, 2005, a Stipulation of Voluntary Dismissal was filed with respect to Plaintiffs Bertha Narinian, Sandra Narinian and Greg Narinian as Trustees of Narinian Realty Trust (the “Narinian Trust”), owners of property located at 51 Park Avenue, and James S. Weaver and Harriet S. Weaver (the “Weavers”), owners of property located at 5 Russo Road. Defendants Philip D. Wrin and Mary L. Wrin (the “Wrins”) filed their Answer on October 6, 2005.

Plaintiffs [Note 9] filed their Motion for Summary Judgment (“Summary Judgment 1”) on November 15, 2006, together with supporting memorandum, claiming an implied easement in the Beach. The Wrins filed their Opposition on December 14, 2006, together with Affidavit of Michael B. Stusse. On December 15, 2006, Brown/Lynch, the Delaneys, the LaPointes, Windmill Trust I, the Graveline Trust, and Windmill Trust II (the “Six Defendants”) and O’Connor filed their separate Oppositions and Cross-Motions for Summary Judgment, together with Affidavits of Chester N. Lay, Robert Daylor and Andrea Graveline, and portions of Deposition Transcripts of Joan Delmore, Patricia Egan, Christine K. Greeley, Margaret Henderson, William Henderson, Janet L. Hunt, Sandra Kristiansen, Stewart Kristiansen, John J. Leahy, Albert F. Lenzi, Joan M. Lenzi, Sheila Luttazi, Cristin Luttazi, Brian Melia, Tracy Ann Murphy, O’Connor and Barbara Tessmer. On December 20, 2006, Reilly and Shah filed separate Cross-Motions for Summary Judgment. On January 12, 2007, Summary Judgment 1 Plaintiffs filed their Opposition to Cross-Motions of the Six Defendants, O’Connor, Reilly and Shah (together with the Wrins, the “Summary Judgment Defendants”). On the same day, Summary Judgment 1 Plaintiffs filed a Motion to Strike Affidavits of Robert Daylor and Chester Lay. On February 6, 2007, O’Connor and the Six Defendants filed their Replies to Summary Judgment 1 Plaintiffs’ opposition. All motions for summary judgment were heard on February 16, 2007, and a decision was issued on August 28, 2008 (“Decision 1”). In Decision 1, this court determined that there were disputed facts with respect to the Six Defendants’ and O’Connor’s claims that any implied rights in the Beach have been abandoned or extinguished by adverse possession, and ordered a trial in that regard. A pre-trial conference was held on January 14, 2009, and several status conferences were held thereafter with respect to resolution of various issues raised in Decision 1. Prior to the trial, the following documents were filed with this court: A Consent Judgment between Summary Judgment 1 Plaintiffs and O’Connor dated October 23, 2009, an Agreement for Judgment between Summary Judgment 1 Plaintiffs and the Wackrows dated October 19, 2009, a Stipulation between Summary Judgment 1 Plaintiffs and Shrago dated October 19, 2009, and a letter dated October 16, 2009 acknowledging which plaintiffs and defendants were a part of this case for purposes of the trial. [Note 10] This court allowed the Graveline Trust’s Motion to Default Security and Kelleher. A site view and the first day of trial at the Barnstable District Court were held on October 28, 2009. At the commencement of the trial, the Graveline Trust filed a Request for Judicial Notice and a Motion to Dismiss for Failure to Prosecute. The final day of trial was held in the Land Court in Boston on October 29, 2009. [Note 11] Plaintiffs filed their post-trial brief and motion for Summary Judgment with respect to the Shah Trust, together with supporting memorandum and Index containing excerpts of depositions of Martha Smith Leahy, John J. Twomey, and Helen Shah, and excerpts from the trial testimony of John Twomey and Brian Hunt, on January 28, 2010. The Graveline Trust filed its post-trial brief on January 29, 2010, and the Shah Trust filed its motion for Summary Judgment on March 19, 2010, together with supporting memorandum and Affidavits of Roslyn L. Weiss, Helen S, Shah, and Lester J. Murphy, Jr. At that time the remaining matters were taken under advisement. A decision resolving the issues arising out of the trial and second summary judgment motions filed by Plaintiffs and the Shah Trust was issued on December 22, 2010 (“Decision 2”).

In Accordance with Decision 1 and Decision 2 it is:

ORDERED and ADJUDGED that the Affidavit of Lay is struck in its entirety.

ORDERED and ADJUDGED that the portion of the Affidavit of Daylor in which he points out factual issues relevant to the case shall be left intact.

ORDERED AND ADJUDGED that Security and Kelleher, as the original grantors of all lots in Hyannis Park, intended to grant rights in the Beach to all lot owners in Hyannis Park.

ORDERED AND ADJUDGED that the express right of way contained in the deeds to Summary Judgment 1 Plaintiffs did not negate the intention of Security and Kelleher, as the original grantors, to grant rights in the Beach to all lot owners in Hyannis Park.

ORDERED AND ADJUDGED that the O’Connor property is subject to Summary Judgment 1 Plaintiffs’ implied easement to use the Beach.

ORDERED AND ADJUDGED that Summary Judgment 1 Defendants were not bona fide purchasers without notice of Plaintiffs’ implied easement in the Beach.

ORDERED AND ADJUDGED that Summary Judgment 1 Plaintiffs who own lots originally deeded out prior to the September 1895 revisions to the 1892 Plan do not have a right to use Stone Avenue to access the Beach.

ORDERED and ADJUDGED that Summary Judgment 1 Plaintiffs’ Motion for Summary Judgment is ALLOWED and the Summary Judgment 1 Defendants’ Cross-Motion for Summary Judgment is DENIED.

ORDERED and ADJUDGED that the Graveline Trust’s Motion to Dismiss for Failure to Prosecute is DENIED.

ORDERED and ADJUDGED that the Graveline Trust’s Request for Court to Take Judicial Notice is ALLOWED in part.

ORDERED and ADJUDGED that Summary Judgment 1 Plaintiffs have not abandoned the Easement.

ORDERED and ADJUDGED that the Graveline Trust’s use of the Graveline Beach is not irreconcilable with the rights of Summary Judgment 1 Plaintiffs to exercise the Easement.

ORDERED and ADJUDGED that the Graveline Trust cannot show any period of exclusive use of the Graveline Beach for a period of twenty years.

ORDERED AND ADJUDGED that the Graveline Trust has not extinguished the Easement, as it relates to the Graveline Beach, through prescriptive use.

ORDERED AND ADJUDGED that neither Summary Judgment 1 Plaintiffs nor the Graveline Trust’s claims were barred by the laches.

ORDERED AND ADJUDGED that the Shah Tidal Creek and the Shah Tidal Creek Beach are two separate parcels.

ORDERED AND ADJUDGED that Trial Plaintiffs have a right to use the Shah Tidal Creek Beach for usual beach purposes.

ORDERED AND ADJUDGED that an easement by implication exists in favor of Trial Plaintiffs to use the Shah Tidal Creek to fish, swim, play, and perform other similar recreational activities (the “Shah Tidal Creek Easement”). [Note 12]

ORDERED AND ADJUDGED that the Shah Tidal Creek was encumbered by the Shah Tidal Creek Easement prior to the 1906 Deed, and thus Trail Plaintiffs have rights to use the Shah Tidal Creek.

ORDERED AND ADJUDGED that the Shah Trust has not extinguished the Shah Tidal Creek Easement or the Easement relative to the Shah Beach.

ORDERED and ADJUDGED that Trial Plaintiffs’ Motion for Summary Judgment is ALLOWED.

By the court. (Sands, J.)