MISC 06-331224

January 29, 2010

Sands, J.


Plaintiffs BTR Ventures, LLC (“BTR”) and Benson T. Ross (“Ross”) [Note 1] filed a verified Complaint on October 26, 2006, pursuant to G. L. c. 231A, seeking a Declaratory Judgment that (1) Defendants Deborah Raptopoulos and Vassilios Raptopoulos do not own, and do not have the right to use, a right of way (the “Disputed Area”) [Note 2] located between land owned by BTR and Defendants in Edgartown, Massachusetts, and (2) Plaintiffs have title to the Disputed Area through adverse possession. [Note 3] Plaintiffs also sought damages against Defendants for trespass on Plaintiff Property, as hereinafter defined, pursuant to G. L. c. 185 §§ 1(k) and (o), violations of their civil rights, and intentional infliction of emotional distress. [Note 4] On the same day Plaintiffs filed their Motion for Lis Pendens, which was heard on November 14, 2006, and allowed, subject to clarification of the legal description of the Disputed Area. A second Lis Pendens hearing was held on November 21, 2006, and Plaintiffs’ Memorandum of Lis Pendens was allowed on November 30, 2006.

On December 15, 2006, Defendants filed a Motion to Dismiss, arguing that Plaintiffs could not meet the requirements of adverse possession for title to the Disputed Area. On January 3, 2007, Plaintiffs filed an Opposition to Defendants’ Motion to Dismiss. On January 4, 2007, this court heard and denied Defendants’ Motion to Dismiss because of a dispute over material factual issues. Defendants filed their Answer and Counterclaim on February 5, 2007, alleging slander of title and breach of settlement agreement. [Note 5] Plaintiffs filed their Reply to Counterclaim on April 23, 2007. Plaintiffs filed their Motion for Preliminary Injunction on December 11, 2007. A hearing was held on this motion on December 28, 2007, at which time the parties indicated that they would attempt to resolve the preliminary injunction issues themselves. This court gave them until January 4, 2008, to do so. The parties reported that they were unable to resolve the matter themselves and on January 14, 2008, this court issued a preliminary injunction Order granting Defendants, their family, guests, and invitees the right to use a portion of a driveway (the “Driveway”) located within the Disputed Area for pedestrian purposes to access South Water Street. This court also granted Plaintiffs, their guests, and their invitees, the right to use the Driveway and to maintain the remainder of the Disputed Area in its present condition. [Note 6]

On February 6, 2008, the parties filed a Joint Pre-Trial Memorandum, in which they agreed upon certain facts and exhibits. On February 27, 2008, Defendants filed their Motion in Limine to Exclude Evidence Contradicting the Plaintiffs Judicial Admission Regarding the Way Bounding the Raptopoulos Property. On March 18, 2008, Plaintiffs filed an Opposition to the Raptopouloses’ Motion in Limine to Exclude Evidence. On March 26, 2008, Defendants’ Motion in Limine was heard and denied by this court.

A site view was held on May 7, 2008, and on May 8 and 9, 2008, the first two days of a four-day trial was held at the Daniel Fisher House in Edgartown, Massachusetts. On July 16 and 17, 2008, the third and fourth days of trial were held at the Land Court in Boston. Testimony at trial was given by the following witnesses for Plaintiffs: Hope Kingsbury Register (Plaintiffs’ neighbor), Sharon Smith Purdy (Plaintiffs’ real estate broker), James Reynolds (BTR’s attorney), Walter Carell (Plaintiffs’ landscape architect), Priscilla B. Summers (BTR’s predecessor in title), Glen F. Provost (Plaintiffs’ land surveyor), David LaRue (landscape architect), and Benson Tilford Ross (Plaintiff). Defendants’ trial witnesses include: Jan Grabowski (Defendants’ caretaker and carpenter), Lilah Raptopoulos (Defendants’ daughter), Vassilios Raptopoulos (Defendant), Olga-Laurie Levin (Deborah Raptopoulos’ invitee), Vanessa Raptopoulos (Defendants’ daughter), Alexandra Ellison (Defendants’ invitee), and Deborah Raptopoulos (Defendant). One hundred and ten exhibits were admitted into evidence.

On September 19, 2008, Plaintiffs and Defendants filed their Post-Trial Briefs, at which time the case went under advisement. A decision (the “Decision”) of today’s date has been issued.

In accordance with the Decision it is:

ORDERED and ADJUDGED that G. L. c. 183, § 58 applies to the Disputed Area and, thus, confers upon the holders of property located at 13 Atwood Circle, Edgartown, Massachusetts (“Plaintiff Property”), and the holders of property located at 7 Cummings Way in Edgartown, Massachusetts (“Defendant Property”), a fee interest to the center line of the Disputed Area, subject to the findings of this court on the issues of adverse possession. [Note 7]

ORDERED and ADJUDGED that Plaintiffs’ claim for adverse possession over the Hedge fails.

ORDERED and ADJUDGED that Plaintiffs have satisfied their burden to show actual use of the Driveway (as the Driveway existed prior to its 2006 expansion) for more than twenty years.

ORDERED and ADJUDGED that Plaintiffs have satisfied their burden to show exclusive use of the Driveway (as the Driveway existed prior to its 2006 expansion).

ORDERED and ADJUDGED that Plaintiffs have satisfied their burden to show open and notorious use of the Driveway (as the Driveway existed prior to its 2006 expansion).

ORDERED and ADJUDGED that Plaintiffs have established their burden to show adverse use of the Driveway (as the Driveway existed prior to its 2006 expansion).

ORDERED and ADJUDGED that Plaintiffs’ use of the Driveway (as the Driveway existed prior to its 2006 expansion and only with respect to those portions of the Driveway to which Defendants held title) was open, notorious, adverse, and exclusive for more than twenty years before Defendants began using the Disputed Area in 1993. [Note 8] The parties shall report to this court (Jennifer Masello, Sessions Clerk) in writing, within thirty days of the date of this decision, as to whether Defendants will require the removal of the portion of the Driveway constructed by Plaintiffs in 2006.

ORDERED and ADJUDGED that Plaintiffs’ claim of adverse possession over the western Grass Strip fails.

By the court. (Sands, J.)


Deborah J. Patterson


Dated: January 29, 2010


[Note 1] Ross is the principal of BTR and resides at 9 Oyster Pond Road, Edgartown, Massachusetts.

[Note 2] The Disputed Area is shown as a twenty-five foot wide way on the “Revised Plan of Land in Edgartown, Mass.” dated February 23, 1950, prepared by Everett M. Brooks Co. (Registration Plan No. 17955B) (the “1950 Plan”).

The Disputed Area consists of the following: (1) the Driveway, as hereinafter defined, which provides access between Plaintiff Property and South Water Street, via the Norton ROW; (2) two narrow strips of land, each approximately five-feet wide (the “Grass Strips”), one on either side of the Driveway; and (3) a strip of land on which a wild and heavily brambled hedge (the “Hedge”) grows, separating the western Grass Strip from Defendant Property. The Driveway leads to the garage (the “Garage”) in the southwest corner of Plaintiff Property. The Driveway includes a bumpout (the “Bumpout”) located near the Garage that is used to turn vehicles around. The Driveway, Garage, and Bumpout (as they existed prior to 2006) are shown on “Sketch Plan of Land in Edgartown, Mass. Drawn for Benson Ross” dated July 6, 2005 (the “2005 Plan”).

[Note 3] Plaintiffs filed an Amended Verified Complaint on January 12, 2007, clarifying the boundaries of the Disputed Area, together with the Affidavit of Priscilla B. Summers (“Summers”).

[Note 4] The three counts relating to damages were dismissed prior to trial as specified in the Parties Pre-Trial Memorandum.

[Note 5] This court shall not address these Counterclaim issues as they were not addressed at the pre-trial conference or in the parties’ post-trial briefs.

[Note 6] A Revised Order was issued on February 7, 2008.

[Note 7] Plaintiff Property is shown as Lot 47 on the Town of Edgartown Assessors’ Map No. 29B (the “Assessors’ Map”). Defendant Property is shown as Lot 76 on the Assessors’ Map.

[Note 8] In the event that Defendants were able to establish an easement by estoppel or implication over the Disputed Area, which is unlikely as discussed, supra, the issue would remain whether Plaintiffs’ adverse possession would extinguish such easement rights.