Home SHARON BATES, TRUSTEE OF THE RUTH STREET REALTY TRUST vs. ROBERT L. McCARTHY and ELSIE LEE MARVIN, TRUSTEES of BIG ROCK REALTY TRUST; ROBERT D. FERRINI; ELEANOR C. FERRINI; LEONARD W. JACKSON, TRUSTEE of JACKSON REALTY TRUST; GEORGE R. GRAVES; JOAN C. GRAVES; ELIZABETH R. FIELD, TRUSTEE of RADCLIFFE FIELD REALTY TRUST, POINT ASSOCIATES, INC. [Note 1]

MISC 08-375684

April 8, 2011

Sands, J.

JUDGMENT

Plaintiff Sharon Bates, Trustee of the Ruth Street Realty Trust, filed her unverified complaint on March 25, 2008, pursuant to G. L. c. 240, §§ 1-5, as a Petition to Try Title, and pursuant to G. L. c. 240, §§ 6-10, as a Petition to Remove Cloud on Title, seeking to determine rights in a street known as Seabreeze Avenue (the “ROW”) (formerly known as the private portion of Nelson Avenue as show on “Plan of Wilbur Point Development Fairhaven, Massachusetts” dated April 1939 (the “1939 Plan”)), within the development commonly referred to as Wilbur’s Point in Fairhaven, Massachusetts. [Note 2] All Defendants filed their joint Answer and Counterclaim, claiming an easement by estoppel in the ROW and seeking an order requiring Plaintiff to remove all structures located within the ROW, on April 29, 2008. [Note 3] Plaintiff filed her Answer to Counterclaim on May 1, 2008. [Note 4] A case management conference was held on July 17, 2008.

Defendants filed their Motion for Summary Judgment on July 16, 2009, together with supporting memorandum, Appendix of Exhibits, and Affidavits of Elsie Lee Marvin and George R. Graves. Because it appeared that there were disputed facts, a pre-trial conference was held on December 2, 2009, at which time the parties discussed filing summary judgment on the easement by estoppel issue. Defendants filed their revised Motion for Summary Judgment on March 1, 2010, together with supporting memorandum. Plaintiff filed her Opposition on April 15, 2010, together with supporting memorandum, Appendix of Exhibits and Affidavit of Kenneth R. Ferreira, R.L.S.P.E. Defendants filed their Reply on June 2, 2010, together with Second Affidavit of Elsie Lee Marvin. A hearing was held on the summary judgment motion on August 23, 2010, and the matter was taken under advisement. A Decision of today’s date (the “Decision”) has been issued. In accordance with the Decision it is:

ORDERED and ADJUDGED that Defendants have an easement by estoppel in the ROW. [Note 5]

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

ORDERED and ADJUDGED that Plaintiff shall remove all structures and improvements on Plaintiff Property that interfere with Defendants’ easement rights in the ROW. Specifically, Plaintiff shall remove the horseshoe pit and the portion of the fence north of the ROW that blocks access from the ROW to Ruth Street. Plaintiff shall not erect any structures, make any improvements, or otherwise treat the ROW as if it were her own yard, unencumbered by an easement. Plaintiff shall take all steps necessary to ensure that she does not block the pedestrian path located along the portion of the ROW abutting Lots 20, 21, and 51 as shown on the 1939 Plan. [Note 6]

By the court. (Sands, J.)

FOOTNOTES

[Note 1] The Complaint lists other Defendants “as such other persons, if any, unascertained, not in being, unknown, within or without the Commonwealth, or who cannot be served with process, their heirs or legal representatives or such persons as shall become their heirs, devisees or appointees.” There was no notice by publication, however, thus this Decision is binding only upon those parties who had been given proper notice.

[Note 2] Plaintiff filed her First Amended Complaint on November 12, 2008, adding Point Associates, Inc. as a Defendant.

[Note 3] Defendants filed their Answer to First Amended Complaint and Amended Counterclaim on November 19, 2008.

[Note 4] Plaintiff filed her Answer to Amended Counterclaim on December 2, 2008.

[Note 5] It should be noted that Defendants may not use the ROW to access Association Beach, unless they are members. Moreover, as discussed, supra, Defendants do not have an easement to access West Beach, because the ROW does not abut West Beach.

[Note 6] The plan titled “Existing Conditions Plan of the Subdivision Known as ‘Wilbur Point Development’ Fairhaven, Massachusetts Plan Book 35, Page 19”, dated January 14, 2010 and prepared by Kenneth R. Ferreira Engineering, Inc. (the “2010 Plan”) and other photographs submitted by the parties indicate that a significant portion of the ROW, as it exists today, is blocked by heavy vegetation, partially in the portion of the ROW owned by Point Associates, Inc. (“PAI”) and the Big Rock Realty Trust (“Big Rock”). To the west of the horseshoe pit on the ROW is a large hedge that intersects with the fence. The hedge and the fence block access from the ROW to Ruth Street. Defendants, however, complain only about the fence and the horseshoe pit, not the hedge. Moreover, the portion of the ROW east of Association Beach appears to be completely blocked by heavy vegetation, as shown on the 2010 Plan. Because Defendants claim a right to use the entire ROW, the burden is on PAI (the fee owners of Association Beach) and Big Rock to clear a footpath in the heavy vegetation to allow Defendants to walk through that portion of the ROW for access to Ruth Street from the south.