B&N LANDS, LLC vs. JOHN P. CHICOINE and JANA S. CHICOINE

Plaintiff B&N Lands, LLC, filed its unverified complaint in 06 MISC 333455 on November 27, 2006, seeking, pursuant to the provisions of G. L. c. 231A, a declaratory judgment as to ownership and/or easement rights of Plaintiff and Defendants James E. Unger and Robin L. Unger (the “Ungers”) in Frog Hollow Road (a paved portion of the Railroad Bed “Frog Hollow Road”) located in Russell, Massachusetts, and equitable relief pursuant to G. L. c. 185, § 1(k). On the same day Plaintiff filed its unverified complaint in 06 MISC 333456 seeking, pursuant to the provisions of G. L. c. 231A, a declaratory judgment as to ownership and/or easement rights of Plaintiff and Defendants John P. Chicoine and Jana S. Chicoine (the “Chicoines”) in Frog Hollow Road, and equitable relief pursuant to G.L. c. 185, § 1(k). The Ungers filed their Answer on December 18, 2006. The Chicoines filed their Answer on January 8, 2007. A case management conference in both cases was held on March 29, 2007. [Note 1] The Ungers filed a Motion for Summary Judgment on August 31, 2007, together with Affidavits of Jeffrey B. Loeb, Esq. and Holly F. Counihan (title examiner). The Chicoines filed a Motion for Summary Judgment on September 18, 2007, together with Affidavits of John Chicoine (Defendant) and Alan Seewald, Esq. (the Unger summary judgment motion and the Chicoine summary judgment motion together, “Summary Judgment I”) On November 1, 2007, Plaintiff filed its Opposition, together with Affidavits of Michael Pill, Esq. and James A. Smith (surveyor) (two). A hearing was held on both motions on December 7, 2007, at which time the two cases were consolidated. This court (Lombardi, J.) issued an Order Granting Partial Summary Judgment on June 30, 2008 (“Decision 1”), finding the Brueno Parcel (as hereinafter defined, containing both the property owned by the Ungers (the “Unger Parcel”) and the property owned by the Chicoines (the “Chicoine Parcel”)) abutted the former Boston & Albany Railroad bed (the “Railroad Bed”) as a linear monument; as a result, both the Ungers and the Chicoines, pursuant to G. L. c. 183, § 58 (the Derelict Fee Statute), hold the fee to the center line of the abutting Railroad Bed as it existed in 1923. The location of the Railroad Bed and Frog Hollow Road, and the issue of easements in Frog Hollow Road, were left as issues which needed disposition at trial.

On July 29, 2008, Plaintiff filed a Motion to Reconsider Order Granting Partial Summary Judgment, which was denied on February 12, 2009. On December 24, 2008, Plaintiff and the Ungers filed a Stipulation of Dismissal of 06 MISC 333455, and this court issued a Judgment of Dismissal on December 29, 2008. Plaintiff filed an Amended and Supplemented Complaint in 06 MISC 333456 on February 18, 2009, adding a declaratory judgment count relative to the extinguishment of any easement the Chicoines may have over Frog Hollow Road, which amendment was allowed on April 2, 2009. A pre-trial conference was held on June 17, 2009. At that conference, it was determined there were no material factual disputes, and this court converted the trial to a summary judgment hearing.

The Chicoines filed their Second Motion for Summary Judgment (“Summary Judgment II”) on March 1, 2010, together with supporting memorandum and Appendix containing Affidavits of John P. Chicoine and Alan Seewald, Esq. On April 14, 2010, Plaintiff filed its Cross-Motion for Summary Judgment, together with supporting memorandum and Affidavits of William B. Hull (Plaintiff’s manager) and Michael Pill, Esq. The Chicoines filed their Reply Brief on May 7, 2010, together with Motion to Strike a portion of Plaintiff’s memorandum. On May 13, 2010, Plaintiff filed its Reply Memo and Opposition to Motion to Strike. A hearing was held on all motions on May 17, 2010, and all motions were taken under advisement. A decision of today’s date has been issued.

In accordance with that Decision, it is:

ORDERED and ADJUDGED that the Brueno Parcel did abut the Railroad Bed as a linear monument. Consequently, Brueno and his successors in interest to the Brueno Parcel hold the fee to the center line of the abutting Railroad Bed as far as owned by Eugene Parks in 1923.

ORDERED and ADJUDGED that Summary Judgment I is ALLOWED.

ORDERED and ADJUDGED that Plaintiff’s predecessor in title (Eugene D. Parks) did not expressly reserve the entire fee interest in the Railroad Bed, but reserved a right of way to cross the Brueno Parcel to reach the Railroad Bed.

ORDERED and ADJUDGED that the Chicoines have an easement by estoppel in the Railroad Bed.

ORDERED and ADJUDGED that the Chicoines have an easement by estoppel in Frog Hollow Road.

ORDERED and ADJUDGED that Summary Judgment II is ALLOWED, and Plaintiff’s Cross Motion for Summary Judgment is DENIED.

By the court. (Sands, J.)