Plaintiffs Paul F. Hogan (Hogan) and Patricia A. Hogan (together, Plaintiffs) filed their Verified Complaint to Prevent Interference with Easement on April 1, 2008, seeking, pursuant to G.L. c. 185, § 1(k) and G.L. c. 231A, § 1, declaratory and injunctive relief to prevent Defendant Edward C. Gordon (Gordon), Trustee of 120 Racing Beach Trust, from interfering with Plaintiffs easement (the Easement) over property owned by Defendant. On the same day, Plaintiffs filed their Motion for Approval of Memorandum of Lis Pendens. Defendant filed his Answer and Verified Counterclaim on April 18, 2008, seeking to determine the Easements status, arguing relocation of the Easement, and alleging that there was no oral agreement, as stated by Plaintiffs, regarding the Easement. Defendant filed a Cross-Motion for Lis Pendens on the same day. A hearing was held on both motions for Lis Pendens on April 22, 2008, and both motions were allowed. [Note 1] Plaintiffs filed their Reply to Counterclaim on May 12, 2008. A case management conference was held on June 24, 2008. A pre-trial conference was held on September 9, 2010. On January 6, 2011, Defendant filed a Motion in Limine to Exclude Expert Witness Testimony Not Disclosed During Discovery and a Motion in Limine to Exclude the MacNichol Affidavit and Electronic Mail Communication. A site view and the first day of trial at the Falmouth District Court were held on January 10, 2011. At the commencement of the trial, Defendant filed his Trial Memorandum and Plaintiffs filed an Offer of Proof of excluded testimony of Barbara Cochran Whitney. [Note 2] The second day of trial was held on January 11, 2011, at the Land Court in Boston. At the end of the trial, Defendant filed a Request for Clarification of Lis Pendens. [Note 3] The parties filed post-trial briefs on February 24, 2011, at which time the case went under advisement. A decision of todays date (the Decision) has been issued.
In accordance with the Decision, it is:
ORDERED and ADJUDGED that Defendants Motion in Limine to Exclude Expert Witness Testimony Not Disclosed During Discovery is DENIED.
ORDERED and ADJUDGED that Defendants Motion in Limine to Exclude the MacNichol Affidavit and Electronic Communication is ALLOWED.
ORDERED and ADJUDGED that the deed dated November 19, 1971, in which F. Morris Cochran and Margaret S. Cochran conveyed Lot 228 (as shown on Land Court Plan 4794-28 dated October 20, 1971) to Edward F. MacNichol, Jr. and Anne Ayer MacNichol, is not clear as to the Easements location and scope.
ORDERED and ADJUDGED that testimony from the two experts (Carlos Peña and Michael McGrath) is inconclusive as to interpretation of the Easement, and the most reasonable interpretation of the Easement contemplates both shore and upland access.
ORDERED and ADJUDGED that the Easement provides access over Lot 228 from either Lot 229 (as shown on Land Court Plan 4794-28 dated October 20, 1971) or Racing Beach Avenue (the Road), but that it is limited only to the area of Lot 228 reasonably necessary to repair the rip-rap.
ORDERED and ADJUDGED that relocating the Easement meets the requirements of M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), and that the relocated Easement runs the entire length of Lot 228 from its easterly boundary to its westerly boundary, i.e. from the Road to the mean high water mark, and that the Easements width is twenty feet from the boundary separating Lot 228 and Lot 229. [Note 4]
ORDERED and ADJUDGED that the Easement is appurtenant to both Lot 228 and Lot 229 and was conveyed to Plaintiffs in their deed.
ORDERED and ADJUDGED that Plaintiffs have not abandoned the Easement.
ORDERED and ADJUDGED that no oral agreement precludes development on Lot 228.
ORDERED and ADJUDGED that Plaintiffs and Defendant shall prepare a plan and record such plan with the Barnstable County Registry of Deeds within thirty days of the date of this Decision to show the relocation and modification of the Easement.
By the court. (Sands, J.)
[Note 1] Plaintiffs motion for lis pendens covered Lot 228, as hereinafter defined. Defendants motion for lis pendens covered Lot 229, as hereinafter defined.
[Note 2] The discovery deadline had been extended from August 1, 2009 to June 15, 2010. Barbara Cochran Whitney was not listed as a witness until the pre-trial conference on September 9, 2010.
[Note 3] The parties agreed to resolve this issue themselves. This courts intent in issuing the lis pendens to Plaintiffs was to limit it only to Lot 228.
[Note 4] It follows that Defendants reciprocal easement runs the length of Lot 229 from its easterly boundary to its westerly boundary, i.e. from the Road to the mean high water mark, and that its width is twenty feet from the boundary separating Lot 228 and Lot 229.