Plaintiff John Ryder filed his Verified Complaint on February 18, 2009, seeking, pursuant to G. L. c. 240, § 6, to quiet title to an approximately ten to fifteen foot wide strip of land (the Disputed Area) that abuts his property located at 64 Spring Road, Nahant, Massachusetts (Plaintiff Property), which Plaintiff claims by record title. Plaintiff also claims title to the Disputed Area by adverse possession. On April 9, 2009, Defendant Town of Nahant (the Town) filed its Motion for Judgment on the Pleadings Pursuant to Mass. R. Civ. P. 12(b)(6) For Failure to State a Claim Upon Which Relief Can Be Granted, together with supporting memorandum. [Note 1], [Note 2] Plaintiff filed his Opposition to such motion on April 27, 2009. A case management conference was held on April 30, 2009, at which time Leonard A. Frisoli (Frisoli) (an abutter) filed a Motion to Intervene. [Note 3] On March 18, 2010, the Town filed its Reply memorandum to the Motion for Judgment on the Pleadings, together with Affidavit of Harriet C. Steves. [Note 4] Plaintiff filed his Rebuttal memorandum on March 30, 2010. A hearing was held on the motion for Judgment on the Pleadings on March 31, 2010, and the matter was taken under advisement. By decision dated September 22, 2010 (Land Court Decision 1), this court found that (1) the 1899 Road Taking (hereinafter defined) complied with two of the four statutory requirements in 1899; (2) the pleadings did not allow for a finding with respect to the other two requirements, and (3) if the 1899 Road Taking was found to be valid, Plaintiff could not succeed in his adverse possession claim. A status conference was held on October 15, 2010 to determine how to proceed with the litigation. On January 13, 2011, Plaintiff filed his Amended Memorandum in Opposition to Frisolis Motion to Intervene. At the request of Plaintiff and the Town, Frisolis motion was not heard. On April 4, 2011, the Town filed its Motion for Summary Judgment with supporting memorandum and the Affidavit of Margaret R. Barile. On May 6, 2011, the Town filed its Amended Memorandum in Support of its Motion for Summary Judgment and Second Affidavit of Margaret R. Barile. On June 7, 2011, Plaintiff filed his Opposition to Defendants Motion for Summary Judgment and the Affidavit of Samuel A. Vitali, Esq. On August 12, 2011, Plaintiff filed Affidavits of Dennis McManus and Ralph Reid, both land surveyors. A summary judgment hearing was held on August 31, 2011, and the matter was taken under advisement. A decision of todays date (Land Court Decision 2) has been issued.
In accordance with Land Court Decision 1 and Land Court Decision 2, it is:
ORDERED and ADJUDGED that a proposed layout of the extension of High Street (the Extension) from Nahant Road to Spring Road (the 1899 Road Taking) complied with, in part, Chapter 49 of the Public Statutes of the Commonwealths (PS 49) requirements that a proposed layout must be (1) reported to the town clerk at least seven days prior to town meeting, and (2) accepted at a town meeting.
ORDERED and ADJUDGED that the Towns Motion for Judgment on the Pleadings is DENIED IN PART and ALLOWED IN PART.
ORDERED and ADJUDGED that the Town recorded the 1899 Road Taking in a book kept for that purpose within ten days of the Town meeting at which the proposed way was accepted.
ORDERED and ADJUDGED that the Town took possession of the Extension, including the Disputed Area, within two years from when the right to do so arose.
ORDERED and ADJUDGED that as a result of Land Court Decision 1 and Land Court Decision 2, the 1899 Road Taking complied with all the requirements set forth in PS 49, and was valid.
ORDERED and ADJUDGED that because the 1899 Road Taking was valid, Plaintiff cannot succeed in his claim for title by adverse possession over the Disputed Area.
ORDERED and ADJUDGED that the Towns Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
[Note 1] The court treated the Towns motion as a Motion for Judgment on the Pleadings filed under Mass. R. Civ. P. 12(c).
[Note 2] On April 22, 2009, Plaintiff filed a Motion for Service by Publication on Defendant Nahant Land Company (the Land Company). On June 1, 2009, Plaintiff filed a due diligence letter indicating that he was unable to locate the Land Company and on the same date this court allowed the motion for service by publication. No one responded to the publication.
[Note 3] The Motion to Intervene was not marked up for a hearing. Frisoli appeared, but did not argue, at the oral argument on the motion for Judgment on the Pleadings.
[Note 4] The court did not rely on this affidavit because, as discussed in Land Court Decision 1 (defined herein), a Motion for Judgment on the Pleadings is based on the sufficiency of the Complaint.