MISC 08-387228

November 16, 2011

Sands, J.


Plaintiffs Highland Manor Realty Trust (“Highland Manor”) and Union Square Realty Trust (“Union Square”) (together, “Plaintiffs”) filed their unverified Complaint on November 7, 2008, seeking (1) declaratory judgment relative to rights in an easement across property owned by 557 Lancaster Street Realty Trust (“Defendant”), (2) removal of granite curbing by Defendant in the easement area, and (3) alleging trespass by Defendant across Plaintiffs’ properties in the installation of electrical service cables. Plaintiffs filed a Motion for Temporary Restraining Order on February 4, 2009, which was subsequently withdrawn. [Note 1] A case management conference was held on February 10, 2009. [Note 2] Defendant filed its Motion for Summary Judgment on October 25, 2010, together with supporting memorandum, Statement of Material Facts, exhibits, Affidavits of Larry R. Sabean (Land Surveyor) and James M. Donovan (Attorney), and an Affidavit of James S. Whitney (“Whitney Affidavit 1”). On November 24, 2010, Plaintiffs filed their Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and Affidavits of James L. Xarras (“Xarras Affidavit 2”), Joseph M. Gibbons (Truck Driver), Pelino Camapagna (Delivery Driver), and Leonard Mallard (the “Mallard Affidavit”). Defendant filed its Opposition to Plaintiffs’ Cross-Motion on December 6, 2010, together with a Second Affidavit of James S. Whitney. [Note 3] A hearing was held on both motions on January 19, 2011, and the matter was taken under advisement. A Decision of today’s date (the “Decision”) has been rendered. In accordance with the Decision it is:

ORDERED and ADJUDGED that Union Square’s claim to a right-of-way (the “Deeded Easement”) corresponding to a gravel road crossing a small portion of property labeled as the Plastic Turning Co. Inc. as shown on a plan titled “Land in Leominster, Mass. Owned by Leominster Manufacturers Trust” dated July 3, 1946, and recorded with the Worcester Northern District Registry of Deeds (the”Registry”) at Plan Book 77, Page 9, and prepared by William P. Ray (“Defendant Property”), [Note 4] is barred by the doctrine of res judicata.

ORDERED and ADJUDGED that Union Square continues to have the benefit of the right-of-way (the “Agreed Easement”) defined by an Agreement for Judgment (the “Agreement for Judgment”) in Land Court Case 04 MISC 303265 (the “Prior Action”).

ORDERED and ADJUDGED that the Deeded Easement was abandoned by Plaintiffs, inasmuch as Plaintiffs showed intent to abandon by allowing Defendant to construct or enlarge a building to block the Deeded Easement and inasmuch as Union Square released its right to the Deeded Easement in the Agreement for Judgment in the Prior Action.

ORDERED and ADJUDGED that there was no relocation of either the Deeded Easement or the Agreed Easement to a third way (the “Adjacent Way”) approximately twenty feet wide running straight along the north side of the one-story concrete block building located on Defendant Property and shown on the 2004 Plan labeled as “EXISTING 1 STOREY BLOCK BUILDING”, such Adjacent Way being shown on Exhibit A to Xarras Affidavit 2 and labeled as “Relocated Easement Area”, such Exhibit A being a copy of the 2004 Plan with such Adjacent Way drawn in by hand.

ORDERED and ADJUDGED that Plaintiffs do not have an easement by prescription.

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is ALLOWED and Plaintiffs’ Cross-Motion for Summary Judgment is DENIED.

ORDERED and ADJUDGED that within thirty days from the date of this Decision the parties shall prepare a recordable plan indicating the location and dimensions of the Agreed Easement, including, but not limited to, its width and northerly boundary.

ORDERED and ADJUDGED that within thirty days from the date of this Decision Defendant shall remove any obstructions including, but not limited to, curbing or striping that impair Union Square’s access to the Union Square Property by way of the Agreed Easement or Defendant’s access to Defendant Property by way of the Agreed Easement.

By the court. (Sands, J.)


[Note 1] Plaintiffs’ motion was submitted together with an Affidavit of James L. Xarras (Xarras Affidavit 1) and letters from tenants Resource Alliance, Inc., LaserShip, and Leominster Floor Covering, Inc., expressing dissatisfaction with access to their businesses. On February 9, 2009, Defendant filed an Opposition to Plaintiffs’ Motion for Temporary Restraining Order, together with supporting memorandum and Affidavits of James S. Whitney (“Whitney Affidavit 2”), Barry Cosimi (the “Cosimi Affidavit”), and Michael Lamarche (Defendant’s Tenant).

[Note 2] On February 26, 2010, Plaintiffs’ Attorney John M. Dombrowski, Esq., filed a Notice of Withdrawal of Appearance, and Plaintiffs’ Attorney James M. Cahn, Esq., filed a Notice of Appearance.

[Note 3] The affidavit titled Second Affidavit of James S. Whitney is actually the third affidavit by James S. Whitney, including the affidavit filed in opposition to the withdrawn Motion for a Temporary Restraining Order.

[Note 4] The boundaries of Defendant Property are shown on “Building Plot Plan in Leominster, Massachusetts” dated February 25, 2004, and recorded with the Registry at Book 5002, Page 284 (the “2004 Plan”).