JOHN W. WALLER vs. ROBERT WEST and DOROTHY WEST.

This is a petition, filed May 11, 1983 under G.L. c. 185, for the Registration and Confirmation of Plaintiff's title to a certain parcel of land in Edgartown ("Locus") as shown on Registration Plan No. 41327A on file with the Court. The Defendants allege in their answer that they are the owners of Locus. The Plaintiff has moved for summary judgment citing this Court's decision in Confirmation Case No. 38774 and Miscellaneous Case No. 80902 (affirmed 8 Mass. App. Ct. 348 (1979)).

After hearing arguments of counsel and in consideration of the pleadings, affidavits, plans, examiner's report and memoranda filed in this matter, as well as certain documents in Confirmation Case No. 38774 and Miscellaneous Case No. 80902, I find that while the Defendants rely on the doctrine of adverse possession in this case as they did in the prior cases, and while the activities forming the basis for such claim appear to be similar if not identical, the land here sought to be registered is a different parcel from that involved in the former proceedings (i.e., Lot 23 of the so-called "Great Plains Third Division" rather than Lots 24, 25 and 26 as in the prior matters). In addition thereto, an additional seven to eight years has elapsed between the institution of the present case and the previous ones.

I therefore find that there are material questions of fact in dispute and accordingly, the Plaintiff's motion for summary judgment is denied.

Recognizing, however, at least a similarity between the Defendants' defense in this matter and their position in the former proceedings, the Court will schedule this matter for an early pre­trial conference.

By the Court