MISC 10-431636

March 7, 2012

Sands, J.


Plaintiffs filed their unverified complaint on June 10, 2010, pursuant to the provisions of G.L. c. 240, §§6-10, seeking to quiet title to a portion of their property (the “Disputed Area”) claimed by Defendants. On August 5, 2010, Defendants filed their Answer and Counterclaim, alleging adverse possession as to the Disputed Area. Plaintiffs filed their Reply to the Counterclaim on August 9, 2010. A case management conference was held on August 23, 2010. A pre-trial conference was held on April 4, 2011 at which Defendants were granted permission to argue the doctrine of acquiescence only if their argument required no new discovery or testimony. A site view and the first day of trial at the Orleans District Court were held on September 12, 2011. The second day of trial was held at the Land Court in Boston on September 13, 2011. Post-trial briefs were filed on November 14, 2011. Defendants' post-trial brief alleged title to the Disputed Area by the doctrine of acquiescence. At that time, the matter went under advisement.

Testimony at trial was given by Plaintiffs’ witnesses John McElwee (“McElwee”) (professional land surveyor), Martin Donoghue (professional civil engineer), John Demarest (“Demarest”) (professional land surveyor), Joady Brown (Defendant), and Alexander Brown (Defendant). Testimony was given at trial by Defendants’ witnesses Sherman Merrill (prior owner of Defendant Property), Gary Burgess (grandson of prior owner of Defendant Property), and Donald Poole (“Poole”) (land surveyor). There were sixty-one exhibits submitted into evidence. A decision of today's date (the “Decision”) has been issued.

In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that the correct boundary line between 44 Franklin Street, Provincetown, Massachusetts 02657 (“Plaintiff Property”) and 46 Franklin Street, Provincetown, Massachusetts 02657 (“Defendant Property”) is as designated in a Survey Working Plan created by Felco Inc. in 2002, a Site & Sewage Plan created by Felco, Inc. in 2005, an Existing Conditions Plan created in 2006 by Coastal, and a plan created by Coastal in 2009 entitled the “Site Plan Showing Proposed Building Addition,” and as a result, Plaintiffs hold fee title to the Disputed Area.

ORDERED and ADJUDGED that Defendants' claim to title of the Disputed Area by adverse possession must fail because Defendants fail to prove they, or their predecessors-in-title, used the Disputed Area in a way that was adverse to Plaintiffs or Plaintiffs' predecessors-in-title for a period of twenty years.

ORDERED and ADJUDGED that Defendants' claim for possession of the Disputed Area by doctrine of acquiescence must fail because Defendants' attempted use of the doctrine is impermissible in this case.

ORDERED and ADJUDGED that a final survey plan is to be created and recorded by both parties, marking the boundary line between Plaintiff Property and Defendant Property in congruence with the Decision.

ORDERED and ADJUDGED the wooden stockade fence constructed by Defendants in March or April 1997, which encroaches upon Plaintiff Property, must be removed at the expense of Defendants within sixty days of the Decision.

By the court. (Sands, J.)