Plaintiffs filed their unverified complaint on January 19, 2010, pursuant to the provisions of G. L. c. 240 § 6, seeking to establish title and/or rights by adverse possession and/or prescription in property over an area of approximately 4,188 square feet (the Disputed Area) owned by Francis J. Frankelton and Beverly Frankelton (the Frankeltons) located at 199 Salem Street, Wilmington, MA (Defendant Property). The Frankeltons filed their Answer on March 8, 2010. A case management conference was held on April 1, 2010. [Note 1]
A pre-trial conference was held on April 25, 2011. Following a site view on September 15, 2011, a trial was held at the Middlesex Superior Court in Woburn, MA. Post-trial briefs were filed on October 28, 2011 and October 31, 2011 by the Frankeltons and Plaintiffs, respectively. The matter was then taken under advisement.
Testimony at trial was given for Plaintiff by Richard P. Kiesinger (Plaintiff), Mary F. Kiesinger (Plaintiff), Philip Kiesinger (son of Plaintiffs), Joan Harvey (daughter of Plaintiffs), and James Kiesinger (son of Plaintiffs). Testimony was given for the Frankeltons by Charles Hawley (prior owner of Defendant Property), Francis Frankelton (Defendant) and Beverly Frankelton (Defendant). Twenty-nine exhibits were submitted into evidence. A decision of todays date (the Decision) has been issued.
In accordance with the Decision, it is:
ORDERED and ADJUDGED that Plaintiffs use of the Disputed Area was sufficiently open and notorious for a period of at least twenty years.
ORDERED and ADJUDGED that Plaintiffs have shown actual use of the Disputed Area for at least twenty years.
ORDERED and ADJUDGED that Plaintiffs belief that they owned the Disputed Area does not prohibit their ability to demonstrate adverse possession of the Disputed Area. ORDERED and ADJUDGED that no permission was granted by the prior owners of Defendant Property allowing Plaintiffs to use the Disputed Area.
ORDERED and ADJUDGED that use of the Disputed Area was sufficiently exclusive to satisfy the requirements of adverse possession.
ORDERED and ADJUDGED that Plaintiffs established adverse possession over the entire Disputed Area.
ORDERED and ADJUDGED that Plaintiffs shall prepare a recordable plan of the area obtained by adverse possession (or may use the Plan of Land in Wilmington, MA dated December 8, 2009 and attached to the Decision as Exhibit A, to be modified in conformance with the Decision) and shall record such plan in the Middlesex County Registry of Deeds, Northern District, within sixty days of the date of the Decision.
By the court. (Sands, J.)
[Note 1] Defendant Mortgage Financial, Inc. was defaulted on April 22, 2010 for not appearing or filing an answer.