Plaintiff filed her unverified complaint on September 4, 2008, alleging deeded rights and trespass in a right-of-way located off Tahattawan Road in Littleton, Middlesex County, Massachusetts (the Disputed Area). [Note 2] Plaintiff also sought, pursuant to the provisions of G. L. c. 240, §§6-10, a determination of rights in such way. [Note 3] On September 29, 2008, Defendants (and counter-claimants) Michael Lelievre and Colleen Lelievre (the Lelievres) filed an Answer and Counterclaim alleging deeded rights, adverse possession, prescriptive rights, and easement rights (including an easement by necessity) in the Disputed Area. Plaintiff filed her Answer to Counterclaim on November 12, 2008. A case management conference was held on November 24, 2008.
On September 25, 2009, Plaintiff filed her Motion for Partial Summary Judgment, together with supporting memorandum, Appendix, and Affidavit of Diane C. Tillotson. The Lelievres filed their Opposition on November 4, 2009, together with supporting memorandum, Appendix and Affidavit of Erica P. Bigelow. A hearing was held on the summary judgment motion on February 8, 2010, and a decision (the Summary Judgment Decision) was entered on October 5, 2010, in which I found that, as between Plaintiff and the Lelievres, Plaintiff owns the fee interest in the Disputed Area under the Derelict Fee Statute; that the owner of Lot A, as hereinafter defined, does not have a right to use the Disputed Area based on a theory of easement by estoppel; and that the owner of Lot A does not have a right to use the Disputed Area based on a theory of easement by necessity. As a result of the foregoing, I ALLOWED Plaintiffs Motion for Partial Summary Judgment.
On June 7, 2011, Plaintiff filed a Motion for Preliminary Injunction. A pre-trial conference on the issues of adverse possession and prescriptive rights was held on June 15, 2011, and at that time the parties entered into a Stipulation to resolve the Motion for Preliminary Injunction where they agreed a) not to enter Area 2, b) to let the stockade fence remain in place, and c) that Area 1 could be used by the Lelievres as residential access by three vehicles (a minivan, a dump truck and a pick-up truck). A site view and the first day of trial at the Concord District Court were held on October 4, 2011. The second day of trial was held on October 5, 2011, at the Land Court in Boston.
Testimony at trial was given by the Lelievres witnesses Jacqueline Guthrie (Guthrie) (formerly Flannery, and prior owner of Defendant Property) [Note 4], Frances Simeone (Simeone) (formerly Cauoette and prior owner of Lot A), Barbara Boothby (prior owner of Lot A), Kathy Kristofferson (prior owner of Lot A), and Michael Lelievre (Defendant). Testimony at trial was given by Plaintiffs witness David (husband of Plaintiff). There were forty exhibits submitted into evidence, including the affidavit of Judith Kotanchik (prior owner of the Subdivision Land) [Note 5]. Post-trial briefs were filed on December 14, 2011 and December 16, 2011 by the Lelievres and Plaintiff, respectively. The matter was then taken under advisement. A decision (Decision 2) of even date has been issued.
In accordance with the Summary Judgment Decision and Decision 2, it is:
ORDERED and ADJUDGED that, as between Plaintiff and the Lelievres, Plaintiff owns the fee interest in the Disputed Area under the Derelict Fee Statute.
ORDERED and ADJUDGED that the owner of Lot A does not have a right to use the Disputed Area based on a theory of easement by estoppel.
ORDERED and ADJUDGED that the owner of Lot A does not have a right to use the Disputed Area based on a theory of easement by necessity.
ORDERED and ADJUDGED that Plaintiff(s Motion for Partial Summary Judgment is ALLOWED.
ORDERED and ADJUDGED that the Lelievres and their predecessors in interest did not use Area 1 exclusively for a period of twenty years.
ORDERED and ADJUDGED that the easement over Area 1 is ten feet in width and is to be for residential purposes only.
ORDERED and ADJUDGED that use of the utility pole located in Area 2 (the Pole), the related utility lines, the water pipes, and the mailbox (the Mailbox) were sufficiently actual, open, and notorious for the purposes of an easement by prescription over those elements of Area 2. [Note 6]
ORDERED and ADJUDGED that the Lelievres have failed to demonstrate a twenty year period during which owners of the Subdivision Land or Lot A utilized the remainder of Area 2 in an open and notorious manner.
ORDERED and ADJUDGED that the Lelievres use of Area 2 was not exclusive for the requisite twenty year period.
ORDERED and ADJUDGED that the Lelievres have established a prescriptive easement over Area 2, solely limited to the use and maintenance of the Pole, the related utility lines, the water pipes, and the Mailbox.
ORDERED and ADJUDGED that because the Lelievres are unable to establish a valid claim of adverse possession over Area 1 or Area 2, the doctrine of color of title is inapplicable.
ORDERED and ADJUDGED that the Lelievres shall prepare a recordable plan of Area 1 and Area 2 consistent with this decision, to be recorded within sixty days of the date of this decision, to indicate their prescriptive rights established by this decision.
By the court. (Sands, J.)
[Note 1] Plaintiff filed a Request to Enter Default against Defendant Sherrill Gould on March 4, 2010, which was allowed on April 20, 2010.
[Note 2] The Disputed Area is shown as the Former Proposed Street on a Site Plan created by Snelling & Hammel Associates, Inc., on January 23, 2008 (the 2008 Plan), and attached to this Decision as Exhibit A. For the purposes of this Decision, the Disputed Area shall be divided into Area 1 (the gravel driveway) and Area 2 (the area between the driveway and Plaintiff Property as indicated on the 2008 Plan), as well as the land south of the driveway extending to the property designated as belonging to Richard Shields (the Shields Property).
[Note 3] Plaintiff filed her Motion to Amend Complaint on September 15, 2009, adding a count for adverse possession. At a status conference on December 3, 2009, Plaintiff indicated that she had filed a similar claim in Middlesex Superior Court, along with a tree cutting claim. As a result, the Motion to Amend Complaint was not acted on.
[Note 4] Defendant Property is referred to hereinafter as Lot A, as it was initially conveyed in 1979.
[Note 5] The Subdivision Land comprises that Property initially transferred by the Browns to the Kotanchiks in 1973, including Lot A.
[Note 6] The Mailbox refers to the original mailbox installed by the Caouettes in Area 2, as well as any replacement mailboxes that may have been installed in the same location as the original.