HAYES vs. DORR, MISC 08-377864

Plaintiffs Robert M. Hayes and Marie A. Hayes (the "Hayeses") and Thomas J. Pratti ("Pratti") and Lisa M. Pratti (the "Prattis") filed their Verified Complaint in 08 MISC 377864 on April 15, 2008, seeking (1) pursuant to G. L. c. 240, §§ 1-5, to require Defendants Christian Dorr ("Dorr") [Note 1] and Linda A. Inniss, Trustee of River Street Trust u/d/t dated March 21, 1995, and recorded with the Northern Berkshire Registry of Deeds at Book 895, Page 1200 (the "River Street Trust") (together, "Inniss"), and their heirs and assigns, to try title, (2) pursuant to G. L. c. 240, §§ 6-10, to remove cloud on title, and (3) pursuant to G. L. c. 231A, seeking a declaratory judgment, all related to Inniss' claims in a right-of-way (the "ROW") across Plaintiffs' properties located in Bridgewater and West Bridgewater, Plymouth County, Massachusetts. A case management conference was held on June 30, 2008. [Note 2] Dorr filed his Answer on July 17, 2008. On the same day the River Street Trust filed its motion to add as necessary parties Thomas L. Ferioli, William P. Ferioli, and Dennis R. Ferioli (the "Feriolis") (together with the Hayeses and the Prattis, "Plaintiffs"), which was allowed at a status conference on July 31, 2008. The River Street Trust filed its Answer and Counterclaim on July 22, 2008, alleging an easement by necessity, a prescriptive easement, adverse possession, and an easement by deed in the ROW. [Note 3] On August 15, 2008, the Hayeses and the Prattis filed their Answers to the Counterclaim.

Dorr filed his Verified Complaint in 08 MISC 381762 on June 30, 2008, naming Plaintiffs, National Grid, Inc. ("National Grid") and Verizon New England, Inc. ("Verizon") as Defendants and (a) seeking a declaratory judgment pursuant to G. L. c. 231A relative to (1) a deeded easement in the ROW, (2) an easement by necessity in the ROW, (3) a prescriptive easement in the ROW, (4) adverse possession of the ROW, and (b) alleging interference by Plaintiffs with his rights in the ROW. [Note 4] Verizon filed an Appearance on July 31, 2008. A case management conference was held on August 15, 2008, at which time 08 MISC 377864 and 08 MISC 381762 were consolidated and a Stipulation of the Parties was filed giving Dorr temporary permission to pass over the ROW by foot and his motor vehicles to the Counterpane Trust Property (as hereinafter defined). Plaintiffs filed their Answers on the same date. National Grid filed its Answer and Jury Demand on September 17, 2008, and Verizon filed its Answer on November 21, 2008. On March 25, 2009, Linda A. Inniss, Trustee of the Counterpane Nominee Trust u/d/t dated May 30, 2002, and recorded with the Worcester Registry of Deeds at Book 26733, Page 328 (the "Counterpane Trust") (together with the River Street Trust, "Defendants") filed a motion to replace Dorr as plaintiff in both 08 MISC 377864 and 08 MISC 381762, which was allowed on March 31, 2009. [Note 5]

The River Street Trust filed its unverified Complaint in Plymouth Superior Court (Docket #09-785B) on June 26, 2009, (a) seeking a declaratory judgment against the Prattis and the Feriolis, including Kathleen Palmieri ("Palmieri") (Pratti's sister), pursuant to G. L. c. 231A relative to the location of the boundary line between property owned by the River Street Trust and property owned by the Prattis and the Feriolis, and (b) alleging trespass against, and the cutting of trees by, the Prattis and the Feriolis on property owned by the River Street Trust. [Note 6] This case was transferred to the Land Court as 09 MISC 416082 on November 9, 2009. A case management conference was held on January 19, 2010.

A pre-trial conference was held on all three cases on February 8, 2010. A site view and the first day of trial at the Brockton District Court were held on May 11, 2010. The second, third and fourth days of trial were held at the Land Court in Boston on May 12 and 13, and June 2, 2010. Post-trial briefs were filed on September 30 and October 5, 2010, and on the latter date 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 the boundary of the River Street Trust Property [Note 7] with the Hayes Property, [Note 8] the Pratti Property, [Note 9] and the Ferioli Property [Note 10] is as shown on a plan titled "Division of Property Approval Not Required Form A Plan of Land in West Bridgewater, MA (Plymouth County) Prepared for Christian Dorr" dated March 27, 2008 (the "Delano Plan"). Consequently, the fee to the ROW is owned by the Feriolis, the Prattis, and the Hayeses where the ROW crosses their respective properties. [Note 11]

ORDERED and ADJUDGED that the River Street Trust Property has an easement pursuant to two deeds, one deed from Rhoda W. Robinson ("Robinson") to the Bridgewater Iron Manufacturing Company (the "Company") dated July 1, 1859, and recorded with the Registry at Book 294, Page 221, and one deed from the Company to Robinson dated August 5, 1859, and recorded in the Registry at Book 294, Page 222, (the "1859 Deeds"), to travel over the ROW and that such easement is not limited to team travel and is not limited to farming purposes.

ORDERED and ADJUDGED that there is an easement pursuant to the 1859 Deeds benefitting the River Street Trust Property that allows access to the River Street Trust Property from the paved portion of Bolton Place to the River Street Trust Property, by pedestrian or vehicular travel over the ROW.

ORDERED and ADJUDGED that the River Street Trust has an implied right pursuant to G.L. c. 187, § 5 to place, install or construct utilities in, on, along, under and upon the ROW for the benefit of the River Street Trust Property.

ORDERED and ADJUDGED that the unpaved portion of the ROW has a width of eight feet.

ORDERED and ADJUDGED that the Counterpane Trust Property has no deeded rights in the ROW.

ORDERED and ADJUDGED that there was open and notorious use of the ROW benefitting the Counterpane Trust Property, continuously from at least March 31, 1927 to at least January 15, 1964 and continuously from the occupation of the Counterpane Trust Property by William H. Bossardt, Barbara Bossardt, and their children (including R. Bossardt and G. Bossardt) (the "Bossardts") (approximately 1970) to November 4, 1979.

ORDERED and ADJUDGED that there was open and notorious use of the ROW benefitting the Counterpane Trust Property, from time to time between January 15, 1964 and the Bossardts(occupation of the Counterpane Trust Property (approximately 1970) and from time to time since November 4, 1979.

ORDERED and ADJUDGED that the use of the ROW that benefitted the Counterpane Trust Property was adverse to the owners of the ROW, inasmuch as the owners of the ROW did not grant anyone from the Counterpane Trust Property permission to use the ROW between March 31, 1927 and November 4, 1979.

ORDERED and ADJUDGED that the ROW provided a primary pedestrian access to the Counterpane Trust Property during the period March 31, 1927 to January 15, 1964, which exceeds the statutory requirement of twenty years.

ORDERED and ADJUDGED that there is an easement by prescription benefitting the Counterpane Trust Property to travel by foot over the ROW, inasmuch as there was pedestrian use of the ROW benefitting the Counterpane Trust Property that was continuous and uninterrupted, open and notorious, and adverse, from at least 1927 until at least 1964, a period of more than twenty years.

ORDERED and ADJUDGED that the prescriptive easement for pedestrian travel benefitting the Counterpane Trust Property has a width of eight feet as it runs northerly from the end of the paved portion of Bolton Place, and that such easement is in the location of the ROW, as shown on the Delano Plan.

ORDERED and ADJUDGED that the Counterpane Trust does not have a right to install utilities in the location of the ROW.

ORDERED and ADJUDGED that there was vehicular travel over the ROW continuously from at least 1945 until no later than 1962, a period of less than twenty years.

ORDERED and ADJUDGED that any continuity of adverse vehicular use of the ROW benefitting the Counterpane Trust Property was broken in 1962 at the latest.

ORDERED and ADJUDGED that there is no easement by prescription benefitting the Counterpane Trust Property to travel by vehicle over the ROW, inasmuch as the record does not show twenty years of continuous, uninterrupted vehicular travel over the ROW.

ORDERED and ADJUDGED that the Counterpane Trust Property has not acquired title to the ROW by adverse possession, inasmuch as the Counterpane Trust Property has not made exclusive use of the ROW.

By the court. (Sands, J.)

[Note 2] At the case management conference, Dorr filed a motion to admit his attorney, Patrick S. Bedard, Esq. pro hoc vice, which was allowed that day.

[Note 3] Plaintiffs argue that Defendants (as hereinafter defined) did not argue easement by necessity at the trial and the count should be waived. Defendants in their post-trial brief agreed to waive this issue.

[Note 4] National Grid and Verizon, which both had utilities in or near the ROW, did not participate in the trial.

[Note 5] On March 31, 2009, the Counterpane Trust filed an assented to Motion for Decree against Dorr for failure to prosecute.

[Note 6] Plaintiffs argue that Defendants did not argue trespass or the cutting of trees at the trial and that the court should waive this count. Defendants in their post-trial brief agreed to waive this issue.

[Note 7] By deed dated November 4, 1921, and recorded with the Registry at Book 1405, Page 188, George M. Andrews, Annie M. Andrews, Rodney E. Ross, Lina C. Ross, Arthur G. Robbins, Sarah A. Robbins, and Winifred B. Andrews conveyed unimproved property located on Bolton Place (the "River Street Trust Property") to Sarah Mundle and Minerva Mundle.

[Note 8] By deed dated July 31, 1889, and recorded with the Registry at Book 582, Page 374, property (the "Hayes Property") was conveyed to James Maguire by John E. Sanford, Luke P. Willard and Arthur E. Denison, Trustees of a trust dated September 23, 1886, between the Bridgewater Iron Company, Sanford, Willard and Denison, and the creditors of the Bridgewater Iron Company.

[Note 9] By deed dated June 8, 1888, and recorded with the Plymouth County Registry of Deeds (the "Registry") at Book 561, Page 110, Kingman conveyed the Pratti Property and the Ferioli Property (together, the "Pratti-Ferioli Property") to John Ahearn. The southerly portion of the Pratti-Ferioli Property (the "Pratti Property") is located entirely in Bridgewater, the town line being its boundary with the Ferioli Property, which abuts it to the north. The Pratti Property is shown on Map 2 as Lot 27, labeled on the Delano Plan as "THOMAS J. & LISA M. PRATTI".

[Note 10] The Ferioli Property is the northerly portion of the Pratti-Ferioli Property, and is located in West Bridgewater, the town line being its boundary with the Pratti Property, which abuts it to the south. The Ferioli Property is shown as Lot 4 on West Bridgewater Assessors Map 62, and labeled on the Delano Plan as "THOMAS L., DENNIS R. & WILLIAM P. FERIOLI".

[Note 11] The Counterpane Trust owns the portion of the ROW which crosses its property, but the right to use such portion of the ROW is not in dispute.

MISC 08-377864

April 6, 2012

Sands, J.

JUDGMENT