MISC 10-440580

June 12, 2012

Sands, J.


Plaintiff filed its verified Complaint on September 30, 2010, seeking, pursuant to the provisions of G. L. c. 231A, a declaratory judgment relative to rights in a right of way called Ocean Court (now known as Logan Court) (the "ROW") and damages based on Defendant Jerry's Auto Service, Inc. ("Jerry's") and/or Defendant Helen E. Levesque, Trustee of Middle Street Nominee Trust's ("Levesque") (together, "Defendants") alleged installation of fences in the ROW. On October 4, 2010, Plaintiff filed a Motion for Temporary Injunction seeking to require Jerry's and/or Levesque to remove the fences from the ROW, to prohibit the installation of an additional fencing in the ROW, and to prohibit any parking in the ROW. Such motion included the affidavit of Robert Contreras. The Motion for Temporary Injunction was DENIED on October 13, 2010. Levesque filed its Answer on October 20, 2010. Jerry's filed its Answer on October 25, 2010. A case management conference was held on November 10, 2010.

Plaintiff filed its Motion for Summary Judgment on December 1, 2011, together with supporting memorandum and Statement of Material Facts. Defendants filed their Opposition to Motion for Summary Judgment on January 5, 2012, together with supporting memorandum, and Statement of Additional Material Facts. On January 17, 2012, Plaintiff filed its Response, together with Motion to Strike certain of Defendants' Additional Material Facts. Defendants filed their Opposition to Motion to Strike on March 29, 2012, together with Motion to Supplement Opposition and Affidavit of George Walker. A hearing was held on all motions on April 2, 2012, and the matter was taken under advisement. A decision of today's date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that a combination of nonuse of the ROW over a long period of time, acquiescence in the parking use of the ROW by others, and the erection of a chain-link fence which runs in a north-south direction from the boundary of Lots 2 and 3 to the boundary of Lots 5 and 6 ("Fence 1") (all as shown on Land Registration Plan 6255C dated August 15, 1939 and prepared by Samuel H. Corse, Surveyor) (the "Plan"), blocking access to the ROW, all indicate an intent by Plaintiff's predecessor in title to abandon use of the ROW as access to Lots 1, 2, and 4 as shown on the Plan.

ORDERED and ADJUDGED that the right to use the ROW could not pass to Plaintiff, who therefore holds no access rights to the ROW. [Note 1]

ORDERED and ADJUDGED that Plaintiff has not suffered any cognizable injury as a result of Fence 1.

ORDERED and ADJUDGED that Plaintiff's Motion for Summary Judgment is DENIED.

By the court. (Sands, J.)


[Note 1] At the summary judgment hearing, Plaintiff acknowledged that it had alternative access to Plaintiff Property.