This action began on October 11, 2006, as a dispute over rights to use a strip of land depicted as a twenty-foot right of way and utility easement on a plan of land ("Plan") titled "Bald Hill Farm, a Subdivision in Sharon, MA" dated June 1, 1990, prepared by R.F. Merrikin Associates, and recorded with the Norfolk County Registry of Deeds ("Registry") at Plan Book 407, Plan Number 456 of the year 1992. The plaintiffs Jason D. Frank and Valerie E. Frank own of record Lot 5 on the Plan. Plaintiffs Gintaras R. Subatis and Lina M. Subatis own of record Lot 4 on the Plan (the owners of Lot 4 and Lot 5, collectively, are "Plaintiffs"). Defendants Matthew Grosshandler and Brenda Laurenza ("Defendants") own Lot 8 on the Plan.
This case came on to be tried to the court (Piper, J.). At the conclusion of trial, and after submission of legal memoranda and argument by counsel, the court, based on all the evidence, has made from the bench findings of fact and rulings of law which, as laid upon the record, transcribed, and filed, constitute the court's decision ("Decision") in this cause. Following the court's Decision, the parties by counsel were given the opportunity to propose forms of judgment for the court to enter in this case. In accordance with the court's Decision, and taking into account the proposed forms of judgment submitted, it is
ORDERED, ADJUDGED and DECLARED that the Plaintiffs have a perpetual easement, appurtenant to their land, to use what is shown on the Plan as a "20' Right of Way & Utility Easement" running from Norwood Street in the west, to the fifty foot right of way and utility easement known as Bald Hill Farm Road in the east ("Private Way"), for general vehicular and pedestrian passage back and forth from Norwood Street to Bald Hill Farm Road. It is further
ORDERED, ADJUDGED, and DECLARED that, consistent with the Decision, Defendants Matthew Grosshandler and Brenda Laurenza, their agents, representatives, employees, contractors, tenants, occupants of their residential premises on Lot 8, and others acting in concert with them or otherwise having actual knowledge of this Judgment, are hereby permanently ENJOINED and RESTRAINED from preventing, interfering with, impeding, or obstructing in any material way the rights of Jason D. Frank and Valerie E. Frank as they are owners of Lot 5, and Gintaras R. Subatis and Lina M. Subatis as they are owners of Lot 4, their heirs, assigns, successors, and licensees, and their tenants, employees, contractors, and invitees, including without limitation service and delivery providers, to use the Disputed Way to access Bald Hill Farm Road in a manner consistent with this Judgment and the Decision. It is further
ORDERED, ADJUDGED, and DECLARED that the fee owners of the Private Way, and the Plaintiffs as easement holders, have the right to make and undertake reasonable repairs, maintenance, or improvements of the Private Way consistent with the rights of use established by the Decision and in this Judgment, provided however that any such repair, maintenance, or improvement shall be consistent in character, construction, materials, and scope with the nearby Bald Hill Farm Road to which the Private Way connects, and further provided that no improvement shall be undertaken without delivery to the then owners of Lots 4, 5, and 8, of detailed design plans and schematics of the proposed improvement not less than thirty days prior to the commencement of work. It is further
ORDERED, ADJUDGED, and DECLARED that Defendants, consistent with the provisions of this Judgment, to reduce to safe speed passage by vehicles over the Private Way, may construct or install and thereafter maintain, in or upon the Private Way, one or not more than two speed bumps, or one speed table, which may be either permanent or seasonal and removable, provided that: they a) are constructed, maintained, designed and located in such a location and manner as to be reasonably safe and consistent with good, workmanlike practice, b) do not at any time make the use of the Private Way by the Plaintiffs and others legally entitled to use the Private Way so burdensome as to be effectively a prohibition or material impairment of the right of vehicular passage over the Private Way, and c) are designed, constructed, and maintained to accommodate snow and ice removal in the winter months. The Defendants shall bear the cost of designing, purchasing, constructing, installing and maintaining the speed bump(s) or table, and the location and design shall be determined by the Defendants in accordance with this Judgment, provided the first installation takes place, if at all, not later than October 1, 2010, or six months after this Judgment becomes final, whichever is later, and that, at least thirty days prior to the scheduled installation, Defendants submit to the Plaintiffs detailed design plans and schematics of the proposed speed bump(s), or table. It is further
ORDERED, ADJUDGED, and DECLARED that absent agreement of the parties, the installation by the Defendants of a fence or gate across, or in any manner limiting passage over, the Private Way is inconsistent with the Plaintiffs' right to use the Private Way as defined in the Decision and this Judgment. It is further
ORDERED and ADJUDGED that Defendants promptly shall remove any signs that previously have been erected on or about the Private Way that read "Private Drive Do Not Enter Thru Traffic Not Permitted"(or words of similar import) and shall, at their sole expense and not later than April 15, 2010, erect and maintain a sign at the end of the Private Way, visible from Norwood Street that reads "Private Way For Access to Bald Hill Farm Road Authorized Access Only," provided however that such sign is constructed in a manner and of such materials and design so as to be consistent with signage in the vicinity. In addition to the sign described in the preceding sentence, the Defendants may erect and maintain two signs one visible from each direction along the Private Way that encourage traffic to proceed slowly or warn of the presence of children. It is further
ORDERED, ADJUDGED, and DECLARED that Defendants' fee title to Lot 8 extends to include the adjoining fee and soil of so much of Bald Hill Farm Road, currently unbuilt on the ground, to the midline, as depicted on the Plan, where it is shown as lying to the south of Lot 8. It is further
ORDERED and ADJUDGED that the court has not adjudicated the right, title, or interest, in and to the Property at issue in this case, of or as to any person or entity who is not an individually-named party to this proceeding. It is further
ORDERED and ADJUDGED that the Plaintiffs' motion for attorneys fees pursuant to G. L. c. 231, § 6F is DENIED, the court, upon consideration of the case as a whole, and of the legal and factual issues presented to the court, being unable to make the required finding that "all or substantially all of the claims . . . were wholly insubstantial, frivolous and not advanced in good faith." See Massachusetts Adventura Travel, Inc. v. Mason, 27 Mass. App. Ct. 293 , 296 (1989). It is further
ORDERED and ADJUDGED that, based on and subject to the Stipulation to Damages Amount, filed with the court on November 2, 2009, and executed by counsel for all parties, Plaintiffs' damages amount to $25,000.00, excluding post-judgment interest, and Plaintiffs shall recover that amount of the Defendants Grosshandler. It is further
ORDERED and ADJUDGED that except only for the award made by the preceding decretal paragraph, no other damages, fees, costs, or amounts are awarded to any party. It is further
ORDERED that, upon payment of all fees established by law, this Judgment, or a certified copy of it, once final, may be recorded in the Norfolk County Registry of Deeds, and may there be marginally referenced on the record of the Plan and of the instruments establishing the titles of the parties to Lot 4, Lot 5, and Lot 8.
By the Court. (Piper, J).
Deborah J. Patterson
Dated: February 4, 2010.