These actions, consolidated for trial, concern the rights, obligations, and interests of the parties in and to a certain private way in the Town of Bedford, Middlesex County, Massachusetts, known as Bagley Avenue. Bagley Avenue is shown on a plan (Plan), dated November 12, 1985, entitled Plan of Land in Bedford, Mass. (Middlesex County), Scale 1" = 40', prepared by BSC - Bedford, Roger M. Corbin, Registered Land Surveyor, and recorded January 14, 1986 with the Middlesex County (Southern District) Registry of Deeds (Registry) as Plan No. 44 of 1986 at Book 16708, Page End.
The Land Court (Piper, J.) [Note 1] issued a judgment in these cases on January 5, 2009, which was appealed. Following the decision of the Appeals Court, McGovern v. McGovern, 77 Mass. App. Ct. 688 (2010), these cases came on for further proceedings in accordance with the rulings of the Appeals Court. Following an evidentiary hearing, the court (Piper, J.) has issued a written decision setting forth its findings and rulings. In accordance with the courts decision of even date, it is
ORDERED, ADJUDGED and DECLARED that the deed dated January 31, 1986 and recorded with the Registry in Book 16770, Page 167, contains an error in that, as a result of mutual mistake of the parties to the deed, the fee in and to the private way known as Bagley Avenue was not expressly reserved to the grantors. It is further
ORDERED, ADJUDGED and DECLARED that, to effectuate the true intent of the parties to the instrument, the 1986 deed be and hereby is reformed, nunc pro tunc to the date of its recording, February 11, 1986, by adding the following paragraph:
Grantors hereby expressly reserve and retain the fee in the way shown as PRIVATE (AKA BAGLEY AVENUE) WAY on said plan.
It is further
ORDERED, ADJUDGED and DECLARED that the incumbent trustees of the Francis J. McGovern and John Joseph McGovern Family Trust, under declaration of trust dated September 10, 2004, recorded with the Registry in Book 43965, Page 251, who own of record Lot 151C, the land shown on the Plan as other land of MURPHY 12.5 +/- AC., by deed recorded with the Registry in Book 43965, Page 251, hold title as well to the fee in the private way known as Bagley Avenue, and shown on said Plan as PRIVATE (AKA BAGLEY AVENUE) WAY. It is further
ORDERED, ADJUDGED and DECLARED that the owners of Lot 1 and Lot 151A each possess, as appurtenant to those lots, a perpetual non-exclusive easement and right of way to pass and repass on foot and by vehicle, in common with all others lawfully entitled thereto, along and over the bituminous concrete driveway now existing on Bagley Avenue for the purpose of ingress to, and egress from, the lot they own of record. It is further
ORDERED, ADJUDGED and DECLARED that the owners of Lot 151A possess, as appurtenant to that lot, a perpetual and exclusive easement right for vehicle parking in the so-called 20' x 50' parking area (Parking Area) shown on the easterly side of Bagley Avenue on said Plan. It is further
ORDERED, ADJUDGED and DECLARED that no party to this action, nor anyone holding or asserting rights by, through or under any of those parties, has any right (except only for the right of the owners of Lot 151A to park within the Parking Area as set forth in the preceding decretal paragraph of this Judgment) to park any vehicles within the limits of Bagley Avenue as shown on the Plan. It is further
ORDERED, ADJUDGED and DECLARED that any and all costs and expenses for the repair, maintenance, upkeep and improvement of Bagley Avenue are the responsibility of the owners of Lot 151C, except as to the Parking Area, which is the sole and exclusive responsibility of the owners of Lot 151A. Any failure to abide by the allocation of costs and expenses in this paragraph of this Judgment, and to make payment or contribution in accordance with its terms, shall not constitute a contempt of this court or violation of this Judgment, and the rights to payment and contribution hereby allocated shall be enforced or remedied in a separate proceeding in any court of competent jurisdiction. It is further
ORDERED AND ADJUDGED that no fee simple owner of Bagley Avenue, or anyone holding the benefit of any easement over Bagley Avenue including the parking area, and no agent, servant, or employee of any such owner or holder, shall knowingly and materially interfere with, impede, or obstruct the rights of any other fee simple owner or easement holder to use it in the manner established in this Judgment, nor of any other party entitled to the use of Bagley Avenue in the manner established in this Judgment. Any failure to abide by the provisions of this paragraph may be enforced or remedied in this court, or in any other court of competent jurisdiction. It is further
ORDERED AND ADJUDGED that no damages, fees, or costs are awarded to any party. It is further
ORDERED AND ADJUDGED that, except as expressly adjudicated in this Judgment, any and all other claims and counts of the parties in these cases are hereby DISMISSED with prejudice. It is further
ORDERED AND ADJUDGED that, upon payment of all fees therefor required by law, this Judgment, or a certified copy of it, may be recorded in the Registry, and may there be referenced marginally on the records of the deeds under which the current record owners of Lot 1, Lot 151A, Lot 151C, and Bagley Avenue hold their title.
[Note 1] Sitting, as to Middlesex Superior Court Civil Action MICV2006-00015, as a Justice of the Superior Court, by Order of Assignment of the Chief Justice for Administration and Management dated February 16, 2006. All claims in the Superior Court action, except for those seeking declaratory judgment, have been dismissed prior to trial.