Plaintiffs FJN Partnership ("FJN"), 343 State Road Realty Trust (the "Trust"), Craig Hockmeyer ("Hockmeyer"), and Elio Silva ("Silva") (together, "Plaintiffs") filed their Verified Complaint on February 14, 2011, pursuant to G. L. c. 240, § 6 and G. L. c. 231A, § 1, alleging prescriptive rights in, and seeking a declaratory judgment and to quiet title to the use of, a right of way (the "ROW") on property owned by Defendant Island Properties Improvements, LLC ("Island Properties"). [Note 1] [Note 2] On February 18, 2011, Plaintiffs filed their Motion for Lis Pendens and Motion for Preliminary Injunction relative to removal of a fence (the "Fence") installed by Defendants and blocking Plaintiffs' access to the ROW. On March 14, 2011, Defendants filed their Answer and Counterclaim, alleging trespass by Plaintiffs on the ROW and damages relating to the trespass. [Note 3] Defendants filed a Cross-Motion for Preliminary Injunction on March 15, 2011. A hearing on the preliminary injunction motions was held on March 16, 2011. On March 21, 2011, Plaintiffs filed their Answer to Counterclaim. This court issued its Order Allowing Plaintiffs' Motions for Preliminary Injunction and Lis Pendens on March 28, 2011, requiring that Defendants remove the Fence. By Order dated April 14, 2011, this court required that Plaintiffs post a bond in the amount of $12,000 relative to the Preliminary Injunction Order. A case management conference was held on April 27, 2011. On May 3, 2011, this court ordered that Plaintiffs' bond be reduced to $10,000.
On September 20, 2012, Plaintiffs filed their Motion for Summary Judgment Establishing a Prescriptive Easement, a Motion to Dismiss Defendants' Counterclaim for Damages, together with supporting memorandum, Statement of Material Facts, and Appendix, including Affidavits of John Rancourt, Louis J. Giordano ("Giordano"), Edward D. Charter ("Charter"), Elio Silva, Tara Bolash-Larsen (two), Bradford Moore (two), Craig Hockmeyer, and depositions of Giordano, Charter and Hockmeyer. [Note 4] Defendants filed their Opposition and Cross-Motion for Summary Judgment on October 23, 2012, together with supporting memorandum, Additional Material Facts, and Appendix. On November 20, 2012, Plaintiffs filed their Motion to Strike two exhibits filed by Defendants, and on November 23, 2012, Plaintiffs filed their Reply Memorandum. Defendants filed their Motion to Strike Plaintiffs' Reply on December 7, 2012. A hearing was held on all motions on December 10, 2012, and the matter was taken under advisement. [Note 5] A Decision of today's date (the "Decision") has been rendered. In accordance with the Decision it is:
ORDERED and ADJUDGED that the Motion to Strike is ALLOWED.
ORDERED and ADJUDGED that Plaintiffs and their predecessors have used the ROW for more than twenty years for the benefit of 342 State Road, Tisbury, MA and 15 Mechanics Way, Tisbury, MA (together, "Plaintiff Property").
ORDERED and ADJUDGED that Plaintiffs and their predecessors made notorious use of the ROW for the benefit of Plaintiff Property.
ORDERED and ADJUDGED that Plaintiffs and their predecessors have established adverse use of the ROW.
ORDERED and ADJUDGED that Plaintiffs and their predecessors meet all the requirements for establishing prescriptive rights to the use of the ROW.
ORDERED and ADJUDGED that Plaintiffs' Motion for Summary Judgment is ALLOWED, and Defendants' Cross-Motion for Summary Judgment is DENIED.
By the court. (Sands, J.)
[Note 1] Defendant John L. Rancourt ("Rancourt") (together with Island Properties, "Defendants") is the manager of Island Properties.
[Note 2] Plaintiffs also sought damages resulting from the erection of the Fence (as hereinafter defined) by Defendants.
[Note 3] The Counterclaim included a claim for damages resulting from water runoff from Plaintiff Property (as hereinafter defined) onto Defendant Property (as hereinafter defined).
[Note 4] In their Motion, Plaintiffs withdrew their claim for damages caused by the erection of the Fence.
[Note 5] At oral argument, Defendants withdrew their counterclaim for damages resulting from water runoff onto Defendant Property.