Heidi Bassin (Plaintiff) filed her Verified Complaint on August 5, 2011, pursuant to G. L. c. 231A and c. 185, § 1, 1) seeking a declaratory judgment a) as to the boundary line between Plaintiff Property, as hereinafter defined, and the properties of Mary Fairley (Fairley) and Ida Fridmann (Fridmann)(together, Defendants), b) that Defendants do not own any portion of Plaintiff Property by adverse possession, and c) that Plaintiff has the right to remove trees, install a fence, and landscape Plaintiff Property, 2) alleging trespass by Defendants, and 3) seeking injunctive relief to enjoin and restrain Defendants from using Plaintiff Property or interfering with Plaintiffs efforts to remove trees located on Plaintiff Property, install a stockade fence, or landscape or level Plaintiff Property. On September 19, 2011, Fairley and Fridmann each filed an Answer and Counterclaim. Fridmann alleged a dispute over the boundary line, adverse possession, and damages resulting from the loss of lateral support of a retaining wall removed by Plaintiff. Fairley alleged adverse possession, a dispute over the boundary line and sought a prohibition against Plaintiff cutting trees on or near the boundary line. Plaintiff filed her Answers to both Counterclaims on October 3, 2011. A case management conference was held on October 6, 2011. A Joint Stipulation of Dismissal of all Claims and Counterclaims between Plaintiff and Fridmann was filed on July 16, 2013.
On August 2, 2013, Plaintiff and Fairley filed a pre-trial memorandum and Partial Stipulation of Dismissal of Fairleys counterclaims: Fairley dismissed her counterclaims of adverse possession and of a boundary dispute; [Note 1] Fairley dismissed the portion of her counterclaim relative to the removal of Trees A, C, D, E, F, and G, leaving only the disputes over the removal of Tree B and Plaintiffs entry onto the Fairley Property to remove trees. [Note 2] Plaintiff and Fairley attended a pre-trial conference on September 25, 2013. Plaintiff filed a Statement of Material Facts on October 16, 2013, together with Affidavits of Massachusetts Certified Arborist (Stevan Gold) and Heidi Bassin. On November 4, 2013, Fairley filed her Response to Statement of Material Facts. At a status conference held on November 12, 2013, this court determined that there were no material facts at issue, and that the case could proceed by summary judgment.
Plaintiff filed her Motion for Summary Judgment on February 13, 2014, together with supporting memorandum, Statement of Material Facts, and Affidavits of Stevan Gold (Gold Affidavit) and Heidi Bassin (Bassin Affidavit). On March 13, 2014, Fairley filed her Cross- Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Undisputed Material Facts, Affidavit of Massachusetts Certified Arborist, William Joseph (Joseph Affidavit), and Motion to Strike portions of the Affidavit of Heidi Bassin. Plaintiff filed her Opposition to Cross-Motion and Opposition to Motion to Strike on March 28, 2014. A hearing was held on all motions on April 7, 2014, and the matter was taken under advisement. A Decision of todays date (the Decision) has been rendered. In accordance with the Decision it is:
ORDERED and ADJUDGED that paragraphs 14, 16, 17, 19, 22, 25-28, 33-35, 37, and 39-41 of the Bassin Affidavit are stricken; and paragraphs 15 and18 of the Bassin Affidavit are not stricken.
ORDERED and ADJUDGED that Plaintiff and Fairley each hold title to a portion of Tree B, and thus neither can take any action against their portion of Tree B that would injure Tree B as a whole.
ORDERED and ADJUDGED that Tree B does not constitute a nuisance.
ORDERED and ADJUDGED that Plaintiff is not unfairly burdened with liability for Tree B.
ORDERED and ADJUDGED that Plaintiff, and the tree removal employees working on her behalf, may enter the Fairley Property to the extent necessary for the safe removal of Trees A, C, D, E, F, and G. Plaintiff will be responsible for any damage caused to the Fairley Property. [Note 3]
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is ALLOWED IN PART AND DENIED IN PART and Fairleys Cross-Motion for Summary Judgment is ALLOWED IN PART AND DENIED IN PART, as this court finds that Plaintiff will not be permitted to cut down Tree B, but Plaintiff may enter the Fairley Property as reasonably necessary for the purpose of safely removing Trees A, C, D, E, F, and G.
[Note 1] Although Plaintiff and Fairley only filed a dismissal of the claims of adverse possession and boundary dispute listed in the counterclaim, because they stated in a Joint Pre-Trial Memorandum, filed that same day, that the only remaining issues for both the Complaint and Counterclaim were the removal of Tree B and Plaintiffs entry onto the Fairley Property for the removal of trees, and then verbally confirmed that these were the only two issues remaining at a Pre-Trial Conference on September 25, 2013, this court will treat Plaintiffs claims of adverse possession and boundary dispute as also dismissed. Similarly, because Plaintiffs trespass claim appears to be inextricably intertwined with Plaintiffs dismissed claims of adverse possession and boundary dispute, and Plaintiff has not identified trespass as one of the remaining issues, Plaintiffs claim of trespass is deemed to have been waived.
[Note 2] Neither Plaintiffs Complaint nor Fairleys Counterclaim explicitly raises the dispute over entry onto Fairly Property to remove trees, but both parties identify and argue this issue in their Joint Pre-Trial Memorandum, Motion for Summary Judgment, and Cross Motion for Summary Judgment. Even though the issue was never explicitly raised, the court accepts that this issue is implicit to the case (particularly with respect to trees that straddle the boundary line between Plaintiff and Fairley) and will address it.
[Note 3] Plaintiffs Motion for Summary Judgment includes a request that this court allow Plaintiff to plant two new trees in the middle of the Fairley Property without Fairleys consent. This issue was not raised in Plaintiffs need not address this issue. However, even if this issue had been properly raised in Plaintiffs Complaint, Plaintiff could not plant trees on the Fairley Property without Fairleys consent.