SBQ 11-08898 09-001

March 25, 2015




Plaintiffs Leslee Anne Greene and Arthur R. Greene, Jr. (the “Greenes”), Nancy P. Powers-Ferris (“Powers-Ferris”), and John J. Powers and Lauren K. Powers, Trustees of John J. Powers Qualified Personal Residence Trust, dated March 7, 2008 and Lauren K. Powers Qualified Personal Residence Trust, dated March 7, 2008 (the “Trusts”) filed these three cases involving land accretion to three registered parcels of land in Harwich (the “Related Cases”) on September 29, 2011. Robert J. Moriarty, Jr. was appointed as Title Examiner on November 29, 2011, and filed his title report on March 23, 2012. A citation by certified mail was issued on June 29, 2012, returnable August 13, 2012. The Commonwealth of Massachusetts (the “Commonwealth”) filed its Answer and Objections on July 30, 2012. An Objection of the Town of Harwich (the “Town”) was filed on August 14, 2012. On September 4, 2012, two of Plaintiffs filed an Assented-to Motion to Substitute Plaintiff because of sales of two registered parcels involved in this action, which motion was allowed the same day. [Note 1] Because several of the parties on the title report were deceased, this court authorized publication on November 2, 2012, which was returnable on December 3, 2012. On December 20, 2012, Jan H. Kalicki (“Kalicki”), a neighbor, filed a Motion to Intervene and File Objection Late in the Related Cases, together with supporting memorandum. [Note 2] [Note 3] [Note 4] At a status conference on January 4, 2013, the Town indicated that it was preparing an engineering study relative to the effect of a Town jetty on the accreted land, which study would be completed by mid-March, 2013. [Note 5]

A pre-trial conference was held on June 17, 2013. Because of a dispute over boundary lines resulting from a tax taking, the parties set up a meeting with the Land Court surveyors and title examiners on October 8, 2013. On January 30, 2014, the Commonwealth filed its Withdrawal of Answer and Objection in the Related Cases. On June 2, 2014, a Settlement Agreement between the Town and Plaintiffs was filed with this court, resolving all of their issues. Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Material Facts, and Affidavit of Brian M. Hurley, on June 13, 2014. On August 8, 2014, the Intervenors filed their Opposition, together with supporting memorandum, Statement of Additional Material Facts, and Appendix. Plaintiffs filed their Reply Brief on August 20, 2014. A hearing on all motions was held on September 25, 2014, and the matter was taken under advisement. On October 20, 2014, a Stipulation of Dismissal was filed between Plaintiffs in cases 1 and 2, and Intervenor Susan Cole. [Note 6]

The Court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that the accreted land is owned by the owners of the registered upland; and

ORDERED and ADJUDGED that the accreted land automatically became a part of the registered land as it was formed.

ORDERED and ADJUDGED that Plaintiffs’ Motion for Summary Judgment is ALLOWED.

By the court.


[Note 1] Peter R. Brown, Trustee of the 7 Davis Lane Trust u/d/t dated July 18, 2012 (“Brown”) was substituted for the Greenes. A Motion to Substitute Jeanne O’Keefe for Leslie Anne Greene and Arthur R. Greene, Jr. dated August 21, 2012 was also filed, however, this motion was in error.

[Note 2] The Motion to Intervene was based on a claim of prescriptive rights in the accreted land.

[Note 3] An Amended Motion to Intervene was filed on January 15, 2013, in which three new abutters (Susan Cole, John Michael Hershey and James Welch, Sally Miller and Mary Tschirch, Trustees of the Woodland Road Realty Trust) sought to be added as Intervenors. By Order dated March 29, 2013, this court ALLOWED the Amended Motion to Intervene. By Stipulation of Dismissal filed with this court on June 10, 2013, James Welch, Sally Miller and Mary Tschirch, Trustees of the Woodland Road Realty Trust, were dismissed as Intervenors. Susan Cole filed a stipulation for dismissal, dated October 20, 2014, in 11 SBQ-08898-09-001 and 11 SBQ-08890-09-002, but was not a party in 11 SBQ-16896-09-001.

[Note 4] The Intervenors include Jan H. Kalicki in all three cases and John Michael Hershey in 11 SBQ- 08898-09-001 and 11 SBQ-08890-09-002 only (the “Intervenors”).

[Note 5] The Engineering Study was filed with this court on March 14, 2013.

[Note 6] Susan Cole was not a party in case 3, 11 SBQ 16896 09-001.