DONALD J. PERRY vs. ADA A. NEMIRA and THOMAS NEMIRA.

The plaintiffs [Note 1] in this case commenced this action by filing an unverified complaint on December 21, 2011, in which they sought (a) a declaratory judgment that defendants’ Ada A. Nemira and Tomas Nemira (together, “Defendants”) rights to use ROW 1 [Note 2] have been extinguished; (b) a declaratory judgment as to the exact location of ROW 2 [Note 3], and that the installation of a fence thereupon constituted a trespass on the Perry Property; (c) an injunction preventing Defendants from blocking ROW 3 [Note 4] with fencing; (d) a declaratory judgment that Plaintiff had acquired title to the Perry Adverse Possession Area [Note 5] through Plaintiff’s adverse possession thereof; and, (e) the creation of a prescriptive easement over the Parking Areas [Note 6] for purposes of providing parking for the Perry Property [Note 7].

Concurrently with the filing of the complaint, Plaintiff filed a motion seeking injunctive relief and a motion for a lis pendens relative to the use of ROWs 1-3. On January 20, 2012, Defendants filed an answer and a counterclaim. In their answer, Defendants, inter alia, denied that Plaintiff had any rights as to ROWs 2 and 3, and disputed Plaintiff’s right to use any portion of the Nemira Property [Note 8] for parking. Defendants also sought a preliminary injunction relative to these uses. A case management conference was held on January 23, 2012. Plaintiff filed an answer to Defendants’ counterclaim on February 21, 2012.

Thereafter, on February 23, 2012, Defendants filed a motion seeking a injunctive relief against Plaintiff, which was supported by a legal memorandum and affidavits of both Defendants and David G. Ray. On February 29, 2012, Plaintiff filed a memorandum seeking injunctive relief against Defendants, and in opposition to Defendants’ injunctive motion; Plaintiff’s motion was supported by affidavits of William Tobin, Linda Malnati, Christopher S. Kelley, David Williams, Karen Shilling, Frank Muccini, Phyllis Muccini, Gregory Greene, Dawn Greene, and David Hammond. A hearing on both motions was held on March 1, 2012, at which the court informed the parties that additional information would be needed in order to issue a ruling on the motions. As such, Defendants filed a supplemental brief on March 9, 2012, and Plaintiff filed a supplemental brief on March 23, 2012. A second hearing on the parties’ motions was held on April 6, 2012. Shortlythereafter, former plaintiffs William Tobin and Linda Malnati were dismissed from this case.

By order entered on May 1, 2012, the court ruled on the parties’ motions, directing, inter alia, that (a) Plaintiff had the right to use the portion of ROW 1 that directly abutted his property as his front yard; (b) Defendants were required to remove the portion of a fence blocking Plaintiff from accessing the Perry Adverse Possession Area; (c) Plaintiff did not have the right to use ROWs 2 or 3; and (d) Plaintiff did not have the right to use any portion of the Nemira Property for parking. The court appended to this injunctive order a plan labeling all disputed areas in this matter. An amended injunctive order issued on May 25, 2012 to note that although Plaintiff did not have the right to use any portion of the Nemira Property for parking, because a portion of ROWs 2 and 3 were located on Plaintiff’s property, Plaintiff did have the right to use the portions of ROWs 2 and 3 that were located on his property. Such rights did not, however, include a right to park on ROWs 2 or 3.

On February 4, 2013, Gregory Lee, former counsel for Defendants, moved to withdraw as Defendants’ counsel. A hearing on Mr. Lee’s motion was heard on March 12, 2013, and the motion was allowed. Plaintiff filed a motion for summary judgment on July 12, 2013. However, because the court had already determined that numerous material facts were in dispute between the parties, the court held that summary judgment would be inappropriate, and thus declined to act on the motion for summary judgment, directing that Defendants did not need to file any response thereto.

A pre-trial conference was held on July 15, 2013. The parties attended a mediation session before Judge Kass on August 13, 2013, but were unable to resolve their dispute. As such, trial was scheduled for September 19-20, 2013. Trial was later postponed, based on Plaintiff’s representation that he was seeking counsel to represent him.

On September 18, 2013, Defendants filed a motionfor contempt against Plaintiff (alleging that Plaintiff failed to cooperate in discovery), a motion for sanctions against Plaintiff, and a motion for a lis pendens. On September 27, 2013, Plaintiff filed his opposition to Defendants’ contempt and sanctions motions. On October 18, 2013. Plaintiff filed his own motion to hold Defendants in contempt and to impose sanctions. On October 21, 2013, Plaintiff filed his opposition to Defendants’ motion for a lis pendens. The court declines to act on any of these motions.

A continued pre-trial conference was held on November 20, 2013. On December 20, 2013, Defendants filed a motion in limine to allow testimony relative to the issues of (a) signature forgery, (b) Plaintiff’s surveyor’s perjury; and (c) harassment that allegedly occurred on December 16, 2013. Plaintiff opposed this motion. A hearing on this motion was held on January 9, 2014, at which time the court declined to rule thereon because additional information was needed. The court declines to act on this motion in limine, which, in view of the court’s holding below, is now moot.

A site view of the properties at issue was held on December 9, 2013, and trial was held at the Land Court on February 19 and 25, 2014. Testimony at trial was given for Plaintiff by David Williams (a former resident of 9 Maple Lane), Frank Muccini (a former resident of 8 Maple Lane), and himself. Testimony for Defendants was given by Debra LeTourneau (the previous owner of the Perry Property) and John Troy (an attorney and expert in title examinations). Thirty-three exhibits were submitted into evidence at trial. The Parties filed post-trial memorandums on April 23, 2014, and, at that time, the matter was taken under advisement.

The court has issued a decision as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that the right of waycreated by the Park Deeds [Note 9], to the extent that it ever existed (having never been described in any detail in any granting instrument), was extinguished though merger in 1909;

ORDERED and ADJUDGED that the right of way described in the Wickham Lot 2 Deed [Note 10] and depicted in the 1911 Plan represents ROW 1, and that the North Croffut Way [Note 11] is a separate right of way;

ORDERED and ADJUDGED that ROW 1 is twelve feet wide, and runs in a straight line from Center Hill Avenue along the southern boundaries of Lots 3, 4, and 5 to the southeastern corner of Lot 2;

ORDERED and ADJUDGED that, east of Lot 3B, ROW 1 encompasses the paved roadway now known as Maple Lane;

ORDERED and ADJUDGED that, by deed, ROW 1 is located entirely within Lots 3, 4, and 5, but that the actual location of the pavement forming Maple Lane appears to have shifted slightly to the south over time;

ORDERED and ADJUDGED that Defendants have no deeded right to use ROW 1 for access for the benefit of either Lot 2 or Lot 3, but they continue to have the right to use ROW 1 for utilities;

ORDERED and ADJUDGED that, because Plaintiff owns Lot 3B, he may use that portion of Lot 3B burdened by ROW 1, but such use may not impede others’ right to use ROW 1;

ORDERED and ADJUDGED that Plaintiff todayretains the right to use the portion of ROW 1 east of Lot 3B, but such use is limited to utilities use only -- and only for the benefit of Lot 3B;

ORDERED and ADJUDGED that neither party has any deeded right to use ROW 1 east of Lot 3B (i.e., Maple Lane) for access purposes;

ORDERED and ADJUDGED that the entirety of ROW 2 is located on Lot 3B;

ORDERED and ADJUDGED that, pursuant to the Lot 3 Division Deed, Defendants have the right to use ROW 2 for access (but not utilities) for the benefit of Lot 3A only -- but only across Lot 3B, not onto Maple Lane;

ORDERED and ADJUDGED that Defendants’ right to use ROW 2 for access for the benefit of Lot 3A does not include the right to install fencing across ROW 2 on Lot 3B; thus, to the extent that Defendants’ fence extends onto ROW 2 on Lot 3B, it shall be removed;

ORDERED and ADJUDGED that Defendants’ right to use ROW 2 does not extend to Lot 2;

ORDERED and ADJUDGED that Plaintiff has a right to use the areas encompassing ROW 2 (since they are located entirely within the boundaries of Lot 3B, which Plaintiff owns), but that Plaintiff’s use of those areas is limited to such use that does not impede Defendant’s ability to use ROW 2;

ORDERED and ADJUDGED that ROW 3 encompasses the eastern five feet of Lot 2, and the western five feet of Lots 3B and 3A;

ORDERED and ADJUDGED that Defendants have the right to use the portions of ROW 3 on Lots 2 and 3A, but such use may not impede the rights of others to use ROW 3;

ORDERED and ADJUDGED Defendants have the right to use the portion of ROW 3 located on Lot 3B for utilities access only, and such right does not include the right to install a fence across ROW 3;

ORDERED and ADJUDGED that, to the extent that the fence installed by Defendants extends onto the portion of ROW 3 situated on Lot 3B, it must be removed;

ORDERED and ADJUDGED that Plaintiff has the right to use the portion of ROW 3 located on Lot 3B, but such use may not impede the rights of others to use ROW 3;

ORDERED and ADJUDGED that Plaintiff has no right to use any portion of ROW 3 located on Lot 2 or Lot 3A for the benefit of Lot 9B and that Plaintiff has no right to use ROW 3 for parking and/or turning around cars;

ORDERED and ADJUDGED that Plaintiff has not satisfied either the twenty year period or the actual use requirement to gain title by adverse possession to the Perry Adverse Possession Area;

ORDERED and ADJUDGED that Plaintiff has not established actual use for the requisite twenty year period to gain an easement by prescription over the Northern Parking Area or Western Parking Area for parking and turn-around purposes.

By the court.