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 Plaintiffs 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 Plaintiffs 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; Plaintiffs 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 Plaintiffs 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. Lees 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 Plaintiffs 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) Plaintiffs surveyors 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 courts 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 todays 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 Plaintiffs use of those areas is limited to such use that does not impede Defendants 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.
[Note 1] This case originally included two additional plaintiffs -- Linda Malnati and William Tobin. Pursuant to a stipulation of dismissal filed on April 13, 2012, these parties were dismissed from this case, leaving plaintiff Donald J. Perry (Plaintiff) as the sole plaintiff.
[Note 2] ROW 1 is defined as a twelve foot wide right of way depicted in a plan entitled Plan of Land on Center Hill, Hull, Mass. dated August, 1911, and prepared by Walter B. Foster C.E. ( the 1911 Plan) as running west to east from Center Hill Avenue through two unrelated properties depicted on said plan (Lot 4 and Lot 5) and the southern end of lot 3 on said plan (Lot 3") to the southeast corner of lot 2 on said plan (Lot 2").
[Note 3] ROW 2 is defined as the right of way created by deed dated August 20, 1941 and recorded in the Plymouth County Registry of Deeds (the Registry) at Book 1811, Page 545 (the Lot 3 Division Deed) in connection with the subdivision of Lot 3. It consists of two segments, both of which are situated entirely within the southern subdivided area of Lot 3 created by the Lot 3 Division Deed (Lot 3B). The first segment of ROW 2 is a twelve foot wide right of way running northwest to southeast along the boundary between Lot 3B and the northern subdivided area of Lot 3 (Lot 3A). ROW 2 is depicted on a November 24, 2010 plan entitled Plan of Land, which was prepared for Defendants by Nantasket Survey Engineering, LLC (the 2010 Plan). The second segment of ROW 2 is a twelve foot wide right of way running north to south along the eastern boundary of Lot 3B
[Note 4] ROW 3 is defined as a ten foot wide right of way straddling the boundary line between Lot 2 to the west and Lots 3B and 3A to the east. It runs along the entirety of the shared boundary between Lot 2 and Lots 3B and 3A. ROW 3 is situated directly in the middle of this property line, with five feet lying on each side thereof. It runs south to north along this line from the southern boundaries of Lots 2 and 3B to the northern boundaries of Lots 2 and 3A.
[Note 5] The Perry Adverse Possession Area is defined as an area located at the southeast corner of Lot 2 running from the southern boundary of Lot 2 to the southern end of the Western Parking Area (defined below), and along an irregular, curving western boundary to the eastern boundary of Lot 2. The Perry Adverse Possession Area partially overlaps the southernmost portion of ROW 3.
[Note 6] The Parking Areas include the Northern Parking Area and the Western Parking Area. The Northern Parking Area is defined as an area located on the southern boundary of Lot 3A, directly to the north of ROW 2. It runs 62.12 feet west from the eastern boundary of Lot 3A, and 25 feet north from the southern boundary of Lot 3A. The Western Parking Area is defined as an area located near the southeast corner of Lot 2, just to the west of ROW 2, and partially overlaps ROW 3 near its southern end. It runs from the northernmost point of the Perry Adverse Possession Area 47.37 feet north along the eastern boundary of Lot 2 (which point appears to coincide with the southwest corner of Lot 3A and the northwest corner of ROW 2), west eighteen feet, south sixteen feet, east four feet, southeast 14 feet, and back to its starting point along the northeast-curving northern end of the Perry Adverse Possession Area.
[Note 7] The Perry Property is defined as Lot 3B plus a parcel to the south (Lot 9B), which is not depicted on the 1911 Plan, but which is shown on the 2010 Plan as Lot 9B, Assessor's Map 51, Parcel 0084.
[Note 8] The Nemira Property is defined as Lots 2 and 3A.
[Note 9] The Park Deeds include the following deeds: deed dated September 29, 1872 and recorded in the Registry at Book 391, Page 168; deed dated May 27, 1873 and recorded in the Registry at Book 390, Page 168; deed dated May 31, 1873 and recorded in the Registry at Book 390, Page 169; deed dated May 31, 1873 and recorded in the Registry at Book 390, Page 169; deed dated June 20, 1873 and recorded in the Registry at Book 390, Page 201; deed dated June 24, 1873 and recorded in the Registry at Book 390, Page 201; deed dated May 9, 1874 and recorded in the Registry at Book 402, Page 257; and deed dated December 22, 1880 and recorded in the Registry at Book 470, Page 2.
[Note 10] The Wickham Lot 2 Deed is defined as the deed dated September 17, 1913 and recorded in the Registry at Book 1164, Page 19.
[Note 11] The North Croffut Way is defined as a twelve foot wide passageway running along the majority of the northern boundary of the property conveyed by deed dated July 23, 1873 and recorded in the Registry at Book 410, Page 99.