Plaintiffs Robert Casey, Francis Casey, and Helen Casey (together, Plaintiffs [Note 1]) commenced this case by filing an unverified complaint on October 16, 2012, which sought, pursuant to G. L. c. 231A, § 1, a declaratory judgment relative to the use of the ROW [Note 2]. Plaintiffs also sought a preliminary injunction preventing Defendant LaCourt Family, LLC (Defendant) from using the ROW and from towing cars using the ROW for parking.
A case management conference was held on November 13, 2012. Defendant filed an answer on November 23, 2012. By order dated January 9, 2013, the court granted Plaintiffs request for a preliminary injunction, directing that Plaintiffs would be allowed to park in the same area of the ROW that, according to Plaintiffs, had been used for parking for at least the last fifty years.
Defendant moved for summary judgment on January 17, 2014, which was supported by a memorandum of law, a statement of material facts, and an appendix containing, among other documents, a joint affidavit of the Caseys, and excerpts of the transcripts of Plaintiffs depositions.
On February 18, 2014, Plaintiffs cross-moved for summary judgment, which was supported by a memorandum of law, a statement of material facts, and an appendix containing, among other documents, different excerpts from Plaintiffs depositions and photographs depicting the parties properties and the ROW. Defendant filed its opposition to Plaintiffs cross-motion, which included a supplemental appendix containing an affidavit of Rafael Carvalho (a contractor who installed a gate on the LaCourt Property in 2012). [Note 3]
A hearing on the parties motions for summary judgment was held on May 28, 2014. Plaintiffs filed a supplemental memorandum on the parties motions on June 2, 2014. At that time, the matter was taken under advisement.
The court has issued a decision (the Decision) as of todays date. In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that the LaCourt Propertys appurtenant right to use the ROW for access has been extinguished through abandonment; and,
ORDERED and ADJUDGED that the LaCourt Property retains only its appurtenant right to the use of the ROW solely for purposes of maintaining utilities lines that do not impede access via the ROW; and,
ORDERED and ADJUDGED that, because parkingistodaypermitted on Cambridge streets, the Casey Propertys appurtenant right to use the ROW now includes the right to park thereupon, so long as such parking leaves at least ten feet of clearance for other vehicles to pass; [Note 4] and,
ORDERED and ADJUDGED that, to the extent that Plaintiffs seek a declaratory judgment that they have obtained parking rights in any portion of the ROW by prescription or implication, this action is defective for failure to name all necessary parties; and,
ORDERED and ADJUDGED that Defendants motion for summary judgment is hereby DENIED; and,
ORDERED and ADJUDGED that Plaintiffs cross-motion for summary judgment is hereby ALLOWED IN PART solely to the extent specified herein and in the Decision; and,
ORDERED and ADJUDGED that Plaintiffs request for a declaratory judgment that Plaintiffs have parking rights in any portion of the ROW by prescription or implication is hereby DISMISSED, without prejudice.
By the court.
[Note 1] Plaintiff Robert Casey (Robert) is the son of Plaintiffs Francis Casey and Helen Casey (together, the Caseys). Robert is the owner of a two-family house located at 1 Drummond Place, Cambridge, Massachusetts (the Casey Property), which is located off the south side of Norris Street. The Casey Property encompasses the rear portions of the parcels defined on a plan titled Plan of Valuable House Lots for sale in North Cambridge Belonging to Edmund Reardon, which is dated August 22, 1892, was prepared by W. A. Mason & Son, Surveyors, and can be found at Middlesex County Plan Book 76, Plan 5 (the 1892 Plan) as Lots 8 and 9. Robert currently lives on the second floor of the Casey Property, and his parents, the Caseys, currently live on the first floor..
[Note 2] The ROW is defined as a parcel of land in Cambridge, Massachusetts known as Drummond Place that is used as a private right of way to and from several properties to public roads. It is shown on the 1892 Plan as running southeasterly one hundred forty feet from Norris Street (to which it is perpendicular), and abutting properties defined on the 1892 Plan as Lot 7 and Lot B (i.e., the western end of the LaCourt Property -- defined below) on the east side thereof, and properties defined on the 1892 Plan as Lot 8 (the southern end of which forms part of the Casey Property) and Lot A on the west side thereof. On the 1892 Plan, Lot 7 (to the east) and Lot 8 (to the west) face each other, as do Lot B (to the east) and Lot A (to the west), and the four properties appear as mirror images across from each other, separated by the ROW. The 1892 Plan shows the ROW as ten feet in width in its one hundred foot section from Norris Street between Lots 7 and 8, widening to twenty feet in width for an additional forty feet between Lots B and A.
[Note 3] The LaCourt Property is a commercial property located at 40 Norris Street, Cambridge, Massachusetts on the south side of Norris Street. The LaCourt Property encompasses the parcels defined on the 1892 Plan as Lots 3-7 and Lot B, plus a portion of Lot 2. The LaCourt Property contains a building that was formerly used as a school (the School) and an approximately 40-foot driveway running along the east side of the School (the Driveway) that leads to a parking lot to the south of the School (the Parking Lot).
[Note 4] As noted in the Decision, this appurtenant right remains subject to the such rights as may also run to the benefit of other residential properties abutting the ROW. The parties did not adduce anyevidence as to who such parties might be, so the court makes no formal finding as to who (if anyone) currently enjoys such rights.