LOUANNE ATHANASIOU and GEORGE ATHANASIOU vs. TOWN OF WESTHAMPTON and BOARD OF SELECTMAN OF WESTHAMPTON (known as the Westhampton Selectboard) consisting of the following individuals who are named herein solely in their official capacity as members of that Board: John F. Shaw, Jr., Chair, Brian Mulvehill, Clerk, and James Huston.

This action concerns a dispute between Plaintiffs Louanne and George Athanasiou (together, “Plaintiffs”) and Defendants Town of Westhampton (“the Town”) and Board of Selectmen of Westhampton (the “Board”) (together, “Defendants”) as to the ownership of a triangular parcel of land (defined below as the Triangle) and traveled way (defined below as the Way) (together, the “Disputed Area”) abutting property owned by Plaintiffs (“Locus”), which is located on the westerly side of Southampton Road (previously called Orcutt Road) and on the easterly side of North Road in Westhampton, Massachusetts. Plaintiffs claim that, despite the Disputed Area not appearing in deeds to Locus for over fifty years, it nonetheless forms part of Locus. Defendants deny this contention, and claim that they have attained prescriptive easement rights over the Disputed Area by (a) maintaining the Way as a public road, and (b) maintaining and performing upkeep of the Triangle for over fifty years.

Plaintiffs commenced this action by filing an unverified complaint on May 20, 2013, by which they sought (a) a declaratory judgment, pursuant to G. L. c. 231A, § 1, that they are the rightful fee title owners of the Disputed Area, and (b) permanent equitable relief, pursuant to G.L. c. 184 § 1(k), estopping Defendants from taking certain actions with respect to the Disputed Area in the event that relief were to be granted on Plaintiffs’ declaratory claim. Defendants filed an answer on June 4, 2013, which asserted numerous affirmative defenses to Plaintiffs’ claims, including (a) that “the property at issue are [sic] public ways” and (b) that “[t]he Town has acquired ownership rights to the subject property pursuant to a prescriptive easement and/or layout of the public way.” [Note 1] A case management conference was held on July 10, 2013, at which point the parties entered into the discovery phase of this case. [Note 2]

On May 15, 2014, Defendants filed a motion for summary judgment dismissing Plaintiffs’ complaint. Defendants’ motion was supported by a memorandum of law, statement of material facts, and an appendix containing, inter alia, an affidavit of Katherine Lord Klein, Esq. (“Klein” -- an attorney in Defendants’ counsel’s firm who claims to be a title expert) and the deposition transcript of David J. Blakesley (Westhampton Highway Superintendent) (the “Highway Superintendent”). On June 17, 2014, Plaintiffs filed their opposition to Defendants’ motion for summary judgment and a cross-motion for summary judgment, which was supported by a memorandum of law, a response to Defendants’ statement of material facts and statement of additional material facts, and an affidavit of Michael Pill (Plaintiffs’ counsel). [Note 3] Defendants filed opposition to Plaintiffs’ cross-motion on July 11, 2014, together with a response to Plaintiffs’ statement of additional material facts, and an affidavit of Patricia Cotton (Westhampton Town Clerk) (the “Town Clerk”).

The parties’ motions for summary judgment were heard on July 16, 2014, at which time they were taken under advisement. On September 22, 2014, more than two months after the hearing on the parties’ summary judgment motions, Plaintiffs filed a late motion to add three documentary exhibits to the summary judgment record, which was supported by a memorandum of law. On October 1, 2014, Defendants filed their opposition to Plaintiffs’ motion to supplement the summary judgment record. On March 27, 2015, the parties appeared for a telephone status conference to discuss the issue of the late-filed documents presented by Plaintiffs, and what the parties’ position was as to the significance of said documents. On April 1, 2015, the parties filed a joint motion to designate Defendants’ affirmative defenses relating to prescriptive rights over the Disputed Area as counterclaims, as well as a stipulation consenting to the court’s consideration of certain of the late- filed documents submitted by Plaintiffs. [Note 4]

Based upon the documents and affidavit testimony set forth in the parties’ summaryjudgment motions, I find that the following material facts are not in dispute:

The Relevant Chain of Title to Locus and Surrounding Properties

1. Locus [Note 5] is owned by Plaintiffs and is located at 3 Southampton Road in Westhampton, Massachusetts. As it exists today, Locus represents a portion of a larger tract of land, which itself encompasses two different lots that were conveyed through two separate chains of title for the better part of the Twentieth Century, until they were merged under common ownership in 1951. Title to one of these lots can be traced back, for relevant part, to 1905, while title to the other can be traced back, for relevant part, to 1915. The following annotated plan shows the various parcels of land that are at issue in this case:

2. By deed dated April 11, 1905 and recorded in the Hampshire County Registry of Deeds (the “Registry”) at Book 593, Page 175 (the “1905 Deed”), Elijah P. Torrey (“Torrey”) deeded to Jared C. Williams (“Williams”) a parcel of land (the “Torrey Tract”), a portion of which eventually would come to form Locus. [Note 6] The 1905 Deed describes the Torrey Tract as follows:

Beginning at the Westerly corner of the premises hereby conveyed at a point on the highway leading from the church to Williamsburg, [Note 7] and at the land of the heirs of one Hooker; and thence Southeasterly on the said Hooker land and land of S.A. Phelps to land of C.N. Loud; thence Northeasterly to land of F.W. Blakesley; thence on land of the said Blakesley. Northwesterly; thence Easterly; thence Northwesterly; thence Northeasterly along fence and wall, to the road leading from Louds Saw Mill to the Williamsburg Road, [Note 8] thence on said cross road [Note 9] Westerly to the said Williamsburg road; thence Westerly on the first mentioned road to the place of beginning, containing five acres more or less.

This description clearly indicates that the Torrey Tract extended up to the intersection of Southampton Road and North Road, and thus that the Torrey Tract included the land that today forms the Disputed Area. [Note 10]

3. By deed dated February 24, 1915 and recorded in the Registry at Book 712, Page 146 (the “1915 Deed”), Elizabeth M. Hooker (“Hooker” -- who is referenced in the 1905 Deed) deeded to Frank W. Blakesley (“Blakesley” -- who is referenced in the 1905, 1919, 1921, and 1938 Deeds) a small parcel of land abutting the Torrey Tract to the west thereof (the “Hooker Tract”). [Note 11] The 1915 Deed describes the Hooker Tract as follows: “Westerly by the highway leading from Westhampton to Williamsburg; Easterly by land of Jared C. Williams, Southeast by land of Strong A. Phelps, and Southwest by the land of this grantee containing two acres more or less.” [Note 12]

4. By deed dated April 14, 1919 and recorded in the Registryat Book 745, Page 314 (the “1919 Deed”), Williams deeded the Torrey Tract to Henry M. Clapp (“Clapp”). [Note 13]

5. By deed dated July 6, 1921 and recorded in the Registry at Book 775, Page 168 (the “1921 Deed”), Clapp deeded the Torrey Tract to Herbert F. Mascho (“Herbert”) and Marion M. Clapp (Herbert’s wife, later known as Marion M. Mascho) (“Marion”) (together, the “Maschos”). [Note 14]

6. By deed dated December 30, 1938 and recorded in the Registry at Book 937, Page 379-380 (the “1938 Deed”), Herbert deeded to Marion his interest in the Torrey Tract. [Note 15] As a result, Marion owned, among other land, Locus, including the Disputed Area.

7. By deed dated August 26, 1947 and recorded in the Registry at Book 1023, Page 505 (the “1947 Deed”), Blakesley deeded the Hooker Tract to William and Grace Hunt (together, the “Hunts”). [Note 16]

8. By deed dated June 18, 1951 and recorded in the Registry at Book 1095, Page 266 (the “1951 Deed”), the Hunts deeded the Hooker Tract to Marion, who, as noted above, already owned the Torrey Tract at that time. The Hooker Tract is described in the 1951 Deed as follows:

A certain tract or parcel of land situate in Westhampton, and on the Easterly side of the road leading from Westhampton to Williamsburg [i.e., North Road] bounded and described as follows, viz: Beginning at a point on the Easterly side of said road, which point is the Southwesterly corner of other land of said grantee, thence Southerly along said road a distance of one hundred and thirty (130) feet, more or less, to an iron pin; thence Easterly along other land of said grantors a distance of one hundred and twenty-five (125) feet, more or less, to an iron pin at a stone wall and said other land of said grantee; thence Northwesterly along said other land of said grantee to the place of beginning. Meaning and intending to conveya triangular [Note 17] piece or parcel of land, the same being a portion of the land conveyed to these grantors by [the 1947 Deed] . . . .

9. By deed dated August 21, 1968 and recorded in the Registry at Book 1536, Page 416 (the “1968 Deed”), Marilyn A. Fuller (“Fuller”), as executor of the will of Marion, deeded a portion of the Torrey Tract and the Hooker Tract to Charles Bobala (“Charles”) and Cheryl M. Bobala (“Cheryl” -- who, after she remarried, was later known as “Cheryl Fuller-Malinowski”) (together, “the Bobalas”). The 1968 Deed describes the property conveyed thereby (the “Bobala Tract”) as follows:

Commencing at a point located on the westerly side of Orcutt Road [i.e., Southampton Road] and the southerly side of North Road in the Town of Westhampton, bounded and described as follows: Commencing at a point located on the westerly side of Orcutt Road [i.e., Southampton Road] and thence N. 89° 57' 39" W. ninety-five and sixty-nine hundredths (95.69) feet to a point, thence S. 05° 02' 39" W. one hundred forty-four and twenty-two hundredths (144.22) feet to a point; thence N. 77° 22' 51" W. two hundred seventy and sixty-three hundredths (270.63) feet to a point, thence S. 15° 14' 21" W. six hundred sixty-two and sixty-eight hundredths (662.68) feet to a point, the last four courses being along land now or formerly of the estate of Frank W. Blakesley; thence S. 88° 16' 30" W. one hundred seventyand seventy-five hundredths (170.75) feet along land formerly of Strong A. Phelps; thence N. 12° 59' 55" E. five hundred nineteen and ninety-five hundredths (519.95) feet to a point, the last six courses being marked by a stone wall and a barbed wire fence; thence N. 29° 55' 17" W. one hundred twenty-eight and thirty-six hundredths (128.36) feet to the southerly side of North Road, the last two courses being also along land now or formerly of Arnold M. and Mary T. Holt; thence along North Road N. 54° 14' 32" E. one hundred forty- six and seventy-five hundredths (146.75) feet; thence N. 59° 47' 14" E. two hundred thirty and seventy-seven hundredths (230.77) feet; thence N. 77° 03' 32" E. one hundred twenty one and ninety-five hundredths (121.95) feet; thence S. 87° 27' 09" E. fifty-six and eighty- seven hundredths (56.87) feet; thence to the right of a curve [Note 18] a radius of one hundred fifty (150) feet; a distance of one hundred sixty-one and sixty-six hundredths (161.66) feet; thence S. 25° 42' 09" E. thirty- six and fifty-eight hundredths (36.58) feet to the place of beginning, the last six courses being along North Road and Orcutt Road [i.e., Southampton Road] and containing 4.783 acres more or less. Being a portion of [the Torrey Tract] in [the 1938 Deed] and a portion [Note 19] of the [Hooker T]ract in [the 1951 Deed].

Id. [Note 20] The 1968 Deed also references a June 18, 1968 plan entitled “Plan of Land in Westhampton, Massachusetts Belonging to the Estate of Marion M. Mascho”, which was prepared by Almer Huntley Jr. & Associates, Inc., and was recorded in the Registry at Plan Book 72, Page 80 (the “1968 Plan”). Based upon the metes and bounds description of the Bobala Tract in the 1968 Deed and its depiction on the 1968 Plan, the Bobala Tract, by deed, stopped at the southern side of the Way, and did not include the Disputed Area. [Note 21]

10. In early 1988, Cheryl commissioned Harold L. Eaton and Associates, Inc. to prepare a plan of the Bobala Tract entitled “Plan of Land in Westhampton, Massachusetts prepared for Cheryl M. Bobala”, which was dated February 25, 1988 and recorded in the Registry at Plan Book 162, Page 87 (the “1988 Plan”). The 1988 Plan depicts the Bobala Tract as two separate portions (labeled as lots “A” and “B”). As was the case with the 1968 Deed and 1968 Plan, based upon the metes and bounds description of the Bobala Tract in the 1988 Plan, the Bobala Tract appears to stop at the southern side of the Way, and does not include the Disputed Area.

11. By deed dated June 14, 1988 and recorded in the Registry at Book 3194, Page 34 (the “1988 Deed”), Charles deeded his interest in the Bobala Tract to Cheryl (in connection with the Bobalas’ divorce). The description of the Bobala Tract in the 1988 Deed is the same as that contained in the 1968 Deed, which is referenced in the 1988 Deed. The 1988 Deed does not reference the 1988 Plan in any way.

12. Between September of 1989 and March of 1993, Cheryl and her second husband, Stephen S. Malinowski (“Stephen”) (together, the “Malinowskis”) entered into three deeds between themselves (together the “Malinowski Deeds”), pursuant to which they subdivided the Bobala Tract to create the lot labeled as lot “A” on the 1988 Plan (the “Malinowski Lot”). [Note 22] Notwithstanding this subdivision, however, during the entire period from the date of the 1988 Deed through 2010, Cheryl owned the entirety of the Bobala Tract -- less the interest that she granted to her husband, Stephen, pursuant to the Malinowski Deeds.

13. By deed dated May 19, 2010 and recorded in the Registry at Book 10183, Page 57 (the “2010 Deed”), Cheryl deeded Locus [Note 23] out of the Bobala Tract to Plaintiffs as tenants by the entirety. In connection with the 2010 Deed, Cheryl commissioned Harold L. Eaton and Associates, Inc. to prepare a plan titled “Plan of Land in Westhampton, Massachusetts prepared for Cheryl Fuller- Malinowski”, which was dated March 30, 2010 and recorded in the Registry at Plan Book 223, Page 32 (the “2010 Plan”) -- to which plan the 2010 Deed referenced. The 2010 Deed stated that it conveyed “a portion of the premises conveyed to me by the [1988 Deed], which is described as follows:

The land in Westhampton, Hampshire County, Massachusetts shown as Parcel “A-2" on the [2010 Plan] and more particularly bounded and described as follows: Beginning at an iron pin located on the southerly side of North Road as shown on said Plan, at the northeasterly corner of land of this grantor, thence running N. 59° 47' 14" E. 59.53 feet along the southerly side of North Road to an unmarked point, thence N. 77° 03' 32" E. 121.95 feet along Southampton Road to an unmarked point, thence S. 87° 27' 09" E. 56.87 feet along Southampton Road to another unmarked point; thence [t]o the right a distance of 161.66 feet along a curve with a radius of 150.0 feet to an unmarked point on Southampton Road, thence S. 25° 42' 09" E. 36.58 feet along Southampton Road to a found iron pin at the end of a stone wall; thence turning and running N. 89° 57' 39" W. 95.69 feet along said stone wall and along land now or formerly of Robert D. Fleischner and Cynthia M. Jacques to a found iron pin at the corner of the stone wall; thence turning and running S. 05° 02' 39" E. 144.22 feet along the stone wall to a found iron pin, thence turning and running N. 76° 54' 14" W. 270.63 feet along the stone wall to a found iron pin, the last two courses being marked by the stone wall and being along land now or formerly of Robert D. Fleischner and Cynthia M. Jacques; thence turning and running N. 09° 42' 47" W. 147.40 feet along other land of this grantor to the point of beginning. Containing 1.485 acres of land, or 64,700. square feet, more or less.

This metes and bounds description of Locus in the 2010 Deed, together with its depiction on the 2010 Plan, indicates that the Disputed Area was not included in Locus.

14. The description of Locus pursuant to the 2010 Deed excluded a small triangular portion of the Bobala Tract on the western boundary of Locus (the “Cheryl Gap”), which remained owned by Cheryl, but was not part of the Malinowski Lot. [Note 24] The Cheryl Gap is depicted in the 2010 Plan as located between the western boundary of Locus and the eastern boundary of the Malinowski Lot; it is different from both the Triangle (which is located to the north of Locus) and the former Hooker Tract (which represents a portion of the westernmost side of the Malinowski Lot).

15. By deed dated December 10, 2012 and recorded in the Registry at Book 11160, Page 190, the Malinowskis executed a confirmatory deed of Locus to Plaintiffs (the “Confirmatory Deed”), purportedly “to correct description errors in the [2010 Deed].” [Note 25] In connection with the Confirmatory Deed, Plaintiffs commissioned Harold L. Eaton and Associates, Inc. (who also prepared the 2010 Plan) to prepare a plan titled “‘Existing Conditions’ Plan of Land in Westhampton, Massachusetts prepared for George and Louanne Athanasiou”, which was dated July 23, 2012 and recorded in the Registry at Plan Book 227, Page 121 (the “2012 Plan”) -- to which plan the Confirmatory Deed referenced. The Confirmatory Deed purports to “create[ ] no new boundaries.” The description of Locus in the Confirmatory Deed is as follows:

A certain tract or parcel of land situate at the intersection of the Southwesterly line of Southampton Road, formerly known as Orcutt Road, and the Southeasterly line of North Road in Westhampton, Hampshire County, Massachusetts, bounded and described as follows: Beginning at an iron pin set at said intersection of the Southwesterly line of Southampton Road with said Southeasterlyline of North Road, the same being the most Northerly corner of the parcel hereby conveyed and thence S. 23° 10' 52" E. a distance of 275.32 feet to a point; thence S. 25° 42' 09" E. a distance of 36.58 feet to a point in a stone wall at land of Robert D. Fleischner and Cynthia M. Jacques (the last two courses and distances being along said Southwesterlyline of Southampton Road); thence N. 89° 57' 39" W a distance of 95.69 feet to a corner of said stone wall; thence S. 05° 02' 39" E. a distance of 144.22 feet to another corner of said stone wall; thence N. 76° 54' 14" W. a distance of 270.63 feet to another corner of said stone wall at land of [the Malinowskis], said land being shown as Parcel “A” shown on [the 1988 Plan]; thence N. 22° 41' 58" W. along said land of [the Malinowskis] a distance of 139.26 feet to an iron pin set on said Southeasterly line of North Road; thence N. 59° 47' 14" E. a distance of 33.41 feet to an iron pin at the most Westerly corner of Parcel “A-2" shown on [the 2010 Plan]; thence continuing N. 59° 47' 14" E. a distance of 59.53 feet to a point; thence N. 58° 29' 38" E. a distance of 68.15 feet to a point; thence N. 46° 49' 37" E. a distance of 105.34 feet to a point; thence N. 35° 28' 18" E. a distance of 104.86 feet to the iron pin set at the place of beginning (the last five courses and distances being along said Southeasterly line of North Road). Containing 86,854 square feet or 1.9939 acres of land, more or less. Being all the premises shown and described as “84,548+ SQ.FT. 1.9410+ ACRES” on [the 2012 Plan], and a triangular portion of Parcel “B”, containing 2,306 square feet of land, shown on [the 1988 Plan], which lies adjacent to and Northeasterly of said Parcel “A” [on the 1988 Plan]. Being the same premises conveyed by the [1988 Deed], with the exception of that portion thereof previously conveyed by the [1993 Deed to the Malinowskis].

Thus, the Confirmatory Deed not only brings the Cheryl Gap (to which Cheryl held record title) into the legal description of Locus, it purports to do so also with the Disputed Area (to which Cheryl did not hold record title). [Note 26]

16. By release deed dated August 8, 2014 and recorded in the Registry at Book 11728, Page 38 (the “Release Deed”), grantors Nannette B. Mascho, Alan W. Fuller, Cheryl, Susan M. Fuller, Carolyn Fuller Coggins, and Robert L. Fuller (together, the “Mascho Heirs”, who claim to be the only remaining descendants of the Maschos [Note 27]) released to Plaintiffs (for no consideration) any/all interest they may have held to lot “A-2" on the 2012 Plan, including, specifically, the property deeded to Marion pursuant to the 1951 Deed (i.e., the Hooker Tract). [Note 28] Concurrently with the recording of the Release Deed, Plaintiffs’ counsel (Michael Pill) recorded an affidavit dated August 15, 2014 pursuant to G.L. c. 183, § 5B (the “Release Affidavit”) in the Registry at Book 11728, Page 19, which purported to confirm the allegations set forth in the Release Deed and annexed probate documents to support said allegations. Pursuant to the parties’ April 1, 2015 stipulation, Defendants consented to the court’s consideration of the Release Deed and the Release Affidavit, and acknowledge that it is sufficient to establish that the Mascho Heirs represent all possible heirs of the Maschos.

The Parties’ Conduct Concerning the Disputed Area

17. According to the Town’s real estate tax assessment maps, the Disputed Area is not included within the area of Locus.

18. The Way is an unnamed, paved roadway that has been used by the general public for some degree of vehicle traffic (to connect North Road to Southampton Road, and vice versa) in excess of twenty years. [Note 29] The Highway Superintendent reported witnessing “regular vehicular traffic” on the Way by the public since at least 1970. It is undisputed that the Way is open to the public and available for vehicle traffic at all times. Neither party submitted a traffic study substantiating the level of vehicle traffic on the Way over time. [Note 30] The Highway Superintendent further stated that, in addition to vehicle traffic, he had witnessed the Way on one instance being used by public school busses waiting to access a nearby school. [Note 31]

19. Defendants claim that the Town regularly conducts certain activities to maintain and upkeep the Way for public traffic according to Town regulations. Specifically, according to the Highway Superintendent, since at least 1970, Town officials and employees (a) have oiled and repaved the Way at least twice (in or about 2005 and also in the early 1990s), (b) regularly plow and sand the Way (as needed in the event of snowfall, for an estimated twenty times per annum), (c) “constantly” prune trees and collect brush obstructing the Way (as needed), and (d) regularly patch potholes in the Way (as needed). [Note 32] [Note 33]

20. The Triangle is an open area of land abutted on its three sides by North Road, Southampton Road, and the Way. It is sparsely treed, but is otherwise open, empty space covered by grass. The Triangle does not appear to have been regularly used at any time for any purpose by the general public for any purpose for at least fifty years. The only apparent uses of the Triangle for at least the last fifty years appears to be as a divider between the abutting roads, and as the location of a drainage system. The Highway Superintendent stated that (at some unspecified point in time) the Town installed a drainage system on the Triangle that allows water on the surrounding roadways (including the Way) to drain, which system, he claimed, has been regularly cleaned and maintained for over twenty years by the Town. [Note 34]

21. The Highway Superintendent stated that, since at least 1970, Town officials have regularly (as needed) mowed the grass, removed dead trees, and planted new trees in the Triangle.

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Before proceeding to the merits of the parties’ summary judgment motions, I must first dispose of the three procedural motions filed by the parties.

A. Plaintiffs’ Motion to Supplement the Summary Judgment Record

More than two months after the summary judgment hearing, Plaintiffs filed a late motion to add three additional documentary exhibits to the record: the Release Deed and the Release Affidavit, and an affidavit of Cheryl with property tax records annexed thereto.

As discussed, supra, the Release Deed documents the release of all interest in the Disputed Area that may have been owned bythe Mascho Heirs. As a supplement to the Release Deed, Plaintiffs also offer the Release Affidavit, which echos the allegations made by the Mascho Heirs in the Release Deed, and attaches out-of-state probate documents for the Maschos’s son, Fayette, who apparently died in Arizona in 1990. These probate documents include a last will and testament, application for informal probate, letters of personal representative, statement of informal probate, notice to heirs and devisees, proof of notice, affidavit of publication, closing statement, acceptance or rejection of closing statement, and minute entry.

The third document submitted by Plaintiffs is an affidavit signed by Cheryl, who is Plaintiff Louanne Athanasiou’s mother. This affidavit annexes copies of tax records for the purpose of demonstrating that Plaintiffs’ predecessors in title paid property taxes on the Disputed Area. In her affidavit, Cheryl states that she obtained these tax documents at the Town of Westhampton Tax Assessors office on August 11, 2014. The attached copies appear to be from the Town’s tax assessor record books.

Under Mass. R. Civ. P. 59(a), courts can reopen evidence for additional exhibits, and the reasons for doing so are broad. Additionally, reopening evidence is a matter of judicial discretion. See Duchesneau v. Jaskoviak, 360 Mass. 730 , 734 (1972). Moreover, pursuant to their April 1, 2015 stipulation, the parties have agreed that the court may consider the late-filed documents submitted by Plaintiffs.

Defendants did not, in their opposition to Plaintiffs’ motion to admit their late-filed documents, demonstrate any actual prejudice as the result of the previous non-disclosure of the Release Deed and/or the Release Affidavit, which were not even procured until after the hearing on the parties’ summary judgment motion. Defendants now consent to the admission of these documents. [Note 35] The documents proffered appear to be probative to the issues in this case, and there is no reason to exclude them. Indeed, by virtue of their recordation, these documents are public records, so the court would have had discretion to take judicial notice of these documents sua sponte even if Plaintiffs had not brought them to the court’s attention. Thus, the court will admit the Release Deed and the Release Affidavit into the summary judgment record.

With respect to the allegations in Cheryl’s affidavit, the only purpose of this document was to annex the tax records. However, as Defendants rightly point out, Cheryl is not herself the proper party to certify the authenticity of these records. Rather, the proper course would have been for Plaintiffs to submit tax records duly certified by the Town official authorized to do so. If Plaintiffs wanted to have these tax documents admitted, they should have been properly certified, and should have been produced in Plaintiffs’ moving brief. Moreover, the parties’ April 1, 2015 stipulation does not indicate that Defendants consent to the admission of Cheryl’s affidavit or the documents annexed thereto -- thus indicating that Defendants’ maintain their objection to the admission of said evidence. In sum, there is no basis upon which Cheryl’s affidavit and the documents annexed thereto should be admitted into the summary judgment record.

In view of the foregoing, Plaintiffs’ motion to admit late-filed documents is hereby ALLOWED solely to the extent that the court will admit only the Release Deed and the Release Affidavit into the summary judgment record (by consent of the parties), and is otherwise DENIED.

B. Plaintiffs’ Motion to Strike Klein’s Affidavit or to Stay Summary Judgment

Next, I turn to Plaintiffs’ motions to strike Klein’s affidavit, or, in the alternative, to stay summary judgment, and for leave to depose Klein. In her affidavit, Klein does not specifically state whether she is one of the attorneys at Kopelman and Page, P.C. who actively represents Defendants. She claims to have reviewed numerous deeds pertaining to this case, and, in addition to describing said deeds and annexing them to her affidavit, she purports to offer her legal opinion as to their significance. Her opinions are more or less duplicative of legal arguments set forth in Defendants’ memorandum of law.

Plaintiffs object to Klein’s affidavit based upon Defendants’ failure to identify Klein as an expert witness, which they claim to have been a violation of Defendants’ discovery obligations. Defendants counter by asserting that Klein will not be offering expert testimony in this case, but that this affidavit was merely offered to “facilitate the Court’s adjudication of the plaintiffs’ claims”. Upon Defendants’ representation that Klein is not intended as an expert witness in this case, I find that there was no discovery violation in not disclosing Klein as an expert witness, nor is there any basis upon which Plaintiffs would be entitled to depose Klein.

However, Defendants will be held to their representation that Klein is not an expert witness in this case. Thus, since Defendants will not call Klein as an expert witness and will not make Klein available for deposition by Plaintiffs as their expert witness, they cannot also rely on her opinion as evidence. As Plaintiffs rightly point out, “[i]t is not the function of an affidavit to bring a legal argument before the trial court.” Lewis v. Antelman, 10 Mass. App. Ct. 221 , 227 (1980). Further, as in Bongaards v. Millen, 55 Mass. App. Ct. 51 , 54 (2002), aff’d on other grounds, 440 Mass. 10 (2003), which was also cited by Plaintiffs, Klein’s opinions in her affidavit are essentially the same as the legal arguments set forth in Defendants’ memorandum of law. Because Klein is not (as Defendants acknowledge) an expert witness in this case, her opinions are of no more probative value in this case than they would be if framed as legal arguments in a memorandum of law.

In view of the foregoing, Plaintiffs’ motion to strike Klein’s affidavit is ALLOWED solely to the extent that it purports to offer expert testimony and/or legal opinion. However, there is no basis upon which to strike her recitation of facts or the documentary evidence annexed to her affidavit, each of which shall remain part of the summary judgment record. Plaintiffs’ alternative request to stay summary judgment and for leave to depose Klein is DENIED.

C. The Parties’ Joint Motion to Amend Defendants’ Answer

The final procedural motion that must be disposed of before getting to the merits is the parties’ joint motion to designate Defendants’ affirmative defenses pertaining to their alleged prescriptive rights over the Disputed Area as counterclaims; as noted above, Defendants specifically claim (a) that “the property at issue are [sic] public ways” and (b) that “[t]he Town has acquired ownership rights to the subject property pursuant to a prescriptive easement and/or layout of the public way.” [Note 36]

Since this motion is consented-to, the court will ALLOW the parties’ motion. Defendants’ answer shall be deemed to have been amended, nunc pro tunc, to interpose a counterclaim seeking to establish prescriptive rights over the Disputed Area pursuant to G.L. c. 240, §§ 6-10, based upon the same allegations as were contained in Defendants’ affirmative defenses pertaining to prescriptive rights. Plaintiffs shall be deemed to generally deny the allegations contained in Defendants’ counterclaims, so construed.

D. The Parties’ Motions for Summary Judgment

Plaintiffs argue that they are the rightful fee title owners of the Disputed Area, and they seek a declaratory judgment to that effect. Defendants dispute Plaintiffs’ claim to the Disputed Area by deed, and they argue that the Town has acquired prescriptive rights over the Disputed Area by adversely using and maintaining the Disputed Area for more than twenty years, during which period the Way was used by the general public as a public road. Defendants have moved for summary judgment dismissing Plaintiffs’ complaint; Plaintiffs have cross-moved for partial summary judgment on their declaratory judgment claim, but not on their request for injunctive relief.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g. Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

1. Alleged Disputed Issues of Material Fact

Before proceeding to the merits of the parties’ legal arguments, it should be noted that Plaintiffs claim, in their moving briefs, that there are material issues of fact in dispute, and thus that summary judgment is inappropriate. However, it appears to the court that, in fact, the dispute here is limited to a dispute as to the legal significance and sufficiency of the evidence in the record. Moreover, at the March 27, 2015 telephone status conference, Plaintiffs indicated that they desired that the court proceed to a decision on the merits of this case -- thus implying that their dispute as to material facts was withdrawn.

Even if Plaintiffs did not intend to withdraw their objection as to material facts remaining in dispute, it is clear that the supposed dispute as to material facts is, in fact, really just a dispute as to the legal significance of facts. Most notably, while Plaintiff claims that there is a disagreement between the parties as to the Town’s factual allegations pertaining to its (and the public’s) alleged use of the Disputed Area, the facts themselves are undisputed; what Plaintiff disputes is actually whether Defendants have met their burden of establishing prescriptive rights. Plaintiffs characterize Defendants’ factual allegations with respect to the Town’s claim that it acquired prescriptive rights over the Disputed Area as “half-truth[s]”, but do not ever actually contradict Defendants’ evidence with any evidence of their own. While Plaintiffs may dispute whether the actions of the Town should be found to have been sufficiently “regular” to create prescriptive rights, this dispute, again, is a mere legal dispute as to the sufficiency and significance of the evidence submitted by Defendants in support of their prescriptive easement claims. Therefore, I find no material issue of disputed fact here.

In sum, I find that no material issues of fact remain in contention with respect to either Plaintiffs’ claimto record title to the Disputed Area or to Defendants’ prescriptive claims with respect to the Disputed Area. As such, it is appropriate to proceed to a consideration of the merits of the parties’ summary judgment arguments, based upon the evidence before the court.

2. Plaintiffs’ Fee Title Claim

Plaintiffs claim that they should be deemed to hold title to the Disputed Area by implication, despite the absence of the Disputed Area from deeds in the chain of title to Locus starting with the 1968 Deed. Defendants, in opposition to Plaintiffs’ claim, argue that they have acquired prescriptive rights to the Disputed Area. However, even if Defendants did acquire such rights, their conduct to establish such rights would be entirely irrelevant to the question of whether Plaintiffs had record title. Thus, for purposes of assessing Plaintiffs’ title claim, the court need not consider the issues raised with respect to Defendants’ prescriptive rights claims.

All parties agree that Disputed Area was historically included within the scope of the Torrey Tract, which was conveyed to Marion pursuant to the 1938 Deed. Pursuant to the 1951 Deed, Marion also came to own the Hooker Tract. Then, upon Marion’s death, portions of the Torrey Tract and the Hooker Tract were deeded to the Bobalas in the 1968 Deed, thus creating the Bobala Tract. [Note 37] Whether intentionally or through oversight of the executor of Marion’s estate, the 1968 Deed clearly excluded the Disputed Area, as did all conveyancing documents (and plans) pertaining to Locus until the Confirmatory Deed and the 2012 Plan.

Plaintiffs argue that the 1968 Deed (and all subsequent conveyancing documents in the chain of title to Locus) should be interpreted as contemplating (notwithstanding their explicit, unambiguous language, corroborated by multiple plans) that the Disputed Area formed part of the Bobala Tract, and later Locus. Plaintiffs claim that to do otherwise would entail finding that a gore (defined, infra) was created, which they argue is an improper result.

While Plaintiffs rightly note that “it is proper to consider the deeded property in relation to the grantor’s remaining property and the improbability . . . that a grantor would seek to retain relatively useless strips of property”, this is a rule that applies to the construction of deeds in the event of an ambiguity. Bernier v. Fredette, 85 Mass. App. Ct. 265 , 271 (2014) (citing Ryan v. Stavros, 348 Mass. 251 , 259 (1964)). Here, however, there is no ambiguity in the 1968 Deed, nor in any of the subsequent deeds in the chain of title to Locus or any plan depicting Locus from 1968 to 2012. Rather, the deeds contain detailed descriptions of the metes and bounds of the Bobala Tract (and later Locus) that unambiguously exclude the Disputed Area, which descriptions are corroborated in multiple recorded plans. In fact, as noted above, the 1968 Deed specifically states that it conveyed only “a portion” of the Hooker Tract and the Torrey Tract, and the only portion thereof that obviously appears to have been left out is the Disputed Area.

Even if, arguendo, these deeds and plans did not rule out any ambiguity as to whether the Disputed Area was included in the Bobala Tract (and later Locus), it cannot reasonably be said that the Disputed Area is either “small” and/or a “useless strip of property”. BLACK'S LAW DICTIONARY (10th ed. 2014) (“[G]ore . . . [1.] A small, narrow slip of land. 2. A small (often triangular) piece of land, such as may be left between surveys that do not close.”); Bernier, 85 Mass. App. Ct. at 267. Rather, a comparison of the 2010 Plan and the 2012 Plan reveals that the land encompassing the Disputed Area is close to twenty thousand square feet in area, and its inclusion in Locus would therefore enlarge Locus by nearly thirty-three per cent. In addition, the land in question is located at the junction of two major Town roads. Plaintiffs themselves claim that the property in the vicinity of Locus is very valuable, so it may be presumed that such visible property at a major juncture of Town roads may itself be quite valuable. [Note 38] Alternatively, it is not out of the question that the Town could have approached the executor of Marion’s estate with an interest to acquire title to the Disputed Area to secure the public’s use thereof.

In sum, even if the Disputed Area could reasonably be classified as a gore, it cannot be presumed that there could have been no contemplated reason on the part of the grantor of the 1968 Deed to retain title to the Disputed Area. Thus, I find that neither the 1968 Deed nor any subsequent deeds in Locus’s chain of title prior to 2012 included the Disputed Area.

Perhaps acknowledging the weakness of their arguments in favor of title by implication, Plaintiffs, after briefing summary judgment, attempted to retroactively establish record title to the Disputed Area through the Release Deed and the Release Affidavit, the admission of which into the summary judgment record is consented to by Defendants.

The parties agree that the Release Deed and the Release Affidavit effectively release any right to the properties depicted on the 2012 Plan that may have been held (whether intentionally or inadvertently) by the Mascho Heirs. There is also no dispute as to the sufficiency of the Release Deed and Release Affidavit as to whether the Mascho Heirs include all parties (other than the parties to this case) who might possibly have claimed any right (by inheritance or otherwise) to lot “A-2" on the 2012 Plan.

The Release Deed specifically provides that the Mascho Heirs intended by it “to convey to [Plaintiffs] any and all portions of the land conveyed to Mascho by the Hunts, by deed dated June 18, 1951 [i.e., the 1951 Deed], which may not have been conveyed out from the estate of Mascho by deed to the Bobalas from Fuller.” Yet, as noted, supra, the 1951 Deed actually conveyed the Hooker Tract (which did not contain the Disputed Area), not the Torrey Tract (which did contain the Disputed Area). This error is probably related to Plaintiffs’ confusion with respect to the description given in the 1951 Deed of “a triangular piece or parcel of land”, which, as noted, supra, was a description of the Hooker Tract, and not a reference to the Triangle.

Fortunately for Plaintiffs, however, the Release Deed also provides that the Mascho Heirs release and grant to Plaintiffs “[a]ll of our right, title and interest and to a certain parcel of land, being all of the premises shown and described as ‘84,548 square feet 1.9410 acres’ shown on the [2012 Plan].” Moreover, the Release Deed specifically releases all rights in lot “A-2" on the 2012 Plan (which includes the Disputed Area), and the Mascho Heirs hold no present interest in the property conveyed by the 1951 Deed (which, today, forms part of the Malinowski Lot). Thus, irrespective of the erroneous reference to the 1951 Deed, the intent of the Release Deed is clear: to relinquish any/all interest held by the Mascho Heirs in any property depicted on the 2012 Plan, including the Disputed Area. Accordingly, I find that the Release Deed effectively conveyed to Plaintiffs the fee title interest in the Disputed Area.

3. Defendants’ Prescriptive Rights Claim

Defendants argue that, notwithstanding Plaintiffs’ claim to record title to the Disputed Area, Defendants are entitled to summary judgment upon their claim that the Town, by its conduct, has acquired prescriptive rights over the Disputed Area. [Note 39] By consented-to motion, Defendants’ prescriptive rights affirmative defenses are being construed as counterclaims. And, by stipulation, the parties agree that no other party has a possible interest in the Disputed Area, such that they would need to be noticed in order for the court to rule on the question of whether the Town has acquired prescriptive rights in the Disputed Area.

To establish prescriptive rights over land located within the Town’s limits for public usage, the Town must show “any unexplained use for more than twenty years which is open, continuous, and notorious is presumed to be adverse and conducted under a claim of right.” Daley v. Town of Swampscott, 11 Mass. App. Ct. 822 , 827 (1981) (citations omitted). “Once the presumption [of prescriptive use] arises, the landowner has the burden of rebutting it by showing that the use was permissive.” Id. (citations omitted). Because use of property claimed by prescription as a public way will naturally not have been exclusive, that requirement (which applies in the case of adverse possession claims) does not apply. See id.

Plaintiffs rightly contend that the requirements of prescriptive use by a municipality are more strictly applied than they are in the case of such use by an individual. Thus:

a public way by prescription must be based on evidence of use by the public, adverse and continuous for a period of twenty years or more. That there was continued use by the public for more than twenty years does not in itself raise a presumption that such use was adverse. To establish such a use the further fact must be proved, or admitted, that the general public used the way as a public right; and that it did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.

Town of Boxborough v. Joatham Spring Realty Tr., 356 Mass. 487 , 490 (1969). To that end, “it is also necessary for a municipality to establish that its acts of disseisin constitute corporate action because persons of the local community and the general public are too broad a group to acquire [prescriptive rights].” Daley, 11 Mass. App. Ct. at 827-828. After noting this, the Daley court then proceeded to examine several fact-specific instances of possible corporate action:

What constitutes the requisite corporate action has never been precisely defined, although the concept has been discussed or alluded to in several cases. Mere sporadic use of private property by a municipality will not suffice. Nor will a fairly lengthy period of use qualify without some accompanying proof that the municipality authorized its employees to conduct activities on the property or without proof of ratification or general occupation by the town's citizens. On the other hand, evidence of a lease executed by agents or officers of a governmental entity in the honest but mistaken belief that they had the authority to do so, coupled with occupation and use of the property by the lessee for twenty years or more, will warrant a conclusion that the municipality is asserting rights in its corporate capacity. A determination that a town, its selectmen and citizens generally had claimed and used land for a common purpose under a purported parol gift will constitute a finding that there was a corporate action. . . . What appears to be necessary is proof sufficient to satisfy a trier of fact that the municipality has exercised dominion and control over the land in its corporate capacity through authorized acts of its employees, agents or representatives to conduct or maintain a public use thereon for the general benefit of its inhabitants.

Id. at 827-829 (quotations and citations omitted).

It is undisputed that citizens of the Town have been openly traveling via the Way for well over twenty years without any restriction on their right and ability to do so. [Note 40] Plaintiffs do not allege that they, or their predecessors in title, offered the Town (or any member of the public) permission to do so. While Plaintiffs may disagree as to the frequency of such travel on a day-to-day basis, they have not given the court any reason to discredit the testimony of the Highway Superintendent as to the regularity of such use. Moreover, the location of the Way points to it as being a convenient thruway from North Street and Southampton Street, and vice versa, which likely alleviates traffic congestion due to the convergence of these two roads.

With respect to maintenance and upkeep of the Way, the Highway Superintendent reliably testified in his deposition that, since at least 1970, Town officials and employees (a) have oiled and repaved the Way at least twice (in or about 2005 and also in the early 1990s), (b) regularly plow and sand the Way (as needed in the event of snowfall, for an estimated twenty times per annum), (c) “constantly” prune trees and collect brush obstructing the Way (as needed), and (d) regularly patch potholes in the Way (as needed). The Highway Superintendent further stated that such activities are not performed by the Town on private roads. The activities performed by the Town may not occur on a daily basis, but there is no reasonable expectation that such frequent work would be needed as to any public road. As long as the Way was in reasonably good order, it would presumably require maintenance only as often as it received it. Under the circumstances, the regularity of upkeep and maintenance work by the Town was reasonable and appropriate, and consistent with what would be expected of the Town if it, in fact, held record title to the Way -- both in terms of the nature of the activities performed and the regularity with which such activities were performed.

With respect to maintenance and upkeep of the Triangle, the Highway Superintendent reliably testified in his deposition that (at some unspecified point in time) the Town installed a drainage system on the Triangle that allows water on the surrounding roadways (including the Way) to drain, which system, he claimed, has been regularly cleaned and maintained for over twenty years by the Town. The Highway Superintendent further stated that, since at least 1970, Town officials have regularly (as needed) mowed the grass, removed dead trees, and planted new trees in the Triangle. As with the Town’s upkeep of the Way, under the circumstances, the regularity of upkeep and maintenance work by the Town in the Triangle was reasonable and appropriate, and consistent with what would be expected of the Town if it, in fact, held record title to the Triangle.

In sum, based upon the facts before the court, I find that the Town’s upkeep of the Disputed Area, and the public’s use of the Way, constitute continuous, open, and notorious use of the Disputed Area for more than twenty years. Further, given the absence of any evidence that Plaintiffs and/or their predecessors in title ever offered the Town (or any member of the public) permission to make use of the Disputed Area, I find that the Town’s upkeep of the Disputed Area, and the public’s use of the Way, constitute prescriptive use of the Disputed Area.

I thus turn to the question of whether the Town’s “acts of disseisin constitute corporate action”. Daley, 11 Mass. App. Ct. at 827-828. On this point, the Town presents evidence (in the form of deposition testimony) that their authorized employees and representatives have, for more than twenty years, openly and regularly undertaken sole responsibility for plowing, paving, and otherwise maintained the Way as a public road, and for maintaining the Triangle as land ancillary to the upkeep and use of the Way (as well as Southampton Road and North Road). [Note 41] Plaintiffs do not dispute that the Town’s representatives performed these tasks, but argue that the evidence submitted is insufficient to establish prescriptive rights.

Based upon the standard enumerated in Daley, so long as the Town’s actions can be found to have been “continuous”, and not merely “sporadic”, it would appear that the Town’s actions would qualify as “corporate action” for purposes of establishing adverse/prescriptive use. [Note 42] See Daley, 11 Mass. App. Ct. at 827-829. Based upon the evidence submitted by Defendants, I find that the Town’s upkeep of the Disputed Area is sufficient to establish continuous, regular corporate action on the part of the Town.

Having made the foregoing findings with respect to the elements of prescriptive use, I find that the Town has acquired a prescriptive easement over the Disputed Area.

D. Conclusion and Holding

Per the foregoing discussion, I find that Plaintiffs hold record title to the Disputed Area pursuant to the Release Deed and the Release Affidavit, and that such title is subject to the Town’s prescriptive easement over the Disputed Area. I find that Plaintiffs may not make use of the Disputed Area in any manner that would interfere with the Town’s exercise of its easement rights or of the public’s use of the Way as a public road. I further find that the Town’s prescriptive easement over the Disputed Area is limited in scope only to make use of the Disputed Area in the manner in which they have been used (as discussed, supra); the Town’s prescriptive rights shall not include the right to expand upon the roadway or to take actions that would result in an increase in vehicle traffic thereupon, or to make any other use of the Triangle other than to maintain same in such a manner as will ensure road safety, for aesthetic purposes (i.e., mowing), and for purposes of drainage.

In view of the foregoing discussion, Defendants’ Motion for Summary Judgment is

ALLOWED solely on Count II of Plaintiffs’ complaint (which sought permanent equitable relief, pursuant to G.L. c. 184 § 1(k)), and on Defendants’ counterclaim seeking to establish prescriptive rights over the Disputed Area pursuant to G.L. c. 240, §§ 6-10; Defendants’ Motion for Summary Judgment is otherwise DENIED in all respects. Plaintiffs’ Cross-Motion for Summary Judgment is ALLOWED solely on Count I of Plaintiffs’ complaint (which sought a declaratory judgment, pursuant to G. L. c. 231A, § 1, that Plaintiffs are the rightful fee title owners of the Disputed Area); Plaintiffs’ Cross-Motion for Summary Judgment is otherwise DENIED in all respects.

Judgment in favor of Plaintiffs on Count I of their complaint, and in favor of Defendants on Count II of Plaintiffs’ complaint (DISMISSING same) and on Defendants’ prescriptive rights counterclaim to issue accordingly forthwith.