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.

Plaintiffs Louanne and George Athanasiou (together, “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 a triangular parcel of land (the “Triangle”) and traveled way (the “Way”) (together, the “Disputed Area”) abutting property owned by Plaintiffs (“Locus”) [Note 1] located on the westerly side of Southampton Road (previously called Orcutt Road) and on the easterly side of North Road in Westhampton, Massachusetts, and (b) permanent equitable relief, pursuant to G.L. c. 184 § 1(k), estopping Defendants Town of Westhampton (“the Town”) and Board of Selectmen of Westhampton (together, “Defendants”) from taking certain actions with respect to the Disputed Area in the event that relief were to be granted on Plaintiffs’ declaratoryclaim. Defendants filed ananswer 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.” A case management conference was held on July 10, 2013, at which point the parties entered into the discovery phase of this case.

On May 15, 2014, Defendants moved for an order ofsummaryjudgment, 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 (Northampton 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 bya memorandum of law, a response to Defendants’ statement of materialfacts and statement of additional material facts, and an affidavit of Michael Pill (Plaintiffs’ counsel). [Note 2] 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 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 the late-filed documents submitted by Plaintiffs.

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 Plaintiffs’ motion to admit late-filed documents is hereby ALLOWED solely to the extent that the court will admit into the summary judgment record (by consent of the parties) only (a) the deed dated August 8, 2014 and recorded in the Registry at Book 11728, Page 38 (the “Release Deed”) from Nannette B. Mascho, Alan W. Fuller, Cheryl M. Bobala (“Cheryl”), Susan M. Fuller, Carolyn Fuller Coggins, and Robert L. Fuller (who claim [Note 3] to be the only remaining descendants of Herbert F. Mascho and Marion M. Mascho (“Marion”)) to Plaintiffs, and (b) the Release Affidavit; Plaintiff’s motion to admit late-filed documents is otherwise DENIED; and,

ORDERED and ADJUDGED that Defendants did not commit anydiscoveryviolation in not disclosing Klein as an expert witness, and that there is no basis upon which Plaintiffs would be entitled to depose Klein; and,

ORDERED and ADJUDGED that Plaintiffs’ motion to strike Klein’s affidavit is

ALLOWED solely to the extent that all portions of Klein’s affidavit purporting to offer expert testimony and/or legal opinion are stricken; Plaintiffs’ alternative request to stay summary judgment and for leave to depose Klein is DENIED; and,

ORDERED and ADJUDGED that the parties’ assented-to motion to construe Defendants’ prescriptive rights affirmative defenses in their answer as counterclaims is ALLOWED; Defendants’ answer is hereby 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 are hereby deemed to generally deny the allegations contained in Defendants’ counterclaims, so construed; and,

ORDERED and ADJUDGED that there is no material issue of disputed fact in contention as to the Town’s factual allegations pertaining to its (and the public’s) alleged use of the Disputed Area; and,

ORDERED and ADJUDGED that there is no material issue of disputed fact in contention as to Plaintiffs’ claim to record title to the Disputed Area; and,

ORDERED and ADJUDGED that neither the deed dated August 21, 1968 and recorded in the Registry at Book 1536, Page 416 from Marilyn A. Fuller, as executor of the will of Marion to Charles Bobala and Cheryl nor any subsequent deed in Locus’s chain of title prior to 2012 included the Disputed Area; and,

ORDERED and ADJUDGED that the Release Deed effectively conveyed to Plaintiffs the fee title interest in the Disputed Area; and,

ORDERED and ADJUDGED that the Town’s upkeep ofthe 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; and,

ORDERED and ADJUDGED that the Town’s upkeep ofthe Disputed Area, and the public’s use of the Way, constitute adverse use of the Disputed Area; and,

ORDERED and ADJUDGED that the Town’s upkeep of the Disputed Area is sufficient to establish continuous, regular corporate action on the part of the Town; and,

ORDERED and ADJUDGED that the Town has acquired a prescriptive easement over the Disputed Area; and,

ORDERED and ADJUDGED that Plaintiffs hold record title to the Disputed Area pursuant to the Release Deed and the Release Affidavit, and such title is subject to the Town’s prescriptive easement over the Disputed Area; and,

ORDERED and ADJUDGED 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; and,

ORDERED and ADJUDGED 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 in the Decision); 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 upon the Way, or to make any other use of the Disputed Area 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; and,

ORDERED and ADJUDGED that 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; and,

ORDERED and ADJUDGED that 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; and,

ORDERED and ADJUDGED that Judgment is hereby awarded in favor of Plaintiffs on Count I of their complaint; and,

ORDERED and ADJUDGED that Judgment is hereby awarded in favor of Defendants on Count II of Plaintiffs’ complaint, which is hereby DISMISSED, with prejudice; and,

ORDERED and ADJUDGED that Judgment is hereby awarded in favor of Defendants on Defendants’ prescriptive rights counterclaim.

By the court.