THOMAS P. CAPPELLUZZO v. RINKOO-TEI REALTY, LLC, and PLUM ISLAND GRILLE, INC.

This action commenced on September 16, 2013, as an action in which the plaintiff seeks to establish rights by adverse possession or in the alternative by prescriptive easement. The case came on for trial by the court (Speicher, J.). In a decision of even date, the court has made findings of fact and rulings of law. In accordance with the court’s decision, it is

ORDERED and ADJUDGED that on Count I of the First Amended Complaint (Adverse Possession), judgment is hereby entered for the defendants dismissing said count, and it is further

ORDERED and ADJUDGED that on Count II of the First Amended Complaint (Prescriptive Easement), an appurtenant prescriptive easement is hereby established for the benefit of the plaintiff’s property known as 5 Sunset Drive, Newbury, Massachusetts, to pass and repass over an area on the property of the defendants located at 2 Plum Island Boulevard, Newbury, Massachusetts, and more particularly shown as the area between the “existing fence” and the southerly boundary of the property of the defendants at said 2 Plum Island Boulevard on a plan entitled, “Existing Conditions Plan 2 Plum Island Boulevard Newbury, Massachusetts”, sheet 1 of 2, as revised May 22, 2013, a copy which is attached hereto as “Addendum A” and incorporated herein, and extending from the westerly end of the “existing fence” as shown on said plan to the utility pole presently at the edge of Sunset Drive to the west of the westerly end of said existing fence (hereinafter collectively, the “Easement Area”); said prescriptive easement to be limited to pedestrian passage to and from Sunset Drive and the bulkhead on the north side of the house at 5 Sunset Drive and pedestrian passage to and from the side and rear of said house for oil and propane deliveries and servicing of electric, telephone and cable television facilities presently existing on said property; ALSO a prescriptive easement is hereby established for the maintenance, repair and replacement of electric power lines, cable television lines and telephone lines in the same location as now existing under the Easement Area; and no other relief is granted to plaintiff under said Count II; and it is further

ORDERED and ADJUDGED that the defendants may make any use of the Easement Area not inconsistent with the prescriptive easement right granted herein; and it is further

ORDERED and ADJUDGED that on Count III of the First Amended Complaint (Cloud on Title), judgment is hereby entered for the defendants dismissing said count, and it is further

ORDERED and ADJUDGED that on Count IV of the First Amended Complaint (Trespass), judgment is hereby entered for the defendants dismissing said count; and it is further

ORDERED, ADJUDGED and DECLARED that on Claim for Relief under G. L. c. 231A, Section 1, of the First Amended Complaint, plaintiff has acquired no rights by adverse possession, and has acquired certain rights of easement by prescription as stated in this Judgment; and it is further

ORDERED and ADJUDGED that on Count I of the defendants’ Counterclaim (Trespass), judgment is hereby entered for defendants permanently enjoining plaintiff from occupying, improving or placing any improvements or personalty in the Easement Area except to the extent specifically permitted by the rights of prescriptive easement granted herein; and it is further

ORDERED that today’s decision, and this Judgment issued pursuant thereto, dispose of this entire case; the court has adjudicated or dismissed all claims by all parties in this action and has not reserved decision on any claim or defense, and it is further

ORDERED that no costs, fees, damages or other amounts are awarded to any party.

By the Court