This case commenced in this court August 3, 2007. After the court issued an Order (Order) on October 12, 2010, granting partial summary judgment, this case came on to be tried to the court (Piper, J.). In a decision (Decision) dated July 2, 2014, the court made findings of fact and rulings of law, and decided that judgment affording declaratory and injunctive relief was to enter.
This court entered judgment in this action July 2, 2014. That judgment then was reviewed on appeal in the Appeals Court. On October 26, 2015, the Appeals Court, in a memorandum and order pursuant to its Rule 1:28, affirmed the judgment, except only for so much of it as held that, as a matter of law, plaintiff Anarpet Realty Corp. lacked standing to obtain judgment on the plaintiff Anarpets allegations that defendants had overloaded and overburdened one of the rights of way at issue in this litigation, that referred to as the 12 foot right-of-way.
The Appeals Court remanded this action to this court for limited further proceedings. This court was directed to consider the merits of Anarpets claims of overloading and overburdening of the 12 foot right-of-way. No other proceedings were authorized or directed by the Appeals Court; it left unaltered the remainder of the judgment this court had entered. Rescript issued November 23, 2015. Anarpet Realty Corp. v. Stutz Motor Car Co., Inc., 88 Mass. App. Ct. 1110 (2015)(No. 14-P-1386). The court (Piper, J.) conducted further proceedings on remand, and in a decision of even date, has made further findings of fact and rulings of law.
In accordance with the courts Decision issued today, its Decision of July 2, 2014, and its October 12, 2010 Order granting partial summary judgment, it is
ORDERED, ADJUDGED, and DECLARED that the owners of lots [Note 1] 563A, 564, 565, and 566 as shown on the 11802D plan, and lots 575, 661, 660, and 659 as shown on the 11802- 26 plan, each own the fee in the portion of Green Ledge Street (depicted on both the 11802D and 11802-26 plans) to the midline of the portion of the way directly in front of the respective lots owned by them in fee, in a manner consistent with the courts July 2, 2014 Decision and the derelict fee statute, G. L. c. 183, § 58; as to the portions of Green Ledge Street not owned in fee by each of the respective lot owners, those owners of those lots each have, as appurtenant to their lots, and running with the title to them, easements to use the full length of Green Ledge Street, in common with others entitled thereto, for all purposes for which public ways are or may be ordinarily used, subject to the provisions of this Judgment After Rescript. Lots 561 and 562 on the 11802D plan do not have appurtenant easements over Green Ledge Street by virtue of a theory of easement by estoppel based on the conveyance of lots shown on a recorded plan, described in the Order and Decisions. It is further
ORDERED, ADJUDGED, and DECLARED that the fee owners of lots 587, 589, 652 as shown on the 11802-26 plan, and lots 567K and 567H as shown on the 11802-2 plan, each have, as appurtenant to their lots, and running with the title to them, an easement for passage on foot and by vehicle over the passageway shown as WAY (12.00 wide) on the 11802-26 plan (and referred in the courts decisions as the 12 foot right-of-way). It is further
ORDERED, ADJUDGED, and DECLARED that neither the owners of lot 567H nor the owners of lot 589 have any fee title in and to the 12 foot right-of-way. It is further
ORDERED, ADJUDGED, and DECLARED that it does not overload the easement over Green Ledge Street when vehicles (which are entitled to access and use lot 660) cross lot 660 to access lot 589, or when vehicles (which are entitled to access and use lot 589) cross lot 589 to access lot 660 or Green Ledge Street. It is further
ORDERED and ADJUDGED that the plaintiff is not entitled to any order of the court directing the removal or alteration of the following alleged encroachments, to the extent they now may be present within the layout of Green Ledge Street: any utility pole within the layout of Green Ledge Street in front of or in the vicinity of lot 661, and the building on lot 563A, including any overhead projection of and from the building. It is further
ORDERED and ADJUDGED that Count Four (Nuisance) of the plaintiffs January 11, 2013 Amended Complaint is DISMISSED without prejudice. It is further
ORDERED and ADJUDGED that plaintiff has standing to assert there has been an overloading and an overburdening of the 12 foot right-of-way. It is further
ORDERED and ADJUDGED that the uses made by the defendants and by each of them does not, separately or in the aggregate, constitute--as against the plaintiff Anarpet as the holder, appurtenant to its Lot 567H, of nonexclusive easement rights to use the 12 foot right-of-wayan overburdening of those easement rights which defendants do hold in the 12 foot right-of-way, as the rights of Anarpet and defendants in the 12 foot right-of-way now are used. It is further
ORDERED, ADJUDGED, and DECLARED that use of the 12 foot right-of-way by the defendants, for passage on foot or by vehicle to serve or benefit any of the lots owned by any the defendants (other than lot 589) constitutes--as against the plaintiff Anarpet as the holder, appurtenant to its Lot 567H, of nonexclusive easement rights to use the 12 foot right-of-wayan overloading of the rights defendants do have to use the 12 foot right-of-way, which are appurtenant to lot 589. Any such use of the 12 foot right-of-way to serve or benefit lots of the defendants other than lot 589 is not permitted under any right or easement available to the defendants. The adjudication made in this paragraph of this Judgment After Rescript is without prejudice to the rights of the parties to bring another action should the common law on which this adjudication is based, as provided in the Decision issued today, be materially altered by any decision later issued by the Supreme Judicial Court. It is further
ORDERED, ADJUDGED, and DECLARED that Plaisted Properties, LLC; Hometown Auto Framingham, Inc.; Stutz Motor Car, Inc.; Stutz Plaisted, individually and as trustee of Stutz Realty Trust; and the principals, officers, agents, representatives, employees, lessees, and family members of each of them (and others acting in concert with any of them), who have actual knowledge of this Judgment, are hereby PERMANENTLY ENJOINED and RESTRAINED from:
1. Knowingly entering on foot or by vehicle upon any portion of lot 661, exclusive of any portion which is within the paved layout of Green Ledge Street.
2. Knowingly unloading or loading--while they or any material part of them are stopped, parked, or standing on any of the pavement of the layout of Green Ledge Streetany car carriers, car carrier trailers, or other automobile transport vehicles and trailers.
3. Knowingly maneuvering car carriers, car carrier trailers, or other auto transport vehicles and trailers (or suffering, causing or allowing any of them to be maneuvered) in reverse for the length of, or a substantial portion of the length of, Green Ledge Street. This prohibition is intended to prevent these car carriers and similar vehicles from backing down on Green Ledge Street, but shall not prevent or prohibit vehicle maneuvers and movements that require limited and otherwise safe temporary movement in a reverse direction, including without limitation, those maneuvers and movements involved in moving into and out of lot 575 from and to Green Ledge Street.
It is further
ORDERED that the Order, the Decision dated July 2, 2014, and todays Decision, and this Judgment After Rescript issued pursuant to them, 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. It is further
ORDERED that upon this Judgment After Rescript becoming final, the parties each may apply to this court for appropriate orders to the Assistant Recorder of the Essex (South) land registration district to make, consistently with this Judgment After Rescript, changes, alterations, or additions to their several outstanding certificates of title pursuant to G. L. c. 185, § 114. It is further
ORDERED that, except as expressly provided in this Judgment After Rescript, no other or different relief (and no damages, fees, costs, or other amounts) are awarded to any party.
By the Court.
[Note 1] All terms used in this Judgment have, unless plainly indicated otherwise, the meanings given them in the Decisions and the Order.