Walter J. Walsh (Walsh) filed his complaint (Complaint) in this action on January 11, 2012, naming Matthew J. Fitzgibbon and Cynthia Fitzgibbon (Fitzgibbons) as defendants. The Complaint seeks a declaration and to try title, pursuant to G.L. c. 185, § 1 (k) and G.L. c. 240, §§ 1-5, to establish ownership of a disputed area along the boundary line shared with property belonging to the Fitzgibbons (Count I) and title by adverse possession of the disputed area (Count II). On March 10, 2012, the Fitzgibbons filed their Answer and Counterclaims, and on May 15, 2015, filed their Amended Counterclaims. The Amended Counterclaims include four counts: Declaratory Judgment (Count I), Removal of Encroachments (Count II), Trespass to Trees (Count III), and Trespass (Count IV). On May 4, 2016, the court allowed the substitution of Regina Walsh Sullivan, as Trustee of Walter J. Walsh Irrevocable Trust (Trust), as plaintiff in this action.
The Trust is the record owner of 378 Pond Street, Westwood, Massachusetts, by a deed from Walter J. Walsh, Jr. as Trustee of the 378 Pond Street Realty Trust, recorded on March 1, 2016, with the Norfolk County Registry of Deeds (registry) in Book 33889, Page 293 (Walsh Property). The Fitzgibbons are the record owners of 384 Pond Street, Westwood, Massachusetts, by deed dated June 19, 2002, and recorded with the registry in Book 16752, Page 182 (Fitzgibbon Property). Both properties originate from a plan entitled Plan of Fellowship Farm, Westwood, Mass. Showing Subdivision, dated November 1912 and recorded with registry as Plan No. 3152 in Plan Book 66 (Fellowship Plan). The Fellowship Plan shows eight original parcels along Pond Street in Westwood, Massachusetts (Fellowship Subdivision).
This case was tried on May 4, 2016, and July 6, 2016. Plaintiff's Requests for Findings of Fact, Plaintiff's Request for Rulings of Law, Plaintiff's Post Trial Memorandum, Defendants' Requests for Findings of Fact and Rulings of Law, and Defendants' Post Trial Argument were filed on September 8, 2016. The court heard closing argument on September 21, 2016, and took the matter under advisement. In a Decision of even date, the court (Foster, J.) has made findings of fact and rulings of law.
In accordance with the court's Decision issued today, it is
ORDERED, ADJUDGED and DECLARED that, on Count I of the Complaint and Count I of the Amended Counterclaim, the record boundary line between the Walsh Property and the Fitzgibbon Property is located at the boundary line between Lot 4 ad Lot 5 shown in the 2010 survey completed by Rod Carter (Carter Plan), attached here as Exhibit A, based on the location of boundaries and monuments shown on the Fellowship Plan and a plan of land showing the relocation and widening of Pond Street dated April 28, 1931, and recorded with the registry in Plan Book 113, Page 332-335. It is further
ORDERED, ADJUDGED and DECLARED that, on Count I of the Complaint and Count I of the Counterclaim, the driveway lying near the common boundary between the Walsh Property and the Fitzgibbon Property is located entirely within the bounds of the Walsh Property, as shown on the plan attached hereto as Exhibit A. It is further
ORDERED and ADJUDGED that Count II of the Complaint is DISMISSED without prejudice. It is further
ORDERED and ADJUDGED that Counts II, III, and IV of the Amended Counterclaim are DISMISSED without prejudice. It is further
ORDERED and ADJUDGED that nothing in this Judgment shall extend to any person holding an interest in any of the other original lots in the Fellowship Subdivision abutting Pond Street as shown on the Fellowship Plan who has not been named as a party to this proceeding in this court. It is further
ORDERED that, upon payment of all fees established by law, this Judgment, or a certified copy of it, may be recorded with the registry and may be marginally referenced on any relevant instruments.
By the Court.