MISC 13-478050

August 9, 2017

Bristol, ss.



Plaintiffs in this case, Debra L. Robbins, individually and as Trustee of the Bay View Realty Nominee Trust, and Outdoor Ventures, LLC, seek a declaratory judgment that, as owners of certain parcels of land in the Shove's Neck area of Berkley, Massachusetts, they are the holders and beneficiaries of two right of way easements across land owned by Defendant Robert A. Chamberlain, [Note 1] and that they are entitled to improve said rights of way (Count I). They further ask the court to determine and fix the locations and dimensions of the claimed right of way easements (Count II), and to order Chamberlain to remove a cranberry bog and to otherwise refrain from interfering with Plaintiffs' use of the rights of way (Count III). Chamberlain denies that there are any rights of way across his lots for the benefit of Plaintiffs' land, and has counterclaimed for declarations that any rights of way which might have benefitted Plaintiffs' land have been terminated through adverse possession, extinguished by abandonment, or by obsolescence and frustration of purpose (Counterclaims I through III). Chamberlain has also counterclaimed against Robbins for overburdening (Counterclaim IV), for interference with advantageous economic relations (Counterclaim V), and for interference with contractual relations (Counterclaim VI).

On October 9, 2015, Plaintiffs filed a Motion for Partial Summary Judgment under Count I of their Amended Complaint for a declaration that they hold valid and enforceable rights of way over the Chamberlain land as a matter of record, and under Defendant's Counterclaims I and II, for a declaration that said rights of way have not been terminated by abandonment, prescription, or estoppel. On October 16, 2015, the Defendant filed a Motion for Summary Judgment on all Counts in the Plaintiffs' Amended Complaint, as well on all of Defendants' Counterclaims. Plaintiffs' Opposition to Defendant's Motion for Summary Judgment was filed on November 10, 2015. Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment, and Defendant's Motion to Strike the Affidavit of Richard Serkey accompanying Plaintiff's Motion for Partial Summary Judgment, were both filed on December 4, 2015. On January 25, 2016, Plaintiffs filed a Reply to Defendant's Opposition to Summary Judgment and Opposition to Defendant's Motion to Strike. The court took the Parties' Motions under advisement following a hearing held on February 16, 2016. A Summary Judgment Decision was issued on August 9, 2017.

Now, in accordance with that Summary Judgment Decision, it is hereby:

ADJUDGED, ORDERED and DECLARED under Count I of Plaintiffs' Amended Complaint, that Plaintiffs do not have the benefit of any right of way easements across Defendant Chamberlain's Lots 4 and 16. And it is further

ADJUDGED and ORDERED that, because Plaintiffs have failed to establish their claimed right of way easements over the Chamberlain land, their remaining claims under Counts II and III, seeking to locate the claimed rights of way, and to enjoin Chamberlain from interfering with their use of the claimed rights of way, are hereby DISMISSED as moot. And it is further

ADJUDGED and ORDERED that Defendant's Counterclaims I through III claiming termination or abandonment of Plaintiffs' claimed rights of way are hereby DISMISSED as moot. And it is further

ADJUDGED and ORDERED that Defendant's Counterclaims IV and V, which sound in contract or tort and involve no right, title or interest in land, are hereby DISMISSED for lack of subject matter jurisdiction.



[Note 1] The complaint was originally filed against Elmer Chamberlain as the sole Defendant. Elmer Chamberlain died on June 21, 2015, and Robert Chamberlain was substituted as the Defendant upon an assented-to motion filed on July 24, 2015.