Plaintiff the First Congregation Church of Harwich (Church) filed its Verified Complaint in this action on July 6, 2015, naming as Defendants Cynthia A. Eldredge, Warren Nichols, Wilfred Remillard, as members of the Cemetery Commission of the Town of Harwich (Cemetery Commission), and the Town of Harwich (Town). The Verified Complaint contains four counts: Count I) Declaratory Relief pursuant to G.L. c. 231A; Count II) Quiet Title pursuant to G.L. c. 240, §§6-10; Count III) Adverse Possession; and Count IV) Declaratory Relief pursuant to G.L. c. 185, §1(k) and G.L. c. 231A. The Town filed its Answer and Counterclaim on September 11, 2015. The Counterclaim contained four counts: Count I) Quiet Title; Count II) Adverse Possession; Count III) Prescriptive Easement; and Count IV) Nuisance. On September 22, 2015, the Church filed its Answer to the Counterclaim of the Town.
The Church's claims and the Cemetery Commission's and Town's counterclaims concern the portion of the land described in the deed from Samuel Nickerson and Benjamin Smalley dated March 8, 1743, and recorded in the Barnstable Registry of Deeds (registry) in Book 22, Page 115, and subsequently on July 22, 1955 in Book 1306, Page 244 (the 1743 Deed) that is currently used as a cemetery (Cemetery) and, in particular, an area of the Cemetery in which cremains are interred (the Memorial Garden).
On November 18, 2016, the parties filed a report with the court agreeing to submit this case on a case-stated basis. On January 20, 2017, the Church filed its Motion for Summary Judgment. On February 21, 2017, the Town filed its Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. A view was taken on March 6, 2017. The cross-motions for summary judgment came to be heard on March 10, 2017, and were taken 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 of even date, it is
ORDERED, ADJUDGED and DECLARED that the Church holds record title to the Cemetery under the 1743 Deed and the deed from the First Congregational Church of Harwich dated February 21, 1899, and recorded in the registry in Book 236, Page 310 on March 29, 1899. It is further
ORDERED, ADJUDGED and DECLARED that the Church holds title to the Memorial Garden by adverse possession. It is further
ORDERED, ADJUDGED and DECLARED that the Town and the Cemetery Commission have no authority to order the disinterment of cremains interred in the Memorial Garden. It is further
ORDERED, ADJUDGED and DECLARED that the Town and the Cemetery Commission have the authority to bar the further interment of cremains in ground directly over unmarked graves.
By the Court.
FIRST CONGREGATIONAL CHURCH OF HARWICH v. CYNTHIA A. ELDREDGE, WARREN NICHOLS, and WILFRED REMILLARD, as they are members of the CEMETERY COMMISSION OF THE TOWN OF HARWICH, and not individually, and the TOWN OF HARWICH.