MISC 16-000697

August 28, 2018

Dukes, ss.



George Rivera and Robin S. Rivera (Riveras) filed the Complaint in this action on November 12, 2016. The Defendants' Answer, Affirmative Defenses, and Jury Demand (Ans.) were filed on December 19, 2016. The Plaintiff's Answer to Counterclaim was filed on January 3, 2017. At a case management conference held on January 17, 2017, the Defendants waived the jury demand in their counterclaim and it was determined that the Defendants would file their counterclaim for trespass in the Superior Court and seek an interdepartmental assignment so that it could be heard with this action. The Defendants filed their, complaint for trespass in the Superior Court, see case No. 1774CV00021 (Superior Court Action), on April 19, 2017. I was authorized to sit as a Justice of the Superior Court Department to hear the trespass claims in the Superior Court Action on May 18, 2017.

The Plaintiffs' Motion for Summary Judgment, Memorandum in Support of Plaintiffs' Motion for Summary Judgment, and Plaintiffs' Statement of Material Facts were filed on July 7, 2017. The Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Cross- Motion for Summary Judgment was filed on August 7, 2018. The motions for summary judgment were heard and taken under advisement on September 8, 2017.

At a telephone conference call held on September 26, 2017, the court instructed the parties to provide supplemental record and briefing and to decide whether the cross-motions for summary judgment should be treated as a case stated. At a telephone conference call held on October 16, 2017, the cross-motions for summary judgment were converted to a case stated pending a trial for the purposes of cross-examining each party's expert. The Memorandum on Plaintiffs' Supplemental Title Affidavit and Expert Report in Further Support of plaintiffs' Motion for Summary Judgment, Second Affidavit of Douglas O. Dowling, PLS, and Second Supplemental Affidavit of Edward Rainen were file on January 12, 2018. The Defendants' Supplemental Brief in Support of Cross-Motion for Summary Judgment was filed on March 21, 2018. The Joint Pre-trial Conference Memorandum was filed on March 30, 2018. A trial was held on April 11, 2018. The court reporter was sworn. Exhibits 1A and 1-9, with sub-exhibits were admitted. Testimony was heard from Edward Rainen, Kathleen O'Donnell, and Douglas Dowling, after which the parties rested. The Defendants' Post-Trial Brief was filed on June 12, 2018. The Plaintiffs' Post-Trial Memorandum was filed on June 13, 2018. The court heard closing arguments on June 19, 2018, and took the case 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 the property located at 88 Quenames Road, Chilmark, Massachusetts (Rivera Property) is benefitted by an easement by estoppel for the use of Quenames Road for ingress and egress. The Rivera Property is identifiable as lots 2A and 2B on a plan entitled “Plan of Land in Chilmark, Massachusetts prepared for George Rivera,” dated December 26, 2012, recorded with the Registry of Deeds for the County of Dukes County (registry) in Plan Book 18, Page 32, and attached here as Exhibit A. It is further

ORDERED, ADJUDGED, and DECLARED that pursuant to G.L. c. 187, § 5, the Riveras as owners of the Rivera Property have the right to lay utilities in Quenames Road. It is further

ORDERED, ADJUDGED, and DECLARED that a copy of this judgment may be filed in the registry and marginally referenced on all relevant documents.

By the Court

exhibit 1

Exhibit A