KUBIK vs. AUDETTE, MISC 13-480929

The dispute in this case centers on the Parties' respective rights in a private right of way shown on a 1948 subdivision plan as leading to Webster Lake, a great pond located in Webster, Massachusetts. All of the Parties [Note 1] to this case are lot owners in the same subdivision bordering the Lake. The right of way in dispute runs between Vince Kubic's and Paul Kubik's lakeside lots. Within the last ten years, Defendant, David Audette (whose lot is within the same subdivision but does not abut the Lake) re-graded the right of way and installed a seasonal dock projecting into the Lake. Since then, the Plaintiffs and Audette have clashed over the scope of their respective rights in the subject right of way.

The court held a pre-trial conference on July 18, 2017, at which time a two-day trial and a view were scheduled. The court took a view on October 24, 2017. The trial commenced on December 14, 2017. At Plaintiffs' request, the second day of trial was continued from December 15, 2017 to January 12, 2018.

Following receipt of the official trial transcripts, the Defendant filed his Request for Findings of Fact and Rulings of Law, together with a memorandum in support thereof, on March 7, 2018. The Plaintiffs filed their Proposed Findings of Fact and Requested Rulings of Law on March 9, 2018, together with a "Motion to Amend the Pleadings to Conform to the Evidence under Mass. R. Civ. P. 15(b) (the "Motion to Conform"). [Note 2] The Commonwealth filed an amicus brief on July 27, 2018.

Now, for the reasons discussed in the Trial Decision issued January 17, 2019, it is hereby:

ORDERED, ADJUDGED, and DECLARED that Plaintiff Vince Kubic owns the fee in the northern half of the Right of Way, to the centerline thereof, as shown on a subdivision plan approved by the Webster Planning Board on September 18, 1951, entitled "Plan of Lots Owned by Arthur & Doriza L. Robinson, Webster, Mass," dated September 11, 1948, and recorded on July 16, 1953 with the Registry at Plan Book 191, Plan 16 (the "1948 Plan"), by retroactive operation of G.L. c. 183, § 58; and it is further,

ORDERED, ADJUDGED, and DECLARED that Plaintiff Paul Kubik owns the fee in the southern half of the Right of Way, to the centerline thereof, as shown on the 1948 Plan, by retroactive operation of G.L. c. 183, § 58; and it is further,

ORDERED, ADJUDGED, and DECLARED that Plaintiff Vince Kubic holds an easement by estoppel, appurtenant to Lot 15, over the southern half of the Right of Way as shown on the 1948 Plan; and it is further,

ORDERED, ADJUDGED, and DECLARED that Defendant David Audette's deeded easement to use the Right of Way as access to Webster Lake includes use of the Right of Way for personal vehicular access and parking, by himself and his household members, as may reasonably necessary for his full enjoyment of the right to access Webster Lake, so long as such vehicular access and parking is conducted in a manner that does not interfere with the use and enjoyment of the Right of Way by others who have rights therein; that Defendant Audette's right to use the Right of Way to access Webster Lake also includes the right to make reasonable repairs and improvements to the Right of Way, including (but not limited to) re-grading and paving to improve accessibility; and that Defendant Audette's rights to use the Right of Way include the right to permit his guests to access the Lake over the Right of Way by foot, but do not extend to permit routine vehicular access and parking by his guests on the Right of Way; and it is accordingly further,

ORDERED that Defendant David Audette, and his successors and agents, are hereby permanently enjoined from overburdening the easement by permitting routine vehicular travel and parking on the Right of Way by guests and invitees; and it is further,

ORDERED and ADJUDGED that the claims set forth Counts VI through X of the Second Amended Complaint are Dismissed.

SO ORDERED.

[Note 1] All of the so-called "Interested Parties" have been defaulted pursuant to Mass. R. Civ. P. 55(a) for failure to answer. Further references to the "Parties" in this case shall refer to the Plaintiffs, Vince Kubic and Paul Kubik, and the Defendant, David Audette, unless the context notes otherwise.

[Note 2] The Motion to Conform was taken under advisement to be ruled on in conjunction with this trial decision. The Order Denying Plaintiffs Motion to Amend the Pleadings to Conform to the Evidence entered on January 17, 2019.

MISC 13-480929

January 17, 2019

Worcester, ss.

CUTLER, J.

JUDGMENT