Plaintiffs Jeffrey W. Schwarz, Trustee under the will of Hazel F. Schwarz (Schwarz) and 83 Harborview, LLC (Harborview) filed their Verified Complaint on September 20, 2011, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to the ownership and use of a parcel of land in Vineyard Haven, Massachusetts known as Horton Lane (the ROW) [Note 1] leading to a forty foot cliff over Vineyard Haven Harbor (the Harbor), and alleging trespass by Defendants on a portion of the ROW. [Note 2] Plaintiffs also sought a preliminary injunction restraining Defendants from entering a portion of the ROW. A hearing was held on the Motion for Preliminary Injunction on September 29, 2011, which none of Defendants attended, and on October 4, 2011, this court allowed Plaintiffs Motion for Preliminary Injunction, restraining Defendants from any cutting, clearing, construction activity or testing on the ROW, which they had been allowed to do pursuant to the Superseding Order. Defendant Katherine A. Tate (Tate) filed her Answer on October 14, 2011. [Note 3] A case management conference was held on November 15, 2011.
Plaintiffs filed their Motion for Summary Judgment on January 19, 2012, together with supporting memorandum. Tate filed her Opposition and Cross-Motion on February 17, 2012, together with supporting memorandum. On September 10, 2012, Plaintiffs filed their Opposition and Reply. A hearing on all motions was held on December 5, 2012, and the matter was taken under advisement. A decision of todays date has been issued (the Decision). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that the 1907 Deed [Note 4] conveyed only the fee interest in the southerly half of the ROW adjacent to Defendant Property [Note 5] as a part of Defendant Property.
ORDERED and ADJUDGED that the ROW extends over the bluff and to the Harbor.
ORDERED and ADJUDGED that Defendant Property has an easement by estoppel to use the ROW to its full extent for access purposes, and, implied within this right, Defendant Property has a right, subject to permitting requirements, to construct a staircase down the cliff in order to access the Harbor at the end of the ROW.
ORDERED and ADJUDGED Tates Motion for Summary Judgment is ALLOWED with respect to her easement by estoppel in the ROW extending to the Harbor and her right to construct a staircase over the cliff in order to access the Harbor, and Plaintiffs Motion for Summary Judgment is DENIED.
By the Court. (Sands, J.)
[Note 1] As discussed at the case management conference and as shown in photographs attached to the summary judgment motions, the ROW is a 30 foot wide cleared dirt path which becomes overgrown at a bluff on the east end which leads down to the Harbor (as hereinafter defined).
[Note 2] Plaintiffs filed their First Amended Verified Complaint on September 23, 2011, adding information relative to a Superseding Order of Conditions dated September 21, 2011 (the Superseding Order).
[Note 3] None of the other Defendants have appeared or filed Answers. On October 27, 2011, Plaintiffs filed a Request for Default against Brooker and Nathans. On April 16, 2013, Plaintiffs filed a Request for Default as to all Defendants other than Tate, which was allowed on April 17, 2013.
[Note 4] Deed from George Soren to Grace Soren dated February 19, 1907, and recorded with the Dukes County Registry of Deeds at Book 117, Page 532.
[Note 5] Defendants own property fronting on the southerly side of the ROW, shown as Parcels 1-6 on Tisbury Assessors Map 4.