KENNETH KOGA vs. RICHARD W. SOUTHGATE, JR., and JOANNE C. SOUTHGATE.

Plaintiff filed his Complaint to Quiet Title on December 19, 2011, pursuant to G. L. c. 240, §§ 6-10, seeking to quiet title to a portion of his property (the “Disputed Area”) located at 87 Western Avenue, Essex, Massachusetts (“Plaintiff Property”). Defendants, Richard Southgate, Jr. (“Southgate, Jr.”) and Joanne Southgate (“Joanne”) (together “the Southgates”), owners of property located at 85 Western Avenue, Essex, Massachusetts (“Defendant Property”) filed their Answer on January 12, 2012, in which they raised adverse possession as an affirmative defense.

A case management conference was held on January 23, 2012. The plaintiff filed a Joint Statement of Undisputed Facts on September 18, 2012, together with Affidavits of John Duncan, William Patrick, Sheila Anderson, Constance F. Perrigo, Jeffrey E. Anderholm, Teri W. Anderholm, Timothy Gerard Meagher, Susan Smith Talbot, Michael Buckley, Jackie Buckley, Garry Turner, Erin Turner, Richard Southgate III, Sara Richards and Barry Richards. A status conference was held on September 25, 2012, at which time this case was converted to a trial. A pre-trial conference was held on October 26, 2012. The Southgates filed their Statement of Undisputed Facts on November 27, 2012, together with Affidavits of the Southgates. Plaintiff filed his Statement of Additional Undisputed Material Facts on December 3, 2012. A view was held on December 19, 2012. The trial was held at the Land Court in Boston, Massachusetts on January 17, 2013 and January 18, 2013. At the commencement of the trial, the Southgates filed a Motion for Agreement of Stipulated Facts. Plaintiff filed his Opposition to such motion on January 24, 2013. Both parties filed Motions for a Directed Verdict at the conclusion of evidence given by Plaintiff and the Southgates, and this court declined to act on either motion at that time. A post-trial brief was filed on March 20, 2013 by the Southgates and on March 21, 2013 by Plaintiff and at that time the matter was taken under advisement.

Testimony at trial was given by Plaintiff’s witnesses David Dwyer (professional land surveyor) and Kenneth Koga (Plaintiff). Testimony at trial for the Southgates was given by Richard Southgate, Jr. (Defendant) and Joanne Southgate (Defendant). Forty-two exhibits were submitted into evidence, some in multiple counterparts. A decision of today’s date (the “Decision”) has been issued.

In accordance with the Decision, it is:

ORDERED and ADJUDGED that the Southgates’ Motion for an Order Specifying Stipulated Facts is ALLOWED.

ORDERED and ADJUDGED that the credibility of Southgate, Jr. is not an issue in this case.

ORDERED and ADJUDGED that the Southgates have shown continuous use of the Disputed Area for a period in excess of twenty years.

ORDERED and ADJUDGED that the Southgates have shown actual use of the Disputed Area for a period in excess of twenty years.

ORDERED and ADJUDGED that the Southgates’ use of the Disputed Area was open and notorious for a period in excess of twenty years.

ORDERED and ADJUDGED that the Southgates’ use of the Disputed Area was exclusive for a period in excess of twenty years.

ORDERED and ADJUDGED that the Southgates’ use of the Disputed Area was adverse and nonpermissive for a period in excess of twenty years.

ORDERED and ADJUDGED that Southgates established adverse possession over the entire Disputed Area.

ORDERED and ADJUDGED that the parties shall jointly prepare a recordable plan of the area obtained by adverse possession (or may use the plan titled “Survey Sketch 87 Western Avenue, Essex, Mass. 01929 prepared for Kenneth Koga by Otte & Dwyer, Inc. Land Surveyors” and dated March 24, 2011 (“the Otte & Dwyer Plan”), modified in accordance with this decision) showing ownership by the Southgates of the Disputed Area and shall record such plan within forty-five (45) days from the date of this decision. The costs of preparing and recording such plan shall be shared equally by the parties. The parties shall notify this court (Jennifer Masello, Sessions Clerk), in writing, when such plan is recorded.