Judgment entered in this case on July 12, 2010. The case was heard on appeal in the Supreme Judicial Court. Cater v. Bednarek, 462 Mass. 523 (2012). The judgment of this court was vacated, and the case remanded for further proceedings. The Supreme Judicial Court directed that this court address on remand two issues concerning the judgment, those having to do with the width and the grade of the roadway authorized by the judgment; the rest of the judgment the Supreme Judicial Court did not disturb.
After rescript from the Supreme Judicial Court, this court conducted further proceedings to determine the form of the judgment to be entered in compliance with the rescript. After hearing and briefing, the court (Piper, J.), in a decision of even date, has directed the entry of an amended judgment. In accordance with that decision, the judgment entered July 12, 2010 is amended and restated in its entirety as follows:
*****
This action, which commenced August 21, 1998 with the filing of a complaint by Willie J. Cater and Gloria J. Cater ("Caters"), is request for declaratory and injunctive relief confirming the validity, and establishing the location, of a general right of way of record benefitting their land in Truro, Barnstable County, Massachusetts. The Caters' land is that acquired by them from Howard B. French by deed dated June 26, 1979 and recorded with the Barnstable County Registry of Deeds on June 29, 1979 in Book 2944, at Page 75.
This case came on to be tried before the court in two phases. In a decision dated July 9, 2007 and a decision of July 12, 2010 ("Phase II Decision"), the court (Piper, J.) has made findings of fact and rulings of law; the court has determined that the easement is in force and effect, and that the location of the easement is to be as described in the Phase II Decision.
In accordance with the court's decisions, it is
ORDERED, ADJUDGED and DECLARED that the easement ("Easement") recited in the deed from Charles W. Cobb to Lorenzo D. Baker, dated September 7, 1899, recorded with the Barnstable County Registry of Deeds ("Registry") in Book 2, Page 39 is in force and effect, and has not been extinguished, abandoned, frustrated in its purpose, or otherwise ceased to be valid and effective. It is further
ORDERED, ADJUDGED and DECLARED that, in equity, the Easement ought to be and hereby is located as follows:
From Benson Road, the Easement shall run westerly so that the centerline of the Easement coincides, as substantially as reasonably possible, with the boundary line between Lot 51 (7 Benson Road) of the Clark trustees, and Lot 52 (9 Benson Road) of Cabot.
From the boundary between the Cabot and Clark land and Lot 56 (9A Benson Road) of the Truro Conservation Trust, the Easement shall follow generally the route depicted on Exhibit 37, which is a plan titled "Plan of Proposed Driveway, William J. Cater, Benson Road, Assessor's Map 53, Parcel 50, Truro, Mass," prepared by Coastal Engineering, 260 Cranberry Highway, Orleans, Massachusetts, 02653, dated March 17, 2003 under the stamp of Martin R. Donaghue.
It is further
ORDERED, ADJUDGED and DECLARED that, in the event a driveway or roadway is constructed within the Easement, the finished surface of such driveway or roadway is not to exceed twelve (12) feet in width, absent further order of this court. It is further
ORDERED, ADJUDGED and DECLARED that, in the event a driveway or roadway is constructed within the Easement, such driveway or roadway shall cross any terrain, the slope of which terrain is equal to or greater than ten (10) percent, at a finished grade equal to or greater than ten (10) percent; absent further order of this court, the Easement does not permit cut or fill on the land of any defendant to accommodate a finished grade of less than ten (10) percent of any driveway or roadway constructed on terrain the slope of which terrain is equal to or greater than ten (10) percent. It is further
ORDERED, ADJUDGED and DECLARED that the Easement shall permit, in addition to the width of a twelve-foot driveway or roadway, the construction of drainage features, improvements and site work for roadway support and stabilization, erosion controls, vegetative screening, habitat restoration, and timber guardrail. It is further
ORDERED, ADJUDGED and DECLARED that the costs of designing, engineering, obtaining approvals for, and constructing any driveway or roadway within the Easement shall be solely the responsibility of the dominant estate. These costs include without limitation the cost of any reasonably necessary or desirable upgrade, repair, or relocation of the Cabot septic system that may be caused, directly or indirectly, by the construction of a driveway or roadway within the Easement. It is further
ORDERED, ADJUDGED and DECLARED that nothing in this Judgment or the accompanying Phase II Decision shall permit the construction of any driveway, roadway, or route, including any curb cut, or any related work, other than in compliance with all applicable laws, nor without first obtaining all permits and approvals required by law. It is further
ORDERED, ADJUDGED and DECLARED that the Easement burdens the area described for its location in this Judgment, and no longer burdens any other land of any of the defendants. It is further
ORDERED and ADJUDGED that the owners of the dominant estate may seek from the appropriate governmental board(s) and official(s) waivers, permits, and other approvals indicated or necessary to lay out and construct within the Easement a driveway or roadway with the dimensions, grade, width, configuration, location and route contemplated by this Judgment. Nothing in this Judgment shall prohibit the owners of the dominant estate, should they be unable, despite reasonable best efforts, to secure waivers, permits, and other approvals as to (i) the width of the surface of the driveway or roadway or (ii) the finished grade of the driveway or roadway, from seeking to modify this Judgment, so that it would allow them to lay out and construct the driveway or roadway consistently with applicable law, rules, and regulations and with those waivers, permits, and other approvals the owners of the dominant estate have with reasonable best efforts been able to secure. Any party to this action who brings any judicial appeal from the decision or determination of any governmental board(s) or official(s) upon a request for a waiver, permit or other approval respecting (i) the width of the surface of the driveway or roadway or (ii) the finished grade of the driveway or roadway, shall bring that judicial appeal in this court, provided it has subject matter jurisdiction over the appeal. It is further
ORDERED and ADJUDGED that no damages, fees, costs, or other amounts are awarded to any party.
By the Court. (Piper, J.)
GLORIA J. CATER and WILLIE J. CATER v. ROBERT BEDNAREK, BRENDA BOLEYN, BETSEY BROWN, FRED GAECHTER, CAROL GREEN, CURTIN HARTMAN, HOWARD IRWIN, JOHN MARKSBURY, and JOEL SEARCY, as they are trustees of Truro Conservation Trust; LUCY CLARK, JENNIFER CLARK KRUGER, and MITCH BROCK, as they are trustees of Silvia M. Clark Revocable Trust; SUSAN B. CABOT, SYLVIA CLARK, and JOAN F. FOX, individually and as trustees of Cabot-Clark-Fox Real Estate Trust; JOAN F. FOX, as trustee of the Residence Trust Agreement; SARA C. MUELLER and PHILIP P. MUELLER, III, as trustees of the Philip P. Mueller Truro Realty Trust; PAUL D. KIERNAN; ELIZABETH ADLER; RAYMOND E. DEMMING; and LOIS C. DEMMING. LUCY CLARK, JENNIFER CLARK KRUGER, and MITCH BROCK, as trustees of the Silvia M. Clark Revocable Trust v. NANCY F. CALLANDER, as trustee of Shambles Realty Trust; ETHAN R. COHEN; and NATALIE FERRIE-COHEN