MISC 99-259318

February 11, 2013


Scheier, C.J.


On October 4, 1999, Plaintiffs Roger L. Hebert and Virginia L. Hebert (Heberts) commenced this action pursuant to G. L. c. 231A, seeking to enforce easement rights over Defendant Tenerowicz’s property and to confirm the nature of such rights. In their verified complaint, Plaintiffs requested this court to: (1) enter judgment declaring they have an easement over Defendant’s land; (2) issue an order granting them the right to maintain the easement; and (3) issue a Decree permanently enjoining Defendant, and all persons claiming under him, from obstructing or otherwise interfering with Plaintiffs’ use of the easement. Following several attempts to settle the case, it was reported settled and the case was dismissed. A year later, Plaintiffs filed a Motion to Enforce a Settlement Agreement, which was denied and the case was set for trial.

A one-day trial was held on May 13, 2010, at which four witnesses testified, fifty-seven exhibits were entered in evidence, and two diagrams with notations made at trial were marked as chalks. A decision of today’s date has issued in Plaintiffs’ favor. In accordance with that decision, it is hereby:

ADJUDGED and DECLARED that the right of way claimed by Plaintiffs was not personal to Francis E. Booth and that Plaintiffs’ Property at 1102 East Road, Warren, is benefited by an appurtenant record easement over the entirety of the disputed way, located on Defendant’s Property at 1034 East Road; it is further

ADJUDGED and DECLARED that Plaintiffs never possessed the requisite intent to abandon their easement rights and that their rights in the disputed way were never extinguished; it is further

ADJUDGED and DECLARED that Plaintiffs’ record easement over Defendant’s property is located as shown on a plan dated June 14, 2000, entitled: “Plan Showing Right of Way in Warren, MA Owned by Roger L. Hebert to be recorded herwewith (Pera Plan); it is further

ADJUDGED and ORDERED that Defendant shall not place obstructions of any kind along or on the right of way that would prevent the owner of the dominant estate from passing or re-passing over the right of way, nor shall the owner of the servient estate cause any chains, gates, fences or other such devices to be installed or placed on or across said right of way; it is further

ADJUDGED and ORDERED that Plaintiffs have the right to maintain the record easement; and it is further

ADJUDGED and ORDERED that upon payment of applicable registry fees, the Heberts may record the Pera Plan, together with an attested copy of this Judgment, both of which should be marginally referenced to the parties’ respective deeds.

So ordered

By the court (Scheier, C.J.)