TONELLO vs. PILOTTE, MISC 07-336986

Plaintiffs Joseph E. Tonello and Tina L. Tonello (together, "Plaintiffs") filed their unverified Complaint on January 8, 2007, seeking to quiet title, pursuant to G. L. c. 240, § 6-10, to the use of Wood Street (the "ROW") which abuts their property located at 19 Lake Street, Halifax, Plymouth County, Massachusetts ("Plaintiff Property"), based on their adverse possession of the ROW. [Note 1] Defendants William Shaughnessy, Katherine Shaughnessy, Katherine A. Shaughnessy, as Trustee of Chelsea Shaughnessy Minors Trust, and Katherine A. Marble, as Trustee of Kristy Lee Marble Minors Trust (the "Wamsutta Avenue Shaughnessys") filed their Answer and Counterclaim on January 30, 2007, alleging that Plaintiffs do not own the ROW, the ROW is a public way and a public access to a great pond, and that they have prescriptive rights in the ROW. [Note 2] Defendant Corine M. Pilotte ("Pilotte") filed an Answer on February 2, 2007. [Note 3] On February 6, 2007 Defendants Dino and Elizabeth Pacini (the "Pacinis") filed their Answer. Defendants Bradley and Carolyn Marsh (the "Marshs") filed their Answer on February 7, 2007. On February 8, 2007 Defendant Thomas J. O'Keefe II ("O'Keefe") filed his Answer. [Note 4] Defendants Brendan C. Aiguier and Elise M. Donohue ("Aiguier/Donohue") filed their Answer and Counterclaim on March 5, 2007, alleging easements by implication and prescription. Plaintiffs filed their Reply to the Counterclaim of Aiguier/Donohue on March 30, 2007, and their reply to the Wamsutta Avenue Shaughnessys' Counterclaim on April 5, 2007. A case management conference was held on April 13, 2007. On May 16, 2007, Defendants Calvin W. Sturge, Geraldine H. Sturge, Sharon N. Chase and Thomas A. Chase were defaulted. [Note 5] Plaintiffs, Aiguier/Donohue and the Marshs filed a Stipulation on January 15, 2008, in which Plaintiffs gave Aiguier/Donohue and the Marshs permissive walking access to East Monponsett Lake over the ROW for certain purposes. Defendant Charlotte Hill ("Hill") filed an Appearance on August 21, 2007, and an Answer and Counterclaim and Crossclaim on July 10, 2008, alleging easements by implication and prescription. [Note 6] The parties attended a pre-trial conference on September 14, 2009, at which this matter was converted to a summary judgment on title issues, and O'Keefe was defaulted.

On October 14, 2009, Defendants Hill, Wamsutta Avenue Shaughnessys, Aiguier/Donahue [Note 7], the Marshs [Note 8], and the Pacinis [Note 9], filed their Motion for Partial Summary Judgment. Plaintiffs filed their Opposition on November 16, 2009. A hearing was held on the partial summary judgment motion on February 10, 2010. At that time, the parties decided to continue the hearing until Monponsett could be served as a Defendant and attend the hearing. Monponsett filed an Answer and Counterclaim on March 12, 2010, alleging that Monponsett holds legal title, by deed, to Wood Street in trust for the benefit of all Lot Owners; Plaintiffs filed their Reply on July 9, 2010. A second pre-trial conference was held on October 14, 2010, at which this matter was converted back to a summary judgment. On November 15, 2010, Hill, the Wamsutta Avenue Shaughnessys, and Monponsett (together, the "Litigating Defendants") filed a second Motion for Partial Summary Judgment. Plaintiffs filed their Opposition and Cross-motion for summary judgment on December 15, 2010. A hearing was held on all motions on March 19, 2011, and a decision ("Decision 1") was issued on May 20, 2011. Pursuant to Decision 1, this court determined that Plaintiffs owned the fee interest in one-half of the ROW pursuant to G. L. c. 183, § 58 (the Derelict Fee Statute) and Monponsett owned the fee interest in one-half of the ROW pursuant to the 1890 Deed (hereinafter defined).

At a status conference on July 12, 2011, the parties agreed to the joint use of the ROW for the summer of 2011, which was confirmed by Order of this court dated July 12, 2011. The parties attended a pre-trial conference on September 19, 2011. A site view and the first day of trial at the Plymouth Superior Court was held on Monday, May 14, 2012. Defendant William Shaughnessy ("Lake Street Shaughnessy") was defaulted at that time. [Note 10] The second and third days of trial were held on May 15 and 16, 2012, at the Land Court in Boston. The parties filed their post-trial briefs on July 23, 2012, and at that time the matter was taken under advisement.

At trial, testimony was given by Plaintiffs' witnesses Joseph Tonello (Plaintiff), Thomas Chase (owner of property across street from Plaintiff Property), Tina Tonello (Plaintiff), and rebuttal witness Katherine Shaughnessy (Defendant); and by the Litigating Defendants( witnesses Robert Badore (Halifax Highway Department surveyor), Charles Seelig (Halifax Town Administrator), Lawrence Silva (registered professional engineer), Kathleen Drinan (Halifax Health Agent), Elizabeth Pacini (former owner of property across street from Plaintiff Property), Denise Murphy (former owner of Lake Street Shaughnessy Property), Charlotte Hill (Defendant), and William Shaughnessy (Defendant). There were fifty-two exhibits submitted into evidence, some with multiple counterparts. A Decision of today(s date has been issued ("Decision 2"). In accordance with Decision 1 and Decision 2, it is hereby:

ORDERED and ADJUDGED that Monponsett had no knowledge of a deed from Jacob W. Wilbur ("Wilbur") to Fannie J. Fisher ("Fisher"), dated August 23, 1888, and recorded with the Registry on June 29, 1904, at Book 584, Page 335 (the "Fisher Deed"), and as a result, the Fisher Deed had no effect as to Monponsett and did not grant the fee interest in one-half of the ROW to Fisher. Consequently, a deed from Wilbur to Monponsett dated September 18, 1890 (the "1890 Deed"), which conveyed "all the streets" to Monponsett, as shown on a plan titled "Plan E, Monponsett Lake and Land Company Halifax, Plymouth Co. Mass." dated July 1888, prepared by A. H. French (the "1888 Plan"), granted the fee interest in one-half of the ROW to Monponsett.

ORDERED and ADJUDGED that I ALLOW IN PART AND DENY IN PART the Litigating Defendants( Motion for Partial Summary Judgment and ALLOW IN PART AND DENY IN PART Plaintiffs' Cross-Motion for Summary Judgment.

ORDERED and ADJUDGED that Monponsett is a valid legal entity and is not foreclosed from asserting its title rights in the ROW.

ORDERED and ADJUDGED that Plaintiffs hold title to the portion of the ROW to the middle line of the ROW as it abuts Plaintiff Property. [Note 11]

ORDERED and ADJUDGED that the Wamsutta Avenue Shaughnessys and Hill do not have an appurtenant easement by implication in the ROW. [Note 12]

ORDERED and ADJUDGED that the Wamsutta Avenue Shaughnessys have not established prescriptive rights in the ROW.

ORDERED and ADJUDGED that Hill has not established prescriptive rights in the ROW.

ORDERED and ADJUDGED that Plaintiffs claim of title to the entire ROW based on adverse possession fails. Not only have Plaintiffs failed to establish adverse possession of a portion of the ROW to the west of an area of the ROW encompassed by a shed, fence, and block wall, as depicted on a plan of land entitled "Plan of Land" dated May 10, 2012 prepared by Silva Engineering Associates, P.C. ("Silva") for 19 Lake Street, Halifax, MA (the "2012 Plan") (the "Unfenced Portion"), but they have also failed to prove that they have extinguished any rights held by others over the Unfenced Portion of the ROW. [Note 13]

ORDERED and ADJUDGED that Plaintiffs have established prescriptive rights over the Monponsett half of the ROW to use that portion of the ROW in a manner that is not inconsistent with the fee interest of Monponsett. [Note 14]

ORDERED and ADJUDGED that Monponsett did not abandon its rights in the ROW.

ORDERED and ADJUDGED that the Wamsutta Avenue Shaughnessys and Hill are owners of lots as shown on the 1888 Plan ("Lot Owners"). [Note 15]

ORDERED and ADJUDGED that as Lot Owners, the Wamsutta Avenue Shaughnessys and Hill have a beneficial interest in and the right to use the Monponsett portion of the ROW.

ORDERED and ADJUDGED that the Wamsutta Avenue Shaughnessys and Hill, as Lot Owners, have the right to use the Monponsett portion of the ROW for all reasonable uses that may have been contemplated at the time Wilbur executed the 1890 Deed. [Note 16]

By the Court. (Sands, J.)

[Note 1] Plaintiffs filed an unverified Amended Complaint on January 18, 2007, adding the Kristy Lee Marble Minors Trust as a Defendant, which was allowed as of right. Plaintiffs filed an unverified Second Amended Complaint on September 11, 2009, seeking to add a try title count pursuant to G. L. c. 240, § 1 and a declaratory judgment count pursuant to G. L. c. 231A, § 1, in which Plaintiffs allege that they own the ROW by operation of G. L. c. 183, § 58. Plaintiffs filed an unverified Third Amended Complaint on October 15, 2009, seeking to add the Monponsett Improvement Association, Inc. ("Monponsett") as a Defendant. Both the Second Amended Complaint and the Third Amended Complaint were allowed on February 10, 2010.

[Note 2] The Wamsutta Avenue Shaughnessys own property located at Wamsutta Avenue, Halifax, MA. Part of this property abuts East Monponsett Lake. Wamsutta Avenue intersects with Lake Street.

[Note 3] Pilotte was represented by counsel who withdrew from this case on July 23, 2008. Since that time Pilotte has not appeared in this case. Plaintiffs filed a motion to default Pilotte on October 15, 2009. She was defaulted on May 12, 2011.

[Note 4] At a status conference on March 31, 2009, O'Keefe stated that he wanted to withdraw as a defendant. O'Keefe was defaulted on September 14, 2009.

[Note 5] The Sturges filed a letter with this court on July 31, 2007, indicating that they did not want to be involved with this case.

[Note 6] In the same document, O'Keefe, the Pacinis, and the Wamsutta Avenue Shaughnessys filed an Amended Answer and Counterclaim and Crossclaim, alleging easements by implication and prescription. Plaintiffs filed their Reply to Counterclaims on April 22, 2009.

[Note 7] Aiguier/Donohue have not appeared at any hearing since the first summary judgment hearing on February 10, 2010. They were defaulted on May 12, 2011.

[Note 8] By letter dated March 16, 2010, the Marshs withdrew from this case. They were defaulted on May 12, 2011.

[Note 9] On February 2, 2010, the Pacinis withdrew as Defendants in this case because they had sold their property to Charles and Mary Smedile (the "Smediles"). The Smediles filed a Motion to Allow Permissive Joinder on July 9, 2010, but have made no appearances in this matter. The Smediles were defaulted on May 12, 2011.

[Note 10] Lake Street Shaughnessy had not attended any hearings or filed any pleadings in this case.

[Note 11] This question of law, relating to the record title to the ROW, has already been answered by this court, which has determined that Plaintiffs "abut" the ROW as contemplated by the G.L. c. 183, § 58 (the Derelict Fee Statute). Subsequent to the trial, this court finds no basis for the Litigating Defendants contention that Plaintiff Property does not abut the ROW, as contemplated by the Derelict Fee Statute. The Litigating Defendants, of course, have the right to appeal this finding.

[Note 12] Monponsett cannot have an easement by implication in the ROW because they do not own any lots as depicted on the 1888 Plan. Therefore the rights of Monponsett in the ROW cannot be appurtenant to any other property interest.

[Note 13] This court has differentiated between the Unfenced Portion and a portion of the ROW to the east of the shed, fence, and block wall shown on the 2012 Plan (the "Fenced Portion"). The Fenced Portion of the ROW is entirely within the half of the ROW owned in fee by Plaintiffs. The Litigating Defendants have not established an easement by implication in the entire ROW (which would include the Fenced Portion) and have not established prescriptive rights in any portion of the ROW. As such, Plaintiffs have legal title, free of any interest of the Litigating Defendants, to the middle portion of the ROW as it abuts Plaintiff Property. The Fenced Portion is clearly included within this area.

[Note 14] Again, Plaintiffs have put forth sufficient facts to establish a finding of prescriptive rights in the Unfenced Portion of the ROW. Plaintiffs cannot obtain prescriptive rights, however, in the area of the Unfenced Portion of the ROW that they own in fee.

[Note 16] Plaintiffs also have the right to use the Monponsett portion of the ROW based on their Lot Owner status.

MISC 07-336986

February 15, 2013

Sands, J.

JUDGMENT