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Neily v. Gray

Massachusetts Land Court

March 13, 2020, Decided

MISCELLANEOUS CASE NO. 17 MISC 000660 (RBF)

Opinion

 [*134]  DECISION

INTRODUCTION

All along the coast of Massachusetts are developments of coastal lots created in the late 19th and early 20th centuries. These developments were generally created by a combination of deed descriptions and recorded plans. Today, these developments consist of lots along what are often private ways. Because of the vagaries of these plans and deeds, it is often difficult to determine the property owners' respective rights in these ways.

So it is with the lots at issue here, properties along a private way in Wareham known as Lydia's Island Road. Lydia's Island Road runs from Great Neck Road, a public way, toward Onset Bay. The parties—all property owners along Lydia's Island Road—dispute the extent to which the plaintiffs have rights to use Lydia's Island Road as it runs easterly from their properties toward Onset Bay. The case was presented to me as a case stated; I also took a view. As set forth below, after considering the history of the conveyances from the original owner, one Joseph Henry Burgess, and the various plans, I find that the plaintiffs do have rights to use Lydia's Island Road to a greater or lesser degree.

PROCEDURAL [**2]  HISTORY

The Plaintiffs filed the complaint on November 16, 2017. The Complaint contains two counts: Count I) Declaratory Relief; and Count II) Injunctive Relief. On January 3, 2018, the Defendants filed their Answer. The case management conference was held on January 12, 2018. A suggestion of death of James F. Antosca was made at a status conference on July 13, 2018. The Plaintiffs filed a Motion for Summary Judgment and a Brief in Support of their Motion for Summary Judgment on February 11, 2019. Plaintiffs filed their Motion to Substitute Plaintiff James F. Antosca on February 12, 2019, which was allowed that day; Linda M. Neily, the personal representative of the Estate of James F. Antosca, was substituted for James F. Antosca as plaintiff. Defendants filed a Motion for Summary Judgment and Brief in Support of their Motion for Summary Judgment on March 12, 2019. On March 26, 2019, Plaintiffs filed a Brief in Opposition to Defendants' Motion for Summary Judgment. A view was taken on March 29, 2019. Hearing on the cross-motions for summary judgment was held on May 3, 2019. At the hearing, the cross-motions for summary judgment were converted to a case stated, by agreement of the parties [**3]  and by suggestion of the court. The case was thereafter taken under advisement. This decision follows.

FINDINGS OF FACT

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28 LCR 134 *; 2020 Mass. LCR LEXIS 40 **

LINDA M. NEILY, as Personal Representative of the Estate of JAMES F. ANTOSCA, ANGELA L. DIDIER, as Trustee of HANOVER STREET REALTY TRUST and Trustee of SALEM STREET REALTY TRUST, MARK J. LANZA, as Trustee of HANOVER STREET REALTY TRUST, HELEN M. KELLY, and CHARLES P. VILINIS, JR v. SCOTT WHITNEY GRAY, MARGARET C. HALLETT GRAY, DANIEL S. DECOURCY, CHRISTINE A. DECOURCY, SCHWARTZ REAL ESTATE INVESTMENT, LLC, JOSEPH D. WARSHAUER and JULIANNE WARSHAUER, as Trustees of the JOSEPH AND JULIANNE WARSHAUER FAMILY TRUST, and FRANK E. O'BRIEN and MARJORIE M. O'BRIEN, as Trustees of the FRANMAR LIVING TRUST

CORE TERMS

easement, deed, conveyed, recorded, registry, parcel, pedestrian, right of way, rights, implied easement, conveyance, triangular parcel, foot, travel, estoppel, properties, premises, grantor, summary judgment, legal right, parties, Street, granted premises, heirs, chain of title, right to use, appurtenant, abutting, entire length, eastern side