Hugh A. TRIPP, Jr.
Richard L. DEMONTIGNY et al.
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFâS
MOTIONS FOR SUMMARY JUDGMENT
N. Yessayan, Justice of the Superior Court
case arises out of a land dispute between the plaintiff, Hugh
A. Tripp, Jr., who owns a small island located at 262 Plain
Street in Mansfield (the "Property"), and the
defendants, Richard and Annmarie DeMontigny, whose property
encompasses a strip of land (the "Parcel")
primarily used to access the Property. The plaintiff contends
that the Parcel has been adversely possessed by the plaintiff
and his predecessors in title and now moves for summary
judgment on the grounds that he has established
non-permissive use of the Parcel that is actual, open,
notorious, exclusive, and adverse since November 19, 1970.
For the reasons that follow, the plaintiffâs motion for
summary judgment is ALLOWED.
following is derived from the partiesâ consolidated statement
of undisputed material facts.
Property is a small island located in Greenwood
Lake. It contains a house and consists of
approximately 3, 332 square feet of land. The Property is
connected, via a wooden footbridge, to the Parcel, which
contains approximately 1, 045 square feet of land abutting
Plain Street. There is no other access to the Property,
except for this bridge. Residents of the Property, current
and past, use the Parcel primarily to access their home and
to park their vehicles.
history of the Propertyâs ownership is as follows. On
September 5, 1963, the Property was conveyed to William J.
Battersby and Robert H. Battersby (the
"Battersbys"). The Battersby Deed was recorded with
the Bristol County Registry of Deeds (the
"Registry"). On December 11, 1981, the Battersbys
conveyed the Property to James W. Pritchard. The Pritchard
Deed was recorded with the Registry. On November 25, 1985,
Mr. Pritchard conveyed the Property to Andrew L. Chrisman and
Elizabeth M. Chrisman (the "Chrismans"). The
Chrisman Deed was recorded with the Registry. On September
23, 1988, the Chrismans conveyed the Property to Waldo B.
Fish, III. The Fish Deed was recorded with the Registry. In
1988, a Land Court petition was filed, seeking a
declaration that the owner of the Property also owned the
Battersby Deed, the Pritchard Deed, the Chrisman Deed, and
the Fish Deed each describe the Property as only consisting
of the island with no reference or description of the Parcel.
By two deeds, dated December 29, 1994, Mr. Fish conveyed both
the Property and the Parcel to Kimberly A. Storch. The Storch
Deeds were recorded with the Registry. The deed referring to
the Parcel was a release deed, conveying nothing more than
any rights Mr. Fish might possibly own. Mr. Fish made no
guaranty and explicitly crossed out reference to quitclaim
covenants in that deed. On May 16, 1995, Ms. Storch filed a
motion for substitution in the Land Court action but made no
further effort to pursue the case. On March 29, 2005, Ms.
Storch conveyed the Property and the Parcel to James and
Linda Valentine (the "Valentines"). The Valentine
Deed was recorded with the Registry. On November 26, 2014, an
attorney called the Land Court clerkâs office and stated that
he would come in and speak to the Chief Land Court Examiner
about getting the case going again; but the case did not go
forward. On June 11, 2015, the Valentines conveyed the
Property and the Parcel to the plaintiff. The plaintiffâs
deed is recorded with the Registry.
to David Picard, a neighbor, the Property and the Parcel have
been connected by a wooden bridge supported by the Parcel
since at least November 1970, when Mr. Picard purchased his
property at 50 Oak Ridge Avenue. He asserted that owners of
the Property have always used the Parcel for access and for
parking. And, since the area is surrounded by many houses in
close proximity, their use has been "obvious to
all." Roger and Joyce Bergeron (the
"Bergerons"), who had owned neighboring property at
285 Plain Street since 1988, echoed these comments. The
Bergerons attested that the Parcel has been
"continuously used by all the occupants of" the
1997, when Ms. Storch owned the Property, she continued to
use the Parcel consistent with the use of the prior owners.
During her ownership, she and her husband parked vehicles on
the Parcel and used the Parcel to access their home. Ms.
Storch also landscaped the area, placing large decorative
pots on the land.
2005, when Ms. Storch conveyed the Property to the
Valentines, the Valentines continued to use the Parcel
consistent with the use of the prior owners. The Valentines
used the Parcel to park their vehicles and to access the
Property over the footbridge. At no time during their
eleven-year ownership of the Property did anyone challenge
the Valentinesâ ownership of the Parcel or make any claim of
rights in and to the Parcel.
point between Ms. Storchâs ownership and the Valentinesâs
ownership of the Property, significant improvements were made
to the Parcel by the Propertyâs owners, who paved the parking
area and installed a retaining wall on the Parcel.
December 15, 2010, the defendants acquired the property known
as 10 Oakridge Avenue, North Attleboro ("10 Oakridge
Ave."), which straddles the municipal boundary between
North Attleboro and Mansfield. 10 Oakridge Ave. is bordered
by Oakridge Avenue to the northwest and by Plain Street on
the northeast. The intersection of the two streets is at the
northernmost tip of the defendantsâ property. The southern
border is Greenwood Lake. On the eastern part of the
defendantsâ property, the land curves around to the south in
a long thin strip between the lake and Plain Street. The
Parcel is part of this long, thin strip.
defendantsâ deed (the "DeMontigny Deed") describes
10 Oakridge Ave. as Lot 3 on Subdivision Plan 24988A (the
"Plan"), registered with the Land Court on
Certificate of Title No. 2777 and as "[b]eing the same
property identified at Plat 37, Lot 12 in the Tax Assessorâs
records for the Town of North Attleboro, and Plat 4, Lots
83-85 in the Tax Assessorâs records for the Town of
Mansfield." The Parcel is included in the Town of
Mansfield Tax Assessorâs records as Plat 4, Lot 85. The
Parcel is not included in Lot 3 as shown on the Plan and is
not included in the defendantâs Certificate of Title.
defendants and the predecessor owners of 10 Oakridge Ave.
have paid property taxes on the Parcel to Mansfield since at
least 1959. The defendants also pay property taxes to North
Attleboro for the portion of their property in that town.
Defendant Richard DeMontigny has had conversations with the
plaintiff and with a tenant who lived in the plaintiffâs home
before the plaintiff purchased ...