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Tripp v. Demontigny

Superior Court of Massachusetts, Bristol

May 4, 2018

Hugh A. TRIPP, Jr.
v.
Richard L. DEMONTIGNY et al.[1]

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT

          Raffi N. Yessayan, Justice of the Superior Court

         This 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 plaintiff’s motion for summary judgment is ALLOWED.

         BACKGROUND

         The following is derived from the parties’ consolidated statement of undisputed material facts.

         The Property is a small island located in Greenwood Lake.[2] 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.

         The history of the Property’s 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[3] was filed, seeking a declaration that the owner of the Property also owned the Parcel.

         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 clerk’s 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 plaintiff’s deed is recorded with the Registry.

         According 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 Property.

         In 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.

         In 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 Valentines’ ownership of the Parcel or make any claim of rights in and to the Parcel.

         At some point between Ms. Storch’s ownership and the Valentines’s ownership of the Property, significant improvements were made to the Parcel by the Property’s owners, who paved the parking area and installed a retaining wall on the Parcel.

         On 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 defendants’ property. The southern border is Greenwood Lake. On the eastern part of the defendants’ 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.

         The defendants’ 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 Assessor’s records for the Town of North Attleboro, and Plat 4, Lots 83-85 in the Tax Assessor’s records for the Town of Mansfield." The Parcel is included in the Town of Mansfield Tax Assessor’s 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 defendant’s Certificate of Title.

         The 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 plaintiff’s home before the plaintiff purchased ...


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