HENRY F. MEUDT v. PETER A. DUS, PETER D. GILLETT, VIOLA M. GILLETT, ART JENSEN and PAUL H. HYDE, III as TRUSTEES of 92 TOWER MOUNTAIN REALTY NOMINEE TRUST, THE TOWN OF HANCOCK and THE COMMONWEALTH OF MASSACHUSETTS

Plaintiff, Henry F. Meudt (Meudt), commenced this case on April 29, 2005, by filing a two-count complaint. Count I, pursuant to G. L. c. 240, and G. L. c. 231A, seeks a declaration of the parties’ rights and duties with respect to a portion of Tower Mountain Road (Road) in the Town of Hancock (Town). Meudt claims that the Road was formally discontinued as a public way by Town Meeting vote in 1946, and may not be used by Defendants. Defendants maintain that the Town has never discontinued the Road and it remains open to them to use. Count II of the Complaint, sounding in trespass, asks this court, pursuant to G. L. c. 185, and G. L. c. 242, to enter judgment against Defendant, Peter A. Dus (Dus), and award Meudt damages plus interest and costs.

On April 11, 2006, Dus filed a four-count counterclaim and cross-claim. Count I, against all cross-claim and counterclaim Defendants, seeks a declaration that the Road remains a public way and that Dus has the right to use and improve it. Count II, against Meudt and Paul H. Hyde (Hyde), alleges that Meudt and Hyde have interfered with Dus’ quiet enjoyment of his property and seeks an award of damages. Count III, against Meudt only, alleges that Meudt has carried away thousands of board feet of lumber harvested from Dus’ land and seeks an award in the full amount of Dus’ damages, including attorneys fees. Count IV, against Meudt and Hyde, seeks to enjoin them from interfering with Dus’ use of the Road and quiet enjoyment of his property.

This case was tried on a “case stated” basis, on stipulated facts and numerous exhibits, consisting mainly of copies of town meeting warrants and votes, and deeds. See Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 (2006). The list of exhibits submitted contains certain inconsistencies and the parties have referred to various exhibits using different exhibit letters. This court is nonetheless confident that the record contains all exhibits material to the issue before the court. A hearing was held on the case stated on April 2, 2008, after which this court requested that the parties supplement their briefs on the issue of where the burden of proof lies in this case. Briefs were filed by all parties. [Note 1] At the hearing, Dus waived Counts II and III of his counterclaim and cross-claim, stating that the parties agree those counts are not within this court’s jurisdiction.

Based on the case stated record and the reasonable inferences drawn therefrom, this court makes the following findings of material fact: [Note 2]

Parties

1. By deed recorded on March 20, 1992, with the Northern Berkshire County Registry of Deeds, Meudt is the record owner of certain parcels of land on the southeast side of the Road in Hancock [Note 3]

2. Defendant Dus is the owner of a certain parcel of land located on the northeast side of the Road in Hancock, by two deeds recorded on September 18, 2000 (Dus Property). [Note 4]

3. Defendants, Peter D. Gillett and Viola M. Gillett (Gilletts), are the owners of a certain parcel of land on the northeast side of the Road, by a deed recorded March 26, 1991. [Note 5] The Gilletts have never appeared in this case.

4. Defendant, Art Jensen, a/k/a O.K. Jensen a/k/a Odd Kaurin Jensen (Jensen), is the owner of a certain parcel of land on the northeast side of the Road, [Note 6] and is the Trustee of 92 Tower Mountain Road Realty Nominee Trust under declaration of trust which is dated February 6, 1997. [Note 7] Jensen has never appeared in this case. [Note 8]

5. Defendant, Hyde, as Trustee of the Tower Mountain Nominee Trust, under a declaration of trust dated March 30, 1995 [Note 9] (Hyde), is the owner of a certain parcel of land on the southwest side of the Road under a deed recorded [Note 10]

6. Defendant, Town, is a municipality located in Northern Berkshire County.

7. Defendant, Commonwealth of Massachusetts (Commonwealth), a sovereign state with its seat of government located in the City of Boston, is the owner of the Pittsfield State Forest, which is comprised of various parcels of land to the north, east, and south of the Dus Property.

Tower Mountain Road

8. On February 4, 1946, pursuant to Article 38 of the Town Meeting Warrant, the Town “vote to close the Tower Mt. Road from the driveway of Norman McVey to the Hancock-Pittsfield Line[,]” (1946 Vote). The portion of the Tower Mountain Road referred to in the 1946 Vote, begins at or near the northerly corner of the property of Meudt, continuing in a generally south-southeasterly direction to the boundary between the Town and the City of Pittsfield. The Road at issue here is shown on several plans and maps in evidence. A composite of those plans, with notations, including one showing the “Disputed Portion of Tower Mountain Road,” is attached hereto as “Decision Sketch.”

9. Subsequent to the 1946 Vote, there has never been payment by the Town to any abutting landowners for damages incurred by the changing status of the Road.

10. General Laws, c. 82, § 21, allows a town to discontinue a road pursuant to a town meeting vote. That statue reads:

“[t]he selectmen or road commissioners of a town or city council of a city may lay out, relocate or alter town ways, for the use of the town or city, and private ways for the use of one or more of the inhabitants thereof; or they may order specific repairs to be made upon such ways; and a town, at a meeting, or the city council of a city, may discontinue a town way or a private way.”

11. General Laws, c. 82, § 32A, sets out how a municipality may discontinue maintenance of a public way. This statute was passed on April 24, 1924, and at the time of the 1946 Vote, it appeared in its original form, stating:

“[u]pon petition in writing of the board or officers of a town having charge of a public way, the county commissioners may, whenever common convenience and necessity no longer require such way to be maintained in a condition reasonably safe and convenient for travel, adjudicate that said way shall thereafter be a private way and that the town shall no longer be bound to keep the same in repair, and thereupon such adjudication shall take effect; provided, that sufficient notice to warn the public against entering threreon is posted where such way enters upon or unites with an existing public way. . . .” [Note 11]

Town Meeting Votes to Discontinue and to Close Various Public Ways in the Town

12. At a Town Meeting on April 6, 1801, the Town voted “that the road that leads from Oliver Stanton’s to Maxx Bacon be and is hereby discontinued as an open road.” Town Records Book 1, Page 170.

13. At a Town Meeting on April 2, 1810, the Town voted “that the Driftway surveyed by John Ely from Robert Carrs to Jonathan Hazards in April 10th, 1798 be discontinued.” Town Records Book 2, Page 95.

14. The Warrant for a Town Meeting on May 3, 1810, “proposed to discontinue a piece of Highway formerly laid by the selectmen of the Town leading from the main road south of Maj Asa C. . . . house to the Robbins House.” [Note 12] Town Records Book 2, Page 97.

15. At a Town Meeting on May 14, 1810, the Town voted that “Part of a survey of a road surveyed by…laid on the line of Elezer Bateman beginning at the main road and running to where it intersects with the road where it is now traveled, be discontinued.” Article 2nd Town Records Book 2, Page 96.

16. The Warrant for a Town Meeting on March 15, 1813, proposed “to take into consideration the expediency of discontinuing a piece of highway beginning on the turnpike road in said Hancock a small distance south of Capt. Augustus Stanton’s house and running northeasterly up the hill so far as where it intersects the road going from the Shaker Village in Hancock.” Town Records Book 2, Page 127.

17. The Warrant for a Town Meeting on October 30, 1826, proposed to say “whether they will discontinue the road leading from the main road west of Oliver Stanton’s passing Eli Dewey until it intersects the main road east of said Stanton’s.” Town Records Book 2, Page 276.

18. The Warrant for County Commissioners on April 22, 1847, proposed “to see whether the town will discontinue the way or a part thereof leading from the south Shaker Village in said town, north intersecting the road leading from New Lebanon to Pittsfield so to accept or reject an alteration made in the west end of the way leading from Benj T. Whitman’s to Sylvester Sweets, said alteration made in the spring of 1846, a survey of which was deposited in the town clerk’s office.” Article 2nd Town Records Book 3, Page 165.

19. At the Town Meeting on April 22, 1847, the Town voted:

a. “that the Shakers have the privilege of erecting a gate at or against Jacob Adams Farm, on the road leading from the south Shaker Village to the road leading from New Lebanon to Pittsfield.” Article 2nd.

b. “to accept the survey of the new road laid by the Selectmen in 1846 leading from Benjamin T. Whitman to Sylvester Sweet.” Town Records Book 3, Page 166. Article 3rd.

20. The Warrant for a Town Meeting on September 13, 1851, proposed “to see if the town will accept of a road laid out by the selectmen from the main road near Wm. Hadsell’s to the road that leads up to Rodney Dawley’s and if so, to discontinue the old one and raise money for the same.” Article 3rd Town Records Book 3, Page 230.

21. A Warrant for County Commissioners on May 9, 1853, proposed “to see if the town will disannul a road commencing from the Richmond Road south of the guide board and running south westerly through lands belonging to the Hancock Shakers.” Article 3rd Town Records Book 3, Page 270

22. At a Special Town Meeting on May 9, 1853, it was “voted to discontinue the road mentioned in the third article of the warrant and described as follows to wit; Commencing from the Richmond Road, south of the guide Board and running southwesterly through lands belonging to the Hancock Shakers.” Article 3rd Town Records Book 3, Page 272.

23. The Warrant for a Special Town Meeting on June 14, 1856, proposed “to decide whether the town will discontinue the town way leading from Benjamin T. Whitman’s House westerly to the possessions of Sylvester Sweet.” Article 4th Town Records Book 3, Page 318, Article 4.

24. At the Town Meeting on June 14, 1856, the town voted: “to resolve that the way leading from the highway near Benjamin T. Whitman’s dwelling to Sylvester Sweet’s dwelling, house and farm occupied by George Gavix, be no longer considered as a town way but a private way only for use of Sylvester Sweet and Benjamin T. Whitman and other occupying the same land….” Town Records Book 3, Page 319.

25. The Warrant for the Annual Town Meeting on March 2, 1857, proposed:

a. “to see if the town will repeal the resolution which was adopted at the June meeting of last year which resolution discontinued the town way leading from Benjamin T. Whitman to the premises of Sylvester Sweet and converted said way into a private way.” Article 6th.

b. “to see if the town will discontinue the town way leading from the highway between Lyman Eldridges and Thomas P. Jenkes dwelling houses, westerly to the possessions of Nathaniel W. Whitman and if so, to see if the same shall be made a private way.” Article 7th Town Records Book 3, Page 330.

26. At the Annual Meeting continued on March 2, 1857, the Town “voted to indefinitely postpone the 6th Article in the Warrant.” Article 18th Town Records Book 3, Page 332.

27. The Warrant for the Annual Town Meeting on March 7, 1870, proposed to see if the Town will discontinue the road leading from the road in Goodrich Hollow over the mountain by the house formally owned by Hiram S. Smith to the Pittsfield line.” Article 7th Town Records Book 3, Page 547.

28. At the Annual Town Meeting on March 7, 1870, the Town voted “that the seventh article in the warrant be indefinitely postponed.” Article 7th Town Records Book 3, Page 9.

29. The Warrant for the Town Meeting on November 6, 1877, proposed “to see what action the town will take in regard to discontinuing the road leading from the brickyard Shaker easterly to a point on the road leading from Lebanon Springs to Pittsfield-also to see if the town will vote to discontinue that part of the old road running over Potter Mountain so called, from the point where the new road commences near the residence of H.H. Whitman to a point where it intersects the new road again near the top of the mountain.” Article 2nd Town Records Book 4, Page 65.

30. At a Special Town Meeting on November 6, 1877, the Town voted:

a. “to discontinue the road commencing at the brickyard Shakers barn at the foot of the hill and running easterly to the point where it intersects the road leading from Lebanon Springs to Pittsfield.” Article 2nd.

b. “to discontinue the road leading from the Hancock Shakers northerly to the point where it intersects the road leading from the Lebanon Springs to Pittsfield and near the Lilly Bridge.” Article 3rd.

c. “to indefinitely postpone the subject matter embraced in the warrant in relation to discontinuing the old road over Potter Mountain.” Town Records Book 4, Page 69. Article 4th.

31. The Warrant for the Town Meeting February 19, 1878, proposed “to see if the town will vote to discontinue a part of the old road commencing at the brook east of the tenant house belonging to William Hadsell and running in an easterly direction till it intersects with the new road near the top of Potter Mountain.” Article 7th Town Records Book 4, Page 73.

32. At an Annual Town Meeting (Continued) on March 4, 1878, the town voted “to discontinue that part of the old road mentioned in Article 7 of the Warrant.” Article 26th Town Records Book 4, Page 77.

33. The Warrant for a Special Town Meeting on June 5, 1882, proposed “to see if the town will discontinue a certain piece of road near the residence of J. R. Whitman and also to accept a piece of road now constructed near the same that is to be discontinued.” Article 3rd Book 4, Page 144.

34. At the Special Town Meeting on June 5, 1882, the Town voted “to indefinitely postpone the 3rd article in the warrant.” Article 3rd Town Records Book 4, Page 146.

35. The Warrant for the Annual Town Meeting on March 5, 1883, proposed “to see if the town will discontinue a piece of town road near the house of James R. Whitman and accept of a new road in place of the old one discontinued without any expense of the town.” Article 9th Town Records Book 4, Page 154.

36. At the Annual Town Meeting on March 5, 1883, the Town voted “to accept the survey of an alteration in the road near James R. Whitman and to discontinue the old road where the alteration made said survey as follows viz . . . .” Article 24th Town Records Book 4, Page 157.

37. The Warrant for the Annual Town Meeting on March 1, 1886, proposed

a. “to see if the town will vote to discontinue the road commencing at the line of the State of New York near the house of the late Elijah Bagg formally known as the John Wadham’s house and leading to the road from Goodrich Hollow to Pittsfield line intersecting said road near the old Tower Mountain.” Article 8th.

b. “to see if the town will vote to discontinue the road leading from the Potter Mountain (road so called) commencing near the residence of H.H. Whitman and running easterly to the brook near the tenant house on the farm of the late William Hadsell.” Article 10th.

c. “to see if the town will vote to discontinue the road leading from the main road and running westerly by the farms of Michael Welch and James Madden to the New York State line.” Article 11th.

d. “to see if the town will vote to discontinue the road leading from the main road near the cemetery and running easterly by the dwelling of George W. Clark.” Article 12th.

e. “to see if the town will vote to discontinue the road leading from the main road running westerly to the New York state line by the dwellings of H. Edgar Whitman and Wm. H. Kittell on any part of said road.” Article 13th.

f. “to see if the town will vote to discontinue the road leading from the main road near Dan’l Whitman’s running westerly by the residence of Wm. A. Snyder.” Article 15th.

g. “to see if the town will vote to discontinue the road leading from the main road and running westerly by the residence of N.O. Rathburn.” Article 16th. Town Records Book 4, Page 196.

38. At the Annual Town Meeting on March 1, 1886, the Town voted:

a. “voted; to take up the eighth article in the warrant.”

b. “voted; to discontinue the road as described in said eighth article of the warrant.”

c. “voted; to take up the tenth article in the warrant also all the other articles relating to the discontinuing of roads.”

d. “on the motion to indefinitely postpone the whole subject matter contained in articles from ten to fifteen inclusive relating to the discontinuing of roads the question was taken by hand vote and decided in the affirmative.” Town Records Book 4, Page 196-198.

39. the Warrant for the Annual Meeting on March 7, 1887, proposed:

a. “to see if the town will vote to discontinue the road, leading from the gate on the highway easterly from Wm. Kittels house, to the N.Y. state line.” Article 9th.

b. “to see if the town will vote to discontinue the road, leading from the east line of H.H. Whitman’s farm easterly to the end of the road, and the town.” Article 10th Town Records Book 4, Page 210.

40. At an Annual Town Meeting on March 7, 1887, the Town voted:

a. “to discontinue the road commencing at the gate on the highway which is easterly from Wm. Kittells House and running thence westerly to the N.Y. State line.” Article 10th.

b. “to indefinitely postpone the tenth article in the warrant.” Article 11th Town Records Book 4, Page 211.

41. The Warrant for the Annual Town Meeting on March 5, 1900, proposed:

a. to “vote to discontinue that piece of road which has come into disuse at the completion of the present State highway, commencing a little west of Shaker Village where it leaves State highway and running westerly to junction with the State highway again at a distance of a little over a mile.” Article 8th.

b. “to see if the town will instruct the Selectmen to petition the County Commissioners to discontinue that piece of road commencing at the New York State line and running easterly up the mountain to its junction with the state highway, said petition to be made at the completion of the state highway.” Article 9th Town Records Book 4, Page 403.

42. At the Annual Town Meeting on March 5, 1900, the Town voted:

a. “that the 8th article in the warrant be passed over to be acted upon at the Adjourned Annual Town Meeting.” Article 8th.

b. “that the Selectmen be instructed to petition the County Commissioners to discontinue that piece of road commencing at the New York State line and running easterly up the mountain to its junction with the state highway, said petition to be made at the completion of the state highway.” Article 9th Town Records Book 4, Page 404.

43. At an Adjourned Annual Town Meeting on March 17, 1900, the Town voted “to discontinue that portion of the road mentioned in the eighth article of the Warrant commencing at the house on said road belonging to the Shakers and running westerly till it intersects the State highway.” Article 1st Town Records Book 4, Page 407.

44. The Warrant for a Special Town Meeting on July 15, 1912, proposed “to see whether the Town approves of closing the Clark, Corey and Smith roads, if it can be done legally.” Town Records Book 5, Page 56, Article 4th.

45. At a Special Town Meeting on July 15, 1912, the town:

a. “voted to vote on closing road separately”. Article 4th.

b. “voted not to discontinue the Clark Road.” Article 5th.

c. “voted not to discontinue the Corey Road.” Article 6th.

d. “voted not to discontinue the Smith Road.” Article 7th.

e. “voted that the Selectmen consult with the County Commissioners regarding the discontinuance of certain roads.” Article 8th Town Records Book 5, Page 57.

46. The Warrant for a Town Meeting on February 4, 1929, proposed “to see if the town will vote to discontinue that part of the Goodrich Hollow Road, located from a point above the residence of B.H Goodrich and extending to the former Elmer Goodrich Farm.” Article 23rd Town Records Book 5, Page 361.

47. At an Annual Town Meeting on February 4, 1929, the Town voted “to discontinue the Goodrich Hollow Road from B.H. Goodrich’s driveway by his house to the late Elmer Goodrich Farm, that is, to the end of the road.” Article 23rd Town Records Book 5, Page 363.

48. The Warrant for a Special Town Meeting on August 13, 1945, proposed “to see if the town will vote to discontinue the so called Sweet Road or any part thereof.” Article 1st Town Records Book 6, Page 78. 49. At the Town Meeting on August 13, 1945, the Town voted “to discontinue the so called Sweet Road.” Article 1st Town Records Book 6, Page 79.

50. The Warrant for the town meeting on February 9, 1970, proposed “to see if the town will vote to discontinue the part of Corey Road from the second bridge to the end of the road as a public way or take any other action thereon.” Article 41st Town Records Book 7, Page 48.

51. At the Annual Town Meeting on February 9, 1970, the Town “voted to discontinue the part of Corey Road from the 2nd bridge to the end of the road as a public way.” Article 41st Town Records Book 7, Page 53.

52. The Warrant for the special town meeting on November 29, 1982, proposed:

a. “to see if the Town will vote to permit the Board of Selectmen to abandon Madden Road at the Hirsey driveway; north-westerly, to the Greene property, to be maintained summer only. From the Greene property north-westerly to the end of the road, to be abandoned.” Article 2nd

b. “to see if the Town will vote to permit the Board of Selectmen to abandon Smith Road at the Ahlert driveway, easterly to the Lebanon Springs Road.” Article 3rd

c. “to see if the Town will vote to permit the Board of Selectmen to abandon Lebanon Springs Road from the New York State line; easterly to the Daoust property, to be maintained, summer only. From Daoust property to the Pittsfield line, easterly, to be abandoned.” Article 5th

d. “to see if the Town will vote to permit the Board of Selectmen to maintain Dee Road, summer only.”

e. “to see if the Town will vote to permit the board of Selectmen to maintain Shaker Road, summer only.” Article 6th. Town Records Book 9, Page 22

53. At the Special Town meeting on November 29, 1982, the Town voted:

a. “Article 1, 2, 3, 4, 5, & 6 were passed by unanimous vote.”

b. Article 2 was unanimously amended to include the word ‘first’ between the words ‘the and ‘Hirsey.’” Town Records Book 9, Page 23

* * * * *

There is no dispute that in 1946, the Road was a public way in the Town of Hancock. “Once duly laid out, a public way continues to be such until legally discontinued.” Carmel v. Baillargeon, 21 Mass. App. Ct. 426 , 428 (1986). The question before this court is whether the 1946 Vote discontinued the Road as a public way, or merely closed it, thereby discontinuing the Town’s liability for care and maintenance. If a road is legally discontinued by town meeting vote, it no longer exists as a public way, and the public easement of travel is terminated. A road which has been closed, but not discontinued, on the other hand, remains a public way but the town no longer has the obligation of its care and maintenance. In the case of a closed, but not discontinued road, the public and abutting landowners retain the right to travel over the road. See Nylander v. Potter, 423 Mass. 158 , n. 7 (1996).

This court is informed by Johnson v. Wyman, 75 Mass. 186 (1857), with respect to where the burden of proof lies in the instant case. According to Johnson, the party claiming a road is discontinued bears the burden of proving that fact. Accordingly, Meudt, as the party asserting the Road was discontinued by the 1946 Vote, carries the burden of proving the discontinuance.

Meudt claims the 1946 Vote discontinued the Road despite the meeting minutes, which indicate that the vote was to “close the Tower Mt. road from the driveway of Norman McVeigh to the Hancock-Pittsfield line.” (emphasis added}. Because the question was on the warrant and put before Town Meeting, Meudt argues that the Town must have been acting under G. L. c. 82, § 21, providing for the discontinuance of a way by vote at town meeting, and not under G. L. c. 82, § 32A, which provides for the closure of a road through a three-step process not requiring a town meeting vote. Meudt claims that in order to close the Road, the Town had to complete the steps laid out in G. L. c. 82, § 32A, which it did not.

Dus and the Town, on the other hand, claim that the 1946 Vote closed the Road, eliminating only the Town’s obligation to maintain it; therefore the abutting landowners have the right to travel over it as access to their properties. “It has long been settled that the records of proceedings of a town meeting are conclusive as to all business transacted.” Zaskey v. Town of Whately, 61 Mass. App. Ct. 609 , 614 (2004). Only if the town vote is ambiguous may a court look to parol evidence to determine the subject matter of the vote. Id. at 614-15. If this court were to find that the language of the 1946 Vote was unambiguous, this court would have to conclude that the 1946 Vote was a vote to close, but not discontinue the Road. There is, however, a latent ambiguity which is evident because the statutory method by which a town would have closed a road in 1946 did not include a town meeting vote, even though the language appears clear. Therefore, as an initial matter, this court finds that the language of the vote is sufficiently ambiguous to allow this court to consider parol evidence to elucidate its meaning. Whether this court looks to parol evidence or not, this court reaches the same conclusion; the 1946 Vote authorized closure, but not discontinuance of the Road.

In directing the court to parol evidence, Dus and the Town both point to numerous town meeting votes taken over many decades, beginning in 1801, and as recently as 1982. Some of those votes resulted in the discontinuance of certain roads and others resulted in the closure of roads. Dus and the Town claim that if the Town wanted to discontinue the Road, it would have expressly done so in the 1946 Vote. They claim that the various votes to close some roads and discontinue others over the years show that the Town knew the difference between the terms, and purposefully chose to use the term “close” in the 1946 Vote. Dus and the Town also point out that there is nothing in the 1946 Vote indicating that the Town was acting under G. L. c. 82, § 21, to discontinue the Road.

Discontinuing a public way has serious consequences. Unlike when a road is closed, when a road is discontinued, a town loses all rights to that way including any easements it once held. Title to a discontinued way reverts to the abutting land owners and the right of the public to travel over it is extinguished. Nylander, 423 Mass. at 161, n. 8 (1996).

This court is persuaded by the arguments of Dus and the Town, and more importantly, not persuaded by the arguments of Meudt who bears the burden in this case. Most convincing are the various town meeting votes that took place in the Town while the original version of G. L. c. 82, § 32A, was in effect. Four votes took place during that time and, in all of them, the Town voted to “discontinue” or “abandon” certain roads. One such vote was taken only six months prior to the 1946 Vote. This court cannot accept the premise that the Town used the wrong term in the 1946 Vote, while it used the correct term six months earlier. If the Town intended to “discontinue” the Road, it could have said as much in the Warrant for the town meeting, just as it did in the other votes relevant to this issue.

This court finds that Plaintiff has not met his burden of proving that the 1946 Vote was one to discontinue the Road. Because Plaintiff has not met his burden, this court holds that the 1946 Vote closed the Road. Accordingly, all parties who are abutters to the Road have the right to use the Road to access their property and the public retains the right to use the Road as access to the Pittsfield State Forest.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: August 26, 2008