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 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.
On April 11, 2006, Defendant Peter A. Dus (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. Just prior to trial, all other counts were dismissed voluntarily as the parties agreed that those counts did not come within this courts jurisdiction. This case was tried on a case stated basis, on stipulated facts and numerous exhibits, with briefing by counsel. A decision of todays date has issued declaring the Roads status as a public way. In accordance with that decision, it is hereby
ADJUDGED and DECLARED that by vote taken on February 4, 1946, pursuant to Article 38 of the Town Meeting Warrant, the Town voted to close, but not discontinue, the portion of Tower Mountain Road at issue in this case, which was therein described as running from the driveway of Norman McVey to the Hancock-Pittsfield Line (Road), and that the legal effect of the 1946 Vote was to place the inhabitants of the Town on notice that the Town would no longer maintain and be liable for the care of the Road; it is further
ADJUDGED and DECLARED that the Road has not been discontinued or abandoned and remains a public way in the Town, which may be used by Defendants as access to their properties and by the public; it is further
ADJUDGED and ORDERED that Dus is not liable for trespass damages to Meudt, none having been established at trial.
By the court (Scheier, C. J.)