MISC 313455

January 9, 2008

Barnstable, ss.

Long, J.



Plaintiff Patricia Lambert owns a 6.118 acre lot in Brewster with fifty-five feet of frontage on Fishermen’s Landing Road, a public (town) way that provides the only means of access to her property. Ms. Lambert’s land is presently vacant, but she plans to develop it into house lots or sell it to a developer who will do so. Defendants Matthew McKenna and Joanne Collins own the abutting property. [Note 1]

Fishermen’s Landing Road is paved, but the pavement does not occupy the entirety of the roadway layout. Instead, there is a wide shoulder on both sides of the pavement. The town does not allow parking anywhere in the layout. Despite this prohibition, the defendants constructed a parking area for their cars in the roadway layout immediately in front of the Lambert property. See Exhibit B. They claim to have done so in the belief they owned that land, but this cannot be so. A mere glance at the Land Court plan of their property immediately would have shown such assumption to be clearly erroneous.

The plaintiff objects to the defendants’ parking in front of her property and brought this action to stop it. The parking area occupied over half of her frontage, and the parked cars substantially impaired both her ability to access Fishermen’s Landing Road and the marketability of her land. By Order dated October 19, 2005, the defendants were preliminarily enjoined from parking or placing cars or other objects in the Fisherman’s Landing Road layout in front of the plaintiff’s property and were directed to remove the logs they had placed there. Order Allowing Plaintiff’s Motion for Preliminary Injunction (Oct. 19, 2005). The case was subsequently tried before me, jury-waived, with an additional issue presented: if the defendants’ parking was confined to their lot, could they construct a driveway across the layout in front of the plaintiff’s property to reach the paved road and, if so, where?

The case thus presents five questions. May the defendants construct a driveway across the layout in front of the plaintiff’s property to connect to the pavement? If so, where? Where, if anywhere, in the layout may they park? Does the plaintiff have standing to raise any objections? If so, does this court have jurisdiction to decide them?

As more fully discussed below, I find and rule that the defendants have an absolute right to build a driveway across the layout to the paved part of the road for the purpose of accessing their property. Since there was neither evidence of a safety problem nor unreasonable impairment of access to the plaintiff’s property that would result from such a driveway, I find and rule that the location of the driveway is entirely a matter between the defendants and the town, with the plaintiff having no legal basis to object to whatever location the defendants and the town agree upon. [Note 2] I find and rule, however, that parking in the layout, either on that portion of the driveway or elsewhere, is an entirely different matter. The plaintiff has standing to object to such parking anywhere in front of her property, and this court has jurisdiction to decide the dispute. Finally, I find and rule that where, as here, the town prohibits parking in its roadway layouts, the defendants may not park or place objects in the layout in front of the plaintiff’s property anywhere, at any time.


“Access to a public way is one of the incidents of ownership of land bounding thereon, and this right is appurtenant to the land and exists when the fee of the way is in the municipality as well as when it is in private ownership.” Anzalone v. Metro. Dist. Comm’n, 257 Mass. 32 , 36 (1926); see also Gen. Hosp. Corp. v. Massachusetts Bay Transp. Auth., 423 Mass. 759 , 767 (1996) (“Access to public way is a right of ownership appurtenant to land abutting a way.”); Wenton v. Commonwealth, 335 Mass. 78 , 80 (1956) (“power to regulate the digging and opening of” a state highway does “not include the power to bar access entirely”); Centebar v. Selectmen of Watertown, 268 Mass. 121 , 124 (1929) (“Undoubtedly a right of access to and from the public way is an incident of his ownership of this land.”). Thus, both the plaintiff and the defendants have the right to build driveways across the roadway layout to connect their properties to the paved portion of the way.

In the absence of credible evidence of a danger to her safety or that access to her property would unreasonably be impeded, the plaintiff has no legal basis to object to any driveway location chosen by the defendants and approved by the town. [Note 3] The town owns the roadway layout. Its inherent police powers grant it the power to make judgments in the interest of public safety and convenience. See Hammond v. County Comm’rs of Worcester, 154 Mass. 509 , 510-11 (1891). [Note 4] It has no obligation to maximize the value of the properties along its roadways in making those judgments. There was no evidence that the location of the defendants’ driveway across any portion of the roadway layout in front of the plaintiff’s property will affect her safety or impede her ability to access her land, so long as there is no parking or placement of any objects in that driveway. She may, in the future, wish to place her own access driveway across the layout in much the same location as the defendants’, but there is nothing to suggest that the town will seek to prevent it solely on that basis and the issue, of course, may never arise. It can be addressed when it does.

The analysis is different if the defendants intend to park or place any objects in the roadway layout. The town prohibits any parking along the roadway, and allowing such parking would apparently require a town meeting vote. [Note 5] Defs.’ Letter to the Ct. (Oct. 15, 2005). The only question is whether the plaintiff has standing to raise an objection to such parking (a private right of action to enforce the town regulation), and whether this court has jurisdiction to decide that objection. I conclude that the plaintiff has such standing for the area directly in front (i.e., straight ahead) of her frontage, [Note 6] and that the land court has jurisdiction.

The cause of action, in essence, is “public nuisance” and the issues are (1) whether non-emergency parking in a public roadway layout in violation of municipal law is a public nuisance and, if so, (2) can Ms. Lambert be a private plaintiff in such an action.

A public nuisance, as described by the Restatement (Second) of Torts § 821B (1979), is an “unreasonable interference with a right common to the general public.” Massachusetts specifically recognizes the obstruction of a public way as a public nuisance. See, e.g., Stop & Shop Companies, Inc. v. Fisher, 387 Mass. 889 , 894 (1983). “Under the common law of the Commonwealth, a private plaintiff may maintain a public nuisance action if the public nuisance has caused the plaintiff some special injury of a direct and substantial character other than that borne by the general public.” Planned Parenthood League of Massachusetts, Inc. v. Bell, 424 Mass. 573 , 577-578 (1997). Impairing a plaintiff’s access to a public way is such a “special injury.” Stop & Shop Companies, Inc., 387 Mass. at 895. Thus, the plaintiff has standing to challenge that impairment.

Parking or placing objects in front of the plaintiff’s frontage (i.e., between the plaintiff’s front boundary and the paved portion of the roadway) will clearly and substantially affect her ability to access her property. The topography of her land is such that the most practical route of access is either over or near the area where the defendants propose to build their driveway and park their cars. See Exhibit C. Moreover, the plaintiff has the same right of access to the paved portion of public way as the defendants, and the defendants’ impairment of access to any portion of the plaintiff’s frontage (i.e., a blockage of any part of the area straight ahead from her front property line to the pavement) is an infringement of that right. See Anzalone, 257 Mass. at 36 (“[a]ccess to a public way is one of the incidents of ownership”); Centebar, 268 Mass. at 124 (“undoubtedly a right of access to and from the public way is an incident of his ownership of this land”).

The appropriate relief is a permanent injunction barring the defendants, their visitors, and anyone else under their control from parking or placing objects anywhere in the roadway layout directly in front of the plaintiff’s frontage on Fishermen’s Landing Road, i.e., the area between the plaintiff’s front property line and the paved portion of the road. See Exhibit D. The land court has jurisdiction to grant this relief because the dispute arises from the defendants’ claim of a right to use this land for parking and the plaintiff’s claim of a right to access the public way, making this a “case[] and matter[] cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved . . . .” G.L. c. 185, § 1(k).


For the foregoing reasons, I find and rule that the defendants may construct a driveway from their property to the paved portion of Fishermen’s Landing Road in whatever location the defendants and the town agree upon. The defendants and their agents, servants, relatives, and guests, all those acting in concert with them, all those acting or purporting to act on their behalf, and all those under their control, however, are hereby enjoined and restrained from parking or placing objects of any kind in the Fishermen’s Landing Road layout in front of the property owned by Patricia W. Lambert, [Note 7] or in any other manner that impedes or interferes with access to the plaintiff’s property along its entire frontage. Judgment shall issue accordingly.


Keith C. Long, Justice

Dated: 9 January 2008


[Note 1] The relative location of the two lots is shown on Land Court Plan 32456A, a copy of which is attached as Exhibit A. The defendants’ land is Lot 6 on that plan. The plaintiff’s land is designated “Nelson F. Perry, et al.” Fishermen’s Landing Road is labeled “Town Way.”

[Note 2] Likewise, the defendants would have no basis to object to any location agreed upon between the town and the plaintiff for the plaintiff’s driveway, even if it crossed, used or modified the portion of the defendants’ driveway located in the roadway layout. I assume, of course, that all driveway locations approved by the town provide safe and reasonable access to the properties they serve.

[Note 3] The plaintiff’s post-trial brief concedes that, if the defendants’ proposed driveway is constructed according to the town’s specifications, it “should pose no impediment to access to the Lambert property.” Pl.’s Post-Trial Br. 2.

[Note 4] As noted in Hammond, “[t]he tribunals which lay out and discontinue highways are require by the statutes to adjudicate upon the question what is for the public necessity and convenience; and what is convenient and advantageous to one part of the public may be detrimental to another. In whatever way one may be affected as one of the public by proceedings in regard to highways, he can neither be compelled to pay specially for benefits, nor permitted to receive compensation for damages. This rule, in its application to all the people for a long period of time, generally works substantial justice, although there may be under it cases of hardship.” 154 Mass. at 510-11

[Note 5] Neither party has disputed the accuracy of this representation (indeed, the trial proceeded on the basis of its truth), so I take it as a stipulated fact.

[Note 6] The defendants argued that frontage does not include the entire area in front (straight ahead) of the plaintiff’s property. This is not so. See Concise Oxford English Dictionary 569 (Oxford University Press 10th ed. 1999) (defining “front” as “the position directly ahead” and “frontage” as “a strip or extent of land abutting on a street or waterway”).

[Note 7] The area delineated in Exhibit D.